The Use of Canon Law in Ecclesiastical Administration, 1000-1234 [1 ed.] 9789004387249, 9789004364332

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The Use of Canon Law in Ecclesiastical Administration, 1000–​1234

Medieval Law and Its Practice Edited by John Hudson (St Andrews) Editorial Board Paul Brand (All Souls College, Oxford) Emanuele Conte (Università Roma Tre/​ehess, Paris) Maribel Fierro (ILC-​CCHS, CSIC) Dirk Heirbaut (University of Ghent) Richard Helmholz (University of Chicago) Caroline Humfress (St Andrews) Magnus Ryan (Peterhouse, Cambridge) Robin Chapman Stacey (University of Washington)

volume 26

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

The Use of Canon Law in Ecclesiastical Administration, 1000–​1234 Edited by

Melodie H. Eichbauer and Danica Summerlin

LEIDEN | BOSTON

Cover illustration: Fol. 40r., Gratian, Decretum, Admont, Stiftsbibliothek, 43. With kind permission of Prior P. Maximilian Schiefermüller and the Stiftsbibliothek, Admont. The Library of Congress Cataloging-​in-​Publication Data is available online at http://​catalog.loc.gov lc record available at http://​lccn.loc.gov/2018962732​

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/​brill-​typeface. issn 1873-​8 176 isbn 978-90-04-36433-2 (hardback) ​i sbn 978-90-04-38724-9 (e-book) Copyright 2019 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-​free paper and produced in a sustainable manner.

Contents Acknowledgements vii Notes on Contributors ix Abbreviations x Introduction 1 Melodie H. Eichbauer and Danica Summerlin 1

Men on the Move: Papal Judges-​Delegate in the Province of Reims in the Early Twelfth Century 23 John S. Ott

2

History, Politics and Canon Law: The Resignation of Archbishop Eskil of Lund 51 Mia Münster-​Swendsen

3

Law in Service of a Community: Property and Tithing Rights in Gratian’s Decretum and Stephen of Tournai’s Summa 69 Melodie H. Eichbauer

4

Contrasting Approaches among Canon Lawyers on the Twelfth Century Shift from ius naturale to Rights 89 Jason Taliadoros

5

How the Local Council of Seligenstadt in 1023 Drew upon Books of Church Law 108 Greta Austin

6

Hubert Walter’s Council of Westminster in 1200 and Its Use of Alexander iii’s 1179 Lateran Council 121 Danica Summerlin

7

The Emerging Jurisprudence, the Second Lateran Council of 1139 and the Development of Canonical Impediments 140 Stephan Dusil

vi Contents 8

Bonizo of Sutri, the Dicta Bonizonis and the Development of the Jurisprudence of Canon Law before Gratian 159 William L. North

9

Law and Disputation in Eleventh-​Century Libelli de lite 185 Kathleen G. Cushing

10

‘We Receive the Law on Mt. Sinai … When We Study the Sacred Scriptures’: Law, Liturgy and Reform in the Exegesis of Bruno of Segni 195 Louis I. Hamilton



Postface: The View from 2017 221 Bruce C. Brasington Bibliography 233 Index 274

Acknowledgements The idea for this volume emerged at an International Congress on Medieval Studies in Kalamazoo, MI, as we walked from the Valleys to Subway in the Bernhard Center for lunch. We chattered with and over each other about how the textual analysis critical to understanding the development and transmission of canon law could complement the traditional narratives drawn upon to explain the so-​called long twelfth century and, more importantly, how we could translate that analysis into language that non-​specialists in canon law would understand. By wine hour we had settled on contributors we wanted to approach. We wanted them to engage in textual analysis and then couple that analysis with other sources—​gestae, chronicles, letters, etc.—​in order to further our understanding of the period. When we pitched our idea to them, we could not have been more appreciative of their willingness to participate given the extensive other commitments on their time. The contributors to this volume are truly are a testament to the camaraderie and friendships in our field. We are in their debt. Our conversations eventually turned, however, to how the approaches to studying canon law can be difficult to understand if not already entrenched in the complex debates. Those whose work might bring them into contact with legal sources may face a thorny nest of scholarship which can be seen as difficult to navigate. To help provide the vital directions and maps for such a navigation, we have chosen to structure the Introduction as an entry point into the historiography and impact of the methods used by the giants of the field who went before us, engaging in the philological work so vital to understanding the compilation and transmission of legal texts. In the Introduction and essays alike, most of the source material is found, not in the main body of the texts, but in the extensive footnotes. Bruce Brasington’s Postface then brings the volume full circle by reflecting on the approaches outlined in the Introduction and how the essays drew on them to shed light on the use of canon law in the multitude of administrative levels occupied by ecclesiastics during the long twelfth century. As well as to the support and speedy commitments of our contributors, many thanks are due to friends, family and colleagues alike, across three institutions and numerous conferences and seminars: too many to name individually here. A few individuals should be mentioned though. First, we would like to take a moment to thank our assistant Noah Anderson. His willingness to take on any task in the early stages of the process aided the entire venture, and we are especially in his debt for the creation of the index. We are appreciative

viii Acknowledgements of all of his hard work. Second, we would like to thank each other for the good humour and camaraderie with which our efforts at editing and proofing have been met. That we have reached the final stage and the biggest argument concerned the different British and American terminologies for brackets (i.e. parentheses) is testament to the benefits of a shared sense of fun and sarcasm. Editions have ended friendships; that ours has begun one can only point to a beautiful future. Third, we would like to thank Marcella Mulder at Brill for seeing us through the process and the anonymous reviewer for the helpful suggestions. Finally, we would like to thank our mentors, Kenneth Pennington and Martin Brett. We hope to pay homage to their guidance.

Notes on Contributors Greta Austin Professor of Religion, University of Puget Sound Bruce C. Brasington Professor of History, West Texas A&M University Kathleen G. Cushing Reader in Medieval History, Keele University Stephan Dusil Associate Professor, Division for Roman Law and Legal History, Katholieke Universiteit Leuven Melodie H. Eichbauer Associate Professor of History, Florida Gulf Coast University Louis I. Hamilton Dean, Albert Dorman Honors College, New Jersey Institute of Technology and Professor, Federated History Department, NJIT -​Rutgers University, Newark Mia Münster-​Swendsen Professor (MSO) of History, the Institut for Kultur og Identitet, Roskilde Universitet William L. North Professor of History, Carleton College John S. Ott Professor of History, Portland State University Danica Summerlin Lecturer in Medieval History, University of Sheffield Jason Taliadoros Senior Lecturer, Faculty of Business & Law, Deakin University

Abbreviations aar ael aen

aet ahc ahr akkr AJ

bav BM bmcl bnf BN bsb cea ccl cccm chr cod cogd

dgi ehr

Actes des archevêques de Reims d’Arnoul à Renaud ii (997–​1139), ed. P. Demouy (2 vols in 3 parts, Unpublished thesis, Université de Nancy ii, 1982) Actes des évêques de Laon des origines à 1151, ed. A. Dufour–​Malbezin (Paris: cnrs Éditions, 2001) Les actes des évêques de Noyon–​Tournai depuis saint Éloi (7e siècle) jusqu’à 1146/​1148, eds. J. Pycke and C. Vleeschouwers, with N. Huyghebaert (2 vols, Louvain–​la–​Neuve: i6doc.com, 2015) Les actes des évêques de Tournai (1146–​1190), ed. J. Pycke and C. Vleeschouwers (Louvain–​la–​Neuve: i6doc.com, 2014) Annuarium historiae conciliorum The American Historical Review Archiv für katholisches Kirchenrecht Jacquemin, L., ‘Annales de la vie de Josselin de Vierzi, 57e évêque de Soissons (1126–​1152)’, in Quatrièmes mélanges d’histoire du moyen âge, ed. A. Luchaire, Université de Paris, Bibliothèque de la Faculté des Lettres, 20 (Paris: Félix Alcan, 1905), 1–​161 Biblioteca Apostolica Vaticana Bibliothèque municipale, Stadtsbibliothek, Biblioteca comune, Landesbibliothek, civica, etc. Bulletin of Medieval Canon Law, New Series Bibliothèque nationale de France Biblioteca nazionale Bayerische Staatsbibliothek Les chartes des évêques d’Arras (1093–​1203), ed. B.–​M. Tock, Collection de Documents Inédits sur l’Histoire de France, 20 (Paris: cths, 1991) Corpus Christianorum, Series latina Corpus Christianorum, Continuatio mediaevalis Catholic Historical Review Conciliorum œcumenicorum decreta, eds. G. Alberigo and J. Dossetti (3rd edn, Bologna: Istituto per le scienze religiose, 1973) Conciliorum oecumenicorum generaliumque decreta, 2.1: The Oecumenical Councils of the Roman Catholic Church: From Constantinople iv to Pavia-​Siena (869–​1424); 2.2: From Basel to Lateran V (1431–​1517), eds. A. Melloni et al., Corpus Christianorum (Turnhout: Brepols, 2013) Dizionario biografico dei giuristi italiani (xii–​x x secolo), eds. I. Birocchi, E. Cortese, A. Mattone, M. N. Miletti (2 vols, Bologna: Mulino, 2013) English Historical Review

Abbreviations GC hmcl

jeh JK, JE, JL

Mansi mgh

mic

pl Potthast PUF n.F.

xi

Gallia Christiana, in provincias ecclesiasticas distribute (17 vols, Paris: Ex Typographia Regia, 1715–​1865) The History of Medieval Canon Law in the Classical Period, 1140–​1234: From Gratian to the Decretals of Pope Greogry ix, eds. W. Hartmann and K. Pennington, History of Medieval Canon Law (Washington D.C.: The Catholic University of America Press, 2008) Journal of Ecclesiastical History Jaffé, P., Regesta pontificum romanorum: ab condita ecclesia ad annum post Christum natum mcxcviii, ed. secundam curaverunt F. Kaltenbrunner (JK: an.?–​ 590), P. Ewald (JE: an. 590–​882), and S. Loewenfeld (JL: an. 882–​1198) (3 vols, Leipzig: Veit, 1885; rpt. Graz: Akademische Druck–​u. Verlagsanstalt, 1956) Mansi, J. D., Sacrorum conciliorum nova et amplissima collectio (53 vols, rpt. Graz: Akademische Druck–​u. Verlagsanstalt, 1960–​). Monumenta Germaniae Historica –​ Capit. Capitularia –​ Conc.  Concilia –​ Const. Constitutiones –​Epp. Epistolae (in Quart) –​Epp. saec. xiii Epistolae saeculi xiii –​Epp. sel. Epistolae selectae –​Fontes iuris Fontes iuris Germanici antiqui, Nova series –​LdL  Libelli de lite imperatorum et pontificum –​LL Leges (in Folio) –​LL nat. Germ. Leges nationum Germanicarum –​ SS  Scriptores –​SS rer. Germ. Scriptores rerum Germanicarum in usum scholarum separatim editi –​SS rer. Germ. N.S. Scriptores rerum Germanicarum, Nova series –​SS rer. Lang. Scriptores rerum Langobardicarum Monumenta iuris canonici –​ mic A      Monumenta iuris canonici, Series A: Corpus Glossatorum –​ mic B   Monumenta iuris canonici, Series B: Corpus Collectionum –​ mic C Monumenta iuris canonici, Series C: Subsidia Migne, J.-​P., Patrologiæ cursus completus. Scriptores Latini. Series secunda Potthast, A., Regesta pontificum romanorum (2 vols, Berlin: Decker, 1856, 1875; rpt. Graz: Akademische Druck, 1956–​57). Papsturkunden in Frankreich, neue Folge, eds. H. Meinert et al., Abhandlungen der Akademie der Wissenschaften in Göttingen, Philologisch-​ Historische Klasse, 3e Folge (9 vols, Berlin: Weidmann; Göttingen: Vandenhoeck and Ruprecht, 1932–​98)

xii Abbreviations PUN  Papsturkunden in den Niederlanden (Belgien, Luxembourg, Holland und Französisch–​Flandern), ed. J. Ramackers, Abhandlungen der Akademie der Wissenschaften in Göttingen, Philologisch-​Historische Klasse, 3e Folge (2 vols, Berlin: Weidmann, 1933–​34) pup  Papsturkunden in Portugal, ed. C. Erdmann, Abhandlungen der Akademie der Wissenschaften in Göttingen, Philologisch-​ Historische Klasse, 3e Folge (Berlin: Weidmannsche, 1927). pus  Papsturkunden in Spanien, ed. P. Kehr, Abhandlungen der Akademie der Wissenschaften in Göttingen, Philologisch-​Historische Klasse, 3e Folge (2 vols, Berlin: Weidmann 1928). rdc Revue de droit canonique ridc Rivista internazionale di diritto comune rhgf  Recueil des historiens des Gaules et de la France, Vol. 15, ed. L. Delisle (new edn, Paris: Victor Palmé, 1878) zrg Kan. Abt. Zeitschrift der Savigny-​Stiftung für Rechtsgeschichte, Kanonistische Abteilung

Introduction Melodie H. Eichbauer and Danica Summerlin In around 1189, William of Longchamp began his Practica legum et decretorum with a statement that ‘the science of the law is truly a most sacred thing’.1 William, a trained lawyer and politician whose inability to govern England during Richard I’s absence on crusade led to an intense political crisis, was both bishop and royal chancellor. His fall from grace was as much a result of unpopular political decisions as constant attempts to seek out control, but for the current purposes his principal interest is that he acted for both ecclesiastical and secular arms of government concurrently, if ineptly. William’s career is only one of many which demonstrate bishops, archbishops, popes and legates straddling the two spheres of contemporary government. Examples abound:  amongst his contemporaries in England, William counted Geoffrey, archbishop of York and illegitimate brother of Richard I, while a generation earlier and across the channel Henri de France, archbishop of Reims and papal legate, was brother to King Louis vii. In the Holy Roman Empire, the archbishops of Cologne and Mainz served as the archchancellors of Germany alongside their ecclesiastical duties. Despite his episcopal role, William’s Practica Legum mirrors most closely in style a contemporary common law treatise, now known as Glanvill, rather than the citation-​heavy and complex procedural works mostly favoured by canon lawyers.2 Legal evidence has frequently underpinned analyses of the long ​twelfth century. Whether seen as a time where Europe was made by conquest and colonisation,3 on the verge of a crisis,4 or undergoing a renaissance of intellectual thought and ideas,5 scholars have been drawn to laws, legal documents 1 B. Brasington (trans.), Order in the Court: Medieval Procedural Treatises in Translation, Medieval Law and Its Practice, 21 (Leiden-​Boston, 2016), 182, 172–​82 for a discussion of William and his work. 2 Ibid., 174–​75. 3 R. Bartlett, The Making of Europe:  Conquest, Colonization and Cultural Change, 950–​1350 (Princeton, 1994). 4 J. Cotts, Europe’s Long Twelfth Century:  Order, Anxiety and Adaptation, 1095–​ 1229 (New York, 2013). 5 C. Haskins, The Renaissance of the Twelfth Century (Cambridge, 1927); plus see R. Benson and G. Constable with C. Lanham (eds.), Renaissance and Renewal in the Twelfth Century, Medieval Academy Reprints for Teaching, 26 (rpt. Toronto, 1991).

© Koninklijke Brill NV, Leiden, 2019 | DOI:10.1163/​9 789004387249_​0 02

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and legal maxims whenever they consider questions of power and authority. While this observation is particularly true when considering the growth of papal power and authority sparked by the Investiture Controversy of the late eleventh century, it is equally valid for a number of works. R. I. Moore’s influential The Formation of a Persecuting Society—​ostensibly focussed on the twelfth century repression and isolation of lepers, Jews and any group identified as ‘other’—​drew on ideas of power and authority and their communication related to the emergence of an hierarchical church, for all that such criticism was lessened in the second edition.6 While canon law has played a supporting role in these narratives, it has been central to the scholarly conversation surrounding ecclesiastical reform in the central Middle Ages. To briefly summarise a complex debate, the balance of papal and local influence on the reforming agenda remains a central concern for scholars. Older theorists, such as Augustin Fliche, attached the name ‘Gregorian’ to the reform tradition and suggested direct papal involvement, an act which made the emergence of papally-​oriented canonical collections paramount in establishing a reforming hierarchy enforced by direct papal interaction through letters and legates.7 More recently, however, the locus of reform has become increasingly local, in part as a reaction to what Maureen C. Miller characterised as a crisis in the narrative.8 Instead of seeing reform as an action imposed by the papacy, the actions of bishops, monks and the reforming laity have become a central point. Questions are asked of the role of individual or groups of bishops,9 as well as reforming abbots and their influence.10 Gerd Tellenbach’s theory that the period of the Investiture Controversy represented a crisis of authority and spheres of influence has thus been expanded to reflect 6 7 8 9

10

R. Moore, The Formation of a Persecuting Society (2nd edn, Oxford, 2007). A. Fliche, La réforme grégorienne, Études et documents 6, 9, 16 (3 vols, Louvain-​Paris, 1924–​37). M. Miller, ‘The Crisis in the Investiture Crisis Narrative’, History Compass, 7 (2009), 1570–​80. J. Ott and A. Trumbore-​Jones (eds.), The Bishop Reformed: Studies of Episcopal Power and Culture in the Central Middle Ages (Farnham-​Burlington, 2007); K. Rennie, Law and Practice in the Age of Reform: The Legatine Work of Hugh of Die (1073–​1106), Medieval Church Studies, 17 (Turnhout, 2010). See U.-​R. Blumenthal, ‘Poitevin Manuscripts, the Abbey of Saint-​Ruf and Ecclesiastical Reform in the Eleventh Century’, in M. Brett and K. Cushing (eds.), Readers, Texts and Compilers in the Earlier Middle Ages: Studies in Medieval Canon Law in Honour of Linda Fowler-​Magerl (Farnham-​Burlington, 2009), 87–​100 for the transmission of canonical collections within the context of the revival of law and the reform movement in the eleventh century. E.g., G. Loud, ‘Abbot Desiderius of Montecassino and the Gregorian Papacy’, JEH, 30/​3 (July 1979), 305–​26; H. White, ‘The Gregorian Ideal and Saint Bernard of Clairvaux’, Journal of History of Ideas, 21/​3 (1960), 321–​48; H.  Cowdrey, The Age of Abbot

Introduction

3

questions of continuity, change and innovation.11 Ian Robinson has demonstrated the importance of familial networks or, more often, shared schooling, common mentors or membership of the same monastic or clerical environments to the dispersal of reform ideas.12 All these events occurred in the late-​ eleventh century, but their many repercussions were felt throughout the period covered in this volume. Whatever name it is given, the revitalisation of learning following the return of organised schools in the twelfth century and the subsequent institutionalisation of that learning was a perennial theme.13 The crystallisation of the ecclesiastical hierarchy, and the consequent cyclical freeze and thaw of relations between ecclesiastical and temporal groups continued apace, until the emergence of specific Papal States under Innocent iii.14 Canon law sources are employed to describe and explain the greater changes which occurred in the twelfth century, but they also reflect those changes. For scholars of canon law, the questions attached to studying different canonical material provide the framework around which the broader narratives just outlined are hung. These include questions of the transmission of texts, the nature and timing of the professionalization of law, the relationship with normative law, the idea that law was a living object and, above all, the ever-​ tricky questions concerning the Concordia Discordantium Canonum, otherwise known as the Decretum, the collection compiled in c.1140 which, in the eyes of many, changed the study and practice of canon law in the medieval west on a fundamental level. This volume explores the integration of canon law within society in the central Middle Ages. Our interest is both in administration, distinct from the concerns of individuals preoccupied by faith and life but equally more pragmatic than the heights of intellectual inquiry undertaken in the schools, and in the pervasiveness of canon law in medieval life. Grounded in the careers of ecclesiastical administrators, each essay serves as a case study that couples law with

11 12 13

14

Desiderius:  Montecassino, the Papacy and the Normans in Eleventh and Early Twelfth Centuries (Oxford, 1983). G. Tellenbach, The Church in Western Europe from the Tenth to the Early Twelfth Century, trans. T. Reuter (Cambridge, 1993). I. Robinson, ‘The Friendship Network of Gregory VII’, History, 63 (1978), 1–​22. E.g., Haskins, Renaissance of the Twelfth Century; Benson and Constable (eds.), Renaissance and Renewal in the Twelfth Century; S. Kuttner, Kanonistische Schuldlehre: Von Gratian bis auf die Dekretalen Gregors IX. Systematisch auf Grund der handschriftlichen Quellen dargestellt, Studi e Testi, 64 (Vatican City, 1935); R. Southern, Medieval Humanism and Other Studies (Oxford, 1984). E.g., I.  Robinson, The Papacy 1073–​1198:  Continuity and Innovation (Cambridge, 1990); C. Morris, The Papal Monarchy: The Western Church from 1050 to 1250 (Oxford, 1991). See also A.  Thier, Hierarchie und Autonomie:  Regelungstraditionen der Bishofsbestellung in

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social, political or intellectual developments in the medieval world. Many of the contributors draw upon the textual analysis necessary to understand canonical collections and texts to then move into broader arenas treated by scholars surveying the period between the c.1020 and c.1234. Before introducing the essays, however, and to soften the hard edges of canonical texts and their complex historiographical and interpretive frameworks, we will set forth the approaches and findings that have most influenced the contributors and their work.

Introduction to the Frameworks of Canon Law

The Collection in 74 Titles (c.1070) and the Decretales of Pope Gregory ix (1234), better known by its unofficial nickname of the Liber Extravagantium Decretalium or Liber Extra, traditionally bookend the long ​twelfth century for most canon law scholars. Both these collections were innovative and represent a change of direction. The Collection in 74 Titles explicitly enunciated the importance of papal authority, which provided the opening title of the collection.15 Meanwhile the Liber Extra put that authority into action, containing a majority of the papal letters of judgement known as decretals, and accompanied by the papal bull Rex Pacificus containing explicit statements that ‘all use only this collection in judgements and the schools’ and that no further collections were to be compiled without papal authorisation.16 Furthermore, both were widespread for their time: the Collection in 74 Titles survives in nineteen known manuscripts,17 while the Liber Extra exists in hundreds of manuscripts and acted as one of the principal law books until the reedition of the canon law code in 1917.18 The Collection in 74 Titles is but one example that demonstrates the flaws in a simple reading of canonical collections and the importance of the detailed textual criticism that has changed how canonical collections are perceived by scholars. It is now suggested that the Collection in 74 Titles was in fact a monastic

15 16 17 18

der Geschichte des kirchlichen Wahlrechts bis 1140, Studien zur Europäischen Rechtsgeschichte, 257; Recht im ersten Jahrtausend, 1 (Frankfurt-​am-​Main, 2011). J. Gilchrist (trans.), The Collection in Seventy-Four Titles: A Canon Law Manual of the Gregorian Reform, Mediaeval Sources in Translation, 22 (Toronto, 1980), 23–​24, 71–​83. Gregory ix, Rex Pacificus, Potthast 9693. L. Kéry, Canonical Collections of the Early Middle Ages (ca. 400–​1140), History of Medieval Canon Law (Washington, D.C., 1998), 204–​10; L. Fowler-​Magerl, Clavis Canonum: Selected Canon Law Collections before 1140, mgh, Hilfsmittel, 21 (Hannover, 2005), 100–​102. M. Bertram, Signaturenliste der Handschriften der Dekretalen Gregors IX:  (Liber Extra). Neubearbeitung April 2014 (Rome, 2014), available at http://​www.dhi-​roma.it/​bertram_​extrahss.html (accessed 1 March 2017), and lists 675 known manuscripts of the Liber Extra.

Introduction

5

collection, rather than one compiled in the papal curia for the purpose of expanding papal authority.19 Other important and widely-​circulated canonical materials have been subject to close reading, most importantly the group of collections traditionally attributed to Ivo, bishop of Chartres. In earlier works, including Paul Fournier and Gabriel le Bras’ Histoire des collections, three works are attributed to Ivo: the Panormia, the Decretum and the Tripartita; of these, the Panormia had a particular longevity and influence, surviving in over a hundred manuscripts, one of which was used in the compilation of Gratian’s Decretum (c.1120–​40).20 Fournier, le Bras and others made these connections on the basis of quotations used in works known to be written by Ivo, such as his episcopal letters, and those believed to be the result of his work, notably the Prologue that appears before the Panormia in many manuscripts. In the last decades, however, further work on these textual links has upended the connections. Rather than the close ties between the Tripartita B and the Panormia suggesting the same compiler, Christof Rolker has demonstrated that the latter drew from sources that the other collections did not. Furthermore, Rolker has found that most of the canons cited in Ivo’s letters did not come from the Panormia and there was no evidence that Ivo used it as a source.21 A rather later example is provided by the emergence of the Liber Extra of Gregory ix. Compiled by Raymond of Peñafort at the request of Pope Gregory ix, it is now accepted as a compilation of earlier collections gathered together far from the papal curia.22 Raymond gathered his material in part from the papal registers and in part from the pre-​existing Quinque Compilationes Antiquae, a set of five discrete collections of canonical matter compiled between 1190 and 1226.23 In turn, however, the earliest of these collections were compiled from ­papal letters received and gathered together in places far away from Rome and the curia. Unlike the ‘Ivonian’ manuscripts, where northern France has remained the accepted provenance since the nineteenth century, detailed analysis of the decretal collections suggests that they appeared in multiple l­ocations at around the same time. Instead of all being the Italian collections that their connections 19 20 21 22 23

C. Rolker, ‘The Collection in Seventy-​Four Titles: A Monastic Canon Law Collection’, in Brett and Cushing (eds.), Readers, Texts and Compilers in the Earlier Middle Ages, 59–​72. P. Fournier and G. le Bras, Histoire des collections canoniques en Occident depuis les Fausses Décrétales jusqu’au Décret de Gratien (Aalen, rpt. 1972), vol. 2, 55–​114. C. Rolker, Canon Law and the Letters of Ivo of Chartres (Cambridge, 2010), 124–​25, 148–​49, 285–​88. K. Pennington, ‘Decretal Collections 1190–​1234’, in HMCL, 317. The current, problematic, edition of the Liber Extra can be found in Corpus Iuris Canonici, ed. E. Friedberg (2 vols, Leipzig, 1878), vol. 2, 1–​928. Quinque Compilationes Antiquae, ed. E. Friedberg (Leipzig, 1882).

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to Bologna would suggest, the British Isles and particularly south-​west England were equally critical to their emergence.24 One important result of this development beyond the boundaries of legal history has been a nuancing of the relationship between papal and local ecclesiastical authority that underpins many of the contributions to this volume. The best example here remains the Becket dispute in England: rather than its settlement representing the first forays of papal authority into England, papal letters were requested and considered authoritative earlier. Alongside a growing awareness of the responsive nature of all papal decretals, the result is a new and more nuanced understanding of the working relationship between local and papal ecclesiastical authorities which is all too easily overlooked if the later collections, with their expansive statements of papal authority, are used alone.25 By far the best example of the importance of detailed criticism, however, is how textual analysis has transformed, and convoluted, our understanding of Gratian’s Decretum. The collection holds an important place in the evolution of canon law over the course of the twelfth century as Gratian organised the canonical tradition into a comprehensive survey and attempted to reconcile the legal discrepancies and contradictions resulting from the variety of sources. Peter Landau, in his overview of Gratian studies, argued cogently that the Decretum deserves a prime position for three reasons. First, the Decretum provides a critical witness to the intellectual world of the Middle Ages, and particularly Haskins’ twelfth-​century Renaissance. Secondly, by stimulating the teaching of canon law in the universities, Gratian created a distinct and innovative discipline that continues to play a role in modern life. Moreover,

24

25

C. Duggan, Twelfth-​Century Decretal Collections and their Importance in English History (London, 1963); arguing particularly against Walther Holtzmann’s interpretations of critical collections including the so-​called Appendix Concilii Lateranensis, see e.g. W. Holtzmann, ed. and rev. C. Cheney and M. Cheney, Studies in the Collections of Twelfth-​Century Decretals, mic B, 3 (Vatican City, 1979), 116–​18. For the transmission of canons from the Council of Tours (1163) and the Third Lateran Council (1179) and their inclusion in decretal collections, see A. Duggan, ‘Master of the Decretals: A Reassessment of Alexander III’s Contribution to Canon Law’, in P.  Clarke and A.  Duggan (eds.), Pope Alexander III (1159–​81): The Art of Survival (Farnham-​Burlington, 2012), 365–​417; D. Summerlin, ‘Three Manuscripts Containing the Canons of the 1179 Lateran Council’, BMCL, 30 (2013), 21–​43; For the French origin of collections, see G. Drossbach, ‘Die Collectio Victorina prima –​ Dekretalenrecht in Saint-​Victor’, in M. Tischler, H.-P. Neuheuser and R. Stammberger (eds.), Diligens scrutator sacri eloquii. Beiträge zur Exegese und Theologiegeschichte des Mittelalters: Festgabe für Rainer Berndt SJ zum 65 Geburtstag (Münster, 2016), 349–​64. F. Maitland, Roman Canon Law in the Church of England (London, 1898); Z. Brooke, The English Church and the Papacy:  From the Conquest to the Reign of King John (2nd edn, Cambridge, 1989); Duggan, Twelfth-​Century Decretal Collections, 4.

Introduction

7

Gratian’s teaching melded theology and law, thus revealing him to be both a theologian and a jurist and diminishing the previously accepted gulf between the two. Finally, the Decretum formed ‘the bedrock of European legal culture’ by establishing methods and juridical principles that remain the foundation of legal theory and practice.26 The reconceptualization of Gratian and the position of his collection within the twelfth-century schools and the practice of law demonstrate the importance of the detailed philological method pioneered by Stephan Kuttner but also its difficulties. Building on the suggestions of Kuttner and the groundwork laid by Titus Lenherr in particular,27 Anders Winroth relied on philological detail to prove that four manuscripts previously considered to be abridged editions of the Decretum represented an earlier stage of Gratian’s work. The Decretum was thus compiled in two stages, known as recensions. The earlier recension, Gratian 1, presented an argument in a more coherent fashion, relied on a different set of sources, drew blocks of canons in sequential order from those sources, and preserved a closer reading of those texts. The second recension, Gratian 2, nearly doubled the size of the work, with the additional texts disrupting the original discussion.28 Winroth’s discovery confirmed earlier suppositions, but rather than putting an end to analysis of the Decretum his findings have intensified the scrutiny to which it is subjected.29 Nearly three years after Winroth’s announcement, Carlos Larrainzar suggested that the Decretum contained in Sankt Gallen, Stiftsbibliothek 673 presented a pre-​first recension manuscript, based on an analysis of the text’s structure and other features including the omission of blocks of text, cross-​references and rubrics; the lack of sophistication in both syntax and development of ideas in a number of dicta; and the preservation of usages of Roman law that had fallen out of practice by the time of the first recension.30 Both Winroth and Larrainzar, however, imply the emergence of

26 27 28

29 30

P. Landau, ‘Gratian’s Decretum’, in HMCL, 22–​54. E.g. T. Lenherr, ‘Die Summarien zu den Texten des 2. Laterankonzils von 1139 in Gratians Dekret’, AKKR, 150 (1981), 528–​51; idem, ‘Arbeiten mit Gratians Dekret’, AKKR, 151 (1982), 140–​66. A. Winroth, The Making of Gratian’s Decretum (Cambridge, 2000), 123. The manuscripts identified as Gratian 1 are: Florence, Biblioteca Nazionale Centrale, Conventi Soppressi A.1.402 (Fd); Barcelona, Arxiu de la Corona d’Aragó, Santa Maria de Ripoll 78 (Bc); Paris, BnF, nouvelles acquisitiones latines 1761 (P); Admont, Stiftsbibliothek, 23 and 43 (Aa). For a more detailed analysis of the Gratian debate, see M. Eichbauer, ‘Gratian’s Decretum and the Changing Historiographical Landscape’, History Compass, 11/​12 (2013), 1111–​25. C. Larrainzar, ‘El borrador de la “Concordia” de Graciano: Sankt Gallen, Stiftsbibliothek MS 673 (=Sg)’, Ius Ecclesiae, 11 (1999), 603, 610–​11, 613, 616–​27.

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set recensions at a particular time. An alternative approach taken by other scholars, such as José Miguel Viejo-​Ximénez and Melodie H. Eichbauer, see the Decretum as a living text which continued to undergo revisions throughout its textual history.31 The historical development of the recensions was therefore not simply a two-​scheme version with the first expanding smoothly into the second, but rather the variations are the result of a continuous process of reflection from St Gall to the vulgate.32 The two schools of thought thus differ in their interpretations of when and how the Decretum expanded, in predetermined redactions or through progressive development, for all that they both see it as a living text updated to reflect new questions. The arguments developed all used, to a greater or lesser degree, the focussed textual criticism adopted and propagated by Stephan Kuttner. Drawing on his belief in the importance of small details in larger contexts, Kuttner spent his career investigating the swathe of surviving canonical sources and then employing the resultant picture to understand the emergence and practice of the science of canon law in the twelfth century. He remains a highly respected figure for his creation of a scholarly community focussing on the study of the texts and doctrines of medieval canon law and for several key articles in which he laid out the fundamental guidelines for what he described as the ‘scientific study’ of the subject.33 Working at a time when the study of canon law relied for the most part upon the vast antiquarian resources gathered together by amongst others Mansi, Crabbe, Hardouin and, of course, Migne, Kuttner prioritised creating editions of canonical sources.34 One result was that the 31 32

33

34

M. Brett, ‘Canon Law and Litigation:  The Century before Gratian’, in M.  Franklin and C. Harper-​Bill (eds.), Medieval Ecclesiastical Studies in Honour of Dorothy M. Owen (Woodbridge, 1995), 21–​40. J.-M.  Viejo-​Ximénez, ‘Non omnis error consensum evacuat:  La C.  26 de los Exserpta de Sankt Gallen (Sg)’, in J.  Kowal and J.  Llobell (eds.), Iustitia et iudicium:  Studi di diritto matrimoniale e processuale canonico in onore di Antoni Stankiewicz (Vatican City, 2010), 617–​41; M. Eichbauer, ‘St. Gall Stiftsbibliothek 673 and the Early Redactions of Gratian’s Decretum’, BMCL, 27 (2007), 105–​39; eadem, ‘From the First to the Second Recension: The Progressive Evolution of the Decretum’, BMCL, 29 (2011–​2012), 119–​67. S. Kuttner, ‘The Scientific Investigation of Medieval Canon Law: The Need and the Opportunity’, Speculum, 24 (1949), 493-​501. See also idem, Gratian and the Schools of Law, 1140–​ 1234 (London, 1983); idem, Studies in History of Medieval Canon Law (Aldershot, 1990); idem, Medieval Councils, Decretals, and Collections of Canon Law (2nd edn, Aldershot, 1992); idem, The History of Ideas and Doctrines of Canon Law in the Middle Ages (2nd edn, Aldershot, 1990). Sacrorum conciliorum nova et amplissima collectio, ed. J. Mansi (53 vols, Graz, rpt. 1960–​); Conciliorum omnium, tam generalium quam particularium, ed. P. Crabbe (2 vols, Cologne, 1551); Acta conciliorum et epistolae decretales, ed. J. Hardouin (11 vols, Paris, 1714); S. Kuttner, ‘Institute for Medieval Canon Law Report’, Traditio, 11 (1955), 429–​48.

Introduction

9

Institute of Medieval Canon Law focussed, from its earliest days, on the publications of these editions. Canon law remains keen on the publication of texts and Kuttner’s approach has resulted in a series of painstakingly detailed scholarly editions published today under the aegis of the Monumenta Iuris Canonici (mic).35 While these beautiful editions have facilitated scholarly endeavours, the sources of canon law remain notoriously difficult to parse. Understanding the complex interconnectedness of the collections and texts and their relationship to alternative sources remains as much art as science. Extracting the information required to see the texts in their broader context requires a detailed knowledge of the manuscript tradition of both a collection or commentary and its sources. Material sources (fontes materiales) are the original sources: Biblical passages, papal decretals, conciliar canons, patristic texts and the like. Formal sources (fontes formales), on the other hand, are the collections on which the compiler relied and from which he drew his material.36 An example of these links is an eleventh century collection known as the Collectio canonum Barberiniana, which is believed to have originated in Tuscany, possibly in the diocese of Lucca. As an intermediate collection, it served as a formal source for the Collectio Sinemuriensis, and may have supplied texts for other collections. Compiled in Reims, the Collectio Sinemuriensis served as a source for Ivo of Chartres and other contemporary canon lawyers, including Bernold of Constance.37 Unpicking the Barberiniana’s place in eleventh century canon law is 35

36 37

mic:  Corpus Collectionum includes editions of canonical and decretal collections while mic: Corpus Glossatorum includes editions of decretist (those who commented on Gratian’s Decretum) and decretalist (those who compiled collections of papal decretals) works. The digital universe also serves as a forum for distributing critical editions, as with the collections compiled by or, in the case of the Panormia, attributed to Ivo of Chartres, see https://​ivo-​of-​chartres.github.io (accessed 3 March 2017). Critical editions of the canons from ecumenical, such as First–​Fourth Lateran Councils, and from general councils, such as those of Urban ii, have also made significant progress, see cogd; R. Somerville, Pope Urban II’s Council of Piacenza: March 1–​7, 1095 (Oxford, 2013); idem with S. Kuttner, Pope Urban II, the Collectio Britannica, and the Council of Melfi (1089) (Oxford, 1996). R. Somerville and B. Brasington (trans.), Prefaces to Canon Law Books in Latin Christianity: Selected Translations, 500–​1245 (New Haven-​London, 1998), 3–​4. The Collectio canonum Barberiniana may have also served as a source for collections such as the Collectio 183 titulorum, the Collectio 2 librorum/​8 partium and the Vienna manuscript of the Collectio 7 librorum. See K. Cushing, ‘ “Intermediate” and Minor Collections: The Case of the Collectio Canonum Barberiniana’, in Brett and Cushing (eds.), Readers, Texts and Compilers in the Earlier Middle Ages, 81; Kéry, Canonical Collections of the Early Middle Ages, 283 (Collectio Barberiniana), 203 (Collectio Sinemuriensis), 216–​17 (Collectio 183 titulorum), 227 (Collectio 2 librorum), 228 (Collectio 8 partium), 269 (Collectio

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time-​consuming for what appears at first to be a minor, local collection. The relationships that such scrutiny uncovers nevertheless provide precisely the type of evidence that makes legal sources valuable to a broader audience and to arguments of reform, renaissance and change in the twelfth century. From tiny details, comments on the provenance, authorship and connections with other known individuals or schools can be drawn out, situating the text into the intellectual framework and power dynamics of the period. Understanding the connections between collections has resulted in a more complex understanding of the use, transmission and readership of medieval canon law. In turn, that reveals a vibrant intellectual community whereby texts circulated widely and were at times revised into new collections, derivatives and abbreviations that were themselves employed elsewhere. Smaller intermediary or local collections, such as the Collectio Barberiniana already mentioned, have been used to demonstrate how canon law could react to local needs and the interests of collections and commentaries’ compilers.38

38

7 librorum in Vienna, Österreichische Nationalbibliothek, MS 2186); Fowler-​Magerl, Clavis Canonum, 95–​97 (Collectio Barberiniana), 232–​34 (Collectio 7 librorum in Vienna, Österreichische Nationalbibliothek, MS 2186), 150-​55 (Collectio 2 librorum/​8 partium). See also L.  Fowler-​Magerl, ‘The Collection and Transmission of Canon Law along the Northern Section of the Via Francigena in the Eleventh and Twelfth Centuries’, in B. Brasington and K. Cushing (eds.), Bishops, Texts and the Use of Canon Law Around 1100: Essays in Honour of Martin Brett (Farnham-​Burlington, 2008), 129–​39; Rolker, Canon Law and the Letters of Ivo of Chartres, 70–​71, 82. For an analysis and edition, see M. Fornasari, ‘Collectio canonum Barberiniana’, Apollinarius, 36 (1963), 127–​41, 214–​97. Szabolcs Anzelm Szuromi recognized developmental phases of Anselm ii of Lucca’s Collectio canonum. The first phase began with the initial compilation of the work and continued until the appearance of the A, B, C and Bb recensions. This text was used for instruction and was enlarged by the teachers at the cathedral school. As questions became increasingly complex and detailed, more complex and detailed explanations followed suit. The text was enlarged with the most important and recent decretals (especially those of Pope Urban ii and of Paschal ii) and conciliar canons (especially the First Lateran Council) in the second phase and used on a day-​to-​day basis. These supplementary texts usually were placed at the end of books. The third phase came as copiers and binders placed Anselm’s work with an excerpta of the Panormia. See S. Szuromi, ‘Anselm of Lucca as a Canonist (Critical Summary on Importance of the Collectio Anselmi Lucensis)’, in Szuromi (ed.), Medieval Canon Law Collections and European Ius Commune /​ Középkori kánonjogi gyűjtemények és az európai ius commune (Budapest, 2006), 50–​53. However, Franck Roumy’s analysis of the second recension of the Collectio Sinemuriensis deliberately omitted canons found in other manuscript copies because of their age or their excessively local character. See F. Roumy, ‘A New Manuscript of the Collectio Sinemuriensis (New York, Columbia University, Western MS 82)’, in U.-​R. Blumenthal, A. Winroth and P. Landau (eds.), Canon Law, Religion and Politics: ‘Liber Amicorum’ Robert Somerville (Washington D.C., 2012), 56–​74.

Introduction

11

Aside from the assortment of collections which exist in eleventh-​and twelfth-​ century Italy, the most influential arena for understanding these local priorities remains the abbreviations and reworkings which surround Gratian’s Decretum. Gratian’s use in the schools from early in the collection’s life resulted in a number of commentaries, known as summae, which have been shown to reflect the priorities and opinions of the individual magistri who wrote each one. Equally important but the recipients of much less scrutiny, however, are the many abbreviations and reorganisations made of the Decretum from the 1150s.39 One of the more widespread of these adaptations was created by Omnebene, later bishop of Verona. Omnebene’s version of Gratian’s Decretum survives in nine known manuscripts, which suggests a considerable contemporary transmission.40 Less successful than Omnebene, but more immediately connected to the changing legal climate of the later-​twelfth century, was the Compilatio Decretorum of Cardinal Laborans, finished by 1182. Laborans, a known magister and cardinal-​priest of S. Maria trans Tiberim, restructured the Decretum. By removing duplications and adding additional material, including recent papal decretals, Laborans sought to improve Gratian’s organisational plan and produce a more manageable text.41 The inclusion of decretals and, in the margin of the sole surviving manuscript, the canons of the 1179 Lateran Council of Alexander iii attest the interpolation of more recent material into later abbreviations and versions of Gratian’s Decretum. Furthermore, as Alfred Beyer has shown, some abbreviations maintained a predominantly local character, suggesting that interest in works of canon law could be regional even

39 40

41

S. Kuttner, Repertorium der Kanonistik (1140–​1234): Prodromus corporis glossarum, Studi e Testi, 71 (Vatican City, 1937), 259–​71. Kuttner, Repertorium der Kanonistik, 259–​60; K.  Pennington and C.  Donahue, Jr., ‘Bio-​ Bibliographical Guide to Medieval and Early Modern Jurists’, available at http://​amesfoundation.law.harvard.edu/​BioBibCanonists/​Report_​Biobib2.php?record_​id=a363 (accessed 2 March 2017); R. Weigand, ‘Die frühen kanonistischen Schulen und die Dekretabbrev­ iatio Omnebenes’, AKKR, 155 (1986), 79–​91. Kuttner, Repertorium der Kanonistik, 267–​68; N. Martin, ‘Die Compilatio Decretorum des Kardinals Laborans’, in S. Kuttner and K. Pennington (eds.), Proceedings of the Sixth International Congress of Medieval Canon Law, Berkeley, 28 July–​2 August 1980, mic C, 7 (Vatican City, 1985), 125–​35; idem, ‘Die “Compilatio Decretorum” des Kardinals Laborans: Eine Umarbeitung des gratianischen Dekrets aus dem 12. Jahrhundert’, Ph.D. Dissertation (University of Heidelberg, 1985); the sole surviving manuscript is Vatican, bav, Archivio di S. Pietro, C.110. See Pennington and Donahue, Jr., ‘Bio-​Bibliographic Guide to Medieval and Early Modern Jurists’, available at http://​amesfoundation.law.harvard.edu/​BioBibCanonists/​Report_​Biobib2.php?record_​id=a306 (accessed 18 June 2017).

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after the appearance of a pan-​European collection.42 Critically, however, these alterations were rarely as widespread or successful as the original, which maintained pre-​eminence throughout western Christendom despite, or perhaps as a result of, its unique structure. While providing little information charting the progress of canon law, and particularly the emergence and solidification of schools of law in Paris or Bologna, the abbreviations also present a strong witness to specific local use of canonical collections and to the integration of canon law into the everyday life of both the church and the people of Latin Christendom.43 Increasing awareness of the inherently local reality of medieval canon law is, however, balanced by its employment in broader questions concerning ecclesiastical politics and political thought more generally. In these situations, scholars, most notably Walter Ullmann and Stanley Chodorow, distanced themselves from the philological methods outlined above. Ullmann famously, or perhaps notoriously, used canonical material to argue for the creation of an hierocratic framework in the twelfth century, headed by a papal monarchy.44 In contrast, Chodorow attempted to place Gratian into the wider socio-​ political framework of the reform movement. He argued that the Decretum, for all practical purposes, reflected the political upheaval stemming from the crisis of 1111, the schism of 1130, and conciliatory policies of Chancellor Haimeric and Bernard of Clairvaux.45 While Chodorow’s work has been employed widely in studies researching aspects of the reform movement and the controversies of 42 43

44

45

K. Pennington and W. Müller, ‘The Decretists: The Italian School’, in HMCL, 123–​34. See also A. Beyer, Lokale Abbreviationen des Decretum Gratiani, Bamberger Theologische Studien, 6 (Frankfurt-​am-​Main, 1998). In addition to Bologna, Paris, Oxford and Cambridge, Martin Bertram and André Gouron have shed a tremendous amount of light on the other law schools that flourished. See M. Bertram, Kanonisten und ihre Text (1234 bis Mitte 14. Jh.): 18 Aufsätze und 14 Exkurse (Leiden, 2013), which brings together a number of previous published articles along with a wealth of manuscript material; and the collection of essays in A. Gouron, Pionniers du droit occidental au Moyen Âge (Aldershot-​Burlington, 2006); idem, Juristes et droits savants: Bologne et la France médiévale (Aldershot, 2000); idem, Droit et coutume en France aux XIIe et XIIIe siècles (Aldershot, 1993); idem, La science du droit dans le Midi de la France au Moyen Age (London, 1984). W. Ullmann, Medieval Papalism: The Political Theories of the Medieval Canonists (London, 1949); B.  Tierney, Foundation of the Conciliar Theory:  The Contribution of the Canonists from Gratian to the Great Schism, Studies in the History of Christian Thought, 81 (new edn, Leiden, 1998). S. Chodorow, Christian Political Theory and Church Politics in the Mid-​Twelfth Century: The Ecclesiology of Gratian’s Decretum (Berkeley, 1972); idem, ‘Ideology and Canon Law in the Crisis of 1111’, in S. Kuttner (ed.), Proceedings of the Fourth International Congress of Medieval Canon Law, Toronto, 21–​25 August 1972, mic C, 5 (Vatican City, 1976), 55–​80.

Introduction

13

the eleventh and twelfth centuries, those who work in legal history and canon law have expressed reservations about Gratian’s engagement in contemporary politics.46 More pressing, however, are the borders between different areas of legal study which have yet to be mined fully by scholars of canon law. Two places where these blurred lines remain are questions of professionalization, and questions of procedure and practice. These questions, which can extend beyond the long ​twelfth century and are not confined to canon law, are central to the concerns of the present volume, which looks to demonstrate how the sources of medieval canon law were employed by ecclesiastical administrators in the course of their careers, in debates and in their writings. Both the maturation of procedure and the professionalization of law hinge on the revival of Roman law from the late-​eleventh century and its consequences. The resultant rise of scientific jurisprudence is often linked in scholars’ minds to the rise of the university, the growth of governmental bureaucracies including secular forms of justice in the northern Italian cities and the papal curia, and the delineation of procedural norms through the treatises known as ordines. Although Roman law had remained accessible throughout the earlier Middle Ages by way of a select number of collections, the re-​emergence of the Digest in particular renewed the focus on law as both object and result of scientific endeavour.47 A  simple rendering of the story starts with Irnerius’s teaching of Roman law at Bologna, swiftly followed by Gratian’s teaching of canon law in the same place, both of which sparked interest in the rise of formalised legal training and professionalization of the legal profession. As the twelfth century progressed, canon law and Roman law were taught side-​by-​ side, with many students becoming a ‘master of both laws’, magister utriusque 46 47

See reviews of Chodorow’s Christian Political Theory and Church Politics in the Mid-​Twelfth Century by R. Kay in ahr, 80 (Feb. 1975), 89–​91; by R. Reynolds in Church History, 41 (Dec. 1972), 537–​38; and by R. Benson in Speculum, 50 (1975), 97–​106. S. Kuttner, ‘The Revival of Jurisprudence’, in Benson and Constable (eds.), Renaissance and Renewal, 299–​323, esp. 299 and 301; idem, ‘Harmony from Dissonance: An Interpretation of Medieval Canon Law’, Wimmer Lecture X, 1956, St. Vincent College (Latrobe, PA, 1960), 1–​16, esp. 6, and rpt. in The History of Ideas and Doctrines of Canon Law in the Middle Ages, Essay I; W. Müller, ‘The Recovery of Justinian’s Digest in the Middle Ages’, BMCL, 20 (1990), 1–​29. Throughout the early Middle Ages, Roman law remained accessible and used directly or indirectly by way of the Theodosian Code (438) and segments of the Justinianic Corpus, principally the Institutes, an abridged Latin version of the Novellae and the earliest books of the Code, though to a lesser extent. Kuttner, however, pointed to the ‘rediscovered law’: the Digest, which was rediscovered around 1070, the last three books of the Codex (Tres libri comprising of Books 10–​12) and the Novellae Constitutiones (the Authenticum).

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legis, a title of some honour which served individuals well when their skills were considered for administrative positions.48 That said, the systematisation of legal practice and the growing need for trained advocates did not happen in a vacuum. Law was a useful subject, for all that contemporaries criticised its practitioners. It required mastery of a substantial body of esoteric knowledge through a lengthy period of study that carried with it a high degree of social prestige. As a profession, individuals pledged to observe a body of ethical rules different from and more demanding than those expected of the community at large.49 Systematisation and standardisation, although they went together, were not always evident. As Linda Fowler-​Magerl brought to light in her Ordo iudiciorum vel ordo iudiciarius, the variety of legal ordines available from c.1140 on, and the range of manuscripts in which they can be found, are testament to the period’s focus on juridical writings.50 The judicial ordo developed from the selection and reinterpretation of elements from Justinian’s Corpus iuris civilis and Gratian’s Decretum, and was furthered by the decretals from Pope Alexander iii to Pope Innocent iii. Systematised early in the thirteenth century, the ordo afforded a number of protections: due process of law, the presumption of innocence, the privilege against self-​incrimination, and the belief that rulers, their representatives and their subjects are bound by these rights.51 The study of these procedural manuals has therefore proven fundamental to both the revision of earlier scholarship that categorised all procedural manuals under the category of either those for canonists or those for legists (those trained in 48 49 50 51

K. Nörr, ‘Institutional Foundations of the New Jurisprudence’, in Benson and Constable (eds.), Renaissance and Renewal, 324–​38. J. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago, 2008). L. Fowler-​Magerl, Ordines Iudiciarii and Libelli de Ordine Iudiciorum: From the Middle of the Twelfth to the End of the Fifteenth Century, Typologie des Sources du Moyen Âge Occidental, 63 (Turnhout, 1994). Ibid., 30–​32, 36–​37; J. Brundage, ‘Full and Partial Proof in Classical Canonical Procedure’, The Jurist, 67/​1 (2007), 59. Brundage provides an excellent introduction to the subject matter. For a discussion of canonistic contributions to procedural treatises, see G. Evans, Law and Theology in the Middle Ages (London-​New York, 2002), 91–​104. For translations of various ordines, which open a fascinating window into both the study and practice of judicial procedure, see Brasington’s Order in the Court. One important outcome of the maturation of due process was the understanding that the king must follow his own laws, exemplified by the use of the principle Quod omnes tangit debet ab omnibus approbari, or ‘what touches all should be approved by all’. On this see K. Pennington, The Prince and the Law, 1200–​1600: Sovereignty and Rights in the Western Legal Tradition (Berkeley, 1993); J. Hauck, ‘Quod omnes tangit debet ab omnibus approbari -​Eine Rechtsregel im Dialog der beiden Rechte’, ZRG Kan. Abt., 99 (2013), 398–​417.

Introduction

15

Roman law), but also for the development of procedural rights. Procedure is a mix of those who approach it from the development of concepts found in the juridical writings and those who seek to understand its development as practised. Understanding juridical writings is important to understand the evolution of and refinement of process from the twelfth century forward. Regional studies of secular justice have proven a fruitful arena for exploration of how procedure functioned. Chris Wickham’s study of legal cases in Lucca, Pisa, Florence and in ecclesiastical courts explored the development of procedure and the techniques used by litigants in pressing their claims. His work sheds light on the influence and power that courts held even as early as the twelfth century.52 Massimo Vallerni, focussing specifically on the communes of Bologna and Perugia from the twelfth century, examined the shift from the podestà as the body responsible for rendering justice to that of the civic government. Political turmoil and ensuing tensions led to distrust in the ability of the podestà’s judges (known as sapientes) to render justice.53 Sarah Rubin Blanshei’s analysis of judicial activity in Bologna in the later Middle Ages led her to conclude that while both the podestà and judges tried to preserve due process, the real threat to the ordo came from the increased use of summary procedure against someone whom the petitioner claimed had injured him or her in person or property.54 Even before law was standardised in the schools, canon law permeated the daily life of those living in the Middle Ages. The professionalization of law brought those areas of law into a scholastic, systematised environment. Canonical jurisprudence regarding valid marriages was vigorously debated and considerations of concubinage, consent and consummation were played out in the church courts, demonstrated in surviving accounts of cases and the episcopal and papal letters that resolved them. Canonists grappled with, and disagreed about, the validity of a long-​standing union. Questions over when a union was formalised and the commitment of that union led to concerns with the distinction between concubinage and clandestine marriage.55 Also 52 53 54 55

C. Wickham, Courts and Conflict in Twelfth-​Century Tuscany (Oxford, 2003). M. Vallerani, Medieval Public Justice, trans. S. Blanshei, Studies in Medieval and Early Modern Canon Law, 9 (Washington D.C., 2012). S. Blanshei, Politics and Justice in Late Medieval Bologna, Medieval Law and Its Practice, 7 (Leiden, 2010). R. Karras, ‘Marriage, Concubinage, and the Law’, in R. Karras, J. Kaye and E. Matter (eds.), Law and the Illicit in Medieval Europe (Philadelphia, 2008), 117–​29; J. Werckmeister, ‘La Fidélité conjugale dans le droit canonique médiéval’, RDC, 44/​2 (1994), 17–​34; idem, ‘Le mariage sacrement dans le Décret de Gratien’, RDC, 42/​2 (1992), 237–​67; J.  Brundage, ‘Concubinage and Marriage in Medieval Canon Law’, Journal of Medieval History, 1/​1 (1975), 1–​17.

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weighing heavily, and debated vigorously, were the ingredients necessary to legitimate a marriage: whether the use of present or future tense mattered when consent was given; whether consent, consummation or both were necessary.56 With the records of ecclesiastical courts more plentiful as the Middle Ages progressed, studies, like those regarding procedure, could focus on localised investigations of court records for marriage disputes.57 Lawyers were not, however, the only scholars to grapple with questions of marriage, which also formed a central part of analysis in the schools of theology. While law and theology were once viewed separately, recent research has instead demonstrated the close connections between the two disciplines. Gratian’s use of theological sources and his possible connections to Northern France illustrate that the boundaries between law and theology were blurred throughout the long twelfth century. Gratian relied on the Sententiae of Magister A and the pseudo-​Augustinian De vera et falsa penitentia for compilation of the De penitentia (C.33 q.3), and, as Anders Winroth has argued, may have relied on the French theologian Walter of Mortagne—​who taught in Laon c.1120 and wrote the work De coniugio in 1140—​for his ideas regarding the marriage of slaves in Causa 29.58 Recent studies have focussed less on Gratian the canon lawyer and more on Gratian the theologian. Atria A. Larson’s in-​depth philological analysis of the De penitentia argued for Gratian’s impact on theological thought in the twelfth and thirteenth centuries.59 John C. Wei offered some 56

57

58

59

J. Gaudemet, Sociétés et Mariage (Strasbourg, 1980); J. Brundage, Law, Sex and Christian Society in Medieval Europe (Chicago, 1987), 229–​55; I. Resnick, ‘Marriage in Medieval Culture: Consent Theory and the Case of Mary and Joseph’, Church History, 69/​2 (2000), 350–​ 71. The most influential studies have been those of C. Donahue, Jr., Law, Marriage, and Society in the Later Middle Ages: Arguments about Marriage in Five Courts (Cambridge, 2007) and L. Schmugge, Ehen vor Gericht: Paare der Renaissance vor dem Papst (Berlin, 2008) /​ Marriage on Trial: Late Medieval German Couples at the Papal Court, trans. A. Larson, Studies in Medieval and Early Modern Canon Law, 10 (Washington D.C., 2012). P. Landau, ‘Gratian und die Sententiae Magistri A’, in Aus Archiven und Bibliotheken: Festschrift für Raymund Kottje zum 65. Geburtstag, ed. H.  Mordek, Freiberger Beiträge zur mittelalterlichen Geschichte, 3 (Frankfurt-​am-​Main, 1992), 311–​26; idem, ‘Gratian and the Decretum Gratiani’, in HMCL, 30–​34; J.  Wei, ‘A Reconsideration of St. Gall, Stiftsbibliothek 673 (Sg) in Light of the Sources of Distinctions 5–​7 of the De penitentia’, BMCL, 26 (2004–​2006), 171–​75; A. Winroth, ‘Neither Free nor Slave: Theology and Law in Gratian’s Thoughts on the Definition of Marriage and Unfree Persons’, in W. Müller and M. Sommar (eds.), Medieval Foundations of the Western Legal Tradition: A Tribute to Kenneth Pennington (Washington D.C., 2006), 97–​109. A. Larson, Master of Penance: Gratian and the Development of Penitential Thought and Law in the Twelfth Century, Studies in Medieval and Early Modern Canon Law, 11 (Washington D.C., 2014).

Introduction

17

refinement in his study on the same text, suggesting that Gratian’s concern lay with penitential theology as opposed to theological questions at large (e.g. the sacraments, other than marriage and the liturgy).60 In addition to the intellectual angle, law has a social dimension. The coupling of canonical collections with penitentials and penitential literature helps us to understand the role and importance of confession and penance within society, particularly as a mechanism for restoring order and peace within a community.61 Scholarship has made important advances on two fronts. First, careful manuscript work has gone far in explaining the development of particular texts and how texts relate to each other. Such work is necessary to understand the evolution and spread of legal thinking. Second, scholars have made important inroads laying bare the application of law in the Middle Ages. Collectively, we (the editors and contributors alike) wanted to bring these two different but not mutually exclusive fronts together.

Between the Frameworks: The Aims of This Volume

The essays in this volume therefore embrace the common theme that medieval law was a living object, and that canon law was no different. Understanding the pervasiveness and impact that canon law had on medieval life and thought means reading it within context of other sources such as letters, charters, chronicles and governmental records. At their core, the essays seek to integrate the textual analysis necessary to understand the evolution and transmission of the legal tradition into the broader study of twelfth-century ecclesiastical government and practice. The use of canon law and administration allows us both to place law into the wider developments of the long twelfth century but also to highlight points of continuity throughout the period. Some essays elucidate how law was adapted to particular circumstances. Other essays stretch our understanding of juridical thinking. Collectively, the essays are concerned with how contemporary ecclesiastics turned to and used law within their socio-​political and intellectual environment. John S. Ott puts papal authority into a local context by examining the selection of papal judges-​delegate in the province of Reims from approximately the 1120s to 1160. He finds that the same pool of bishops were called 60 61

J. Wei, Gratian the Theologian, Studies in Medieval and Early Modern Canon Law, 13 (Washington D.C., 2016). A. Firey (ed.), A New History of Penance, Brill’s Companions to the Christian Tradition, 14 (Leiden-​Boston, 2008); R. Meens, Penance in Medieval Europe, 600–​1200 (Cambridge, 2014).

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upon to resolve disputes and that these judges not only were close allies but also had a familiarity with the area. Ott’s essay helps us rethink the idea of a Rome-​centred narrative of legal change and implementation in the first half of the twelfth century. Judges-delegate were not simply a top-​down measure, but rather worked within existing local and provincial legal norms and traditions. Mia Münster-​Swendsen argues that law cannot be divorced from the political climate in which it operates. Using a moment of crisis as a case study, she focusses on the circumstances surrounding the supposedly voluntary resignation of Archbishop Eskil of Lund and then its impact for both canon law and Danish political history. A comparison of Saxo’s Gesta Danorum demonstrates his keen knowledge of canonical procedure. When read against Pope Alexander iii’s response to Eskil’s request and Eskil’s letters written to his friend Peter of Celle, however, the evidence points to the involuntary nature of the resignation. The intertwining of law and politics reminds us that law adapted to the climate in which it operated. Melodie H.  Eichbauer links the difference between Gratian and Stephen of Tournai regarding ecclesiastical property to their respective stations. As Gratian was teaching future diocesan functionaries how to think through the challenges posed by episcopal responsibilities, he focussed on the impact that prescriptions and tithing rights would have on a bishop’s authority. Stephen, however, would emphasise the material differently in his summa on the Decretum, betraying a concern for the preservation of monastic rights and privileges. Having spent twenty years as abbot of two houses of canons regular before becoming bishop, Stephen adapted his legal education at Bologna to his circumstances. Jason Taliadoros likewise focusses on the adaptation of formal legal learning by marrying theoretical jurisprudential thinking on subjective rights and permissive natural law found in the decretists’ commentaries on the first twenty distinctions of Gratian’s Decretum with how scholar-​administrators applied or deviated from that thinking. He places the meanings of ius naturale, ius gentium and ius civile within the context of Brian Tierney’s influential argument that the decretists imparted both subjective and permissive rights on ius naturale. Taliadoros then assesses how the English jurists Vacarius and Ricardus Anglicus attempted to make sense of these analyses of rights in the course of their own activities as administrators, legal practitioners and advisers. Akin to Stephen of Tournai, they illustrate how scholar-​administrators weighed and considered theoretical discussions within their particular climate. Taliadoros’ essay highlights the diversity of approaches for studying canon law and its relevant sources.

Introduction

19

Important though individuals were, their gatherings in ecclesiastical councils negotiated canonical material to meet the needs of the prelates in attendance while also playing an instrumental role in the transmission of legal texts. Greta Austin examines the Council of Seligenstadt, held in 1023 south of Mainz and attended by five bishops, including Burchard of Worms, and ten abbots. The twenty canons stemming from this council, which circulated in two recensions, drew both from Burchard’s Decretum and a farrago made in Freising. The participants, however, did not copy from the Decretum but rather they expanded on some points and reiterated others in a simpler form. The use of different pieces of canonical legislation reveals participants engaged in thoughtful discussion and analysis of texts to compile conciliar decrees that fit their exact circumstance. While Austin looks at how a canonical collection was used at the Council of Seligenstadt in 1023, Danica Summerlin suggests that the participants at the Council of Westminster (1200) carefully selected the canons of the Third Lateran Council (1179) most relevant for their province given recent events. She takes a fresh look at the argument that legislation starts at the center and moves out to the periphery to suggest rather that local interpretations factored in the re-​issuing of ideas perceived as centrally important. She thus upends the implicit assumption that a council had authority simply by virtue of its existence, irrespective of its relevant to local custom and practice. Along lines similar to Summerlin, Stephan Dusil surmises that sometimes conciliar canons circulated too slowly to be effective and that it was canonical collections which brought about change. Dusil traces how clerical celibacy developed as a legal norm and how it changed as a set of impediments. While c.7 of the Second Lateran Council of 1139 had invalidated such marriages, Dusil maintains the council’s decree was received too slowly to be of significant impact. It was Gratian, rather, who distinguished between prohibitive and diriment impediment, a distinction that while he did not refer to explicitly, was clarified in the decretists’ commentary. Gratian is often pointed to as the first canonist to include his opinion in a canonical piece. However, William L. North suggests that Bonizo of Sutri did something similar in his Liber de Vita Christiana. Bonizo inserted his own passages to help to clarify his canonical thought and praxis. At a point where canonists would create a short treatise or include introductions to their collection, Bonizo’s incorporation of discussions and contextual material into the text serves as a forbearer to the type of legal pedagogy made famous by the dicta Gratiani. North argues that Bonizo thus played an important role in the development of canonical jurisprudence that has not been fully recognised.

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Jurisprudence could take the form of adjudicating a resolution or retooling a formal education to suit local conditions and circumstances. It could also be thinking through the precedents bore out in canonical texts to craft conciliar legislation. Kathleen G. Cushing focusses in on polemical tracts which, like legal briefs, drew upon the ars dictamini to present evidence in favour of a particular position. In a similar vein to Hamilton and North, who focus on Bruno of Segni and Bonizo of Sutri respectively, she uses the polemics within the libelli to demonstrate legal knowledge and jurisprudence in action prior to the rise of the university. Without denying change, continuities throughout the long twelfth century remained strong as the essays in this volume highlight. Akin to Jason Taliadoros’ previous work on Vacarius and to those of Atria Larson and John Wei focussed on the later twelfth and early thirteenth centuries,62 the line between law and theology was quite blurred. It is important, therefore, to remember that just as law cannot be divorced from socio-​political conditions, neither can it be divorced from the intellectual climate. For the eleventh century, Louis I. Hamilton rightly draws attention to the slippage between and exegesis and law. Bruno of Segni may have had a collection such as the Collection in 74 Titles when he wrote his Expositio in Pentateuchum. Bonizo of Sutri, as William North highlights, was both a skilful theologian and a skilful canon lawyer. Theologians worked in law and lawyers were versed in theology. Yet, one consistent tenet underpinning the idea of legal change in the twelfth century is its professionalization. The period saw the emergence of career specialisation in which one trained specifically to be a lawyer and compensated for that service. The essays in this volume, again, point to some element of continuity. The forms and contours of law may have differed prior to the rise of the university, but they were prevalent and impactful. William North demonstrates that the antecedents of juridical opinion can be found earlier than Gratian, even if not a common practice. Bonizo of Sutri, like Gratian after him, inserted his own passages (dicta) to clarify his canonical thought and praxis. Kathleen Cushing shows how rhetorical devices shaped and moulded the law to support one stance and to disprove the other. A fundamental concern for these lawyers was the application of the law in practice. As Greta Austin, Danica Summerlin and Stephan Dusil show, canonical collections and conciliar texts helped to establish legal norms. Both Austin and Summerlin demonstrate how councils negotiated and adapted canonical

62

J. Taliadoros, Law and Theology in Twelfth-​Century England: The Works of Master Vacarius (c.1115/​1120–​c.1200), Disputatio, 10 (Turnhout, 2006), above nn. 61–​62.

Introduction

21

collections to draw up conciliar canons that addressed the needs of that particular community, demonstrating that local concerns required local knowledge. John Ott also illustrates how bishops chosen as papal judges-​delegate navigated both local diocesan procedural norms and the interpersonal politics of the players, at the same time as they employed legal thinking in order to bring about a peaceful resolution to disputes. With Saxo’s careful employment of canonical norms in his literary Gesta Danorum in order to legitimise the resignation of Archbishop Eskil of Lund, Mia Münster-​Swendsen underscores how the application of legal principles was just as flexible post 1100 as pre-​1100. Melodie Eichbauer and Jason Taliadoros analyse how scholar-​administrators adapted and applied their textbook-based legal training to suit the political climate in which each worked. In their respective essays, Dusil and Eichbauer flag and develop current debates that remain unresolved regarding the development of the Decretum. While Dusil refers to Gratian 1 and Gratian 2—​static stages of the text—​ Eichbauer refers to early and later textual traditions, suggesting a living text with a progressive and continued development. Dusil also engages tacitly in the current, also unresolved, debate regarding the dating of the text. Winroth has argued that the earliest possible date for the first recension is 1139. A second school of thought includes Jean Werckmeister and Kenneth Pennington who believe the first recension to date to the 1120s to early 1130s.63 The essays in this volume, although mostly tangentially connected to Gratian and the debate surrounding his work, all point to the importance of such living texts in the everyday life of canon law. The contributions examine how canon law was used at the local level, in political situations, at councils and in polemical discord; they examine how canon law provided pathways for steering and enforcing policy and how it integrated with other intellectual traditions. Bruce C. Brasington returns to themes

63

Anders Winroth has argued that the earliest possible date for the first recension is 1139. A second school of thought including Jean Werckmeister and Kenneth Pennington believe the first recension to date to the 1120s to early 1130s. The implication of Winroth’s shorter timeframe is that a recension was compiled and then circulated; the Decretum, in other words, was not a living text. By contrast, a longer timeframe between the first and second recensions suggests that the Decretum did evolve as a living text with continuous additions over the course of Gratian’s teaching career. See Winroth, The Making of Gratian’s Decretum, 136–​44; J. Werckmeister, ‘Les deux versions du “de matrimonio” de Gratien’, RDC, 48/​2 (1998), 313; idem, ‘Les études sur le Décret de Gratien: Essai de bilan et perspectives’, RDC, 48/​2 (1998), 373–​76; K. Pennington, ‘Gratian, Causa 19, and the Birth of Canonical Jurisprudence’, in O. Condorelli (ed.), ‘Panta rei’: Studi dedicati a Manlio Bellomo (5 vols, Rome: Il Cigno, 2004), vol. 4, 344–​45.

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touched upon in the introduction to draw out their implications. He brings the volume full circle by assessing the essays within the current trends of legal scholarship on the philological details of individual collections and manuscripts. How can the important textual work be accessed and used by those whose research brings them into contact with legal texts? He offers suggestions for research trends moving forward. How might legal scholars expand on such work to further elucidate social, political and intellectual pursuits? Brasington’s Post-​face recontextualises and reconsiders the volume’s case studies in light of our understanding of canonical texts. It will also consider how the essays can spur new research not only to enlarge our understanding of medieval canon law but also its legacy to later history. This volume aims to engage those already interested in canon law as well as those whose research brings them into contact with legal sources. We hope that it can serve as an example of how technical does not mean isolated, how to engage across disciplines and how law can serve as a window into the contemporary climate. The volume brings together multiple approaches to the study of canonical texts to demonstrate how these approaches can be of use to scholars of cognate disciplines whose research focusses on theology, ecclesiology and history and whose research brings them into contact with legal s­ ources. Our concentration on the different ways in which canon law was integrated into medieval life and thought hopefully will provide a useful counterpoint to studies based on the interaction of ecclesiastical and lay societies. We want to demonstrate the wide applicability that the study of law offers and encourage others to think about the different ways in which legal texts can shed light on facets of medieval life and thought.

Chapter 1

Men on the Move: Papal Judges-​Delegate in the Province of Reims in the Early Twelfth Century John S. Ott Over the course of the twelfth century, the papal judge-​delegate gradually became, in the ecclesiastical province of Reims and elsewhere in western Europe, a judicial official whose presence, if not quite ubiquitous, was certainly routine.* The papacy’s growing utilisation of judges-​delegate marks a development of foremost importance in the history of western European legal procedure, and establishes an important link between the law’s proliferation and attendant practices of adjudication.1 While scholars have sketched in broad terms the roles and activities of judges-​delegate in the later Middle Ages, relatively few local studies have been undertaken to date, and those mostly for England and English ordinaries, and for periods when the practices associated with judge-​delegation had become increasingly routinized.2 The existing local studies are supplemented by broad surveys which situate * Earlier versions of this essay were presented at the April 2015 conference of the Medieval Association of the Pacific in Reno, NV, and at the 2015 International Medieval Congress in Leeds. I would like to thank the audiences of those sessions for their feedback and ideas; Kriston Rennie for his close reading and thoughtful criticism of the draft essay; Steven Vanderputten for his comments; and Melodie Eichbauer and Danica Summerlin for their careful editorial oversight. 1 J. Brundage, The Medieval Origins of the Legal Profession:  Canonists, Civilians, and Courts (­Chicago, 2008), 135–​39. 2 For example, A. Morey, Bartholomew of Exeter, Bishop and Canonist: A Study in the Twelfth Century (Cambridge, 1937), esp. chap.  4; J.  Sayers, Papal Judges Delegate in the Province of Canterbury, 1198–​1254: A Study in Ecclesiastical Jurisdiction and Administration (Oxford, 1971); M. Cheney, Roger, Bishop of Worcester, 1164–​1179 (Oxford, 1980), esp. chap. 4; W. Uruszczak, ‘Les juges délégués du pape et la procédure romano-​canonique à Reims dans la seconde moitié du XIIe siècle’, Tijdschrift voor Rechtsgeschiedenis, 53 (1985), 27–​41; L. Falkenstein, ‘Appellationen an den Papst und Delegationsgerichtsbarkeit am Beispiel Alexanders iii. und Heinrichs von Frankreich’, Zeitschrift für Kirchengeschichte, 97 (1986), 36–​65; H. Müller, Päpstliche Delegationsgerichtsbarkeit in der Normandie (12. und frühes 13. Jahrhundert) (2 vols, Bonn, 1997); R. Locatelli and G. Moyse, ‘Causam dominus papa nobis commisit terminandam: Quatres actes de juges délégués par Lucius iii pour l’abbaye d’Acey au lendemain du schisme victorin (1181–​1184)’, in H. Kranz and L. Falkenstein (eds.), Inquirens subtilia diversa: Dietrich Lohrmann zum 65. Geburtstag (Aachen, 2002), 85–​108; D. Lohrmann, ‘Genèse et perspectives d’une Gallia Pontificia’, in R. Grosse (ed.), L’Église de France et la papauté (Xe–​XIIIe siècle)/​Die

© Koninklijke Brill NV, Leiden, 2019 | DOI:10.1163/​9 789004387249_​0 03

24 Ott the judge-​delegate’s evolution within the context of the legal institutions and procedures of the later medieval papacy, particularly following the reception of Gratian’s Decretum after 1139.3 This institutional and post-​Decretum emphasis is understandable, given that the implementation of standardised procedures for hearing and judging cases in ecclesiastical courts contributed directly to the establishment of the ius commune and further solidified and extended the papacy’s long-​standing role as the ultimate court of appeal for all Christians.4 But it should also give us pause. While existing studies have clarified the procedural contours and, in some cases, local practice of delegation, they have strongly favoured a Rome-​centred narrative of legal change, innovation and implementation. As Chris Wickham pointed out in an important study, local legal practices and cultures existed in a dialectical relationship with institutional procedural norms and legal theories.5 Judges-delegate, for example—​until 1163–​64, exclusively bishops and abbots and overwhelmingly office-​holders in the province6—​were never mere cogs in the machine of Roman jurisprudence.

3

4 5 6

französische Kirche und das Papsttum (10.–​13. Jahrhundert). Actes du XXVIe colloque historique franco-​allemand organisé en coopération avec l’École nationale des chartes par l’Institut allemand de Paris (Paris, 17–​19 octobre 1990) (Bonn, 1993), 13–​30, pointed to the need for studies on judges-​delegate as ‘passionante et importante’ (pp. 19, 21); C. Zey, ‘Zum päpstlichen Legatenwesen im 12. Jahrhundert: Der Einfluß von einiger Legationspraxis auf die Legatenpolitik der Päpste am Beispiel Paschalis’ ii., Lucius’ ii. und Hadrians iv’, in E.-​D. Hehl, I. H. Ringel and H. Seibert (eds.), Das Papsttum in der Welt des 12. Jahrhunderts, Mittelalter-​Forschungen, 6 (Stuttgart, 2002), 243–​62; M. Alberzoni and C. Zey (eds.), Legati e delegati papali: Profili, ambiti d’azione e tipologie di intervento nei secoli XII–​XIII (Milan, 2012), esp. C. Zey and M. Alberzoni, ‘Legati e delegati papali (secoli xii–​x iii)’, 3–​27. See G. Pavloff, Papal Judge Delegates at the Time of the Corpus Iuris Canonici (Washington D.C., 1963); R. Helmholz, ‘Canonists and Standards of Impartiality for Papal Judges Delegate’, in R. Helmholz (ed.), Canon Law and the Law of England (London, 1987), 21–​39; R. Schmutz, ‘Medieval Papal Representatives: Legates, Nuncios, and Judges Delegate’, Studia Gratiana, 15 (1972), 441–​63; C. Duggan, ‘Papal Judges Delegate and the Making of the “New Law” in the Twelfth Century’, in T. Bisson (ed.), Cultures of Power: Lordship, Status, and Process in Twelfth-​ Century Europe (Philadelphia, 1995), 172–​99; L. Fowler-​Magerl, Ordines iudiciarii and libelli de ordine iudiciorum, Typologie des Sources du Moyen Âge Occidental, 63 (Turnhout, 1994). Uruszczak, ‘Les juges délégués’, 29, citing a decretal of Innocent ii from 1136. C. Wickham, Courts and Conflict in Twelfth-​Century Tuscany (Oxford, 2003), 3–​4, 13–​14, 225–​38. The first record I have found of an ecclesiastical official other than a bishop or abbot assigned to judge a case in the province of Reims is the dean (and magister) of Sainte-​Marie of Reims, Leo, whom Alexander iii mandated in 1163 or 1164 along with Peter of Celle, abbot of Saint-​ Remi, and the abbot of Notre-​Dame de L’Aumône, to resolve a dispute between the canons of Saint-​Maurice of Tours and the abbot of Cluny over their claims to certain fields near Tours-​ sur-​Marne. See JL 10984 and 10986; PL, vol. 200, col. 278–​80.

Men on the Move

25

First and foremost, they presented familiar faces to litigants and were, by reputation, dependable and respected mediators.7 Litigating parties typically had a say in who would serve as their judges,8 and until perhaps the 1160s, when the number of cases involving ordinary laymen began to multiply, the odds were good that judges personally knew the parties involved. Moreover, successful dispute resolution rarely appears to have hinged on the judges’ mastery of particular legal conventions or the dissemination and utilisation of canonical handbooks like the Decretum.9 Episcopal judges worked instead within existing legal frameworks for dispute resolution, especially procedures familiar from synodal and diocesan settings. For popes, employing judges-​delegate with local ties held considerable appeal, not least because they presumably did not bear the stigma of foreigners meddling in local affairs, a perennial complaint raised about papal legates in the later-​eleventh century.10 Even so, local confidence in this developing judicial process would presumably have entailed a period of adjustment by litigants and non-​officiating clergy, and especially, perhaps, by laymen, who formed an increasingly higher percentage of plaintiffs as the century progressed.11 This essay explores the development of social and procedural practices of delegation in the province of Reims during its formative years from the 7 8 9 10

11

This would account for the repeated use of some judges, discussed below. Helmholz, ‘Canonists and Standards of Impartiality’, 22. Compare however Cheney, Roger, Bishop of Worcester, 133–​34, and see below, n. 29. Wickham, Courts and Conflict, 237–​38. In this capacity, they bear analogy to legati nati, resident legates chosen for their local ties. See K. Rennie, The Foundations of Medieval Papal Legation (New York, 2013), 157. In the twelfth century, legates such as Bishop Geoffrey of Chartres (1132–​45), Archbishop Samson of Reims (1155–​59), Richard of Albano (former dean of Saint-​Étienne of Metz, cardinal-​bishop and papal legate, 1101–​15), Alberic of Ostia (monk of Cluny, prior of Saint-​Martin-​des-​Champs and abbot of Vézelay, cardinal-​bishop from 1138–​48), Cono of Praeneste (founder of Arrouaise, cardinal-​bishop and legate from 1108–​22) and Matthew of Albano (educated at Laon, canon of Reims, later prior of Saint-​Martin-​des-​Champs, grand prior of Cluny and cardinal-​bishop 1125–​34), were all well known to the northern French clergy, as were Ivo of San Lorenzo in Damaso (a regular canon of Saint-​Victor of Paris, cardinal-​priest 1138–​42, active in France 1141–​42), Imar of Tusculum (monk of Saint-​Martin-​des-​Champs, prior of La Charité-​sur-​Loire, abbot of Moutier-​Neuf, cardinal-​ bishop 1142–​59, active in northern France 1144–​45) and Henry of SS Nereo and Achilleo (a Pisan who lived as a Clairvaux monk, active in northern France 1160–​61). On Richard and Matthew of Albano, see R. Hüls, Kardinäle, Klerus und Kirchen Roms, 1049–​1130 (Tübingen, 1977), 93–​95, 96–​98. By the mid-​1160s, cases involving lay litigants exclusively were finding their way to the papal court. Well-​placed laymen also participated in dispute resolution as arbitratores, proposed by the litigants and tasked by the judge-​delegate with assisting both parties in reaching an amicable compromise to their conflict.

26 Ott early 1100s until 1160, the beginning of Pope Alexander iii’s (1159–​81) pontificate. It considers several practices of judge-​delegation in particular. The first section explores the selection of judges, which followed a discernible pattern between the 1130s and 1160. The second examines delegated inquiry’s procedural assimilation to local, diocesan processes of dispute resolution, particularly synodal practices. The third and final section considers the breadth of the judges’ activities, focusing on the geographical range and kinds of cases in which they were involved. Until approximately 1160, judges tended to be chosen from the same pool of prelates and were not infrequently called upon to operate outside their own dioceses and provinces. After 1160, delegation most often fell to the archbishop of Reims, Henry of France (1162–​75), and to a growing cross-​section of ordinaries, abbots and clerical officials.12 One may conclude that existing practices of synodal judgement and tendencies in judge selection contributed significantly if not decisively to the gradual assimilation of the Rome-​directed practice of delegation with local legal cultures, a merger which, it may be argued, fed a growing confidence in the emergent legal system and its outcomes.13

Judges-​Delegate in the Province of Reims, c.1123–​6014

As Wacław Uruszczak first noted and Dietrich Lohrmann later affirmed, the ecclesiastical province of Reims presents an attractive laboratory for a case study 12 13

14

Falkenstein, ‘Appellationen an den Papst’, 50–​51. Of course, cynical or evasive litigants could and did take advantage of the right to appeal, using it to delay cases or deceive the papal court and judges about the merits of their complaint, although such practices do not seem to have become widespread until after the period under discussion here. It may also have been more difficult to pull the wool over the eyes of local judges. See S. Chodorow, ‘Dishonest Litigation in the Church Courts, 1140–​98’, in K.  Pennington and R.  Somerville (eds.), Law, Church, and Society: Essays in Honor of Stephan Kuttner (Philadelphia, 1977), 187–​206. The earlier date marks the beginning of delegation conforming to its later recognisable form, that is, as a papal mandate to one, two or more judges to resolve a particular dispute. Such mandates certainly occurred earlier in both provincial and church history. See on this D. Lohrmann, ‘Papstprivileg und päpstliche Delegationsgerichtsbarkeit im nördlichen Frankreich zur Zeit der Kirchenreform’, in S. Kuttner and K. Pennington (eds.), Proceedings of the Sixth International Congress of Medieval Canon Law, Berkeley, 28 July–​2 August 1980, mic C, 7 (Vatican City, 1985), 535–​50. In the twelfth-​century province of Reims, however, delegated dispute resolution before the mid-​1130s was rare and assumed primarily one of two guises. In the first, the pope assigned judgement of protracted intra-​urban conflicts to a local ecclesiastical official or officials after repeated appeals to the papacy had failed to resolve it. Examples include the conflict over tithes pitting Saint-​Nicaise

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27

of the social backgrounds and legal practices of judges-​delegate.15 A sizeable number of commissions were conducted in the province during the twelfth century. Uruszczak tallied more than 275 dating from the years 1151–​99.16 This figure excludes another thirty or so delegations from 1100–​50, when they were becoming increasingly routine. Moreover, the province of Reims possesses a relatively full collection of edited papal and episcopal documents. These include the remarkable Papsturkunden in Frankreich series, published and/​or edited episcopal acta for eight of its twelve dioceses, and a substantial number of edited charters for cathedral chapters and religious houses.17 Finally, the cathedral school and the abbeys of Saint-​Remi and Saint-​Thierry at Reims collectively constituted a well-​known centre for the transmission and study of canon and Roman law, and thus may be presumed to have been early adopters of new legal procedures.18

15 16

17

18

against Saint-​Remi of Reims (concluded in 1113); the dispute over burial rights between the canons of Notre-​Dame of Tournai and the monks of Saint-​Martin (1106–​10); and the fight between the monks of Saint-​Vaast and canons of Notre-​Dame of Arras over the limits of their jurisdictions, tithes and burial rights (1107–​13). The second form of conflict resolution in the province involved a hearing before papal legates who associated with themselves bishops and other clergy as judges, often during provincial synods. One example among many involved a dispute between the canons of Saint-​Corneille of Compiègne and the canons of Saint-​Etienne of Châlons over the villa of Saint-​Amand near Ponthion, which was heard by the legate Matthew of Albano, the archbishops of Reims and Sens, and other provincial bishops at the councils of Troyes (January 1128) and Reims (August 1128). See puf n.F., vol. 7, ed. D. Lohrmann, no. 34, pp. 276–​77. The later date of 1160 marks the advent of Alexander iii’s pontificacy and changes in allocating cases. Uruszczak, ‘Les juges délégués’, 28–​29; Lohrmann, ‘Genèse et perspectives d’une Gallia Pontificia’, 19–​22. Uruszczak, ‘Les juges délégués’, 31–​32. The burgeoning number of cases taken to the papal court in the mid-​twelfth century no doubt had much to do with its established presence in France, where the pope’s proximity probably encouraged people to appeal their cases directly to him. Popes resided or toured through France in 1130–​32 (Innocent ii), 1147–​48 (Eugenius iii) and 1162–​64 (Alexander iii). The dioceses for which published episcopal acta from the province exist are: Arras (1093–​ 1203), Cambrai (origins-​1092/​93), Laon (origins-​1151), Noyon (origins-​1146/​48) and Tournai (1146–​90). The episcopal charters of several other dioceses have been edited but are not published:  Amiens (origins-​1204), Châlons-​en-​Champagne (origins-​1201), Noyon (1148–​ 1221), Reims (origins-​1139). I have consulted at various times all of the unpublished collections, with the exception of Marie-​Josèphe Gut-​Bondil’s 1955 edition of the charters of the bishops of Châlons. Uruszczak, ‘Les juges délégués’, 28–​29 and nn. 6–​9, and W.  Uruszczak, ‘Albéric et l’enseignement du droit romain à Reims au XIIe siècle’, in Confluence des droits savants et des pratiques juridiques. Actes du Colloque de Montpellier, tenu du 12 au 14 décembre 1977, sous le patronage et avec le financement du C.N.R.S. (Milan, 1979), 39–​68; J. Williams, ‘The

28 Ott Bishops preponderantly served as judges-​delegate in the province of Reims until the early 1160s.19 As judges they functioned first and foremost as mediators and peace-​makers, a traditional episcopal role, as the preamble to a charter of Alvisius of Arras, an early judge-​delegate in the province, makes clear: Since the Apostle exhorts us to follow those things which promote peace, especially among churches redeemed by the blood of Christ, who is peace, shunning the rancour of discord, we are obliged to reform peace by the grace conferred on us by God …20 The goal of any delegation was to achieve a peaceful resolution to conflict through negotiation and compromise, resulting in an agreement (compositio) rather than a judgement for one plaintiff over the other.21 Popes issued mandates to judges-​delegate after one or both parties in a complaint had appealed to them in person or in writing. The judges, acting in loco papae, were enjoined to ‘enquire diligently’ (diligentius, studiosa diligentia) into the complaint. First, they summoned the parties; once before the judge, grievances were issued orally, and then supplemented by written evidence.22 Judges could appoint other clergy and laymen to act as arbitri and could sub-​delegate their own charge to others, providing the proxies they nominated were acceptable to both parties.23 Judges usually issued their own charters or chirographs to

19

20 21

22

23

Cathedral School of Reims in the Time of Master Alberic, 1118–​1136’, Traditio, 20 (1964), 93–​114, at 104–​5. Abbots were periodically employed as judges until the mid-​1130s. As the process of utilising judges became routinized under Innocent ii and his successors, abbots generally ceased to be involved, a situation that endured until Peter of Celle, abbot of Saint-​Remi, regularly assumed the role of judge-​delegate starting about 1163/​64. cea, no. 56, p. 73 (3 October 1133): ‘Quoniam, exhortante apostolo, que pacis sunt sectari et maxime inter ecclesias Christi, qui pax est, sanguine redemptas, excluso discordie rancore, pacem reformare pro gratia nobis a Deo collata debitores sumus …’. In this way it operated similarly to dispute resolution practices noted in the formative studies of F. Cheyette, ‘Suum cuique tribuere’, French Historical Studies, 6/​3 (1970), 287–​99, and S. White, ‘ “Pactum … legem vincit et amor judicium”: The Settlement of Disputes by Compromise in Eleventh-​Century Western France’, The American Journal of Legal History, 22/​4 (1978), 281–​308; see also Wickham, Courts and Conflict, 3–​7. Many fuller summaries of the legal procedure of delegation are available, however they often present general conclusions based on practices evident after the mid-​twelfth century and focus on normative conduct. Consult, e.g., Morey, Bartholomew of Exeter, 44–​54; Sayers, Papal Judges Delegate, passim; Uruszczak, ‘Les juges délégués’, 35–​36; Brundage, Medieval Origins of the Legal Profession, 136–​37; Müller, Päpstliche Delegationsgerichtsbarkeit, vol. 1, 16–​18, 31–​36. See Sayers, Papal Judges Delegate, 10. The earliest case of sub-​delegation I have found for Reims dates to 1135–​47, the date ante quem being established by the death of Gui, bishop

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conclude the case; they then communicated their decision in writing to the pope, who might also issue letters of confirmation to the litigating parties. Unlike papal legates, judges-​delegate were assigned their tasks on an ad hoc rather than a long-​term basis, although, as a matter of course, cases could become quite drawn out (sometimes lasting for years).24 Over time, certain clergy became go-​to figures for Rome and developed reputations for their legal expertise and rigour (or ‘zeal’) of judgement.25 Their decisions were in later decades sometimes collected for ease of consultation.26 To whom, then, did the popes look to execute their commissions in the province of Reims? Between the late 1130s and 1158, the names of five bishops surface repeatedly, and two in particular: Josselin of Soissons (1126–​52) and Hugh iii of Mâcon, bishop of Auxerre (1137–​51).27 Auxerre was of course a suffragan of Sens, not Reims, but Hugh’s activity outside his own province was not unusual in this early period of delegation. Together with the prelates of Soissons and Auxerre, bishops Milo of Thérouanne (1131–​58), Geoffrey of Châlons-​en-​ Champagne (1131–​43) and Alvisius of Arras (1131–​48) routinely served as papal executors and judges. Other prelates also received commissions, though more

24

25 26 27

of Châlons, in January 1147, and the date a quo being an earlier settlement of 1135 between the cathedral chapter of Amiens and Evrard iii of Breteuil over the road or causeway in dispute; see J. Roux and E. Soyez (eds.), Cartulaire du chapitre de la cathédrale d’Amiens (Amiens-​Paris, 1897), no. 15, pp. 21–​22; no. 20, pp. 29–​30; no. 21, p. 30. There were curial officials assigned short-​term tasks, such as nuncios, though by the late eleventh century legatine appointments tended to be for longer durations. See Schmutz, ‘Medieval Papal Representatives’; Rennie, Foundations of Medieval Papal Legation, 66–​72. On the length of cases, see Cheney, Roger, Bishop of Worcester, 121–​22. Qualities ascribed to both Bartholomew of Exeter and Roger of Worcester; see Cheney, Roger, Bishop of Worcester, 116, and below. Sayers, Papal Judges Delegate, 37; Cheney, Roger, Bishop of Worcester, 195–​212. Limited and in some cases unreliable biographical information on Josselin may be found in L. Jacquemin, ‘Annales de la vie de Josselin de Vierzi, 57e évêque de Soissons (1126–​1152)’, in A.  Luchaire (ed.), Quatrièmes mélanges d’histoire du moyen âge (Paris, 1905), 1–​161, at 1–​7. One may consult also C. Kneepkens, ‘Orléans 266 and the Sophismata Collection: Master Joscelin of Soissons and the Infinite Words in the Early Twelfth ­Century’, in S.  Read (ed.), Sophisms in Medieval Logic and Grammar. Acts of the Ninth European Symposium for Medieval Logic and Semantics, held at St Andrews, June 1990 (­Dordrecht, 1993), 64–​85, at 74–​78; and J.  Ott, ‘Educating the Bishop:  Models of Episcopal Authority and Conduct in the Hagiography of Early Twelfth-​Century Soissons’, in S. Vaughn and J. Rubenstein (eds.), Teaching and Learning in Northern Europe, 1000–​1200 (Turnhout, 2006), 217–​53. On Hugh, an early companion of Bernard of Clairvaux, see C. Talbot, ‘The Sermons of Hugh of Pontigny’, Cîteaux in de Nederlanden, 7 (1956), 5–​33; J. Benton, ‘An Abusive Letter of Nicolas de Clairvaux for a Bishop of Auxerre, Possibly Blessed Hugh of Mâcon’, in T.  Bisson (ed.), Culture, Personality and Power in Medieval France (London-​Rio Grande, 1991), 123–​28.

30 Ott sporadically: Samson of Reims (1140–​61), who in addition served as legate under Pope Adrian iv between 1155–​59, and later Thibaud of Paris (1143–​58) and Thibaud Brito of Amiens (1144–​64). From the first group, Alvisius, Milo and Geoffrey shared a number of traits. They all acceded to the episcopate in 1131, a year that coincided precisely with Pope Innocent ii’s eighteen-​month sojourn in France. Milo had been consecrated at Reims in the pope’s presence in February.28 All of them attended Innocent’s enormous council at Reims in October, and all three, together with Hugh of Auxerre, were former abbots. Alvisius, whose reputation for administrative zeal and severity produced a decidedly mixed legacy, had been the prior of Saint-​Vaast of Arras and abbot of the reformed Cluniac abbey of Anchin (1111–​31), and was the architect of Cluniac reforms in numerous houses across the northern dioceses of the province.29 Innocent supported his election at Arras.30 Milo had governed the young Premonstratensian houses of Saint-​Josse-​ aux-​Bois (Dommartin) and Saint-​Jean of Amiens, and founded the Premonstratensian house of Licques in 1132.31 Geoffrey had been successively abbot of 28

29

30 31

See F. Petit, ‘Milon de Sélincourt, évêque de Thérouanne’, Analecta Praemonstratensia, 48 (1972), 72–​93, at 77–​78. Alvisius and Geoffrey were also present, together with Matthew of Albano, Bishop Aldabero iii of Verdun and the archbishop of Rouen, when the pope consecrated the abbey church of Saint-​Médard on 15 October 1131. Josselin is not mentioned as having assisted, and the annals kept at Saint-​Médard (Ex annalibus s. Medardi Suessionibus, ed. G. Pertz, mgh, SS, 26 [Hannover 1882], 520), indicates that he had vocally dissented at the recent consecration of Saint-​Médard’s new abbot, Odo. Still, it would have taken a supreme act of will or obstinacy to boycott a papal consecration in his own backyard. See puf n.F., vol. 7, ed. Lohrmann, no. 41a, pp. 284–​85. See, for a resumé with references, S. Vanderputten, ‘A Time of Great Confusion: Second-​ Generation Cluniac Reformers and Resistance to Monastic Centralization in the County of Flanders (c. 1125–​1145)’, Revue d’histoire ecclésiastique, 102 (2007), 47–​75. The abbot of Oldenburg, Hariulf (1105–​43), notably referred to Alvisius as ‘pertinax … in zelo suo’ in refusing to assent to his serving as a judge in a legal case that had pitted Hariulf and his monks against the abbey of Saint-​Médard of Soissons; he also rejected Geoffrey of Châlons, as he was a former abbot of Saint-​Médard and presumed by Hariulf to be biased in favour of his old abbey. See E. Müller, ‘Der Bericht des Abtes Hariulf von Oudenburg über seine Prozessverhandlungen an der römischen Kurie im Jahre 1141’, Neues Archiv, 48 (1930), 97–​115, at 113; available with a new introduction as Hariulf, Pleidooi voor Oudenburg, ed. E. Müller with Dutch trans. by L. De Leeuw-​Geirnaert (Turnhout, 2003); Brun­ dage, Medieval Origins of the Legal Profession, 153–​54. On some of the particulars in the case, see R. Nip, ‘The Dispute of Hariulf of Oudenburg and the Abbey of Saint Médard: A Convenient Confusion of Names’, in R. Nip et al. (eds.), Media latinitas: A Collection of Essays to Mark the Occasion of the Retirement of L. J. Engels (Turnhout, 1996), 275–​80. For Innocent’s letter urging Alvisius to take up the see of Arras, see PL, vol. 179, col. 93 (no. 43). On Milo’s foundation at Licques, which he staffed with regular canons from Saint-​Martin of Laon, see GC, x, 400–​01. He further confirmed the foundation of the Cistercian abbey

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Saint-​Thierry of Reims and Saint-​Médard of Soissons, whose adoption of Clu­ niac customs he had overseen. Hugh of Auxerre was an old friend of Bernard of Clairvaux, with whom he had entered Cîteaux as a young man in 1112. Hugh rose quickly to become the first abbot of Pontigny (in 1114), which he ruled for twenty-​two years before his election to the episcopacy in 1136.32 All four men thus stood at the vanguard of what has been termed second-​generation reformed monasticism, represented in its Cluniac, Cistercian and Premonstratensian variants. Cistercian and Premonstratensian support had proved critical during Innocent ii’s contested election; it is therefore understandable that the pope turned to representatives of these monastic traditions to enact papal juridical authority in the provinces.33 As the only secular cleric, Josselin of Soissons was the odd man out in this group, but the qualities that recommended him to Pope Innocent as a judge-​ delegate were numerous. Unlike the others, he was a former Parisian schoolmaster (1111–​13?) in theology, and trained in logic. Josselin gained considerable notoriety as an opponent of Abelard on the subject of universals and, later, of the teachings of Gilbert of La Porrée, a former student of Anselm and Raoul of Laon, on the same issue.34 Indeed, following Abelard’s condemnation and appeal to papal authority at Sens in May–​June 1141, Josselin co-​authored, with Geoffrey, Alvisius and Samson of Reims, a summary letter to Innocent on the

32

33

34

of Cercamp in 1137. See T. Gousset (ed.), Les actes de la province de Reims (Reims, 1843), vol. 2, 221–​22; and in general, Petit, ‘Milon de Thérouanne’, 80–​85. Hugh was consecrated on 22 January 1137 by the papal legate and bishop Geoffrey of Chartres at Ferrières, because the archbishop of Sens was at that time excommunicate; see Les gestes des évêques d’Auxerre, ed. G. Lobrichon et al. (Paris, 2006), vol. 2, 96. A summary of Hugh’s pontificate may be found in C. Bouchard, Spirituality and Administration: The Role of the Bishop in Twelfth-​Century Auxerre (Cambridge, MA, 1979), 51–​67. H. Seibert, ‘Autorität und Funktion: Das Papsttum und die neuen religiösen Bewegungen im Mönch-​und Kanonikertum’, in Hehl, Ringel and Seibert (eds.), Das Papsttum in der Welt des 12. Jahrhunderts, 207–​41, at pp. 219–​22; J. Johrendt, ‘The Empire and the Schism’, in P. Clarke and A. Duggan (eds.), Pope Alexander iii (1159–​81): The Art of Survival (Farnham-​ Burlington, 2012), 99–​126, at 103. Kneepkens, ‘Orléans 266 and the Sophismata Collection’, 74–​78; Otto of Freising, The Deeds of Frederick Barbarossa, trans. C.  Mierow with R.  Emery (New  York, 1953), 1.49, pp. 84–​85; 1.52–​54, pp. 89–​90. Josselin spoke out against Gilbert at Eugenius iii’s April 1147 council at Paris; for references, see O. Pontal, Les conciles de la France capétienne jusqu’en 1215 (Paris, 1995), 324–​25, 331–​32. Josselin also was charged with examining Gilbert’s works, along with Bernard of Clairvaux, Suger of Saint-​Denis and Milo of Thérouanne, at Eugenius’ March 1148 council at Reims (AJ, no. 202, pp. 116–​17). Hugh and the other prelates of Sens also wrote to Eugenius concerning Gilbert; see Talbot, ‘The Sermons of Hugh of Pontigny’, 7.

32 Ott proceedings.35 This was one of many occasions when this group can be found, in whole or in part, working collaboratively in this period.36 In addition, and like the others, Josselin was an active supporter of reformed monasticism in his diocese, including houses of Cistercians and regular canons, especially those of Prémontré.37 A further commonality among the men was that they enjoyed close friendships, or at least good working relationships, with Bernard of Clairvaux. Bernard himself had proposed Geoffrey for the episcopal see of Châlons, and he lobbied strongly on Alvisius’ behalf before Innocent ii when the bishop of Arras embarked upon tendentious and protracted disputes with the abbeys of Saint-​Vaast of Arras and Marchiennes.38 As stated above, the abbot of Clairvaux was an intimate of Hugh, and had, together with Hugh, Suger of Saint-​ Denis and several others, established peace between King Louis vii and his powerful chancellor, Algrinus, in 1140.39 Josselin acted alongside Bernard to resolve some of the most serious political conflicts of the day. In early 1132, for example, Innocent ii dispatched the two of them to woo the duke of Aquitaine, William X, away from the schismatic party of Pope Anacletus.40 And in 35 36

37

38 39 40

Their letter (rather like an amicus curiae brief), together with Innocent’s reply, has been translated in The Deeds of Frederick Barbarossa, trans. Mierow with Emery, 1.49–​50, pp. 84–​87. Hugh of Auxerre was also present at Sens. To take two examples, Alvisius and Geoffrey subscribed an 1131–​33 charter of Josselin for Saint-​Médard (AJ, no. 88, p. 56, with date of ‘1131–​1137’), and the same three, plus Milo of Thérouanne, subscribed an 1135 charter of Renaud of Reims for the Benedictine monastery of Selincourt (AJ, no. 65, p. 42). Other examples of their collaboration may be found in J. Ott, Bishops, Authority and Community in Northwestern Europe, c.  1050–​1150 (Cambridge, 2015), 299–​308. Josselin’s foundations and confirmation of foundations included: Longpont (Cistercian, 1132); Chartreuve (c.1133, confirmed 1135), Val-​Chrétien (c.1134), Lieu-​Restauré (1138) (all Premonstratensian). He also oversaw or assisted in the reform and installation of Premonstratensian canons at Château-​Thierry (1133), Saint-​Yved of Braine (c.1132), and Val-​Secret (1133). Josselin presided over the installation of canons of Arrouaise at Saint-​ Crépin-​en-​Chaye (1131) and Saint-​Léger of Soissons (1139). See L. Duval-​Arnould, ‘Moines et chanoines dans le diocèse de Soissons: Fondations nouvelles et substitutions’, in Istituzioni monastiche e istituzioni canonicali in Occidente (1123–​1215). Atti della settima Settimana internazionale di studio (Mendola, 28 agosto–​3 settembre 1977) (Milan, 1980), 679–​91; and O. Guyotjeannin, dir., Le chartrier de l’abbaye Prémontrée de Saint–​Yved de Braine (1134–​ 1250), ed. Students of the École nationale des chartes (Paris, 2000), 17–​19. The Letters of St Bernard of Clairvaux, trans. B. James (new edn, Kalamazoo, MI, 1998), no. 286, pp. 355–​6; see also nos. 68–​69, pp. 92–​95. A. Luchaire, Études sur les actes de Louis vii (Paris, 1885), 52, 120–​21 (no. 67). Noted by Bouchard, Spirituality and Administration, 57. Ernaud of Bonneval, Sancti Bernardi Vita Prima, 2.6.36–​38, in PL, vol. 185, col. 288–​90; mentioned in AJ, no. 42, p. 27. They were also regularly present together for more mundane business; see, e.g., AJ, no. 147, pp. 89–​90 (with Geoffrey of Châlons).

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the summer of 1143, at Vitry-​en-​Perthois, Josselin, Suger of Saint-​Denis, Bernard and Hugh of Auxerre represented King Louis vii and Count Thibaud of Champagne in the peace negotiations that temporarily ended the magnates’ ongoing feud, which had been sparked by Raoul of Vermandois’ renunciation of his wife Eleanor, Thibaud’s sister.41 None of these prelates had any formal training in law, which was not unusual for bishops in the mid-​twelfth century. This was not for lack of access to legal collections, but because the routine demands of episcopal administration and dispute resolution at this time necessitated neither special training nor technical legal knowledge. They were, however, steeped in the legal developments of the day. Their presence at key councils—​including Pope Innocent ii’s at Reims (1131) and Pisa (1135) and Pope Eugenius iii’s at Reims (1148)—​ ensured that they remained abreast of changes to the law.42 Alvisius and Milo inherited legal libraries assembled by their episcopal predecessors, and at least one legal collection of local significance was compiled under Geoffrey at Châlons.43 While I have found no evidence that Auxerre and Soissons were noteworthy as centres of law in this period, their bishops were exceptionally active in dispute settlement, both inside and outside their dioceses. Hugh of Auxerre’s biographer lauded his zeal in defence of the church, on the model of Ambrose’s resistance to Emperor Theodosius, commenting that, ‘those he was unable to overcome with patience and humility, he trampled underfoot by the rigour of justice (rigor iustitiae), which, in the judgement of the wise man, is 41 42

43

See AJ, no. 148, p. 90. Together they sat on the commission of church officials who reviewed the works of Gilbert of La Porrée at Reims in 1148. Alvisius, Milo of Thérouanne, Renaud of Reims and Josselin of Soissons attended Innocent’s council at Pisa in 1135 (Innocent confirmed a charter of Josselin for Marmoutier there). The papal councils at Reims in 1131 and 1148 were attended by all of the prelates, with the exception in 1148 of Alvisius, who had died on crusade. Josselin further attended major legatine councils at Rouen (October 1128; AJ, no. 17, pp. 14–​15, with Matthew of Albano and Geoffrey of Chartres) and Poitiers (December 1139; see AJ, nos. 105–​6, pp. 65–​66, with Bernard of Clairvaux). We know of Josselin and Hugh of Auxerre’s earlier presence at the council of Troyes in 1128, which had been called by Honorius ii and which established the founding document of the Templars. See Talbot, ‘The Sermons of Hugh of Pontigny’, 6. On Innocent’s early councils, see M. Brett and R. Somerville, ‘The Transmission of the Councils from 1130 to 1139’, in J. Doran and D. Smith (eds.), Pope Innocent ii (1130–​1143): The World vs the City (London-​New York, 2016), 226–​71; and A. Duggan, ‘Jura sua unicuique tribuat: Innocent ii and the Advance of the Learned Laws’, in Ibid., 272–​310, at 296–​302. The anonymous Collectio Catalaunensis ii appears to have been composed between 1130–​ 40, and was derived in part from a slightly earlier collection from Châlons, the Collectio Catalaunensis I. See for brief synopses L. Kéry, Canonical Collections of the Early Middle Ages (ca. 400–​1140): A Bibliographical Guide to the Manuscripts and Literature (Washington D.C., 1999), 290–​91.

34 Ott ever necessary in God’s church’.44 Josselin’s commitment to dispute resolution was no less formidable.45 By the latter years of his reign, the bishop of Soissons was recognised for his legal reputation and respected enough that he was consulted on a particular point of law by Haimo of Bazoches, a canon of Châlons known for his compilation of a summa for archdeacons.46 Thus, if one were to present a profile of the judges-​delegate active in the province of Reims to 1160, it would look like this: (1) they were episcopal allies, and/​or came out of the tradition, of reformed monasticism; (2) they were friends of Bernard of Clairvaux and personally known to Innocent ii, perhaps upon Bernard’s recommendation;47 (3) although lacking formal legal training, each had a reputation for judicial rigour;48 (4) they functioned well together,

44

45

46

47

48

Les gestes des évêques d’Auxerre, ed. Lobrichon et al., 98–​99: ‘et quos non poterat per patientiam et humilitatem superare, conculcabat rigore iusticie, qui iudicio sapientis multum necessarius semper est in aecclesia Dei’. See too Bouchard, Spirituality and Administration, 57–​67. His utility as a judge was already recognised during his abbacy; see JL 7538 (10 February 1132); 7745 (1134–​36); and 7815 (1135–​36) for instances when Hugh served as judge-​delegate. For non-​delegated cases which he either resolved or in which he was involved as an arbitrator, see: AJ, no. 68, pp. 43–​44; no. 70, pp. 45–​46; no. 77, p. 49 (on this case, see below); no. 94, pp. 59–​60; no. 120, pp. 73–​74; no. 138, p. 84 (with Bartholomew of Laon); no. 141, pp. 86–​87 (with Geoffrey of Châlons and Samson of Reims); no. 145, p. 88 (with Samson of Reims and Bartholomew of Laon); no. 159, pp. 95–​96 (with Samson of Reims and Bartholomew of Laon); no. 165, p. 99; no. 167*, p. 100; no. 178, pp. 104–​5 (with Samson of Reims and Bartholomew of Laon); no. 179, p. 105 (with Alberic of Ostia, papal legate); no. 199, pp. 114–​15 (with Thibaud of Paris and Hugh of Auxerre); no. 222, p. 129; no. 235, p. 134 (with Samson of Reims); ael, no. 218, pp. 325–​26. Haimo of Bazoches composed his Summa decretorum between c.1143–​52, during his ­archidiaconate; see P. Landau, ‘Das Summarium Haimonis: Ein Manual für Archidiakone auf der Zeit Gratians’, in B. Brasington and K. Cushing (eds.), Bishops, Texts and The Use of Canon Law around 1100: Essays in Honour of Martin Brett (Farnham-​Burlington, 2008), 153–​63. He wrote to Josselin during this period, asking for advice on a marital case for which he could find no legal precedent. His letter, copied into Châlons-​en-​Champagne, Bibliothèque municipale, Ms. 48, fol. 5r–​6r, remains unedited. Already by 1141, the reputation of these men in legal matters was well-​established both in Rome and in the province of Reims; see the revealing exchange between Hariulf of Oldenburg and Pope Innocent ii in the former’s report of his journey to Rome: Müller, ‘Der Bericht des Abtes Hariulf’, 112–​15; Hariulf, Pleidoi voor Oudenburg, ed. Müller with De Leeuw-​Geirnaert, 56–​59. Alvisius of Arras was certainly noted for his zeal (above n. 29), and frequently became embroiled in aggressive reforms of abbeys both in his diocese and outside of it, which on multiple occasions required the pope to appoint other episcopal judges to ensure the monastic communities involved received a fair hearing. Taking but one example, in July 1138 Innocent delegated the bishops of Soissons, Châlons, Rouen and Thérouanne to resolve Alvisius’ dispute with the abbot of Saint-​Vaast of Arras. See JL 7904; rhgf, 393–​94.

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were deemed dependable, and presumably, given their repeated partnering, developed good working relationships.49

Local Antecedents to Delegated Judicial Inquiry

Scholars have long argued that a surge in the number of litigants travelling to Rome to present or appeal cases, especially first-​instance cases, led to the boom in papal delegation.50 This trend is certainly observable, particularly beginning in the second quarter of the twelfth century, and it is hard to see the growth in delegated cases as anything other than evidence for the expansion and acceptance of a papally-​driven legal culture in Europe. But the rise in legal business does not help us to understand the success of a delegation’s implementation and operation, nor does it cast much light on the reception of judges—​who often acted outside their dioceses and provinces—​by litigants. In fact, among the principal antecedents for delegated cases were complaints litigated at the diocesan and provincial levels, many of which bear a strong resemblance to papally-​delegated cases in their procedure, adjudication and outcomes. It is therefore worth taking a closer look at diocesan and provincial dispute resolution and litigation in twelfth-​century Reims. Our best sources for this tend to be episcopal charters that detail the complaints aired before diocesan synods, ‘the most formal and dignified tribunal’ for hearings of church business, or at other assemblies called for the purpose of resolving litigation.51 While synods were the customary place for ecclesiastical litigation to be resolved, local procedure varied. At Arras for example, cases brought before the bishop were sometimes settled before a panel of abbots, usually selected by the litigants, to hear the complaint. The earliest such case on record occurred in 1129 or 1130, before Bishop Robert I (1115–​31).52 The

49 50 51

52

And, in Milo and Josselin’s case, an apparently strong friendship. See Ott, Bishops, Authority and Community, 257–​62. Brundage, Medieval Origins of the Legal Profession, 135–​36. See also Bouchard, Spirituality and Administration, 60–​61. Evidence of synodal judicial procedure for the period prior to 1150 is slim; see C. Morris, ‘From Synod to Consistory: The Bishops’ Courts in England, 1150–​1250’, Journal of Ecclesiastical History, 22/​2 (1971), 115–​23, at 123; C. Cheney, English Synodalia of the Thirteenth Century (Oxford, 1968), 1–​33, furnishes good introductory material. cea, no. 49, pp. 66–​67. The date is questionable, but cannot have been earlier than 1129 (the year in which the abbacies of Hugh of Saint-​Pierre d’Hasnon and Hugh of Hénin-​ Liétard began, pace Tock), or later than 1130, the death-​date of Walter, abbot of Saint-​ Vaast, who was one of the judges.

36 Ott abbeys of Anchin and Marchiennes (the former represented by their abbot, Alvisius) had fallen into a dispute over fishing rights on the Scarpe River and brought their case before the bishop at Arras. By the bishop’s judgement, the litigants selected a panel of six abbots from two dioceses to hear the case; they decided in favour of the rights of Marchiennes when one of its monks swore to their authenticity.53 Panels of four or five abbatial arbitrators, chosen by the litigants, were similarly employed, or were at least inferred to have rendered judgement, in episcopal charters of Arras from 1146–​47, 1161 and 1171.54 In a separate instance, the complainants in a dispute over parish offerings, the prior of Saint-​Pry of Béthune and a priest named Walter, elected three priests, a deacon and the provost of Arras to hear their case.55 In still other disputes, the accord seems to have been concluded by the bishop alone, perhaps aided by the counsel of ‘wiser men’ in his court.56 At Tournai, the arbitri called in to assist with adjudication not unusually included laymen, ranging from ordinary freemen to the count of Flanders.57 In the diocese of Laon, other tendencies—​one hesitates to refer to them as ironclad practices—​are evident. There, Bishop Bartholomew’s charters note that he often took counsel with ‘discreet’ but usually unnamed men in synod 53

54

55

56 57

Ibid., 67: ‘Haec erat controversia inter predictas ecclesias et causa contentionis sed tandem apud Atrebatum judicio episcoporum sex abbatibus ab utraque parte electis res tractanda committitur’. The reference to multiple bishops is unclear, as only Robert is named. As for the abbots, seven witnessed Robert’s charter, not six, but it is probably safe to assume that they constituted the judges in the case. The dioceses represented were Arras and Tournai. cea, no. 94, pp. 108–​09 (1146–​47, done with ‘many venerable persons mediating’, meaning presumably the five abbots who witnessed); no. 131, pp. 149–​51 (1161, resolving ‘four disputes’ between the canons of Arras and the abbey of Saint-​Vaast, with four abbots mediating); no. 161, pp. 179–​82 (1171, before 8 August; five judges chosen). Ibid., no. 55, pp. 71–​72. This case was recorded in Alvisius’ very first charter as bishop of Arras. It is noteworthy that his second and third charters were also both notifications of compositiones between religious houses (nos. 56–​57, pp. 73–​74), with the former, from 3 October 1133, evidently being issued in synod, to judge from the presence as witnesses of six abbots, including one from Cambrai. For example, Ibid., no. 68, p. 84 (1131–​41). aet, no. 23 (1152), pp. 45–​49 (in this case, a jury of 16—​eight laymen and eight clergy—​ were empanelled to resolve a dispute between Saint-​Amand-​les-​Eaux and the abbey’s ministerials in the bishop’s presence); no. 42 (1160), pp. 70–​72 (a council of laymen and clergy resolve a dispute, with the bishop presiding); no. 46 (1163), pp. 76–​78 (the bishop, Count Thierry of Flanders, and several clergy conclude a dispute over pilgrimage tithes between Saint-​Donatien of Bruges and the parish church of Dudzele). Compare aen, no. 227 (1126?), pp. 333–​35, where a panel of eight abbots and a group of Simon of Noyon-​ Tournai’s men (personarum nostrarum conventu) heard a case in synod at Tournai between the canons of Notre-​Dame and the canons of Saint-​Pierre of Lille.

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when conflicts arose.58 He also appears to have consulted with his fellow bishops, including his friend, Josselin of Soissons. Convening with Josselin during Laon’s November 1141 synod, Bartholomew brought to agreement the abbeys of Nogent-​sous-​Coucy and Prémontré, each of which claimed authority over a small monastic house near the city.59 Both bishops affixed their seals to the resulting chirograph. On a second occasion, in 1145, the bishops of Amiens and Reims were present in Laon to resolve a controversy between the abbeys of Saint-​Jean and Saint-​Vincent of Laon over burial privileges in a cemetery belonging to Saint-​Jean.60 There is no indication that either of these disputes had been delegated to the bishops by the pope; Bartholomew undertook to consult with his fellow prelates on his own initiative. However, in at least one instance, the bishop of Laon was delegated together with his colleagues Josselin and Samson of Reims to settle a complaint between Suger of Saint-​Denis and Hugh, the count of Roucy, over the latter’s ‘vexation’ of Saint-​Denis’ villa of Concevreux. The letter of delegation was apparently issued, not by the pope, but by Alberic of Ostia, the papal legate, who was present in western and northern France in 1144–​45.61 The bishops settled the case, and Bartholomew’s subsequent letter to Suger confirming the agreement contains the language common to compositiones found in papally-​delegated judgements.62 While the evidence from Arras, Laon and Tournai hint broadly at local diocesan procedures for resolving disputes—​and even, at Laon, the bishop’s tendency to collaborate with his fellow prelates in dispute resolution—​two cases from the early 1130s offer examples that in many respects anticipate the

58

59 60 61

62

ael, no. 160, p. 256 (7 November 1134, a conflict between the commune of Laon and the abbey of Saint-​Vincent): ‘rei veritate diligentius inquisita, consilio discretorum virorum’. See also Ibid., no. 245, p. 359 (8 November 1144, a dispute between the abbeys of Thenailles and Saint-​Michel-​en-​Thiérache); no. 281, pp. 399–​400 (1147, between Saint-​Jean-​au-​Bourg and Saint-​Martin of Laon). Ibid., no. 218, p. 325. Ibid., no. 256, p. 371. In addition to the bishops, ‘other discreet persons’ assisted in the judgement, which may have been conducted in synod given the presence of four additional abbots as witnesses. W. Janssen, Die päpstlichen Legaten in Frankreich vom Schism Anaklets ii. bis zum Tode Coelestins iii. (1130–​1198) (Cologne-​Graz, 1961), 39–​51. It may have been around April 1145, when Alberic and Josselin had already worked together to confirm a concession of clearance rights from Saint-​Médard to Ourscamp; see puf n.F., vol. 7, ed. Lohrmann, no. 56, pp. 308–​9. ael, no.  268, pp.  381–​82 (1145):  ‘nos quibus causae conditio delegata fuerat, utriusque partis allegationibus diligenter perscrutatis, cum plurima deliberatione, communi tamen assensu vestrum, querelam stabili fine terminavimus’. The case is also mentioned in: AJ, no. 178, pp. 104–​5; Suger, Oeuvres, ed. F. Gasparri (Paris, 2001), vol. 2, 286.

38 Ott sorts of cases judges-​delegate were regularly called upon to resolve in the mid-​ twelfth century.63 Both are noteworthy for their provincial scope. In the first, a dispute between Simon, the abbot of Saint-​Bertin, and Emma, the abbess of Origny-​Sainte-​Benoîte, the abbot and abbess each claimed right to a fishery at Mardick on the Flemish coast, in the diocese of Thérouanne. After many hearings (plurima placita)—​perhaps in the diocesan synod at Laon64—​and a contentious disagreement, the affair was resolved before the Archbishop Renaud at the provincial synod in Reims, likely in early 1132. In exchange for payment of ten silver marks, the abbess quit her claim to the fishery. Alvisius, Geoffrey Cou-​de-​Cerf, Josselin, and the bishop of Beauvais witnessed the agreement, along with three abbots, the archdeacon and schoolmaster of Reims, Alberic, and the two archdeacons of Arras.65 Once back in her own chapter at Origny, Emma waived her rights anew before four additional abbots, then travelled to Arras to confirm the abdication of her rights, before, in a rather extraordinary gesture, venturing all the way to the fishery itself to restate her renunciation. No less than thirty witnesses confirmed the settlement in four different locales.66 Regrettably, we are not informed about the preliminaries in the case, but it is clear the dispute between the abbeys had worked its way through multiple layers of jurisdiction before arriving at Reims, and that the parties there aired their complaints before a panel of distinguished judges, including four bishops and three magistri, namely Alberic the archdeacon of Reims and Hugh and Robert, the archdeacons of Arras.67 A second case, equally complex, heard in Soissons in 1136 and involving the abbeys of Saint-​Quentin and Saint-​Symphorien of Beauvais, provides further evidence of the degree to which locally-​established norms of dispute 63

64 65 66 67

The charter resolving the conflict is edited in C.  Haigneré (ed.), Les chartes de Saint-​ Bertin, d’après le Grand Cartulaire de Dom Charles-​Joseph Dewitte (Saint-​Omer, 1886), vol. 1, no. 170, pp. 69–​70. The date is uncertain (‘1132, environ’), but the provincial synod must have preceded the death of witness Peter, bishop of Beauvais, on 8 November 1132, and followed the consecration of Geoffrey as bishop of Châlons in August 1131. The charter does not indicate where previous placita were held. Origny sat in the diocese of Laon and Saint-​Bertin in Thérouanne. Thérouanne lacked a consecrated bishop from 29 January 1130 until October 1131. The abbots attending were Saint-​Thierry and Saint-​Nicaise of Reims and Saint-​Vincent of Laon. And this does not even include Saint-​Quentin-​en-​l’Île, where she received Simon’s payment! This was Hugh of Champfleury, first archdeacon of Arras (c.1131–​39, 1157–​59), then archdeacon of Ostrevant (1141/​42–​54), royal chancellor (from 1150–​72) and bishop of Soissons (1159–​75). Robert had been, prior to his promotion to archdeacon of Ostrevant (1115–​41/​ 42), schoolmaster of Arras (1097–​c.1113/​15). On Alberic see below.

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resolution helped establish a model that would be employed in later delegated jurisdictions. The abbeys had fallen into a protracted disagreement (controversia) over the partitioning of revenues to a mill they shared together with a group of laymen, along with other privileges.68 After airing their complaints repeatedly in the episcopal court of Bishop Odo ii of Beauvais ‘without resolution’, the communities chose sex honeste persone to judge the dispute, and swore to acquiesce to their decision.69 They elected Josselin of Soissons and Renaud, the archbishop of Reims. Their original chirograph still exists.70 Although the remaining four judges are not identified, based on the chirograph’s witness list it appears they consisted of abbots and/​or magistri from Reims and the surrounding region.71 The bishops summoned the parties to Soissons. Each abbot appeared with a retinue of three monks. The bishop of Beauvais, though present and confirming the compositio, did not sit as judge, perhaps because he was compromised in the dispute.72 A complex arrangement involving revenue sharing and apportionment of rights to the mills and pasture land was worked out, with the intent, made explicit in the compositio, that ‘each church should have with the other a firm peace from that point forward’.73 An amicable outcome clearly was desired.

68

69

70 71

72 73

For the complaint, see aar, vol. ii/​2, no. 240, pp. 638–​40; AJ, no. 77, p. 49 (notice). A map of Beauvais depicting the position of the abbeys may be found in O. Guyotjeannin, Episcopus et comes: Affirmation et déclin de la seigneurie épiscopale au nord du royaume de France (Beauvais-​Noyon, Xe–​début XIIIe siècle) (Geneva-​Paris, 1987), 4. The other privileges at stake were rights pertaining to a field and to pasturage. aar, vol. ii/​2, no. 240, p. 638: ‘ex utriusque partis condicto sex honestae personae videlicet donnus Rainaldus Remensis archiepiscopus et Joislenus Suessionensis episcopus et aliae quatuor electae sunt, quarum sapienti consilio secundum quod ex utraque causa eedem (sic) personae juste decernerent praedictae aecclesiae adquiescere statuerunt’. Archives départementales de l’Oise H 26. The other judges potentially included the abbots Ursio of Saint-​Denis of Reims; Erchengerus of Lauricourt and Bartholomew of Notre-​Dame of Ham. Witnessing and perhaps judging from the clergy of Reims were Leo, schoolmaster from 1136, cantor and dean (1127/​ 30–​67, himself later a judge-​delegate); the chaplain Gregory (later the cantor, 1146/​47–​ 1170/​71); and, conspicuously, three magistri from the schools of Reims: Walter of Mortagne (a student of Alberic of Reims and later dean and bishop of Laon, 1153/​55–​74; a frequent judge-​delegate), Amalric (attested at Reims from 1135–​37, later archdeacon of Liège); and Fulco (later dean, 1168–​76, schoolmaster and a regular judge-​delegate). A number of clergy and monks from Beauvais also attended. Although the reason is not given, the fact that Odo had formerly been abbot of Saint-​ Symphorien probably disqualified him from judging fairly in the eyes of the monks of Saint-​Quentin. aar, vol. ii/​2, no. 240, p. 639: ‘utraque ecclesia inter se firmam pacem deinceps haberet, quod ita factum est’.

40 Ott Despite the specificity of the judgement, the chirograph leaves a number of questions unanswered. First, did the bishops carry out their decision during a provincial synod, which were sometimes conducted at Soissons? It is certainly possible, but no evidence independently corroborates this hypothesis, and Soissons may have been picked simply because it lies roughly midway between Reims and Beauvais.74 What sort of evidence was presented by the parties? Did witnesses testify? Regrettably, apart from noting that the case was publicly aired at the assembly, we are again confronted by the chirograph’s silence. Despite these limitations, the language of the document and the makeup of the tribunal bear many similarities to later papal mandates. As we saw in the previous case between Origny and Saint-​Bertin, the presence of several magistri and the call to employ as judges honestae personae suggests the litigants’ faith in ‘experts’. Walter of Mortagne, Fulco of Reims and the Dean Leo appeared among the magistri who witnessed Renaud’s 1136 chirograph. Because all three were regularly mandated to cases by Pope Alexander iii in the 1160s, it seems clear that their reputations as effective judges had been already established early in their careers. However, there is no evidence that they possessed legal training, and this fact points to an important social element of early-​twelfth century legal culture. What mattered most was not legal expertise but the perception among litigants that their judges spoke with the authority, and perhaps the reason (ratio), that were hallmarks of trained scholars. They were not present to provide a judgement based on the technicalities of the law, but to produce a reasonable, mediated agreement. Second, the parties in the dispute elected mutually acceptable jurors to hear the case, practices also in use in diocesan cases at Arras and Tournai.75 This procedure was of course parallel to the freedom of litigants to choose their judges in delegated cases. Finally, the chirograph’s statement that the judgement had been rendered by all for the ‘utility of the church’ (utilitati utriusque ecclesie providentes), in this case the local or provincial church, also prefigures language commonly used in papal mandates. We must remember that judicial delegation in the province was fairly limited in the years before 1136. Josselin had been appointed by the pope only once before, in 1131 at Innocent’s council at Reims, together with Renaud.76 In this instance, they had worked alongside a papal legate, Matthew of Albano, to 74 75 76

There is a noticeable lack of evidence available for the activities of both Josselin and Renaud in the year 1136. The presence of the other clergy witnessing the charter may be plausibly explained by virtue of their connection to the case. For an example from Tournai, see aet, no. 23, pp. 45–​49 (1152); for Arras, see above. JL 7502; PL, vol. 179, col. 111–​12; AJ, no. 36, p. 25 (1131, with Josselin). Renaud acted as judge along with the archbishop of Sens and his provincial bishops in an 1128 dispute between

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resolve an extra-​provincial fight, not an intra-​diocesan conflict. Thus the Beauvais case from 1136, with its many similarities to later delegated cases, shows that the legal praxis of judges-​delegate cannot simply be viewed as being imposed from the top down, but as working within existing local and provincial legal norms and traditions. Some time ago, Knut Wolfgang Nörr observed that ‘the linking of delegated jurisdiction to regular diocesan jurisdiction served to ensure the execution of the judgement passed by the judge delegate’.77 The cases just reviewed involving and Saint-​Bertin and the abbeys of Beauvais, although not delegated, appear to support Nörr’s statement, as the provincial synod’s decisions were upheld and confirmed at the diocesan level by, respectively, the bishops of Beauvais and Arras. However, I would go further in modifying Nörr’s assertion to argue that the successful implementation of a judgement between litigants was enhanced, on the one hand, by the familiarity, reputation and authority of the judge(s), and on the other, by customary and authoritative juridical procedures found in both diocesan synods and provincial assemblies. A final delegated case from the same period reinforces this point and suggests the ways in which these earlier diocesan judgements served as laboratories for delegated judicial partnerships later. In this instance, which dates to the period between late-​1131 and mid-​1136, Innocent ii mandated a panel comprised of the papal legate Geoffrey of Chartres, three other bishops and two abbots to resolve a dispute between the abbey of Saint-​Remi, its abbot Odo and the archbishop of Reims over the abbey’s annual rent to the cathedral church.78 In the presence of these six officials—​the bishop of Chartres,

77 78

Saint-​Corneille and Saint-​Etienne of Châlons, in the presence of Matthew of Albano, but there is no evidence the case was delegated by the pope, Honorius ii (puf n.F., vol. 7, ed. Lohrmann, no. 34, pp. 276–​77). K. Nörr, ‘Institutional Foundations of the New Jurisprudence’, in R. Benson and G. Constable, with C. Lanham (eds.), Renaissance and Renewal in the Twelfth Century, Medieval Academy Reprints for Teaching, 26 (Cambridge, MA, 1982), 324–​38, at 333. The details that follow appear in two documents: a letter of the capitular officials of Reims to Innocent announcing the outcome of the settlement (pun, vol. 2, no. 27, pp. 121–​22), and a notice in a pancarte for Saint-​Remi confirmed by Pope Eugenius iii on 14 December 1145 (JL 8800; printed in P. Varin (ed.), Archives administratives de la ville de Reims: Collection de pièces inédites pouvant servir à l’histoire des institutions dans l’intérieur de la cité, vol. 1/​1 [Paris, 1839], no. 88, pp. 311–​14, at p. 312). The date of the case has been variously given in the sources which have noted it (including, in addition to the two above, AJ, no. 99, p. 62, where it is assigned to ‘1131 (October)–​1139, before 13 January’). The terminus ante quem may be established by the consecration of Alberic, the schoolmaster and archdeacon of Reims, as archbishop of Bourges, between 12 May and 3 August 1136; the terminus a quo by the October 1131 council of Reims, when Innocent appointed Geoffrey of Chartres legate for the provinces of Bordeaux, Bourges, Dol and Tours. Circumstantial

42 Ott Josselin of Soissons, Geoffrey of Châlons, Alvisius of Arras, Bernard of Clairvaux and Abbot Hugh of Pontigny—​and the cathedral chapter of Reims, the archbishop and abbey agreed ‘cum bona et libera voluntate’ that Saint-​Remi would render five measures of grain each year to the archbishop from the minaticum, or grain-​tax, it received on the bourg of Saint-​Remi.79 The dignitaries of the cathedral chapter, including (again) the schoolmaster Alberic, were apparently entrusted with conveying the decision to Innocent and implored him to uphold the agreement. The compositio between the archbishop and abbey confirms several tendencies we have already observed. First, the presence of four bishops and two abbots as judges, along with the canons of Reims, suggests that the case was aired in a provincial synod or similar assembly, as had been true of the other two disputes, and like those cases had sought an amicable resolution.80 In addition, the selection of a large panel of six judges is consistent with other local and papally-​mandated judicatory practices at the same time.81 Several important details about the tax dispute at Reims point to developing practices in provincial dispute resolution. Most importantly, we can see the early formation of the cadre of episcopal judges later responsible for resolving litigation in the province until mid-​century, namely the ordinaries of Soissons, Arras and Châlons. Hugh, the future bishop of Auxerre, was for the first time associated with Josselin and the other prelates as a judge-​delegate, and it seems probable that on the basis of this case, a good working relationship between Hugh and Josselin, and Bernard’s confidence in them, along with their competence as

79

80 81

evidence points to 1136. Ramackers suggested a date of ‘1136–​37’ based on the fact that the letter of the canons appears in a manuscript (N. van Werveke [ed.], Catalogue descriptif des manuscrits de la bibliothèque de Luxembourg [Luxembourg, 1894], no. 6, p. 118) among other material dated to the years 1136–​38 (in fact, the material dates to the period between early 1136, prior to the election of Nicholas of Mons as bishop of Cambrai, and early 1139, following the death of Archbishop Renaud in January of that year). pun, vol. 2, no.  27, p.  122. On the term minaticum, see J.  Niermeyer (ed.), Mediae Latinitatis Lexicon Minus (Leiden, 1997), s.v. ‘minagium’; see also J. Hessels, ‘Memoranda on Mediaeval Latin, No. 3: Polyptychum of the Abbey of Saint-​Remi at Rheims, A.D. 848–​861’, Transactions of the Philological Society, 1899–​1902 (London, 1902), 553–​650, at 638. The abbess of Origny claimed in her charter, ‘paci consultum esse volens et consulere’, see Haigneré (ed.), Les chartes de Saint-​Bertin, no. 170, p. 70. Innocent appointed seven judges to hear the aforementioned 1131 case between Saint-​ Denis and Saint-​Michel of Verdun (above, n. 46), and four episcopal judges to hear a complaint between Alvisius of Arras and Walter, the abbot of Saint-​Vaast (1138; JL 7904). On the latter, see rhgf, 393–​94; AJ, no. 91, pp. 57–​58. In a similar local case, from 4 October 1138, Josselin of Soissons and Hatto bishop of Troyes (the litigants) selected seven judges, a mix of one bishop, five abbots and an ordinary monk, to resolve a dispute between them over their diocesan boundaries; AJ, no. 105, pp. 60–​61. See also below.

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judges, was firmly established.82 The judges’ decision was later recorded in the abbey’s cartularies, thereby entering the authoritative and permanent record of Saint-​Remi’s possessions and privileges, and was reproduced in Eugenius’ 1145 pancarte for the abbey. Each of the judges is listed there by name, and their judgement is accorded the same status as ordinary donations, privileges and confirmations.83 This rapid survey of the evidence of provincial and diocesan practices of dispute resolution thus argues strongly for procedural continuities between locally adjudicated and later papally-​delegated suits. Continuity of procedure also extended to the final portion of the judgement, the announcement of the judges’ decision, read aloud during the synod.84

The Advent and Evolution of Routine Delegation in the Province of Reims

At the same time as the case between Origny and Saint-​Bertin was being worked out, the opening years of the 1130s—​prior to the dissemination of Gratian’s Decretum in northern France—​witnessed Innocent ii’s initial employment of judges-​delegate in the province of Reims and elsewhere, followed by a general suspension of their use that lasted until the end of the same decade.85 82

83 84 85

This hypothesis is confirmed by the fact that Hugh and Geoffrey of Châlons, mandated by Innocent to judge a case in 1139 (JL 8050) between Abbess Risende of Faremoutiers and the bishop of Meaux, sub-​delegated Josselin and three abbots to assist them. See AJ, no. 111, pp. 68–​69. On the presence of Bernard of Clairvaux, see below. Varin (ed.), Archives administratives, no. 48, p. 312. A second, later judgement by Milo of Thérouanne and Josselin of Soissons is also recorded (Ibid., 313; Uruszczak, ‘Les juges délégués’, 34 n. 49). For example, aet, no. 93, p. 136 (1169–​72). Sayers, Papal Judges Delegate, 6–​10; Brundage, Medieval Origins of the Legal Profession, 106–​09, 130; Uruszczak, ‘Les juges délégués’, 29–​30; Müller, Päpstliche Delegationsgerichtsbarkeit, vol. 1, 36. Innocent’s earliest delegated case involving churchmen from the province occurred during his general council at Reims in November 1131. At that time he mandated a mixed group of prelates, including Josselin of Soissons, Renaud of Reims, his legate Matthew of Albano, and the archdeacon and provost Simon of Amiens, to resolve a dispute between Suger and the abbey of Saint-​Denis and Lanzo and the monks of Saint-​ Michel of Verdun over the villa of Salonne on the Meuse River. See JL no. 7502, p. 852; PL, vol. 179, col. 111–​12; AJ, no. 36, p. 25. On the distribution of the Decretum’s recensions in France, see the manuscript groupings presented at the Repertorium Iuris Canonici website (https://​sites.google.com/​site/​repertoriumiuriscanonici/​home/​gratian); and S.  Kuttner, Repertorium der Kanonistik (1140–​1234) (Vatican City, 1937), 168–​208. I would like to thank Dr. Melodie Eichbauer for her suggestions and references.

44 Ott Two correlated conditions may explain delegation’s attenuated beginnings and later resumption. First, from the moment of his election in February 1130, Innocent found himself in a pitched contest against a rival pope, Anacletus (Peter Pierleone), for support within Europe. Prevented from entering Rome by Anacletus’ supporters, Innocent—​with the exception of a few months in 1133 when he was briefly installed by the Emperor Lothar—​did not reside in St Peter’s see until late in 1137.86 His presence in 1131 in northern France, Burgundy and Lorraine, where he was widely supported, and the indication that he delegated cases during that time to prelates from those regions, suggests Innocent’s willingness to flex his jurisdictional muscles and (as a corollary benefit) make the case for his legitimacy as St Peter’s heir. The second factor was his close connection to Bernard of Clairvaux, which was cemented during his fight against Anacletus. Bernard accompanied Innocent ii during his travels through France, Germany and Italy in 1130–​32, lobbying tirelessly on his behalf.87 During this time, Innocent delegated at least two cases—​among his earliest—​in which Bernard assumed a role.88 Anne Duggan has recently called attention to the degree to which Innocent ii’s reign witnessed the flowering of legal cultures and practices at the curia, especially an emphasis on ‘lawful conduct and due process’.89 The pope’s growing reliance on delegation in the late 1130s and early 1140s paralleled the developing practice within the Cistercian, Premonstratensian and other monastic orders of legislating and resolving internal complaints at regular meetings of their general chapters. The meeting of general chapters commenced from about 1130, and the earliest statutes date from, in the case of Cîteaux, 1133 or 1134, and in the case of Prémontré, to between 1135 and 1143.90 The Benedictine 86 87 88

89 90

See M.  Stroll, The Jewish Pope. Ideology and Politics in the Papal Schism of 1130 (Leiden, 1987), xv; F.-​J. Schmale, Studien zum Schisma des Jahres 1130 (Cologne-​Graz, 1961), 220–​32. Innocent resided for most of 1133–​37 in Pisa. Stroll, The Jewish Pope, 68, 92–​93, 96–​99; Schmale, Studien zum Schisma, 221, 225; Seibert, ‘Autorität und Funktion’. The cases were delegated to the bishop of Langres and Stephen Harding, the abbot of Cîteaux, respectively, who involved Bernard in their adjudication: PL, vol. 179, col. 70 (3 December 1130) and PL, vol. 179, col. 118 (30 December 1131); PL, vol. 179, col. 112 (4 November 1131) and col. 125 (12 February 1132). See J. Sayers, ‘The Judicial Activities of the General Chapters’, JEH, 15 (1964), 18–​32 (part one) and 168–​85 (part two), at 170; Duggan, ‘Jura sua unicuique tribuat’, 288. Bernard’s interest in serving as a judge appears to have waned quickly, and he grew to dislike the widening presence of lawyers at the curia, for which see Brundage, Medieval Origins of the Legal Profession, 133–​35. Duggan, ‘Jura sua unicuique tribuat’, 296. Sayers, ‘Judicial Activities’, 20–​24; and now S.  Vanderputten, ‘The First “General Chapter” of Benedictine Abbots (1131) Reconsidered’, JEH, 66/​4 (2015), 715–​34, esp. 724, 728–​31. The periodisation of the earliest documents of both Cîteaux and Prémontré has been

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abbots of the province of Reims began holding annual assemblies in 1131 and also composed governing statutes, while the abbey and priories of Cluny held general chapters beginning in 1132.91 While there is no evidence for a causal relationship between collective monastic self-​governance and the rise of delegated adjudication, the concurrence of regular papal delegation with the emergence of general chapters to administer disputes within monastic orders offers a compelling correlation, particularly in light of the fact that the cases papal judges heard were overwhelmingly between monastic litigants, and given that Bernard of Clairvaux was called to judge several early cases. One is tempted to wonder if the growing papal use of judges-​delegate was aimed in part at shifting judicial oversight away from the monastic orders and more firmly into Rome’s orbit. In any case, from 1138 forward, the appointment of judges-​delegate in the province became increasingly routine. Several facets of delegation in this period from 1138–​60, which comprise the last years of Innocent ii’s pontificate (to 1143) and those of his successors Celestine ii, Lucius iii, Eugenius iii, Anastasius iv and Adrian iv, merit further scrutiny.92 The first concerns the delegates’ case-​load, and specifically the geographical range they were called upon to cover and the distribution of claimants. Here, the activities of Josselin of Soissons and Hugh of Auxerre, who were often partnered in church business, furnish a useful focal point. Another element of delegation to consider is the ongoing role in litigated cases of papal legates based in northern France. Legates heard a significant number of cases and complaints in this period, which suggests that papal reliance on local judges was far from total; indeed, local judges often worked alongside the legates, which, I will argue, suggests that popes conceived of judges as having a regional competency rather than a strictly diocesan or provincial one.

91 92

vexed. I have followed the dating and edition of the Cistercian Capitula established by C. Waddell (ed.), Narrative and Legislative Texts from Early Cîteaux (Cîteaux, 1999), 167–​75, 183–​84, and that of P. Lefèvre and W. Grauwen (eds.), Les statuts de Prémontré au milieu du XIIe siècle (Averbode, 1978), xxiii, for the different recensions of the statutes of Prémontré, which, in any case, were in place in the second quarter of the twelfth century. S. Vanderputten, ‘The Statutes of the Earliest General Chapters of Benedictine Abbots (1131-​Early 1140s)’, The Journal of Medieval Monastic Studies, 5 (2016), 61–​91, at 71–​72. It also marks the period leading to the pontificate of Alexander iii, who came to rely heavily on Archbishop Henry of France (1162–​75), brother to King Louis vii (Alexander iii’s protector). Alexander delegated to Henry dozens of cases and mandated him to carry out an equally impressive number of decisions rendered by the papal court. See Falkenstein, ‘Appellationen an den Papst’. For the growing use of delegation under Innocent ii, see Duggan, ‘Jura sua unicuique tribuat’, 287.

46 Ott The wide geographical range of cases judges-​delegate were called upon to adjudicate is evident in the work of Hugh and Josselin. Before they judged together, the men had already earned reputations outside their dioceses and provinces for their skill in mediation. Josselin, for example, sat with the bishop of Paris in 1130 to resolve a dispute between the bishop of Meaux and two local nobles over minting rights in that city.93 The bishop of Soissons again became involved at Meaux in 1139, this time as a judge in a case delegated to Hugh and Geoffrey of Châlons between Abbess Risende of Faremoutiers and the bishop, Manasses, concerning oversight of the priest who served the abbey.94 Hugh and Josselin next acted together in a judicial capacity at Innocent’s request a few years later, when they were sent by him to investigate an accusation against Raoul, the abbot of Lagny in the diocese of Paris, that he had squandered the abbey’s property.95 This was followed a year later by a delegation from Pope Celestine ii, who asked them to assist Thibaud, the bishop of Paris, in resolving a dispute between Saint-​Victor and Saint-​Martin-​des-​Champs that had been appealed to Rome concerning the annates of a disputed prebend. The bishops heard this case at Froidfontaine, on the road between Paris and Sens, in March 1144, apparently during the colloquium between Louis vii and the count of Champagne over ending their long-​running feud.96 By the late 1140s, the prestige of the bishops of Soissons and Auxerre was such that they were requested to arbitrate disputed elections in the chapters of Paris (1147) and Arras (1148).97 Suger of Saint-​Denis provided a common link between the judges and Rome; 93 94 95

96

97

AJ, no. 30, pp. 22–​23 (c.1130). The charter is reprinted in E. Martène and U. Durand (eds.), Veterum scriptorum et monumentorum historicum, dogmaticorum, moralium, amplissima collectio (Paris, 1724), vol. 1, 696–​97. See above, n. 82. AJ, no. 126, p. 77; JL 8270; and alluded to in Bernard of Clairvaux, Epistolae, in Sancti Bernardi Opera, viii: Corpus Epistolarum I., 181–​310, eds. J. Leclercq and H. Rochais (Rome, 1977), no. 231, pp. 101–​3; Letters of St Bernard of Clairvaux, trans. James, no. 310, pp. 380–​81 (letter to the papal legates of Ostia, Tusculum and Praeneste, dated between June 1142 and September 1143). The same bishops had, about the same time (in 1143), interceded on behalf of the abbey of Longpont to secure a donation from the bishop of Senlis. See: AJ, no. 157, p. 95; with an edition of the charter in J.-​B. de Machaut, Histoire du B. Iean, seigneur de Montmirel et d’Oysi, chastelain de Cambray, Vicomte de Meaux, etc. (Paris, 1641), 511–​12. puf n.F., vol. 8, eds. D. Lohrmann and G. Teske, no. 21, pp. 181–​83; no. 22, pp. 183–​84; no. 24, pp.  185–​86; AJ, no.  158, p.  95. Pope Celestine having died in the meantime, their decision was confirmed by Pope Lucius on 23 May 1144 (JL 8624) and again on 3 December (JL 8671). Samson, the archbishop of Reims, was also present and witnessed the bishops’ charter, as was Bernard, the archdeacon and magister of Paris. At Paris: Suger, Oeuvres, ed. Gasparri, vol. 2, no. 2, pp. 4–​13, at 11–​12; AJ, no. 199, pp. 114–​15. At Arras: AJ, no. 205, pp. 118–​19; JL 9306; rhgf, 452; PL, vol. 186, col. 1382 (no. 62).

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he was associated with the affairs of both elections and clearly saw the best chance for a successful outcome as residing with the two prelates, a sentiment no doubt shared by Eugenius iii. The diocese of Meaux lay adjacent to Soissons, so while it was a suffragan see of Sens, it is not surprising that Josselin should be involved in dispute resolution there. He was on good terms with its bishops and was a close friend of Suger of Saint-​Denis, who called upon him repeatedly in political matters. Both Josselin and Hugh were summoned to resolve conflicts further afield, however. In 1145 Lucius ii delegated Josselin, along with the bishops of Bordeaux, Chartres, Poitiers and Saintes, to bring to close a lingering and costly suit between the abbess of Fontevraud and Ulger, bishop of Angers.98 The case was only finally settled in 1149, following Ulger’s death; by then, Josselin had removed himself—​or had been removed—​as judge and had been replaced by the archbishop of Tours.99 As for Hugh, in addition to his service as a judge in the aforementioned case between the abbey of Saint-​Remi and the archbishop of Reims, he was one of the monastic and lay mediators who restored peace between Louis vii and his chancellor Algrinus around 1140.100 He was similarly mandated by Eugenius iii with reconciling Louis and his brother Henry, the bishop of Beauvais, in 1151,101 and, a year earlier, with judging a conflict between the bishop of Autun (dioc. Lyon) and the abbot of Vézelay.102 In sum, the two bishops served a region stretching from Burgundy in the southeast to the western reaches of the Loire, and from the Parisian basin to Flanders. Judges from the province of Reims continued to be delegated extra-​provincial cases through the 1150s.103 This geographical breadth suggests that Pope Innocent and his successors saw the scope of Josselin and Hugh’s judicial circuit as somewhat akin to that 98 puf n.F., vol. 5, ed. J. Ramackers, no. 62, pp. 135–​36; JL 8332–​33, 8683; rghf, 419. See also AJ, no. 157, pp. 97–​98, for 1144 letter of Lucius. 99 J. de la Mainferme, Clypeus nascentis Font-​Ebraldensis ordinis contra priscos et novos ejus calumniators (new edn, Paris, 1688), vol. 2, 482–​84. 100 Historiae Francorum Scriptores, ab Hugone et Roberto regg. usque ad Philippi Augusti tempora, ed. A. Duchesne (Paris, 1641), vol. 4, 764, and see above, n. 39. In this capacity, Hugh worked alongside Suger and Bernard, together with Imar, abbot of Saint-​Jean of Montierneuf. 101 JL 9451–​54 (compare also 9457–​59); rhgf, 463–​65. Bernard of Clairvaux was again involved. 102 JL 9407–​10. 103 See, for example, JL 9889 (1 May 1154) and 9992 (bishops of Paris and Noyon hear a case involving the abbey of Savigny [dioc. Coutances] and the bishop and dean of Bayeux); JL 10348 (8 December 1156–​58; bishop of Beauvais assigned cases involving clergy from Auxerre).

48 Ott of legates; that is, as possessing a regional versus a strictly provincial scope to their activities. Indeed, a number of papal legates heard cases in the region during the same period that the bishops were active, and while their primary role was not judicial, their presence as witnesses in synodal judgements, their partnering with judges-​delegate, and their independent role in hearing complaints confirms that the line separating the activities of judges-​delegate and papal legates was in many respects informal.104 Between 1141–​45, three former French monks—​the legates Alberic of Ostia, Imar of Tusculum and Ivo of San Lorenzo in Damaso—​were active in the province, and during that time also rendered judgements in several cases.105 In the early 1160s, shortly after Alexander iii arrived in western France to weather the political storm produced by Frederick Barbarossa and his rival pope, Victor iv, the cardinal-​priests Henry of ss. Nereo and Achilleo and William of San Pietro in Vincoli, along with the cardinal-​deacon Otto of San Nicola in Carcere Tulliano, heard and resolved numerous cases in Flanders and Champagne.106 So, too, the popes, when they were present in France, judged cases. Innocent ii settled a complaint between the bishop of Beauvais and his vicarius over the hereditability of that office when the pope was in Compiègne in June 1131.107 And during Eugenius iii’s

104 Some figures, like Samson of Reims, assumed both titles. Samson’s legation lasted only as long as the pontificate of Adrian iv (1155–​59), who appointed him. See Janssen, Die päpstlichen Legaten, 166. 105 For Alberic, see above nn. 60–​61. Ivo held a council at Lagny in May 1142 to deal with Raoul of Vermandois’ repudiation of his legitimate wife and remarriage, and the bishops who had sanctioned it, during which he also heard one and possibly two complaints against Alvisius of Arras, by the abbeys of Saint-​Sépulcre of Cambrai and Marchiennes. See pun, vol. 2, nos. 39–​40, pp. 143–​45; ael, no. 216, p. 323 (bearing what must be an erroneous date of 1141); Vanderputten, ‘A Time of Great Confusion’, 70–​71. Imar issued two charters with Milo of Thérouanne in 1145 establishing peace, ‘justitia cogente’, between Hugh Candavène and the abbeys of Saint-​Bertin and Messines, respectively. See Haigneré (ed.), Les chartes de Saint-​Bertin, no. 194, p. 81; I. Diegerick (ed.), Inventaire analytique et chronologique des chartes et documents appartenant aux archives de l’ancienne abbaye de Messines (Bruges, 1876), no. 8, pp. 7–​8; Janssen, Die päpstlichen Legaten, 35–​51. 106 See pun, vol. 2, no. 92, pp. 223–​24 (May 1161, Saint-​Omer); puf n.F., vol. 3, ed. J. Ramackers, no. 47, pp. 102–​3; no. 48, pp. 103–​4; no. 49, pp. 105–​6; no. 51, p. 107 (1161, before September, all done at Arras); puf n.F., vol. 1, ed. H. Meinert, no. 83, p. 278 (‘1160–​1162’, probably 1160 or 1161; Châlons?); and the following note. Janssen, Die päpstlichen Legaten, 61–​78, at 63 and 72. In contrast to the legates active in the 1140s, all French, Henry, Otto and William were Italians, although Henry had resided at Clairvaux. 107 L.-​H. Labande, Histoire de Beauvais et de ses institutions communales jusqu’au commencement du XVe siècle (Paris, 1892), pièce justificative no. 7, pp. 264–​66.

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sojourn in 1147–​48, the bishop of Senlis concluded a compositio between the abbesses of Saint-​Paul of Beauvais and Yères (Paris) in the pope’s presence.108 The periodic legatine and papal presence in northern France and the occasional collaboration of curial officials and local bishops in judicial activities probably reinforced to contemporaries the reliability of delegation as a means of resolving disputes. Even more immediately, the oversight of judges who enjoyed strong reputations for rigour and fairness in their dioceses and provinces, and the use of judicial procedures familiar from synodal settings, undoubtedly had a role to play in facilitating the acceptance of delegation. The repeated mandates issued to Josselin, Hugh, Milo of Thérouanne and Geoffrey of Châlons vouches for litigants’ enthusiasm for their appointment and the bishops’ willingness to work as judges on Rome’s behalf beyond their home dioceses.109 Alvisius was a more controversial figure, but his credentials as a reformer were second to none. In any case, what made bishops like Josselin of Soissons and Hugh of Auxerre appealing as judges was not their grasp of legal technicalities, which the sources do not celebrate, but their reputations as peacemakers and lovers of justice. Episcopal charters repeatedly remind us that peace-​making was one of the bishop’s most important roles, and the compositio, which gave each party to the settlement something, was a litigated peace-​pact. An equally important outcome to the repeated use of certain judges-​delegate was that their collaboration over many years and many cases contributed to provincial episcopal solidarities. The bishops of Auxerre, Soissons, Thérouanne, Châlons and Reims can be found working together dozens of times between the mid-​1120s and 1160. Such close association inevitably contributed to a wider, regional episcopal identity that emphasised peace-​ making as one of the highest episcopal duties and a collective form of labour on behalf of the church.110 108

puf n.F., vol. 7, ed. Lohrmann, no. 69, pp. 329–​30. The range of dates assigned by Lohrmann for the bishop’s diploma (April 1147–​51) can probably be restricted to April 1147–​ May 1148, when Eugenius was in France, given the presence among the witnesses of several clergy from Senlis and the abbot of Cercamp (although it is not impossible that they all also went to Rome). Another example dates to 1163, when the abbess of Etrun approached Alexander iii in Paris with complaints about the abbot of Saint-​Vaast; the pope mandated the case to his cardinals, Otto of San Nicola, Boso cardinal-​deacon of SS. Cosmas and Damian, and Walter cardinal-​bishop of Albano, with input from the archdeacons of Arras, the magistri Frumaud and Clarembaud. See puf n.F., vol. 3, ed. Ramackers, no. 52, pp. 108–​9 (and see JL 10849) (1162–​63, before 13 April; at Paris). 109 A charge that Bartholomew, bishop of Laon, refused; see Müller, ‘Der Bericht des Abtes Hariulf’, 112. 1 10 This is an argument I have recently made elsewhere; Ott, Bishops, Authority and Community, chap. 8.

50 Ott As Charles Duggan and others have pointed out, the spread of delegation in western Europe reflected a growing demand ‘for clarity, authority and consistency’ in the application of the law and the process of judgement itself.111 These desiderata could be met in the persons of judges who routinely heard complaints together and presumably could be expected to rule with consistency from case to case. Indeed, during the period under consideration here, personal knowledge of and confidence in one’s judges, and a willingness to accept their authority, mattered at least as much, and probably more than, concerns about their legal acumen and training. It is therefore likely that the settlement of appeals to Rome by delegated justices took hold in part because, in the province of Reims at least, the judges so delegated enjoyed a degree of prestige among litigants. The ‘new law’, then, took root because it was grafted onto the old stock of diocesan custom, consensus and episcopal peace-​making. 111 Duggan, ‘Papal Judges Delegate’, 194.

Chapter 2

History, Politics and Canon Law: The Resignation of Archbishop Eskil of Lund Mia Münster-​Swendsen Archbishop Eskil was leader of the Danish church for almost half a century, and although he is one of the individuals from twelfth-​century Denmark we know the most about and who left the most traces, not least in the extant charter material, he remains one of the least studied. There is no scholarly biography of Eskil, who has been lingering in the historiographical shade of his successor, Absalon. The truism that history is written by the victors is appropriate here. The politics of memory and forgetting is their prerogative and in the case of twelfth-​century Denmark, the winning party made sure that their version of events would be the one remembered in the future, woven into the first complete history of the Danish realm from its legendary beginnings to the contemporary present (1187), the Gesta Danorum of Saxo Grammaticus. Born at the beginning of the century, into the powerful Thrugotsen family, Eskil seems to have been destined for an ecclesiastical career from early on. He studied abroad, in Hildesheim among other places, became bishop of Roskilde in 1134, succeeded his uncle Asser as archbishop of Lund in 1137 and thus leader of the Danish church, primate of Sweden and, later, served as a papal legate.1 He managed to hold on to the archiepiscopacy through four extremely tumultuous decades, through a seven-​year exile due to his clash with the king, while continuously navigating a political maelstrom of dynastic wars and rebellions, until he finally renounced his position in 1177. Shortly thereafter, Eskil left for

1 According to Michael H. Gelting, Eskil was not the original candidate in 1137—​that was Rico of Schleswig. Moreover, the archiepiscopal see had been momentarily abolished and was only recreated with Eskil’s consecration. See M. Gelting, ‘Da Eskil ville være ærkebiskop af Roskilde:  Roskildekrøniken, Liber daticus Lundensis og det danske ærkesædes ophævelse 1133–​1138/​When Eskil wanted to be Archbishop of Roskilde, Liber daticus Lundensis and the Abolition of the Danish Archiepiscopal See 1133–​1138’, in P. Carelli, L. Hermanson and H.  Sanders (eds.), Ett annat 1100–​tal:  Individ, kollektiv och kulturella mönster i medeltidens Danmark/​Another Twelfth Century: Individuals, Collectives and Cultural Patterns in Medieval Denmark (Gothenburg, 2004), 181–​229.

© Koninklijke Brill NV, Leiden, 2019 | DOI:10.1163/​9 789004387249_​0 04

52 Münster-Swendsen France where he died circa five years later at Clairvaux.2 During his long life and tenure, he founded numerous monastic institutions, introduced new religious orders to Denmark, tried to reform church law and created the impressive network of friends among the great prelates and intellectuals of his day, notably drawing on the circles of Pope Alexander iii and Archbishop and later St Thomas Becket, with whom he shared his northern French exile in the 1160s. The case of Eskil’s resignation is interesting from a variety of perspectives. In a canon law context, it brought about the papal letter that entered into the decretal collections, which were later to form the backbone of the Liber Extra, and thus set the norms for handling cases of resignation or abdication of prelates until the twentieth century—​that is, until the Codex Iuris Canonici of 1917 stipulated seventy-​five years as the resignation age for bishops. From the perspective of Danish political history, the event marked a turning point since it finally cemented the rule of the Valdemarian dynasty and made manifest the fall of its greatest adversaries. The series of conflicts, political and ecclesiastical, between the two parties erupted again and again during the latter half of the twelfth century.3 In these upheavals Eskil himself or his closest relatives and associates played central roles. That Eskil was a troublemaker was demonstrated early on when in 1134, as bishop of Roskilde and together with a co-​conspirator, the nobleman Peter Bodilsen, he instigated a rebellion on Zealand that momentarily succeeded in ousting the king, Eric Emune from the island. On becoming archbishop after his uncle Asser in 1137, Eskil launched himself in a new and more precarious role:  that of ecclesiastical reformer and

2 The Cistercian narrative sources are among the most important if we want to form a picture of the man himself, as seen and remembered by his friends. See for example Gaufridus’ description and the appended letter from Bernard to Eskil in Vita S. Bernardi, PL, vol. 185, col. 321D–​51A. Another Cistercian monk, Heribert, gave an account which is edited in L. Weibull, ‘En samtida berättelse från Clairvaux om ärkebiskop Eskil af Lund/​A Contemporary Report from Clairvaux on Archbishop Eskil of Lund’, Scandia, 4/​2 (1931), 270–​90. There is still no reliable edition of Heribert’s work, but the exempla are recorded in Conrad of Eberbach’s Exordium magnum Cisterciense sive Narratio de initio Cisterciensis ordinis, ed. B. Griesser, cccm, 138 (Turnhout, 1997). On Eskil’s close relationship with the Cistercians and his friendship with Bernard of Clairvaux, see J. France, ‘St Bernard, Archbishop Eskil, and the Danish Cistercians’, Citeaux: Revue d’histoire Cistercienne, 39 (1988), 232–​47, and B. McGuire, The Cistercians in Denmark (Kalamazoo, 1982), 38–​40. 3 I have opted not to use terms such as family, kin-​group or clan, when describing these opposing group formations, which comprise both kinsmen (and women), friends and other socii. Instead I use terms such as party or collective—​‘the Valdemarian dynasty’ refer directly to the royal line that established itself from the so-​called ‘Hvide’ family during the twelfth century.

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champion of the libertas ecclesiae in opposition to the king. In many ways, his struggles bear similarities to those of Archbishop Thomas Becket and his troubles with King Henry ii. Like elsewhere, ecclesiastical and dynastic politics were virtually inextricable in twelfth-​century Denmark. Thus, Eskil’s struggle against the royal appointment of bishops may have had a more worldly element as well: preventing the highest positions in the church from falling into the hands of the competing party. Equally, his resistance to the sanctification of Cnut Lavard, Valdemar’s murdered father, may well have been both religiously and politically motivated. From 1146 to 1157 the Danish establishment was embroiled in a bloody conflict between three royal contenders, Sven, Cnut and Valdemar, out of which Valdemar eventually emerged triumphant as the sole survivor. In 1156 Eskil had been on his way from Rome, now carrying the title of papal legate and with a mission to ensure the independence of the Nordic churches from German imperial dominance. Yet the travelling archbishop was intercepted by ‘certain brigands’ in Burgundy and held for ransom. The culprits of this scandalous act were identified by the papal party as the emperor’s henchmen, which the Emperor denied. Thus while Eskil was languishing in prison, and the bitter struggle between pope and emperor was rekindled, power shifted dramatically in Denmark. Therefore, when the archbishop eventually returned c.1158, it was to a completely new political situation. In 1159, Pope Adrian iv, formerly Nicholas Breakspear, papal legate to the Nordic countries, died and the ensuring election resulted in schism. There the Danish king and his right-​hand man, Absalon, now royally appointed bishop of Roskilde (confirmed 1158), opted for the imperial antipope, Victor iv, against Alexander iii. This further accentuated the conflict between Valdemar and Eskil, making the Archbishop’s position in Denmark so untenable that he had to flee the kingdom in 1161. In that same year, the King captured Eskil’s castle in North Zealand, Søborg, and made it a royal stronghold. The political machinations during these years are too complex to go into here, but as Valdemar consolidated his power in the archbishop’s absence, often brutally, the latter’s position and influence at home became reduced, even as his standing among his peers and companions abroad grew. When he eventually returned, it was under a certain pressure and probably due to a compromise between Alexander iii and Valdemar, as the latter shifted his allegiance and in what seems like a political deal received papal support for the canonization of his murdered father. Ordered back to Denmark, Eskil had no other option than to obey and, at Ringsted in 1170, to perform the solemn rites of the canonization of Cnut Lavard as well as the anointing of Valdemar’s son, also Cnut, as co-​regent, securing not only the dynastic succession but lending a whiff of sanctity to his main adversaries. That Eskil

54 Münster-Swendsen eventually complied was probably more due to the force of a papal order, and the threat to himself and his friends and relatives, than a change of heart in regard to the king. This appeasement bought him a few years of relative calm until the brewing conflict erupted again, and the scene would be set for the final humiliation of the greatest churchman of twelfth-​century Denmark. The resignation of Archbishop Eskil is one of the most detailed episodes of contemporary history in Saxo’s Gesta Danorum, and, moreover, an event hotly debated throughout the twentieth century by Scandinavian historians. This debate has never reached a conclusion and despite a sustained barrage of source-​criticism throughout the twentieth century, particularly from the brothers Curt and Lauritz Weibull, it is still almost unanimously the victors’ version of these particular events, based on Saxo’s colourful but biased narrative, that dominates historical scholarship. This can be summarised briefly:  Eskil resigned of his own free will and he had considered doing it for long, because he was old and in ill health and wanted to don the habit at Clairvaux—​a solemn promise made to his old friend Bernard of Clairvaux. Hence he wholeheartedly conceded the archiepiscopal see to Absalon, King Valdemar’s right-​hand man, with the unanimous support of all. Against this narrative, the present essay,4 which is situated in the intersection between the study of canon law, canonical procedure and political history, aims to present an alternative interpretation of the nature of Eskil’s resignation, which I shall contend was not at all voluntary. This includes a re-​evaluation of the rationale behind Saxo’s narrative of the event, particularly regarding his implicit and explicit allusions to contemporary canonical procedure, and not least, an attempt to reinterpret the letter of Pope Alexander iii regarding the Archbishop’s renunciation of his office.

4 Parts of the present article are based on an earlier, preliminary version, written in Danish for a Swedish festschrift a couple of years back: cf. M. Münster-​Swendsen, ‘Ærkebiskoppens endeligt: Et bidrag til udlægningen af sagen omkring Eskils resignation i 1177’, in A. Minara Ciardi and M. Berntson (eds.), Kyrklig rätt och kyrklig orätt—​Kyrkorättsliga perspektiv: Festskrift til Professor Bertil Nilsson, Bibliotheca Theologiae Practicae, 97 (Skellefteå, 2016), 339–​54. This version has been largely expanded and I have changed my opinion in several instances. I am particularly indebted to my colleague, Dr.  Danica Summerlin, with whom I  discussed the matter of the manuscript transmission of the decretal and who offered a treasure-​trove of invaluable suggestions and further references to clarify my argument regarding the role of Eskil and his friends in disseminating the letter. I would also like to express my gratitude to the helpful staff at the Biblioteca Apostolica Vaticana and at the École Française de Rome, as well as the Accademia di Danimarca who housed me during my research stay in March 2016.

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Alexander iii’s Decretal and the Short Redaction in the Liber Extra Why the compilers of the decretal collections chose this particular letter, from a case as dubious as this one, and through which intricate channels it ended up in the Liber Extra as the first decretal regarding the voluntary resignation of prelates (X 1.9.1 De renunciatione) await further study. For now, my hypothesis is that the Northern French intellectual and ecclesiastical circles had an important role to play, notably the Reims-​milieu and particularly Eskil’s close friend Peter of Celle, abbot of Saint-​Remi and later bishop of Chartres, who appears to have been involved in the making of the so-​called Collectio Brugensis, and that it was from here, probably through Eskil himself, that the letter came to be included in the early decretal collections.5 A Saint-​Remi manuscript of the Bruges Collection is today found in the Vatican Library (Vatican Ottobonianus lat. 3027). It was Stephan Kuttner who first called attention to this manuscript in 1937—​and it was thus unknown to Friedberg when he created his edition—​and the manuscript text of Alexander’s letter to Eskil (fol. 15r–​16v) differs slightly from it. The main difference, scribal errors apart, lies in the final sentence which is not found in the modern editions, and omitted in other early collections containing the decretal, except those of the Brugensis group. It reads: ‘Si enim autenticam cartulam non vid[erimus] ad exemplaria nichil facere possumus’ (fol. 16v) (In English: ‘If we do not get to see  an authentic document, we cannot do anything with the exemplars/​ copies’.) Judging from the textual context it might simply refer to the matter of how Eskil’s subsistence was to be provided for after his retirement, but this is a suggestion. For the purpose here, that extra sentence adds another dimension to the transmission story. One might hypothesise that it represents an earlier version of the letter, perhaps one that came directly from Eskil himself. The sentence, with its somewhat implicit or convoluted meaning that might

5 There is quite a bit of scholarship on this important collection. See particularly C. Duggan, ‘Decretal Collections from Gratian’s Decretum to the Compilationes antiquae’, in HMCL, 285; L. Falkenstein, ‘Die beiden Versionen der Litterae Alexanders iii. JL 12116 (1171–​1172)’, in P. Landau and J. Müller (eds.), Proceedings of the Ninth International Congress of Medieval Canon Law, Munich, 13–​18 July 1992, mic C, 10 (Vatican City, 1997), 185–​255 and L. Falkenstein, ‘Zur Entstehungsort und Redaktor des Collectio Brugensis’, in S. Chodorow (ed.), Proceedings of the Eighth International Congress on Medieval Canon Law, San Diego, 21–​27 August 1988, mic C, 9 (Vatican City, 1992), 140–​44; F. Dolbeau, ‘Un catalogue fragmentaire des manuscrits de Saint-​Remi de Reims au XIIIe siècle’, Recherches Augustiniennes, 22–​23 (1987/​88), 213–​43; W.  Holtzmann, ‘Über die vatikanische Handschrift der “Collectio Brugensis” (Ottob. lat. 3027)’, in Collectanea Vaticana in honorem Anselmi M. Card. Albaeda a Bibliotheca Apostolica edita, Studi e testi, 219 (Vatican City, 1962), 391–​414.

56 Münster-Swendsen distract from the main message, was omitted in later collections and from collections based on other versions of the letter, rather than Eskil’s own copy. It is quite possible that he carried a copy of the perhaps most important letter of his entire career with him as he left on his final journey. No matter what, it is intriguing that the extra sentence only appears in the manuscripts of the Brugensis group, which originate from the very milieus that Eskil frequented in person and where he was received after his resignation.6 Now, of course, a lot depends on precisely when one would date the Collectio Brugensis—​and whether this was based upon an even earlier collection, a preparatory draft, or similar. Walther Holtzmann was the first to conduct an analysis of the Vatican manuscript and he suggested that the collection was made in Reims, possibly at Saint-​Remi during the tenure of Eskil’s friend, Abbot Peter—​a hypothesis that was followed by later scholars. Following this, Ludwig Falkenstein claimed that the collection was created specifically for the use of papal judges-delegate around 1187–​91 and suggests that the main editor was Master Ralph of Sarre, Englishman by birth but member of the cathedral chapter of Reims.7 Ralph was one of Alexander iii’s close associates, expert in canon law and himself a Judges-delegate. He was a close friend of Eskil’s friends Peter of Celle and John of Salisbury.8 Thus the compilation, which contains a vast amount of decretals regarding to Reims and two directly relating to Eskil, was made in a milieu to which the Danish archbishop was intimately connected, by friends among whom he had spent most of his exile in the 1160s in the circle of Alexander iii. Reims remained a major hub for Danish ecclesiastics, not least during the long tenure of Archbishop William ‘of the White Hands’ (1176–​1202),9 and the formidable network that Eskil established was exploited by successive generations of clerics and bishop-​elects.10 However, as 6 7 8

9

10

The two other mss, Bruges, Bibliothèque de la Ville, 378 and 379, both have Northern French, Cistercian provenance. Falkenstein, ‘Zur Entstehungsort’, 133, 140–​44. There is some confusion between the two Englishmen called Ralph, Ralph of Sarre and Ralph Niger, who resided in Reims at the same time, whose intellectual backgrounds are suspiciously similar (both were jurisperiti, both had connections to Master Gérard of Pucelle)—​and who may therefore possibly be the same person (though Radulphus was a common name among learned Englishmen at the time). See J. Williams, ‘William of the Whitehands and Men of Letters’, in Anniversary Essays in Mediaeval History by Students of Charles Homer Haskins (Cambridge, MA, 1929), 365–​87; and L. Falkenstein, ‘Wilhelm vom Champagne, Elekt von Chartres (1164–​1168), Erzbischof von Sens (1168/​69–​1176), Erzbischof von Reims (1176–​1202), Legat des apostolischen Stuhles, im Spiegel päpstlicher Schreiben und Privilegien’, ZRG Kan. Abt, 20 (2003), 107–​284. On this ‘Franco-​Danish’ network, see M. Münster-​Swendsen, ‘Lost Chronicles or Elusive Informers:  Some Thoughts on Ralph Niger’s Reports on Twelfth-​Century Denmark’, in T.  Heebøll-​Holm, M.  Münster-​Swendsen and S.  Olsen Sønnesyn (eds.), Historical and

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Danica Summerlin made me aware, the letter cannot have entered the Liber Extra through the Brugensis group, which in this regard was a dead end. Yet it is found in other early collections, and these too have a northern French provenance. Among the manuscripts of these is the Paris, Bibliothèque nationale de France, lat. 14938 known as the Victorina prima,11 also from a milieu to which Eskil had close, personal connections. To summarise: The manuscripts that carry the letter stem universally from milieus where Eskil was well known, which he sought out both during his exile and after his resignation—​and the same milieus that would commemorate him with solemn masses annually: Saint-​Remi in Reims, the Victorines in Paris (both the abbeys of Saint-​Victor and Sainte-​Genevieve), and not least the Cistercians of Clairvaux. The letter probably entered the early French decretal collections when Eskil was still alive, possibly through his direct agency. Though the Brugensis collection, with the extra sentence, turned out to be a dead-​end transmission-​wise, the letter had already spread via other channels, through the close-​knit network of the Northern French intellectual-​ecclesiastical circles. These collections then influenced the Bambergensis group and via these, it reached Bernard of Pavia’s Compilatio Prima (between 1187–​91) and it was from this, that it found its way into the Liber Extra.12 The letter we read today in the modern editions is not the same that a medieval canonist would have seen, not just because of the missing last sentence. And this banal fact might have given rise to some misunderstandings among scholars regarding what the letter actually says, that is what it stated at the time of its application in Eskil’s case, and how it was redacted and used later when it became canonical through its inclusion in the Liber Extra. Alexander’s letter to the archbishop of Lund was edited by Friedberg in the Corpus iuris canonici in its entirety, though the Liber Extra only contained an excerpt, the middle part, which omits the specific, contingent details regarding the case and thus elevates the papal decision to a universally valid norm.13 Its meaning

11

12 13

Intellectual Culture in the Long Twelfth Century: The Scandinavian Connection (Toronto, 2016), 189–​210, here 190–​93. See the digitalised version here:  http://​gallica.bnf.fr/​ark:/​12148/​btv1b52000441k/​f1.image. It contains a selection of sermons of Innocent iii, material from Aristotle and other learned authorities, letters of Alexander iii and various Victorine materials, such as letters, sermons and minor tracts. It is loosely dated to the early 13th century. The other main Paris manuscript, BnF, lat. 1596 (http://​gallica.bnf.fr/​ark:/​12148/​btv1b90765069) contains a sermon collection, the canons of Lateran 1179 and letters of Alexander iii. Again, I am immensely thankful for the help of Danica Summerlin in establishing this proposed line of transmission. Friedberg’s edition was based on four late-​twelfth century decretal collections. See Gregory ix, Liber Extra, in Corpus iuris canonici, eds. E. Friedberg and E. Richter (rpt.

58 Münster-Swendsen changes quite a lot whether one reads the whole letter, based on the early collections as it appears in Friedberg and in the Diplomatarium Danicum, or only the excerpt of the Liber Extra, which is how later medieval canonists would have known it. The latter states: Yet if it is so, that considering your old age and your insufficient strength, and being old and weary, you demand to be relieved of your burden, as one who has served his time, you should know that we believe and hold it for certain, that in times like these it is more safe that the church that has been entrusted to you, is governed in the shadow of your name, rather than that it, in this time of peril, is handed over to be governed by some other new and unknown person. This not least because in you the vigour of devotion and faith does not falter, though the body ages; and even though the physical condition decline, the fervour of your spirit ascends towards the sublime. Consequently, that this sting of anguish shall not inflict a wound on that living love that we feel for you in our heart, we have thought it better to ask you, and to command and admonish you, that in days like these you do not trouble yourself further over this importunity [i.e. Eskil’s petition], since it is considered utterly unseemly, should the soldiers untie the sword belt before their adversaries in battle have yielded to the victorious.14

14

Graz, 1959], vol. 2, cols. 102–​3. The editors of the letter in the Diplomatarium Danicum (DD I. 3:1. no. 61, pp. 89–​91) consulted two other Paris manuscripts from the early thirteenth century, namely Paris, BnF, lat. 14938 (fol. 261r), which is mentioned above, and BnF, lat. 14876 (fol. 121), which is a collection of various materials in various hands, where it appears on a single folio inserted after a late medieval copy of the letters of Bernard of Clairvaux http://​gallica.bnf.fr/​ark:/​12148/​btv1b90671489/​f117.image. The provenance of the older parts of the manuscript appears to be the Abbey of St Victor in Paris (see fol. 122). For the manuscripts of the letter, see the card of the Walther Holtzmann Kartei here:  http://​www.kuttner-​institute.jura.uni-​muenchen.de/​kartei/​whr0709.gif [last consulted: 30.1.2017]. Gregory ix, Liber Extra, 1.9.1 (De renunciatione): ‘Si tuam aut senectutem aut insufficientiam forte considerans, te tanquam emeritum postulas relaxari: scito, nos credere [et pro certo tenere], quod tutius sit hoc tempore, si commissa tibi ecclesia sub umbra tui nominis gubernetur, quam si alteri novae incognitaeque personae gubernanda in tanto discrimine committatur, maxime quia in te vigor devotionis et fidei etiam corpore senescente non deficit, sed vergente deorsum conditione corporea fervor spiritus in sublimiora conscendit. [Ne igitur huius doloris aculeus vividam circa te nostri pectoris vulneret caritatem,] Monemus te igitur, ut super hoc diebus istis nulla te facias importunitate molestum, quia incedens [sic] omnino probatur, prius solvere militiae cingulum, quam cedat victori adversitas proeliorum’. The translation provided is my working translation. The parts printed in italics are not in the abbreviated Liber Extra version.

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This is a letter of rejection. It concerns the pope’s power to deny the resignation of a prelate who has asked to be freed of his duty, if it is detrimental to the utility and well-​being of the church. This interpretation is clear from the rubric in the Liber Extra.15 Cases of voluntary resignation were presumably rarer than the opposite which are plentiful, not least among the decretals of Innocent iii, namely those concerning forced removals of incompetent or unwanted individuals from their ecclesiastical positions. Thus the numerous letters of resignation contained in the collections mainly concern the means with which the Church could legitimately rid itself of an unsuitable prelate, not how a bishop could be ordered to stay in office against his expressed wishes.16 The majority of historians who have written about Eskil’s resignation and retirement have read the letter as stating the opposite:  that it clearly grants papal permission to resign and that all the pope’s misgivings are merely rhetorical flourish. This interpretation is understandable if one reads the whole letter as it was printed by Friedberg and in Diplomatarium Danicum. But even so, the message seems a good deal more ambiguous, because exactly what permission was Alexander iii granting? And does his apparent acceptance of the resignation constitute an exception—​a dispensation, rather than setting a norm? The first part of the letter states the pope’s profound displeasure at receiving a letter of supplication from Eskil asking papal consent to renounce his position. The pope deems it unseemly, untimely and inexpedient. In the concluding part (pars decisa) that comes after the middle part printed above, which rejected the demand, Alexander however opens up the possibility that

15 16

‘Non datur licentia cedendi episcopo, qui propter senectutem vult cedere, si necessaria vel utilis sit ecclesiae suae’. The abdication of clerics is generally referred to by the term renuntiatio. An important slightly later decretal regarding the refusal of requests to resign is the letter of Innocent iii of 1206 Nisi cum pridem, X 1.9.10 which lists six legitimate reasons to resign: crimes against one’s conscience, feebleness of body, loss of mind, irregularity of behaviour, grave scandal and malitia plebis. On Innocent iii’s abdication refusals, see A.  Boureau, ‘Une absence fondatrice. L’abdication dans l’Église latine, de François d’Assise à Célestin V et à Louis d’Anjou: 1220–​1296’, in A. Boureau and C. Péneau (eds.), Le Deuil du pouvoir: Essais sur l’abdication (Paris, 2013), 25. This anthology followed the seminal study of J. le Brun, Le Pouvoir d’abdiquer: Essai sur la déchéance volontaire (Paris, 2009), which mainly deals with cases from the early modern period. Most scholarship has focused on episcopal elections rather than abdications, but the surprising announcement of his resignation by Pope Benedict xvi on 11 February 2013 created a renewed interest in the subject. What concerned all legal and theological discussions of the matter throughout the Middle Ages and beyond was that abdicatio/​renunciatio was essentially a voluntary act, that had to be distinguished from a forced deposition. See le Brun, Le pouvoir d’abdiquer, 15–​17. In reality, the distinction often remained fluid.

60 Münster-Swendsen he might, against his own judgement, grant the recipient a special indulgence17 because of old friendship and then requires that, if he so wishes, Eskil may negotiate with the king as well as secular and ecclesiastical dignitaries to identify a suitable successor, the consecration of whom is entirely and solely within the pope’s jurisdiction. A bishop was indeed married to his church, accordingly a union for life, and the case was thus a direct parallel to cases regarding dispensations to divorce. Hence the excerpt that entered the Liber Extra should be read as rejecting the archbishop’s plea, which may well have been made under duress.18 However, the remainder of the letter opens the possibility of retirement at some point: Eskil was quite old and perhaps also physically weakened, though this may also simply be Saxo’s slander. We must remember that the old man managed to travel to France afterwards and lived for another five years. Thus, it reads: The pope does not think the requirements for granting the dispensation to retire are met—​yet. Alexander had very good reasons to seek to avoid that the embattled archiepiscopal see of Denmark would fall vacant and that renewed conflict would arise concerning the succession. It was crucial to maintain continuity and stability, not least in regard to a kingdom where the king had recently supported Alexander’s adversary Octavian/​Victor iv (1159–​ 64). The necessitas vel utilitas Ecclesiae required that Eskil stay in office with the pope willing to grant retirement eventually, but first work must be done to find a suitable successor. What finding a successor more precisely entailed is not entirely clear. Hence, in the full version of the letter, the ambiguity offers the possibility of several different readings—​even quite opposite ones. In the early decretal collections this version might function both as a model of letters granting retirement and denying it. In the Liber Extra, the main message is to stress that the pope is and remains the supreme judge in cases like this, and that only he has the power to grant retirement ‘if it is not detrimental to the wellbeing of the Church’—​which then overrules the causa iusta of the one wishing to retire (usually infirmitas—​whether due to illness or age). Alexander’s argument was 17

18

As J. Oskar Andersen noted in his critique of Weibull’s interpretation, the pope’s use of the word indulgemus is an indicator that his decision in this particular case is exceptional and that it dispenses from the norm. However, I do not agree with Andersen’s contention, that there had been several letters (all now lost) from Eskil that requested permission to resign and that the letter from Alexander iii should be dated back to 1175. See J. Oskar Andersen, ‘Ærkebispevalget i Lund 1177/​The Archiepiscopal Election in Lund 1177’, Scandia, 23/​1 (1955–​56), 111. Eskil’s letter to the pope is not extant. What it may have contained can only be assumed from the papal reply, which would habitually mirror the content of incoming pleas. To which degree Eskil’s resignation was voluntary will be discussed later.

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precisely that it was not only unseemly for a knight of Christ to lay down his arms before the battle had been won, but against the needs of his church in peril. Thus, the purpose of the decretal was to stress the power of the pope to force a prelate to remain in office against his will—​and thus implicitly also against the will of other, third parties—​a vengeful king or an ambitious adversary, for example. By denying Eskil his request, if it was made under duress, the pope was perhaps trying to help his old friend by buying him time to secure a suitable successor who would continue his works.

The Historical Narrative

As mentioned earlier, Saxo’s narrative of Eskil’s resignation and Absalon’s elevation to the archiepiscopal see is one of the most elaborate and detailed in the entire Gesta Danorum. The eminent Scanian historian Curt Weibull first drew attention to the problematic bias of this narrative in his D.Phil dissertation of 1915. Here he argued that Saxo’s description of the retirement procedure relied on two papal letters, one misread and the other forged, though without determining if these pieces of evidence were deliberately constructed by Saxo himself to suit his propagandistic purposes.19 He was followed closely in this by his older brother, Lauritz Weibull, both continuing to elaborate upon their critique to a point in which Saxo’s chronicle was losing all credibility as a historical source.20 The interpretation of the episode remained a hotly debated

19 20

C. Weibull, ‘Ärkebiskopsskiftet i Lund 1177/​The Change of Archbishop in Lund 1177’, Historisk tidskrift för Skåneland, 6 (1915), 259–​86. Note that Weibull use the word ‘skifte’–​’shift’ rather than ‘election’. Later scholars have argued against the Weibull brothers and in favour of Saxo’s account. See A. Helgesson, ‘Absalons val til ärkebiskop i Lund 1177/​Absalon’s Election as Archbishop of Lund’, in B. Benzow and E. Eidem (eds.), Studier tillägnade Magnus Pfannenstill den 10 januari 1923 (Lund, 1923), 317–​44. He was followed in his defence of Saxo by the Danish historian Hal Koch, see H. Koch, ‘Ærkebispevalget i Lund 1177/​The Archiepiscopal Election in Lund 1177’, Kirkehistoriske Samlinger, 6/​1 (1939), 241–​84. Koch’s critique of Weibull’s rejection of Saxo as a reliable source is followed by J. Andersen, ‘Ærkebispevalget’, 102–​14. Andersen´s argument rests on the contention that the feast in Ringsted 1170 really was the final truce between Eskil and the king and that the complete agreement between the former contenders was hereafter ‘an incontestable fact’ (Danish: ‘en kendsgærning’). Lauritz Weibull elaborated on his critique in yet two articles in the 1950s. See L. Weibull, ‘Saxo och ärkebiskopsskiftet i Lund 1177/​Saxo and the Change of Archbishops in Lund 1177’, Scandia, 22 (1954), 72–​93 and ‘Påven Alexander 3s brev om ärkebiskop Eskil av Lunds resignation/​ Pope Alexander iii s Letter regarding Archbishop Eskil’s Resignation’, Scandia, 23 (1956), 153–​60.

62 Münster-Swendsen subject among Scandinavian scholars, yet despite the Weibull brothers’ critique, the Saxonian version of the events still stands, with few corrections, in even the most recent historical treatments. Though I follow the Weibull brothers in much of their scepticism regarding Saxo’s account and its blatant bias, I do not reject it as a source of crucial information to understand what went on in 1177 and the context in which this should be seen. On the contrary, it shows just how sensitive Saxo and presumably also his audience whom he was evidently trying to convince of his version were when it came to matters of canonical procedure. To claim that Saxo was either ignorant of canon law or at least not particularly well-​versed in it, as J. Oskar Andersen contended, is to overlook completely the cleverness of the narrative which is spun precisely so the legal and ritual aspects of the case correspond with contemporary criteria of what was perceived as correct procedure.21 The purpose of Saxo’s hyper-​ detailed account was precisely to remove any existing doubt about the legitimacy of the whole affair and Saxo does indeed mention that serious doubts persisted, that there were murmurings. Saxo and the Valdemarian party he wrote for had to convince sceptics that not only was the resignation voluntary on Eskil’s part, the old archbishop had named as his successor the bishop of Roskilde, Absalon (c.1128–​1201), the king’s foster-​brother and member of the powerful ‘Hvide’-​collective—​the long-​standing adversaries of Eskil’s party. In a similarly detailed and legalistic manner, Saxo would describe a series of events that bear a connection to our resignation case, namely the trials against Magnus (in 1176 and again in 1178) and his associates, among them several of Eskil’s kinsmen, for conspiracy against the king.22 The case of Eskil’s resignation and Absalon’s elevation to the archiepiscopacy takes up the second half of Book 14 of the Gesta Danorum.23 In Saxo’s account of events, the abdication process begins with Eskil confiding to the king—​in secret—​that he wants to retire. The king first refuses this, with arguments that curiously resemble those in the papal letter, but is finally, albeit 21

22

23

In 1939 Hal Koch rejected the two Weibull-​brothers’ critique and was followed by J. Oskar Andersen in 1956 who contended that the ‘forged’ second letter was not a deliberate forgery—​but a ‘misunderstanding of the, regarding canon law, not very knowing chronicler’, Andersen, ‘Ærkebiskopsvalget’, 105. On Saxo’s version of these events, see L. Hermanson, ‘How to Legitimate Rebellion and Condemn Usurpation of the Crown: The Discourses of Fidelity and Treason in the Gesta Danorum of Saxo Grammaticus’, in K. Esmark et al. (eds.), Disputing Strategies in Medieval Scandinavia (Leiden, 2013), 107–​40. Saxo Grammaticus, Gesta Danorum [The History of the Danes], ed. K.  Friis-​Jensen and trans. P. Fischer (2 vols, Oxford, 2015), vol. 2, Bk.14, pp. 1421–​45. Book 14 is by far the longest and covers almost 1/​4 of the entire work.

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grudgingly, persuaded by Eskil’s pitiful pleading to be relieved of the burden of his office. These initial proceedings—​conveniently kept secret as Saxo stresses—​are meant to convince the sceptics that Eskil’s resignation was his own initiative and thus voluntary from the beginning. Firstly, Eskil calls an assembly where, to the great surprise of all summoned, he announces his plans to resign and then issues a call for a larger and more formal assembly of secular and ecclesiastical dignitaries—​a provincial synod—​where he will formally lay down his office and presents two letters from the pope concerning the resignation, which causes the audience to break down in tears. On top of this, Eskil invites Absalon to a private meeting about the resignation process. At this stage, Saxo is careful to paint a pathetic portrait of the archbishop as weak and pitiful old man obviously to underscore that he is no longer capable of fulfilling the requirements of his position. The synod takes place in the cathedral of St Lawrence in Lund with the participation of all the powerful of the realm, and here the king demands that Eskil swear on the relics in public that he has not made his decision under duress or due to any conflict with the king. The two papal letters are again read aloud and Eskil performs the solemn ritual of abdication: the placing of his ring and staff at the altar and the freeing of all who have obligations towards him. Regarding the choice of a successor, Eskil renounces the papal permission that he, as legate, was granted in the second letter but nevertheless proposes Absalon as a worthy candidate. The latter, however, refuses to accept the position. The whole procedure with the synod and the summonses, the time allocated between them, and the final ritual of abdication, appears to be wholly according to the norm and without any sign of controversy. Thus, according to Saxo. The two papal letters mentioned in Saxo’s description of the proceedings play a central role in the legitimisation of the case at its outcome. The first letter, which paraphrases Alexander iii’s original letter, grudgingly grants the archbishop permission to retire. Saxo is keen to stress that Eskil’s renunciation is entirely voluntary, and against the pope’s wishes. The other letter, more controversially, gives Eskil the right to name his successor ‘selecting whomever he wants’—​though in Saxo’s narrative, Eskil eventually refuses to use this power. Weibull claimed that Saxo deliberately introduced a forgery here, but it is entirely possible that Saxo based his ‘second letter’ upon the last, third part of the original papal letter, which ordered the archbishop to initiate the process of finding a successor. It only takes a slight tweaking of the message to make it appear that the pope granted Eskil, as papal legate, the right of provision. If Eskil’s resignation was involuntary, this was perhaps the ultimate humiliation. Despite the bias, Saxo’s narrative of the events might indeed bear some resemblance to the actual proceedings, even if the case was rigged from the

64 Münster-Swendsen beginning. By giving him sole responsibility for naming Absalon, one might say, that in a way, Eskil was granted the exquisite honour of commanding the firing-​squad of his own execution. Yet Absalon’s elevation to the archiepiscopacy too needed legitimising from the Valdemarian party’s doctor of historical spin. Saxo describes a series of chaotic and farcical scenes where Absalon attempts to escape being named candidate, while being assaulted physically by Eskil and his men, who tried to force him to accept the nomination. This is a classic topos surrounding episcopal elections. There was, however, one major obstacle to Absalon succeeding as archbishop of Lund: he was already bishop of Roskilde (from 1158) and had no intention of giving up this office. In the end, he only ceded it in 1192, when he had secured his kinsman Peter as successor. Absalon too was in need of a papal dispensation (for pluralism), which according to Saxo and to everyone’s astonishment he received. No such letter from Alexander iii has been discovered, if it ever existed.24

Uncles and Nephews

There is no reason to doubt that the letter found in the early decretal collections and edited by Friedberg is genuine. And given the fact that Alexander iii did commission Eskil with the task of initiating a process of finding his successor, did he get to name one? (That is, other than Absalon, who I doubt would have been Eskil’s choice.) Enter the Dean of Lund Cathedral, Asker, one of Eskil’s many nephews. Saxo mentions that initially, the king feared that Eskil would appoint Asker, but that the royal suspicion turned out to be unfounded and the old archbishop had no such plans.25 Yet there is a source that supports the hypothesis that Asker—​not Absalon—​was and remained Eskil’s chosen candidate: the so-​called Colbaz Annals. These were drawn up at Lund under Eskil and transferred to Colbaz in Pomerania in the late 1170s. Here one finds a marginal note for the otherwise empty (!) slot of the year 117726—​or rather, 24

25 26

It may be sheer coincidence, but it is interesting that among the canons of Fourth Lateran (1215), the constitutio (no. 29), concerning papal dispensation for pluralism, follows directly after the one regarding the resignation of prelates (no. 28), Constitutiones Concilii quarti Lateranensis una cum Commentariis glossatorum, ed. A. García y García, mic A, 2 (Vatican City, 1981). Saxo Grammaticus, Gesta danorum, vol. 2, Bk.14, 55.2, p. 1421. The king is described as mistrusting Eskil’s intentions, which contradicts the presumed harmony of their relationship after the reconciliation at Ringsted in 1170, postulated by Saxo and later historians. Pommersches Urkundenbuch, 1:2: Annalen und Abt-​Reihe des Klosters Colbatz, Todtenbuch und Abt-​Reihe des Klosters Neuencamp, Personen und Orts-​Register, ed. R. Prümers (Stettin, 1877), 483.

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found, since the note was erased some time shortly after Eskil’s dethronement. The nineteenth-​century editor, Rodgero Prümer, managed to read it by a chemical procedure that has now, unfortunately, made it illegible. According to Prümer it stated: ‘Asker successit, patruelis istius, papali consensus …’. (‘Asker, his nephew, succeeded him with papal consent …’.) Yet since Asker evidently did not succeed Eskil, with few exceptions historians have generally disregarded this source as irrelevant. It obviously is not.27 Eskil was simply following old practice, which made episcopal offices semi-​ hereditary. After all, Eskil himself had inherited the See of Lund from his uncle, Asser. And his adversaries from the Hvide-​collective continued this trend unabashedly. Acquiring the archiepiscopal seat of Lund for Absalon was the final step in cementing the dynastic power of Valdemar I and his successors and spelled the final eclipse of their most dangerous adversaries and contenders, the wide-​embracing network of Eskil’s kin and their associates. Asker might not have been a direct accomplice in the rebellion, but according to Saxo he knew about the coniuratio of 1176–​78 against the king, and consequently he had to testify at the trial that involved a number of Eskil’s other nephews. Like his uncle before him, he eventually had to escape abroad. We find him in exile during the 1180s, residing in Magdeburg at Archbishop Wichmann’s court, but after that he too, like most of Eskil’s named relatives, disappears completely from the pages of history. So was Eskil’s ‘resignation’ the final stage of a deliberate campaign to forcibly remove every single power-​holder from this extended familia, which had played such a dominant role in Danish politics and in the creation and expansion of the Danish church throughout the twelfth century, and erase and manipulate history and memory in order to minimise and, when possible, gloss over their achievements? Crucial for evaluating the case of Eskil’s resignation is whether it happened voluntarily and on his own initiative, unaffected by the grave circumstances surrounding his younger kinsmen, and that he, as stated, suggested Absalon as his successor. None of this is supported by the source 27

See A. Kristensen, Danmarks ældste annalistik—​Studier over lundensisk Annalskrivning i 12. og 13. århundrede/​The Oldest Annals of Denmark—​Studies in Lundensian Writing of Annals in the 12th–​13th Centuries (Copenhagen, 1969), 42–​43. Kristensen contends that ‘the note removes any trace of doubt about whom was Eskil’s candidate in 1177’ (Danmarks ældste annalistik, 43). Curt Weibull used the Colbaz-​note to shed further doubt on Saxo’s general credibility as an historical source, see C. Weiull, ‘Ärkebiskop Eskil och ärkebiskopsskiftet i Danmark år 1177’, Historisk Tidsskrift [Danmark], 81 (1981–​82), 177–​82. The Danish historian Niels Skyum-​Nielsen was aware of the source, but drew no conclusion from it in his influential, synthesising work, Kvinde og slave/​Woman and Slave from 1971 (pp. 200–​01).

66 Münster-Swendsen material, which, rather, reinforces the opposite conclusion. This interpretation is substantiated by four letters from Abbot Peter of Celle to Eskil and to members of the Danish establishment (Absalon and thus also King Valdemar) concerning the aftermath of the event. They express grave concerns for the safety of the former archbishop’s family and those to Absalon remind the new archbishop of his duty to remember and continue the excellent works of his predecessor, which is difficult not to read as a thinly veiled rebuke.28 These letters have largely—​and oddly—​been neglected in the prolonged debate between the historians. The deep worry expressed in the abbot’s letters, the biblical allusions to Antiochos’ tyrannical government of Israel (ii Maccabees), and his casting the resignation as a humiliation and a sacrifice imitating even the passion of Christ, is rather good evidence that Eskil’s resignation was not at all voluntary, that he had been under great pressure to abdicate, and that even his removal did not eventually guarantee the safety of his kinsmen and associates, perhaps it made them even more vulnerable. Conclusion Originally Eskil had no intention of resigning his office in 1177, though he may have planned to escape to his friends in France if open conflict with the king resurfaced, as he had done before. Neither did Pope Alexander iii have the intention of letting Eskil go, at least not immediately, nor showing himself as bowing too easily to the wishes of the Valdemarian party who had every reason to try to get rid of the archbishop, the final obstacle on their way to almost total domination. Yet the pope needed secular allies and had just ended the painful and protracted struggle with the German emperor; indeed the reconciliation between the two major powers took place in the very same year 1177 and there was no certainty that the truce would last. Alexander had no interest in stirring up new conflicts with his hard-​won allies among secular rulers, among them the Danish king who, as mentioned earlier, had originally supported Alexander’s opponent, the antipope Victor iv. Eventually, for the sake of necessity, sacrificing his friend Eskil by approving his successor from the opposing party was an unpleasant but acceptable price to pay for a compromise and

28

Edited in DD I. 3:1, diplomer 1170–​99: no. 65 (to Eskil 1177), pp. 97–​98; no. 73 (to Eskil c.1177–​ 80), pp. 106–​08; no. 81 (to Absalon, c.1178–​80, pleading for the safe-​conduct of Eskil’s relatives), pp. 123–​24; no. 88 (to Absalon c.11799/​80, reminding him of the formidable works of his predecessor), pp. 130–​31.

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Alexander iii excelled at compromises.29 He aimed towards securing future stability while Eskil’s losing party now belonged to the past as the archbishop himself in his ripe old age would soon do. And no one wanted another Thomas Becket—​the pope, presumably, least of all. What Eskil got from Alexander was a permission to initiate the process of identifying and suggesting a successor while consulting relevant people but not to start a formal electoral process yet, nothing in the letter suggests this, and neither does it confer special rights on the resigning archbishop as papal legate. Yet how the letter was read by Eskil or those in his surroundings is a different matter. What precisely lay within a bishop’s jurisdiction was not altogether clear on this point. Canonists continued to debate the limits of a bishop’s potestas and regalia in the thirteenth century, and here, in the late 1170s, we are still in the formative period of systematic canon law. It is therefore quite possible that Eskil regarded the selection of an episcopal successor to be within a retiring bishop’s power as Saxo appeared to do. Two sources, Saxo indirectly and the Colbaz Annals directly, mention Eskil’s preferred candidate: his nephew Asker. Ceding the right of provision might well have been one of Eskil’s terms of negotiation with the king along with a guarantee of safe conduct for his endangered kinsmen and associates. Contemporaries were suspicious of the whole affair. Absalon, not Asker, came to succeed Eskil and we only have the words of Saxo to testify that Eskil freely consented to this. Contrary to what earlier scholars have contended, it must be stressed that Saxo knew his canon law very well indeed and that his description of the resignation is an excellent testimony to this. His wording carefully places the procedure within the framework of canonical rules and vocabulary: the only irregularity is Eskil’s increasingly erratic behaviour. The weird and at times almost comical description of Absalon’s unwillingness to take up the position and his final election has its own idiosyncrasies, which would take another article to explain, but this too was made to fit the canonical requirements, to dispel any doubt about its legitimacy. Saxo was at pains to convince sceptics that the whole affair was conducted according to canonical rules, yet still he did not omit to mention rumours that Eskil was forcibly ousted from power, that he feared for the destinies of his rebellious kinsmen and associates and these statements alone should already have made us suspicious of the entire account.

29

See A. Duggan, ‘Master of the Decretals: A Reassessment of Alexander iii’s Contribution to Canon Law’, in P. Clarke and A. Duggan (eds.), Pope Alexander iii (1159–​81): The Art of Survival (Farnham-​Burlington, 2012), 366.

68 Münster-Swendsen What we do know is that Eskil, after having laid down the insignia of his office, travelled to his friends in France. His friend Peter of Celle tried to comfort him after what he describes as a humiliating downfall and the abbot of St Remi, soon to be bishop of Chartres, continued to express his worries about the fate of Eskil’s relatives and the conduct of his Danish friend’s successor. Absalon had barely been installed when in 1179 the province of Scania erupted in a major rebellion directed against the new archbishop’s rule and most likely spurred by Eskil’s kinsmen and allies.30 The seasoned rebel Eskil, who if not necessarily feeble then certainly old, had no wish to play martyr or put his friends and relatives in more jeopardy than they already were, and he may unwillingly have accepted the role that the new power-​elite had scripted for him. Alexander iii, probably equally conflict-​weary, had obligations to his old friend but could not afford to lose an important secular ally in the north. That canon law created a precedent from an originally rather fishy case like this, is one of the quirks of history. Yet it may have been cleverer than it immediately appears: in the early collections, the letter may have been chosen precisely because it was ambiguous, because it opened up possibilities to grant or to deny resignation in consideration of what, in a given context, was most opportune. The excerpted decretal makes it crystal clear: one may not only be forced to go—​but also to stay—​and the final decision in both cases rests with the pope alone: he and only he can dispense in matters like this. And there, perhaps, lies the real novelty. 30

The Scanian rebellion was recently re-​dated by M. Gelting, ‘Saxo in the Archives (Part 2)’, unpublished paper given at the symposium Saxo Grammaticus in the 21st Century, in Odense, 22 June 2015. That Eskil’s kin hailed from Jutland rests on the flimsiest of evidence. On the contrary, his and his kin-​group’s main interests—​landholdings as well as Eskil’s monastic foundations and donations were centred on the island of Zealand and the province of Scania (today southern Sweden).

Chapter 3

Law in Service of a Community: Property and Tithing Rights in Gratian’s Decretum and Stephen of Tournai’s Summa Melodie H. Eichbauer Introduction The interpretation of a particular law can vary by community, thus its prom­ ulgation and purpose remain of keen interest. Canon law in the Middle Ages was no different: as Martin Brett and Greta Austin have reminded us, it often­ times addressed local concerns. A bishop-​canonist, such as Ivo of Chartres or Burchard of Worms, engaged with and, in turn, helped to shape his commu­ nity.1 Brett and Austin, however, were writing about canon law prior to the rise of the university. With the schools at Bologna and Paris, for example, and Gratian’s Decretum as the textbook for canon law, it is worth considering the relationship between the teaching of law and the implementation of what was taught. Even if Gratian did not address every issue in canon law, he made great strides toward reconciling discrepancies and bringing concordance to areas of disconcordance. Students travelled to Bologna, received a common legal edu­ cation, and spread that training throughout Europe. These students, it should be remembered, continued with their careers when they returned home, ca­ reers which would involve them in local legal matters. Can the observations of Brett and Austin be extended into the twelfth cen­ tury? Despite a more formalised legal training with the Decretum’s success as a textbook, can we detect elements that reflect the environment in which canonists worked, the community they sought to serve? As an entry into this question, Stephen of Tournai makes for an interesting juxtaposition to Gratian. Having studied canon and Roman law at Bologna, Stephen taught law briefly at Bologna before returning to France in the 1160s. He compiled his influential 1 M. Brett, ‘Canon Law and Litigation:  The Century before Gratian’, in M.  Franklin and C. Harper-​Bill (eds.), Medieval Ecclesiastical Studies in Honour of Dorothy M. Owen (Wood­ bridge, 1995), 21–​40; G. Austin, ‘Bishops and Religious Law, 900–​1050’, in J. Ott and A. Trum­ bore Jones (eds.), The Bishop Reformed: Studies of Episcopal Power and Culture in the Central Middle Ages (Farnham-​Burlington, 2007), 41, 55–​56.

© Koninklijke Brill NV, Leiden, 2019 | DOI:10.1163/​9 789004387249_​0 05

70 Eichbauer Summa on Gratian’s Decretum c.1166 and very soon after served as abbot of the Victorine abbey of canons regular at Saint-​Euverte in Orléans from 1168 to 1176. He subsequently became the abbot of Sainte-​Geneviève in Paris from 1176 to 1192, also a Victorine abbey of regular canons. Having served as an abbot for over twenty years, he ended his career as bishop of Tournai from 1192 until his death in 1203.2 Gratian, on the other hand, taught at a time when the res­ toration and augmentation of episcopal authority were central concerns. He may have left the classroom in Bologna to end his career as a bishop.3 This es­ say will use litigation, property and tithing rights to explore Gratian’s concerns as he taught in the first half of the twelfth century and how Stephen adapted his studies at Bologna, which was based on the Decretum, to suit his circum­ stances in the latter half of the twelfth century.4

2 C. Vulliez, ‘Études sur la correspondance et la carrière d’Étienne d’Orléans dit de Tournai (d. 1203)’, in J. Longère (ed.), L’abbaye parisienne de Saint-​Victor au Moyen Âge. Communications présentées au XIIIe Colloque d’Humanisme médiéval de Paris (1986‒1988) (Turnhout, 1991), 195‒231. I would like to thank K. Pennington for sharing his essay ‘Étienne of Tournai’, which is to appear in a forthcoming volume entitled Famous French Jurists published by Cambridge University Press. 3 The historiographical tradition long held that Gratian was a Camaldolese monk at the monastery of Saints Felix and Nabor in Bologna until the work of John Noonan, Jr. Gratian, Noonan claimed, may not have been a monk but simply a magister at Bologna; see ‘Gratian Slept Here: The Changing Identity of the Father of the Systematic Study of Canon Law’, Traditio, 35 (1979): 145–​72. Regarding his assent to the episcopacy, Anders Winroth has argued that Gratian served as bishop of Chuisi from c.1143 to c.1145, and thus most likely had a short teaching career—​maybe teaching the Decretum only once. Kenneth Pennington, on the oth­ er hand, has argued that Gratian had a long teaching career, one that began between 1125 and 1130 and continued until c. 1140s. While he agrees that Gratian probably ended his career serving as bishop, he is less convinced that it was as bishop of Chuisi. See A. Winroth, ‘Where Gratian Slept:  The Life and Death of the Father of Canon Law’, ZRG Kan. Abt., 99 (2013), 105–​28; K. Pennington, ‘The Biography of Gratian, The Father of Canon Law’, Villanova Law Review, 59/​4 (2014), 679–​706. 4 An early draft of this paper was given at the XV International Congress of Medieval Canon Law, University Panthéon-​Assas (Paris II), 17–​23 July 2016. Following Pennington’s lead (see ‘Gratian and the Jews’, BMCL, 31 [2014], 112–​13), I will use simplified vocabulary to reference the complexities of the Decretum’s evolution. The earlier textual tradition refers to the text found in Sankt Gallen, Stiftsbibliothek 673 (Sg) and/​or the first recension manuscripts (Ad­ mont, Stiftsbibliothek 23 and 43 [Aa]; Barcelona, Arxiu de la Corona d’Aragó, Santa Maria de Ripoll 78 [Bc]; Florence, Biblioteca nationale Centrale, Conv. Soppr. A. 1.402 [Fd]). The later textual tradition refers to the phases of additions that would comprise the second recension texts found in the margins of and supplements to the first recension manuscripts. Distinc­ tions within the traditions can be found in the footnotes. For a discussion on the Decretum’s textual history and its lively debates, see M. Eichbauer, ‘Gratian’s Decretum and the Changing Historiographical Landscape’, History Compass, 11/​12 (2013), 1111–​25.

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Prescriptions are an important part of property and tithing rights. A pre­ scription, whether as a type of contract or an enforcement of the status quo, is the acquisition of ownership (uscapio) of immoveable property through continuous and uncontested possession or use for a fixed period of time.5 Stated another way, a prescription applies when one party has entered into an agreement with another whereby property is given for a predetermined amount of time, such as 30 years. At the end of the 30 years the original owner must reclaim it, otherwise the second party would acquire permanent own­ ership. A prescription also applies when one party has farmed land or has ex­ ercised a right with no objections for a long period of time, such as 30 years. If no legal objections have been raised, the status quo was allowed to remain. Prescription—​rights obtained through long usage—​became a way for ecclesi­ astical entities to expand their holdings.6 Gratian and Stephen were most con­ cerned with praescriptio longi temporis, a prescription of 30, 40, or 100 years. According to Gratian, a 30-​year prescription applies to churches, while a 40-​ year prescription applies to monasteries. A 100-​year prescription protects the Roman church.7 For example, if a church acquired property as a donation and held it for 30 years, or a monastery had collected the tithe for 40 years as a priv­ ilege, those rights would remain intact so long as no legal objection had been raised to the donation or to the collection of the tithe by the respective dead­ lines. Stephen would elaborate on the nuances: a church is kept safe against a monastery by a 30-​year prescription, while a monastery is kept safe against a

5 Stephen seemed to use prescription to mean both the acquisition of right to use for a fixed period of time—​as in his commentary on C.13 q.2 d.a.c.1 s.v. Decimationes: ‘… tuti sunt [dec­ imae et ius funerandi et aliud quodlibet ius ecclesiasticum seu civile] exceptionis opera, i.e. longaevi temporis praescriptione’—​as well the acquisition of ownership (akin to adverse possession)—​as in his commentary on C.16 q.3 d.a.c.1 s.v. Quod autem prescriptione: ‘Abusive etiam quaelibet exceptio vocatur praescriptio, ut exceptio fori et similes’. See Die Summa des Stephanus Tornacensis über das Decretum Gratiani, ed. J.-​.F von Schulte (Giessen, 1891), 218–​19 and 224, respectively. A. Berger noted that under Emperor Justinian praescriptio longi temporis equated to usucapio, see Encyclopedic Dictionary of Roman Law (Philadelphia, 1953, rpt. 1991), 645, 752. See also A. Boureau, ‘How Law Came to the Monks: The Use of Law in Eng­ lish Society at the Beginning of the Thirteenth Century’, Past & Present, 167 (May 2000), 58. 6 R. Helmholz, ‘The Creation of a Canon Law of Prescription’, in W. Krawietz et al. (eds.), Prescriptive Formality and Normative Rationality in Modern Legal Systems: Festschrift for Robert S. Summers (Berlin, 1994), 266, 267. 7 C.16 q.3 d.p.c.16: ‘Sed sola prescriptione XXX. annorum et deinceps, a qua tamen prescrip­ tione privilegia Romanae ecclesiae sunt exclusa, que non nisi centum annorum spatio pre­ scribi possunt’ (Sg 673, p. 136a); C.16 q.4 d.p.c.3: ‘Sicut ergo religiosis domibus ex lege non nisi quadragenaria est obicienda prescriptio, ita et auctoritate Gregorii adversus alias ecclesias prescribere possunt eodem spacio temporis’ (Sg 673, p. 136b–​37a).

72 Eichbauer church by a 40-​year prescription.8 That is, a 30-​year prescription protected a church’s property and tithing rights from monastic claims, while a 40-​year pre­ scription protected a monastery’s property and tithing rights from a church’s claims. Litigation of property rights became increasingly common in the twelfth century. The gradual distinction between episcopal holdings and cathedral patrimonies, the spread of reformed canons and the proliferation of monastic orders compounded the need to enforce prescriptions. As previously unusable land became productive, more claims were made for payment of various dues, particularly the tithes on goods produced either for sale or for personal use. The scramble for increasingly limited land would impact the church and the associated appurtenances, such as tithes, oblations and farms.9 This essay considers Gratian and Stephen as having ‘local’ concerns, con­ cerns which are reflected in their Decretum and Summa. It will suggest that the differences pertaining to property and tithing rights may reflect their particu­ lar positions. Socio-​political conditions of a particular community influence legal thought, and, as such, legal texts reflect the needs of the community they represented: for Gratian, the augmentation of episcopal authority; for Stephen, the preservation of monastic rights. A common legal footing was adapted to suit each individual climate. Gratian’s Decretum and the Episcopal Community Legal training opened doors to an administrative career and Bologna served as an important pipeline.10 The most common positions listed in biographical 8

9

10

Stephen of Tournai, Summa, ad C.16 q.3 d.a.c.1 Quod autem prescriptione: ‘Ecclesia tamen adversus monasterium in omnibus his praescriptione XXX annorum tuta est, cum mon­ asterium adversus ecclesiam nonnisi XL annis se possit tueri. Sola romana ecclesia C. an­ norum spatio adversus omnem possessionem munitur’ (Munich, Bayerische Staatsbiblio­ thek, Clm 17162, fol. 118rb) [hereafter: Munich, Clm 17162]. D. Herlihy, ‘Church Property on the European Continent, 701–​1200’, Speculum, 36/​1 (1961), 92–​93, 95, 98‒99; Boureau, ‘How Law Came to the Monks’, 36; G. Constable, The Reformation of the Twelfth Century (Cambridge 2002), 223‒25. See C. Wickham, ‘Ecclesiastical Dispute and Lay Community: Figline Valdarno in the Twelfth Century’, Mélanges de l’École française de Rome: Moyen-​Âge, Temps modernes, 108/​1 (1996), 7–​93 for a case study involv­ ing the conflict between the parish of Figline and the canons of S. Bartolomeo (some­ times called S. Signore). The dispute centred around the patronage of churches, the dues and obedience owed by a parish church, and the location of mills and canals. From the tenth and eleventh centuries, a focus on litterae et mores in cathedral schools sought to train secular and ecclesiastical administrators. The study of law, along with business management and accounting, would have taken place in conjunction with the

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dictionaries of jurists who studied at Bologna in the twelfth century focus on the cathedral chapter and urban churches: archpriests, archdeacons, canons and deacons.11 These positions, furthermore, oftentimes lay on the road to the episcopate. As Gratian’s teaching career followed the Concordat of Worms (1122) and the First Lateran Council (1123), and lay in the midst of Pope In­ nocent ii’s efforts to augment papal authority, one of his early activities was to train diocesan functionaries how to think through the challenges posed by episcopal responsibilities so that they could assist the bishop in his day-​to-​day administrative duties and pastoral functions. A teaching text that experienced ongoing additions, both the early and later textual tradition of the Decretum have an eye to episcopal authority. Gratian’s treatment of prescriptions focusses on the impact they would have on episcopal jurisdiction within diocesan boundaries. While he begins with the premise that a prescription could remove the right of possession and gover­ norship, Gratian concludes that neither a praesumptio nor a prescription could change the status of a parish.12 Prescriptions could not alter a diocese with established boundaries, but they could impact churches in instances where boundaries are more fluid.13 For example, these could be churches founded on newly inhabited land not previously subsumed under the jurisdiction of

11 12 13

study of rhetoric. Bologna’s cathedral of San Pietro had a thriving school from at least 1029/​30. While cathedrals, as a general practice, may not have specialised in law, a school may have retained a master who did have legal expertise. Since masters tended to move, a centre could be known for legal training at one point but not another. By the middle of the twelfth century, however, students began to move just as much as masters. In Bologna private schools flourished alongside the cathedral school. The study of law was desired as the economy in northern Italy strengthened and land transactions, along with disputes, became more pervasive. See C. Jaeger, The Envy of Angels: Cathedral Schools and Social Ideas in Medieval Europe, 950–​1200 (Philadelphia, 1994), 36–​52; B. Brasington, ‘Lessons of Love: Bishop Ivo of Chartres as Teacher’, in S. Vaughn and J. Rubenstein (eds.), Teaching and Learning in Northern Europe, 1000–​1200 (Turnhout, 2006), 131–​36; R. Witt, The Two Latin Cultures and the Foundation of Renaissance Humanism in Medieval Italy (Cambridge, 2012), 167–​68, 173, 177–​78, 230, 267. D. Cantoni and N. Yuchtman have estimated that in the lengthy period between 1070 and 1619, 21% of students who obtained a legal edu­ cation at Bologna pursued careers in public administration while another 31% pursued administrative careers in the Church; see ‘Medieval Universities, Legal Institutions, and the Commercial Revolution’, Quarterly Journal of Economics, 129/​2 (2014), 876 n. 75, 879. See S.  Mazzetti, Repertorio dei Professori dell’Università di Bologna (Bologna, 1847); G. Pasquali, Li dottori bolognesi di legge canonica, e civile (Bologna, 1620); see twelfth and thirteenth centuries entries, for instance, in the DGI. C.16 q.3 d.p.c.4:  ‘… quod possessionis et gubernationis iura prescriptione tolluntur’ (Sg 673, p. 134a); C.16 q.3 c.5 (Sg 673, p. 134a–​b). A praesumptio is a fact deemed proven from logical inference, see A. Berger, Encyclopedic Dictionary of Roman Law, 646. C.16 q.3 d.p.c.5–​c.7 (Sg 673, p. 134b–​35a).

74 Eichbauer a particular bishop. If possessed by authority of a judge and by a privilegium longa consuetudine (i.e. 30 years) then, according to Gratian, ‘the lapse of time imposed silence on the plaintiff’.14 While the impact of prescriptions on dioc­ esan boundaries was the subject of the seventeen canons in q.3 (question 3), Gratian deals with monastic prescription in q.4 in a very cursory fashion, using three short canons. While c.1—​stemming from c.19 of the First Lateran Council (1123)—​prohibits abbots or monks from possessing churches or that which be­ longs to bishops by a 30-​year prescription, c.2—​stemming from a letter of Pope Gregory I—​and c.3—​an adaptation of Justinian’s Novella 131.6—​counter with a 40-​year prescription. Gratian quickly concludes in the dictum after c.3 that a monastery must have retained the property undisturbed and without dispute for 40 years in order to lay claim.15 In his Summa, Stephen would emphasise that the 40-​year prescription also applied to a monastic house’s agricultural lands.16 Gratian’s brevity in C.16 q.4 may have stemmed from a lack of interest or the belief that there was nothing more to contribute, or it may have been more strategic. Having acknowledged that monks could serve as priests, C.16 q.2 had concluded that a church built in the diocese of a bishop was subject to that bishop’s oversight.17 An addition to the later textual tradition, q.2 c.7, ex­ plicitly subjected monastic priests to the governance of the bishop.18 ­Gratian’s thoroughness in q.3 and brevity in q.4 may seek to avoid a possible conclu­ sion:  a monastery could service a church; a church is subject to the 30-​year prescription; thus a church, serviced by a monastery, could be subject to a 30-​year, not 40-​year, prescription. Instead, he emphasised the importance of the 30-​year prescription and the need to be mindful of it. Monastic priests and monastic collection of the tithe could be viewed with­ in the context of safeguarding diocesan rights. Gratian maintains that bap­ tismal churches are to be denied neither the tithe nor any possession at the expense of newly built churches,19 even if ordained monks serve the newly built churches. He does concede that monks could licitly collect the tithes and oblations with the consent of the bishop on account of their poverty and duty to help travellers and maintain hospitals.20 As with ecclesiastical property, the bishop alone decides who is able to receive the tithe and in what allotment. 14 15 16 17 18 19 20

C.16 q.3 d.p.c.7: ‘Si vero iudicis auctoritate, et privilegiorum longa consuetudine possidere cepit, tunc obiectio temporalis actori silentium inponit’ (Sg 673, p. 135a). C.16 q.4 c.1–​d.p.c.3 (Sg 673, p. 136b–​37a). Stephen of Tournai, Summa, ad C.16 q.4 c.2 s.v. Volumus (Munich, Clm 17162, fol. 121va–​vb). C.16 q.2 d.p.c.10 (Sg 673, p. 134a). C.16 q.2 c.7 (Fd 402 Suppl., fol. 141rb; Aa 43 Suppl., fol. 284r). C.13 q.1 d.p.c.1 (Sg 673, p. 110a–​12a); C.13 q.2 d.a.c.1–​d.p.c.1 (Sg 673, p. 112a–​13a). C.16 q.1 d.p.c.67–​c.68 (Sg 673, p. 132b).

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(Nicely side-​stepping the question of papal exemptions.) Gratian’s position re­ garding episcopal control of the tithe echoes that espoused by Anselm of Laon in his Liber pancrisis and thus the school of Laon, which subjects pastoral care of monks and possession of the tithe to the strict supervision of the diocesan bishop.21 While controlling who has a license to preach is important (fitting into the increased concern for pastoral care), so is controlling who serves in parish churches. Monastic priests could divert tithes and oblations from the hand of the bishopric to the mouth of the monastery. Gratian’s focus on ecclesiastical property—​agricultural lands, buildings and monetary matters—​manifested into a deeper concern with the infiltration of lay influence than Stephen. The respective difference in their anxiety levels may have stemmed in part from their respective positions. For an abbot in the later-​twelfth century, interference of the laity could be an issue, but they were an important avenue by which the monastery could acquire more prop­ erty. Meanwhile the bishop in the later-​eleventh and early-​twelfth centuries had to contend with the controversies surrounding the proprietary church system: lay attempts either to retain church property and rights for their own benefit or to transfer them to a monastery as a pious donation.22 The increase in land transactions and conflicts involving the laity and the religious (both cleric and monastic) also required the bishop’s attention.23 Gratian is resolute in his stance in C.10 q.1—​a question grounded almost exclusively in conciliar legislation—​that the episcopacy controls ecclesiastical property. Churches, particularly consecrated churches, fall under the jurisdiction of the bishop. As such any endowments, such as in land, property or vines, as well as all the rights associated with the church, are subject to his oversight.24 The laity have 21

22

23 24

G. Constable, Monastic Tithes:  From Their Origins to the Twelfth Century (Cambridge, 1964), 169‒72, 184. Atria Larson has argued that Gratian belonged to the school at Laon and may have studied under Anselm. See Master of Penance: Gratian and the Development of Penitential Thought and Law in the Twelfth Century, Studies in Medieval and Early Mod­ ern Canon Law, 11 (Washington D.C., 2014), 282–​97. P. Landau has examined canonists’ treatment of lay dominium in eleventh century collec­ tions and assessed the extent to which the positions taken in Anselm of Lucca’s Collectio canonum, Ivo of Chartres’s Tripartita, the Panormia, the Collectio canonum trium librorum, and the second recension of the Polycarpus contributed to Gratian’s thought; see ‘Das “Dominium” der Laien an Kirchen im Decretum Gratiani und in vorgratianischen Kanonessammlungen der Reformzeit’, ZRG Kan. Abt., 83 (1997), 212–​22. See C. Wickham, Courts and Conflict in Twelfth-​Century Tuscany (Oxford, 2003), 68–​107. C.10 q.1 c.1–​c.3, c.7, d.p.c.15 (Sg 673, p. 90a‒b, 91a). C.10 q.1 c.4‒c.6, c.14, added to the lat­ er textual tradition, emphasised the point made in the early tradition. Each parish was ruled by the provision of the bishop and all things of the church or oblations made at the altar were under his judgement and power (Bc 78, fol. 158v right column after comple­ tion of Causa 9, fol. 159v lower-​left margin; Fd 402 Suppl., fol. 133r; Aa 23 Suppl., fol. 279r,

76 Eichbauer no right to usurp that which belongs to a church.25 The curtailing of lay inter­ ference likewise factors heavily into C.16 q.7, which drew heavily from papal decretals and, to a lesser extent, from conciliar legislation. The laity could not sell anything from churches; they could accept neither churches nor tithes ­either from other laymen or from abbots without the consent of the bishop; they could neither remove nor install priests without the consent of the bish­ op.26 Lay stewards (yconomos) should not have ecclesiastical dignities or re­ sponsibilities, nor handle church resources. Furthermore, they should receive nothing from the belongings of the church for their services.27 The later textual tradition would prohibit archdeacons, archpriests, prefects and deacons from granting ecclesiastical offices or benefices without the consent of the bishop.28 The additions to C.12 q.2 in the later textual tradition likewise emphasise the preservation of church property. A  Pseudo-​Isidorian text attributed to Pope John I called for those who invaded and stole from the church to return it four-​ fold while a Pseudo-​Isidorian text attributed to Pope Eusebius called for an eleven-​fold return. Pope Gregory V demanded that such men to be punished according to the precepts of secular law. Pope Gregory I simply stated that the church should receive back only that which was taken. Gratian concludes that these texts set forth both the extreme and the mild interpretations of the law.29 Gratian does, however, afford lay founders some legal rights from the earli­ est textual tradition of C.16 q.7. While they possess ius providendi et c­ onsulendi, et sacerdotem inveniendi (right of providing, consulting and presenting the

25 26

27 28

29

279v‒80r). Stephen was quick to point out the loophole: a founder could give an unconse­ crated church to another church or monastery. C.10 q.1 c.13, c.15 (Sg 673, p. 90b–​91a). C.16 q.7 d.a.c.1, c.1  ‘Decimas quas–​periculum incurrere’ (ll. 1–​6), c.3  ‘Si quis amodo–​ deputentur’ (ll. 5–​10; text is connected to c.1), c.8, d.p.c.9, c.10, c.14, c.16, c.20 (Sg 673, p. 138a–​b). C.16 q.7 c.17–​c.19, c.26‒c.28, c.38‒c.40 were added to the later additions (Fd 402 Suppl., fol. 142r; Aa 43 Suppl., fol. 285v–​86v). C.16 q.7 c.21–​c.24 (Sg 673, p. 138b–​39a); C.12 q.2 c.45 (Bc 78, fol. 175v top–​left margins; Fd 402 Suppl., fol. 137v; Aa 23 Suppl., fol. 290r). The latter canon was added within a block of canons addressing external forces seizing church goods. C.16 q.7 c.11 (Aa 43 Suppl., fol. 285v; Fd 402, fol. 55r right margin). Unlike canons added to both the supplements of Fd 402 and Aa 43 or copied in the supplement of Fd 402 and incorporated into the main body of the Admont manuscript which reveal the earliest phases of additions, c.11 reflects a middle layer of additions to the later textual tradition as it appears in Admont but was added to the margins of Florence. See M. Eichbauer, ‘From the First to the Second Recension: The Progressive Evolution of the Decretum’, BMCL, 29 (2012), 134–​38. C.12 q.2 c.7–​d.p.c.11 (Bc 78, fol. 172v–​73r margins; Fd 402 Suppl., fol. 137r; Aa 23 Suppl., fol. 288v–​89r). Canons 10 through d.p.c.11 were also incorporated into the main text of Aa 23 between c.13 and c.14 (fol. 186r).

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priest), they do not possess ius vendendi, donandi vel utendi (right of selling, giving or using). Even though the early textual tradition prohibits lay founders from taking anything from ecclesiastical property or using it for their own ben­ efit,30 in the later textual tradition Gratian concedes the right of alimentation, whereby a lay founder could receive revenues of the church in times of need.31 By limiting the lay founder’s right of disposal, Peter Landau has credited Gra­ tian with undermining the old Eigenkirchen system by preventing them from annexing spiritual rights.32 The tremendous amount of weight placed both on circumscribing lay inter­ ference and on the bishop’s oversight of ecclesiastical property is well-​placed in the socio-​religious climate of the late-​eleventh and early-​twelfth century. As Gundula Grebner’s examination of an 1143 Venetian legal case involving the abbey of San-​Giovanni in Monte e San-​Vittore—​a house of regular canons—​ brings to light, a family could safeguard their possessions by donating them to an abbey and receiving the right of maintenance in return.33 Lay influence circumscribed episcopal authority as churches were removed from it. For ex­ ample, a Bolognese charter recorded the gift of Count Uberto to the monastery of San-​Bartholomew of Musiáno. The gift entailed the church of San Niccoló along with all its appurtenances (tithes, oblations, farms, etc.) in the Castle of Migaráno.34 Another charter recorded the Duchess Matilda’s gift of land and jurisdiction to the Hospital of San Michel the Archangel.35 In reality, if monks

30

31 32 33 34 35

C.16 q.7 d.p.c.30–​c.34 (Sg 673, p.  139a‒b). The transmission of c.31, which limited the founders’ heirs, varies. Sg 673 truncates the canon: ‘Filiis vel nepotibus‒iuris potestatem preferre’ (ll. 1‒10). Sg 673 omits ‘non rapinam et—​annuae sentenciam sustinebit’ (ll. 10‒17). The right margin of Fd 402 (fol. 55r) includes ‘Quod si talia episcopus—​non dif­ ferant’ (ll. 6‒8) and ‘non rapinam et fraudem—​sententiam sustinebit’ (ll. 10‒17). The sup­ plement of Admont 43 (fol. 286r‒286v) includes ‘§1. Ipsis tamen heredibus—​sentenciam sustinebit’ (ll. 9‒17). See also G. Grebner, ‘Lay Patronate in Bologna in the First Half of the 12th Century: Regular Canons, Notaries, and the Decretum’, in A. Bauer and K. Welk­ er (eds.), Europa und seine Regionen: 2000 Jahre Rechtsgeschichte (Cologne, 2007), 117–​18; P. Landau, ‘Patronat’, Theologische Realenzyklopädie (Berlin​-​New York: De Gruyter, 1996), vol. 26, 108; Landau, ‘Das “Dominium” der Laien an Kirchen’, 212, 216, 221. C.16 q.7 d.p.c.29–​c.30 (Fd 402 Suppl. 142r; Aa 43 Suppl., fol. 286r). A later hand inserted c.30 following d.p.c.30 to Sg 673 in the top-​left margin of p. 139. P. Landau, Ius Patronatus: Studien zur Entwicklung des Patronats im Dekretalenrecht und der Kanonistik des 12. und 13. Jahrhunderts (Cologne, 1975), 3–​7. Grebner, ‘Lay Patronate in Bologna in the First Half of the 12th Century’, 114–​22. Litigation concerned the abbey’s collection of the tithe and Grebner maintains that C.16 q.7 has parallels to this case in which Gratian served as a judge. L. Savioli, Annali Bolognesi (Bassano, 1784–​89), 1 vol. 2, 30–​31, Num. 77 (18 May 1085). Ibid., vol. 2, 139–​40, Num. 84 (9 Aug. 1098).

78 Eichbauer served a church, a bishop may have problems claiming episcopal customs and filling vacancies later.36 Gratian’s emphasis on episcopal authority paralleled the efforts bishops were taking to safeguard their dioceses from fragmentation. For example, Bishop Guy of Limoges complained that the monks of Bourg-​Dieu at Déols had wrongly taken two churches. Pope Gregory vii sided with the bishop and ordered the monastery to return the churches and plead their case before the apostolic see if they thought the bishop to be in error.37 Most famously, the bishops of Mâcon fought the abbots of Cluny over jurisdictional questions throughout the eleventh century.38 Diocesan complaints against Cluny inten­ sified in 1079/​80. Bishop Landeric of Mâcon, supported by Archbishop Geb­ uin of Lyons, had objected to Cluny’s violation of his rights. Such complaints resulted in a frontal assault on Cluny’s exemption from the bishop’s spiritual jurisdiction that came to a head at the Council of Reims in October of 1119. There Pope Calixtus ii had to address the grievances of Archbishop Humbald of Lyons, Bishop Berard of Mâcon and others about Cluny’s usurpation of diocesan rights over churches. Collection of the tithes and ordinations, they maintained, were an assault on episcopal authority.39 Similarly, Pope Paschal ii sided with Bishop Victor of Bologna’s protests regarding the usurpation of episcopal rights by certain abbots and monks in the region. They were giving penance and reconciling sinners as well as usurping the tithe without either episcopal permission or apostolic authority.40 Complaints from the episcopa­ cy regarding the privileges granted to Monte Cassino served as the impetus of c.16 of the First Lateran Council (1123). The canon sought to reaffirm c.4 from the council of Chalcedon in 451, which made the bishop’s consent necessary for construction of oratories and monasteries as well as subjecting monks to the bishop (though that portion was not always included in the circulation of First Lateran canons).41 Gratian’s emphasis lay with the augmentation of episcopal authority a­ fter it had been fractured during the crises of the eleventh and early-​twelfth 36 37 38 39 40 41

F. Kempf et al., The Church in the Age of Feudalism, trans. A. Biggs (New York, 1969), 258–​ 60, 263; F. Barlow, Durham Jurisdictional Peculiars (London, 1950), ix, xi–​ii, 19–​20. Gregorii VII Registrum, ed. E. Caspar, MGH, Epp. sel., vol. 2.2, Bk.7 no. 17, pp. 491–​92. F. Swietek and T. Deneen, ‘The Episcopal Exemption of Savigny, 1112–​1184’, Church History, 52/​3 (1983), 287–​88. I. Robinson, The Papacy, 1073–​1198: Continuity and Innovation (Cambridge, 1990), 225–​26; Mansi, vol. 21, col. 236–​37. Savioli, Annali Bolognesi, vol. 2, 146, Num. 88. Mansi, vol. 7, col. 359; Robinson, The Papacy, 229–​30; L. Hamilton and M. Brett, ‘New Evi­ dence for the Canons of the First Lateran Council’, BMCL, 30 (2013), 8–​9, 12 n. 19, 15–​17.

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centuries. At stake was the control of ecclesiastical property and rights. His concern with prescription rested on how it would impact diocesan boundar­ ies. His concern with the tithe sought to safeguard episcopal control of its dis­ tribution. Both reflect the ecclesiastical geography of the Italian church with many small scattered dioceses which bred conflict over boundary disputes.42 Laced throughout was the removal of lay entanglement. The Decretum pro­ vided legal instruction as to how bishops and their bureaucrats could wrest control from divergent forces.

Stephen of Tournai’s Summa and the Monastic Community

At least with respect to property and tithing rights, the Decretum, the founda­ tion for Stephen’s education, had episcopal leanings. Stephen’s emphasis, how­ ever, betrays a concern for the preservation of monastic rights and privileges.43 Stephen begins his assessment of prescription with a lengthy exploration into its legal intricacies: what it is, the types, how it is established, how it is ended, and what happens if it is interrupted. For him, a prescription is estab­ lished when one party takes into possession some immoveable item with a just title (titulus iustus), that is, not possessed by force or stolen, and on good faith (bona fides). However, bona fides only pertained to the beginning of possession and the later realisation that it was lacking did not impede the prescription. Stephen also distinguishes between moveable and immoveable property, be­ tween that which is sacred and not sacred, and between temporal and spiritual rights (iura). The laity were neither able to be prescribed nor to own sacred 42

43

R. Brentano, Two Churches: England and Italy in the Thirteenth Century (Berkeley, 1988), 62–​66. Richard Helmholz drew attention to the material sources of q.3. Canons from the early church—​Council of Chalcedon (451), a letter of Pope Gelasius (c. 494)  and the Fourth Council of Toledo (633)—​addressed diocesan and parochial boundary dis­ putes, and canons from Spanish councils reestablishing diocesan boundaries in wake of the Reconquest from Muslim invasions; see Helmholz, ‘The Creation of a Canon Law of Prescription’, 268. In Bologna, the impact of the Investiture Controversy no doubt com­ pounded matters. In the eleventh century the bishop (a Gregorian) and the count (an imperialist) shared political power in Bologna. When Henry V granted communal status to Bologna in 1116, the commune assumed much of the secular power once held by the bishop. See Witt, The Two Latin Cultures, 204–​06. Twelfth-​and thirteenth-​century canonists maintained, for the most part, that the ius commune took precedence over the ius particulare of individual religious orders. The ius commune included privileges, exemptions and prescriptions. See L.-A. Dannenberg, Das Recht der Religiosen in der Kanonistik des 12. und 13. Jahrhunderts (Münster, 2007), esp. ­chapters 4–​5.

80 Eichbauer moveable property (e.g., a chalice). A church, on other hand, could own sa­ cred moveable property and as such it is possible for ecclesiastics to prescribe sacred immoveable property (e.g., a dependent church). Non-​sacred immove­ able property included items such as fields, vines and manors. They could be prescribed by the laity (a laicis) for a span of 40 years in a manner similar to temporal rights—​e.g., debts, rents (pensiones) and salaries (mercedes). The la­ ity at no time could prescribe to any person either sacred immoveable prop­ erty or spiritual rights (iura spiritualia), i.e. tithes of first fruits (primitiarum) or oblations. Immoveable ecclesiastical property, whether sacred or not, and the rights (iura) of churches, both spiritualties (spiritualia) and temporalities (temporalia), were able to be prescribed to another church for peaceful posses­ sion for 30 or as much as 40 years, unless they were in the territories of other bishoprics, in which case they could not be prescribed for any amount of time lest boundaries (termini) become blurred.44 Stephen’s initial discussion laid the foundation for a legal defence to preserve that which had been acquired. Lay dispossession of ecclesiastical property ap­ pears to have remained an issue because of continued prohibitions against the laity prescribing sacred property or rights. The laity, however, could prescribe non-​sacred property. Focussing specifically on Cluny in the tenth and eleventh centuries, Barbara Rosenwein has shown the importance of a monastic com­ munity’s acquisition of donations and the later need to advocate for preserving possession of those donations when the heirs wished to regain that property.45 More permanent than a traditional emphyteusis or a precarium,46 prescription as a type of contract allowed a monastery to retain what was given should the 44 45 46

Stephen of Tournai, Summa, ad C.16 q.3 d.a.c.1 s.v. Quod autem prescriptione (Munich, Clm 17162, fol. 117ra–​18rb); Landau, ‘Patronat’, 107. See B. Rosenwein, To Be the Neighbor of Saint Peter: The Social Meaning of Cluny’s Property, 909‒1049 (Ithaca, 1989). Stephen of Tournai, Summa, ad C.10 q.2 c.2 s.v. perpetua (Munich, Clm 17162, fol. 86rb); ad C.10 q.2 c.4 s.v. Precariae (fol. 86va). An emphyteusis was a long-​term lease of immoveable property in which the rights of the lease holder were similar to the owner, but rent was paid. The one leasing the land enjoyed the full rights, i.e. usus, abusus and fructus. A precarium was a contract used when he who granted the items wanted to retain ownership of it. See also Berger, Encyclopedic Dictionary of Roman Law, 452, 648. In illustrating literacy’s continuous employment, Brian Stock pointed to the necessity of explaining the law in cases where it had become obfuscated. For example, it had become difficult to distinguish between the right to control (dominium, proprietas) and the fact of controlling (possessio, servitus, ususfructus). Emphyteusis and ius privatum had likewise become confused as anyone who controlled the property was able to keep it and to dispose of it at will, provided that he satisfied the demands of the fisc. See B. Stock, The Implications of Literacy: Written Language and Models of Interpretation in the Eleventh and Twelfth Centuries (Princeton, 1983), 44.

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original owner lose track of time. As maintenance of the status quo, it protect­ ed against an heir wanting to press a claim later.47 Prescription provided the legal justification for retaining monetary rights while at the same time conceding to the bishop his spiritual rights, possibly a contentious assertion as Stephen felt it necessary to give three examples mak­ ing the same point. In one example, the bishop of Bologna owned a villa in the diocese of the bishop of Ferrara on which he wanted to build a church. While the bishop of Bologna would retain the temporal revenues, the bishop of Ferrara would retain the spiritual rights of consecration of clerics, excom­ munication and absolution.48 In another example, the bishop of Chartres had possessed a church, along with its temporal and spiritual revenues, located in the diocese of Orléans for 30 years without interruption. While the revenues were to remain with the bishop of Chartres, the parish itself would remain in the diocese of Orléans.49 In Stephen’s third example, the bishop of Bologna had possessed a certain church for 30 or 40 years that the bishop of Modena in­ sisted was within the limits of his diocese. If the church was found to be within the diocesan limits of Bologna, it remained with Bologna. If the bishop of Bolo­ gna had held the church undisturbed, though it was found to be in the diocese of Modena, it remained with Bologna. If the bishop of Modena, however, had raised an exception before the end of the 30 years and the church was found it be within his borders, the unjust retention by Bologna would result in the church being restored to Modena without delay.50 Stephen uses prescription to segregate episcopal rights: a bishop may retain spiritual rights to a parish, but could lose the property and tithing rights. It could be said that Stephen took Gratian’s text to its logical conclusion. It is worth noting, however, that Gratian did not take the discussion this far, but rather continued to emphasise a bishop’s control over that which was in his diocese. For Stephen, prescription was intrinsically linked to monastic preservation of previously acquired property and tithing rights. As a point of administration, he simply states that laymen could not prescribe the tithe and clerics could not prescribe church property.51 With that established, Stephen’s attention centres 47 48 49 50 51

Stephen of Tournai, Summa, ad C.16 q.4 c.2 s.v. Neque decerimus usque in legatis et hereditatibus (Munich, Clm 17162, fol. 121vb). Ibid., ad. C.16 q.2 c.9 s.v. conventum (Munich, Clm 17162, fol. 117ra). Ibid., ad C.16 q.3 c.4 s.v. tricennalis post usque aliae diocesis (Munich, Clm 17162, fol. 118va–​ vb). Ibid., ad C.16 q.3 c.6 s.v. Inter memoratos, s.v. cuius quamvis vetusta, s.v. limis provisus monstraverit vis signis (Munich, Clm 17162, fol. 119ra–​rb). Ibid., ad C.16 q.3 c.11 s.v. Clerici (Munich, Clm 17162, fol. 119vb), ad q.3 d.p.c.15 s.v. Ad hec (fol. 121rb).

82 Eichbauer on the incorporation of churches. He readily concedes to the bishop the care of souls; that is, the spiritualties of churches in his diocese such as the license to preach, and the right to perform baptisms, excommunications and reconcil­ iations. For a monk to become a priest in a church, he must have been elected by the people and have received permission from the abbot and from the bish­ op. While he owes obedience to the bishop in all things pertaining to the care of souls, to the abbot he owes obedience in all things regarding temporalities.52 Gratian did not emphasise such a distinction. The collection of the tithe had become a contentious issue. Should monks pay the tithe and, if so, should it be paid on lands cultivated (praedial) or on products of their labour (personal)?53 By and large, Stephen argues that the tithe should not be paid, unless perhaps when the church is unable to pro­ vide sufficient provisions (alimenta) to maintain the cleric. However, the tithe should be returned to the monks as soon as the situation is remedied and pro­ visions are acquired.54 Privileges likewise exempt monasteries from paying the tithe and/​or allowing them to collect it.55 Tithes prescribed to monks have a 30-​year prescription—​a supposition supported, Stephen maintains, by C.1 q.3 c.4—​as opposed to the 40-​year prescription that generally applies to monaster­ ies.56 Once the tithes have been held continuously and uninterrupted for the fixed period, it is not possible for the former owner to contest the prescription. Since tithes pertained to churches, and churches have a 30-​year prescription, a monastery does not need to wait the ten additional years before the status quo could become permanent. Stephen drives this point home; Gratian only

52 53

54 55

56

Ibid., ad C.16 q.1 d.a.c.1 s.v. Quod monachi (Munich, Clm 17162, fol. 111va–​vb), ad q.1 c.7 s.v. Placuit usque exire (fol. 112ra), ad q.1 d.p.c.19 s.v. Ecce in hoc usque dedicatione (fol. 112rb), ad q.2 d.a.c.1 s.v. Institutionibus (fol. 116rb), ad q.2 c.1 s.v. contra sacerdotium (fol. 116vb). R. Helmholz, The Oxford History of the Laws of England, Vol 1: The Canon Law and Ecclesiastical Jurisdiction from 597 to 1640s (Oxford, 2004), 437‒38, 447. Helmholz noted that canon law reduced the scope of personal tithes and relied more heavily on praedial tithes as it was often difficult to prove that the person profited from his work. Tithes were mostly paid from agricultural produce, but were also paid from mills, ovens, tanneries, iron, salt, tolls and market dues. See Constable, Monastic Tithes, 103. Stephen of Tournai, Summa, ad C.16 q.1 c.68 s.v. Liberum est monachis (Munich, Clm 17162, fol. 116ra), ad q. c.68 s.v. monachis (fol. 116ra), ad q.1 c.68 s.v. clericos autem (fol. 116rb). Ibid., ad C.16 q.1 c.45 s.v. De decimis usque baptismata (Munich, Clm 17162, fol. 114va), ad q.1 d.p.c.45 s.v. Si ergo (fol. 114va). K. Pennington outlined the legal quandary regarding the treatment of exempt monasteries and their possessions in the commentaries of the later decretists, see Popes and Bishops: The Papal Monarchy in the Twelfth and Thirteenth Centuries (Philadelphia, 1984), 164‒66, 171‒77. Ibid., ad C.16 q.4 c.2 s.v. sed aliquando motam questione (Munich, Clm 17162, fol. 121vb). Stephen miscited the canon (Quesitum) as C.2 q.3.

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alludes to it with his emphasis on the need to be mindful. Stephen does cite Pope Hadrian iv’s decree Nobis in eminenti, to emphasise that, despite special privileges, monks ought to pay the tithes on newly cultivated lands (novalia) to those churches in whose boundaries the estates are found.57 Yet he also notes that a prescriptio longi temporis could alter tithing rights.58 Parish churches fac­ tored heavily into a monastic house’s financial success. Nick Nicholas’s work on Augustinian houses in the diocese of Worcester, for example, has demon­ strated the importance of parish churches to the financial integrity of the order and that houses actively sought to acquire them. Even though their temporal income was important, they drew a greater percentage of their revenue from spiritualia (tithes, oblations, first fruits and burial rights).59 While protecting monastic rights, Stephen seems to keep the authority of the bishop in check. He uses the case of lay founders in Causa 10, where Gra­ tian focusses on the bishop’s rights to oversee ecclesiastical goods, as a forum to discuss the incorporation of churches and monastic rights.60 Quickly not­ ing that basilicas could be released from the yoke of the bishop by a general or special privilege,61 Stephen twists the first question, which asks ‘whether a basilica along with all its property is at the bishop’s disposal upon his ordi­ nation’, to focus on a lay founder building and endowing the church so that monks would be able to live there. So long as it is not consecrated, the church would not be under the power of the bishop. Stephen then turns to a new ques­ tion: say the founder does not have sufficient funds to endow the church so that the monks could live there, could he attach it to another church that is not removed from the diocesan law? In other words, could the founder make his

57 58

59 60

61

Ibid., ad C.13 q.1 d.a.c.1 s.v. Quod priori ecclesiae (Munich, Clm 17162, fol. 101rb–​va). Stephen mentioned this decree again in C.16 q.1 d.p.c.41 s.v. De his (fol. 114rb) and made a similar point in C.16 q.1 c.68 s.v. constabunt eis (fol. 116r). Ibid., ad C.13 q.2 d.a.c.1 s.v. Ad hec: decimationes (Munich, Clm 17162, fol. 102r). Stephen also noted that despite the opinion of some, it was not possible according to the law for another to retain possession of something by force after a prescription of 30 or 40 years; ad C.14 q.6 c.1 s.v. Si res aliena usque nis restituatur ablatum (fol. 106rb–​va). N. Nicholas, ‘The Augustinian Canons and their Parish Churches: A Key to Their Identity’, in J. Burton and K. Stöber (eds.), The Regular Canons in the Medieval British Isles (Turn­ hout, 2011), 313–​37, esp. Table 2 pp. 314–​15 and Table 3 pp. 318–​22. Incorporation entailed one ecclesiastical entity (such as a Cistercian monastery) acquir­ ing a dependent entity (such as another monastic house having already adopted some Cistercian customs) with the revenues (e.g. tithes and oblations) paid to the ruling in­ stitution. See C. Berman, The Cistercian Evolution: The Invention of a Religious Order in Twelfth-​Century Europe (Philadelphia, 2000), 102–​03, 154. Stephen of Tournai, Summa, ad C.10 q.1 d.a.c.1 s.v. De prima questione (Munich, Clm 17162, fol. 85va).

84 Eichbauer church a dependent of another? He is able to do so provided this happens be­ fore its consecration. However, if the founder attaches the church to a monas­ tery that is fully-​exempt from the jurisdiction of the bishop, then it too would have full exemption by sharing in that privilege. This provision applies to what the church brought to the agreement at that point, though not to what it would acquire in the future.62 With respects to church revenues, Stephen maintains that the bishop receives one-​fourth of the share. Any reference to one-​third does not reference quantity but simply the order of distribution: the first as­ signed for the clerics; the second assigned for repairs; the third for the bishop; the fourth for the poor. Even when ancient texts assign one-​half to the bishop, one half of that is for the bishop and the other half is for the poor, thus he re­ ceives one-​fourth. Though the Councils of Braga (572) and Toledo (693) clearly establish that a bishop could only extract two solidos for the cathedraticum (episcopal tax) from a parish church, Stephen concedes that if necessary on behalf of ecclesiastical business or a reason to visit, say, the Roman Curia, he is able to extract more.63 Nevertheless, the bishop is not entitled to take his por­ tion from all revenues, but rather from oblations to the church or from certain ceremonial days which have been agreed upon by the bishop and priest at the time of dedication.64 Furthermore, he is not able to extract the cathedraticum from oblations made to a monastery.65 The emphasis on preserving monastic rights in his Summa mirrors S­ tephen’s tenure as abbot of Saint-​Euverte and of Sainte-​Geneviève. Papal privileges ob­ tained by Sainte-​Geneviève illustrate his concern for the defence of that pre­ viously obtained and the ability to acquire additional lands and rights. During his abbacy, Stephen saw to the reissuing of privileges during the pontificates of Alexander iii, Lucius iii and Clement iii.66 The three privileges have signifi­ cant repetition, although the latter two incorporate some additional provisos. At the request of Stephen, the papacy took the abbey and both its present and future possessions—​whether given in generosity by kings or lords or as obla­ tions of the faithful or obtained by other just means—​under its protection, 62 63 64 65 66

Ibid., ad C.10 q.1 c.1 s.v. Si ex laicis (Munich, Clm 17162, fol. 85va–​vb). The first question asks whether a basilica along with all its property is at the bishop’s disposal with his ordination (Gratian, Decretum, ed. Friedberg, col. 612). Ibid., ad C.10 q.3 d.a.c.1 s.v. Quod vero (Munich, Clm 17162, fol. 87ra). Ibid., ad C.10 q.1 c.7 s.v. De his (Munich, Clm 17162, fol. 85vb–​86ra). Ibid., ad C.16 q.1 c.34 s.v. Cum pro utilitate usque diocesiana lege: ‘… non permittitur sunt de oblationibus factis in monasterio ubi est congregatio monachorum’ (Munich, Clm 17162, fol. 112vb). JL 13081 (Alexander III, 10 July 1178), JL 15099 (Lucius III, 25 October 1184), JL 16515 (Clem­ ent III, 6 July 1190).

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contradicting his own comments on C.10 q.1 c.1. It was exempt from the juris­ diction of the archbishop, bishop or legate, although the reauthorisations of Lucius iii and Clement iii stipulated that the exemption did not apply to a legate a latere. Sainte-​Geneviève’s three Paris chapels—​the chapel of the Mon­ te, chapel of Saint-​Médard and the chapel of Sainte-​Geneviève from the city—​ and their chaplains were likewise exempt as they were when the houses were secular canons. The abbey was exempt from being placed under interdict—​ excommunicating the canons, the abbey and their village—​by the archbishop or bishop, although the reauthorisations of Lucius iii and Clement iii noted the ability of pope or his legate a latere to do so. New parish churches or cha­ pels could not be constructed in the limits of their parish without the con­ sent of the abbey or that of the diocesan bishop, save at the pope’s discretion. Neither bishops nor any person could force dependent churches to pay new fees or taxes that countered ancient custom. The abbey was permitted to buy back the tithes that the laity collected, and the laity could not collect tithes without the consent of the abbey. No one was able to take or extort tithes on new lands or vineyards—​vineyards being added in the reauthorisations of Lu­ cius iii and Clement iii—​if worked by their hands, cultivated for their use or on which food grown for their animals. If anyone should transfer the abbey’s lands which bore a census or produce to either another church or religious house, it should be returned within a year and a day, again a provision added in the reauthorisations of Lucius iii and Clement iii.67 Stephen wrote extensively to the papacy arguing for the permanen­ cy of rights on account of prescription. On behalf of Hugh, abbot of Saint-​ Barthélemy of Noyon, Stephen protested to the papacy that the Archbishop of Sens should never possess the right of management of the abbey of Saint-​ Euverte. Now a house of canons regular, Stephen noted that it had not been a house of secular canons for over 40 years and thus its liberty and immuni­ ty from the arch­bishop’s attempts at control should be preserved.68 He made a similar complaint when the bishop threatened the privilege of the canons regular of Saint-​Victor which included the right to collect the entire year’s rev­ enue from the episcopal church of Notre Dame in Paris with the prebend’s vacancy—​even though the pope had confirmed it, and both civil and canon law recognised it as one possessed by a longissmi temporis praescriptio.69 Stephen 67

68 69

N. Escher (ed.), ‘Recueil des chartes de l’abbaye Sainte-​Geneviève de Paris [996-​1016]–​1200’, Thèse pour le diplôme d’archiviste paléographe, École Nationale des Chartes (Paris, 2009), no. 71, p. 148 (Lucius III); no. 94, p. 177 (Clement III). See no. 59 (pp. 131‒32) for Louis VII’s original judgment, which Philip II August (no. 66) confirmed (pp. 139‒40). J. Desilve (ed.), Lettres d’Étienne de Tournai (new edn, Paris, 1893), 86–​88, Letters 73–​74. Ibid., 223–​25 (esp. 224), Letter 184.

86 Eichbauer asked Pope Alexander iii to reject the pretension of the secular canons against the church of Saint-​Sauvuer, which was held by regular canons of Notre-​Dame de Blois. The secular canons seemed to be encroaching on the church’s terri­ tory by planting crops.70 In a grievance written to Pope Innocent iii, Stephen recounted the infringements of Otto of Sully, bishop of Paris (1196–​1208), on the immunities of the church of Saint-​Denis, the abbey of Saint-​Germain de Prés and the abbey of Sainte-​Geneviève. Otto, against the liberty and dignity obtained from the holy Roman Church, sought to usurp jurisdictional rights which was neither just nor permitted.71 Many of Stephen’s letters—​a writing campaign which exceeded that of his predecessors—​were addressed to William of Champagne, who served as arch­ bishop of Sens from 1168 to 1176 and then archbishop of Reims from 1176 to 1202.72 Stephen pleaded that William render justice to Hugh, abbot of Saint-​ Barthélemy of Noyon, in his case concerning tithing and funerary rights.73 In another case, he complained to William that Geoffrey, bishop of Senlis, pre­ tended to attend to the immunities of the canons of Saint-​Vincent of Senlis when the new abbot, Robert, was elected. Stephen asserts that the bishop op­ posed the new abbot and transgressed the privileges granted by the Roman Pontiff at its foundation by the King of France.74 Stephen had much to preserve:  his tenure as abbot of Sainte-​Geneviève (1176‒92) reveals a productive period of acquiring substantial property and rights. To offer a few examples, Thibaud, a member of the Hospitallers, and his wife Petronilla sold a farm (granchia) located within the boundaries of Sainte-​Geneviève. Stephen approved of the sale, provided the monastery re­ tained all of the taxes (census), tithes on animals and on crops, as well as oth­ er (unspecified) rights.75 In another case, the canons conceded to Aimons, a member of the Templars, lands and vineyards situated in Rosny; however, the canons would retain similar rights held by the monastery on similar lands in

70 71 72

73 74 75

Ibid., 95–​96, Letter 81. Ibid., 307–​08, Letter 248. Vulliez, ‘Études sur la correspondance et la carrière d’Étienne d’Orléans dit de Tournai (d. 1203)’, 207, 209, 210; R. Bartlett, The Making of Europe: Conquest, Colonization, and Cultural Change, 950–​1350 (Princeton, rpt. 1994), 289; Escher, ‘Recueil des Chartes de L’Abbaye Sainte-​Geneviève’, Fig. 2, p. 26. Escher shows a significant uptick in correspondences and acts in the decade of 1171‒80 with twenty-​seven and thirty-​four in the decade of 1181‒90. These two decades correspond to Stephen’s tenure as abbot. Desilve (ed.), Lettres d’Étienne de Tournai, 50–​51, Letter 37. Ibid., 245–​46, Letter 197. Escher (ed.), ‘Recueil des chartes de l’abbaye Sainte-​Geneviève de Paris [996-​1016]–​1200’, no. 67, pp. 141‒42.

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the region. In exchange, the Templars conceded to Sainte-​Geneviève an acre of vineyard that they held from Gautier, a canon in the abbey.76 Stephen was able to obtain a charter from Gui iv and his son Gui V of Senlis along with their family to abandon their pretentions to the forest in the territory of Borest in northern France and concede its right to the abbey.77 Stephen’s Summa, letters and the charters of Sainte-​Geneviève reflect his attempts as abbot to enforce the rights and privileges of his house. As Alain Boureau has shown, monks entered the legal arena as users of law. Thomas Marlborough represented Evesham Abbey between 1202 and 1208 against the bishop of Worcester over possession of the churches of the Vale.78 With Ste­ phen we see the manner in which one canonist, abbot and later bishop han­ dled his changing socio-​political landscape, particularly with respect to houses of canons regular: preservation of rights by the enforcement of prescriptions as a form of easement that helped monasteries legally extend their holdings, thereby increasing their revenues and political authority. Conclusion Canonists worked in different environments, and thus it is important to con­ sider situational factors such as position and political circumstances when try­ ing to understand the differences between them. This essay has suggested that the tone and treatment of property and tithing rights in Gratian’s Decretum and Stephen’s Summa fit within the climate in which each worked. Gratian appeared more attentive to the impacts on the episcopate in the wake of the ­Investiture Controversy. As a magister who taught would-​be episcopal func­ tionaries, Gratian emphasised episcopal authority. Stephen, on the other hand, applied his education based on Gratian’s Decretum to safeguard monastic rights: he was a canon regular who served as abbot of two houses long before he became bishop of Tournai. His concern was with preservation of what had been acquired previously. Stephen emphasised both the distinction between spiritualities and temporalities as well as monastic exemption from the tithe in a way that Gratian did not. Furthermore, Stephen had to contend directly with the ever-​increasing wealth of the military orders in a way that Gratian likely did not. The emphasis placed on a particular topic as well as by the underlying 76 77 78

Ibid., no. 70, p. 145. Ibid., nos. 82‒83, pp. 162‒64. Boureau, ‘How Law Came to the Monks’, 29‒74, esp. 31‒33, 58, 70. See also Pennington, Popes and Bishops, 169‒71.

88 Eichbauer motives for such emphasis suggest that the decretists (canonists who com­ mented on the Decretum) of the later-​twelfth century may have tweaked the common legal culture based on the Decretum to suit their particular circum­ stances. Each work thus reflected the respective environment, a product of the compiler’s needs.79 79

The similarities between legal texts can be understood as being a part of a social land­ scape: the patterns that formed were the result of factors such as a common legal edu­ cation or networks. The differences within that landscape, deviations from the pattern, reflected the compiler’s negotiation of the material to suit his purpose which was shaped by his environment. Context and ideals affect one another. See E. Zerubavel, Social Mindscapes: An Invitation to Cognitive Sociology (Cambridge, 1997), 5–​11, 17, 81–​82, 87.

Chapter 4

Contrasting Approaches among Canon Lawyers on the Twelfth Century Shift from ius naturale to Rights Jason Taliadoros Introduction Brian Tierney’s research suggests that modern notions of human rights—​ individual rights or natural rights—​have their origin in pre-​modern understandings of natural law, which is at odds with an alternative line of scholarship that denies the historical continuity between natural law and natural rights.1 His earlier work, The Idea of Natural Rights (1997), uses the terms ‘permissive natural rights’ and ‘subjective rights’ to describe pre-​modern cognates to our modern concepts of ‘natural rights’, in the sense of individual rights or human rights. His most recent work, Liberty and Law (2014), however, instead uses the term ‘permissive natural law’.2 What do these terms mean? What is their significance for understanding the historical development of rights language and concepts in history? And how do these terms relate to each other? The term subjective right has a specific meaning in the scholarly debate on the history of the language of rights, used in contrast to the term ‘objective right’. This debate turns on when in history the pre-​modern “objective” sense of “right” came also to bear our modern, “subjective” sense of “a right”. “Right” in its older, objective sense means “what is just” or “what is fair”. Aristotle uses dikaion, for example, to indicate that a society is “rightly ordered”:  that it displays the correct structure of human relationships. “Right” in this objective sense can also be attributed to individuals. The

1 B. Tierney, The Idea of Natural Rights (Grand Rapids-​Cambridge, 1997); idem, Liberty and Law: The Idea of Permissive Natural Law, 1100–​1800 (Washington D.C., 2014); cf. e.g. L. Strauss, Natural Right and History (Chicago, 1953); C. McPherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford, 1964). 2 For Tierney’s use of the terms ‘permissive natural rights’, ‘subjective rights’ and ‘permissive natural law’ as pre-​modern cognates of ‘natural rights’, in the sense of individual rights or human rights, see below.

© Koninklijke Brill NV, Leiden, 2019 | DOI:10.1163/​9 789004387249_​0 06

90 Taliadoros Roman jurist Ulpian, for instance, held that justice means rendering each his right (ius). In this sense, a person’s “right” is what is due to him given his role or status. This objective sense of “right” is not the same as our modern idea of “a right”. For instance, Ulpian noted that the ius of a parricide was to be sewn into a sack of snakes and tossed into the Tiber.3 In this way, Tierney understands a subjective right to be the pre-​modern cognate of an individual right. The terms permissive natural right and permissive natural law employed by Tierney both equate to free choice. Following H. L. A. Hart and others, this is the essence of a right, according to Tierney: ‘a right defines a sphere of licit action within which a person is free to exercise a power or make a claim, free to act as he chooses’.4 Tierney uses the two terms to represent pre-​modern cognates of individual rights or liberties. This essay begins by examining Tierney’s thesis of medieval understandings of natural law as natural rights, firstly as subjective rights, then as permissive natural rights or permissive natural law. It then analyses how these ideas worked in practice, focussing on how Ricardus Anglicus and Vacarius—​two scholar-​administrators prominent in Anglo-​Norman circles in the second half of the twelfth century—​understood subjective rights and permissive natural law. Decretist canon lawyers writing in the second half of the twelfth and the early thirteenth centuries, such as Rufinus, Huguccio, Ricardus Anglicus, Odo of Dover, Simon of Bisignano, Alanus Anglicus, Stephen of Tournai, Laurentius and Vincentius Hispanus, as well as a number of similar anonymous texts, such as the Summa ‘Tractaturus Magister’, Summa ‘In nomine’, Summa ‘Est ius naturale’, Distinctio ‘Lex naturalis’, Summa ‘Imperatorie maiestate’, Summa ‘Permissio quaedam’ and (Apparatus) Militant siquidem patroni ad Compilatio I, were the sources for Tierney’s argument. Many of these were teaching texts connected with the nascent law schools in Bologna although some, like Ricardus Anglicus, were ‘scholar-​administrators’ who additionally spent part of their working lives in ecclesiastical or lay administration.5 This essay will compare the work of Ricardus and another scholar-​administrator, Master Vacarius, to canonists

3 L. Wenar, ‘Rights’, The Stanford Encyclopedia of Philosophy (Fall 2015 Edition), ed. E. Zalta, https://​plato.stanford.edu/​archives/​fall2015/​entries/​rights, accessed 6 March 2017. 4 Tierney, Idea of Natural Rights, 49; H. Hart, The Concept of Law (3rd edn, Oxford, 2012). 5 J. Taliadoros, ‘Magna Carta and Ius Commune: A Consideration of the Scholar-​Administrators of the Twelfth-​and Thirteenth Centuries’, in T.  Sharp et  al. (eds.), From Learning to Love: Schools, Law, and Pastoral Care: Essays in Honour of Joseph W. Goering (Toronto, 2017), 362–​85.

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from the schools, as illustrations of the workings in practice of Tierney’s theses of pre-​modern rights. By so doing, this essay attempts to interrogate ‘the more general social and intellectual matrix’ out of which the canonists’ works arose and were conceived; that is a history ‘centred less on the classical texts and more on the history of ideologies’.6

Tierney’s Theses of Subjective Rights versus Permissive Natural Rights/​Law

The foundations for Tierney’s work on subjective rights, permissive natural rights and permissive natural law lie in the canon law commentaries on Gratian’s Decretum (c.1140). In particular, their focus is on the first twenty distinctions of Gratian’s text, known as the ‘Treatise on Laws’ because of its treatment of the definition and nature of law. In it Gratian defined natural law as the Golden Rule of scripture, then added to this Isidore of Seville’s manifold meanings of natural law from Stoic ideas as transmitted through Roman law.7 These texts in Gratian’s account of law set up problems for the decretists. One problem was Gratian’s use of the term ius to mean ‘designated systems of objective law’ such as natural law, customary law, civil law, military law or public law, whereas Tierney observes that the term ius also ‘commonly meant a subjective right’ in everyday discourse.8 The decretists shifted between these objective and subjective meanings of ius ‘unreflectively’ and without seeing any need for explanation’.9 Tierney gives primacy to Rufinus in explaining ius naturale as a subjective right. Rufinus defined ius naturale as [1]‌‘a certain force instilled in every human creature by nature to do good and avoid the opposite’ and [2] as ‘consisting in three things, commands, prohibitions and demonstrations’.10 According to Tierney, the first part of Rufinus’s definition articulates a subjective right while the second part represents permissive natural rights and, in his later work, permissive natural law.11 The first part of Rufinus’s definition of ius naturale as a ‘subjective moral force or power inhering in individuals’ or ‘a faculty or power of the individual’ was followed by many other decretist

6 7 8 9 10 11

Q. Skinner, The Foundations of Modern Political Thought, Vol. 1:  The Renaissance (Cambridge, 1997), x–​xi. Tierney, Liberty and Law, 46–​47. Ibid., 61. Ibid. Ibid., 62–​68. Ibid., 23, 63–​68.

92 Taliadoros commentators.12 In this way, ius naturale did not just represent what must be done, but also what ought be done. In short, Rufinus’s understanding that ius could mean the area of subjective rights is one part of Tierney’s thesis that the canonists conceived of pre-​modern individual rights. Tierney also considers permissive natural rights or permissive natural law as pre-​modern cognates of individual rights. He notes the second part of Rufinus’s definition of ius naturale, in which Rufinus divided ius naturale into commands, prohibitions and demonstrations (demonstrationes).13 Although demonstrations often had the meaning of a primeval state of affairs or the ‘state of nature’,14 Tierney observes that demonstrations here were also understood as ‘a permanently existing feature of the law (or rights) of nature, a kind of natural ius that defined an area of permissiveness where rights could licitly be exercised, rather than a body of restrictive law’.15 In The Idea of Natural Rights, Tierney notes that the decretists wove together in a ‘new synthesis’ three notions that individually and together constituted an understanding of permissive natural rights.16 These were the idea of a permissive ius naturale, Isidore’s definition of fas, and Paul’s words in 1 Corinthians 6:12 ‘All things are licit for me’.17 This was the second plank of Tierney’s thesis, namely that pre-​ modern individual rights arose from permissive ius. In Liberty and Law, Tierney approaches the issue in a slightly different way by an analysis of the various ‘vocabularies’ by which the decretists expressed the idea of permissive natural law (not permissive natural rights) in order to solve the inconsistencies that Gratian’s text presented; these were demonstratio/​permissio, fas, libertas, perplexitas/​tolerantia and licitum.18 The first two of these vocabularies appear in The Idea of Natural Rights—​only libertas and

12 13 14 15

16 17 18

Tierney, Idea of Natural Rights, 66, 68, 63–​65. Ibid., 63, 66. A ‘primeval state of affairs’ or ‘a state of nature’ that was later superseded ‘by human law and government’, per Alanus, in Tierney, Idea of Natural Rights, 66, n. 79. For example, the Summa, Imperatorie maiestate (Summa Monacensis) of 1175/​78, in dealing with Gratian’s inconsistent concepts of common property and private property, allowed private property as a natural right—​despite its inconsistency with the notion of common property under ius naturale. In this case, ius naturale was sometimes identified with ius gentium, which also permitted private property: ius naturale is called the law of nations (ius gentium) because, ‘by dictate of nature rather than command of a statute (lex), one has [their] right’ (de natura dictante … habet ius suum) (Tierney, Idea of Natural Rights, 66, n. 80). Tierney, Idea of Natural Rights, 66. Ibid., 67. Tierney, Liberty and Law, 22.

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perplexitas/​tolerantia are new terms. Tierney’s focus shifts from ius as a pre-​ modern cognate of right to ius as a pre-​modern cognate of natural law. Tierney re-​iterated the observation from his earlier work that Rufinus had introduced the term demonstratio to designate a permissive or non-​obligatory aspect of natural law in the second part of his definition of natural law.19 Huguccio too employed the tripartite division of natural law between precepts, prohibitions and demonstrations,20 arguing that both the ideas of common property and private property were permissions/​demonstrations.21 Alanus Anglicus discussed this problem in a different way:  while having something of one’s own was in accord with positive law and having something in common was in accord with natural law, he reversed the usual argument (that common property was a permission of natural law) and stated that private property was only a permission of positive law.22 Tierney then turns to the concept of fas as a concept meaning permissive natural law. Gratian’s Decretum borrows a quote from Isidore of Seville in its ‘Treatise on Laws’: ‘All laws are either divine or human … fas is divine law, ius is human law. To pass through another’s field is fas, it is not ius’.23 In this passage, canonists understood the term fas to mean ‘a permission of divine or natural law’,24 while ius was understood to mean a ‘legal right’, as in a legal right of way to cross the field.25 But canonists reconciled the two. Huguccio states that if the owner prohibited entry it was not permitted by either divine or human law; if the owner allowed entry it was permitted by both divine and human law; and if the owner neither permitted nor prohibited entry, it was permitted by divine law but not by human law.26

19 20 21 22 23 24 25 26

Ibid., 23, citing Rufinus, Summa Decretorum, ed. H. Singer (Paderborn, 1902; rpt. Aalen, 1963), ad D.1 d.a.c.1, p. 1. Ibid., 26, citing Huguccio, Summa Decretorum, Vol. 1: Distinctiones I–​XX, ed. O. Přerovský, MIC A, 6 (Vatican City, 2006), Preface, p. 9. Ibid., 26, citing Huguccio, Summa Decretorum, ed. Přerovský, ad D.1 c.7, pp. 35–​36. Ibid., 27–​28, citing Alanus, Ius naturale from R. Weigand, Die Naturrechtslehre der Legisten und Dekretisten von Irnerius bis Accursius und von Gratian bis Johannes Teutonicus, Münchener theologische Studien, 3, Kanonistische Abteilung, 26 (Munich, 1967), 318. Ibid., 29, citing Gratian, Decretum, ed. Friedberg, D.1 c.1. Ibid., 30, citing Sicardus of Cremona (c. 1180) ad D.1 from Weigand, Die Naturrechtslehre, 184, and the Summa Et est sciendum (1181–​85) from Weigand, Die Naturrechtslehre, 193. Ibid., 29, citing Die Summa des Stephanus Tornacensis über das Decretum Gratiani, ed. J.-​ F. von Schulte (Giessen, 1891), ad D.1 c.1 in Weigand, Die Naturrechtslehre, 228. Ibid., 29, citing Huguccio, in M. Kriechbaum, ‘Actio, fas, und ius in der Kommentierungen der Dekretistik zu D.1 c.1’, in M. Stolleis et al. (eds.), Die Bedeutung der Wörter: Festschrift für Sten Gagnér zum 70. Geburtstag (Munich, 1991), 155–​75, esp. 160–​61.

94 Taliadoros The next concept of permissive natural law that Tierney considers is libertas. This concept existed within Isidore of Seville’s text in the Decretum, regarding natural law as comprising ‘the liberty of all’.27 The institution of slavery, an instance of human positive law, was a condition approved of in the Old and New Testaments, and also in Roman law and in the teachings of the Church Fathers, yet the canonists at the same time took for granted the Stoic doctrine, transmitted by Cicero, Roman law and some of the Church Fathers, that all humans were by nature free, in accordance with natural law. Their explanation for this contradiction was that liberty was only a demonstration of natural law.28 Rufinus, summarising Huguccio, states that ‘it seems that all should be free. Nevertheless, this was derogated from by contrary enactment; for human law derogates from divine law in its demonstrations but not in its precepts and prohibitions’.29 Tierney next deals with perplexitas (‘ensnarement’), the idea that a person might be entrapped in a situation where he could not help sinning however he acted. Was it permissible to choose one evil to avoid another?30 This allowed for Huguccio to develop his three-​fold classification of permission: free, absolute and relative.31 The final concept of permissive natural law is licitum. Tierney explains that this meaning arises from the words of St Paul at 1 Corinthians 10:22: ‘all things are permitted to me but not all are expedient’. Here St Paul was discussing the dietary customs in Judaic law, which meant that converts to Christianity were not bound by them but must not scandalise their more scrupulous brethren who considered themselves so bound.32 The canonists interpreted the biblical text more broadly than this, Tierney argues, in their commentaries defining the concept of ius naturale. For example, in the Distinctio Lex naturalis of the late-​twelfth century, ‘Ius naturale [meant] [l]icit and approved, not commanded or prohibited by the Lord or by any law … as for instance, to claim something or not to claim it, to eat or not to eat. Whence upon the words of the Apostle, “All things are permitted to me”, [to which] Ambrose wrote, “By the law of nature” ’.33 Other canonists similarly defined ius naturale utilising Paul’s concept of licitness.34 Liberty and Law, therefore, develops the notion of ius as 27 28 29 30 31 32 33 34

Ibid., 33, citing Gratian, Decretum, ed. Friedberg D.1 c.7; cf. supra Rufinus, Summa Decretorum, ed. Singer, ad D.1 d.a.c.1, p. 7. Ibid., 35. Ibid., 35, citing Huguccio, Summa Decretorum, ed. Přerovský, ad D.1 c.7, p. 37. Ibid., 37–​43. Ibid., 43, citing Huguccio, Summa Decretorum, ed. Přerovský, ad D.13 c.2, p. 226. Ibid., 44. Ibid., 44, citing Weigand, Die Naturrechtslehre, 209. Ibid., 44–​45, citing the Summa Lipsiensis and the Summa ‘Permissio quedam’ from Weigand, Die Naturrechtslehre, 197, 203, 205.

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permissive natural right from The Idea of Natural Rights and presents it more fully explicated and developed as permissive natural law. Further, this concept of permissive natural law is one used not just by the canonists, as The Idea of Natural Rights might suggest, but also by theologians and philosophers. For the most part, scholars acknowledge Tierney’s thesis as bringing to light the innovative use of language by canonists of the twelfth and thirteenth centuries. There has been less acceptance that such language is truly identifiable with modern notions of political and civil rights, as Tierney asserts. Further, despite Tierney’s preliminary attempts to articulate a pre-​modern right of the poor to food in times of need,35 he does not explicitly present this as a Hohfeldian ‘claim’ right,36 and it has not been accepted as connoting any broader civil and political understanding of an inherent right in the individual.37 This begs the question of how the interpretations of ius naturale by the decretists were applied in practice. This essay will now attempt to shed light on this question by examining more closely how scholar-​administrators familiar with such canonistic discussions, such as Ricardus and Vacarius, attempted to make sense of ius and ius naturale in their works, and whether such uses accorded with Tierney’s accounts.

Ricardus Anglicus on Subjective Rights and Permissive Natural Law

Ricardus Anglicus is one of the key witnesses for Tierney’s thesis that canonists of the twelfth century used ius to mean both subjective rights and permissive natural rights or law. But he also presents a case study of a scholar-​ administrator who put ideas into action. Ricardus’s life and works are well known.38 Ricardus was a contemporary of one of the greatest of the Bolognese decretists, Huguccio, alongside whom he studied and taught canon law in the Italian milieu, yet he was also part of the circle that Stephan Kuttner and Eleanore Rathbone termed the ‘Anglo-​Norman canonists’.39 His commentaries 35 36 37 38 39

Tierney, Idea of Natural Rights, 70–​76. Compare C. Reid, Jr., ‘The Canonistic Contribution to the Western Rights Tradition: An Historical Inquiry’, Boston College Law Review, 33/​1 (1991), 37. See my review essay ‘From Natural Law to Natural Rights, from Subjective Rights to Permissive Natural Law:  Tierney and the Twelfth-​Century Canonists’, BMCL, 34 (2017), 259–​80. R. Figueira, ‘Morins, Richard de’, in Oxford Dictionary of National Biography, ed. B. Harrison (Oxford 2004), vol. 39, 180–​82, http://​www.oxforddnb.com/​view/​article/​23518 (accessed 6 Oct 2008). S. Kuttner and E. Rathbone, ‘Anglo-​Norman Canonists of the Twelfth Century: An Introductory Study’, Traditio, 7 (1949/​51) 279–​358, 329–​39 and Appendix E (pp. 353–​58); rpt. in

96 Taliadoros on the Decretum Gratiani varied in genre from summae to scriptural canonistics.40 Yet, after being one of the leading masters in the Bolognese law schools in the 1180s, he spent the 1200s to the 1230s as prior of Merton Abbey, a papal judge-​delegate and a justiciar in the king’s courts dispensing the English common law. Ricardus’s Summa quaestionum (c.1186–​87) and Gloss ad Compilatio I (1198) provide ample sources for Tierney’s thesis of ius naturale as a source for natural rights. His Summa quaestionum provides a commentary on D.1 of the Decretum Gratiani that articulates, according to Tierney, subjective rights.41 Ricardus raises three meanings of ius naturale, namely: (a) free will (liberum arbitrium), which directs one to good or evil, although he notes that this definition is weakened because ius naturale always avoids evil; (b) charity (caritas), by which man does good and avoids the opposite, although he also notes that this definition is weak because charity exists only in the blessed; and (c) the superior part of the soul, namely reason, which could not be extinguished in Cain by the witness of Scripture, since it is natural law, that is to say ‘natural good’, which may be obscured in the merits of wrongdoing but never extinguished. Ricardus concludes that he can neither reject any of these definitions nor accept any one of them. While this was no ‘overt theory of rights’, according to Tierney, it demonstrated Ricardus’s and other canonists’ ‘subjective understanding of ius’ as a faculty or power in accordance with right reason.42 But, along with other English canonists, Ricardus explicitly understands ‘natural right’, according to Tierney:  in a passage that follows shortly afterwards, the law master defines ius naturale as something ‘said to be licit and approved and commanded or prohibited by no statute’.43 Further, Ricardus in his commentary on the decretals, Gloss ad Compilatio I, all but states explicitly, for Tierney, the natural right of the poor. In the case of a poor person in need, Ricardus states, ‘by natural law

40

41 42 43

Kuttner, Gratian and the Schools of Law 1140–​1234 (London, 1983), Essay VIII, with ‘Retractiones VIII’, pp. 23–​39, 35–​36. J. Taliadoros, ‘The Use of Scripture in Ricardus Anglicus’s Distinctiones decretorum’, in J. Goering, S. Dusil and A. Thier (eds.), Proceedings of the Fourteenth International Congress of Medieval Canon Law. Toronto, 5–​11 August 2012, MIC C, 15 (Vatican City, 2016), 1045–​ 89. Tierney, Idea of Natural Rights, 64, 68 and 73. Ibid., 64. Ricardus, Summa quaestionum, Zwettl, Stiftsbibliothek, MS 162, fol. 145r in Tierney, Idea of Natural Rights, 68 and Weigand, Die Naturrechtslehre, 213 n. 366: ‘Secundo modo licitum dicitur et approbatum nulla constitutione preceptum uel prohibtum’.

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all things are common, that is shared in times of need, [and so] he is not properly said to steal’.44 Several of Ricardus’s other works not mentioned by Tierney pursue discourses on natural rights language. In his Summa brevis (1196–​98), Ricardus notes that D.1 of the Decretum Gratiani deals with canon law’s origin in heaven, namely its origin from natural law, and distinguishes natural law from positive law.45 But there is little further discussion of these concepts. Ricardus’ Summa quaestionum also provides a link between a subjective understanding of ius and permissive natural law. In a discussion on the inconsistency between the natural law’s notion of common property and human law’s protection of private property, Ricardus notes the views of those who explain private property as a demonstratio or ‘permission’ of natural law and therefore its licitness.46 We can see here the influence of Rufinus’s discussion of demonstrationes, noted above, on Ricardus.47 Further evidence not referred to by Tierney exists for Ricardus’s discussion of permissive natural law and subjective rights in his Distinctiones decretorum.48 Ricardus begins in D.2 (ad D.1) by providing six possible definitions for ius naturale.49 These are first, as ‘a certain order and instinct of nature’ (ordo quidam et instinctus naturae), following the Roman law tradition; second, something that is ‘licit and approved, neither compulsory nor prohibited by statute’; third, what is contained in the Law and the Gospel; fourth, the capacity to discriminate between good and evil, with the disapproval from one and approval from the other; fifth, judgement of reason, as per Origen; and sixth, divine law. This second definition recalls the earlier discussions of natural law and licitness in the Summa quaestionum, as well as others. And like that earlier work, the Distinctiones decretorum in D.3 (ad D.1) 44 45

46 47 48

49

Tierney, Idea of Natural Rights, 73, citing G. Couvreur, Les pauvres ont-​ils des droits? Recherches sur le vol en cas d’extrême nécessité depuis la Concordia de Gratien (1140) jusqu’à Guillaume d’Auxerre († 1321), Analecta Gregoriana, 111 (Rome, 1961), 92. Ricardus Anglicus, Summa brevis, cited in Kuttner and Rathbone, ‘Anglo-​Norman Canonists’, 353: ‘Tractaturus igitur gracianus de iure canonico orditur ab altiori, a iure videlicet naturali, multipharie distinguens tam ipsum ius naturale quam positiuum, quod facit distinctione prima’. It was a brief treatise, written in verse, and relied on the Distinctiones decretorum. Ricardus, Summa quaestionum, ad D.1, in Couvreur, Les pauvres ont-​ils des droits?, 288. Tierney, Idea of Natural Rights, 66. G. Silano, ‘The Distinctiones Decretorum of Ricardus Anglicus: An Edition’, Ph.D. Dissertation (2 vols, University of Toronto, 1981), 35. The thesis contains an introduction at pp.  1–​86; the text of the Distinctiones Decretorum at pp.  88–​710; the apparatus criticus (commenting on variant readings in the manuscripts) at pp. 711–​906; and the apparatus fontium (identifying sources in the text) at pp. 907–​1045. Ricardus Anglicus, Distinctiones decretorum, ed. Silano, D.2, p. 90.

98 Taliadoros further provides that ius naturale consists of orders, prohibitions and demonstrationes.50 So, while evidence of Ricardus’s thought on subjective rights and permissive natural law was apparent in the earlier Summa quaestionum, the later Distinctiones decretorum illustrate the influence of Rufinus on Ricardus and the latter’s further development of these ideas.

Vacarius on Subjective Rights and Permissive Natural Law

Vacarius was a Roman law jurist who came to England in the mid-​twelfth century to work in the household of Archbishop Theobald of Canterbury, and spent the rest of his career there. He is best known for his text book on Justinianic Roman law, the Liber pauperum, composed in two versions, one in the late 1170s or late 1180s and the other around 1200. My own research has focused on his other works, which demonstrate his range of learning: in canon law, exemplified in his treatise on marriage, the Summa de matrimonio (c.1166–​ 70); on contemporary debates in theology, evidenced by a tract on the notion of christology and the hypostatic union called Tractatus de assumpto homine (c.1164–​70), and a treatise, Liber contra multiplices et varios errores (c.1170–​77), in which Vacarius defends accepted Church doctrine on holy orders, baptism, the Eucharist, penance, confession and other theological matters by way of a response to heretical ideas.51 An anonymous Justinianic Roman law Lectura ad Institutiones (c.1200) has been linked to a ‘Vacarian school’, although it was not composed by the master himself.52 But Vacarius’s works take a different approach to ius naturale on notions of subjective rights and permissive natural rights/​law than the canonists Tierney discusses. This is evident in Vacarius’s Liber pauperum, a text that contained, in nine books set out in the same order as the books in the Code, extracts from both the Code and from the Digest of Justinian’s Corpus iuris civilis; the first version had gloss spaces that also contained extracts from these two books without any glosses on the texts (called the ‘Vacarian gloss’ version); the second version contained only glosses, and no extracts from the two texts, in the form of an apparatus. Both versions had a prologue, in which Vacarius comments

50 51 52

[I]‌in demonstrationibus; iste non inferunt necessitatem’: Ricardus Anglicus, Distinctiones decretorum, ed. Silano, D.2, p. 91. J. Taliadoros, Law and Theology in Twelfth-​Century England: The Works of Master Vacarius c.1115/​20–​c.1200 (Turnout, 2006). Lectura ad Institutiones, in The Teaching of Roman Law in England around 1200, eds. and trans. F. de Zulueta and P. Stein (London, 1990).

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on the nature of law. He comments that ‘innate reason by its nature’ has the potential to undo its office (officium) in us, if we live as animals.53 So here he takes as his starting point the Roman law notion of natural law as reason, derived from Institutes 1.2 and Digest 1.1.3, which Gratian had used in D.1 c.7 along with Isidorean texts. But, contrary to the Roman law texts and consistently with the canonists, he distinguishes humans from wild beasts by their capacity for reason. Tierney notes that this was characteristic of many of the canonists, including Rufinus.54 The reference to the ‘office’ of law is at first puzzling, but his Summa de matrimonio and Liber contra highlight the distinction between the powers that come with office and the lack of power without such an office, as I discuss below. Vacarius notes that both human and divine law derive from natural law. That human law is derived from natural law is exemplified by the natural law of marriage and procreation, referenced in the Roman law texts. Natural law, adds Vacarius, unusually for a Roman lawyer, does not apply to creatures because of that law’s utility and salvific purpose. The other kind of law is lex posita celitus, or divine law, ‘that invites and compels fraternal obedience for us all for the mutual lot of all, seeking to complete a way of each law (sc. divine and human) with the Lord leading’.55 His Summa de matrimonio discusses the distinction between divine judgement56 (lege poli), or ‘heavenly law’, and the law of human judgement (lege fori), or human law; the Pauline notion of the indissolubility of marriage (Mark 10:19: ‘What therefore God has joined together let no one separate’) is an example of the former while the law of divorce is an example of the latter, Vacarius argues.57 Vacarius adopts this distinction between ius gentium and ius divinum, rather than the tripartite distinction that most Justinianic Roman lawyers drew between ius naturale, ius gentium and ius civile from the Digest 1.1. There is no reference, however, to ius naturale as a 53 54 55

56 57

Vacarius, Liber pauperum, ed. de Zulueta (London, 1927), prologue, I, p. 1: ‘Insita ratio a natura suum in nobis non sine periculo ita maxime perdere potest officium, si nobis ipsis more beluarum uiuere perperam studeamus’. Tierney, Liberty and Law, 23, citing Rufinus, Summa Decretorum, ed. Singer, ad D.1 d.a.c.1, p. 1. Vacarius, Liber pauperum, ed. de Zulueta, prologus, [I]‌, p. 1: ‘Aliorum enim necessario non modo contempnere nos oportebit utilitatem, uerum plerumque etiam insidiari saluti, quod nephas esse naturali que inter omnes versatur homines cognationis lege probatur. Cum et alia nobis lex sit posita celitus que nos omnes ad omnium vice mutua fraternum inuitat atque compellit obsequium, utriusque legis viam duce domino perficere cupiens’. Vacarius repeats the reference to lex polis in Summa de matrimonio, §36, in ‘Magistrii Vacarii Summa De Matrimonio’, ed. F. Maitland, Law Quarterly Review, 13 (1897), 286. Ibid., §37, p. 286: ‘Quamuis ergo lege fori diuertere poterant, tamen lege poli non debeat quos deus coniunxit’.

100 Taliadoros permissive natural law or as a subjective right in this analysis of the nature of law. So Vacarius, although no doubt familiar with canonistic commentary on the notion of ius naturale, adopts a sui generis approach that moves between Roman civilian, canonistic and his own. A series of glosses in the Liber pauperum is notable for Vacarius going his own way in adducing that longstanding custom could override written law. In doing so he makes reference to principles akin to ius naturale. He does so in a number of steps.58 A first set of glosses on Digest 1.3.11, which dealt with written statutes and customs, gives primacy to the emperor’s interpretation in deciding a dispute where custom is inconsistent with written law; in doing so, the emperor may give consideration to equity whereas a judge is bound by strict law.59 But judges, Vacarius notes, implying ‘emperors’, may have regard to equitas rudis or ‘natural justice’ rather than equitas constituta or the ‘equitable principles of positive law’.60 A second set of glosses treat the power of custom to abrogate written statutes.61 Together the two sets of glosses indicate how custom may override written statutes where the will of the people support it. These ideas are taken up again in the Lectura ad Institutiones and a separate gloss identified with Vacarius on the Decretum Gratiani.62 Vacarius’s unusual focus on the will of the people calls to mind the views of Martinus Gosia’s little-​ known interpretation of Ulpian’s famous phrase defining justice (‘to each their own’) as a ‘political virtue’. Consistent with moral theologians’ understandings on the four Cardinal Virtues, both Ulpian and Martinus represented justice as the political virtue ‘observed by those who wisely govern themselves and the state, taking care of human needs’.63 The subtle glosses, fine distinctions and implications that Vacarius draws in his treatment of custom in the Liber pauperum arguably demonstrate a different notion of rights. We cannot take this too far, but students interpreted these passages in such a way that a means existed for custom—​which was consistent

58 59 60 61 62 63

Taliadoros, Law and Theology, 48–​51; de Zulueta, introduction to the Liber pauperum, lxxiii–​lxxviii. Vacarius, Liber pauperum, ed. de Zulueta, 1.8 (ad Digest 1.3.11), pp. 13, 16. Ibid., 3.81 (ad Code 3.1.8), pp. 69–​70. Ibid., 1.8 (ad Digest 1.3.11), p. 15. Lectura ad Institutiones, eds. de Zulueta and Stein, 1.2.11, pp. 11–​12; Cambridge, Gonville and Caius College, MS 676/​283, fol. 4v, cited in Kuttner and Rathbone, ‘Anglo–​Norman Canonists’, 318, n. 7a. I. Bejczy, ‘Law and Ethics:  Twelfth-​Century Jurists on the Virtue of Justice’, Viator, 36 (2005), 197–​216, here 213, citing Martinus Gosia, ‘Exordium Institutionum, 4–​5/​272–​273; 5/​273’, in Scripta anecdota glossatorum, ed. J. Palmerio, Bibliotheca iuridica medii aevi, 1: Additiones (3 vols, Bologna, 1914; rpt. Torino, 1962).

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with the will of the people—​to overcome written statutes that were inconsistent with it, in cases where the emperor, in deciding on how to resolve the contradiction, interpreted the case with unwritten equity or natural justice. Without more discussion by the master, we must leave his apparent notions of political representation by the will of the people in this inchoate and unformed state. Arguably such notions are, if we are to accept some critics of Tierney, more truly examples of political rights than the much-​debated concepts of subjective right and permissive natural law. Vacarius’s Summa de matrimonio touches on permissive law when discussing clandestine marriage. Vacarius discusses the canon Aliter (Decretum Gratiani C.30 q.5 c.1), falsely attributed to Pope Evaristus (fl. c.100 ce) but in fact a forgery, which calls a union of a man with a woman, who is not yet of majority age, in circumstances where the couple has not obtained parental consent nor observed formalities (such as banns), a ‘concubinage’ (contubernium). The same canon refers to a marriage that had fulfilled these matters being legitimum.64 It contained an exception in that the formalities need not be observed where the parties chose not to follow them ‘by their own will and assisted by a lawful vow’; such a marriage would still be legitimum. Vacarius observes that, although this exception appears to make the decretal a permissio rather than a preceptio, such an interpretation is perverse. A  marriage formed with the relevant parental consents and other formalities is a legitimum marriage, he notes, even though these formalities are not required by law to form marriage but are merely permitted; nevertheless, they are justified, by natural reason. Natural reason (naturalis ratio), Vacarius notes, demands the consent of parents and relatives to the marriage of girls who are under-​age.65 In the same way, a ‘legitimate’ will comes about by a trust, legacies, manumissions and other things, even though these are only permitted at law and not required. Vacarius in this way reveals a rather different understanding of a permission than Tierney’s canonists: rather than celebrating the freedom from formalities that such a concept of permission could offer, for example in concubinage and wills, Vacarius would rather such formalities, where they are justified by natural reason, be seen as precepts. The marriage treatise is also significant for its understanding of the notion of potestas, in a manner that is quite unlike the subjective notion of individual power that Tierney saw in the canonists. Rather than it being a notion of 64 65

Vacarius, Summa de matrimonio, ed. Maitland, §16, p. 277. See Taliadoros, Law and Theology, 82–​85; and most recently P. Reynolds, How Marriage Became One of the Sacraments (Cambridge, 2016), 271–​72. Vacarius, Summa de matrimonio, ed. Maitland, §16, p. 277.

102 Taliadoros individual agency and power within the individual, as Tierney understands it in the canonists, Vacarius understands potestas consistent with the notion of plena potestatis that Rufinus and other canonists had used. As he states early in the treatise, a marriage cannot be initiatum unless it is already perfectum, or completed: just as a priest is perfectum in his office, so is a marriage perfectum in its office and execution.66 A  marriage can be perfectum without needing anything further: ‘Why do they say that a marriage is imperfectum in relation to its office since it was perfectum even before the joining together (concubitum)?’67 This indicates that something can only be so-​called when it is has attained the complete or ‘perfected’ form of that office; if it is not yet complete it is not yet that office and cannot be called such. This notion of potestas is also taken up in Vacarius’s treatise, Liber contra. His interlocutor’s erroneous and heretical arguments posit that priests ought to be removed from holy orders if they misbehave.68 Vacarius responds that the personal merit of a priest is distinct from the office of priesthood that they occupy.69 He observes that these arguments relate to the meritum of the person’s life not the officium sacerdotium itself, which is the ius officii.70 The term priesthood (sacerdotium), like the terms procurator, tutor or dispensator in Roman law, denotes an office—​it is not a thing of nature or of merit. That is, someone is not a priest because he is a man or of good or bad character, but because he was legitimately ordained.71 Vacarius even observes that a passage from Pseudo-​Dionysius, which enjoins priests from sin, supports this view; the very term sacerdotium denotes an office and a power, and a man is a priest by the ius officii not the meritum personae.72 He explains further the link between office (officium) and power (potestas):  whoever is elected by law as a priest is instituted by God in that office, and has the potestas of that office, a legal concept distinct from potentia, an extra-​legal force.73 Thus, Vacarius envisages sacerdotium as a legal office that derives its legitimate power from the fact of 66 67 68

69 70 71 72 73

Ibid., §3, p. 271. Ibid., §17, p. 278: ‘[C]‌ur ergo dicitur esse inperfectum quantum ad officium quod perfectum habet etiam ante concubitum’? Vacarius, Liber contra, Liber contra multiplices et varios errores, in L’eresia di Ugo Speroni nella confutazione del maestro Vacario: Testo inedito del secolo XII con studio storico e dottrinale, ed. I. da Milano, Studi e Testi, 115 (Vatican City, 1945), [B]‌, pp. 475–​76; [§I] [I]–​[III], pp. 483–​85. Ibid., [B]‌, p. 476; [§I] [1]–​[3], pp. 484–​87. Ibid., [B]‌, p. 476. Ibid., [§1], p. 484. Ibid., [§I] [2]‌, p. 485; [§I] [3], p. 486. Ibid., [§II] [1]‌, p.  488; [§II] [1], p.  489. Vacarius later uses this distinction between the priestly office and the personal merit of the priest to argue that King David retained

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ordination, not the priest’s personal merit. In no way does this envisage potestas as a zone of liberty capable of exercise by the holder, or as a ‘subjective right’ as Tierney understands it, but as an objective and normative power. That is to say, Vacarius considers potestas as synonymous with lawful authority not as a sphere of licitness. Vacarius’s treatise on the union of the divine and human natures in Christ, the Tractatus de assumpto homine, takes up the notion of personhood. While at first blush this notion appears to have little to do with rights and ius naturale, Vacarius’s treatise taps into longstanding theological, legal and metaphysical debates on the notion of ‘person as a legal term’ (persona nomen iuris est) that underlie notions of subjectivity and the individual. Vacarius observes that the term persona is a legal term (persona nomen iuris est), citing Faustus of Riez.74 Later in the treatise, he observes that two things are required for a substance to be called a ‘person’: a rational nature and a discrete substance.75 Elisabeth Schneider has explained that Roman jurists distinguished between notions of juridical person, namely the ‘objective’ notion of person that existed for corporate bodies as legal actors (personae fictae or repraesentatae), and the subjective right of a natural person to individually deal with property (verae personae).76 Roman law also distinguished between persons who were free and unfree, the first being sui iuris, such as the pater familias, while the latter were not (alieni iuris), such as slaves. Faustus of Riez, abbot of Lérins and later bishop of Riez, first used the term ‘persona, res iuris’ in his book De Spiritu Sancto Libri Duo, composed in the fifth century ce, against the Macedonians who refused to recognise the divine nature in the Holy Spirit. With his formula, ‘res iuris, substantia, res naturae’, Faustus sought to prove that Christ possessed a single person even if He possessed two natures (divine and human). In order to explain this, Faustus used the difference between persona sui iuris and persona alieni iuris in Roman law: when the alieni iuris son or slave was absorbed into the person of the sui iuris pater familias, so the unique divine person of

74

75 76

his regal office despite his adultery and other sins: Vacarius, Liber contra, ed. da Milano, [§XXI] [II–​2], p. 545. Vacarius, Tractatus de assumpto homine, in ‘The “Tractatus De Assumpto Homine” by Magister Vacarius’, ed. N. Häring, Mediaeval Studies, 21 (1959), §16, p. 166. Also note that in Vacarius, Liber contra, ed. da Milano, [§XXV] [1]‌, p. 550 he observes that ‘the priesthood is a legal matter, namely of a certain statute … But one does not take on the honour of the priesthood oneself; therefore one is not admitted by oneself, but by another’. In other words, it is an office that must be legitimately taken up. Ibid., §38, p. 174. E. Schneider, ‘Les origines théologiques de la personne en droit canonique médiéval’, in Proceedings of the Fourteenth International Congress of Medieval Canon Law, 1091–​1110.

104 Taliadoros Christ absorbed both a human person and a human nature.77 This arguably left no room for any individual agency of a subjective nature in that person. Vacarius took on Faustus of Riez’s notion of juridical or objective personhood in contrast with the subjective sense of ius used by Tierney’s canonists. That is, personhood for Vacarius was not a repository of subjective individualism but a legal concept that denoted the legal distinction between free and unfree and between a corporate entity and a natural person; in short, it was evocative of objective legal categories and capacities. It is worth comparing the prologue of the Liber pauperum to the anonymous Lectura ad Institutiones that was composed around 1200 in England by an unknown student of Vacarius who was also influenced by the glossator Johannes Bassianus. It comprises a series of lectures on the primary learning text of the Corpus iuris civilis, the Institutes.78 In the introduction to the Lectura ad Institutiones, the anonymous author discusses the subject matter (materia) of the lectura, namely justice and law, which are ‘identical. Just as the precepts of law (iuris precepta) are to live honestly, not to harm others and to attribute to each his own (suum cuique tribuere), so they are also the precepts of justice. Just as justice ordains, allows and forbids (precepit, permittit prohibet) so also does the law’. A little later, the author adds: ‘The observance of justice and law is of what is ordered and forbidden; their utility is of what is allowed (permittituntur)’. But, after this promising recognition of permissive natural law, crucially the lecturer distinguishes ius from iustitia as species to genus.79 But how far such a permission forms part of natural law is not clear; the lecturer does not go on to explain whether it forms part of justice or law, or how it might do so. But Book 1 of the Lectura ad Institutiones takes up again Ulpian’s famous definition of iustitia (suum cuique tribuere), commenting that ‘justice is the will to attribute to each his due’ (my emphasis), within his commentary on the meaning of ‘jurisprudence’ (iurisprudentia).80 Kuttner has observed that Ulpian’s phrase, defining justice as ‘a constant and perpetual will’ attributing ‘to each his own’, although variously defined, had two common elements recognised

77 78 79 80

Ibid. Stein, introduction to the Lectura ad Institutiones, li. Lectura ad Institutiones, Materia Institutionum, eds. de Zulueta and Stein, 3. Stein, introduction to Lectura ad Institutiones, lvi–​lviii. On the meaning and origin of this phrase, see S. Kuttner, ‘A Forgotten Definition of Justice’, in S. Kuttner and A. Stickler (eds.), Mélanges G. Fransen, Studia Gratiana (Rome, 1976), 75–​109 and H. ­Kantorowicz, Studies in the Glossators of the Roman Law:  Newly Discovered Writings of the Twelfth ­Century (Cambridge, 1938), 234.

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by all: voluntas and utilitas.81 But, rather than going on to interpret justice here as a moral force within the individual and within the voluntary control of that individual, and as consistent with subjective vis or ius that Tierney finds in twelfth century canonists, our lecturer does not go on to develop this idea. So, rather than understanding iustitia as synonymous with ius as a subjective right or permissive natural law, the discussion in the Lectura ad Institutiones discusses justice as one of the virtues.82 The Lectura ad Institutiones deals with the crucial term ius naturale. But it does so in a manner that is on all fours with many Justinianic Roman law civilians. The Lectura ad Institutiones, commenting on the definition of ius naturale in Institutes 1.2 (‘Natural law is that which nature teaches all animals’),83 begins by noting that ‘nature’ is understood in two ways: first ‘an urge or force which exists in appropriate form in all animals and by which they are moved to procreate or to bring up children’; and second ‘nature may mean natural reason’. The second meaning of nature, he explains, is the natural reason that is laid down (constituo) among all men, and is called ius gentium. The first meaning, the text adds, is the meaning of nature given ‘in this text’.84 But the Lectura ad Institutiones deals with libertas in a manner consistent with Tierney’s canonists. When dealing with the law of persons in Institutes 1.3, and its distinction between free and unfree persons. Institutes 1.3.1 defines libertas (freedom) here as the ‘natural right (libertas … est … naturalis facultas) enjoyed by each one to do as he pleases, unless prevented by force or by law (aut vi aut iure prohibetur)’. To this, the lecturer comments that, the phrase libertas est facultas is an ‘unimpeded possibility’ (expedita possibilitas), in contrast to an ‘impeded’ (impedita) one.85 The text further elaborates on this idea of freedom, when commenting on freeborn persons (De libertinis) (Institutes 1.4). ‘Since it is “granted” to the person manumitted, freedom appears to come from man rather than from nature. We say that freedom comes from nature and from man: from nature initially, but from man in respect to the removal of impediments’.86 Vacarius’s discussion here shows similarities with Tierney’s 81 82 83

84 85 86

‘Iustitia est constans et perpetua uoluntas ius suum cuique tribuendi …’, cited in Kuttner, ‘A Forgotten Definition of Justice’, 79; cf. 79–​94. Bejczy, ‘Law and Ethics’, 200, 204, 206–​07. Institutes 1.2: ‘Ius naturale est quod natura omnia animalia docuit: nam ius istud non humani generis proprium est, sed omnium animalium’; Digest 1.1.1.3: ‘Ius naturale est, quod natura omnia animalia docuit: nam ius istud non humani generis proprium, sed omnium animalium’. Vacarius, Lectura ad Institutiones, eds. de Zulueta and Stein, 1.2, pp. 9–​10. Ibid., 1.4, p. 13. The editors also note its consonance with a unique manuscript of Vacarius, Liber pauperum, ed. de Zulueta, 8.26 (ad Digest 43.29.2), p. 261. Lectura ad Institutiones, eds. de Zulueta and Stein, 1.5, p. 14.

106 Taliadoros understanding of libertas as permissive natural law among the decretists; for Tierney and the canonists, libertas was a mere ‘demonstration’ of natural law that human enactment could contravene. Equally, manumission was an instance of human agency removing the impediments to the natural freedom that humans were born with.87 The Lectura ad Institutiones later returns to the notions of vis (force) and ius that were earlier discussed in defining ius naturale, but this time when commenting on tutorship or guardianship (tutela). The lecturer states that tutela is ‘power (potestas) with force (vis), by contrast with power without force’. Stein notes that modern editions of the Roman law corpus have ius rather than vis.88 So the author recognises vis or ius as force, so we might be tempted to translate tutela as ‘power with lawful force’. Vacarius elaborates that there is ‘force without power’, such as that which a judge exercises over someone unjustly, thus implying the unlawfulness of the force.89 Potestas here implies lawful or licit power. Vacarius’s understanding of vis and potestas here are not spheres of autonomy, as the canonists that Tierney focuses on considered them in certain contexts, but objective and lawful legal notions. Conclusion Ricardus was an exemplary exponent of the subjective rights and permissive natural law conceptions that other canonists, most famously Rufinus and Huguccio, articulated. Tierney regarded Ricardus as a key figure in the articulation of both subjective rights and permissive natural law. This essay highlights this tendency in Ricardus by pointing to additional works of his works that Tierney did not consider, but which bear out Tierney’s observations. In contrast, Vacarius went his own idiosyncratic way. Yet Vacarius’s works show that he appears to have grappled with the ideas of subjective rights and permissive natural law, even though he did not always take them on as his own. Vacarius’s commentary on the notion of the term ius naturale in the Liber pauperum adopts a sui generis approach that moves between Roman civilian, canonistic and his own. Yet in this work Vacarius arguably offers an interpretation of custom as consistent with unwritten natural justice that possibly trumps enacted statute. This represents a notion of political rights that appears

87 88 89

Tierney, Liberty and Law, 34. Stein, introduction to Lectura ad Institutiones, lxiii. Lectura ad Institutiones, eds. de Zulueta and Stein, 1.13, p. 22.

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to be an enforceable means of asserting individual rights against political rule, and thus distinct from the inchoate notions that Tierney posits. Vacarius also treats the various terms that arise in Tierney’s discourse on rights. The term permissio, for Vacarius in his Summa de matrimonio, should be treated with caution when dealing with canons such as Aliter on concubinage, particularly when not justified by natural reason. Potestas, likewise, is not synonymous with a sphere of licitness but rather means lawful authority in his Liber contra. The very term ius for Vacarius is a legal term, as revealed in his Liber contra, and so not a repository for subjective individualism as Tierney’s canonists might suggest. The concept ius naturale is taken up by the anonymous Lectura ad Institutiones in a definition consistent with Roman lawyers. In that same work, libertas is interpreted by Vacarius as a freedom and therefore as an instance of permissive natural law. But elsewhere, that lecture treats vis and potestas as objective and lawful legal notions, not spheres of autonomy. This essay reveals that overarching narratives of rights, of the sort that Tierney sets out in his scholarship on natural rights, are important for providing a framework for investigating pre-​modern origins to such concepts but that nevertheless fail to account for everyone. Vacarius may be the exception that proves this rule.

Chapter 5

How the Local Council of Seligenstadt in 1023 Drew upon Books of Church Law Greta Austin The modern user encountering a medieval canon law collection which lacks commentary usually wonders at some point about how the users consulted such books. One way of investigating this question is to look at how medieval councils consulted or used canon law collections, and more generally whether medieval councils drew directly on the language of books, in order to identify relevant legal texts, to find legal precedents or to borrow language. The council of Seligenstadt in 1023 provides a useful case study for considering the question of how canon law was put into action. Burchard, bishop of Worms, attended the meeting at Seligenstadt. It seems plausible that he brought along his book of canon law to the council, and modern scholars have long thought that Burchard’s Decretum played a role there. Seligenstadt thus provides an excellent vehicle for trying to determine the dynamics by which people engaged with books of canon law. Earlier councils had used—​ sometimes verbatim1—​the handbook created by Regino of Prüm, and which Burchard had then drawn upon extensively, clarified and updated.2 But the Decretum was itself created in stages—​amended, augmented and enlarged—​ as books arrived in Worms, on loan from the cathedral library at Freising. Ostensibly irrelevant or at least of interest only to specialists, book production provides an important clue about the relationships between written law, the books that contained it, and law as put into action at councils. This essay will argue that the council of Seligendstadt drew directly upon a book of canon law—​but not necessarily Burchard’s Decretum, as many scholars have thought. Instead, council participants apparently consulted a different collection, a farrago of texts compiled in Freising (Munich, Bayerisch

1 See, e.g., Hohenaltheim (916), Die Konzilien Deutschlands und Reichsitaliens, ed. E.-D. Hehl with H. Fuhrmann, mgh, Conc., 6.1 (Hannover, 1987), 3, and c.1, at p. 20. 2 See W.  Hartmann, ‘ “Sozialdisziplinierung” und “Sündenzucht” im frühen Mittelalter? Das bischöfliche Sendgericht in der Zeit um 900’, Jahrbuch des Historischen Kollegs 2005 (Munich, 2006), 110.

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Staatsbibliothek, Clm 27246).3 Its presence at the council suggests a vibrant engagement with legal sources. Otherwise, why would someone bother to bring a more minor collection rather than Burchard’s complete collection? This collection accounts for almost all the canons not found in Burchard. The wording of texts in Munich Clm 27246 and in Seligenstadt is also much closer, suggesting that if the Seligenstadt participants consulted any text directly, they probably used a copy of Munich Clm 27246. In short, it seems very likely that Burchard’s Decretum was indeed part of the discussions at Seligenstadt, but possibly only as mediated by its author, Burchard, bishop of Worms, who was present at the council. More likely to have been taken out and used as a hard copy, however, was this manuscript now in Munich which excerpted conciliar decrees and excerpts. The canons of Seligenstadt therefore seem to result from a dynamic process whereby the participants decided upon canons of pressing local import and consulted canon law collections, either via hard copies or with the assistance of their authors.

Overview of Seligenstadt’s Proceedings

The council held south of Mainz in Seligenstadt in 1023 was convened by Aribo, archbishop of Mainz. Five bishops, including Burchard of Worms, and ten abbots participated in the council. But the proceedings and decisions of this relatively tiny gathering received considerable attention thanks to Burchard’s Decretum. In particular, the conciliar decisions at Seligenstadt appear as an addition at the end of the Decretum, and copyists thus included them when re-​copying that collection.4 Through this accident of fate, or really through its association with someone who turned out to be a famous canonist, a somewhat obscure council managed to get far more publicity, long-​term, that it would have otherwise. The council of Seligenstadt provides an opportunity for examining the interactions between politics, ritual and church law. It produced twenty canons (one of which repeated an earlier one) that appear in

3 A farrago is a collection of texts whose relationship to each other is not readily evident; they are not organized by date or topic. 4 Seligenstadt appears as an addition to one of the two earliest Decretum manuscripts, produced under Burchard in the Worms scriptorium: Vatican, Biblioteca Apostolica Vaticana, Pal. lat. 586, fol. 277v–​80v. See H. Hoffmann and R. Pokorny, Das Dekret des Bischofs Burchard von Worms: Textstufen—​Frühe Verbreitung—​Vorlagen, MGH, Hilfsmittel, 12 (Munich, 1991), 37.

110 Austin two recensions. Detlev Jasper has recently re-​edited the council, which makes it much easier to study.5 Why was the council called? The preface specifically explains that the purpose of the council was to resolve conflicts and to unify ‘disagreements among our various customs’.6 Its language, perhaps self-​consciously, mirrors that of the preface to Burchard’s collection, which also sought explicitly to address discrepancies among legal texts and to provide greater harmony.7 Whether these concerns with eliminating conflicts reflected Burchard’s direct influence, or whether they were broadly shared by Burchard’s contemporaries, will be discussed later in this essay. The council had some central themes: penance, marriage law, episcopal authority and ritual practice and sacred space. A number of canons clarified ritual questions: that marriages could not be carried out during particular times of the year (repeating Aachen 992),8 or that a priest who drinks after the cock crows could not celebrate mass that day (echoing Koblenz 922).9 Why would the council repeat decrees already on the books? Were people not observing these? Was there ongoing confusion on the question? Or were the people at Seligenstadt just trying to reinforce existing rules by repeating them yet again? Canon 5, for instance, reiterated a decree from the well-​circulated council of Tribur (895), that a priest could not celebrate more than three masses per day. Why would this need to be repeated? The obvious conclusion is that priests were doing more than three masses. But perhaps the conciliar members wanted to reinforce the authority of Tribur, or just provide a gentle reminder of the obvious—​the way in which a Catholic school manual might reiterate the necessity of wearing a uniform, even if every student wears a uniform every day. Councils also might reiterate earlier legislation, perhaps to emphasise it or to settle a disputed point. Seligenstadt’s legislation also suggests that councils responded to either hypothetical or actual situations which the existing legal material had not 5 Die Konzilien Deutschlands und Reichsitaliens, 1023–​1059, ed. D. Jasper, mgh, Conc., 8 (Hannover, 2010), 34–​42. All references henceforth are to this edition. The canons’ numbering (not in the edition) is based on the first recension of the text. 6 Seligenstadt Preface: ‘… disparilitas nostrarum singularium consuetudinum honesta consensione redigeretur in unum’ (Konzilien, ed. Jasper, 34). See the forthcoming translation in J. Ott and A. Trumbore-​Jones (trans.), The Medieval Secular Clergy: A Source Collection (Toronto, forthcoming). 7 G. Austin, Shaping Church Law Around the Year 1000:  The Decretum of Burchard of Worms (Aldershot, 2009), 76–​81. 8 Seligenstadt c.3; Konzilien, ed. Jasper, 37. 9 Seligenstadt c.4; Ibid.

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addressed. Although this essay focuses on how the participants at councils used books of canon law, it is helpful to consider the council’s use of such books in light of the contemporary relationships between law and practice. The council’s decisions reflected the engagement of Church law with the immediacies of lived experience and practice. At least four canons make clear that they respond directly to popular practice. One decree, for instance, prohibits a ‘wicked custom, which now has grown up among almost everyone’.10 This wording suggests that the canon refers directly to contemporary practice—​ here, people using churches and churchyards as meeting places. Obviously, it is debatable as to whether all texts referred to contemporary practices, since a number of texts repeated earlier conciliar decisions, or reiterated texts in the Decretum. But this canon suggests that the conciliar participants were thinking about contemporary issues and responding directly to them. Even c.2 makes clear that it sought to clear up confusion about when to observe fasts (‘regarding the uncertainty about the four fast periods …’).11 Similarly, one canon says that no one should throw the Host onto a fire in order to put it out. Again, the wording suggests that people were actually doing this and that the council sought to prohibit it: ‘A complaint was raised at the council …’.12 This canon sounds similar to the texts in Burchard’s Decretum about popular practices designed to draw upon the power of the supernatural.13 Along similar lines, c.10 discusses how laity and ‘especially married women have the habit …’.14 of hearing specific masses and the reading from John 1 for the purposes of divination. These three canons make quite clear that the council formulated at least these three decrees in order to define the parameters of proper Christian practice and belief. It is unclear whether all the canons responded to current practices, but certainly at least seven in total did. In addition to the four Seligenstadt canons discussed above, another three responded to the contemporary controversy surrounding the marriage of the powerful nobles Otto and Irmingard of

10 11 12 13

14

Seligenstadt c.9: ‘… ut mala consuetudo, que apud omnes iam pene inolevit …’; Ibid., 39. Seligenstadt c.2: ‘De incerto ieiunio iiii temporum …’; Ibid., 36. Seligenstadt c.6: ‘Conquestum est in sancto concilio …’; Ibid., 38. See especially Burchard’s Decretum, Bk.19 c.5 and Bk.10. The edition closest to the two earliest manuscripts is the Cologne edition: Burchard, Bishop of Worms, Decretorum Libri XX: Ex consiliis et orthodoxorum patrum decretis, tum etiam diversarum nationum synodis seu loci communes congesti, eds. G. Fransen and T. Kölzer (Cologne, 1548; rpt. Aalen, 1992). Seligenstadt c.10:  ‘Quidam laicorum et maxime matrone habent in consuetudine …’; Konzilien, ed. Jasper, 39.

112 Austin Hammerstein.15 Henry ii had intervened in their marriage. He objected that their marriage was invalid because they were distantly related. The question, then, was how to count blood relationships. There were two options. Blood relationships could be counted down through the common generations (more rigorously) or they could be counted by starting with one spouse, numbering to the shared ancestor, and then counting back to the other spouse. Henry ii and Burchard espoused the more rigorous method of counting down through the generations to challenge the legality of Otto and Irmingard’s marriage.16 In light of this ongoing debate, c.11 of Seligenstadt took a strong position on that contentious issue of how to count blood relationships—​a position exactly along the same lines as Burchard in his Decretum. In addition to advocating for the first method of counting through the generations, Burchard’s collection said that the counting should begin not with the shared ancestor but with their siblings (which added one extra degree of relationship).17 Canon 11 advocated this method of numbering from the brother or sister of the possible shared ancestor. Decretum advocated the same method of counting. In addition, c.16 and c.18 placed limits upon lay appeals to Rome. These texts undermined Irmingard’s appeal to Rome.18 Thus, at Seligenstadt, we see the workings of a local council in which council members worked to create more uniformity and to standardise church rituals and procedures. A number of the canons directly responded to contemporary issues, including the politically-​charged question of the Hammerstein marriage. The council sought to affirm the boundaries of the Church, even literally in terms of prohibiting meetings on church grounds. It also delineated proper ritual practice, such as the specific periods of not eating meat, and addressed particularly penance—​that penitents should not be allowed in churches, and that the carena (a forty-​day penitential fast) should not be divided up nor performed in different places. The use of the consecrated Host and particular readings or masses could not be used, the council ruled, to draw upon the power of the holy. By insisting on the boundaries between supernatural power as 15 16

17 18

On the conflict, see K.  Görich, ‘Der Gandersheimer Streit zur Zeit Ottos III:  Ein Konflikt um die Metropolitanrechte des Erzbischofs Willigis von Mainz’, ZRG Kan. Abt., 79 (1993), 56–​94. See most recently K.  Ubl, Inzestverbot und Gesetzgebung:  Die Konstruktion eines Verbrechens (300–​1100) (New  York, 2008), 386. See also P.  Corbet, Autour de Burchard de Worms: L’Église allemande et les interdits de parenté (IXème–​XIIème siècle), Ius Commune Sonderheft, Studien zur Europäischen Rechtsgeschichte, 142 (Frankfurt-​am-​Main, 2001). Burchard, Decretum, Bk.7 c.10. H. Wolter, Die Synoden im Reichsgebiet und die Reichsitalien von 916 bis 1056 (Paderborn, 1988), 297.

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used by the Church and that as (improperly, according to the council) drawn upon by the laity, the council in some ways anticipated the changes of the papal reform movements of the later-​eleventh century—​and indeed the major issue of lay control over churches is addressed in c.13 of Seligenstadt (that no laity should bequeath their church to a priest without a bishop’s permission). The Seligenstadt decrees reassert, above all, the Church’s control over time in the regulations controlling fast periods and marriage,19 the boundaries between the clergy and the laity20 and the Church’s physical space as marked off as distinct from ‘secular’ space.21 In seeking to standardise practices and provide ‘unity’, the Seligenstadt council provides a snapshot of a local meeting of abbots and bishops actively thinking through contemporary issues and responding to them.

How Were the Canons Formulated?

Now I wish to turn to the ways in which the council of Seligenstadt used books of canon law. Burchard of Worms had recently, after all, compiled a comprehensive handbook of church law, designed explicitly to be useful.22 Did council participants actually take out and use a copy of Burchard’s Decretum? Our answers can only be speculative, since the preface to Seligenstadt does not mention such an action. Yet a number of the council’s canons echo or mirror texts in Burchard’s collection. At the same time, it also makes sense that a comprehensive collection would naturally address topics also treated at a council. Scholars have long debated whether the council used Burchard’s canon law collection as a textual source. Although Julius Harttung in 1876 asserted that the council consulted Burchard’s Decretum directly, Heinz Wolter, writing 112 years later, questioned this argument. He suggested instead that Burchard personally influenced the synod.23 A number of factors—​not only the multiple parallels 19 20 21 22

23

Seligenstadt cc.1–​3. Seligenstadt c.4, that a priest should not drink a certain period before celebrating mass. Seligenstadt c.8 that no one should carry a sword into a church; c.9 that secular meetings should not be held on church grounds; and c.12 that laity should not live on church grounds. In his preface, Burchard wrote that he hoped that his reader would find something useful in it (Preface, Decretorum Libri XX, ed. Fransen, 46a; R. Somerville and B. Brasington (trans.), Prefaces to Canon Law Collections in Latin Christianity: Selected Translations, 500–​ 1245 (New Haven-London, 1998), 101. Burchard also described his collection as containing ‘many useful things for our ministry’; see Preface, Decretorum Libri XX, ed. Fransen, 46a; Somerville and Brasington (trans.), Prefaces to Canon Law Collections, 101. Wolter, Synoden, 305.

114 Austin between texts—​point to a close relationship between the Decretum and the conciliar texts. At the same time, however, the texts themselves were clearly not simply copied from the Decretum, since the wording in Seligenstadt’s canons is seldom identical to that in Burchard. It is difficult to determine whether the Decretum was actually taken out and handled, or if Burchard simply knew the texts so well that he paraphrased it. I wish to make two points. One, the number of overlapping texts with the Decretum make it seem likely that the participants did have it at hand, although they certainly did not copy it slavishly (which would have been redundant anyway). The Seligenstadt texts with parallels in the Decretum either provide much-​simplified overviews of the texts, or they glossed these texts—​providing further detail and making texts consistent with each other. Two, I additionally propose that the conciliar participants consulted not one but two collections of canon law: first, Burchard’s Decretum, but, second, and more significantly influential, a mélange of canonical texts as found in Munich Clm 27246 or a predecessor of this collection. In fact, if the council consulted any book directly, it might have been Munich Clm 27246 or a copy of it, rather than Burchard’s collection. Taken together, the two collections have parallels in almost all of the Seligenstadt canons. The non-​Decretum canons almost all are from the councils of Koblenz (922), Erfurt (932) and Mainz (950), for which Munich Clm 27246 is one of the main (or only) witnesses. Why would Munich Clm 27246 (or a copy of it) have been available at the council? This manuscript came on loan from the Freising scriptorium.24 The Freising and Worms scriptoria exchanged manuscripts with each other, and among these Munich Clm 27246 was probably used in the making of Burchard’s Decretum.25 In fact, a peculiarity of this manuscript is that Burchard and his assistants used it twice: once in the ‘early core’ of material, and then again in the additions to Bibilioteca Apostolica Vaticana, Pal. lat 585/​586, one of the two 24

25

N. Daniel, Handschriften des zehnten Jahrhunderts aus der Freisinger Dombibliothek, Münchener Beiträge zur Mediävistik und Renaissanceforschung, 11 (Munich, 1973), 107–​ 09. For a description of Munich Clm 27246, see Konzilien, ed. Hehl, 6–​10. For its use in the Collectio duodecim partium and in the Decretum, see J. Müller, Untersuchungen zur Collectio Duodecim Partium, Abhandlungen zur rechtswissenschaftlichen Grundlagenforschung, 73 (Ebelsbach, 1989), 56–​60 (on the inclusion of canons from the council of Erfurt [932]), 72–​78 (on Hohenaltheim canons) and 299–​301. See also the discussion of Erfurt and Hohenaltheim canons in Hoffmann and Pokorny, Dekret, 81–​84, and ‘Erfurt’, in Konzilien, ed. Hehl, 98. Austin, Shaping Church Law, 48 n. 70. On the use of Munich Clm 27246 in Burchard and the Collectio duodecim partium, see G.  Austin, ‘Freising and Worms in the Early Eleventh Century: Revisiting the Relationship between the Collectio duodecim partium and Burchard’s Decretum’, ZRG Kan. Abt., 93 (2007), 45–​108.

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earliest manuscripts.26 So it seems likely that not just one but two canon law collections informed the making of the Seligenstadt texts—​not usually with word-​to-​word copying, but with legal precedents in these collections. Certain Seligenstadt canons with parallels in the councils of Mainz in 950, Erfurt in 932 and Koblenz 922 were probably inspired by Munich Clm 27246, which contains these tenth-​century conciliar decrees.27

The Influence of Burchard and His Decretum

There are a number of reasons for thinking that Burchard’s Decretum influenced the council, some less important than others: –​ The council of Seligenstadt was conducted according to the Decretum’s instructions for carrying out a synod; –​ The preface to Seligenstadt’s acta discusses the need to eliminate discrepancies and to create unity, just as Burchard’s Decretum does; –​ The Seligenstadt canons were often transmitted with the Decretum; –​ Half of the Seligenstadt canons have parallels in the Decretum; –​ The two sources share some idiosyncratic terms; –​ The general themes of penance, ritual practice and episcopal authority dominate the council, as they do the Decretum. Synodal Proceedings Seligenstadt was held according to directions in the Decretum for holding a synod: on Ascension Day and in the metropolitan see.28 Detlev Jasper notes this in his introduction to the edition of the council. That the council conformed to the Decretum’s instructions seems not to be a coincidence. The Prefaces Second, the preface to Seligenstadt talks a great deal about creating unity from dissonance, just as Burchard’s Preface spoke about abolishing discrepancies and confusion.29 Burchard’s Lex familiae, too, which Burchard ordered to be drawn up for the familia of Worms, c.1023, spoke of creating ‘one law for rich and poor’. Other prefaces to earlier councils of the tenth and early-​eleventh 26 27 28 29

Austin, ‘Freising and Worms in the Early Eleventh Century’, 45–​108. On these additions and the hands, see Hoffmann and Pokorny, Dekret, 30–​31. Seligenstadt cc.1, 4, 5, 6, 10, 13; see discussion below. Cf Burchard, Decretum, Bk.1 c.44 and c.45. See Konzilien, ed. Jasper, 9. See discussion above.

116 Austin centuries generally do not focus on this type of unifying and systematising project. Seligenstadt’s preface is quite unusual in how it explicitly focuses on the project of creating unity and eliminating discrepancies among various regional practices. Seligenstadt’s Decrees Were Transmitted with Burchard’s Decretum The transmission of Seligenstadt’s canons is very closely linked to Burchard’s Decretum. The earliest manuscript of the Decretum, produced in the Worms scriptorium and now in the Vatican, contains the canons as an addition at the end.30 Manuscripts dependent on the Vatican one, indirectly or directly, also tend to include the Seligenstadt texts as additions at the end of the Decretum. For a regional synod of this period, Seligenstadt’s canons have an unusually wide circulation, due to their appearance in Burchard.31 Half of Seligenstadt’s Canons Have Parallels in the Decretum For ten of the twenty Seligenstadt canons, there are very similar texts in Burchard’s collection. Yet the language of the synod’s canons is almost never taken verbatim from the Decretum, with the exception of phrases in c.1 and c.3.32 Instead, the Decretum seems to have influenced the canons in two ways. First, some Seligenstadt canons extended and clarified texts in Burchard.33 In addition to these canons which seem to gloss and extend texts in Burchard’s Decretum, there are three Seligenstadt canons which provided very simple overviews,34 and which in fact are simpler than their analogues in Burchard. For instance, Seligenstadt is even clearer and more direct than the Decretum in stating flatly that no one should bring arms into churches.

Seligenstadt Texts Share Atypical Language and Positions with Burchard’s Collection The Seligenstadt canons adopt two idiosyncratic positions which Burchard’s Decretum popularised—​one is minor, the other quite important. The minor point is that the Decretum used the term carina for a forty-​day period 30 31 32 33 34

Vatican, bav, Pal. lat. 586, fol. 277vb–​80va; Hoffmann and Pokorny, Dekret, 37. Twenty-​nine manuscripts contain the Seligenstadt decrees, but only three manuscripts include them independently of the Decretum. See Konzilien, ed. Jasper, 16. See c.3; Konzilien, ed. Jasper, 37, and 37 n. 75. (i) Seligenstadt, c.2 as extended gloss, (iii) c.3 (Burchard, Decretum, Bk.9 c.4 as version of Aachen 992), (iv) c.20 (a number of precedents). (i) Seligenstadt c.8 (cf. Burchard, Decretum, Bk.2 c.211); (ii) c.9 (cf. Burchard, Decretum, Bk.3 c.239); (iii) c.1 (cf. Burchard, Decretum, Bk.7 c.10) (also c.14 which repeats it).

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(quadrigesima) of penance—​it is unusual, and Seligenstadt used it repeatedly. The term is glossed in Book 19 c.5 of Burchard’s Decretum—​‘which is popularly called a carina’.35 The more important point is that Burchard (along with Henry) popularised the method of calculating consanguinity reinforced at Seligenstadt.36 The Council Shares Common Themes with the Decretum Finally and in general, if we step back and look at Seligenstadt, its major themes are ritual practice, penance, marriage and episcopal authority37—​ themes which play a central role in Burchard’s Decretum.38 The canons specify days of fasting, arguably a form of popular penance for the entire community. A number of Seligenstadt’s decrees devote themselves to reminding people of the rules of penance and of ‘episcopal control over the penitential process’, although ‘a description of the process [of penance] was thought unnecessary’, as Sarah Hamilton has pointed out.39 Burchard’s Decretum deals with penance throughout the text, and Book 19 on penance provides the culmination (rather than an appendix) to the volume. Burchard also innovated a great deal in terms of marriage law on consanguinity, and his collection insists on episcopal authority throughout. The Seligenstadt canons are very much in harmony with the Decretum; they expand on some rules and reiterate others in a simpler form. The themes of Seligenstadt—​penance, episcopal authority, ritual practice—​reflect the Decretum’s central organising topics. In short, given these multiple factors, it seems possible that Burchard’s Decretum was consulted at the council. More likely is that the collection both directly and indirectly shaped the canons—​possibly through the role of Burchard himself, as one of a small number of participants, as Jasper suggests.40 Notably, however, the council does not seem to have taken the language of Burchard’s canons verbatim when there are parallel texts in the Decretum. We simply cannot tell how the Decretum was used, for all that six factors suggest that it and/​ or its creator played an important role.

35 36 37 38 39 40

See Seligenstadt cc.17, 19. Seligenstadt c.11 and Burchard, Decretum, Bk.7 c.10 and c.14. Seligenstadt cc.1–​6, 10 and 15 address ritual practice and time; cc.3, 7, 11, 14 treat marriage; cc.8–​9 and cc.12–​13 define the boundaries of sacred space; cc.13, 16, 18 and 20 reinforce episcopal authority; and cc.16–​20 address penance. Austin, Shaping Church Law, especially ­chapter 3. S. Hamilton, The Practice of Penance, 900–​1050 (Woodbridge, 2001), 61. Konzilien, ed. Jasper, 12.

118 Austin

The Council’s Probable Use of Munich Clm 27246

My last point—​and something that has not been discussed in the secondary scholarly literature previously—​is that Munich Clm 27246 also influenced the making of the Seligenstadt canons. Of the other ten canons without clear parallels in Burchard’s Decretum, five, or possibly six, were based on or have clear precedents in earlier conciliar decrees, specifically the councils of Koblenz of 922,41 Erfurt in 93242 and the council of Mainz in 950.43 These councils were all copied into Munich Clm 27246. In fact, Munich Clm 27246 is the only extant witness surviving today for the Mainz council’s canons. Equally significantly, the manuscript was probably consulted in the final stages of the making of Burchard’s Decretum. Excerpts from it appear as late additions to the earliest manuscript of the Decretum in the Vatican. The Munich Clm 27246 manuscript had been made at the Freising scriptorium but was loaned to the scriptorium at Worms, perhaps even twice. Possibly the manuscript remained in Worms; possibly the Worms scriptorium copied the councils of Koblenz, Erfurt and Mainz from it into a new manuscript. Whatever the case, if Munich Clm 27246 were present at the council of Seligenstadt, it would help explain about one-​ quarter of the canons. At the same time, the Seligenstadt texts with parallels in Munich Clm 27246 were not copied verbatim from the manuscript (nor taken directly from the earlier councils). For instance, both the councils of Koblenz and Seligenstadt prohibited a priest who is drinking after the cock crows from celebrating mass. But the wording differed. Koblenz reads ‘ullus presbiterorum post gallorum cantum’ whereas the rubric to Seligenstadt reads, ‘Presbiter, qui post gallicantum bibat …’. (This type of slight rewording is reminiscent of how Burchard wrote rubrics by slightly changing the first line.) The content of Koblenz and 41

42 43

(i) Seligenstadt c.4 reiterates and makes more specific the prohibition at the council of Koblenz (922) c.11. There are only two manuscripts which transmit this council, one of which is Munich Clm 27246. The problem is that Munich Clm 27246 has only Koblenz’s preface and cc.1–​10. Possibly c.11 appears elsewhere or possibly the conciliar members worked from an earlier, larger version, from which Munich Clm 27246 was copied. (The other original manuscript witness, Köln, Erzbischöfliche Diözesan-​und Dom-​Bibliothek, Cod. 123, contains this text). See Konzilien, ed. Hehl, 60; (ii) c.6’s introduction (‘conquestum est’) is similar to Koblenz c.11 (‘conquesti sunt’); (iii) c.13 has parallels in c.9 of Koblenz 922 (Konzilien, ed. Hehl, 70–​71). Seligenstadt c.1 borrows language from the council of Erfurt, Breviarium canonum, c.2. See Konzilien, ed. Jasper, 35, and Konzilien, ed. Hehl, 111–​12. Canon 10’s ending borrows from Mainz 950; see Konzilien, ed. Jasper, 39 n. 87, and Konzilien, ed. Hehl, 177. In addition, c.5 refers to Mainz 950; see Konzilien, ed. Jasper, 38 n. 78, and Konzilien, ed. Hehl, 177.

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Seligenstadt also differs slightly: the earlier council prohibits the priest from saying mass, but Seligenstadt explained that he could not say mass ‘the next day’.44 Here again, it is possible that Burchard’s familiarity with the Munich Clm 27246 manuscript informed the making of the Seligenstadt texts. Put another way, only three Seligenstadt canons—​c.6, on using the Host to extinguish a fire; c.7, on settling disputes about adultery by using the ordeal (when one person says it happened and the other denied it); and c.12, on laity not building inside churches—​lack precedents in either Burchard’s Decretum or Munich Clm 27246. Two of these three seem to respond to contemporary practices, and c.7 is consistent with Burchard’s thinking, in that the Lex familiae encourages the use of the ordeal rather than the swearing of oaths. From this angle, perhaps one way of thinking about the use of canon law collections is that these texts were so present in Burchard’s head that they naturally emerged in the course of the discussions. On the other hand, it seems unlikely that Burchard himself simply controlled the proceedings of the council—​and it also seems unlikely that everyone else present would simply sign on to them. More likely, to my mind, is the situation at the council of Frankfurt in 1027, when books of canon law were pulled out and consulted.45 It seems very possible that the council of Seligenstadt consulted the Decretum as well as Munich Clm 27246. In other words, the council of Seligenstadt may have had access to these books of canon law, but they worked with them, enlarging or modifying or clarifying the texts they found there. The council did not simply copy out or repeat verbatim the canons they found in the Decretum or in the Freising manuscript Munich Clm 27246. Rather, they seem to have used these texts as starting points for their discussions. Texts restricting people from disobeying their bishop in terms of penance were then extended and a specific provision was added, which prohibited appeal to Rome before the end of the penance and without the bishop’s permission—​and this canon was responding to the Hammerstein marriage dispute. The council legislated new provisions which went beyond existing texts. The conciliar participants did not simply stick with the letter of the law—​just as Burchard had himself tampered with the texts of existing canons. The participants were thinking through the texts. If they chose to reiterate, in a few cases, the substance of a canon from Burchard, this suggests that they found the content worthy of repetition—​as in the case of c.8, which prohibits carrying arms in a church, and c.9, which reminds people not to gossip

44 45

Koblenz c.11 and Seligenstadt c.4; Konzilien, ed. Jasper, 37, and Konzilien, ed. Hehl, 71. Konzilien, ed. Jasper, 647–​48.

120 Austin in the church. More frequently, however, the conciliar participants enlarged upon and reworded existing texts—​adapting and clarifying, and making canons consistent with each other. These canon law collections were living parts of the textual communities of users who dealt with contemporary questions concerning penance, ritual practices, sacred space and episcopal authority.46 These themes recur throughout the Decretum; one might well suggest that they constituted central concerns in this part of the east Frankish kingdom. At Seligenstadt, then, canon law collections, both the systematically and topically organised one of Burchard’s collection, and the farrago of conciliar texts in Munich Clm 27246, formed part of the rich complicated mix of ideas and precedents upon which the participants drew, sometimes to reiterate existing texts, sometime to clarify other, and sometimes to present entirely new practices. 46

On the shift from oral to written, and more broadly on orality, see B. Stock, The Implications of Literacy: Written Language and Models of Interpretation in the Eleventh and Twelfth Centuries (Princeton, 1983).

Chapter 6

Hubert Walter’s Council of Westminster in 1200 and Its Use of Alexander iii’s 1179 Lateran Council Danica Summerlin Conciliar canons are one of the pillars of medieval canon law*. Alongside the papal letters of judgement known as decretals, the vaguely attributed decreta of the popes, and the writings of the Church Fathers, they provided a majority of the legal contents of medieval canonical collections. During the twelfth century, these decrees also formed part of an ever-​growing group of legal texts even as the councils themselves came more under the sway of the centralised papal monarchy and, arguably, became legislative assemblies in lieu of their earlier position as judicial meetings.1 Most commentators, papal and scholarly alike, differentiated between general and particular councils, the former held with apostolic authority and the latter without.2 While modern scholars have probed general councils for evidence of papal interference, exploring the idea that by the early-​thirteenth century they were merely a rubberstamp for policies imposed from above, their earlier or more local counterparts fall into a gulf between local and central government that remains under-​explored for the * This essay has been almost a decade in the making, and I would like to thank friends and colleagues in Cambridge, Munich, London and Sheffield, as well as the thoughts of the other authors in this volume and attendees at the Leeds Medieval Congress in 2015. In particular, the research that this essay is based on was funded by both the Leverhulme Trust and the British Academy, via a Study Abroad Studentship and a Post-​doctoral Fellowship respectively. Without their generosity, it would not exist. Equally, and especially, I would like to thank Melodie Eichbauer for her careful reading of this essay, helping to smooth out rough edges. Needless to say, any errors are my own. 1 F. Schmale, ‘Synodus—​synodale concilium—​concilium’, AHC, 8 (1976), 80–​102; R. Somerville, ‘Papal General Councils in the Twelfth Century: Some Observations’, AHC, 40/​2 (2008), 281–​ 88; for an analysis from the perspective of the papacy, see e.g. I. Robinson, The Papacy, 1073–​ 1198: Continuity and Innovation (Cambridge, 1990), 121–​45; and the literature cited below. 2 The copious twelfth-century commentary is summarized in H. Sieben, Die Konzilsidee des lateinischen Mittelalters (847–​1378), Konziliengeschichte B (Paderborn, 1984), 241 ff.; most canonists commentated at least briefly on the relevant section of Gratian, DD.16–​18, e.g. Rufinus, Summa decretorum, ed. H.  Singer (Paderborn, 1902), 35–​42; Die Summa des Stephanus Tornacensis über das Decretum Gratiani, ed. J.-F. von Schulte (Giessen, 1891), 24–​28; The ­Summa Parisiensis on the Decretum Gratiani, ed. T.  McLaughlin (Toronto, 1952), 14–​18; the critical comment remains D.20 d.a.c.1, ‘Papal decretals are equal in law to conciliar canons’.

© Koninklijke Brill NV, Leiden, 2019 | DOI:10.1163/9789004387249_​0 08

122 Summerlin medieval church despite continued interest in ideas of centre and ­periphery.3 A short study can contribute meagrely at best to such extensive and ancient debates, but this piece aims to analyse the use, in specific local councils in the later-​twelfth century, of the decrees of papal general councils. To that end, my focus here is straightforward. It looks at the employment of a set of papal conciliar canons issued in Rome in 1179, particularly in areas connected to the contemporary Angevin realm. The main focus will be the first of these councils to repeat large sections of the 1179 canons, that held at Westminster in 1200, but three others at Westminster in 1175, Rouen in 1190 and York in 1195 are used in comparison and to provide context and texture. Lurking behind these comments, therefore, is the still-​pertinent distinction identified by Richard Helmholz twenty-​five years ago, between law which was universal or general, and law which was local or particular.4 Despite demonstrating his customary deep awareness of the problems and possibilities of legal history, Helmholz began his piece with the presumption that a set corpus of law existed, an idea made more problematic in recent years through scholarly reconsiderations of the idea that a set corpus of legal texts existed in the twelfth century. Despite the growing popularity of collections such as Gratian’s Decretum, which survives in hundreds of manuscripts compiled after c.1140, for example, the surviving manuscripts demonstrate changes both great and small between individual copies.5 Although the first recension of the Decretum had at best a limited dissemination, the sporadic interpolation of the paleae makes it difficult to speak of a vulgate before the end of the 3 In addition to the literature cited in n. 1 above, see also the debate surrounding Innocent iii and the Fourth Lateran in 1215, summarised in A. Duggan, ‘Conciliar Law, 1123–​1215: The Legislation of the Fourth Lateran Councils’, in HMCL, 343–​44. 4 R. Helmholz, ‘The Universal and the Particular in Medieval Canon Law’, in P. Landau and J. Müller (eds.), Proceedings of the Seventh International Congress of Medieval Canon Law, Munich, 13–​18 July 1992, mic C, 10 (Vatican City, 1997), 641–​59. 5 The Decretum is no longer considered to have appeared fully-​formed in c.1140: in addition to the discussion in the Introduction, see J. Wei, ‘Gratian’s Decretum in France and Halberstadt’, in P. Carmassi and G. Drossbach (eds.), Rechtshandschriften des deutschen Mittelalters: Produktionsorte und Importwege, Wolfenbüttler Mittelalter-​Studien, 29 (Wiesbaden, 2015), 363–​ 83; idem, ‘The Later Development of Gratian’s Decretum’, in J. Goering, S. Dusil and A. Thier (eds.), Proceedings of the Fourteenth International Congress of Medieval Canon Law, Toronto, 5–​11 August 2012, mic C, 15 (Vatican City, 2016), 149–​61; on the paleae, see idem, ‘The Later Development of Gratian’s Decretum’, 156–​61; also R. Weigand, ‘Zusätliche Paleae in fünf Dekrethandschriften’, ZRG Kan. Abt., 78 (1992), 65–​120; idem, ‘Versuch einer neuen, differenzierten Liste der Paleae und Dubletten im Dekret Gratians’, in P. Linehan (ed.), Life, Law and Letters: Historical Studies in Honour of Antonio García y García, Studia Gratiana, 29 (Rome, 1998), 883–​99. For an introduction on paleae, see also P. Landau, ‘Gratian and the Decretum Gratiani’, in HMCL, 47–​48 and the literature cited within.

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twelfth century, as John Wei has demonstrated.6 Moreover, while it remains a secure assumption that centres of government and learning, especially ones as influential as Reims, Canterbury and London, would have had access to multiple copies of the Decretum by c.1200, there is no guarantee that the same applied to smaller or less important houses.7 The relationship between general and particular law was further complicated by the dispersal of papal decretals which, as Anne Duggan has persuasively argued, were employed as general precedents despite their writers’ intentions that they act only as judgements in particular cases.8 For Duggan, the general precedents emerged from papal councils, which she perceives as the traditional location for such papal law-​ making. It is therefore becoming increasingly apparent that medieval canon law existed in a state of flux. In this narrative, and despite the growing awareness of the insecurity of the transmission, dissemination and acceptance of papal conciliar canons, those decrees provide the periodic foundations on which all else rested. What remains obscured, however, are both how far those papal councils engaged with local issues and the reverse: how local councils chose to implement or accept the statutes enacted at a papal level. Christopher Cheney, amongst others, assumed that all papal conciliar statutes emerged from cases or problems which were repeatedly referred to papal attention; Mary Cheney, 6 Wei, ‘The Later Development of Gratian’s Decretum’, passim and esp. 149, where he points to one benefit of the study of these later recensions as being to ‘provide insight into the contrasting characteristics and approaches to legal study of different legal centres’. 7 Landau, ‘Decretum and the Decretum Gratiani’, 48, suggests around 160 surviving twelfth-​ century copies of the Decretum, of which some can be located with more precision; Wei, ‘The Later Development of Gratian’s Decretum’, 149, points to ‘over six hundred’ for the Middle Ages more broadly. The earliest copy attested in England was that gifted to Lincoln in the 1150s, when John of Salisbury was also clearly using Gratian, but many of these manuscripts have since been lost: M. Brett, ‘English Law and Centres of Law Studies in the Later Twelfth Century’, in T.  Iversen (ed.), Archbishop Eystein as Legislator:  The European Connection (Trondheim, 2011), 89. Rochester acquired a copy ‘soon after 1202’, while the abbey at Bury St Edmunds owned a copy by the late-​twelfth century: R. Thomson, ‘The Library of Bury St Edmunds Abbey in the Eleventh and Twelfth Centuries’, Speculum, 47 (1972), 617–​45 at 641; I would also like to thank Martin Brett for his ever-​perceptive comments and thoughts on library catalogues and individual manuscripts of twelfth-​century canonical collections. 8 A. Duggan, ‘De consultationibus tuis: The Role of Episcopal Consultation in the Shaping of Canon Law in the Twelfth Century’, in B. Brasington and K. Cushing (eds.), Bishops, Texts and the Use of Canon Law around 1100:  Essays in Honour of Martin Brett (Farnham-​Burlington, 2008), 191–​214; eadem, ‘Conciliar Law’, 318–​66; eadem, ‘Making Law or Not? The Function of Papal Decretals in the Twelfth Century’, in P. Erdö and S. Szuromi (eds.), Proceedings of the Thirteenth International Congress of Medieval Canon Law, Esztergom, 3–​8 August 2008, mic C, 14 (Vatican City, 2010), 41–​70.

124 Summerlin drawing on that idea, pointed to the overlap between legal cases and local councils.9 Both Cheneys, however, focussed on the process by which information reached the curia rather than investigating the use of central statutes locally after their general approval. Given that papal decretals are now seen as more responsive and less authoritarian, that opens up the question of how papal conciliar decrees were received and implemented locally before an authorised corpus of law existed. How did bishops understand conciliar canons? How did they know what they were? In other words, how did general law stand on its own, how did local bishops choose to use general law within the circumstances of provincial councils and who worked out what the general law was that they could employ? The councils analysed here can be used to answer some of these questions. They have been selected for their reflection of papal law, although the vagaries of survival exert some influence. The papal council that provides the centrepiece was held by Alexander iii at the Lateran Basilica in 1179 and became the first of the twelfth-​century councils whose decrees were widely know as canons of a ‘Lateran council’, implying a certain authority.10 On the other hand, while England was not the only place in Latin Christendom to hold semi-​ frequent provincial assemblies, England and northern France represent important focal points for examinations into local synods.11 This region of ­Europe also demonstrates as well as any other the renewed interest in provincial and regional synods that saw Innocent iii reiterate mandatory annual provincial synods in 1215.12 Investigations into English ecclesiastical government are

9

10 11

12

Amongst others, see C. Cheney, ‘Some Aspects of Diocesan Legislation in England during the Thirteenth Century’, rpt. in Medieval Texts and Studies (Oxford, 1973); M. Cheney, ‘The Council of Westminster 1175: New Light on an Old Source’, Studies in Church History, 11 (1975), 61–​68, pointed to overlap between papal decretals and the canons of a provincial synod at Westminster in 1175, discussed below. First and most cogently argued by C. Cheney, ‘The Numbering of the Lateran Councils of 1179 and 1215’, rpt. in Medieval Texts and Studies (Oxford, 1973), 203–​08. O. Pontal, Les conciles de la France capétienne, jusqu’en 1215 (Paris, 1995); e.g. G. Gresser, Die Synoden und Konzilien in der Zeit des Reformpapsttums in Deutschland und Italian von Leo ix. bis Calixt ii. 1049–​1123 (Paderborn, 2005); P. Demouy, ‘Synodes diocésains et conciles provinciaux à Reims et en Belgique seconde aux XIe–​XIIIe siècles’, in G. Clause, S. Guilbert and M. Vaïsse (eds.), La Champagne et ses administrations à travers le temps. Actes du colloque d’histoire régionale, Reims—​Châlons-​sur-​Marne, 4–​6 juin 1987 (Paris, 1990), 93–​112. On Innocent iii and provincial councils, see e.g. C. Cheney, English Synodalia of the Thirteenth Century (Oxford, 1941), 36–​37; item, From Becket to Langton: English Church Government, 1170–​1213 (Manchester, 1956), 141–​42 and the different path of the English Church; also the summary in Duggan, ‘Conciliar Law’, 346.

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equally long-​standing and perceptive. What makes these four Angevin synods a truly worthy object for study, and the 1200 council of Westminster in particular, is the survival of the statutes issued at each of them and their relationship in some way or another to England, an area at the heart of change in medieval canon law.13 All of these confluences make them well-​suited to the sort of detailed comparison that will be entertained here, which permits an investigation of legal practice in the context of local synods. The two councils that provide the frame for this discussion are Lateran iii in 1179 and Westminster in 1200. In late spring 1178, Alexander iii sent the letter Quoniam in Agro, calling the clerics of Latin Christendom together in order to consult on matters great and small concerning the church.14 The assembled prelates celebrated the end of twenty years of schism.15 Convened by papal authority, the council took place at the Lateran Basilica in Rome, the seat of the bishop of Rome and a symbolic centre-​point of Latin Christianity.16 As well as producing a set of around twenty-​seven conciliar decrees, the council dealt with the Waldensians, the disputed election of the archbishop of Bremen, and a series of other cases often relegated to the murky edges of local studies including a tithe dispute between the Cistercians and the archbishops of Reims and Rouen, while a judge-​delegate was appointed to hear a case between the bishop of Calahorra and the archbishop of Tarragona over

13

14

15

16

Rouen is at best imperfectly preserved, in Concilia Rotomagensis provinciae, ed. G. Bessin (Rouen, 1717), 94–​100, and thus Mansi, vol. 22, col. 581–​86, and see also the brief discussion in Duggan, ‘Conciliar Law’, 339 n.  109. For York, see Councils & Synods, with other documents relating to the English Church, Vol. 1: A.D. 871–​1204, eds. C. Brooke, M. Brett, and D. Whitelock (Oxford, 1981), 1042–​52. Quoniam in Agro survives in five known copies, four addressed to provinces or churches and one to Conrad, archbishop of Salzburg and then Cardinal-Bishop of S. Sabina: JL 13070, 13097–​9; JL -​-​: puf n.F., vol. 5, ed. J. Ramackers, no. 256, pp. 361–​63. See G. Tangl, Die Teilnehmer an den allgemeinen Konzilien des Mittelalters (Weimar, 1922), 211 for a discussion; JL 13070, sent to Conrad of Salzburg on 30 May 1178, is often overlooked. The fullest accounts of the schism can be found in J. Laudage, Alexander III. und Friedrich Barbarossa, Forschungen zur Kaiser-​und Papstgeschichte des Mittelalters, 16 (Cologne, 1997), and in the selection of articles gathered in P. Clarke and A. Duggan (eds.), Pope Alexander III (1159–​81): The Art of Survival (Farnham-​Burlington, 2012). The two fullest accounts of the council remain those of Roger of Howden, which stretches to a paragraph: Roger of Howden, Chronica, ed. W. Stubbs, Chronica Magistri Rogeri de Houedene, Rolls Series, 51 (4 vols, London, 1868–​71), vol. 2, 171; see also now Bernardo Marragone, as identified and analysed in R. Engl and A. Larson, ‘Ein unbeachtetes Zeugnis zum dritten Laterankonzil: Bernardo Maragones Annales Pisani’, ZRG Kan. Abt., 97 (2011), 357–​75; Gli annales Pisani de Bernardo Maragone, ed. M. Gentile, Rerum Italicarum Scriptores, 6.2 (Bologna, 1936), 68.

126 Summerlin a couple of monasteries.17 289 bishops and representatives of 69 abbeys are known to have attended, including the bishops of Hereford, Bath, Norwich, St Asaph and St David’s, all from the province of Canterbury.18 These southern bishops were joined by Hugh de Puiset, bishop of Durham.19 The canons themselves covered a variety of issues, most relating to ecclesiastical matters; these ranged from a lengthy canon limiting episcopal excesses and stipulating the appropriate numbers of horses permitted on visitation to the by-​then standard prohibitions of clerical marriage and lay investiture. Their widespread dissemination is evidenced through their survival in well over fifty manuscripts of which most, if not all, were canonical collections and their inclusion in early-​ thirteenth century canonical collections including, critically, the Liber Extra of Raymond of Peñafort.20 Westminster, by contrast, was a provincial council called by Archbishop Hubert Walter for the bishops of the province of Canterbury.21 No bishops or clerics of the archdiocese of York were present, Hubert’s legatine commission having lapsed with the death of Celestine iii two years earlier.22 Councils & Synods provides the best cumulative overview of events at the 1200 council 17

18

19 20 21

22

The best overall account of the council can be found in: K. Héfèle, Histoire des Conciles d’après les documents originaux, rev. and trans. H. Leclercq (11 vols, Paris, 1907–​49), vol. 5, 1086–​1112; R. Foreville, Latran I, II, III et Latran IV (Paris, 1965), 135–​54; Duggan, ‘Conciliar Law’, 333–​41; the council is mentioned in passing several times in Clarke and Duggan (eds.), Pope Alexander III, esp. A. Duggan, ‘Master of the Decretals: A Reassessment of Alexander III’s Contribution to Canon Law’, 411–​17; on the issues listed here, see JL 13452 (tithe dispute concerning the Cistercians); Arnold of Lübeck, Chronica Slavorum, ed. J. Lappenberg, mgh, SS rer. Germ., 14 (Hannover, 1868), 46–​47, Annales Stadenses, ed. G. Pertz, mgh, Scriptores, 16 (Hannover, 1859), 348–​49, and S. Kuttner, ‘Bertram of Metz’, Traditio, 13 (1957), 504 concerning the election of the archbishop of Bremen; Walter Map, De nugis curialium: Courtier’s Trifles, ed. and trans. M. James, rev. C. Brooke and R. Mynors (Oxford, 1983), 124–​27 on the Waldensians; pus, vol. 2, no. 166, p. 513 on the dispute between Tarragona and Calahorra: this is a later letter referring back to the conciliar decision. Four attendance lists for the council survive in manuscripts, three of which are in Paris and one in London. For the list here, see Paris, BnF, lat. 14938, fol. 266va, and for a commentary on the list in general Tangl, Die Teilnehmer an den allgemeinen Konzilien des Mittelalters, 212–​14 and Foreville, Latran I, II, III et Latran IV, 387–​90. Paris, BnF, lat. 14938, fol. 266va. S. Kuttner, ‘Concerning the Canons of the Third Lateran Council’, Traditio, 13 (1957), 505–​ 06; the fullest analysis of the canons remains W. Herold, ‘Die Canones des 3. Laterankonzils’, Inauguraldissertation (Bonn, 1952), for the text see now cogd, vol. 2, 127–​47. For convenience and to distinguish him from Walter of Coutances, archbishop of Rouen, Hubert Walter is referred to as ‘Hubert’ throughout. The best analysis of the Westminster synod remains that found in C. Cheney, Hubert Walter (London, 1967), 64–​68, though see also his ‘Legislation of the Medieval English Church: Part ii’, EHR, 50 (1935), 385–​417. Cheney, From Becket to Langton, 33.

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and noted its influence on later English provincial councils and statutes, including those of 1213.23 Although the volume editors for 1200 were Brooke, Brett and Whitelock, the influence of Christopher Cheney is unmistakable in the commentary.24 Councils & Synods points to three surviving copies of the decrees issued in 1200, accompanied by narratives of varying length found in Diceto, Gervase of Canterbury, Roger of Howden and the Dunstable Annals. Two of the three copies survive in manuscripts of Howden’s Chronica, with the third in a thirteenth-​century miscellany that at one point in its life spent time in Smithfield. Howden’s details are fairly scant; normally a reliable witness, his comments are vague and references to Geoffrey FitzPeter, then justiciar, condemning the synod are unclear. Instead, Diceto’s account gives the most detail: he lists the presence of nine bishops, many abbots including the prior of Canterbury, and the bishop-​elect of Hereford, Giles de Braose. Giles’ consecration at the council is also recorded by Gervase of Canterbury, and both accounts note the consecration of John de Gray to the bishopric of Norwich. Both the 1179 and 1200 decrees survive in the works of Roger of Howden, in line with his tendency to copy or quote official documents into his narrative.25 Nevertheless, he provides a critical witness for the later council, listing the statutes as separated into sixteen sections, each of which was preceded by a rubric, and explicitly stating that ‘the archbishop issued the decrees written below, establishing that they should be inviolably observed by all his subjects’.26 Although there is some uncertainty of the origins of the rubrics, where they appear they are informative: that to c.5, for example, states that it concerns ‘how the archbishop and bishop and their officials ought to be lodged with their subjects’, while c.6 is preceded by the comment ‘that no one is to be ordained without a definite title’.27 The presence of a precise rubric does not prevent the canon itself going somewhat off-​message at times. In c.10, a rubric condemning clerical incontinence precedes a canon concerned with a

23

24 25 26 27

See Councils & Synods, eds. Brooke et al., vol. 1, 1055–​60; Councils & Synods, with other documents relating to the English Church, Vol. 2: A.D. 1205–​1313, eds. C. Cheney and F. Powicke (Oxford, 1964), 23–​36 which also observes overlap with the 1213 council. By the time of Langton’s next provincial council in 1222, Lateran iv was employed instead. Councils & Synods, eds. Brooke et al., vol. 1, 1055–​60 for narratives and commentary concerning the 1200 council. J. Gillingham, ‘The Travels of Roger of Howden and his Views of the Irish, Scots and Welsh’, in his The English in the Twelfth Century (Woodbridge, 2000), 71. Councils & Synods, eds. Brooke et al., vol. 1, 1060. Ibid., 1062: ‘Quomodo archiepiscopus et episcopus et eorum officiales debeant hospitari cum subiectis’; Ibid., 1064: ‘Ne quis ordinetur sine certo titulo’. The rubrics appear as variants in the London manuscript: Ibid., 1056-​7.

128 Summerlin variety of extra issues, including drunkenness and visits to taverns on the part of clerics, and stipulating that they should always wear ecclesiastical habits and be tonsured.28 To the three manuscript previously recognised copies of the 1200 decrees can be added a fourth, now in the library of New College, Oxford.29 The manu­ script contains a copy of the abbreviation of Gratian’s Decretum known as Quoniam Egestas.30 The final three folios of the New College manuscript comprise a set of additional legal excerpts including the canons of the 1200 council, albeit in a slightly different form to those in Howden and the Smithfield manuscript.31 Each canon is written in a single hand, but the same hand is not responsible for all the canons. Equally, although there are clear line breaks at the end of decrees, as in Howden’s version printed in Councils & Synods, paragraphus marks within the text suggest that those were divided further.32 The rubrics are lacking entirely, although each section ends with the ‘Salvo etc’. characteristic of the 1200 decrees elsewhere. Finally, the order of the canons is different to both Howden and the London manuscript as outlined in Councils & Synods.33 These details are not unsurprising: they conform to the haphazard 28 29 30

31 32 33

Ibid., 1067. New College, Oxford, MS 220, fols. 92v–​94v. Previously analysed by Rudolf Weigand, the work survives in six other manuscripts. He suggested that the Paris, Oxford and Vorau manuscripts contained the second recension of the abbreviation. Quoniam Egestas holds further interest for legal historians, with the Prague manuscript in particular providing a link to the revitalisation of Roman law in Provence via marginal commentaries to the civilian Exceptiones Petri. As with other contemporary canonical material, however, manuscripts of Quoniam Egestas do at times contain additional material: the Parisian manuscript, for example, incorporates a short additional collection of the type seen appended to copies and abbreviations of the Decretum elsewhere. See R. Weigand, ‘Die Dekretabbreviatio “Quoniam egestas” und ihre Glossen’, in W. Aymans, A. Egler and J. Listl (eds.), Fides et Ius: Festschrift für Georg May zum 65. Geburtstag (Regensburg, 1991), 249–​65; S. Kuttner, Repertorium der Kanonistik (1140–​ 1234), Studi e Testi, 71 (Vatican City, 1937), 263–​64: Leipzig, Universitätsbibliothek, 1012; Paris, BnF, lat. 15001; Prague, Metropolitankapitel, J.LXXIV; St Gallen, Stiftsbibliothek, 711; Vorau, Stiftsbibliothek, 184, and Worcester, Cathedral and Chapter Library, Q.43. On the Provençal connection, see U.-​R. Blumenthal, ‘The Revival of Roman Law: The Exceptiones Petri’, Haskins Society Journal, 21 (2009), 113–​23; vs A. Gouron, ‘Sur le patrie et la datation du “Livre de Tubingue” et des “Exceptiones Petri”‘, RIDC, 14 (2003), 32–​37. Paris, BnF, lat. 15001, fols. 121v–​26r includes a variety of canonical material. The selection is in keeping with the early versions of the so-​called Dekretanhänge detailed in Kuttner, Repertorium der Kanonistik, 273–​76 and in e.g. R. Weigand, ‘Die Dekretanhänge in den Handschriften Heiligenkreuz 44, Pommersfelden 142 und München 28175’, BMCL, 13 (1983), 1–​25. Oxford, New College, MS 220, fol. 92v–​94v. E.g. Oxford, New College, MS 220, fol. 94r: ‘vite possit habere. ¶Idem in subdiaconi ordinatione statuimus …’. cc.1, 2, 3, 4, 9, 16, 10, 11, 12, 13,?, 15, 5 [frag.], 6, 14, 8, 5 [frag.], 7.

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way in which most sets of conciliar acta were disseminated at the time, reinforcing the idea that the statutes issued in councils and synods were as reliant on local re-​use as they were on the issuing authority which underpinned them. Across the four surviving manuscripts of its decrees, the 1200 council nevertheless presents clear evidence of the extensive employment of papal statutes as part of provincial ecclesiastical government.34 Howden’s sixteen canons covered a range of issues of interest to the English church. To sample a few, they instituted that priests must clearly state the words of the service, that all services were to be public rather than secret, and that all clerics were to refrain from public drunkenness and wear a habit and be tonsured at all times. The rationale behind this decree is made explicit: it was considered unfair for clerics guilty of misconduct to be treated more leniently than the laity who unwittingly caused harm yet were required to visit the papal curia seeking forgiveness.35 To a canon on archiepiscopal visitations were added stipulations on tithes, on leper colonies, and on the practical elements of suspension and excommunication. The final canons concerned monastic privileges and exemptions, referring to Templars, Hospitallers and both ‘black’ and ‘white’ monks, meaning that a range of ecclesiastical experiences were included, although there does seem to be an episcopal slant to the issues included. Scholars have long accepted that the 1200 synod used and restated earlier statutes, referring especially to the councils of 1179 and 1190. Councils & Synods comments that the 1200 decrees demonstrated ‘much dependence on the Lateran Council of 1179’, although they did not replicate them entirely.36 The 1190 Rouen provincial synod called by Walter of Coutances, noted as an ancestor, overlapped with the 1200 decrees, although not strongly. Despite a citation to a Rouen council within the 1200 Westminster decrees and the presence of some thematic overlap between the two, it is far from obvious; in any case, the Rouen citation may reflect a council there in 650 rather than that of 1190.37 34

35

36 37

For a summary, see Cheney, Hubert Walter, 120–​21; R. Stacey, ‘Hubert Walter’, Oxford Dictionary of National Biography (Oxford, 2004), http://​www.oxforddnb.com/​view/​article/​ 28633 (accessed 23 June 2017); the canons are in Councils & Synods, eds. Brooke et al., vol. 1, 1060–​70, with an appendix on 1070–​74. As stipulated in Si quis suadente: R. Helmholz, ‘Si quis suadente: Theory and Practice’, in P. Linehan (ed.), Proceedings of the Seventh International Congress of Medieval Canon Law, Cambridge, 23–​27 July 1984, mic C, 8 (Vatican City, 1988), 425–​38; K.  Christensen, ‘The “Lost” Papal Gloss on Si quis suadente (C.17 q.4 c.29): John of Salisbury and the Canonical Tradition in the Twelfth Century’, BMCL, 18 (1988), 1–​11. Councils & Synods, eds. Brooke et al., vol. 1, 1056. Westminster (1200) c.9, ‘Detentores vero decimarum iuxta Rothomagensis concilii constitutum’ = Councils & Synods, eds. Brooke et al., vol. 1, 1066 and at n. 4, possibly referring to Rouen (650) but quoting directly from Rouen (1190); on the Rouen synod see also below.

130 Summerlin The 1179 council nevertheless presents an explicit source for the 1200 decrees and a number were repeated more-​or-​less verbatim in Hubert’s text.38 These covered visitation rights and responsibilities; absolute ordination, so the process by which a cleric was ordained without a benefice to support him; appeals; simony writ both large and small; the imposition of new exactions; the promising of benefices before they fell vacant; a protection for leper colonies, allowing them to possess their own cemeteries and receive an exemption on certain tithes; and, finally, two of the canons concerning monks, that which limited the Templars and Hospitallers to their privileges, and that which stipulated against entry gifts into monasteries. The connections are sign-​posted in the text by introductory references to statutes introduced ‘at the most renowned Lateran Council by the modern fathers’ or, in a further example, reference to the decrees ‘respectfully embracing the statutes of the Lateran Council’.39 In addition to these overt borrowings is one more veiled reference to the 1179 decrees. Canon 8, amongst other offerings, stipulates against charging for the licence to celebrate divine office or to teach, which incorporates the spirit, if not the exact wording, of 1179 c.18. In numerical terms, eight of the sixteen canons issued in 1200 relied in large part on the 1179 conciliar decrees. Deliberate repetition of the earlier canons therefore seems part of Hubert’s plan for the council at Westminster. What remains unexplored are his rationales and the more intriguing question of his source. To confront the question of Hubert’s motivations first, there are hints that Alexander iii ordered his conciliar decrees repeated locally. While canon law made no provision for papal or general councils, diocesan repetition of provincial synodal decrees had been long accepted and was explicitly promoted in Gratian’s Decretum.40 Equally, Robert Somerville has pointed to the repetition and evolution of a ‘programme’ of reform via the series of Innocentine councils of the 1130s.41 For 38

39

40 41

Westminster (1200) c.5 = 3 Lat. (1179) c.4; Westminster (1200) c.6 = 3 Lat. (1179) c.5; Westminster (1200) c.7 = 3 Lat. (1179) c.6; Westminster (1200) c.8 = 3 Lat. (1179) cc.7 + 8 (verbatim) + gist of c.18; Westminster (1200) c.10 = 3 Lat. (1179) c.11; Westminster (1200) c.13= 3 Lat. (1179) c.23; Westminster (1200) c.14 = 3 Lat. (1179) c.9; Westminster (1200) c.15 = 3 Lat. (1179) c.10. Westminster (1200) c.5 = Councils & Synods, eds. Brooke et al., vol. 1, 1062: ‘Cum inter ea que statuta sunt a modernis patribus Lateranense concilium celeberrimum sit et omnimodus observacione dignissimum …’; Westminster (1200), c.10 = Ibid., 1067: ‘Statuta eciam Lateranensis concilii reverenter amplectantes’. Gratian, Decretum, ed. Friedberg, D.18 c.17, taken from the Sixteenth Council of Toledo, which provides for bishops to gather together the abbots, priests, deacons and clerics of their dioceses within six months of a provincial council and spread its acts. The most recent of a series of pieces also gives an excellent summary of Somerville’s other findings: idem and M. Brett, ‘The Transmission of the Councils from 1130 to 1139’, in

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the 1179 council, the principal witnesses to such repetition are narratives concerning congregations of the Vallombrosan Order in 1179, which have survived in a manuscript now in the Biblioteca Medicea Laurenziana.42 The manuscript notes how the head of the Vallombrosan congregation had gone, alongside other abbots, to the general council ‘the lord Pope’ had held in Rome. He returned with an order from said pope to call together his venerable brothers and then repeat the holy institutes promulgated in the council. A direct parallel can be found in the Dunstable Annals, a narrative source to the 1200 synod, albeit a brief one, which stated that Walter ‘strongly ordered that the Lateran council be observed’.43 Combined, these reports suggest a deliberate edge to the replication. The idea that such repetition of the decrees was papally-​instituted should, however, be resisted. Despite the Annals’ comment, the 1200 council did not repeat all of the 1179 conciliar canons. Seventeen of the twenty-​seven-​odd decrees issued in Rome were missing, covering a range of issues including heresy, usury, lay investiture, papal elections, decisions reached in chapter, and the Peace and Truce of God.44 Instead of the blind repetition of decrees, the implication is that the decrees repeated were chosen, presumably because of their relevance for the province at a given time. To take one example, the 1180s and 1190s had seen at least one protracted dispute over the rights allowed to leper colonies: this case, over the tithes payable by the leper colony at Maiden Bradley, was finally ended in 1202 by papal legates.45 Equally, the canon on due process in excommunication quite clearly demonstrates the continued reverberations of the tit-​for-​tat excommunications that plagued the English church in the 1160s during the Becket conflict. Such selective reproduction has parallels elsewhere, both for Alexander’s Lateran council through the mysterious council apparently held at Montpellier in 1195, which repeated a selection of decrees with additions, and also for earlier general councils, particularly

42

43 44 45

J. Doran and D. Smith (eds.), Pope Innocent II (1130–​43): The World vs the City (New York-​ London, 2016), 226–​71. Florence, Biblioteca Medicea Laurenziana, S. Marco 599, fol. 47r, with sections repeated in 1188 on fol. 48v but lacking the explicit reference; see also G. Fransen, ‘Latran III et les canonistes’, in J. Longère (ed.), Le troisième concile de Latran: sa place dans l’histoire (Paris, 1982), 39–​40. ‘Eodem anno Hubertus Cantuariensis apud Wemust’ concilium celebravit, et Lateranum concilium iussit firmiter observari’, Councils & Synods, eds. Brooke et al., vol. 1, 1059. cod, 211–​25, and the literature cited above. C. Cheney and E. John (eds.), English Episcopal Acta, Vol. 3: Canterbury, 1193–​1205 (London, 1986), no. 560, pp. 214–​15.

132 Summerlin Innocent ii’s 1139 Lateran gathering.46 Furthermore, the Florentine narrative, while suggesting the repetition of the 1179 decrees was promoted by Alexander, then goes on to mention the reissue of only two, both of which directly concerned matters relevant to the Vallombrosans: c.10 and c.25, the former of which laid down regulations for monasteries, including prohibiting the payment of an entry price, while the latter prohibited usury.47 Hubert’s motivations are elucidated further by comparison with the other surviving later-​twelfth century English conciliar canons, and their principal Norman counterpart. As well as the Westminster decrees considered here, canons survive from a provincial legatine synod held by Hubert’s predecessor Richard of Dover in 1175 and for Hubert’s own legatine council held at York in 1195.48 Richard’s synod is particularly well-​evidenced, with three surviving manuscripts of the decrees and narratives in chronicles including, as with the 1200 synod in the same location, Ralph of Diceto and Howden. Again, the latter included a set of conciliar decrees alongside his narrative, but the most interesting source for the council remains the set of ‘propositions’ found in a British Library manuscript and identified by Mary Cheney as a list of issues to be discussed or emended.49 Howden also acts as both a narrative and legislative source for the 1195 council at York. These councils present easily distinguishable approaches to the drafting of conciliar canons, any of which Hubert could have employed in drafting the decrees of his 1200 synod. Westminster (1175), with its set of propositions, suggests interaction with prelates prior to the synod. Its decrees are legally precise; while in all but three the source of the regulation is cited, they are new drafts and do not extensively copy the source material. One decree on the metal appropriate for the chalice at Mass, for example, used a council of Reims as authority; another, on the qualities required by those being ordained is introduced wonderfully as ‘from various decrees of Urban, Innocent and the councils of Chalcedon and Carthage’ and is an intricately formulated response to a set of problems.50 In other cases, the authorities are provided by papal statements or letters; given the centrality of English material in the emergence of 46 47 48 49 50

On Montpellier, see Duggan, ‘Conciliar Law’, 339; on the selective repetition of specific ­decrees by Innocent ii at Pisa and later the Lateran, see pup, 199–​202, and the commentary in Brett and Somerville, ‘The Transmission of the Council from 1130 to 1139’, 244. Florence, Biblioteca Medicea Laurenziana, S. Marco 599, fol. 47r. Westminster (1175): Councils & Synods, eds. Brooke et al., vol. 1, 965–​93; York (1195): Ibid., 1042–​52. Ibid., 978–​81; see also Cheney, ‘The Council of Westminster 1175’, 61–​68. Westminster (1175) c.17 = Councils & Synods, eds. Brooke et al., vol. 1, 990; Westminster (1175) c.5 = Ibid., 985.

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the decretal collections in the later-​twelfth century, it is intriguing to note that papal authorities are often referred to in the text as ‘decrees’, i.e. decreta. For c.12, where the decree was ‘sent to the bishop of Norwich’, implying that a letter of some form was the source, the use of this term suggests either inaccuracy on the part of the copyist or, more likely given that c.1 is expressly stated to be from ‘a decretal letter of Pope Alexander iii to Roger, bishop of Worcester’, instead reflects the slippery nature of the vocabulary at the time.51 In total, only three of the nineteen synodal canons were not based on earlier precedents, with two un-​footnoted and one intriguingly referred to as a ‘new decree’.52 For the most part and excepting the three Alexandrine letters, the authorities can easily be found in the Decretum of Gratian. It seems likely that a trained lawyer was involved in the drafting of these decrees, and Anne Duggan has suggested that Gérard Pucelle, lawyer, cleric and teacher, was involved in some manner.53 Gérard was highly learned and would have been familiar with the contents of the Decretum, involved as he was with the ‘Cologne’ school of lawyers as well as teaching in England. The growing number of magistri in episcopal familiae is well-​attested, but Gérard’s help in drafting the 1175 canons was not matched at either of Hubert Walter’s councils. At York, attended by clerics of the northern archdiocese and possibly a few more besides, Hubert instituted a set of conciliar decrees in 1195.54 While the synodal canons from York do overlap in some cases obviously with those of Westminster in 1200, the 1179 council is cited only once where it is used as an authority prohibiting the institution of new exactions by bishops or the increase of existing charges. Critically, that reference, and its accompanying clause, is absent from one of the main witnesses to the conciliar canons: the two manuscripts of Roger of Howden’s Chronica which also contain the 1200 decrees.55 Howden’s copy of the canons contains several mis-​ readings, but the absence of any reference to the 1179 council is nevertheless marked and interesting. It implies that the reference was not foundational to the text, or that Howden was using an unformed or altered version. As a whole, in fact, the 1195 canons are less legally precise than their counterparts in 1175. 51 52 53 54 55

Westminster (1175) c.12 = Ibid., 988. Westminster (1175) cc.6, 9, 14 = Ibid., 986–​87, 989. Duggan, ‘Making Law or Not?’, 43–​55; on Gérard, see also P.  Landau, ‘Die Kölner Kanonistik des 12. Jahrhunderts: Ein Höhepunkt der europäischen Rechtswissenschaft’, Rhenischen Vereins für Rechtsgeschichte e.V. zu Köln (Badenweiler, 2008), 8–​11. Councils & Synods, eds. Brooke et al., vol. 1, 1042–​52. York (1195) c.12 = Ibid., 1050: ‘Nec ecclesiarum augeant pensiones, cum in Lateranensi concilio sit statutum ut nec episcopis nec abbatibus liceat veteres census augere vel novas imponere’, present only in L.

134 Summerlin They appear to borrow from a smaller number of texts, and in particular they have none of the 1175 council’s detailed reference to a mixture of alternative sources. The implication is that York in 1195 was not drafted by, or in the presence of, a lawyer of the skill and expertise of Gérard. So far, it seems as though the 1175 synod represents an outlier, an idea reinforced by the 1190 provincial and legatine council held at Rouen. Despite being in Normandy, Rouen had close connections with the English Church. Not only was the cross-​channel ‘Angevin Empire’ in full sway, but its archbishop, Walter of Coutances, had previously been bishop-​elect at Lincoln. According to Peter Landau, Walter was learned in law and may have been responsible for the creation of a law school in Lincoln.56 The idea of a law school in Lincoln was in large part founded on the presence there of a copy of a particularly important canonical collection known as the Appendix Concilii Lateranensis; Landau even hints at Walter’s engagement with that school.57 If Walter was a trained lawyer, however, that was not obvious through his conciliar decrees. By contrast to the 1175 decrees from Westminster, the thirty-​two decrees promulgated 56

57

P. Landau, ‘Walter von Coutances und die Anfänge der Anglo-​Normannischen Rechtswissenschaft’, in O. Condorelli (ed.), Panta Rei: Studi dedicati a Manlio Bellomo (5 vols, Rome, 2004), vol. 3, 203–​04; Turner’s suggestion that Walter’s learning originated in Paris means very little now that a northern-​French school of law is well-​established amongst scholars:  R. Turner, ‘Walter of Coutances’, Oxford Dictionary of National Biography (Oxford, 2004), http://​www.oxforddnb.com/​view/​article/​6467 (accessed 23 June 2017); see also now the brief note by Peter Landau suggesting that Kuttner and Gouron also saw Walter as a learned magister amongst the canon law schools, ‘Stephan Kuttner’s Last Discovery on Walter of Coutances: A Commemoration 110 Years after Kuttner’s Birthday (a note)’, BMCL, 33 (2016), 229–​30. On Appendix, see C. Duggan, Twelfth-​Century Decretal Collections and their Importance in English History (London, 1965), 51–​57; idem, ‘Decretal Collections from Gratian’s Decretum to the Compilationes Antiquae: The Making of the New Case Law’, in HMCL, 277–​80; idem, ‘English Canonists and the Appendix Concilii Lateranensis with an analysis of Saint John’s College, Cambridge, MS 148’, Traditio, 18 (1962), 459–​68; P. Landau, ‘Studien zur Appendix und den Glossen in frühen systematischen Dekretalensammlungen’, BMCL, 9 (1979), 1–​22; the collection appeared first in Conciliorum omnium tam generalium quam particularium, ed. P. Crabbe (2nd edn, 2 vols, Cologne, 1551) but the printed version most easily accessible falls in Mansi, vol. 22, col. 274–​454. One surviving manuscript, Lincoln, Cathedral and Chapter Library, MS 121, has been identified by Landau as a critical source: ‘The Origins of Legal Science in England in the Twelfth Century: Lincoln, Oxford, and the Career of Vacarius’, in M.  Brett and K.  Cushing (eds.), Readers, Texts and Compilers in the Earlier Middle Ages: Studies in Medieval Canon Law in Honour of Linda Fowler-​Magerl (Farnham-​ Burlington, 2009), 175–​78, but see the dissenting arguments put forward by Brett, who points to the manuscript’s absence from a booklist compiled between 1160 and 1220, dating the manuscript’s arrival in Lincoln to after 1220: ‘English Law and Centres of Law Studies in the Later Twelfth Century’, 101.

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at Rouen tend to brusque, terse commands.58 The range of topics is extensive. One prohibited clerical fornication; another, the sons of priests acceding to an ordained role.59 Forged seals and arson were also forbidden, and any found guilty of contumacy or of celebrating divine office against the prohibition of their bishop were excommunicated.60 The 1179 Lateran council is directly cited only once, even though some of its ideas were repeated.61 The decree where it appears specified that archdeacons were only to ride six or seven horses in their archdeaconries, and provided three Angevin solidii in compensation for poor houses who housed archdeacons while on visitation.62 Of these elements, the former was taken from Alexander’s council, where it formed part of a canon against episcopal exactions.63 While the latter was not included in the Lateran canons themselves, it does replicate their spirit, taking it further with specific compensation. Overall, the Rouen canons demonstrate less precision and fewer explicit references to precedents than the 1175 decrees, suggesting that their composition may have been driven less by concern for those legal elements. Given the alternatives, it seems that the Westminster (1200) decrees witness the deliberate but partial repetition of the decrees of an earlier general council. The partial element of that repetition emerged, most likely, as a result of only certain canons having a deep local relevance at the time, with the overlap with the leprosy case at Maiden Bradley providing the strongest evidence of such choice. In this, and in Hubert’s expansion upon certain decrees, there is a clear and strong connection with the repetition of a selection of Innocent ii’s 1139 canons at a provincial, legatine council in Valladolid in 1143.64 Unlike at Rouen in 1190 and Vallombrosa in 1179, at Valladolid in 1143, Montpellier in 1195 and Westminster in 1200 councils repeat extensive sections of the papal decrees verbatim. The critical difference between these latter three stems from Hubert’s lapsed legatine commission. Guy, Cardinal-​deacon of SS Cosma

58

59 60 61 62 63 64

Mansi, vol. 22, col. 581–​86; Concilia Rotomagensis, ed. Bessin, 94–​100; R. Foreville, ‘The Synod of the Province of Rouen in the Eleventh and Twelfth Centuries’, in C. Brooke et al. (eds.), Church and Government in the Middle Ages: Essays Presented to Christopher Cheney on the Occasion of his Seventieth Birthday (Cambridge, 1976), 19–​39. Rouen (1190) cc.4, 6 = Mansi, vol. 22, col. 582. Rouen (1190) cc.28–​30 = Ibid., col. 586. Though cf. J. Peltzer, Canon Law, Careers and Conquest: Episcopal Elections in Normandy and Greater Anjou (Cambridge, 2008), 66–​67, suggesting a strong connection between Rouen and the 1179 Lateran council. Rouen (1190), c.12 = Mansi, vol. 22, col. 583. Lateran (1179) c.4 = cod, 213. pup, 199–​202; Brett and Somerville, ‘The Transmission of the Councils’, 244.

136 Summerlin e Damiano convened the Vallodolid council, while Montpellier was presided over by a papal legate called Michael, about whom little else is known.65 The 1200 council at Westminster was not the first to copy extensive extracts from papal canons into its text, but it was possibly the first to do so under the authority of a local archbishop rather than a legate of the papal curia. Of equal interest is the source for the conciliar canons which were so extensively replicated in 1200. Copies of the 1179 decrees are known to survive in England, although no mandate for taking copies back to provinces, seen in 1215, survives. English bishops did attend the council, alongside clerics from lesser orders; there is a chance, albeit a slim one, that Howden too attended.66 It is unthinkable that none of these attendees brought the 1179 decrees back to England, and English copies survive from the 1180s via a canonical collection which can be linked to Canterbury with a degree of certainty.67 Moreover, four chronicles written in England contain the 1179 canons in full, and a further two contain references to the statutes.68 When this hard evidence of the canons’ survival and transmission in English manuscripts is combined with the more-​ or-​less verbatim quotation of large section of the Lateran iii decrees at Westminster, the resultant textual comparison points to local copies of the canons being used by Hubert in 1200. Of the ten decrees included in the Westminster acts, one allows a detailed comparison. Canon 5 of the 1200 decrees sits, in Howden, under the rubric of ‘In what manner the archbishop and bishop and their officials ought to be granted hospitality with their subjects’.69 It contains a significant section of c.4 of the 1179 council, which had also provided the basis for the canon promulgated by Walter of Coutances at Rouen in 1190.70 For the current discussion, 65 66 67

68 69 70

Very little is known concerning Montpellier, but see Duggan, ‘Conciliar Law’, 339. The canons can be found in Mansi, vol. 22, col. 667–​71. Councils and Synods, eds. Brooke et al., vol. 1, 1012. Cantuariensis: London, BL Royal, 10.B.iv, fols. 42r–​65v; Duggan, Twelfth-​Century Decretal Collections, 75–​76; idem, ‘Decretal Collections from Gratian’s Decretum to the Compilationes antiquae’, 258–​59, where he expressly comments that ‘the Canterbury collection is appropriately so named, in respect of its contents and provenance’. A sister-​collection, known as ‘Roffensis’, may also have initially had some connection to Canterbury: Duggan, Twelfth-​Century Decretal Collections, 76–​79; Duggan, ‘Decretal Collections from Gratian’s Decretum to the Compilationes antiquae’, 259. The four chronicles are Gervase of Canterbury; William of Newburgh; and the two chronicles of Roger of Howden; the two containing variations are Ralph Diceto, who reproduces only two decrees but in their entirety, and Roger of Wendover, who lists titles. Westminster (1200) c.5  =  Councils & Synods, eds. Brooke et  al., vol. 1, 1062:  ‘Quo modo archiepiscopus et episcopus et eorum officiales debeant hospitari cum subiectis’. Lateran (1179) c.4 = cod, 213; translation adapted from N. Tanner, Decrees of the Ecumenical Councils, Vol. 1: Nicaea to Lateran V (Washington, D.C., 1990), 213.

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the focal point is a clause reading: ‘Let them not set out with hunting dogs and birds, but they should proceed there so that they are seen not to seek their own things, but those of Jesus Christ’. At first glance innocuous, this section of the Lateran decree exists in four variants across the manuscript tradition.71 One of the alternative formulations does not exist in English manuscripts; of the other three, one rather mangled version exists only in Howden. The other two survive mostly in canonical collections. The clause prohibiting sumptuous meals appears in the Breviarium Extravagantium of Bernard of Pavia, the collection compiled in c.1190 in northern Italy that would later become the first decretal collection to be taught and commented on in the Bolognese law schools, as well as a small group of English collections known as the ‘Worcester’ group and their dependents.72 Most traditions, however, lack the extra clause concerning sumptuous meals, including the Anglo-​Norman Appendix Concilii Lateranensis tradition.73 This final version, lacking the extra clause, was the one used to compile Hubert’s 1200 conciliar canons.74 The absence of the clause from the 1200 canons therefore sheds some light on Hubert’s source. It reinforces the value of Howden as an independent witness who copied material into his narratives: there can be no cross-​pollination between the two sets of conciliar decrees he used. It also strengthens the connection between locally circulating copies of the 1179 canons and Hubert’s 1200 decrees: rather than the Bolognese Breviarium, the implication remains that the Appendix itself was Hubert’s most likely source of the conciliar canons. That suggestion is strengthened, albeit circumstantially, by the sequence of the 1200 decrees, which mimics the version of the 1179 decrees found in the Appendix group. Despite the well-​attested contemporary importance of the Breviarium, therefore, it had not burrowed itself deeply enough to be employed in the familia of the archbishop of Canterbury in 1200.

71 72 73 74

For a full discussion of c.4 and its manuscript forms, see D. Summerlin, ‘The Reception and Authority of Conciliar Canons in the Later Twelfth Century: Alexander III’s 1179 Lateran Canons and their Manuscript Context’, ZRG Kan. Abt., 131 (2014), 125–​30. Cambridge, St John’s College, F.11, fols. 69v–​70r; for Breviarium see e.g. Sigüenza, Biblioteca del Cabildo, 10, fol. 80rb. See Appendix, as preserved in Conciliorum omnium tam generalium quam particularium, ed. Crabbe, vol. 2, 838. Councils & Synods, eds. Brooke et al., vol. 1, 1063, ‘Nec cum canibus venatoriis aut avibus proficiscantur set ita procedant ut non que sua sunt set que Iesu Christi querere videantur. Prohibemus eciam ne subditos suos talliis et exaccionibus episcopi gravare presumant’; Oxford, New College, MS 220, fol. 94v, though note that the first section of this canon appears in mangled form on fol. 94r lacking this section.

138 Summerlin England has long been presented as one of the key locations for the development of canon law in the twelfth century, with Duggan and others pointing to the importance of English canonists and collections in the history of decretals and of papal law.75 Archiepiscopal familia in Canterbury in the 1160s, 1170s and 1180s often included learned lawyers such as Gérard Pucelle and Vacarius, and papal letters sent to English bishops form a substantial proportion of the surviving corpus of decretals.76 Hubert, too, would eventually call on a range of trained lawyers to act on his behalf, although Cheney once sensibly swatted aside suggestions that Hubert had spent time himself as a student in Bologna.77 Nevertheless, he employed canonists including Simon of Sywell and John of Tynemouth, both of whom contributed to glosses on Gratian, as well as possibly Ricardus Anglicus, an Englishman who taught canon law in Bologna during the 1190s and then returned to his homeland later. The earliest that these men can be attested in the Canterbury familia, however, is after the 1200 council; it may be that whoever Hubert called on in 1200 had a different form of learning to the Bolognese-​educated magistri. In any case, he or they almost certainly employed a locally-​compiled collection rather than the one which emerged from Bologna in the 1190s. The use of that collection re-​emphasises how important local copies of papal statutes and texts were. It was still Hubert’s choice to repeat Alexander’s 1179 decrees, and while his earlier council in 1195 had drawn on similar inspiration to those decrees, it had not repeated them explicitly. By 1200, the archbishop of Canterbury or his advisors made the choice to do so, but equally chose to replicate only a selection. While the general rules provided a framework, the interpretation and use of those general rules locally remained particularly important for both their longevity and their use locally. The differences between the synods opens an interesting point. If the repetition of papal conciliar canons reflects the growth in papal authority over the course of the twelfth century, then it could also crush the innovative legal culture which had led to the growth of the schools in the first place. The imaginative use of earlier authorities in the 1175 council at Westminster, for example, could not be replicated when repeating papal conciliar statutes, no matter how far those papal decrees were grounded in canonistic learning. In an additional twist, the man responsible for that repetition, in England at least, was closely connected with royal power throughout his time as prelate and spent much time acting as an intermediary between pope and king despite bending 75 76 77

Duggan, Twelfth-​Century Decretal Collections, passim; see also the literature cited above. Cheney and John (eds.), English Episcopal Acta, vol. 3, xxviii. Cheney, Hubert Walter, 18.

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the canonical regulations forbidding him from holding secular office. A link between the decretal collections and England’s nascent common law has often been dismissed, but it could well be that the ever-​fruitful relationships between men whose careers spanned both secular and ecclesiastical spheres were a driving force behind the centralisation of authority in practice, as well as in theory. Representing as they do only a single instance of the repetition of papal conciliar canons, the 1200 statutes present an intriguing example of yet another occasion in twelfth-​century ecclesiastical government and canon law where, it seems, the greatest innovations took place away from the papal curia.

Chapter 7

The Emerging Jurisprudence, the Second Lateran Council of 1139 and the Development of Canonical Impediments Stephan Dusil Introduction In 1139 the Second Lateran Council convened in Rome, presided over by Pope Innocent ii who had invited bishops from all over Europe to address the pressing issues facing the Church. The participants of this council dealt in their decisions with tournaments, benefices, usury, church tithes and also with clerical celibacy.1 They were confronted with the fact that, despite multiple earlier attempts, priests, bishops, monks and nuns continued to marry, live together with a partner and have sexual intercourse. Clerics, however, needed to serve God and to remain pure; therefore, the council deemed that they should abstain from any sexual behaviour. To this end, the council declared, in the seventh canon, that all marriages entered into after ordination should no longer be regarded as a valid union. This essay focusses on c.7 of the Second Lateran Council. It considers this declaration on the frontier between clerical discipline and marriage law by contextualising the 1139 decision in the history of the eleventh and twelfth centuries and then by analysing its reception in the slowly developing jurisprudence in Bologna and elsewhere. It also aims to demonstrate how a renewed understanding of celibacy influenced legislation around 1100 and how papal and conciliar legislation on celibacy and chastity were implemented in daily life. The canonists of the last quarter of the twelfth century, however, took the decisive legal step to make a celibate life possible when they managed to create a system of different marital impediments, such as the impediment of vow and the impediment of ordination. It will be argued that clerical celibacy was 1 On the Second Lateran Council see C. von Hefele, Conciliengeschichte (2nd edn, Freiburg im Breisgau, 1886), 438–​51; A. Duggan, ‘Conciliar Law 1123–​1215: The Legislation of the Four Lateran Councils’, in HMCL, 318–​66, esp. 328–​33; COGD 2.1, 97–​101; M. Brett and R. Somerville, ‘The Transmission of the Council from 1130 to 1139’, in J. Doran and D. Smith (eds.), Pope Inno­ cent II (1130–​43): The World vs the City (New York-​London, 2016), 226–​71, esp. 239–​45.

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successfully established not from the disciplinary side, namely by imposing behaviour rules on clerics, but by way of a doctrine of marriage law, with the laws imposed by the popes playing lesser roles than the work of academics who provided structure to previous normative rules. This study consists of three sections. First, it introduces the medieval question of clerical celibacy, along with law and politics in the eleventh and twelfth centuries; second, it presents c.7 of the Second Lateran Council in its historical context and draws out previous, similar decisions; third, it shows how the developing jurisprudence found the right starting point to nullify clerical marriages in the form of the diriment impediment, rendering the marriage void from the beginning. Strikingly, this system of impediments was created without recourse to c.7 of the Second Lateran Council. It will conclude by arguing that the willingness to enforce clerical celibacy on the one hand, and the beginning of legal doctrine around 1150 on the other, led to a refined understanding of clerical celibacy and also marriage law. Shaping a doctrine on this important topic helped, in the long run, to enforce celibacy in practice.

Clerical Celibacy and Marriage Law in the Early Church

The medieval church understood clerical celibacy differently from today. The modern understanding of celibacy consists of two elements, namely that only unmarried men are allowed to be ordained priests (marriage as an impediment to ordination) and that priests are not allowed to marry (ordination as an impediment to marriage).2 Furthermore, priests are forced to live in chastity.3 In contrasting the modern legal setting with the medieval, one can discover similarities, but also differences.4 One striking difference lies in the two types 2 See c.1042 n. 1 (marriage as impediment) and c.1087 (ordination as impediment) of Codex Iuris Canonici (1983), http://​www.vatican.va/​archive/​cod-​iuris-​canonici/​cic_​index_​lt.html, accessed 27 Jan. 2017. On the current legal situation see W. Aymans and K. Mörsdorf, Kanon­ isches Recht: Lehrbuch aufgrund des Codex Iuris Canonici, Band 2: Verfassungs-​und Vereini­ gungsrecht (Paderborn, 1997), 156–​61; P.  Krämer, Kirchenrecht II. Ortskirch—​Gesamtkirche, Kohlhammer-​Studienbücher Theologie, 24/​2 (Stuttgart-​Berlin-​Cologne, 1993), 36–​39; H. Heimerl, Der Zölibat: Recht und Gerechtigkeit (Vienna-​New  York, 1985), 19–​88; H.  Schwendenwein, ‘Die Rechte und Pflichten der Kleriker’, in J. Listl and H. Schmitz (eds.), Handbuch des katholischen Kirchenrechts (2nd edn, Regensburg, 1999), §22, 274–​83, esp. 278–​79. 3 As sexuality is restricted to marriage, see Schwendenwein, ‘Die Rechte und Pflichten der Kleriker’, 278–​79. 4 On the medieval setting see M. Boelens, Die Klerikerehe in der Gesetzgebung der Kirche un­ ter besonderer Berücksichtigung der Strafe:  Eine rechtsgeschichtliche Untersuchung von den Anfängen der Kirche bis zum Jahre 1139 (Paderborn, 1968); R. Cholij, Clerical Celibacy in East

142 Dusil of orders known by the medieval church (and still common up to the Second Vatican Council in 1962–​65): the minor orders encompassing the porter, lector, exorcist and acolyte, and the major orders, namely the subdeacon, deacon, priest and bishop. This distinction is crucial as the rules for members of major orders were generally stricter than for those in minor orders. The medieval church knew married priests, since minor clerics were allowed to marry and to have children; however, once being ordained to the higher clergy, they were discouraged from being sexually active, although their marriage as a sacramental union remained valid. By the later Middle Ages, chastity became obligatory, but a marriage was not yet an impediment to an ordination. Similar to the modern notion of celibacy, a marriage after an ordination was forbidden, at least for higher clerics. An ordained cleric was, according to sources dating to Late Antiquity and the Middle Ages, not allowed to enter into a marriage; if he did so, in breach of ecclesiastical rules, the marriage nonetheless remained valid. Ordination was not yet an impediment to a marriage. This emphasis on chastity and continence of priests was not born out of the eleventh century but rooted in the Bible. The Evangelist Matthew praised in his gospel those who refrained from sexual activities and thus made themselves eunuchs propter regnum caelorum.5 Chastity and celibacy were praised much in the first three centuries, although such a duty was not yet laid down in canons.6 This changed at the beginning of the fourth century. The Spanish Council of Elvira, for instance, decreed that clerics in major orders should live in a continent way without sexual intercourse even if they were married.7 In and West (Herefordshire, 1989); G. Denzler, Die Geschichte des Zölibats (Freiburg im Breisgau, 1993); M. Frassetto (ed.), Medieval Purity and Piety: Essays on Medieval Clerical Celibacy and Religious Reform (New York-​London, 1998); R. Price, ‘Art. Zölibat. II. Kirchengeschichtlich’, in Theologische Realenzyklopädie, 36 (2004), 722–​39; W. Phipps, Clerical Celibacy (New York-​ London, 2004); H. Parish, Clerical Celibacy in the West: c.1100–​1700 (Farnham, 2010). 5 Mt. 19:12 (according to Biblia Sacra iuxta vulgatam versionem, eds. B. Fischer and R. Weber [Stuttgart, 1983]): ‘Sunt enim eunuchi, qui de matris utero sic nati sunt, et sunt eunuchi, qui facti sunt ab hominibus, et sunt eunuchi, qui se ipsos castraverunt propter regnum caelorum’. 6 B. Kötting, Der Zölibat in der Alten Kirche, Schriften der Gesellschaft zur Förderung der Westfälischen Wilhelms-​Universität zu Münster, 61 (Münster, 1968); A.  Antweiler, Zölibat:  Ur­ sprung und Geltung (Munich, 1969); R. Gryson, Les origines du célibat ecclésiastique du premier au septième siècle, Recherches et synthèses, section d’histoire, 2 (Gembloux, 1970); P. Brown, The Body and Society: Men, Women and Sexual Renunciation in Early Christianity (New York, 1988); C. Cochini, Apostolic Origins of Priestly Celibacy (San Francisco, 1990); S. Heid, Zölibat in der frühen Kirche: Die Anfänge einer Enthaltsamkeitspflicht für Kleriker in Ost und West (Paderborn, 1997). 7 Council of Elvira/​Concilium Eliberritanum, c.33 (La Colección Canónica Hispana, Vol 4: Con­ cilios Galos, Concilios Hispanos. Primera Parte, eds. G. Martínez Díez and F. Rodríguez [Madrid,  1984], 253):  ‘De episcopis et ministris, ut ab uxoribus abstineant//​Placuit in totum

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a similar vein, papal decretals tried to discourage deacons and priests from having sexual intercourse. Pope Siricius (384–​99), for instance, urged Bishop Himerius of Tarragona in his famous decretal Directa ad decessorem in 385 that higher clerics ought to refrain from their wives, lest they be deposed.8 But although the canons emphasised chastity after ordination, they did not explicitly deal with the question of whether a marriage entered into after ordination was invalid or not. The obligation of chastity, however, allows the assumption that these marriages were forbidden, or at least not well-​regarded. In a similar vein, later decretals as well as conciliar decisions admonished higher clerics to chastity after their ordination.9 The climate changed drastically in the eleventh century. A European movement swept over the Church:  monks and nuns, clerics, bishops and popes strove to reform the traditional structure of the Church, including the close cooperation with secular rules. Theological debates and the questions of

prohiberi episcopis, presbyteris et diaconibus positis in ministerio abstinere se a coniugibus suis et non generare filios. Quicumque vero fecerit, ab honore clericatus exterminetur’. On this council see E. Griffe, ‘À propos du canon 33 du concile d’Elvire’, Bulletin de Littérature Ecclésiastique, 74 (1973), 142–​45; idem, ‘Le Concile d’Elvire et les origines du célibat ecclésiastique’, in Bulletin de Littérature Ecclésiastique, 77 (1976), 123–​27; E. Reichert, ‘Die Canones der Synode von Elvria: Einleitung und Kommentar’, Ph.D. Dissertation (University of Hamburg, 1990); A. Weckwerth, Das erste Konzil von Toledo: Ein philologischer und historischer Kommen­ tar zur Constitutio Concilii, Jahrbuch für Antike und Christentum, Ergänzungsband, Kleine Reihe, 1 (Münster, 2004), 104–​06. 8 Pope Siricius to Himerius (Decretal Directa ad decessorem), chap. 7, according to K. Zechiel-​ Eckes, Die erste Dekretale:  Der Brief Papst Siricius’ an Bischof Himerius von Tarragona vom Jahr 385 ( JK 255). Aus dem Nachlass mit Ergänzungen hg. von Detlef Jasper, mgh, Studien und Texte, 55 (Hannover, 2013), 100: ‘Hii vero, qui inliciti privilegii excusatione nituntur, ut sibi asserant veteri hoc lege concessum, noverint se ab omni ecclesiastico honore, quo indigne usi sunt, apostolicae sedis auctoritate deiectos, nec unquam posse veneranda adtractare mysteria. A quibus se ipsi, dum obscenis cupiditatibus inhiant, privaverunt’. On this decretal see C.  Hornung, Directa ad decessorem: Ein kirchenhistorisch-​philologischer Kommentar zur er­ sten Dekretale des Siricius von Rom, Jahrbuch für Antike und Christentum, Ergänzungsband, Kleine Reihe 6 (Münster, 2011), esp. 151–​78. 9 See also, for example, the papal decretals of Pope Innocent I (401–​17) to Maximus and Severus, Ep.  38 (JK 315)  and of Pope Leo I  (440–​61) to Rusticus of Narbonne (458–​59), Ep.  167, c.3 (JK 544; PL, vol. 54, col. 1204A). For regional councils; see, for example, the Council of Carthage (390) c.2 (Concilia Africae a.345–​a.525, ed. C. Munier, ccsl, 149 [Turnhout, 1974], 13): ‘Omnibus placet ut episcopus, presbyter et diaconus, pudicitiae custodes, etiam ab uxoribus se abstineant ut in omnibus et ab omnibus pudicitia custodiatur, qui altario inserviunt’. See also the Council of Orange (441) c.22 (Concilia Galliae a.314–​a.506, ed. C. Munier, ccsl, 148 [Turnhout, 1963], 84): ‘Si quis autem post acceptam benedictionem leviticam cum uxore sua incontinens invenitur ab officio abiciatur’. Finally see the Council of Agde (506) c.9 (Con­ cilia Galliae a. 314–​a. 506, ed. Munier, 196–​99).

144 Dusil investiture, simony and celibacy entered the scene in a movement later called the Gregorian Reform after one protagonist, Pope Gregory VII, who worked tirelessly to implement sexual abstinence in daily clerical life by first making and then vehemently enforcing the rules.10 Gregory vii and other popes enforced previously established rules with the help of their representatives, known as legates, and put pressure on other bishops to fight the incontinence of clerics by threatening to depose them.11 These attempts were not always welcome. In Paris, an abbot supporting the ideas of Gregory vii was threatened, slapped and ultimately locked up (1074); the Archbishop of Rouen was in danger of being stoned (1074); the clergy of Erfurt in Germany conspired against their archbishop and tried to kill him; and in 1119 the archbishop of Rouen, trying to move his clergy towards chastity, was forced to leave the synod when his supporters got into a physical altercation with the clergy.12 These examples bear witness to the often violent conflict between the old and the new, between the defendants of a more traditional understanding and the supporters of a new interpretation of clerical discipline. Even lay people were included in this conflict, as witnessed by the Pataria in Milan, a lay movement that fought sexually active priests. This eleventh-​century movement was stimulated by personal piety, the wish to politically participate and also by papal legates.13 The Pataria is a prime example of how papacy and laity fought hand in hand against the—​at least perceived—​shortcomings of the clergy. Gregory vii and other popes not only forbade Christians to attend the Holy Service of incontinent priests, they also instigated the faithful to fight them.

10

11

12 13

On the Gregorian Reform see J. Laudage, Gregorianische Reform und Investiturstreit, Erträge der Forschung, 282 (Darmstadt, 1993); H. Jakobs, Kirchenreform und Hochmittelalter 1046–​1215, Grundriss der Geschichte, 7 (Munich, 1994); W. Hartmann, Der Investiturstreit (3rd edn, Munich, 2007); on the canon law background see K. Cushing, Papacy and Law in the Gregorian Revolution: The Canonistic Work of Anselm of Lucca (Oxford, 1998), 11–​39. Gregorii VII Registrum, ed. E. Caspar, mgh, Epp. sel., vol. 2.2, Bk.6 no. 5b, pp. 400–​06, here 405–​06, Roman Synod, 1078 November 10, c.12/​28: ‘Si quis episcopus fornicationem presbyterorum diaconorum seu subdiaconorum vel crimen incestus in sua parroechia precibus vel pretio interveniente consenserit vel commissum sibique compertum auctoritate sui officii non inpugnaverit, ab officio suspendatur’. Examples given by Boelens, Die Klerikerehe in der Gesetzgebung der Kirche, 145–​46, 167. E. Werner, Pauperes Christi:  Studien zu sozial-​religiösen Bewegungen im Zeitalter des Reformpapsttums (Leipzig, 1956), 111–​64; H.  Keller, ‘Pataria und Stadtverfassung’, in J. Fleckenstein (ed.), Investiturstreit und Reichsverfassung, Vorträge und Forschungen, 17 (Sigmaringen, 1973), 321–​50, esp. 338–​43; O. Zumhagen, Religiöse Konflikte und kommu­ nale Entwicklung: Mailand, Cremona, Piacenza und Florenz zur Zeit der Pataria, Städteforschung A/​58 (Cologne, 2002), 58.

Development of Canonical Impediments

145

At the same time as enforcing older rules, the Church also established new sanctions through a number of councils and decretals from the 1130s that dealt with the question of chastity and celibacy. For example, the first council to address the question of incontinent priests was the council of Bourges in France in 1031. It repeated the traditional prohibitions of sexual intercourse after higher ordination and required clerics to separate from their wives. Furthermore, it considered the children born from a father in major orders to be illegitimate and excluded them from parental inheritance.14 The Church thereby exercised pressure not only on the clerics, but also on their families, striving to establish as many means as possible to secure chastity. Some years later, in 1059, Pope Nicolas ii (1059–​61) summoned a council in order to involve even the Christian faithful. The council decreed that no Christian was allowed to attend the Holy Service of a priest who was known for his incontinence.15 In a similar vein, his successor Gregory vii (1073–​85) repeated this prohibition, thus striving to isolate incontinent priests.16 The strategic guideline of these rules, however, remained the same: clerics in major orders ought to live a chaste life, although their marriages remained valid; the impact of the canons was more to enforce older ideas by inventing new sanctions than to find new rules.17 This observation is also true for a piece of legislation issued at the end of the 14

15

16

17

Council of Bourges (1031) esp. c.5, c.8, c.19, c.20 (Mansi, vol. 19, cols. 501–​08). An interpretation is given by Boelens, Die Klerikerehe in der Gesetzgebung der Kirche, 117–​20; A.  Llewellyn Barstow, Married Priests and the Reforming Papacy:  The Eleventh-​Century Debates, Texts and Studies in Religion, 12 (New York-​Toronto, 1982), 47–​49; Parish, Clerical Celibacy in the West, 96. The decision by Pope Nicolaus ii/​Synod of 1059 (Vigilantia universalis), c.3 (JL 4405, 4406) is printed in mgh, Const. 1, no. 384, pp. 546–​48, here 547: ‘Ut nullus missam audiat presbyteri, quem scit concubinam indubitanter habere aut subintroductam mulierem. Unde etiam ipsa sancta synodus hoc capitulum sub excommunicatione statuit, dicens:  Quicunque sacerdotum, diaconorum, subdiaconorum post constitutum beatae memoriae predecessoris nostri sanctissimi Leonis papae de castitate clericorum, concubinam palam duxerit vel ductam non reliquerit, ex parte omnipotentis Dei auctoritate beatorum apostolorum Petri et Pauli precipimus et omnino contradicimus, ut missam non cantet neque evangelium vel epistolam ad missam legat, neque in presbyterio ad divina officia cum iis qui praefatae constitutioni obędientes fuerint maneat, neque partem ab aecclesia suscipiat, quousque a nobis sententia super huiusmodi Deo concedente procedat’. See, for instance, Pope Gregory vii to Sigehard of Aquileja, 23 March 1075 (JL 4943) in Gregorii VII Registrum, ed. Caspar, mgh, Epp. Sel., vol. 2.2, Bk.2 no. 62, p. 217; Pope Gregory vii to Burkhard ii of Halberstadt, 29 March 1075 (JL 4948) in Ibid., Bk.2 no. 66, pp. 221–​22. On Gregory vii see Barstow, Married Priests and the Reforming Papacy, 67–​77. See the interpretation by U.-​R. Blumenthal, ‘Pope Gregory VII and the Prohibition of Nicolaitism’, in Frassetto (ed.), Medieval Purity and Piety: Essays on Medieval Clerical Cel­ ibacy and Religious Reform, 239–​67, here 253:  ‘If it has been said that Gregory VII was

146 Dusil eleventh century:  Pope Urban ii presided over a council in Melfi in 1089 at which ­chapter 12 called for priests to be separated from their wives and even authorised secular rulers to subjugate the wives of priests to servitude.18 These examples illustrate how the Church attempted to fight incontinence on a legal basis. It is important to state, however, that the material rules of canon law did not change during this time. Even if church officials vehemently fought against incontinent priests, even if their children were disadvantaged and their wives sold, and even if believers were involved in this inner clerical disciplinary struggle, the marriages of clerics remained valid irrespective of whether they entered into their marriages before their ordination or after their ordination. The Church had not yet found a precise point to attack the validity of these marriages and to guarantee continence.

A Successful Attempt? The Second Lateran Council in 1139

The Second Lateran Council dealt extensively with the life of clerics and dedicated different canons to the topic of sexuality. The participants of this council decreed that higher clerics who lived with women should be deprived of their office and benefice; they forbade believers to attend Holy Services celebrated by incontinent clerics and finally declared that relationships between higher clerics and women entered into after the ordination were not marriages at all (c.7).19 The last decision is critical for this discussion: Ut autem lex continentiae et Deo placens munditia in ecclesiasticis personis et sacris ordinibus dilatetur, statuimus quatenus episcopi presbyteri diaconi subdiaconi regulares canonici et monachi atque conversi professi qui sanctum transgredientes propositum uxores sibi copulare praesumpserint, separentur. Huiusmodi namque copulationem, quam

18

19

particularly influential, then this is certainly correct in one sense. No pope before him so consistently and systematically sought to enforce obedience to papal decrees’. Urban ii in a synod at Melfi, c.12: R. Somerville (in collaboration with S. Kuttner), Pope Urban II, the Collectio Britannica, and the Council of Melfi (1089) (Oxford, 1996), 256 with English translation on 261–​62. On this council see B.  Matecki, ‘Die Bestimmungen des Konzils von Melfi (1089) zur Enthaltsamkeit von Klerikern höherer Weihegrade:  Ein Schlaglicht auf den Stand der Entwicklung des Ehehindernisses der Weihe zum Ende des 11. Jahrhunderts’, in M. Gerwing and H. Reinhardt (eds.), Wahrheit auf dem Weg: Festschrift für Ludwig Hödl (Münster, 2009), 11–​27. The older edition of the decisions of the Second Lateran Council—​c.6, c.7 and c.8—​in COD, 198, is now replaced by COGD 2.1, 106.

Development of Canonical Impediments

147

contra ecclesiasticam regulam constat esse contractam, matrimonium non esse censemus.20 Indeed, that the law of continence and the purity pleasing to God might be propagated among ecclesiastical persons and those in holy orders we decree that where bishops, priests, deacons, subdeacons, canons regular, monks and professed lay brothers have presumed to take wives and so transgress this holy precept, they are to be separated from their partners. For we do not deem there to be a marriage which, it is agreed, has been contracted against ecclesiastical law.21 Such a union (copulatio) of a member of the higher clergy, canons regular, monks or conversi professi, known to have been entered into a marriage in breach of ecclesiastical rules, was therefore not considered as a marriage. This wording, matrimo­ nium non esse censemus, is, however, clumsy rather than legally clear. The author of this canon was not able to find a precise term for what should happen; he neither used the term impedimentum nor impedire nor matrimonium irritum, which suggests that he could not express precisely the legal ramifications of this prohibition. Research in the twentieth century therefore presumed that this decision formed the cornerstone for the creation of a diriment impediment of ordination, and thus finally gave a legal answer to the questions of clerical celibacy and chastity.22 20 21 22

Second Lateran Council (1139) c.7; here cited according to COGD 2.1, 106; see also Brett and Somerville, ‘The Transmission of the Councils from 1130 to 1139’, 263 and the older edition in COD, 198. N. Tanner (ed.), Decrees of the Ecumenical Councils, Vol. 1: Nicaea I to Lateran V (Washington D.C., 1990), 198. See, for instance, Matecki, ‘Die Bestimmungen des Konzils von Melfi (1089) zur Enthaltsamkeit von Klerikern höherer Weihegrade’, 11–​27, 27 (‘Das, was da geschlossen wurde, ist nach dem Urteil der Konzilsväter also gar keine Ehe, womit sie offensichtlich schon den Kern der heutigen Rechtslage trafen’); Parish, Clerical Celibacy in the West, 104 (‘real turning point in the history of clerical marriage had come in this period between 1123 and 1139’); A. Stickler, Der Klerikerzölibat: Seine Entwicklungsgeschichte und seine the­ ologischen Grundlagen (Abensberg, 1993), 34; Barstow, Married Priests and the Reform­ ing Papacy, 103; G. Denzler, Das Papsttum und der Amtszölibat, Erster Teil: Die Zeit bis zur Reformation, Päpste und Papsttum, 5.1 (Stuttgart, 1973), 84: ‘Diese Kanones [c.6 and c.7 of the Second Lateran Council—​S.D.] erklären die Ehe, die ein Priester eingegangen ist, für ungültig, das heißt die Priesterweihe stellt von nun an ein trennendes Ehehindernis dar’; Boelens, Die Klerikerehe in der Gesetzgebung der Kirche, 177–​82; R. Foreville, Latran I, II, III et Latran IV, Histoire des conciles oecuméniques, 6 (Paris, 1965), 91: ‘On ne saurait exagérer l’importance de cette mesure. Elle décrète de nullité tout mariage contracté par un clerc engagé dans les ordres sacrés’; J.  Baptist Sägmüller, Lehrbuch des katholischen Kirchenrechts (3rd edn, Freiburg im Breisgau, 1914), vol. 2, 159:  ‘Im Abendlande sprach erst das zweite Laterankonzil 1139 ganz bestimmt die Nichtigkeit der Majoristenehe aus’;

148 Dusil The decision of the Second Lateran Council, however, was not the first one to address this topic. It is based on a previous rule by the Council of Pisa in 1135, over which Innocent ii also presided. The participants of this council decreed in a similar vein that such a union was not regarded as marriage.23 The content of both sanctions indicates that the rule-​makers described for the first time in 1135 that such a marriage was void (nullum) and therefore went beyond the mere sanctions and punishments with which clerics were confronted before. The similar content and wording hints at the idea that celibacy lay at the heart of the Innocentian politics.24 The history of this nullum-​idea cannot predate 1135 as earlier examples are too shadowy. Although decisions of previous synods had been interpreted as formulation of an impediment, these conclusions seem too hastily drawn. The previously-​mentioned Council of Bourges (1031), for instance, considered the children of higher clerics (subdeacons and above) on an equal footing with illegitimate children, decreeing that they were neither entitled to the parental inheritance nor could serve as a witness in a trial.25 Since their legal position is

23

24 25

A. Scharnagl, Das feierliche Gelübde als Ehehindernis (Freiburg im Breisgau, 1908), 94: ‘Ungültigkeit der Priester … ehen mit zweifelloser Klarheit [ausgesprochen]’. See Brett and Somerville, ‘The Transmission of the Councils from 1130 to 1139’, 263. An older edition of this canon reads (Mansi, vol. 19, cols. 487–​92, here cols. 489–​90): ‘Ut autem lex continentiae et deo placens munditia in ecclesiasticis personis et sacris ordinibus dilatetur, statuimus quatenus episcopi, presbyteri, diaconi, subdiaconi, regulares canonici et monachi, qui sacrum transgredientes propositum, uxores sibi copulare praesumpserint, separentur. Huiusmodi namque compulationem, quoniam contra ecclesiasticam regulam constat esse contractam matrimonium non esse sancimus’. On the transmission see also R. Somerville, ‘The Council of Pisa, 1135: A Re-​Examination of the Evidence for the Canons’, Speculum, 45 (1970), 98–​114 and also R. Somerville, ‘Another Re-​examination of the Council of Pisa, 1135’, in M. Brett and K. Cushing (eds.), Readers, Texts and Compilers in the Earlier Middle Ages: Studies in Medieval Canon Law in Honour of Linda Fowler-​Magerl (Farnham-​Burlington, 2009), 101–​10; the wording of the decisive sentence, however, remains the same (Ibid., 103, 106). The wording sancimus/​censemus prompted a debate whether the meaning has also changed, see Boelens, Die Klerikerehe in der Gesetzgebung der Kirche, 178–​80. The research by Brett and Somerville reveals that this hints rather at an instable transmission than a change of content. On the transmission of these councils see Brett and Somerville, ‘The Transmission of the Councils from 1130 to 1139’, 235–​45. Council of Bourges (1031) c.8 (Mansi, vol. 19, col. 504):  ‘Ut filii presbyterorum, sive diaconorum, sive subdiaconorum, in sacerdotio, vel diaconatu, vel subdiaconatu nati, nullo modo ulterius ad clericatum suscipiantur. Quia tales, et omnes alii qui de non legitimo coniugio sunt nati, semen maledictum in scripturis divinis appellantur, nec apud saeculares leges haereditari possunt, neque in testimonium suscipi. Et qui de talibus clerici non sunt, sacros ordines non accipiant, sed in quocumque gradu nunc sunt, in eo tantum permaneant, et ultra non promoveantur’.

Development of Canonical Impediments

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similar to illegitimacy (Quia tales, et omnes alii qui de non legitimo coniugio sunt nati …), it is too far-​reaching to conclude that the marriage of their parents already was a nullum.26 A second conciliar decision, at the Council of Szabolcs in 1092, also remains vague.27 The participants of this council decreed that a marriage of a cleric and a woman could be illegitimate, thus a new marriage was open to the woman (separatas autem feminas parentibus reddi iubemus suis, et quia non erant le­ gitimae, si voluerint liceat eis maritari). The situation, however, in which this possibility was offered remains shadowy. The canon speaks of bigamos pres­ byteros et diaconos et viduarum vel repudiatarum maritos (bigamous priests and deacons married either to widows or the repudiated); therefore, it remains obscure whether a first marriage after an ordination is meant or not.28 In any case, it is striking that under certain (if murky) conditions marriages were illegitimate and considered to be null since the woman is allowed to remarry. In sum, the idea of the nullity of these marriages was palpable even before the 1130s, but the Second Lateran Council, in the wake of the Council of Pisa, stated more clearly than before that a marriage after an ordination should not be considered a marriage.

Shaping a Doctrine of Celibacy and Marital Impediments

The Decretum of Gratian lay at the beginning of university teaching of canon law. It developed in at least two stages. The first version, significantly shorter than the second, was sparsely transmitted, whereas the second version survived in hundreds of copies and numerous editions. The first version (Gratian 1) dates between 1120 and 1140; the second (Gratian 2) was compiled around 1140. One of the reasons for this dating is the inclusion of the Second Lateran Council:  while the older version does not transmit its decisions, the second one does, thus dates to after 1139.29 26 27

28 29

The interpretation of the decision of the Council of Compostela (1056) is also based on implications, see the remarks by Boelens, Die Klerikerehe in der Gesetzgebung der Kirche, 164. Council of Szabolcs (1092) c.1 (Mansi, vol. 20, cols. 757–​86, here cols. 759–​60): ‘Bigamos presbyteros et diaconos et viduarum vel repudiatarum maritos iubemus separari, et peracta penitentia ad ordinem suum reverti. Et qui noluerint illicita coniugia dimittere secundum instituta canonis debeant degradari. Separatas autem feminas parentibus reddi iubemus suis, et quia non erant legitimae, si voluerint liceat eis maritari’. See Boelens, Die Klerikerehe in der Gesetzgebung der Kirche, 129–​30, 165. The two versions were discovered by A. Winroth, The Making of Gratian’s Decretum (Cambridge, 2000), 49. An overview of the ensuing discussions can be found in M. Eichbauer,

150 Dusil How did the recensions deal with celibacy and chastity? Gratian 1 dedicated one passage of the first part of his Decretum, the Distinctiones to this topic, namely D.27–​D.33.30 He expounded that higher clerics, subdeacons included, should live chastely, although their marriages remained valid; therefore, his presentation of clerical sexual discipline was in accordance with contemporary conciliar and papal decisions. He also discussed whether a marriage entered into after a vow of chastity was valid or not, and answered this question by distinguishing between a simple vow and what was later called a solemn vow; only the latter impeded the marriage.31 In D.27 d.p.c.8, he mentioned simplicit­ er voventes, but he did not develop an elaborated categorisation like votum sim­ plex (simple vow) or votum solemne (solemn vow). Furthermore, Gratian 1 did not use the term ‘impediment’ or ‘nullity’, but described the consequences of such a vow: separare and disiungi can be read in the rubric and text of c.8. The nullity of a marriage after ordination and due to it was not debated by him.32 The second version of the Decretum took a slightly different stance. Gratian 2 added c.7 of the Second Lateran Council to a later passage, at C.27 q.1. In this section, Gratian 1 had already dealt with the relation of vows and marriages. Gratian 1 opened the discussion with canons supporting the idea that a vow impeded a marriage (later C.27 q.1 cc.1–​40) and then introduced contradicting canons (later C.27 q.1 cc.41–​43), before he solved this conflict in a final statement (C.27 q.1 d.p.c.43).33 It is in this line of thought where Gratian 2 integrated the decision of the Second Lateran Council, namely at the very end of the first part as c.40.34

30

31 32

33 34

‘Gratian’s Decretum and the Changing Historiographical Landscape’, History Compass, 11/​ 12 (2013), 1111–​25. See Gratian, Decretum, ed. Friedberg, col. 98–​121. Gratian returned to this topic in D.81 c.6 and D.84 c.3 (Gratian, Decretum, ed. Friedberg, col. 282, 295–​96); see F. Liotta, La conti­ nenza dei chierici nel pensiero canonistico classico da Graziano a Gregorio IX, Quaderni di “Studi Senesi”, 24 (Mailand, 1971), 3–​30. D.27 c.2–​c.9, esp. d.p.c. 8 (Gratian, Decretum, ed. Friedberg, col. 98–​100). The interpretation by G.  Denzler, Papsttum und der Amtszölibat, 85 (‘Gratian geht anscheinend doch von der Voraussetzung aus, daß die Ehe, obwohl nach der höheren Weihe geschlossen, rechtlich zwar bestehe, praktisch aber nicht gelebt werden dürfe’) points in the same direction. Gratian, Decretum, ed. Friedberg, col. 1060–​62. Ibid., col. 1059; J.  Werckmeister, Décret de Gratien:  Causes 27 à 36. Le Mariage, Sources Canoniques, 3 (Paris, 2011), 121 n. 75 states that this place was ‘maladroitement’, as it did not fit to the precedent article and touches only slightly on the topic of this questio, namely vows. In a similar vein, A. Larson, ‘Early Stages of Gratian’s Decretum and the Second Lateran Council: A Reconsideration’, BMCL, 27 (2007), 21–​56 spoke of an ‘apparently hasty incorporation’ (21).

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The rubrics for c.7 also illustrate the difficulties contemporaries faced interpreting the text. Originally, the canon was, similar to other decisions of the Second Lateran Council, incorporated without a rubric. Later scribes created a brief summary. They wrote, for instance: De monacha que ad lapsum adulterii deduci­ tur/​Concerning a monk who is lead to the lapse of adultery, Post professam conti­ nentiam quisquis uxorem duxerit ab ea separetur/​Whoever marries a wife after a vow of chastity should be separated from her or Post professam continentiam quis­ quis uxoribus iungitur peniteat/​Whoever is joined to a wife after a vow of chastity should perform penance.35 These scribes interpreted this canon as if the clerics had vowed chastity, emphasising the duty to perform penance and to separate, but not the invalidity of such a marriage. The decision of the Second Lateran Council was, according to these scribes who created the rubrics, not the starting point for the understanding of ordination as diriment impediment. How did the successors of Gratian in Bologna and elsewhere deal with the material gathered in the Decretum and especially with c.7 of the Second Lateran Council? The first comments on the collection, so-​called summae, said little about this topic. The Summa ‘Quoniam in omnibus’ was the first manual to expound upon the Decretum, traditionally attributed to the Bolognese teacher Paucapalea.36 In this summa, Paucapalea offered guidance to the reader who lost themselves in the sheer bulk of canons by summarising, highlighting and briefly explaining the texts. His analysis of the canons was not as dense as that of later canonists, but it allowed a first glimpse at jurisprudence around 1150. Paucapalea outlined the content of D.27 without developing the difference between the diriment and prohibitive impediment; the decision of the Second Lateran Council itself was not commented upon at all.37 The French Summa Parisiensis argued in a similar vein. Its unknown author, who finished this work in the end of the 1160s,38 distinguished in his analysis of D.27 between 35

36

37 38

T. Lenherr, ‘Die Summarien zu den Texten des 2.  Laterankonzils von 1139 in Gratians Dekret’, AKKR, 150 (1981), 528–​51, esp. 542, 549–​51. The rubric in the Friedberg edition of Gratian’s Decretum (col. 1059) De monacha que ad lapsum adulterii deducitur is transmitted only in some manuscripts (5 of 36) and identic to the rubric to C.27 q.1 c.28. On Paucapalea and the summa attributed to him: J.-M. Viejo-​Ximénez, ‘The Summa in omnibus Revisited’, in J. Goering, S. Dusil and A. Thier (eds.), Proceedings of the Fourteenth International Congress of Medieval Canon Law, Toronto, 5–​11 August 2012, mic C, 15 (Vatican City, 2016), 163–​77; some notes also by K. Pennington and W. Müller, ‘The Decretists: The Italian School’, in HMCL, 121–​73, esp. 128–​31. Die Summa des Paucapalea über das Decretum Gratiani, ed. J.-F. von Schulte (Giessen, 1890), 25 ad D.27 and 111–​12 ad C.27 q.1 c.40. See Liotta, La continenza dei chierici nel pen­ siero canonistico classico, 34–​36. On the dating and placing see P. Landau, ‘Master Peter of Louveciennes and the Origins of the Parisian School of Canon Law around 1170’, in Goering, Dusil and Thier (eds.),

152 Dusil the votum simplex and the votum consummatum; whereas the latter nullified a marriage, the first one had no such effect.39 The idea that ordination formed an impediment to a subsequent marriage was not yet part of the canonistic discussion. This perception changed slowly in the 1160s.40 This can be best seen in the summa of the Bolognese teacher Rufinus, who finished his work around 1164 and dealt lengthily with canonistic material.41 He explicitly distinguished between different impediments to a marriage such as votum, ordo, habitus, dispar cultus, error persone and others to nullify a marriage.42 How did he manage to develop the different categories? First, Rufinus dealt with the material offered by Gratian in D.27 and expounded the invalidating character of a solemn vow (votum solumne).43 He then explained to the reader that vow and ordination were inextricably linked. Next to the explicit vow of monks and nuns also existed a more implicit vow: ordination. No one should be ordained subdeacon, deacon or priest without a vow of chastity; ordination, however, was understood as an implicit vow of chastity. The obligation of higher clerics to live chastely is therefore an annex to ordination and also includes the ramification that nulla ratione … matrimonium contrahere possit—​a marriage was thus

39

40

41

42 43

Proceedings of the Fourteenth International Congress of Medieval Canon Law, 379–​94, here 383–​86. The Summa Parisiensis on the Decretum Gratiani, ed. T. McLaughlin (Toronto, 1952), 27 ad D.27:  ‘Votum aliud simplex, aliud consummatum ut illud quod aliquo signo roboratur, vel habitu, vel ordine, vel quia promisit super evangelia, vel accepit aliquis talis pannos altaris et similia, et qui sic vovet, si contraxerit matrimonium, separabitur. Sed si pro simplici voto quod per contrarium hujus intelligitur, non separatur’. His comment on Causa 27 is unfortunately missing in the only manuscript that transmits this summa. The votum consummatum is called by other authors votum solemne. On the later evolution especially of the vow as impediment, see J.  Freisen, Geschichte des Canonischen Eherechts bis zum Verfall der Glossenlitteratur (2nd edn, Paderborn, 1893), esp. 719–​69; A. Scharnagl, Das feierliche Gelübde als Ehehindernis; W. Plöchl, Das Eherecht des Magisters Gratianus, Wiener Staats-​und Rechtswissenschaftliche Studien, 24 (Leipzig-​Vienna, 1935), 98–​101. On Rufinus see P.  Hersperger, Kirche, Magie und ‘Aberglaube’: Superstitio in der Kanon­ istik des 12. und 13. Jahrhunderts, Forschungen zur kirchlichen Rechtsgeschichte und zum Kirchenrecht, 31 (Cologne-​Graz, 2010), 77–​78; Pennington and Müller, ‘The Decretists: The Italian School’, 135–​36; R. Weigand, ‘Frühe Kanonisten und ihre Karriere in der Kirche’, ZRG Kan. Abt., 76 (1990), 135–​55, here 138–​40. Rufinus von Bologna (Magister Rufinus), Summa Decretorum, ed. H. Singer (Paderborn, 1902; rpt. Aalen, 1963), 433 ad C.27. On the use of this vocabulary see Ibid., 434 ad C.27: ‘Votum namque privatum etsi impediat contrahendum, non tamen contractum dirimit’.

Development of Canonical Impediments

153

forbidden.44 Rufinus thus constructed, more or less implicitly, ordination as a diriment impediment to a later marriage. Whereas the vow remained the main category of an impediment, the impediment of ordination was built upon that vow. The minor role the Second Lateran Council played in his interpretation is underlined by a further observation. In his introduction to C.27 Rufinus presented c.40 as the only canon which dealt with the ordination as impediment, but he did not elaborate in his actual comment on c.40.45 Through that comment, Rufinus set the line of thought for further discussion. The Anglo-​Norman Summa ‘Omnis qui iuste iudicat’, also known as the Summa Lipsiensis (around 1186),46 followed the argumentation of Rufinus. It first introduced the reader to the historical background of chastity before stating that whether higher clerics vowed chastity or not, they were bound by it, with the vow seen as an annex to ordination.47 The same line of thought was taken up by the Anglo-​Norman master Honorius of Kent in his Summa ‘De iure canonico tractaturus’ (1187/​1188).48 Set sufficeret ordinem sacrum susci­ pere, et annexa est continentia, he wrote when commenting on D.27. Later, in his comment on C.27, he developed a subtle distinction between different types of impediments.49 On the one hand, he explicitly mentioned the impediment of ordo sacer;50 on the other, in a graphical visualisation of the 44

45

46

47 48

49 50

Ibid., 63 ad D.27: ‘Nunc vero usque adeo lex castimonie in predictis tribus ordinibus robur virtutis obtinuit, ut, etiam si vota continentie in ordinatione sacerdotum diaconorum subdiaconorum minime exprimantur, nichilominus ibi annexa esse iudicentur, in tantum ut quisque—​sive facto voto sive pretermisso—​aliquem illorum trium ordinum susceperit, nulla ratione de cetero matrimonium contrahere possit’. See Ibid., 438 ad C.27 q.1 c.40 where the complete comment encompasses not more than three lines in the edition: ‘Ut lex usque conversi, laici scilicet, qui relicta seculari conversatione ad domum religiosam habitaturi adveniunt. professi sollempniter, qui tamen secularem domum adhuc non deseruerunt’. On the Summa Lipsiensis see Hersperger, Kirche, Magie und ‘Aberglaube’, 123–​24 and P. Landau, ‘Rodoicus Modicipassus—​Verfasser der Summa Lipsiensis?’, ZRG Kan. Abt., 92 (2006), 340–​54. An edition of this summa is provided by Summa Omnis qui iuste iudicat sive Lipsiensis, eds. R. Weigand, P. Landau and W. Kozur, mic A, 7.1 and 7.2 (2 vols, Vatican City, 2007, 2012). Summa Omnis qui iuste iudicat, eds. Weigand, Landau and Kozur, vol. 1, 99 ad D.27: ‘Hodie tamen obseruatur ita in hiis tribus ordinibus ut, siue exprimant vota continentie siue non in ordinatione, ex ordine obligentur, quia uotum ordini est annexum’. On the author see Hersperger, Kirche, Magie und ‘Aberglaube’, 124–​25; R. Weigand, ‘Bemerkungen über die Schriften und Lehren des Magister Honorius’, in S.  Kuttner and K. Pennington (eds.), Proceedings of the Fifth International Congress of Medieval Canon Law, Salamanca, 21–​26 September 1976, mic C, 6 (Vatican City, 1980), 195–​212. See Summa Omnis qui iuste iudicat, eds. Weigand, Landau and Kozur, vol. 2, 369–​70 ad C.27 pr. Ibid., 370, ln. 91, ad C.27 pr.

154 Dusil structure of different impediments, ordination was a subset of the solemn vow:  [votum] sollempne vel expressum/​vel adnexum sacro ordini vel habitui. Honorius explicitly referred to the Second Lateran Council to prove this connection,51 but his comment on c.40 remained short and focussed on monasticism, not on higher clerics in general.52 One can conclude that the presentation of the ordination as an impediment is thus not yet detached from the vow. This also holds true for another work by Honorius of Kent, the Summa decretalium questionum (1185/​1188).53 In this commentary, he verbosely introduced the reader to the vow as impediment, but he did not know a separate impediment of ordination.54 These findings are underlined by two further summae, the Summa Colonien­ sis and the summa by Simon Bisignano. The Summa Coloniensis, also called Summa ‘Elegantius in iure divino’, dates to 1169 and belongs to the Rhenish school of law;55 the author, possibly Bertram of Metz/​Berthold of Saint-​Gereon, read c.40 in a monastic context, but emphasised that both vow and ordination, with an implicit vow, formed a diriment impediment.56 The same understanding limited to monasticism characterises the summa of Simon of Bisignano, an Italian scholar who completed his commentary between 1177 and 1179.57 In sum, the analysis of some twelfth-​century commentaries on the Decre­ tum Gratiani reveals a slow shaping of impediments by giving them a dogmatic structure. Gratian simply used the term simpliciter voventes (D.27 d.p.c.8) to start describing the ramifications of a vow; Rufinus and later canonists took up this term and coined the votum simplex in contrast to the votum solemne.58

51 52 53 54 55

56 57

58

Ibid., 369 (near n. 16). Ibid., 375–​76 ad C.27 q.1 c.40. The part on marriage law see B. Grimm (ed.), Die Ehelehre des Magister Honorius: Ein Bei­ trag zur Ehelehre der anglo-​normannischen Schule, Studia Gratian, 24 (Rome, 1989). See Ibid., esp. 107–​14. On the Summa Coloniensis see P. Landau, Die Kölner Kanonistik des 12. Jahrhunderts: Ein Höhepunkt der europäischen Rechtswissenschaft, Kölner Rechtsgeschichtliche Vorträge, 1 (Badenweiler, 2008). See Summa ‘Elegantius in iure divino’ seu Coloniensis, eds. G. Fransen and S. Kuttner, mic A, 1–​4 (4 vols, Vatican City, 1969–​90). Summa Coloniensis, eds. Fransen and Kuttner, vol. 4, 8 ad 13.19: ‘Ex his auctoritatibus patenter datur intelligi tam uotum quam adnexum ordinem et habitum non solum impedire contrahendum uerum etiam dirimere contractum matrimonium’. Summa in Decretum Simonis Bisinianensis, ed. P. Aimone, mic A, 8 (Vatican City, 2014), 410 ad C.27 q.1 c.40. On the author, see, for instance, Hersperger, Kirche, Magie und ‘Aber­ glaube’, 81–​82; see also Liotta, La continenza dei chierici nel pensiero canonistico classico, 99–​105. The Summa Parisiensis, however, developed a different term, namely votum consumma­ tum, see above n. 39.

Development of Canonical Impediments

155

The vow remained the most important category of impediments as it was considered to be based on natural law.59 A  solemn vow not only impeded, but also nullified a later marriage. Ordination was conceived by decretists of the 1160s and later as accompanied by an implicit vow, thus annulling a later marriage. Canonists based this approach on the normative material offered especially in D.27–​D.33. C.27 q.1 c.40 was of minor importance:  although it was mentioned in the context of the sacred orders as impediment, it was primarily received as a specific monastic rule. The decision of the Second Lateran Council therefore did not form the starting point for the idea that ordination was a diriment impediment to a later marriage. The marital impediments were formed even without further recourse to the decisions of the Second Lateran Council.60 Ordination as an independent impediment later took on a life of its own in the thirteenth century. The Liber Extra dealt with this issue at two different points, namely in Lib. 3, tit. 3 De clericis coniugatis,61 and also in Lib. 4 tit. 6 Qui clerici vel voventes matrimonium contrahere possunt.62 The compiler of the Liber Extra, Raymond of Peñafort (around 1180-​1275), rubricated the decretal of Pope Alexander iii found at X 3.3.1 in such a way that no room for interpretation was left:  while marriage of a higher cleric was not valid, that of a minor was.63 The same Raymond also authored a summary of marriage law for his fellow brethren, in which he presented the impedimentum voti and the impedimentum ordinis side-​by-​side, even if he spent much more ink on the first one.64 In his references, he summed up canons from D.32 (cc.7, 8, 11 and

59

60 61 62 63 64

For instance, Summa Omnis qui iuste iudicat, eds. Weigand, Landau and Kozur, vol. 2, 370 ad C.27 pr.: ‘Dicturus Gratianus de impedimentis matrimonii, premittit de uoto, tum quia ceteris magis obligat, tum quia prius est tempore et dignitate. Nam cum alia impedimenta a iure ecclesiastico emanauerunt, uotum a iure naturali emanauit’. Canon 7 of the Second Lateran Council was obviously not part of the earlier decretalistic literature, as the canon is not mentioned in Quinque compilationes antiquae, ed. E. Friedberg (Leipzig, 1882; rpt. Graz, 1956). Gregory ix, Liber Extra, in Corpus iuris canonici, eds. E.  Friedberg and E. Richter (rpt. Graz: Akademische Druck-​und Verlagsanstalt, 1959), vol. 2, col. 457–​60. The recognized abbreviation for the Liber Extra is X. Ibid., col. 684–​87. Rubric of X 3.3.1: ‘Matrimonium contractum per clericum exsistentem in sacris non tenet, secus in minoribus’. Raimundus de Pennaforte, Summa de Matrimonio, eds. X. Ochoa and A. Diez, Universa Bibliotheca Iuris, I, Tome C (Rome, 1978), cols. 957–​58: ‘De impedimento ordinis/​…Si vero in sacris ordinibus constitutus est aliquis, puta presbyter, diaconus vel subdiaconus, contrahere non potest, et si contraxerit, separabitur’. The impedimentum voti is dealt with in cols. 929–​34.

156 Dusil 13) and the Liber Extra (X 4.6.1 and X 4.6.2) but not the Second Lateran Council. This was also true for another thirteenth-​century canonist, Henry of Susa/​ Hostiensis (around 1200–​71), who described this impediment in his Summa Aurea on the Liber Extra,65 and also the fifteenth-​century jurist Nicolaus de Tudeschis (1386–​1445), known as Panormitanus.66 Anaklet Reiffenstuel, the Bavarian Franciscan (1642–​1703), wrote in the shadow of his successors when he summarised the previously established jurisprudence and referred to the canonical tradition, aside from the Second Lateran Council.67 The Second Lateran Council obviously played no role in the late-​medieval and early-​modern discussion of the impedimentum ordinis. This changed, at the latest, in the nineteenth century. Canon 7 of the Second Lateran Council entered the books as starting point of the impedimentum ordi­ nis;68 and even Pietro Gasparri (1852–​1934), the mastermind behind the Codex Iuris Canonici of 1917, listed C.27 q.1 c.40 as one of the sources of can. 1072, which officially stated the impediment for the first time in legislative form.69 The origin of this diriment impediment in the Second Lateran Council was born.70 65 66

67

68 69 70

Hostiensis, Summa aurea (Cologne, 1612), col. 1164 ad X 4.6: ‘Constituti autem in sacris ordinibus contrahere non possunt et si contraxerint, matrimonium separatur’. Nikolaus de Tudeschis/​Abbas Panormitanus, Commentaria in Tertium Decretalium Li­ brum, Tomus Sextus (Venedig, 1617), fol. 12vb ad X 3.3.1: ‘Primo nota quod sacer ordo impedit et dirimit matrimonium contrahendum. Idem facit professio facta tacite vel expresse in aliqua de religionibus approbatis’ and again: Commentaria in Quartum et Quintum Decretalium Libros, Tomus Septimus (Venedig, 1617), fol. 22ra ad X 4.6: ‘[D]‌ic, quod clerici in minoribus licite contrahunt matrimonium. Si vero sunt in sacris, non possunt contrahere, et si contraxerint, est nullum’. Ius Canonicum Universum, Vol. 4, ed. A. Reiffenstuel (2nd edn, Ingolstadt, 1729), 125a, no. 2, ad X 4.6.: ‘Quod ordines sacri sint impedimentum dirimens matrimonium contrahendum et consequenter quod clerici in ordinibus sacris constituti matrimonium nec licite nec valide contrahere possint, certum est ac de fide’ [reference to the session 24 of the Council of Trent, D.27 c.8, D.28 c.16, X 3.3.1, X 4.6.2]. Likewise, Ius Canonicum Universum, Vol. 3, ed. A. Reiffenstuel (3rd edn; Ingolstadt 1745), 40a, no. 3, ad X 3.3: ‘Clerici in sacris ordinibus constituti, nec licite nec valide matrimonium conrahere possunt’ [reference to D.28 c.16 and X 3.3.1]. See n. 22. Codicis Iuris Canonici Fontes, Vol. 9: Tabellae, ed. I. Seredi (Rome, 1939), col. 44; see also the annotated edition: Codex Iuris Canonici (Rome, 1917), 306 n. 3 ad c.1072. A formal piece of legislation is obviously missing, see Freisen, Geschichte des Canonischen Eherechts, 765. The Fourth Lateran Council (1215) also decreed on celibacy and chastity (c.14), but it did not deal with the nullity of marriages nor was nullity mentioned in the comments on this decision, see Constitutiones Concilii quarti Lateranensis una cum com­ mentariis glossatorum, ed. A. García y García, mic A, 2 (Vatican City, 1981), 62–​63 (the text of c.14) and the comments by Johannes Teutonicus (206), Vincentius Hispanus (309) and Damasus (426).

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To sum up: A history of the medieval jurisprudence especially in the second half of the twelfth century did not attribute much importance to C.27 q.1 c.40. Canonists like Rufinus and others developed a doctrine of marriage impediments without reference to this canon, and thereby made possible the enforcement of clerical celibacy, even if it took a few more centuries to establish celibacy and chastity. It was after the Reformation and the Council of Trent that only unmarried men were ordained provided they remained unmarried.71

The Intersection of Legislation and Jurisprudence

This essay has explored clerical celibacy as it intersected with legislation and jurisprudence. Although chastity of clerics was vigorously, often even violently, enforced during the so-​called Gregorian Reform of the eleventh and beginning of the twelfth centuries, papal and conciliar legislation remained similar to older legislation, prohibiting higher clerics to marry though not enunciating a point of leverage to introduce a celibate life after ordination. The many political attempts to implement clerical celibacy in the Church, namely to separate priests from their wives and even to subjugate their wives to servitude, to instigate lay people and to disinherit the children of clerics, were to no avail. The plethora of canons, repeated again and again, bear witness to the numerous attempts to enforce celibacy. Finally, the Second Lateran Council decreed in 1139 that a marriage concluded after an ordination was no longer regarded as marriage. This decision that could have become the cornerstone of a theory of impediments (and which was regarded as such in recent literature) was of almost no interest to canonists. It was Rufinus and others who created refined systems of impediments heavily based on the vow as the most important impediment.72 They developed the idea that the ordination included a vow which allowed to nullify a later marriage. The decision of the Second Lateran Council was of lesser importance, as it was mentioned, but no arguments were based on it. At least in this case, the decretists based their system of impediments on older normative rules offered by Gratian, especially in D.28 and D.32. This 71 72

On the later history see Stickler, Der Klerikerzölibat, 38–​40; Denzler, Die Geschichte des Zölibats, 43; and Parish, Clerical Celibacy in the West, 123–​208. A similar dogmatic shaping can be observed at the contraction of a marriage, see S. Dusil, ‘Fides als normatives Konzept in Kanonessammlungen’ and A. Thier, ‘Von der gehaltenen und der gebrochenen fides: Zur fides in den Vertragsrechtskonzeptionen der klassischen Kanonistik’, in Das Mittelalter, 20 (2015), 251–​65 and 327–​43, respectively. Furthermore, P.  Landau, ‘Ehetrennung als Strafe:  Zum Wandel des kanonischen Eherechts im 12. Jahrhundert’, ZRG Kan. Abt., 81 (1995), 149–​88.

158 Dusil allows the conclusion that in the twelfth century papal legislation—​at least c.7 of 1139—​was of lesser importance than the traditional canonical rules.73 This result underlines previous observations that the authority of conciliar canons owed much to their use by canonists.74 Finally, the development of the impediment of orders allows us to see jurisprudence as a new instrument in discussions of the twelfth century, as politics and legislation alone were not forceful enough to influence daily life. Jurisprudence, namely the systematisation of law and the creation of doctrinal structures, targeted the validity of marriages of higher clerics. Without an articulated doctrine, legal rules cannot fulfil their steering function in society. 73

74

Another example of the use of early medieval canons in the Liber Extra is given by S. Dusil, ‘Lawmaking between Burchard and Raymond:  The Example of the Prohibition of Hunting by Clerics in the Twelfth Century’, in Goering, Dusil and Thier (eds.), Proceedings of the Fourteenth International Congress of Medieval Canon Law, 817–​36. D. Summerlin, ‘Using the Canons of the 1179 Lateran Council’, in P. Carmassi and G. Drossbach (eds.), Rechtshandschriften des deutschen Mittelalters: Produktionsorte und Importe­ weg, Wolfenbütteler Mittelalter-​Studien, 29 (Wiesbaden, 2015), 245–​60, esp. 260.

Chapter 8

Bonizo of Sutri, the Dicta Bonizonis and the Development of the Jurisprudence of Canon Law before Gratian William L. North The transformation of canon law into a coherent system of thought designed to bring authoritative rules, judgement and opinion on the nature of the individual and institutional life of Christians into an active, normative relationship with contemporary Christian life and structures was a critical development of the central Middle Ages. In this process, the shadowy figure of Gratian held a central place: his Concordantia discordantium canonum or Decretum became a foundational text in canonical education and jurisprudence.1 Among the many important factors that contributed to the Decretum’s transformative power was Gratian’s decision to insert into his work numerous passages of varying length, written in his own voice, that offered subtle, specific explanations of how contradictions among canons and other knotty interpretative questions might be resolved, how canons might be applied to specific cases, as well as larger considerations bearing on a given area of canonical doctrine.2 In these dicta, as they have come to be called, Gratian emerges as not only the compiler of his collection, shaping canonical thinking implicitly through an architecture of distinctiones, causae, quaestiones and titles under which canonical materials would be organized, but as a guide and teacher explicitly instructing readers on the proper integration, interpretation and application of the canons. Indeed, in the dicta Gratian often goes far beyond the canonical materials themselves to achieve his explanatory goals.3 Such discussions effectively translated aspects of the dynamic give and take of the school room into static prose, and Peter Landau has rightly noted that ‘through these dicta, Gratian’s work 1 J. Noonan, Jr., ‘Gratian Slept Here:  The Changing Identity of the Father of the Systematic Study of Canon Law’, Traditio, 35 (1979), 145–​72; rpt. in Canons and Canonists in Context (Goldbach, 1997), 3–​30; A. Winroth, ‘Where Gratian Slept: The Life and Death of the Father of Canon Law’, ZRG Kan. Abt., 130 (2013), 105–​28. 2 P. Landau, ‘Gratian and the Decretum Gratiani’, in HMCL, 22–​54 at 41–​42. 3 On Gratian’s Decretum, see G. le Bras et al., L’Âge Classique, 1140–​1378: Sources et Théorie du droit, Histoire du Droit et des Institutions de l’Église en Occident, 7 (Paris, 1965), 64–​69; Landau, ‘Gratian and the Decretum Gratiani’, 41–​42.

© Koninklijke Brill NV, Leiden, 2019 | DOI:10.1163/9789004387249_​0 10

160 North took on characteristics of a textbook that has been provided with a plethora of sources’.4 In these numerous personalized interventions placed throughout his work, Gratian took some of the hermeneutical principles that had previously been articulated in the Prologue of Ivo of Chartres or the canonical treatises of Bernold of Constance—​such as differences in the issuing authority, vocabulary, circumstances of the case and institutional structures—​and demonstrated how they might be employed in specific situations to resolve conflicts and confusion among canonical authorities. Thus, rather than leaving critical interpretive principles and contextual information formally isolated from its target materials, Gratian used his dicta to create a steady stream of jurisprudential guidance intended, eventually, to wear the proper channels into the hard rock of the clerical mind. The dicta Gratiani thus introduced jurisprudential thinking into the body of his canonical collection itself, thereby offering his readers direct, and authoritative, guidance on how they should read the materials and apply them properly to contemporary ecclesiastical matters. In this move, Gratian can be seen to have been bringing together genres of canonical literature—​the canonical collection and the more interpretive treatise on a canonical topic (whether in a formal treatise, letter, or polemic)—​that historically had been kept distinct. The authoritative, though often brief, interpretive guidance that had occasionally been provided by the compiler in prefatory comments to a canonical collection thus became an essential and integrated part of the work as a whole. In his central project of articulating principles and considerations that would ‘harmonize’ abundant, yet often discordant, canonical materials, Gratian built upon the jurisprudential foundations laid by Ivo of Chartres in the prologue of his canonical collections as well as by Alger of Liège in his more treatise-​like Liber de misericordia et justitia.5 This essay argues that Gratian’s work had another precursor: within his Liber de Vita Christiana, the ardent reformer, Bishop Bonizo of Sutri, offered an extensive and varied set of remarks in his own voice that represent an important and overlooked anticipation of Gratian’s innovative dicta.6 A work of ambitious thematic scope, Bonizo’s Liber 4 Landau, ‘Gratian and the Decretum Gratiani’, 41. 5 Ivo of Chartres, ‘Prologue’, in R. Somerville and B. Brasington (trans.), Prefaces to Canon Law Books in Latin Christianity: Selected Translations, 500–​1245 (New Haven-​London, 1998), 132–​ 58; B. Brasington, Ways of Mercy: The Prologue of Ivo of Chartres, Vita Regularis, Editionen 2 (Münster, 2004); R. Kretzschmar, Alger von Lüttichs Traktat De misericordia et iustitia: Ein kanonisticher Konkordanzversuch aus der Zeit des Investiturstreits, Quellen und Forschungen zum Recht im Mittelalter, 2 (Sigmaringen, 1985), esp. 141–​54. 6 Bonizo of Sutri, Liber de Vita Christiana, ed. E. Perels, Texte zur Geschichte des römischen und kanonischen Rechts im Mittlelater, 1 (Berlin, 1930; new edn 1998).

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brought together canons and authoritative opinions relating not only to matters of canonical discipline and procedure but also theology and the sacraments. Perhaps because it is presented neither as a traditional canonical collection, nor as a theological treatise or overt polemic, the Liber has tended to remain on the margins of scholarly investigations of ecclesiastical reform and especially the development of canon law in the eleventh and early-​twelfth century. This neglect is unfortunate because Bonizo’s work represents a significant piece of the larger context of canonical activity in the generation prior to Gratian and, as such, offers evidence of ideas and techniques, albeit perhaps in nuce, that would emerge fully in the next century. The introduction of jurisprudential guidance directly into the Liber de Vita Christiana is one such technique. For amidst the formal canonical authorities assembled and organized in his Liber, Bonizo carved out an explicit place for his own opinions and insertions that, in surviving twelfth-​century manuscripts, are often labelled explicitly with the title Bonizo episcopus or B. episcopus: a true set of dicta Bonizonis. The larger significance of these personal insertions has not gone entirely unnoticed. As long ago as 1933, Carlo G. Mor, in a review of Ernst Perels’ edition of the Liber, remarked in passing on the similarity between Bonizo’s interventions and Gratian’s more famous dicta.7 Yet, in the intervening years, scholars have not pursued this acute observation, even as they have investigated Gratian’s work and its development with ever greater subtlety and sophistication. As a consequence, an important element of continuity between the pre-​and post-​Gratian worlds of canonical activity, and an element critically related to the effective use of the canons in pastoral care and ecclesiastical governance, has been overlooked. This essay seeks to remedy this omission. Bonizo’s Liber de Vita Christiana did not have a formal preface or prologue, at least not one that has survived. Instead, he offered his readers a concluding reflection on the project.8 Bonizo had undertaken it at the request of his friend, the venerable, if now unknown, priest Gregory. This colleague had sought ‘a short, comprehensive discourse’, a brevis et compendiosa dictatiuncula, based upon the authoritative canons of the Holy Fathers, presumably to guide him in the exercise of his office. As he began to work on the project, however, Bonizo recognized that the complexity of it demanded a more substantial treatment. In his long and animated concluding remarks, Bonizo defended the comprehensiveness of his approach, detailing the critical questions for which he had tried to provide canonical authorities. Thus he asked: 7 C. Mor, Review of Bonizo, Liber de Vita Christiana, ed. Perels, in Rivista di Storia del Diritto Italiano, 6 (1933), 192–​94. 8 Bonizo, Liber, ed. Perels, Bk.10 chap.79, p. 335.

162 North Who could ever explain with just a few, brief comments the rule of baptism, what baptism is, in how many ways it happens, from whom it takes its origin, when, where, and how it should be celebrated, and the privilege [to baptize] granted by God? And then what a bishopric is, and how and what sort of person should be chosen as bishop and by whom and how he may be consecrated according to the rule, and how he should live after his consecration? And about the excellence of the metropolitan [bishop] and his election and consecration and use of the pallium and his genius. And that bishops should be honoured by all and not attacked … And on the production of chrism, the reconciliation of penitents, and the celebration of ordinations … And about the regular way of life and from what it takes it origin? Whence the monastic religion poured forth, under what authorities it grew, and what sort of person should be elected or ordained abbot … and about the judgment of the ordained, if they should sin … ?9 In this listing of vital ecclesiastical topic after vital ecclesiastical topic, Bonizo sought to convey vividly the ways in which all aspects of the life of the Church were intimately bound up with each other and therefore could not and should not be treated in isolation or in half measures. To confront this complex world of lived Christianity, the ecclesiastical judge needed to be equipped with a mass of authorities drawn from the councils and the Fathers that had an appropriate density and variety. In its final form, the Liber sought to provide just such a substantial resource: it would be divided into ten, topically-​focused books and require between 80 and 130 folia in manuscript to transcribe.10 At the same time, Bonizo clarified that authoritative materials alone were not enough. His Liber, though extensive, could provide direct guidance for only a small percentage of the situations that required evaluation and judgment. Beyond these, Bonizo noted, it would be the prelate’s responsibility to figure out the solution: ‘For the rest, your breast, that repository of the sacred writings, shall be able with careful consideration to grasp from what it finds written here how it should judge regarding similar matters’.11 This concluding comment makes clear that Bonizo’s conscious intention in the composition

9 10 11

Ibid., Bk.10 chap.79, pp. 335–​36. For descriptions of the main manuscripts of the Liber de Vita Christiana, see Bonizo, Liber, ed. Perels, xlv–​lxxiii. Ibid., Bk.10 chap.79, p. 336: ‘Ceterum pectus tuum sacrarum armarium Scripturarum de his que scripta hic invenerit, sollerti poterit deprehendere ingenio, qualiter de similibus debeat iudicare’.

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of the Liber was not only to stock the prelate’s interior sacrarium with a set of organized authoritative texts. It was also to cultivate in his clerical readers a sollers ingenium, an adroit or expert mind,12 that would lead them to reason with the appropriate categories and within the appropriate conceptual frameworks so as to analyse and resolve properly the diverse practical, quotidian problems that confronted the ecclesiastical leader. Once the judging prelate had developed what might be called ‘canonical cognition’ or the capacity to reason properly with canonical materials, he would be able to identify the appropriate course of canonical action by identifying similar cases and then using his reason to adjust the principles embedded in canons and cases to the particularities of the given case. As with many of the central figures of Gregorian reform, the details of Bonizo’s life are often obscure. He seems to have been born around 1045 in Lombardy and received a solid clerical education.13 Certainly, his writings bear witness to a thorough training in the works of the Fathers, especially St Augustine, historical materials and canonical materials from papal and conciliar sources. From the detailed knowledge of the Pataria that he displayed in his historical Liber ad Amicum, it also seems very likely that as a young man he became an adherent of this movement for clerical reform that became active in the 1050s.14 In 1072, he attended the Lateran council of Pope Alexander ii (1062–​73) and remained closely associated with the papal curia from that moment on.15 By spring of 1078 he had been elected bishop of the strategically important hill town of Sutri in northern Lazio and was entrusted by Pope Gregory vii with missions in Lombardy. With the arrival of Henry iv in the area in 1082, Bonizo found himself exiled from his bishopric for his loyal support of the reform papacy and, over the next four years, repeatedly found himself a captive of Henry iv. Released in 1086, Bonizo resumed his advocacy of ecclesiastical reform and became an important spokesperson for the Gregorian cause. It was during this 12 13

14

15

C. Lewis and C. Short, A Latin Dictionary (Oxford, 1879), s.v. sollers and s.v. ingenium. The story of Bonizo’s early life bears noteworthy similarities with that of another loyal adherent of the Gregorian popes, Bruno, bishop of Segni. On Bruno, see R. Grégoire, Bruno de Segni: Exégète mediévale et theologien monastique, Centro Italiano di studi sull’alto medioevo, 3 (Spoleto, 1965), and W. North, ‘In the Shadows of Reform: Exegesis and the Transformation of Clerical Culture in the Works of Bruno, Bishop of Segni (1077/​78–​1123)’, Ph.D. Dissertation (University of California, Berkeley, 1998), ­chapter 1. Walter Berschin has reconstructed what can be known of Bonizo’s life in his Bonizone di Sutri: La vita e le opere, Medioevo-​traduzioni, 1 (Spoleto, 1992), 1–​24. On Bonizo as an ardent Patarene, see now the dissertation of J. Dempsey, ‘Bonizo of Sutri: Life and Work’, Ph.D. Dissertation (Boston University, 2006), 38–​97. Berschin, Bonizone di Sutri, 7, citing the relevant passage in Bonizo’s De arbore parentelae, where he portrays himself as an eyewitness.

164 North period that he wrote his famous historical account of the reform movement, the Liber ad Amicum.16 Then, at some point between 1086 and 1089, Bonizo became bishop of Piacenza in a controversial election that appears to have sharply divided the people of the city, a position from which he continued to pursue reform measures. The pro-​imperial poet-​polemicist Benzo of Alba, for example, recalled that ‘Bonizellus’ had carried out many ‘deceptions’ in Piacenza and the surrounding pievi with his diabolically inspired preaching that had attacked the consecrations of churches in particular.17 In 1089, Bonizo was brutally attacked, his eyes were gouged out, and his nose, ears and tongue were mutilated. Although some contemporary sources suggest that Bonizo died directly as a result of such treatment,18 compelling evidence indicates that he survived almost another five years, living perhaps in Cremona. It is during this period of almost compulsory contemplative life and de facto exile from the active practice of pastoral care that Bonizo seems to have composed his Book on the Christian Life. Although Bonizo’s Liber de Vita Christiana survives in five known manuscripts dated to the first half of the twelfth century and despite its distinctive juridical qualities noted above, the Liber has received comparatively little sustained attention from scholars concerned with eleventh-​century canon law since Ursula Lewald’s foundational study.19 Aside from brief articles bringing to light new manuscript witnesses to the Liber,20 scholars have tended to focus 16

17

18

19 20

On this text, see now I. Robinson’s introduction in The Papal Reform of the Eleventh Century: Lives of Pope Leo IX and Pope Gregory VII, trans. I. Robinson (Manchester, 2004), 36–​73, with the literature cited there. See also T. Förster, Bonizo von Sutri als gregorianischer Geschichtschreiber, mgh, Studien und Texte, 53 (Hannover, 2011). Benzo von Alba, Sieben Bücher an Kaiser Heinrich IV., ed. H. Seyffert, mgh, SS rer. Germ., 65 (Hannover, 1996), I. 21, p. 160: ‘Nunc autem omnia conturbant et aecclesiastica officia sibi usurpant. Non est dicere, quanta prestigia agat Bonizellus et in Placentina urbe et in eiusdem plebibus insistens diabolicis predicationibus, reprobandis quoque aecclesiarum consecrationibus’. The account preserved in the pro-​Gregorian chronicle Bernold of St Blasien bears witness to the circulation of the story. In his chronicle s.a. 1089, he reported that, ‘Bonizo of pious memory, the bishop of Sutri but driven out of there long ago because of his fidelity to St Peter, after many experiences of captivity, tribulation, and exile, was at length received by the catholics of Piacenza as their bishop. But his eyes were gouged out, almost all his limbs were mutilated, and he was crowned with martyrdom by the schismatics of that place’. See Eleventh-​Century Germany: Swabian Chronicles, trans. I. Robinson (Manchester, 2008), 296. On this account and the evidence that pushes Bonizo’s death later, see Berschin, Bonizone di Sutri, 14–​25. U. Lewald, An der Schwelle der Scholastik:  Bonizo von Sutri und das Kirchenrecht seiner Tage (Weimar, 1938). G. Miccoli, ‘Un nuovo manoscritto del Liber di vita christiana di Bonizone di Sutri’, Studi Medievali, 7 (1967), 371–​98; I. Robinson, ‘A Manuscript of the “Liber de vita christiana” of

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on specific aspects of the Liber such as the status of the laity viz. the clergy,21 ideas about social order,22 and his unusually developed ideas concerning consanguineous marriage.23 Interpreters have also read the Liber through the lens of Bonizo’s much more frequently-​studied polemical history of the Gregorian reformers, the Liber ad Amicum. John Dempsey’s 2006 dissertation offers a particularly comprehensive reading of the Liber as polemic, arguing that through the Liber Bonizo sought to advance a rigorist reform agenda inspired by the the Patarene reformers of Lombardy and to challenge what he perceived to be his contemporaries’ abandonment of true reform and acquiescence to laxity and institutional expediency.24 Dempsey proposed in particular that Bonizo used the Liber to attack the perceived laxity of Urban ii and the Pope’s rehabilitation and elevation of Daibert of Pisa, developing a series of comparisons between Bonizo’s stated positions and contemporary criticisms of Urban and Daibert that are known from other sources. Similarly, when discussing several of the Liber’s later books, such as Bonizo’s fascinating and unusual treatment of the canonical legitimacy of women ruling,25 Dempsey suggested that Bonizo, despite making no such overt references, sought to connect his canonical

21

22

23

24 25

Bonizo of Sutri’, BMCL, 3 (1973), 135–​39; W. Berschin, ‘Zwei neue Bonizo-​Handschriften’, Scriptorium, 41 (1987), 87–​90; H. Schadt, ‘Eine neue Handschrift von Bonizo von Sutris Konsanguinitätstraktat und ihre Darstellung’, BMCL, 6 (1976), 72. P. Fournier, ‘Bonizo de Sutri, Urbain ii et la comtesse Mathilde d’après le Liber de vita christiana de Bonizo’, Bibliothèque de l’École des Chartes, 76 (1915), 265–​98; D. Hay, ‘Canon Laws regarding Female Military Commanders up to the Time of Gratian: Some Texts and their Historical Contexts’, in M. Meyerson, D. Tiery and O. Falk (eds.), ‘A Great Effusion of Blood’: Interpreting Medieval Violence (Toronto, 2004), 287–​313. W. Berschin, ‘Herrscher, “Richter”, Ritter, Frauen...Die Laienstände nach Bonizo’, in W. van Hoecke and A. Welkenhuysen (eds.), Love and Marriage in the Twelfth Century, Mediaevalia Lovaniensia, series I, studia 8 (Leuven, 1981), 116–​29; W. Berschin, ‘Bonizone di Sutri e lo stato di vita laicale: Il codice Mantova 439’, in P. Golinelli (ed.), Sant’ Anselmo, Mantova e la lotta per le investiture. Atti del convegno internazionale di studi, Mantova 23–​25 maggio 1986 (Bologna, 1987), 281–​90; C. Cabaillot, ‘De la théorie des trois ordres à la revue des états: Rathier de Verone et Bonizon de Sutri’, Revue des études italiennes, n.s. 39 (1993), 35–​51. Lewald, An der Schwelle der Scholastik, esp.  62–​97; Berschin, Bonizone di Sutri, 106–​19; H. Schadt, Die Darstellungen der Arbores Consanguinitatis und der Arbores Affinitatis: Bildschemata in juristischen Handschriften (Tübingen, 1982), 124–​26; W. North, ‘Bonsai of the Consanguinities: Cultivation and Control of Incest Regulation in the Works of Bonizo of Sutri’, Early Medieval Europe, 23 (2015), 478–​99. Dempsey, ‘Bonizo of Sutri’, 302–​42. Dempsey explicitly notes that he is building on earlier scholars’ passing remarks on Bonizo’s polemical intentions, on which see pp. 302–​05. Bonizo, Liber, ed. Perels, Bk.7 chap.29, pp. 249–​51.

166 North presentation directly to contemporary political affairs involving the countess Matilda and Duke Welf iv.26 For Dempsey, in short, the Liber was: … a polemical piece composed by a sidelined Patarene activist wounded in body by ecclesiastical rivals but in spirit by Urban ii’s detente policy … Ultimately, it makes greater sense to situate the de vita Christiana within the context of the literature of those disaffected by Urban’s detente policy of the early 1090s, as exemplified by Landulf of St Paul’s Historia mediolanensis and the aforesaid letter of Peter of Pistoia and Rusticus of Vallombrosa, than to place it within the context of the more academic canonical collections of Anselm ii and Deusdedit.27 Such a reading should be resisted for several reasons. First, the Liber is a wide-​ ranging work in which Bonizo covered many aspects of the religious life and ecclesiastical practice, only a few of which were overtly controversial. Furthermore, it consistently presents its comments within the frame of diocesan life. Its fundamental orientation was pastoral rather than polemical. Second, Bonizo’s interventions, though they could be forceful and pointed, only rarely took issue with named contemporaries but instead developed arguments and criticisms of broad and ongoing applicability. Here again, such an approach would not be an effective way to construct a targeted polemic. Third and finally, Bonizo used his many personal interventions to engage his readers in more issues much more deeply than would have been necessary or effective in crafting a polemic. Instead, the content and features of the Liber make most sense if they are seen as a specific jurisprudential contribution to the much larger, but too often neglected or overlooked, goal of many of the eleventh-​ century reformers: the radical amelioration of pastoral care across the dioceses of Christendom that powered much canonical scholarship, as Greta Austin’s work on Burchard of Worms has made clear.28 This pastoral project had several dimensions. First, as is well known and has been extensively discussed, reformers insisted that the improvement of Christian society and the spiritual renewal of the laity ultimately hinged on the elimination of vice and hypocrisy in its rulers, the clergy. In particular, the clergy needed to be cleansed of the taint of money, sex and blood through the sharpening of boundaries between lay and ecclesiastical, Church and world. 26 27 28

Dempsey, ‘Bonizo of Sutri’, 331–​48. Ibid., 304–​05. G. Austin, ‘Jurisprudence in the Service of Pastoral Care: The Decretum of Burchard of Worms’, Speculum, 79 (2004), 929–​59.

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These imperatives gave rise not only to a body of legislation regulating clerical conduct but also to institutional forms and procedures that would enable clergy to maintain more effectively the high standards of religious life which they were called on to exemplify.29 In addition to a clergy that had been transformed in the quality of their lives and institutional behaviour, a reformed Church would need a clergy transformed in the quality of their minds. Thus, the reform of Christian life was seen to require new texts that would make the formative ideals, norms and opinions of the early Christian tradition available and active presences in the eleventh-​century Church. One can see this imperative realized in the increasing production of texts in a wide variety of genres over the course of the eleventh century,30 but nowhere more clearly than in the reformers’ production of canonical collections of increasing scope and complexity.31 Spiritual and 29

30

31

The literature on these dimensions of the eleventh-​century ecclesiastical reform movement is massive and no attempt at a comprehensive bibliography will be made here. For a recent overviews with extensive bibliographies, see H. Cowdrey, ‘The Structure of the Church, 1024–​1073’, and I. Robinson, ‘Reform and the Church, 1073–​1122’, in D. Luscombe and J.  Riley-​Smith (eds.), The New Cambridge Medieval History (Cambridge, 2004), vol. iv/1, 229–​67 and 268–​334, respectively, with the literature cited there; and the more extensive syntheses of G. Tellenbach, The Church in Western Europe from the Tenth to the Early Twelfth Century, trans. T. Reuter (Cambridge, 1993); K. Cushing, Reform and the Papacy in the Eleventh Century: Spirituality and Social Change (Manchester, 2005), and now J. Howe, Before the Gregorian Reform: The Latin Church at the Turn of the First Millennium (Ithaca, 2016). See also the more specialized studies of G. Miccoli, Chiesa Gregoriana: Ricerche sulla riforma del secolo XI (Florence, 1966); J. Laudage, Priesterbild und Reformpapsttum im 11. Jahrhundert, Archiv für Kulturgeschichte, Beihefte 22 (Cologne-​Graz, 1984); H. Cowdrey, Pope Gregory VII, 1073–​1085 (Oxford, 1998). On the development of these themes in the area of polemical literature, see K. Leyser, ‘The Polemics of the Papal Revolution’, in B. Smalley (ed.), Trends in Medieval Political Thought (Oxford, 1965), 42–​65, and rpt. in Medieval Germany and Its Neighbors, 900–​1250 (London, 1982), 138–​60; I. Robinson, Authority and Resistance in the Investiture Contest: The Polemical Literature of the Late Eleventh Century (London, 1978); and most recently L. Melve, Inventing the Public Sphere: The Public Debate during the Investiture Contest (c.1030–​1122) (2 vols, Leiden, 2007). Other areas of manuscript production included liturgical manuscripts (Bibles, sacramentaries, and homiliaries), treatises on the sacraments, and biblical commentary. On canonical collections during the eleventh-​century reform, see the still magisterial overview by P. Fournier and G. le Bras, Histoire des collections canoniques en Occident depuis les Fausses Décretales jusqu’au Décret de Gratien (2 vols, Paris, 1931–​32), esp. vol. 2. For the connections between the Gregorian reformers and canonical texts, see J. Gilchrist, ‘Canon Law Aspects of the Eleventh-​Century Gregorian Reform Programme’, JEH, 13 (1962), 21–​38; K. Cushing, Papacy and Law in the Gregorian Revolution: The Canonistic Work of Anselm of Lucca (Oxford, 1998); U.-​R. Blumenthal, ‘The Papacy and Canon Law in the Eleventh-​ Century Reform’, CHR, 84 (1998), 201–​18. For a comprehensive overview with bibliography

168 North institutional renewal, in other words, was intimately bound up with a material increase in the availability of authoritative texts upon which a revitalized Christian life might be founded and by which its rhythms could be regulated. New books were not enough, however. Effective reform required transformed readers. For if the limited availability of canonical materials had been one impediment to improvement, a signal lack of understanding on the part of their readers was the other. Indeed, compilers of earlier canon collections from Burchard of Worms and Atto of San Marco to Alger of Liège all expressed severe doubts about their clergy’s intellectual ability to grasp properly the meaning of the canons, even if they could acquire a copy. Burchard of Worms in the 1020s lamented that ‘for those fleeing to the remedy of penance, both on account of the confusion of the books and the ignorance of the priests, help is in no way at hand’.32 The Decretum was his response.33 Similarly, writing as a newly appointed cardinal in Gregorian Rome in the very early 1080s, Atto blamed poverty and public health for the dismal state of canonical training in Rome: clerics were too poor to go abroad to seek proper training in the law, and Rome was too pestilential a location to attract excellent masters.34 Writing in the early-​twelfth century, Alger of Liège offered a more refined sense of the problem. Some canonical precepts are for mercy, others for justice, differentiated by diverse circumstances, persons, and times, so that now mercy may totally remit justice, now justice may totally disguise mercy. Those who do not know how to apply such diverse things through discernment think them to clash in contradiction, not considering that the method of

32 33 34

of the production of canonistic texts during the Gregorian period, see now L. Kéry, Canonical Collections of the Early Middle Ages (ca. 400–​1140): A Bibliographical Guide to the Manuscripts and Literature (Washington, D.C., 1999), 203–​75 and 276–​94 passim. On the presence of pastoral concerns in the canonical collections of the period, see P. Landau, ‘Seelsorge in den Kanonensammlungen von der Zeit der gregorianischen Reform bis zu Gratian’, in La pastorale della Chiesa in Occidente dall’età ottoniana al concilio lateranense IV. Atti della quindicesima Settimana internazionale di studio, Mendola, 27–​31 agosto 2001 (Milan, 2004), 93–​124; Bonizo’s Liber is mentioned only in passing (p. 100) and without significant analysis. Preface to the Decretum, in Somerville and Brasington (trans.), Prefaces to Canon Law Books in Latin Christianity, 99. On which see now G. Austin, Shaping Church Law Around the Year 1000: The Decretum of Burchard of Worms (Farnham-​Burlington, 2009). Atto of San Marco, Preface to the Breviarium, in Somerville and Brasington (trans.), Prefaces to Canon Law Books in Latin Christianity, 118.

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ecclesiastical guidance is this: whether by indulging or by punishing, to preserve the same intention of charity, the same operation of salvation.35 Therefore, even when supplied with the appropriate canonical references, clerical interpreters could still lack key cognitive ingredients to successful pastoral care: interpretive skill and discernment. Lacking the proper frameworks to categorize and analyse these texts, they would be unable to apply these authorities properly as guides to their own lives and pastoral rule. Yet, by insisting upon the centrality of textual authorities as the essential points of reference in ecclesiastical governance, reformers had been making pastoral rule into what was, fundamentally, a sustained exercise in applied hermeneutics. But how would clerics reliably learn how to understand these texts properly and to lead them to a pastorally productive life? How would they develop the proper ‘habits of mind’ to be good readers, knowing which conceptual frameworks were appropriate to the proper reading of which canons, and hence, how to execute their pastoral duties in a complex world? In the early-​eleventh century, Burchard of Worms had addressed these critical questions by imagining a rigorous process of local clerical education beginning in boyhood that would constitute the pedagogical complement to his Decretum’s content. With Decretum in hand from a young age and subjected to rigorous and sustained training, Burchard’s imagined pupils would emerge into leadership positions more fully versed in the canons and equipped with the jurisprudential ‘wisdom’ to apply them correctly. But the availability, the quality, and the continuity of such an educational infrastructure could not be assured, especially in an age before the emergence of the schools of Paris and Bologna. How then was such jurisprudential wisdom to be cultivated? The Liber de Vita Christiana seems to have been Bonizo of Sutri’s own effort to address these pressing questions. Like the authors of many earlier and contemporary canonical collections such as the Decretum of Burchard of Worms, the Collection in 74 Titles and the collections of Deusdedit and Anselm of Lucca (to name just a few), Bonizo compiled his work from a wide range of authoritative texts. Scripture, patristic and medieval treatises, papal letters, conciliar canons and even royal and

35

Alger of Liège, Preface to De misericordia et iustitia, in Somerville and Brasington (trans.), Prefaces to Canon Law Books in Latin Christianity, 164. See in general, Kretzschmar, Alger von Lüttichs Traktat De misericordia et iustitia. Almost one hundred years earlier, Burchard of Worms had identified a similar need for what he called ‘wisdom’ and ‘learning in divine law’ to interpret canonical materials adequately; Burchard, Preface to the Decretum, in Somerville and Brasington (trans.), Prefaces to Canon Law Books in Latin Christianity, 100.

170 North imperial decrees all find a place in his work.36 Bonizo then diverged from them when he decided to integrate into his collection sometimes extensive commentaries and supplements of his own authorship—​the dicta Bonizonis—​that expressed his own, quite independent, opinions. To be sure, other writers like Deusdedit, Cardinal Gregory of S. Crisogono and Ivo of Chartres had included personal comments and critical observations on the task of interpretation.37 But by locating these comments in the prefaces to their collections or quietly embedding them in the organizational schema and titles of the various subsections, they maintained a clear separation between the authoritative tradition and themselves as contemporary interpreters. This separation, however, also meant that the user of the collection did not get the chance to see these interpretive principles ‘in action’ nor did they receive more specific guidance in the midst of their encounter with the canons. It was left to them to bring relevant insights forward and find their proper significance. In contrast, Bonizo placed his dicta—​over one hundred and twenty chapters are original—​in each and every portion of his work. In doing so, he inserted his voice directly and visibly into his readers’ process of encountering the canonical authorities, creating a kind of pause or interlude in which they met a contemporary offering advice or additional information that they might use to interpret the surrounding authorities. Through his insertions, in other words, Bonizo introduced himself as an expert in canonical discernment and began to provide readers of the Liber de Vita Christiana with the basic conceptual tools and knowledge by means of which the canons might be skilfully fashioned into different ecclesiastical judgments. Bonizo’s dicta are varied and idiosyncratic, ranging in form from a hortatory commentary (resembling a homily or sermon), to a concise history, to a specific gloss on canonical materials. Indeed, Ursula Lewald, though employing the term dicta, used this diversity of focus to justify excluding a significant proportion of Bonizo’s dicta, those concerned with liturgical or pastoral matters, from her considerations; they were extraneous to Bonizo’s canonical project.38 In deciding arbitrarily what was relevant and what was not, however, Lewald 36

37 38

On his sources, see Fournier and le Bras, Histoire des collections canoniques, vol. 2, 142–​43, and the index of authorities in Perels edition, xxix, and the quellenverzeichnis, 360–​72. In addition to the Bible, authentic and false papal decrees, conciliar canons, and penitential manuals, Bonizo drew particularly on the patristic writings of Augustine of Hippo, Gregory I, and Isidore and a range of secular materials. See the prefaces of Gregory of San Crisogono, Ivo, and others in Somerville and Brasington (trans.), Prefaces to Canon Law Books in Latin Christianity, 129–​64, esp. Ivo’s Prologues to the Panormia and Decretum, 132–​57. Lewald, An der Schwelle, 18–​19.

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came to distort the overall character of Bonizo’s project. Bonizo, after all, made no such division between canonistic and non-​canonistic topics, and he thereby implied that liturgical matters and pastoral matters held an equally important and complementary place in the thought-​world of the Christian prelate and deserved to be treated together. Indeed, the fact that Bonizo opened the Liber with a book entirely dedicated to the topic of baptism, the beginning of the Christian life, signaled clearly to contemporary readers that he was working with a far more pastorally-​oriented conceptual framework than that of the more juridically-​oriented collection of Anselm of Lucca or the Collection in 74 Titles that began with authorities on Roman primacy. Instead, Bonizo began sacramentally, an approach that other contemporaries, like Ivo of Chartres, had also found compelling.39 Indeed, when they are viewed comprehensively, Bonizo’s dicta can be seen to develop, if perhaps unsystematically, the conceptual bases of a canonical jurisprudence suited to the life of the average Christian prelate. Although Bonizo touches on a wide range of topics in his dicta, four main interpretive principles came to be articulated with particular clarity and at length: 1) the fundamental place of hierarchy in Christian life and the centrality of the bishop within the sociology of the Christian world; 2) the importance of history and historical change as a framework for the interpretation of the canons; 3) the fundamental gap between appearance and reality, action and intention; and 4) the central place of clerical judgment in the application and abrogation of canonical authorities. Bonizo opened the second book of the Liber with the bold assertion: The first and principal Christian virtue is obedience, the daughter of humility. Whoever wishes to achieve it and maintain it once received should first pursue humility and cast pride far from his heart in order that, showing deference to those greater than himself he may recognize his own mode and measure so that he may become accustomed to living appropriately as a Christian in the order to which he has been called. And

39

Like Bonizo, Ivo dedicated the first book of his Decretum to baptism, the second to the Eucharist, the third to physical churches and their properties, and the fourth to legitimate feasts and fasts and the sources of ecclesiastical authority. It was only in book five that Ivo turned to the Roman pontiff and other clerical orders. For an annotated working edition of Ivo’s Decretum see Martin Brett et al., Decretum available at https://​ivo-​of-​chartres. github.io/​decretum.html (accessed 28 June 2017). On the Decretum more generally and its connections to Ivo’s letters, see now C. Rolker, Canon Law and the Letters of Ivo of Chartres (Cambridge, 2010), 107–​26, 165–​79, 248–​64, with literature cited.

172 North so that this can occur, I shall divide up Christians and carefully explain what especially befits the individual orders.40 Having established obedience and humility as the central components of the moral glue holding the Christian social cosmos together, Bonizo then proceeded to analyse the Christian people for his reader in a strikingly abstract, almost sociological, way. First, he divided human society into clerical and lay, with each of these groups in turn separated into rulers and subjects. The superior clerical order was then subdivided, into bishops, priests, abbots and other figures of authority, while the inferior lay order of rulers was broken out into kings, judges (or princes), and knights.41 The final category—​lay subjects—​ he divided into three groups according to their economic activity: merchants, craftsmen, and farmers. In addition to giving structure to the Liber, this sociological framework of analysis had two important consequences. First, and more generally, it made clear that in any situation that the clerical judge might encounter, a central consideration should be the individual identity. They would need to examine each person carefully and distinguish them on the basis of their respective positions within these institutional and social hierarchies. Each category within these hierarchies, in turn, was associated with a set of qualities that dictated a person’s privileges and their responsibilities, qualities that were the subject of many canons in the subsequent books. Social identity, in other words, was a critical element in the practical hermeutics of applying the canons properly. Second, and more specifically, Bonizo’s taxonomy made explicit the fact that the universal Christian order ultimately culminated in the person of the bishop. Of course, popes, patriarchs, and metropolitans all appear in the Liber and receive ample treatment. Indeed, in Book 4 Bonizo offered an extended history of the Roman Church and a detailed treatment of its privileges as well as those of patriarchs and metropolitans. But, in the end, these offices were treated as ‘special cases’ of episcopal power rather than as wholly sui generis ranks within the church whose powers and importance eclipsed that of the bishop. They were interesting and important figures precisely because they were bishops writ large. Indeed, Bonizo at one point offered his reader an image of the Christian world as essentially a single diocese (episcopatus) spread throughout the world. Over time, earlier generations of Christians had divided 40 41

Bonizo, Liber, ed. Perels, Bk.2 chap.2, p. 34. Ibid., Bk.2 chap.3, p. 34. On Bonizo’s social schemas, see Berschin, ‘Herrscher, “Richter”, Ritter, Frauen’, 116–​29; and Cabaillot, ‘De la théorie des trois ordres à la revue des états’, 35–​ 51.

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up this singularity into smaller units, calling their prelates distinctive names like patriarchs, archbishops, and others simply ‘bishops’, but ultimately these names masked a single sacramental reality:  ‘But because all are designated with the name of bishop, even though they may be primates and archbishops, we should begin with bishops and discuss what this name means’.42 Thus, in contrast to other canonical collections like the Collection in 74 Titles, the Collection in Three Books and Anselm of Lucca’s Collectio canonum that began their presentation with a section devoted to the primacy of the Roman Church,43 thereby stressing its distinctiveness, Bonizo kept his reader’s focus on the figure of the bishop as the prelate par excellence and Christian exemplar. This emphasis on the bishop, in turn, had a trickle-​down effect, valorising the rest of the diocesan clerical order, especially priests. In the mirror of Bonizo’s text, they could see themselves as the hinge men upon whom the Christian life depended. It is their reading of these canonical texts and their ability to formulate judgements from them that would make or break the Christian order. As the apex of the Christian order, the bishop had to be exceptional. As Bonizo noted: The one who oversees is called a bishop because he oversees the action of both himself and the people. Let the bishop take care most earnestly that his life edifies and does not scandalize his subjects. Indeed, he should be a person of such a singular way of life and so adorned with the distinction of all good habits that his people should be called a “flock” in comparison with him. Those to whom Christ gave the power of binding and loosing in the Church hold the place of the apostles in the church.44 42

43

44

Bonizo, Liber, ed. Perels, Bk.2 chap.4, pp. 35–​36: ‘Episcopatus licet unus sit toto orbis diffusus et licet secundum episcopalem benedictionem talis sit Nepesinus ut Romanus talisque Laudensis ut Mediolanensis, tamen esse in eo aliquos gradus nostri maiores nobis tradere. Nam alios esse volunt primates, quos patriarchas vocant, alios archiepiscopos, alios vero simpliciter dicunt episcopos. …Quia vero omnes, licet primates vel archiepiscopi, episcopali censentur nomine, ab episcopis incipiendum est et, quid ipsum nomen episcopi significet, discutiamus’. Collectio canonum in trium librorum, ed. J. Motta, mic B, 8 (Vatican City, 2005), Bk.1, pp. 5–​ 84; Diversorum patrum sententie siue Collectio in LXXIV titulos digesta, ed. J. Gilchrist, mic B, 1 (Vatican City, 1973), 19–​30; on Anselm’s Collectio, see Cushing, Papacy and Law, 103–​21. See also the Liber canonum diversorum patrum sive Collectio in CLXXXIII titulos digesta, ed. J. Motta, mic B, 7 (Vatican City, 1988), the second title of which is devoted to Roman primacy. Bonizo, Liber, ed. Perels, Bk.2 chap.5, p. 36: ‘Episcopus dicitur superintendens, eo quod super suam et populi intendet actionem. Caveat ergo episcopus sollicite, ut eius vita hedificet et non scandalizet subditos. Talis enim debet esse vite singularis omniumque morum prerogativa decoratus, ut ad eius comparationem subdita plebs grex debeat appellari’.

174 North Morally exemplary, Bonizo also insisted that the bishop had to possess a full complement of mental powers. He explicitly disagreed with the unnamed, who confused stupidity with simplicity and who claimed that it was enough for a priest to be harmless and mildly ascetic.45 For such persons would not be able to be answer their subjects who ‘ask about the law’ despite the biblical mandate that they be able to do so.46 Indeed, Bonizo went farther, declaring that ‘the person who does not know the law has proven that he is not a priest of the Lord’.47 Should a person who was ignorant be somehow elected canonically, then that individual should take it upon himself to learn what he did not know and moreover he should be willing to learn from anyone who has the requisite knowledge, clerical or lay.48 Bonizo was clear on the nature of that required knowledge: the prelate needed to read the sacred books of both Old and New Testament and not be unaware (non ignorare) of the canons of the Holy Fathers.49 Beginning in Book 2 but extending across the next seven books of the Liber, Bonizo’s sociological analysis of Christians offered his clerical readers a conceptual framework and method for analysing their own local worlds and hierarchies and a vivid sense of the diversity of individual identities populating the Christian cosmos and the prelate’s need to consider these differences in both understanding the canons and formulating judgements. Furthermore, Bonizo’s decision to make the bishop apex and arbiter of Christian society and his insistence that this role brought with it an inescapable obligation to internalize knowledge of both Scripture and canons created an institutional imperative to study and to learn the very content in Bonizo’s Liber. Far from being extraneous to the canonical content of the work, therefore, Bonizo’s periodic exhortations to his readers to live up to their offices through righteous living and constant study created the meta-​cognitive conditions ripe for successful canonical learning. 45 46 47 48

49

Ibid., Bk.2 chap.5, p. 37: ‘Quod infert prudentem, exclusit eos qui sub nomine simplicitatis excusant stultitiam sacerdotum’; and ‘Et idcirco errant, qui dicunt innocentiam et ciborum continentiam posse sufficere sacerdotibus’. Haggai 2:13. Bonizo, Liber, ed. Perels, Bk.2 chap.5, p. 37. Ibid., Bk.2 chap.5, pp. 37–​38: ‘Et ideo, si contigerit de simplicibus Dei iudicio et cleri et populi consensu aliquando electionem fieri, oportet ut discant que ante non didicerant et non erubescant non solum a clericis sedt etiam a laicis discere ea que ad ministerium pertinent sacerdotum’. Ibid., Bk.2 chap.5, p. 38. Bonizo also included a similar set of expectations in his exhortation to priests: Ibid., Bk.5 chap.80, p. 206: ‘Vestibus igitur nec multum sordidis nec multum speciosis utantur Domini sacerdotes, divinos libros assidue legant plebibusque sibi commissis divina dant eloquia …’.

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Bonizo also used his dicta to introduce his clerical readers to the essential role played by history in the formation of the Christian community and its canonical authorities. As noted above, he historicized the transformation of Christendom’s ecclesiastical structure into different sized units,50 and ended Book 3 with an extended discourse tracing the origins of the priesthood (here understood as the offices of both bishops and priests) back to the time of Aaron and the priesthood of the people of Israel after their Exodus from Egypt. He challenged some who sought to trace the priesthood back to the time of Abel or Noah, preferring instead to locate the roots of the Christian priesthood in God’s commandments to Moses to establish the priesthood of Aaron who would have authority to govern the tabernacle. With this basis, Bonizo then showed his readers how to connect each element of their contemporary priestly vestments with those worn by the Old Testament priesthood, thereby creating a visual line of continuity between the priesthood of the old people of God and that of the new.51 Through this example, as well as others,52 Bonizo modelled for his readers a working principle of ecclesiastical reasoning and a process: that everything in the Church has a history and that in understanding the variety of forms and behaviours that one encountered in text and reality, historical analysis could be a potent source of inspiration and understanding. The most dramatic examples of Bonizo’s practice of historicizing the vita Christiana came in his presentation of the Roman Church and in his narrative of the origins of secular power. After initially apologizing to his reader for the inadequacy of his account of ‘the excellence of the Roman Church’, Bonizo went on to trace the emergence of the church in Rome from its distinctive origins in the Petrine commission down to the ‘recapture of the see’ by reformers in the eleventh century, a story that he explicitly invited his readers to pursue in his Liber ad Amicum.53 Utilizing the Liber Pontificalis as well as a variety of others sources, especially for the later centuries, Bonizo led the reader through a sometimes heroic, sometimes lamentable story of the holders of the see of 50 51 52 53

Ibid., Bk.2 chap.4, p. 34. Ibid., Bk.3 chap.105–​10, pp. 105–​10. On the origins of the regular canonical life, Ibid., Bk.5 chap.77, p. 203; on the origins of the monastic life, Ibid., Bk.6 chap.1, pp. 209–​10; on the history of dedication to the ascetic life and virginity, Ibid., Bk.6 chap.30, pp. 218–​19. Ibid., Bk.4 chap.45, p. 132: ‘Ceterum si quis de Teophilato Tusculano, qualiter Iohanni sacerdoti vendiderit papatum, et quomodo uno eodemque tempore Teophilatus et Gregorius et Silvester Romanum non regebant set vastabant pontificatum, et qualiter Enricus rex Conradi filius Roman ecclesiam a talibus pestibus liberavit, gnarus esse voluerit, legat librum quem ditavi, qui inscribitur “Ad amicum” ’.

176 North Peter and Paul and their decidedly mixed relationships with kings, emperors and local Roman magnates. Bonizo knew that not all of this narrative did honour to the see of Peter but he defended his decision to include them, stating: ‘I did not believe that I should remain silent about these matters’: the historical truth of the see of Rome had its own claims upon him and upon his readers. In crafting such a presentation by way of a prologue to a discussion of Roman privileges and primacy, Bonizo gave narrative flesh to the boney papal names that headed many of his canonical texts, insisting to his readers that popes were not just abstract names but discrete individuals with distinct characters and accomplishments—​some were better than others—​who lived at particular times and confronted particular circumstances. Though a see of immense holiness and prestige, Rome emerged for Bonizo’s readers as a real place that had changed over time, for better and for worse, and that was continually a work in progress. For the interpreter of the canons, this was vital information because it suggested that not all papal decrees needed to be considered of equal authority—​a decree of Pope Leo I deserved to be taken far more seriously than the decrees of John xii. Bonizo also turned to history to frame his presentation of secular rulers. ‘Since we are going to be writing about kings and judges and about those who have been placed at the pinnacles of the lay order, it seems to us worth the effort to briefly explain where or from whom royal power took its beginning’.54 Bonizo then traced the emergence of tyranny and authorized secular power through the history offered by the Old Testament down to the time of the Roman Empire and beyond. Interestingly, along with highlighting the fundamentally violent nature of secular power, Bonizo took pains to show, too, how secular power participated in the legitimate order of the world decreed by God and consequently how resistance to secular power would mean resisting God’s ordination unless the ruler ordered something contrary to the faith, a somewhat surprising theme for an ardent Gregorian. Indeed, Bonizo used this historical excursus to establish two essential points, both in keeping with his overall emphasis on the importance of hierarchy and order: the Roman Empire had been ruined by the ‘insolence of kings’ and the ‘pride and avarice of subjects’, and the fundamental position towards secular power that had been established in the apostolic age by Christ, Peter and Paul was one of acquiescence: joyful in the case of good rulers, long-​suffering when they were bad.55 In acquainting 54 55

Ibid., Bk.7 chap.1, p. 230. Ibid., Bk.7 chap.1, p. 233: ‘Quapropter quisquis a gratia Dei non vult fieri alienus, regibus non moliatur insidias, gaudeat sub bonis, equanimiter tolleret malos et cuiusvis sit religionis vel ordinis, non dedignetur tributa prestare, et precipue Romane rei republice principibus …’.

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his eleventh-​century readers with the ‘long view’ of secular power, Bonizo was using history to recalibrate their expectations for the canonical material that followed, material that stressed obedience rather than rebellion, collaboration rather than challenge, and reminded contemporaries of the deep history of God’s involvement in the distribution of power in the world. Equipped with such a perspective, they could better make sense of and properly apply in their own world the pertinent authorities so as to keep themselves and their people ‘not alien to the grace of God’. With his dicta, therefore, Bonizo presented his readers with topically relevant background, examples or perspectives that would enhance their comprehension and interpretation of the surrounding canonical materials. Taken together, they also introduced larger hermeneutical practices—​historicizing and categorical analysis—​that could be broadly applied. Along with these more macroscopic interpretative frames of sociological and historical analysis, however, Bonizo also offered his readers more subtle lessons in applied canonical interpretation. One of the most important was the need for them to ‘mind the gap’ between appearance and reality, action and intention, when applying the canons to complex human persons and situations. He warned that it was all too easy, and convenient, to assume that appearance and reality converged and therefore to judge after too little interrogation. The area of repentance was a particularly good case in point and one of the most important activities of clerical governance. There were, Bonizo noted, seven methods to wash away one’s sins: baptism, martyrdom, love of neighbour, preaching to convert one’s neighbour from evil, forgiveness, almsgiving and asceticism. With such a list of highly visible actions on which to base an assessment, judging an individual’s level of contrition would seem to have been a straightforward task. The situation was quite otherwise, however. For, as Bonizo cautioned, ‘You should know that these things can also be done by certain people not for the remission of sins when they are done in a disordered manner, with a wicked intention, or for the sake of worldly glory’.56 Baptisms could happen contrary to the canonical order and be without effect; martyrdoms could occur without love of God as their motivation and consequently lose their penitential efficacy; people could preach not to illuminate the souls of others but to enlarge their own reputation; people could forgive with the mouth but hate with the heart; alms and asceticism could be performed for praise rather than out of repentance; and people could pursue the religious life in order to attain not converse with God but good food, comfortable clothing

56

Ibid., Bk.10 chap.78, pp. 332–​33.

178 North and a life without manual labour. To apply the canons properly, therefore, the wise judge had to look beyond the surfaces of human action to probe the reality of intention and capacity, the true basis for the application of justice and mercy. Charity, too, required discernment to be true charity, for as Bonizo insisted:  ‘charity that lacks order is no charity at all’. Readers then learned from Bonizo that order in charity required one to love God more than oneself and one’s neighbour as one’s self, a principle that Bonizo went on to apply to a wide range of specific cases. In each situation, Bonizo presented people choosing to pursue charitable actions but somehow doing so in ways and for reasons that ultimately drained the charity from their action. Tortured by a love for their family and friends, the individual allowed their supposed love of neighbour to drive him to destroy himself through labour, suffering, and vigils, while neglecting service to himself and to God. Similarly, Bonizo challenged the idea that it truly was the love of neighbour, and therefore meritorious, that would lead one to support neighbours and friends engaged in vice and crimes, because not only did such support allow the neighbour to persist in wickedness to their own damnation but it subordinated honouring God and saving one’s own soul to what ultimately was mere earthly affiliation.57 Through such discussions, Bonizo destabilized any easy assumptions that his readers may have had about how they would judge the individuals under their authority. Even as he introduced each kind of evidence with which to judge the human soul, Bonizo showed how this element might be devoid of true substance, deceptive, or simply an inadequate indicator of the true state of affairs. Thus, when faced with a penitent who had fulfilled the requisite time of penance according to the canons, Bonizo reminded his reader that their role as judge was not yet over. Time alone could not provide an adequate gauge for a change of heart; only actions, and actions over a sustained period and in a variety of circumstances, could provide the definitive testimony of satisfactory repentance and spiritual recovery. Like a doctor, the prelate applying the saving medicine of canonical penance to the patient sick with sin had to remain vigilant, continually watching to see whether the treatment was having the proper effect, guarding against relapses, and probing to make sure that the healing tissue did not conceal a suppurating wound. The clerical judge had to ‘palpitate the veins’ and ‘examine the urine’, metaphors that Bonizo perhaps used to signal the need for a ‘hands on’ approach that also involved evaluating

57

Ibid., Bk.10 chap.78, p. 334.

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what emerged from within a person.58 And here again, Bonizo reminded his readers that the best way to become adept at performing such an examination was to know the canons of the holy fathers. For by knowing these well, the judges did not so much gain ready-​made answers as develop habits of mind and leading ideas that would ensure that any judgement they made would derive from authority and that mercy would follow upon and exalt judgement.59 When assiduously attended, the canons became, in essence, a medical school for the doctor of Christian souls. If people presented the cleric with no easy answers, Bonizo also made clear to his readers that the texts did not either. Rather, clerics, even when consulting the canons, would have continually to apply their intellects to understand the true import of a given text and its proper application to a particular person or situation. Christian leadership could never simply be regarded as a matter of connecting a series of canonical dots or paint-​by-​numbers pastoral care. When discussing the canons regarding fornication, for example, Bonizo acknowledged the ways in which, just as Roman law had defined fornication as a capital crime, so, too, the Church regarded it as one of the most cruel and therefore worthy of the severest penalties: excommunication. Yet pastors needed to understand that fornication, though a single word, actually described several distinct sins, each of which needed to be handled differently: the fornication of idolatry, the fornication of incest and finally simple fornication. For those guilty of sleeping with other gods through idolatry, although they might be forbidden to receive communion until their death, they could be forgiven. Incestuous fornication was ‘multiplex’ and therefore had an appropriately diverse set of responses, carefully scaled to the identity of the sinner. There was, of course, the incestuous fornication among bloodkin within prohibited degrees, a sin that required careful interrogation of the parties to discern knowledge and intent. But then there was the incest among members of a different kin group: the spiritual family generated by clergy and church through the generative sacrament of baptism. Bishops were to be judged more harshly than priests, priests more than deacons, etc. ‘each one on the basis of the precise nature of the crime, the sublimity of his order, and the duration of the sin’.60 Bonizo’s dictum on fornication thus alerted his readers to the ambiguous and .

58

59 60

Ibid., Bk.9 chap.1, p. 277: ‘Liber iste medicinalis inscribitur, eo quod egrotantium continet varia medicamenta animarum. Et sicut peritorum medicorum est ad tactus venarum et adspectum urine morbos cognoscere singulorum, sic prudentum est sacerdotum considerata penitudine penitentis, quid quibusque conveniat, iudiciali magisterio dispertire’. Ibid., Bk.9 chap.1, p. 277. Ibid., Bk.9 chap.8, p. 280.

180 North manifold nature of a seemingly straightforward sin; it helped them begin to trace the term’s subtle associations with other dimensions of the Christian life, such as proper worship, the sacraments, the nature of the ecclesiastical community and marriage so that they might begin to understand the particular nature of the violation involved and therefore the appropriate penance. Furthermore, it mobilized in a specific situation the sociological frameworks described earlier: in assessing the necessary penance, those at the top of the ladder of power would be and should be more severely punished because their institutional position brought not only privilege but responsibility. Bonizo’s dicta alerted his readers to the many ambiguities lurking in the seemingly clear language of a canonical authority. In several chapters of his Liber, he also introduced them to the idea that not all canons spoke or sought to speak with the same level of authority. Rather, there were critical distinctions that radically affected how and in what circumstances a canon could and should be relevant. At the close of Book 2, for example, as he confronted the knotty issue of the legitimacy of ordaining bigamists and neophytes to the priesthood, Bonizo introduced a set of critical terms that had wide-​ranging implications for the individual judging according to the canons, namely the concepts of ‘legitimate order’ and ‘dispensation’. Although he acknowledged that there was diversity of opinion on the issue (itself no small point for an interpreter of the canons), Bonizo understood both those who were underage and those who had been married twice as having been excluded from consideration for the priesthood. At the same time, he knew from his study of the canons, history and the Fathers that such persons had in fact been ordained and properly so. How could this be? Did this situation signal a contradiction in the vision of the ecclesiastical order itself? Had the canons been violated? To resolve this conundrum, Bonizo distinguished between the ‘legitimate order’, that is, the order that should pertain—​all things being equal—​and ‘dispensation’, that is, the order constructed to address conditions of necessity or to seek the good, or utilitas, of the church in a particular context. There were occasions, in other words, when the canonical order allowed for exceptions and modifications. But such instances, though perhaps part of the canonical tradition of decrees and judgements, needed to be recognized for the deviations that they were: ‘… what is conceded for a time because of usefulness or necessity, does not possess universal stability’. Such cases were not the stones upon which to build firm judgment. Bonizo then developed this taxonomy of the canons still further: One should know that some canons are subject to choice, others result from commands. Voluntary canons are ones such as that saying of the

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Lord: “If you wish to be perfect, go and sell all that you have”. And “whoever wishes to follow me must deny himself”. Virginity, too, and all those things which are beyond us, are subject to choice. Of the canons which result from commands, some are necessary, others are subject to dispensation. Necessary canons are those which cannot be altered for any reason such as the faith of the creed, the rule of baptism, the confection of the sacraments, and “love the Lord your God with all your heart, do not fornicate, do not bear false witness, and the like”. Almost all the other commands in both the Old and the New Testament are subject to dispensation and can be adjusted, lightened, or altered in order to better achieve something.61 Through the introduction of such a taxonomy of canons, Bonizo equipped his readers to encounter the canonical tradition not as a solid, undifferentiated mass of authorities, each equally flexible or inflexible but rather a richly diverse set of norms offering different kinds of support, guidance or opposition. What is perhaps most striking, however, is the degree of discretion and decision-​making latitude that Bonizo offered the clerical judge through the tool of dispensation. And while he encouraged the clerical judge to adhere to the legitimus ordo as much as possible, he did not conceal the fact that the vast majority of norms governing the vita Christiana were capable of modification ad melius quid faciendum.62 61

62

Ibid., Bk.2 chap.63, p. 70: ‘Preterea sciendum est canonum alios in voluntate positos, alios sub precepto. Voluntarii canones sunt, ut est illud dominicum “Si vis perfectus esse, vade et vende omnia que habes”. Et “Qui vult venire post me, adneget semetipsum”. Et virginitas et omnia que supra nos sunt, in voto sunt. Canonum qui sub precepto sunt, alii sunt necessarii, alii dispensatorii. Necessarii vero sunt, qui nulla ratione possunt mutari, ut fides symboli et regula baptismatis et confectio sacramentorum et “diliges dominum Deum tuum in toto corde tuo et non fornicaberis et non falsum dices testimonium et cetera his similia”. Alii vero fere omnes tam in vetero quam in novo testamento dispensatorii sunt et possunt inflecti et levari et propter melius quid faciendum immutari’. Bonizo was not alone among contemporaries in his interest in the relevance of the concepts of utilitas and dispensatio to canon law and reform. See, among others, O. Capitani, ‘ “Ecclesia romana” e riforma: “Utilitas” in Gregorio VII’, in Chiesa, diritto e ordinamento della ‘societas Christiana’ nei secoli XI–​XII. Atti della nona Settimana internazionale di studio, Mendola, 28 agosto–​2 settembre 1983 (Milan, 1986), 26–​79; G. Cantarella, ‘Sondaggio sulla “dispensatio” (sec. xi e xii)’, in Chiesa, diritto e ordinamento della ‘societas Christiana’ nei secoli XI–​XII, 460–​85, who makes some use of Bonizo’s comments from the Liber; I.  Scaravelli, “Utilitas” nella libellistica dell’XI secolo:  Un primo sondaggio’, Studi medievali, Series 3/32 (1991), 191–​229; G.  Fornasari, ‘Dispensatio e dissimulatio nell’epistolario di Gregorio VII’, in R. Lara (ed.), Studia in honorem eminentissimi Cardinalis Alphonsi M. Stickler, Studia et textus historiae iuris canonici, 7 (Rome, 1992), 79–​92; G. Fornasari,

182 North In discussing both the ambiguities of canonical language and the possibilities of dispensation, Bonizo empowered the clerical judge to read his canons critically, to probe their definitions and logics, and then apply them in ways that would foster the Christian life of the individual and the community. But in several of his dicta, he also suggested through his own practice that the clerical interpreter would need to approach his texts with an even more critical stance, challenging the authenticity or wording of a canon in order to make sense of it in the context of the Church’s life. After quoting a decree of Innocent I, for example, in which the pope required those who had slept with nuns to take monastic vows in order to do penance, Bonizo immediately interjected: ‘It seems to me that this title should be reworked. For people of this sort can be admitted to penance’.63 What Innocent’s decree failed to take into account or had not made explicit, Bonizo argued, was the fact that there were actually three kinds of penance, two of which, the seasonal penance given to all Christians and the penance given in extremis, were available to such seducers of nuns, at least in the contemporary church. It was only solemn penance that was forbidden to them. Had clerics sought to apply Innocent I’s authentic degree ad litteram, they would not only have been guilty of injustice by depriving these sinners of penitential opportunities rightly due them but they would also have undermined, rather than enhanced, the process of their spiritual recovery. In essence, to preserve a truly canonical penitential regime, clerical interpreters had to recognize that the canons, though essential and authoritative, could not be treated as commands to be applied automatically and unthinkingly. Their wording required scrutiny, and clerical judges had to be prepared even to challenge the wording of the canons themselves, to comprehend not only what was said but also to perceive what was omitted, and not be cowed by the authority behind the text (whether papal, conciliar, or patristic) into accepting it ad litteram. In a similar way, Bonizo alerted his readers to the fact that, in addition to authentic canons, collections of canonical materials could contain, whether intentionally or by accident, false or apocryphal canons. Because of his wide and constant reading in sacred Scripture and the canonical tradition, the accomplished clerical interpreter would not only spot these erroneous authorities

63

‘Urbano II e la riforma della chiesa nel secolo XI ovvero la riforma nella “dispensatio”’, in C. Alzati (ed.), Cristianità e Europa. Miscellanea di studi in onore di Luigi Prosdocimi (2 vols, Freiburg im Breisgau, 1994), vol. 1, 91–​110. Bonizo, Liber, ed. Perels, Bk.6 chap.47, p. 224. At issue is the decree of Innocent I (= JK 286): ‘Que Christo spiritualiter nubunt’. It is prefaced with the title: Quod qui cum sanctimoniali se coinquinaverit, non potest iuste penitere, nisi monacus efficiatur.

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because of contradictions or dissonances with other demonstrably authentic writings but would not hesitate to excise them so that they would not mislead others.64 Thus, even as they insisted on the necessity to judge according to the canonical tradition, Bonizo’s dicta reminded clerical judges both that the canons, as products of human effort and intentions, could be vitiated through textual corruption and forgery, and that theirs was an active and empowered role as interpreters and critics. His dicta modelled how they had to be ready to question authority, to challenge authenticity, and to refine the presentation of canons in the light of practical wisdom. When asked by his friend Gregory to compile a simple, short selection of authorities from the Fathers, Bonizo clearly decided that such an approach would hardly do justice to either the complexity of Christian life or the needs of those charged to govern it. Furthermore, such texts, without the right interpretive assumptions and training, would be useless, if not actively dangerous, in the proper care of souls. He therefore enlarged the original commission, not only creating a canonical collection that covered all aspects of the life of the diocese but also offering his own extensive, if unsystematic, additions to the canonical materials, the dicta Bonizonis. Written in Bonizo’s own voice, utilizing his vast knowledge of the canonical tradition and the life of the Church and its pastoral challenges, and clearly rubricated in at least some manuscripts as the opinions of B. episcopus, Bonizo’s dicta, like those of Gratian decades later, addressed the challenge of preparing clerical minds to work intelligently and justly with the canonical materials, the true meaning and force of which in any given situation was often far from self-​evident. In them, he cultivated canonical cognition by introducing questions, modelling different kinds of analysis, and exhorting his readers to be the kinds of people capable of proper judgment and to act in ways consistent with proper judgment. In many of his dicta, clerical readers encountered significant hermeneutical frameworks and issues being explained in contexts where they were immediately relevant and they were able to glimpse a practiced interpreter of the canons at work—​ comparing canon with canon, seeking the spiritual meaning behind the letter, investigating the particularity of circumstance and person, balancing justice and mercy, making ancient texts relevant to a modern Church, and finally offering criticism when a specific canon or judgment began to stray from the authentic and inspired traditions of the Fathers. 64

Ibid., Bk.9 chap.25, p. 286. Interestingly Bonizo retained these two apocryphal texts in his collection in order to refute those who believed their authenticity. Later, in Bk.11 chap.28, Bonizo flagged another apocryphal text on consanguinity, declaring that those who based their marriage strategy on it would be in error.

184 North Yet, of the many lessons in canonical jurisprudence that Bonizo offered his readers in his dicta, perhaps the most important was that the task of leading people to salvation was profoundly complex and admitted no quick fixes, short cuts or simple solutions. Rather, it demanded a constant effort to interpret correctly and to find the true spirit and intention behind the letter of canonical texts and Christian lives. For it was in the reformed prelate’s sustained cognitive effort to understand and reconcile the complex truths of his spiritual subjects and institution with the authoritative guidance of his canonical authorities that the prelate would ultimately be able to cultivate the harmony of the vita Christiana within the dissonances of life in the world.65 65

S. Kuttner, ‘Harmony from Dissonance. An Interpretation of Medieval Canon Law’, Wimmer Lecture X, 1956, St. Vincent College (Latrobe, PA, 1961); rpt. in The History of Ideas and Doctrines of Canon Law in the Middle Ages (London, 1980), Essay I.

Chapter 9

Law and Disputation in Eleventh-​ Century Libelli de lite Kathleen G. Cushing When King Henry iv of Germany summoned his bishops to a synod at Worms in January 1076 and denounced Gregory vii as a usurper of the papacy, accusing him of perjury, immorality and gross abuses of papal authority, he initiated a series of events that would have a profound impact on developments in medieval canon law.1 Gregory vii’s consequent excommunication of the king at the Lenten synod of 1076, the withdrawal of allegiance to the king by his bishops and other supporters, the reconciliation of Gregory and Henry at Canossa in January 1077 and finally the second excommunication of the king and the election of an anti-​pope in 1080, prompted an almost unparalleled production and dissemination of polemical tracts—​the so-​called libelli de lite—​that relied on canon law to make their respective papal and royal claims, the production of which would continue until the resolution of the conflict at Worms in 1122. Although earlier eleventh-​century treatises—​such as the Gallic De ordinando pontifice written in the aftermath of the synod of Sutri in 1046, Peter Damian’s Liber gratissimus to Archbishop Henry of Ravenna written in the summer of 1052 and Humbert of Silva-​Candida’s Libri tres adversus simoniacos written c.1058—​had all made sustained appeals to canon law both directly and indirectly (employing among others, Pseudo Isidore, Burchard of Worms’ Decretum, conciliar texts and Gregory I), these writings were more self-​referential in the sense that they did not engage with other texts or positions, although it is likely that Humbert had knowledge of Damian’s arguments in the Liber gratissimus, if not of the actual text itself.2 In the period following the synod of Worms in 1076, however, it is evident that pro-​papal 1 Die Briefe Heinrichs IV., ed. C. Erdmann, mgh, Deutsches Mittelalter, 1 (Leipzig, 1937), no. 12, pp. 15–​17. 2 De ordinando pontifice, ed. H.  Anton, Der sogenannte Traktat ‘De ordinando pontifice’:  Ein Rechtsgutachten in Zusammenhang mit der Synode von Sutri (1046), Bonner historische Forschungen (Bonn, 1982); Die Briefe des Petrus Damiani, ed. K.  Reindel, mgh, Briefe der deutschen Kaiserzeit, 5/​1–​4 (4 vols, Munich, 1983–​93), vol. 1, Letter 40, pp. 384–​509; Humbert of Silva-​Candida, Libri tres adversus simoniacos, ed. F. Thaner, mgh, LdL, 1 (Hannover, 1891), 100–​253.

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186 Cushing and pro-​imperial writers were familiar with each other’s arguments (and treatises) and responded to them in their own works, often with the same legal proof texts albeit in different forms or towards different ends. Much in the same way that the mid-​eleventh century Eucharistic controversy had generated impassioned debates that were in dialogue—​indeed, in disputation—​ with each other (and whose texts in fact had far wider circulation than the later libelli), the writers behind these ‘little books of struggle’ grappled with important legal principles and questions including: what made a ruling binding; whether some sources of law were more authoritative; and indeed how the same rulings could be interpreted to support opposing positions. That contemporaries understood that their ideological battles over what Gerd Tellenbach called ‘the right order of the world’ were necessarily underpinned by canon law as much as by scripture is nowhere more apparent than in the writings attributed to Beno and the schismatic cardinals who defected from Gregory vii after 1083, although the writings are slightly later.3 The anonymous but well-​informed polemicist of the third book of their libellus sharply criticized Gregory vii’s exploitation of canon law and explicitly condemned those whom he called the pope’s evil co-​conspirators: Anselm, Deusdedit and Urban ii for their perversion of the sacred canons. The text presented the riveting image of Gregory vii leading these men with dictatus papae as the primary agenda, which the treatise then sought to refute with other legal authorities.4 In his seminal book Authority and Resistance in the Investiture Contest, Ian Robinson long ago argued for the use and exploitation of canon law as a key element of the polemical literature of the later eleventh century.5 In the decades after the synod of Sutri in 1046, where King Henry iii of Germany deposed Pope Gregory vi as a simonist, condemned the anti-​pope Silvester iii and subsequently excommunicated Benedict ix (who had retired in favour of Gregory vi) before his own candidate Bishop Suidger of Bamberg was elected as Clement ii, ecclesiastical writers turned both implicitly and explicitly to the canons to bolster the authority of their arguments on matters 3 G. Tellenbach, Church, State and Society at the Time of the Investiture Crisis, trans. R. Bennett (Oxford, 1948). 4 Bennonis aliorumque cardinalium schismaticorum contra Gregorium VII. et Urbanum II. scripta, ed. Societas Aperiendis Fontibus, mgh, LdL, 2 (Hannover, 1892), 366–​422, here 399–​400. Such a characterization was echoed by the ever well-​informed Sigebert of Gembloux who noted that Anselm compiled a work that contained the ‘doctrinam Hildebrandi’: Siegebert of Gembloux, Chronica a. 1086, ed. G. Pertz, mgh, SS, 6 (Hannover, 1844), 365. 5 I. Robinson, Authority and Resistance in the Investiture Contest: The Polemical Literature of the Late Eleventh Century (Manchester, 1978).

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concerning: simony, the validity of the sacraments and ordinations of simonists, what made for legitimate excommunication, clerical marriage, lay investiture, the nature of papal authority and the relation of that authority both to episcopal and royal power. Yet apart from Robinson’s monograph in 1978, there has been surprisingly little attention to these texts (beyond their place in the history of political thought) as evidence of legal knowledge and legal disputation apart from Martin Brett’s important article in 2007 for the Carlsberg conference and Leidulf Melve’s fine analysis of the libelli that was somewhat undermined by his problematic attempt to use them as evidence of a medieval public sphere.6 This lack of attention is regrettable in that the polemical literature of the later-​eleventh and early-​twelfth centuries offers us one of the most important sources for the use of canon law in practice beyond a court or council. With their appeal to law as a practical tool to deal both with a political and an ideological crisis, these texts permit important insights into legal knowledge and use of canon law in the era before Gratian. The libelli de lite are significant examples of law in practice in two ways. In the first place, whilst the three-​volume edition in the Monumenta Germaniae Historica gives the writings a unity that they did not have in their time, the texts nevertheless point to an evolution in the use and citation of law as part of advancing both ideological arguments and practical mechanisms for dealing with the crisis that resulted from the break between Gregory vii and Henry iv and its aftermath. Contemporaries clearly felt that they were on uncharted ground. Wenrich of Trier’s letter written for Bishop Theoderic of Verdun (c.1081), for example, makes the extent of the damage to the Church and perception of a breakdown in social order all too evident.7 As the ramifications of the papal schism, with its rival ecclesiastical hierarchies, made themselves felt, the validity of the ordinations and sacraments of Wibertine supporters came into question, among other problems. The effects of the sweeping sentences of excommunication were clearly also problematic given the canonical tradition that went back to the Canones Apostolorum (and reiterated thereafter, especially via the Pseudo-​Isidore) which held there was to be no communion with excommunicates under penalty of an

6 M. Brett, ‘Finding the Law: The Sources of Canonical Authority before Gratian’, in P. Andersen, M.  Münster-​Swendsen and H.  Vogt (eds.), Law before Gratian:  Law in Western Europe c.500–​1100 (Copenhagen, 2007), 51–​72; L. Melve, Inventing the Public Sphere: The Public Debate During the Investiture Contest c.1030–​1122 (2 vols, Leiden, 2007). 7 Wenrich of Trier, Epistola sub Theoderici episcopi Virdunensis nomine composite, ed. K. Francke, mgh, LdL, 1 (Hannover, 1891), 280–​99, esp. 286–​87.

188 Cushing immediate similar sentence. The challenge made to the nature of royal authority by Gregory vii as well as the pope’s right to absolve sworn oaths of fidelity presented not just ideological but real chaos for a society bound in vertical as well as horizontal alliances. It is worth underlining the extent to which Gregory’s successor, Urban ii, recognized this dilemma. Although he consistently claimed to be Gregory’s utmost follower in all things, Urban spent much of his pontificate outside Rome following a judicious policy of reiterating the ‘Gregorian’ programme whilst carefully permitting exceptions and dispensations where they seemed advantageous, for instance, allowing former supporters of the anti-​pope to continue in their orders and benefices. At the same time, in the face of the reformers’ claim to a dominant truth (with Gregory vii having famously repeated Jesus’ words: ‘I am not custom but truth’), western European intellectuals were presented with a series of difficult questions. In response, the libelli witness the appropriation and emergence of dialectical techniques to present and refute arguments. The subsequent shelf life of these writings only underlines this contention. Most of the texts were copied and preserved in twelfth-​century cathedral schools, not for their arguments or political battles but as models for presenting arguments with proof, counter-​proof and refutation.8 The development of the language of disputation that has been argued to come only from the legal revival in the twelfth-​century law schools is, I would contend, already here in this supposed age of ‘law without lawyers’.9 The writers of the libelli used a range of canonical sources and canon law collections, including Burchard of Worms’ Decretum, the Pseudo-​Isidorian Decretals, the Collectio Dionysio-​Hadriana as well as the writings of Gregory I, Augustine and other Fathers likely derived from patristic florilegia that increasingly circulated after 1050, especially in Italy. Some writers also exploited Roman law, such as the Defensio Heinrici iv written after 1084 and attributed to Petrus Crassus.10 Other authors were even more creative. In his Liber canonum contra Heinricum iv., written sometime after the synod at Mainz in April 1085 and addressed to Archbishop Hartwig of Magdeburg (who seemed to be

8

9 10

For example, British Library, MS Harley 3052, dated 1150 from the Premonstratensian house at Arnheim, contains an abbreviated text of Anselm of Lucca’s Liber contra Wibertum. See R. Somerville, ‘Anselm of Lucca and Wibert of Ravenna’, in Papacy, Councils and Canon Law in the Eleventh and Twelfth Centuries (Aldershot, 1990), Essay iii, pp. 1–​12. J. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians and Courts (Chicago, 2008), 46–​74. Petrus Crassus, Defensio Heinrici IV., ed. L. de Heinemann, mgh, LdL, 1 (Hannover, 1891), 432–​53. The text survives only in a sixteenth-​century copy.

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tottering on the edge of abandoning the pro-​papal Gregorian party), Bernard of Hildesheim resorted to an unusual rhetorical device. In an effort to justify the case against Henry iv and the policy of non-​communion with excommunicates, Bernard made the narrator of his treatise Mother Church herself, who in the course of the text pronounced the authoritative law that supported the argument.11 It must, of course, be conceded that the libelli circulated within a restricted audience. Although writers such as Manegold of Lautenbach claimed that the lies invented by their opponents:  ‘…are heard everywhere in the streets and in the marketplaces and are gossiped over by the women in the weavers’ shops’,12 the treatises were addressed to a very small audience within the ruling elite, usually to bishops or princes whose obedience was held to be vital to the survival of either the papal or imperial parties and it is difficult to judge how much wider the subsequent transmission may have been—​something that hampered Melve’s attempts to see the libelli as producing a medieval public sphere. While the extant manuscript evidence suggests restricted transmission (although this may not reflect actual transmission), it is abundantly clear that pro-​papal and pro-​imperial writers were familiar both with each other’s arguments and, in some cases, with the texts themselves. For example, Wido of Ferrara’s De scismate Hildebrandi composed in 1086 responded to arguments made in Anselm of Lucca’s Liber contra Wibertum (c.1085) while Manegold’s Liber ad Gebhardum (1085) sought to refute Wenrich of Trier’s letter on behalf of Theoderic.13 Moreover, many of the authors—​whether pro-​imperial or pro-​ papal—​were aware of the arguments and indeed the actual text of Gregory vii’s second letter to Bishop Herman of Metz, Registrum 8.21, written in March 1081. For example, the anonymous author of the Liber de unitate ecclesiae conservanda (1090–​93) cited the letter directly before refuting its conclusions with other canonical sources:

11

12 13

Bernard of Hildesheim, Liber contra Henricum IV., ed. F. Thaner, mgh, LdL, 1 (Hannover 1891), 471–​516, here preface, 472 where Mother Church addresses Hartwig, setting the narrator for the rest of the collection: ‘Age, quod agis operare, quod operaris, dulcissime fili, insiste patrocinium matris, quod suscepisti’. Manegold of Lautenbach, Liber ad Gebhardum, ed. K. Francke, mgh, LdL, 1 (Hannover, 1891), 300–​430, here 420. Cf. Melve, Inventing the Public Sphere, 77–​81. This was a widely used topos. Wido of Ferrara, De scismate Hildebrandi, ed. R. Wilmans, mgh, LdL, 1 (Hannover, 1891), 529–​67; Anselm of Lucca, Liber contra Wibertum, ed. E. Bernheim, mgh, LdL, 1 (Hannover, 1891), 517–​28; Wenrich of Trier, Epistola sub Theoderici episcopi Virdunensis nomine composite, ed. Francke, 282–​99.

190 Cushing He wrote, along with much else to Hermann, Bishop of Metz, in order to convince his party that they might safely abandon their king, as if this example proved that he had the power to depose him…14 Interestingly the author also queried the precise location of Gregory vii’s apparent source for his use in Reg. 8.21 of Innocent I’s excommunication of the Emperor Arcadius, noting: Where this is taken from is still unknown to us but we know for certain that it is not found in the Gesta Romanorum Pontificum or in the Liber decretorum or in the Historia Tripertita, where we find more about that sentence of deposition than anywhere else…15 Here, the anonymous author was correct; however true the event, the text came from a widely-​transmitted if spurious letter of Innocent I.16 Concerns such as this over lacking canonical precedent were a common feature of the libelli, particularly of pro-​imperial tracts. In Sigebert of Gembloux’s Leodicensium epistola adversus paschalem papam composed early in 1103 in response to the papally-​sanctioned attack of Count Robert of Flanders on the city of Cambrai, he noted the utter lack of legality and precedence: Until now, we relied on the testimonies of the Gospels, the apostles and the prophets; and whatever was lacking, an abundant supply of examples increased. But I do not know what to say; I do not see where to turn. For if I read through the library of both laws, if I look through all the ancient expounders of the entire library, I find no examples of this apostolic command. Pope Hildebrand alone imposed the final hand on the sacred canons [Hildebrand] who, as we read, ordered the countess Matilda to wage war against the emperor Henry for the remission of her sins. Whether he or others did this justly, we learn from no authority.17

14 15 16 17

Liber de unitate ecclesiae conservanda, ed. W. Schwenkenbecher, mgh, LdL, 2 (Hannover, 1892), 173–​284, here 187. Ibid., 196. Cf. Gregorii VII Registrum, ed. E. Caspar, mgh, Epp. sel., vol. 2.2, Bk.8, no. 21, pp. 553–​54; H. Cowdrey (trans.), The Register of Pope Gregory VII: An English Translation (Oxford, 2002), 391. Innocent I, Ep. 1.3 (PL, vol. 20, col. 631); JK 290. Sigebert of Gembloux, Leodicensium epistola adversus paschalem papam, ed. E. Sackur, mgh, LdL, 2 (Hannover, 1892), 449–​64, here 464. English translation by W. North at http://​ www.acad.carleton.edu/​curricular/​mars/​sigebert.pdf, accessed 14 September 2016.

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The second way in which the libelli de lite are significant examples of law in practice are found in some treatises where we see the authors disputing about matters of law in the broader sense of what made law and law-​giving authoritative. Sentence 7 of Gregory vii’s famous undated text on papal authority, Dictatus papae—​inserted in his Register at 2.55a—​stated: ‘That he alone is permitted according to the necessity of the time to impose new laws…’.18 This text was widely known. As noted above, there is reference to it in the writings of Beno and the schismatic cardinals who probably had access to papal records in Rome before their defection in 1083 who cited the text to refute it.19 This principle, moreover, raised serious concerns as much among committed reformers such as Bernold of Constance, Bonizo of Sutri and Deusdedit as their opponents, who hurled accusations of novelty and complained of Gregory’s perversion of the canonical tradition. In his Liber de honore ecclesiae, Placidus of Nonantola, writing after the tumultuous events of 1111–​12 which had seen Pope Paschal ii imprisoned by Henry V, ignored the claim that the pope was to be the sole judge in questions concerning the faith and insisted on the supplementary function of law, noting that there should be no new law where none was required.20 In the Defensio Heinrici iv, which contained series of arguments called rationes, Petrus Crassus accused Gregory vii of violating natural law in deposing Henry iv, a right given in Dictatus papae, sentence 12. Crassus supported his contentions by authorities from ‘the divine and human laws’, including notably twenty texts from Justinian’s Codex, five from his Institutes and one from the Epitome Juliani.21 Some of the most interesting discussions of the implications of Dictatus papae, sentence 7, however, are found in the works of committed reformers who were writing as defenders of Gregorian principles. Whilst Ivo of Chartres would find a measured way to remind Hugh of Lyon in 1097 that ‘one should not cast doubt on the decisions of the Apostolic See in so far as they are supported by cogent reasons and by the evident authority of the ancient fathers’,22 18 19 20

21 22

Gregorii VII Registrum, ed. Caspar, mgh, Epp. sel., vol. 2.2, Bk.2, no.  55a, pp.  201–​08; ­Cowdrey (trans.), The Register of Pope Gregory VII, 149. Bennonis aliorumque cardinalium schismaticorum contra Gregorium VII. et Urbanum II. Scripta, ed. Societas, 399–​400. Placidus of Nonantola, Liber de honore ecclesiae, c.70, ed. L. de Heinemann, mgh, LdL, 2 (Hannover, 1892), 568–​639, at 597 where the pope is admonished to keep the laws of the fathers: ‘Romano pontifici summo studio procurandum est, ut sanctorum instituta serventur’. Petrus Crassus, Defensio Heinrici IV. Among the most interesting legal discussion was the use of Roman property law to defend Henry’s inheritance and enjoyment of the realm. Ivo of Chartres, Epistola ad Hugonem archiepiscopum Lugdunensem, ed. E. Sackur, mgh, LdL, 2 (Hannover, 1892), 640–​47, here 646.

192 Cushing others such as Deusdedit, in his Libellus contra invasores (c.1097), would write of Pope Nicholas ii’s promulgation of the papal election decree in 1059 (against which he never ceased to rail) that he ‘had no power to establish a principle contrary to the councils of all the patriarchs because he was only one of them, was human and could be persuaded to act wrongly’.23 In both his Liber de vita christiana, compiled between 1089 and 1095, and the De investitura, Bonizo of Sutri addressed the question matter-​of-​factly.24 In the De investitura, with reference to the so-​called imperial version of the papal election decree, Bonizo noted that even if the popes had conceded a role to the emperor in elections (which he did not believe) they had no power to do so for it was not in their right. He then went on to cite Leo I on the right of the pope to create new laws but carefully set limits: only those that did not contradict or destroy the old laws were advisable. For Bonizo, papal law should change things for the better, not for the worse. He reiterated this in the Liber de vita christiana, noting that not everything that was allowed was expedient.25 One of the most thoughtful and sophisticated discussions of the pope’s right to make law was that of Bernold of Constance. In his early De sacramentis excommunicatorum, he noted that papal judgements were not necessarily transparent and as a consequence were not necessarily to be received as binding, especially if they conflicted with the deliberated positions of the Fathers.26 In his Statuti ecclesiae sobrie legendis, in which he responded to Wido of Ferrara’s De scismate Hildebrandi, Bernold made an even stronger contention:

23 24

25

26

Deusdedit, Libellus contra invasores et simoniacos et reliquos schismaticos, ed. E. Sackur, mgh, LdL, 2 (Hannover, 1892), 292–​365, here 310, 312. Bonizo of Sutri, Liber de vita christiana, ed. E. Perels, Texte zur Geschichte des römischen und kanonischen Rechts im Mittelalter, 1 (Berlin, 1930), 1.44; idem, De invesititura, in Bonizo von Sutri: Leben und Werk, ed. W. Berschin, Beiträge zur Geschichte und Quellenkunde des Mittelalters, 2 (Berlin-​New  York, 1972), 76:  ‘… sed ut primus Leo papa dicit:  Novas canones possunt quidem cudere, sed tales, qui veteribus non obvient, et veteres non destruere, sed pro consideratione temporum immutare: hoc est in melius et non in peius mutare. Et de hoc de dispensatoriis canonibus sentiendum est, non de necessariis’. Bonizo, Liber de vita christiana, ed. Perels, 1.44:  ‘Ut enim beatus Nicholaus scribens ad Michaelem imperatorem ait, licuit semper semperque licebit Romanis pontificibus novos canones cudere et veteres pro consideratione temporum immutare. Set non omne quod licet expedit’. Bernold of Constance, De sacramentis excommunicatorum, ed. F.  Thaner, mgh, LdL, 2 (Hannover, 1892), 89–​95, here, 93:  ‘Ipse etiam Romanus pontificalis, unde illa exempla protulistis, saepenumero non tam facienda quam facta hystorica simplicitate prescribit; nec solum legitimas instituciones, sed nonnullorum inconsideratas usurpaciones referre consuevit. Unde non omnia, quae in eo scripta leguntur, pro ecclesiasticis sanctionibus recipere debemus …’.

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All the decrees of the holy Roman pontiff should be received with complete reverence, for their authority has made even the general councils themselves canonical. The blessed Gregory in his Synodica even compares them to the gospels and he anathematizes all who dissent from them. In addition holy Pope Hadrian anathematizes kings who are not afraid to violate the decrees of the see of the apostles. Yet the decrees themselves require a sober reader and a most circumspect interpreter (intellector), someone who knows how to persevere patiently, even if he does not fully understand everything on the first try. For many different things are found in them which should be considered in no way in opposition to truth, if they are suitably understood.27 Bernold then went on to state that excerpts from the decrees were not sufficient, before conceding that: It is of course the privilege of the apostolic see that it may be the judge of canons or decrees and may at one moment observe them for a time, at another remit them as it sees befits the utilitas ecclesiae.28 The ideas of Bernold, Bonizo, Deusdedit and their imperial counterparts reflected the practical, ideological and legal problems faced in the Latin west after 1080, especially in Germany but above all in Italy, at a time when those claims were literally being fought out. The events of the second half of the eleventh century were challenging contemporaries to understand and justify their respective positions, perhaps especially among the reformers whose political and military predicaments in the mid-​1080s—​despite the best efforts of Matilda of Tuscany—​left them with no claim for divine approval for their 27

28

Statuti ecclesiae sobrie legendis, ed. F. Thaner, mgh, LdL, 2 (Hannover, 1892), 156–​59, here, 156–​57: ‘Omnia decreta sanctorum Romanorum pontificum omni reverentia sunt recipienda, quorum auctoritas etiam ipsa generalia concilia canonizavit, quae beatus Gregorius in synodica sua et euangelis comparat, et omnes ab eis dissentientes anathematizat. Sanctus quoque Adrianus papa et reges anathematizat, qui sedis apostolicae decreta violare non formidant. Ipsa vero decreta sobrium lectorem et circumspectissimum intellectorem requirunt, qui patienter ferre sciat, etiamsi non omnia in primo aditu pleniter intelligat. Nam multa in eis diversa reperiuntur, quae veritati nequaquam repugnantia deputanda sunt, si competenter intelligantur. Sed ad hoc dinoscendum non solum excerptiones decertorum sufficere possunt, immo integrae eorum considerationes studiosis vix satis sufficiunt’. Ibid., 157: ‘Est utique sedis apostolicae privilegium, ut iudex sit canonum sive decretorum et ipsa pro tempore nunc intendat, nunc remittat, sicuti ad presens ecclesiasticae utilitati magis competere videat’.

194 Cushing cause. This was something that troubled Archbishop Lanfranc of Canterbury to no small degree. Writing in 1084 to a supporter of the anti-​pope, Clement iii (traditionally identified as Hugh Candidus), Lanfranc noted that whilst he had not yet rejected Gregory vii’s claims to the papacy, he was convinced that the ‘glorious emperor’ (Henry iv) could not have ‘gained so notable a victory without great assistance from God’.29 The response of the reformers as well as that of their pro-​imperial opponents was thus as much an appeal to law, to notions of legality and ideas that universal standards existed in law as to scripture. The still-​prevailing legal historical narrative posits that legal knowledge and real jurisprudence developed only after the 1130s, when canon law became rational, systematic and professionalized under the influence of the study of Roman law in the schools and as a consequence lost its theological orientation and became procedural. As Abigail Firey, among others, has noted, ‘there is danger in seeming to reduce “law” and “jurisprudence” to learned law and the written opinions of professional jurists’, a danger in envisaging this learned law as universal and prescriptive and unaffected by cultural context.30 When the authors of the libelli actually appear in such a narrative (which is admittedly seldom), their exegetical methods, their approach to law and their canonical interpretations have been argued to foreshadow the methods of the twelfth-​ century schools. This characterization needs to be abandoned once and for all. 29 30

Lanfranc of Canterbury, The Letters of Lanfranc Archbishop of Canterbury, eds. and trans. H. Clover and M. Gibson (Oxford, 1979), letter 52, pp. 164–​66. A. Firey, ‘Getting Rid of the Lawyers with High Explosives: The Strange History of Medieval Canon Law’, Paper presented at the Medieval Academy of America’s annual meeting, Chicago, 26–​28 March 2009. I am grateful to Prof. Firey for permission to cite this unpublished essay here.

Chapter 10

‘We Receive the Law on Mt. Sinai … When We Study the Sacred Scriptures’: Law, Liturgy and Reform in the Exegesis of Bruno of Segni Louis I. Hamilton Scholars have clearly recognised and increasingly emphasised that the canon law treatises of the eleventh century were engaged in biblical exegesis and theology.1 They similarly have recognised, as the rich legacy of Roger Reynolds established, that canon law and liturgical commentary were not readily divisible genres.2 This trend is an extension of the broader cultural histories of the last decades that integrate multiple types of sources and social history, particularly those that have reconsidered traditional Church histories.3 These studies emphasise the connection between the intellectuals of the eleventh century and the multiple disciplines in which they wrote. Still, it remains instructive to examine the relationship between the overlapping genres of exegesis and law more closely. If canon law could be a kind of theology or liturgical commentary, it is not clear how readily biblical or liturgical commentary could impose itself as law.

1 G. Austin, ‘Jurisprudence in Service of Pastoral Care: The Decretum of Burchard of Worms’, Speculum, 79 (2004), 929–​59; again in eadem, Shaping Church Law around the Year 1000: The Decretum of Burchard of Worms (Farnham-​Burlington, 2009). Similarly in her analysis of Anselm of Lucca’s Sermo de caritate and his Collectio canonum, K. Cushing, Papacy and Law in the Gregorian Reform: The Canonistic Work of Anselm of Lucca (Oxford, 1998), 114–​21. 2 R. Reynolds, ‘The Organization, Law and Liturgy of the Western Church’, in The New Cambridge Medieval History, Vol. II: c.700–​c.900, ed. R.  McKitterick (Cambridge, 1995), 587–​621; idem, ‘Pseudonymous Liturgica in Early Medieval Canon Law Collections’, Fälschungen im Mittelalter, Internationaler Kongress der Monumenta Germaniae Historica, 6–​19 September 1986. Gefälschte Rechtstexte:  Der bestrafte Fälscher, Schriften der Monumenta Germaniae Historica, 33 (Hanover, 1988), vol. 2, 67–​77, on methods of shifting from commentary to law at p. 76; reprinted in his Law and Liturgy in the Latin Church, 5th–​12th Centuries (Aldershot, 1994), Essay V. 3 Three recent examples concerning eleventh-​and twelfth-​century Italy include D.  Foote, Lordship, Reform, and the Development of Civil Society in Medieval Italy: The Bishopric of Orvieto, 1100–​1250 (Notre Dame, Ind., 2004); A. Thompson, Cities of God: The Religion of the Italian Communes, 1125–​1325 (State College, PA, 2006); V. Ramseyer, The Transformation of a Religious Landscape: Medieval Southern Italy, 850–​1150 (Ithaca, 2006).

© Koninklijke Brill NV, Leiden, 2019 | DOI:10.1163/9789004387249_​0 12

196 Hamilton This essay examines two roughly contemporaneous texts, the Diversorum patrum sententiae, or Collection in 74 Titles (written c.1076, but circulating widely in the mid-​1080s), and the commentary Expositio in Pentateuchum written by Bruno of Segni in two sections beginning in the mid-​to late-​1080s and probably completed a few years after 1100.4 Not only are the two works chronologically proximate, they are physically proximate and circulated in Gregorian circles; the 74 Titles was available both to Anselm of Lucca in the north and at Montecassino in the south, even if recent scholarship suggests a monastic and transalpine origin. With more than twenty extant manuscripts and wide geographical dispersion, it was one of the most important collections of the eleventh century.5 As for Bruno, he was writing as Bishop of Segni (just south of Rome), while spending much of his time either in Rome (as Bibliothecarius under Victor iii, 1086–​87) or as part of the itinerant papal court of Urban ii (1088–​99). The role of papal Bibliothecarius was changing during the eleventh century from a position of chief theological advisor to something more like chancellor.6 In testifying to the ruling of Victor iii and using the title Bibliothecarius, Bruno was clearly acting in the capacity of a chancellor.7 He also served as papal legate under Paschal ii (1099–​1118).8 On a number of occasions he 4

5

6 7 8

J. Gilchrist, The Collection in Seventy-​Four Titles: A Canon Law Manual of the Gregorian Reform, Mediaeval Sources in Translation, 22 (Toronto, 1980), 30 (hereafter cited as 74T). For a description of the manuscripts see Diversorum patrum sententiae sive Collectio in LXXIV titulos digesta, ed. J.  Gilchrist, MIC B, 1 (Vatican City, 1973), xxxii–​lxii (hereafter cited as Diversorum patrum). It is interesting to note that copies of Bruno’s Expositio in Pentateuchum and the Diversorum patrum were in Florence in the early-​twelfth century. See Diversorum patrum, ed. Gilchrist, xl; and L. Hamilton and M. Brett, ‘New Evidence for the Canons of the First Lateran Council’, BMCL, 30 (2013), 1–​20. C. Rolker, ‘The Collection in Seventy-​Four Titles:  A Monastic Canon Law Collection’, in K.  Cushing and M.  Brett (eds.), Readers, Texts and Compilers in the Earlier Middle Ages: Studies in Medieval Canon Law in Honour of Linda Fowler-​Magerl (Aldershot, 2008), 59–​72, esp. 59, 65–​66. Discussed also in his Canon Law and the Letters of Ivo of Chartres (Cambridge, 2010), 81. See also Cushing, Papacy and Law, 78–​85. P. Llewelyn, ‘The Popes and the Constitution of the Eight Century’, EHR, 101/​398 (1986), 42–​67, at n.  2; S.  Kuttner, ‘Cardinalis:  The History of a Canonical Concept’, Traditio, 3 (1945), 129–​214, 172. R. Grégoire, Bruno de Segni: Exégète médiéval et théologien monastique (Spoleto, 1965), 32. Ibid., 46–​49. For the life and thought of Bruno of Segni in the context of reform, see, L. ­Hamilton, A Sacred City: Consecrating Churches and Reforming Society in Eleventh-​Century Italy (Manchester, 2010), 162–​226; I.  Robinson, The Papal Reform of the Eleventh Century: Lives of Pope Leo IX and Pope Gregory VII (Manchester, 2004), 88–​95. Bruno’s exegesis has been best appreciated by art historians, see H. Kessler, ‘ “They preach not by speaking out loud but by signifying”: Vitreous Arts as Typology’, Gesta, 51/​1 (2012), 55–​70; S. Riccioni, ‘The Word in the Image: An Epiconographic Analysis of Reformed Mosaics in Rome (Twelfth-​ Century)’, in Inscriptions in Liturgical Spaces:  Acta ad archaeologiam et artium historiam

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presented legal arguments before the papal court, arguing on behalf of Siponto’s claim to be an archbishopric, probably at Melfi in 1100, and on behalf of the rights of Montecassino against the bishops of Capua in 1108.9 He attended multiple synods and councils, most notably Clermont in 1095 and possibly the First Lateran Council in 1123, just prior to his death.10 This essay will also add evidence to Reginald Gregoire’s tentative suggestion that Bruno knew canon collections and likely knew or consulted the 74 Titles, and will therefore suggest a stronger relationship between exegesis and law than has been largely appreciated.11 While Bruno did press legal claims, he was not a canonist in any traditional sense of the term and accordingly has received little attention from historians of canon law.12 Rather, Bruno was a highly-​regarded biblical exegete and liturgical commentator who travelled extensively in papal circles from Gregory vii (1073–​85) to Paschal ii (1099–​18). Bruno’s exegesis and commentary share many features of the 74 Titles, both in their consideration of biblical readings and liturgical practices, in the methods they used to create laws and compelling precedents from those readings and rites, and in their suggestions concerning the way law and exegesis combined to foster papal authority. In the material examined, canon collections and biblical exegesis had a reciprocal relationship, borrowing from one another’s methods and reinforcing one another’s readings. Just as the compiler of the 74 Titles used exegesis to establish the authority of its canons, so too did Bruno’s exegesis of the Pentateuch (the ‘Old Law’) lead to moral imperatives for clergy and laity alike. Both suggested an ecclesiology with legal implications. Appreciating that these two genres were not so distinct in the eleventh century helps us understand their shared role in the larger reform polemics of the eleventh century, and how they might combine and reinforce one another without sharing the exact agenda.

9 10 11 12

pertinentia, xxiv, n.s. 10 (2011), 85–​137; N.  Zchomelidse, Santa Maria Immacolata in Ceri: ­Pittura sacra al tempo della Riforma Gregoriana, Arte e storia, 5 (Rome, 1996). See Hamilton, A Sacred City, 129, 200–​01. W. North, ‘In the Shadows of Reform: Exegesis and the Formation of the Clerical Elite in the Works of Bruno, Bishop of Segni (1078/​9–​1123)’, Ph.D. Dissertation (University of California, Berkeley, 1998), 105–​06. Grégoire, Bruno de Segni, 383–​87. Gilchrist does include Bruno in his discussion of the canon law on simony, in ‘ “Simoniaca haeresis” and the Problem of Orders from Leo IX to Gratian’, in S. Kuttner (ed.), Proceedings of the Second International Congress of Medieval Canon Law, Boston, 12–​16 August 1963, MIC C, 1 (Rome, 1965), 209–​34; rpt. in Canon Law in the Ages of Reform, 11th–​12th Centuries (Aldershot, 1993), Essay IV.

198 Hamilton Recently, in Gratian the Theologian, John Wei has offered a careful consideration of Gratian both as an exegete and sacramental commentator. Wei concludes that while Gratian (at least the Gratian of the first recension of the Decretum) was no liturgist, he does belong to a longer tradition of canon law employing biblical theology.13 Importantly, Wei recognises that Gratian’s use of the Bible extends beyond simple exempla: On the one hand, the Bible is in a certain sense identical to the natural law and thus takes precedence over any human authority. On the other hand, the meaning of the Bible is not always self-​evident and thus requires the aid of a human exegete.14 Rightly, Wei is critical of an older generation of scholarship that was dismissive of Gratian’s use of biblical material. Wei offers the assessment of Gabriel le Bras as an example. Le Bras characterised Gratian’s biblical readings as a series of ‘[e]‌mpty objections and literary games, without much originality and with few rules’. Moreover, le Bras asserted: The reason [for Gratian’s trivial reading of the Bible] is clear, the Old Testament offers legal sections, some true codes, but they are adopted for the Jewish people and these had been abolished by Christ, apart from some eternal principles; the Gospel contains moral preaching, where precision is rare, and the communities that the Apostle Paul oversaw were too simple for one to find in his epistles a constitution that suited the religious society of the twelfth-​century.15 Le Bras’ approach to Gratian is typical of a certain approach to this material. In a similar vein, the great scholar of medieval exegesis, Henri de Lubac, was no more impressed than le Bras. In his Exégèse médiévale, de Lubac says almost nothing about canon law, canon lawyers or collections, unless the sources are homilies (as for Ivo of Chartres). His only direct reference to a canonical collection is to note in passing that Gratian is ladened with (but 13 14 15

J. Wei, Gratian the Theologian, Studies in Medieval and Early Modern Canon Law, 13 (Washington D.C., 2016), 245. Ibid., 38. G. le Bras, ‘Les Écritures dans le Décret de Gratien’, ZRG Kan. Abt., 27 (1938), 47–​80, at 76–​77, referenced by Wei, Gratian the Theologian, at 42, n.  98 along with other examples. The Merovingian conciliar legislation refers primarily to New Testament texts, see B. Basdevant-​Gaudemet, Église et Autorités: Études d’histoire de droit canonique medieval, Cahiers de l’Institut d’anthropologie juridique, 14 (Limoges, 2006), 201–​12, at 212.

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also ‘repeats’/​regorge) eleventh-​century biblical allegorists.16 De Lubac, writing thirty years after le Bras, offered a foundational understanding of the reading practices that le Bras had dismissed as ‘literary games’ and for that reason de Lubac’s dismissal of Gratian was on the grounds of originality of exegesis not method. In this mode, a collection such as (or perhaps uniquely as) the Hibernensis stands out for its use of scriptural texts. The Hibernensis is an Irish canon collection that dates from the second half of the seventh to first half of the eighth century. It was copied widely and early on the continent because it was exceptionally broad in its scope (addressing both royal and clerical authority) and because it is so dependent on Old and New Testament sources. Copies were made at Saint Gall and Bobbio by the end of the first half of the eighth century.17 Copies of the Hibernensis were at Montecassino by the eleventh century.18 The Hibernensis is an exception that, in the historiography of canon law, has become something of a misleading rule. The Hibernensis contains 326 scriptural references, 217 of which are to the Old Testament, most specifically to the Pentateuch, the five books most centered on the law.19 Le Bras’s dismissal of Gratian’s use of Scripture is, I would suggest, because of focus on discovering the immediate sources of canon law that is primarily interested in the literal application of biblical injunctions (in a manner typical of the approach of the Hibernensis). Such direct borrowings represent only a small portion of the biblical influence on canon law overall, however, and Wei’s contribution is to expand the notion of biblical influence so as to examine Gratian’s more subtle work as an exegete, actively interpreting (or borrowing interpretations of) the Bible. If, from the later-​twelfth and thirteenth centuries, the distinction between canonists and theologians had grown so sharp that it fostered contentious faculties, there was no such distinction between the disciplines in the eleventh

16 17 18

19

H. de Lubac, Exégèse médiévale (4 vols, Paris, 1959, 1961, 1964). Provided in translation by M. Sebanc, Medieval Exegesis, Vols: 1–​3: The Four Senses of Scripture (Grand Rapids, MI, 1998), 346 and 532. R. Flechner, The Hibernensis: A Study, Edition and Translation with Notes (forthcoming), 2–​4. I would like to thank Dr. Flechner for graciously sharing his work with me. R. Reynolds, ‘The Transmission of the Hibernensis in Italy: Tenth to the Twelfth Century’, Peritia, 14 (2000), 20–​50, and also idem, ‘Further Evidence for the Influence of the Hibernensis in Southern Italy: An Early Eleventh-​Century Canonistic Florilegium at Montecassino (Cod. 372)’, Peritia, 19 (2005), 119–​35. Both are reproduced in Studies on Medieval Liturgical and Legal Manuscripts from Spain and Southern Italy (Farnham, 2009). G. Fransen, ‘La Bible dans les collections canoniques’, in P. Riché and G. Lobrison (eds.), La Bible et Le Moyen Âge (Paris, 1984), 327–​70, at 337.

200 Hamilton century.20 To offer as an example the subject of this article, Bruno of Segni made his reputation as an exegete within the papal curia, but also asserted legal claims before the Pope and his fellow bishops.21 As papal legate in 1106 he would likely have exercised some judicial authority as well. A century before Gratian and a generation before Bruno’s birth, Burchard of Worms (c.965–​ 1025) was incorporating exegesis into law (rather than simply referencing biblical injunctions in support of law) in a manner that both reflected his training in theology and his interests as a bishop.22 In Bruno’s day, and in the papal circles that were the center of his career, the often polemical nature of both exegesis and law further loaned themselves to this type of interdisciplinary borrowing.23

Medieval Exegesis

In order to appreciate the close relationship between exegesis and law in the eleventh century, and particularly how the compiler of the 74 Titles acted as a biblical exegete, a brief review of contemporary reading and exegetical practices is in order. Broadly, in a practice that began in antiquity and was employed in influential commentaries by Origen (184/​5–​253/​4 ce), Augustine (354–​430 ce), and Gregory the Great (540–​604 ce), the Bible was read both historically (literally) and allegorically or spiritually. These latter interpretative meanings could be divided fluidly into the moral meaning of the text (how Christians ought to behave); the relationship between Old and New Testaments (what nineteenth-​century scholars called the ‘typological’ sense, Moses as a figure for Christ, for example) or Christian belief more broadly; and what the eschaton would be like.24 In his commentary On the Pentateuch, Bruno primarily described his interpretations as spiritual or allegorical. Considering, for example, the Temple sacrifice of Numbers 28:9, 20 21 22 23 24

For the later rivalry, J. Brundage, ‘The Medieval Battle of the Faculties: Theologians v. Canonists’, in U.-​R. Blumenthal, A.  Winroth and P.  Landau (eds.), Canon Law, Religion and Politics: ‘Liber Amicorum’ Robert Somerville (Washington D.C., 2012), 272–​83. As abbot of Montecassino, he appealed the abbey’s rights to his then-​close ally Paschal ii against the Archbishop of Capua, see Hamilton, A Sacred City, 200–​01. Austin, Shaping Church Law, 146, 148–​49, 152–​53. I. Robinson, ‘‘‘Political Allegory” in the Biblical Exegesis of Bruno of Segni’, Recherches de théologie ancienne et médiévale, 50 (1983), 69–​98; Cushing, Papacy and Law, 103–​21; Hamilton, A Sacred City, 118–​34. The classic study is de Lubac, Exégèse Médiévale; see the clear discussion by F. van Liere, An Introduction to the Medieval Bible (Cambridge, 2014), 110–​16.

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Bruno says, ‘Offering the two tenths [of wheat mixed with oil] is understanding the law. It is indeed sprinkled with oil if it is tempered by mercy; [the law] is tempered if it is understood spiritually since the letter kills’.25 The merciful application of law is, for Bruno, one of the spiritual understandings of Temple sacrifice. At other times, he considers the Pentateuch concealing truth under a ‘shadow’, a ‘figure’ or even an ‘enigma’ as when considering the Passover meal of Exodus 12. The day of the meal (the tenth of the month) is understood both as the Decalogue and the Old Testament itself, presaging the New Testament. The Passover lamb, of course, is the sacrifice of Christ, whose sacrifice ‘is signified through figures and enigmas in the Old Testament’.26 When introducing his exegesis of Deuteronomy, Bruno says ‘[t]‌his book is called Deuteronomy because the second law is explained, because it signifies the New Testament, and those things, which are stated in another form, in [the New Testament], in a certain way, are renewed and replicated’.27 The allegorical understanding of Deuteronomy was, for Bruno, the key to understanding the New Law. The allegorical reading of the Bible, for Bruno and his contemporaries, had direct implications for ecclesiology and for the right behavior of lay and ecclesiastical rulers. For example, when considering Numbers 1: 49–​50 on the Levitical priesthood and its privileged custody of the Tabernacle, Bruno allegorises the Old Testament priesthood as the privileged status of the medieval clergy who, ‘rule, dispense, and order all of the Church and its sacraments’. Moreover, Bruno issued a warning that ‘[n]o one besides [the priests], however, dared to approach the Tabernacle for taking, establishing, or in any way disposing [of it] because anyone who came from outside was killed. If our kings and princes understood this, they would not usurp ecclesiastical offices for themselves’.28 Thus, the spiritual meaning also had a moral meaning, and moral meanings, of course, could have direct legal consequences as in his example of the disposition of ecclesiastical offices. What le Bras dismissed as a game was the central reading practice of the 25 26 27 28

PL, vol. 164, col. 498A: ‘Duas decimas offerre, est legem intelligere. Quae oleo quidem aspergitur, si misericordia temperetur; temperatur autem, si spiritualiter intelligatur: littera enim occidit’. PL, vol. 164, col. 253C. PL, vol. 164, col. 505C: ‘Dicitur autem liber iste, Deuteronomium, quod secunda lex interpretatur; quoniam et Novum significat Testamentum, et ea, quae in aliis dicta sunt, in isto quodammodo innovantur et replicantur’. PL, vol. 164, col. 464C–​D:  ‘Nemo vero praeter illos ad tabernaculum deponendum, vel erigendum, aut aliquo modo disponendum, accedere audebat, quoniam quicunque externorum accesserat, occidebatur. Hoc autem si nostri reges et principes intelligerent, ecclesiastica sibi officia non usurparent’.

202 Hamilton Middle Ages. The allegorical reading of Scripture, not the literal readings as laws equally applicable to Jews and Christians, was an important foundation for legal claims.

Exegesis and the Collection in Seventy-​Four Titles (Diversorum sententiae patrum)

The allegorical reading of Scripture is largely and strategically concealed by the compiler and his sources and needs to be drawn out of the text. A canonical collection is not the place to entertain multiple possible interpretations of a text. Moreover, the compiler of the 74 Titles was working almost entirely with papal or patristic letters or copying material from the synods of Gregory the Great and Adrian I. In this sense, the biblical selections are not the compiler’s, but the choices of the authors of the letters or decrees. Given the highly selective manner in which compilers of canonical collections chose and redacted their source material, however, it seems logical that their inclusion of the biblical material was just as intentional as their decision to include any other portion of a given document. There is something of both of these, the seemingly intentional and unintentional, about the biblical choices in the 74 Titles. If we consider the overall pattern of biblical selections in the 74 Titles (see Table 10.1), some things are striking: twenty of the titles employ a scriptural passage in support of their contention. Biblical authority does not therefore, at first blush, seem paramount to canonical authority, especially if compared to the 326 biblical references found in the Hibernensis which was also well-​known in southern Italy.29 Nor is it a particularly rich selection of biblical texts, only about seventy-​six distinct passages from twenty-​seven books are cited, although they are often cited repeatedly. We notice overall the dominance of direct references to the Gospel of Matthew. This is not surprising given the emphasis on Matthew 16:18–​19: ‘You are Peter, and on this rock I will build my church’. However, even if we put aside the eight references to this passage, the thirteen other references from Matthew still outstrip its nearest rival: the nine total references to 1 Timothy. One also notices the richness of the references in Titles 1 and 2, where eight different books of the Bible are cited. Titles 1 and 2 are those establishing the primacy of the successors of St Peter that have captured the excitement of more than a century of scholars since Paul Fournier first wrote about them. Fournier, 29

Reynolds, ‘The Transmission of the Hibernensis in Italy’, 20–​50.

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however, showed no interest in the biblical material embedded within the canons.30 If we examine these as an example of exegesis, their contribution to papal authority becomes more complex. Title 1, c­ hapter 1 is the highly unusual choice to cite a biblical passage (Deuteronomy 17:8–​13) without an interpretive frame within the chapter. The prominence of the placement of Deuteronomy, as the first chapter of the first title, reminds us of the prominence that Bruno gave it in his commentary. Deuteronomy signifies the New Law.31 The passage chosen from Deuteronomy in the 74 Titles opens as follows: If you perceive that there is a hard and doubtful judgement among you between blood and blood, cause and cause, and if you see the words of judges do vary within your gates, arise and go to the place which the Lord your God shall choose, and come to the priests of the tribe of Leviticus and him who shall be judge at that time, and ask them and they shall show you the truth of the judgement. And you shall do whatever they … shall say.32 The passage concludes with a warning to and curse on those who do not obey the priests. On the face of it, in the literal sense, the passage from Deuteronomy 17 that opens the 74 Titles has nothing to say about Roman primacy. It relies on the reader to supply the typological or allegorical sense and connect the passage to Title 1, ­chapter 2, a Pseudo-​Anacletan letter that cites Matthew 16:18, ‘You are Peter …’. That letter and the one that follows in ­chapter  3 from Pseudo-​ Zephrynus, citing Matthew 16:19, ‘Whatsoever you shall bind on earth …’, asserts the authority of the Bishop of Rome without exegesis, as the literal, historic meaning of Matthew 16:18–​19 giving the Pope authority to hear or to delegate ‘judgements of bishops and other major ecclesiastical suits’.33 Both letters cite the passage as directly referring to the Bishop of Rome. If the question of the Petrine authority of the Bishop of Rome, however, was expected to be clearly perceived as the literal/​historical meaning in ­chapters 2 and 3, then it would be strange to begin with the passage from Deuteronomy in Title 1, ­chapter 1: Matthew 16:18–​19 should suffice. The unexplained choice of Deuteronomy in the

30 31 32 33

P. Fournier, ‘Le premier manuel canonique de la réforme du xie siècle’, Mélanges d’archéologie et d’histoire de l’école française de Rome, 14 (1894), 147–​223, 285–​90. See above, at n. 21. Gilchrist, 74T, Title 1, c.1, p. 71; Diversorum patrum, ed. Gilchrist, 19. Gilchrist, 74T, Title 1, c.3, p. 72; Diversorum patrum, ed. Gilchrist, 20–​21.

204 Hamilton table 10.1 74 Titles (20 employ biblical references, 1 is a biblical passage) Gen Lev

Num Deut

1 Kgs Ps

Prov

Cant Ecclus Isa

TT1-​2

Deut.

Cant

Primacy Roman Church

17:8-​13

6:8

T9 Sheep not to accuse

Gen

Ps.

Is.

Shepherd

9:25

81:1

1:5-​6

Jer

T10 Trial of Bishops T15 Prelates, bad

Prov.

Ecclus

and/​or simoniac

3:9

34:24

21:27

T16 Who ought receive

Lev.

sacred orders

21:13-​ 15(x3)

T20 Bps to always have witnesses present T25 Translation of Bishops T26 Bps content

Prov

w/​ boundaries

22:28

T28 Lapsed priests

Num

1 Kgs

Ps

Prov

Jer

12:10-​

3:2

50:14(x2)

28:13

8:4

15

50:15(x2) 50:19(x2) 50:12-​13

T29 Mass in

Deut

Consecrat-​ed

12:13

205

We Receive the Law on Mt. Sinai

Ezek Dan Ose Mal Matt Mark Luke John

Acts

Rom 1 Cor Eph

1 Tim Heb Js

Mt.

Jn

Acts

1 Cor Eph. 1 Tim

7:15

1:42

9:15

12:12

16:18

6:38

(x 5)

20:21-​22

Ap

4:4-​6 5:18 5:27

16:19 Rom 13:2 16:19

Lk.

(x2)

22:30

Mt.

Lk.

1 Tim

Js.

21:12

6:40

3:10

2:17

10:8

5:22

10:24

(x2) 3:6 Lk.

1 Tim

22:30

3:6 3:2 (x2) 1 Tim 3:7

Mt

1 Cor

10:23

7:11 7:39

Ezek

Ose Mal Mt

Ap

33:12

6:6

18:18

2:5

9:13

(x2)

16:52 16:55

2:7

206 Hamilton table 10.1 ( con’t) Gen Lev

Num Deut

1 Kgs Ps

Prov

Cant Ecclus Isa

T30 Sacraments

Isa 29:13

T34 Stand at Gospel

T37 Once Baptism T47 Priests not to be

Ecclus

greedy

18:30

T48 Clerical Easter fast T50 Preaching Authority

T51 Church Vestments

T56 Penance T59 One office per person T61 Bad invaders of Church T64 No Marriage dissolved for religion

Jer

207

We Receive the Law on Mt. Sinai

Ezek Dan Ose Mal Matt Mark Luke John Mt

Mk

15:3

7:13

Acts

Rom 1 Cor Eph

1 Tim Heb Js

Heb 9:13-​ 14, 19 Eph 4:5

Lk 2:8-​13 Mt

1 Cor

23:2-​

3:6-​7

4 Dan 5:3, 23, 26-​ 30 Ezek

Rom

33:12

7:3 Rom 1 Cor 12:4

12:17

Acts

1 Cor

5:5,

16:22

10 Mt

1Cor

19:6

7:4

5:32 (x2) 19:5

Ap

208 Hamilton table 10.1 ( con’t) No biblical references … T3 Authority of Privileges T11 Deposed Bishops

T4 Freedom Monks/​ Monasteries T12 Number/​Quality of Judges T17 Sacred Orders not T18 Consecration Bps/​ to unknown Abps T22 Roman Pontificate T23 Decrees of Roman Pontiff T31 Consecration T32 Feast of Churches Consecration Church & Priest T36 Laying Hands T38 Ordained by Baptism … Heretics T41 Priestly v Royal T42 Clergy as serfs power T45 Bp of Arles T46 Avoid Praise …

TT5-​7 Procedure relating to Accusation T 13 Present to be judged T19 Ordination … T24 No one Universal … T33 Blessing salt & water T39 Clerics were Heretic then Repent T43 Cantors T49 No Oath, Priest …

T53 Undo Predecessors T54 Nuns Consecration T55 Prelate correcting sins T58 Justices not sued T60 Church resources TT62-​3 Marriage … not to laity … T66 Pope Adrian T67 Feast of Cross T68 Excommunicants

T8 Admonish Shepherd 1st. … T14 Summoning Synods. … T21 Clerical Continence T27 Chorbishops … T35 Consecrate Chrism T40 Seat of Bishop T44 Bier of Roman Pontiff T52 Bishops’ Chamberlain T57 Accusation T65 Synod Gregory T69 No Prejudice against Jews

T70 Jews not to have

T71 Clergy allowed to

T72 No priest to read

TT73-​74 Unjust

XPian slaves

become monks

pagans

excommunication

We Receive the Law on Mt. Sinai

209

opening and the loosely connected references to Matthew in ­chapters 2 and 3 suggests that there is an anticipated exegetical reading. That exegetical work begins to come to the fore in Title 1, ­chapter 18 that reproduces a portion of a letter from Cyprian, the third century bishop of Carthage, who cites Matthew 16:18 but elaborates: [Jesus] builds his church on one man and although he gives equal power to all the apostles after his resurrection and says, “Just as the Father sent me, so I also send you: receive the Holy Spirit (John 20:21–​22)” yet, in order to demonstrate unity … [Christ] made one man the font and origin of that unity. In this manner were the other apostles undoubtedly endowed like Peter with an equal fellowship, both of honour and of power. But the beginning sprang from a single source in order that the church of Christ might be shown to be a unity. In the Song of Songs the Holy Spirit … calls this the one church for he says, “One is my dove, my perfect one … (Song of Songs, 6:8)”. Cyprian goes on to cite Ephesians 4 in service of this ideal of unity within the Church. Here, the idea that Petrine authority transfers to the Bishop of Rome is not at all historical. Rather, the clear historical meaning of the Petrine passage in Matthew is drawn from John in Cyprian’s text and demonstrates the equality of all the bishops. Peter serves only as an allegorical sign of the unity of the Church. The Song of Songs, then, is taken spiritually as a sign of the unity of the Church. Nothing in Cyprian’s exegesis gives Petrine authority to, or otherwise privileges, the Bishop of Rome. This conclusion is only drawn by the interpretive framework provided by the title and chapter headings and the context of the surrounding canons by means of the presumed (but not defended) historical reading I noted above. That historical reading is only truly defended in the first section of Title 2, ­chapter 21, by Pseudo-​Anacletus. Pseudo-​Anacletus insists that Rome obtained its primacy, ‘not from the apostles, but from the Lord, our Savior, himself’, citing Matthew 16:18. The proposition is then expanded: … the fellowship of the most blessed Apostle Paul, the chosen vessel (Acts 9:15), was joined in the same city of Rome, who suffering under Emperor Nero, was crowned on the same day and at the same time in a glorious death with Peter, and the two consecrated the holy Roman church, and by their present and revered triumph they exalted her over all other cities throughout the world. Therefore, the first see, by the blessing of heaven, is the Roman church which … the most blessed Peter and Paul consecrated by their martyrdom.

210 Hamilton The reading of Matthew 16:18 is not literal here in c­ hapter 21, but is allegorical, an allegory that depends on the liturgical image of the consecration of a church.34 The literal, historical meaning of Matthew 16:18 is limited to Christ giving Peter authority; the authority of Rome depends on the allegory of Rome as a church consecrated by the deposition of the bodies and blood of Peter and Paul in their martyrdom. This is liturgical allegory, not scriptural. In this sense, the canons employ both scriptural exegesis and liturgical commentary to create the force of law. They employ the historical, the typological and the allegorical senses of scripture to accomplish Roman authority. They also have in mind a particular kind of Roman authority. Let us return to the passage from Deuteronomy which I have suggested was the opening typological salvo in a slow process of exegeis, historical, allegorical and liturgical. Recent scholarship on the 74 Titles suggests that the text was not the product of the papal court, but sent to Gregory vii to invite his intervention in disputes between monastic communities and their local bishop.35 Most scholars, however, have overlooked the way in which ­chapter 1, Title 1 asserts Roman authority typologically and in a very specific, narrow context. Deuteronomy 17:8 only suggests appeal to the authority of the Levitical priests when, ‘you perceive that there is a hard and doubtful judgement among you … and if you see the words of judges do vary within your gates’. In other words, the opening salvo of the 74 Titles is squarely within the traditional view of papal authority as a court of appeals when local conflicts cannot be resolved locally.36 Indeed, the typological connection between Moses and Peter as bearers of the law was depicted at least as early as the late-​fourth century apse mosaic in Santa Costanza in Rome where a clean-​shaven Christ flanked by Moses and Peter hands a scroll to the former inscribed, ‘Christ gives the law’, while gesturing towards Peter.37 In 1998, Uta Renate-​Blumenthal, in one of her typical laser-​guided observations rightly suggested that the 74 Titles is a better example of continuity with the Carolingian past than of Gregorian innovation.38 But the reproduction of old texts in new contexts will yield new meanings. The transformative power of the 74 Titles would be its reception and reuse by papal legates and 34 35 36 37 38

It shares this with the collection of Anselm of Lucca, see Hamilton, A Sacred City, 132–​34. Rolker, Law and the Letters of Ivo of Chartres, 81. In this sense it jibes with Rolker’s conclusion that the work is not primarily about expanding papal authority. de Lubac, Medieval Exegesis 340, citing M. Laurent, L’art chrétien des origines à Justinien (Brussels, 1956), 176; E. Leesti, ‘Pentecost Illustration in the Drogo Sacramentary’, Gesta, 28/​2 (1989), 205–​216, here 211. U.-​R. Blumenthal, ‘Papacy and Canon Law in Eleventh-​Century Reform’, CHR, 84/​2 (1998), 201–​18, here 212.

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211

other canon collections, such as that of Anselm of Lucca and possibly Bruno of Segni.39 Overall, the exegesis of Matthew and Deuteronomy in the 74 Titles demonstrates the importance of establishing biblically the papal authority to create and adjudicate law. There appears to have been no particular need to infuse every law with scriptural authority and hence nearly three-​quarters of the titles lack scriptural support. Passages, such as those cited frequently from 1 Timothy that offer moral advice to clergy and bishops that can be read as literal/​historical directives or moral allegory, are also presented and used frequently when available, but they are not required. Deuteronomy is likewise the basis of asserting episcopal control over consecrated spaces in Title 29, ­chapter 204. In a letter from Pseudo-​Felix, churches are allegorised as the wilderness tabernacle and to be blessed (and altars consecrated) by the bishop, as ‘burnt offerings’ were only to be offered ‘in the place that the Lord God has chosen (Deut. 12:13)’.40 The episcopal control of sacred space was a major point of contention for the reformers of the late-​eleventh and early-​twelfth centuries as I have discussed elsewhere.41 Importantly, it is the allegorical reading of scripture that is the source of canon law and episcopal authority. A similar exegetical pattern can be seen in the references to the other books of the Pentateuch in the 74 Titles. In Title 9, ­chapter 74, concerning the accusation of bishops, Noah’s condemnation of Ham (Gen. 9:25) for not covering him while he was passed out, drunk and naked is invoked by means of a letter from Anacletus, who proposed the unfortunate moral allegory that the ethical (as opposed to doctrinal) indiscretions of bishops ‘should … be tolerated, because the doctors of the Church must be judged by God’. In support, Anacletus references Psalm 81:1, ‘God has stood in the Synagogue of the gods, and in their midst he judges the gods’.42 Thus the literal failure to cover up Noah’s sin is taken as an allegorical moral imperative to cover up the sins of bishops and other prelates. This is further underscored by applying Romans 13:2 (‘He who resists authority resists the ordinance of God’) in ­chapter 78 from Pseudo-​Fabian. If anything, c.78 suggests that people are to refer the immorality of prelates to superior Apostolic authority.43 39 40 41 42 43

Gilchrist, 74T, 47; Cushing, Papacy and Law, 117. Gilchrist, 74T, 188. Hamilton, A Sacred City, 5–​9. Gilchrist, 74T, Title 9, c.74, p. 111; Diversorum patrum, ed. Gilchrist, 58–​59. Gilchrist, 74T, Title 9, c.78, p. 113; Diversorum patrum, ed. Gilchrist, 60. This is a passage that has a long history of tragic readings giving license to the interpreter. Bruno read the passage differently than the 74 Titles. For him, Noah as Christ, and Jepeth and Shem as

212 Hamilton The commandment from Leviticus, ‘Let a priest take a virgin for a wife and not a widow or one put away’ (Lev. 21:13–​14), is treated as still having literal significance in Title 16 concerning sacred orders.44 Of the selections from the Pentateuch that are cited authoritatively, this is the only one whose literal meaning applies to the Church and it is repeated twice in this section. It is, however, often supported by 1 Timothy 3:2. Chapter 150 (from Celestine I), is most explicit in its reliance on the epistle to support the literal reading of the passage from Leviticus, ‘The apostle supports and reinforces this, saying, “a husband of one wife” ’. Interestingly, the references to 1 Timothy are both edited so that they speak to priests, not to bishops as the letter clearly states: ‘It behooves therefore a bishop to be blameless, the husband of one wife’. In this example, a literal reading of Leviticus changes the literal reading of the New Testament epistle. Not only does the Old Testament imperative apply to the Church in a surprising manner, it actually expands the meaning of 1 Timothy. Finally, Isidore of Seville employs a number of Old Testament allegories in a letter that is reproduced in Title 28, c­ hapter 202, concerning the restoration of priests after some significant sin. Isidore explains why the priest must do penance for seven years, stating that it ‘was not the product of some arbitrary choice by the Fathers’. He points to Moses’ sister, Mary, as an exemplum. Having claimed (with Aaron) an authority equal to Moses’, God punished her (not Aaron) with leprosy, expelling her from the community for seven days before she was allowed to return to the community clean (Num. 12:10–​14). Isidore concludes, ‘I have clearly explained the … authoritative pronouncement of the council of Ancyra’ that clergy can be restored after they do penance for their sins.45 For the compiler of the 74 Titles, therefore, the Pentateuch, the ‘Old Law’, could shape law through a variety of reading practices, as exempla or as literal law, but most importantly as part of sustained allegorical readings that informed both how to read the New Testament and how Christian society ought to be regulated. The compiler recognised, on some level, the interpretative strategies of his sources and enhanced them through his selection and

44 45

Christians, and Ham as the cursed Jews, ‘so that even today the Jews are reproached by us’. PL, vol. 164, col. 185B. Gilchrist, 74T, Title 16, cc.143, 145, pp. 150, 151–​54; Diversorum patrum, ed. Gilchrist, 96–​99. Gilchrist, 74T, Title 28, c.202, pp. 186–​87; Diversorum patrum, ed. Gilchrist, 127–​28. This passage from Numbers is given very little attention in the Collectio Hibernensis and it seems highly unlikely that Bruno could have the Hibernensis in mind. Hibernensis 26.14 in Flechner, The Hibernensis.

We Receive the Law on Mt. Sinai

213

organisation of the materials. It is a reading and approach similar to Bruno of Segni’s exegesis of the Pentateuch.

Bruno of Segni and the Allegorical Laws of the Pentateuch

Bruno considers it so obvious to any ‘prudent’ reader that ‘[w]‌e receive the law on Mt. Sinai … when we study the sacred scriptures’ that he describes this as the historical meaning of the passage.46 It was a passage, however, that had other important echoes that Bruno certainly would have known. First, the sentiment echoed the inscription on the mosaic apse of St John Lateran. This house of God is like Mt Sinai, bearing the sacred commandments, as the law demonstrates which was once promulgated here; the law went forth from here, which leads minds from the depths, and which, having become known, gave light throughout the regions of the world.47 That inscription, in turn, was borrowed by Desiderius (1026–​87, Victor iii, 1086–​87) for his new basilica at Montecassino, connecting his new church to the Constantinian basilica and the seat of the papacy.48 The use of parallel Old and New Testament images in Desiderian churches has likewise been taken as part of a reforming program that connected the revival of Montecassino and

46

47

48

PL, vol. 164, col. 503D–​04A:  ‘Et tunc quidem quodammodo in Sinai legem recipimus, quando nos in sacris voluminibus exercemus. Quando vero illicita concupiscimus, tunc ad Aseroth, angustiarum domum festinamus, sic interpretatur. Hoc ergo modo cognita historia, et nominum interpretatione, facile singulorum significationes prudens lector inveniet. Quae nos quidem per singula diceremus, nisi quia facilia sunt, et brevitati operam damus’. ‘Aula Dei haec similis Synai sacra iura ferenti/​u t lex demonstrat hic quae fuit edita quondam/​l ex hinc exivit mentes quae ducit ab imis/​e t vulgata dedit lumen per climata saec(u)li’, G. A. Ciampini, De sacris aedificis a Constantino Magno constructis:  Synopsis historica (Rome, 1693), 16. Other editions of this inscription and brief analyses can be found at G. de Rossi, Inscriptiones Christianae Urbis Romae septimo saeculo antiquiores (2 vols, Rome, 1861–​88), vol. 2, 149–​50 no. 17, 305–​06 no. 4. See the discussion in M.-T. Champagne and R. Boustan, ‘Walking in the Shadows of the Past: The Jewish Experience of Rome in the Twelfth Century’, in L. Hamilton and S. Riccioni (eds.), Rome Re-​Imagined: Twelfth-​Century Jews, Christians and Muslims Encounter the Eternal City, Medieval Encounters, 17, no. 4/​5 (Leiden, 2012), 464–​93, at 478. H. Bloch, Montecassino in the Middle Ages (2 vols, Rome, 1986), vol. 1, 53–​58.

214 Hamilton its dependencies with Old St Peter’s and St Paul outside the walls.49 Thus, Bruno may well have thought the authority of the Old Law obvious in the context of the papal circles in which he travelled. On the Pentateuch is aimed at the moral reform of the clergy. Bruno’s language of reform is not the verb reformare, but rather the verbs renovare and (surprisingly) innovare and also nasci.50 Bruno also points to the ideal models of the ecclesia primitiva and the relationship between the emperor Constantine and Sylvester I. Most frequently and consistently, however, he calls for repentance and warns his readers about the consequences of failing to repent.51 Considering, for example, a passage in Leviticus 13 that addresses the expulsion and return of lepers 49 50

51

As discussed by H.  Toubert, Un Art Dirigé:  Réforme grégorienne et iconographie (Paris, 1990) and H. Kessler, Old St. Peter’s and Church Decoration in Medieval Italy, Collectanea, 17 (Spoleto, 2002), 85. The question of ‘reform’ movements in the Middle Ages and the eleventh century in particular, already vexed, has come under increased scrutiny in the last decade particularly in response to the work of John Howe, among many others, who began to place religious reform into a broader context of social change. See for example, J. Howe, ‘The Nobility’s Reform of the Medieval Church’, AHR, 93/​2 (1988), 317–​39. Bruno’s exegetical interests in the ideal communities of the ecclesia primitiva and the Heavenly Jerusalem fits within broader patterns among would-​be reformers before the Reformation. See L. Hamilton, ‘Introduction’, in C. Bellitto and L. Hamilton (eds.), Reforming the Church before Modernity: Problems, Patterns, and Approaches (Farnham-​Burlington, 2005), xiii–​xxiv. Our collection decentralised reform and encouraged historians to think about religious experience and reform in broader social and cultural categories rather than the prescriptive materials of the clergy that exaggerate institutional coherence. Such approaches better capture the pre-​modern emphasis on moral reform and the limits of pre-​modern institutions as well as the experience of the Church as both a local community and an eschatological ideal. Maureen C. Miller has suggested that the historiography of reform is trapped in a confessional mode and ought to focus on social networks and power; M. Miller, ‘The Crisis in the Investiture Crisis Narrative’, History Compass, 7/​6 (2009), 1570–​80. Compelling analyses, building on Miller, have been published by History Compass: K. Jasper, ‘The Economics of Reform in the Middle Ages’, History Compass, 10/​6 (2012), 440–​54, L. Melve, ‘Ecclesiastical Reform in Historiographical Context’, History Compass, 13/​5 (2015), 213–​21. These questions remain vexed, precisely because modern Western notions of religion were largely formed during the Reformation. See J. Van Engen, ‘The Christian Middle Ages as an Historiographical Problem’, AHR, 91/​3 (1986), 519–​52; and C. Caldwell Ames, ‘Medieval Religious, Religions, Religion’, History Compass 10/​4 (2012), 334–​52. A reconsideration of the foundational work of Gerhart Ladner is C. Bellitto and D. Flanigan, Reassessing Reform: A Historical Investigation into Church Renewal (Washington D.C., 2012). For example, PL, vol. 164, col. 293B. Gerhart Ladner suggests also that nasci, rather than renasci was a characteristic of the twelfth century renaissance; see Images and Ideas in the Middle Ages: Selected Studies in History and Art, Storia e letteratura, 156 (Rome, 1983), vol.  2, 699. Indeed Bruno uses nascitur and renascitur in regards to the soul and the Church at PL, vol. 164, col. 259C, for example: ‘Nascitur igitur hyssopus in Christo, bona herba hyssopus, quae in Christo nascitur, et merito, quia nulla herba tangit sanguinem

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215

after seven days, Bruno says in a clear echo of the 74 Titles (or Isidore) that ‘[i]‌t is not without cause that the Holy Fathers have set this number of years for penitents’.52 He goes on to say that the priest will declare that person unclean who has not done proper penance and shows contempt of the canons.53 As does the 74 Titles, Bruno employs exegesis as the basis for the judicial authority of the clergy and liturgical allegory for the judicial authority of the Pope in particular. He also shares with the 74 Titles certain patterns of reading. Bruno’s commentary on the Pentateuch shares an enthusiasm for the Gospel of Matthew as an interpretative tool with the 74 Titles, but is equally or slightly more enthusiastic for John. Like the letter of Cyprian contained in the 74 Titles, Bruno does not read Matthew 16:18 as literally transferring power to the Bishop of Rome, only as apostolic authority more broadly. Similarly, he reinforces the reading of Matthew 16:18 by turning to the Gospel of John, stating that the Lord protects the apostles (John 17:12). Like Pseudo-​Anacletus, the allegory that extends Peter’s authority to the papacy is by means of the liturgy: in this case, the Pope’s right to wear the imperial purple. Bruno noted that Constantine gave the imperial purple to Sylvester and that it was worn by the popes on major feast days. Bruno drew a parallel between Joseph, Pharaoh and Israel on the one hand, and Sylvester, Constantine and the Church on the other. If Joseph was called the saviour of the world because he liberated Egypt from hunger, why isn’t Sylvester the saviour of the world, who by the bread of the Word of God and by spiritual food renewed it? That one opened a granary, this one a Church. That one bestowed slavery in Egypt, this one freedom to Christians.54 By allegorising Joseph as Pope Sylvester, ‘the saviour of the world’, he is replacing the expected allegory for Joseph: Christ. It is a powerful ecclesiological message. Expanding on the importance of liturgical purple in his commentary on Exodus, Bruno explains: … purple indeed designates justice, so that it is only permissible for rulers to wear it. Even as the book of wisdom says, “Love justice, you who

52 53 54

Christi, nisi ea quae nascitur in Christo; sola enim Ecclesia in Christo nascitur, et renascitur, sola Ecclesia in Christo fundatur’. PL, vol. 164, col. 427D: ‘Non enim sine causa SS. Patres hunc annorum numerum poenitentibus constituerunt’. Leviticus 13 is not referenced in the Collectio Hibernensis either. ‘Si vero etiam post hos septem dies sacerdos viderit faciem pristinam quidem non reversam, nec tamen crevisse lepram, immundum judicabit’. PL, vol. 164, col. 222A: ‘Ille Aegyptiis servitutem; iste christianis tribuit libertatem’.

216 Hamilton rule the earth (Wisdom 1:1)”. On account of this the Roman pontiffs use it. Therefore, the purple was given to them for whom it is right do justice for the people.55 When Bruno arrives at Deuteronomy 17 (and a somewhat variable manuscript tradition is firm on this), he chooses to summarise the passage cited by the 74 Titles: This chapter teaches that any ambiguity and any major cases are within the purview of the judgement of the priests [sacerdotum judicio finiuntur]: if any proud person is not willing to obey their sentences, he will be killed. That topic, the knowledge and justice of the priests, and the obedience of the people to them (of what sort it ought to be) is briefly discussed.56 There are several points to observe in this passage. First, Bruno’s reading of this has clear legal principles in mind. He erases the distinction presented in the 74 Titles that it is only when judges disagree that there should be appeal to the Levitical priests. In Bruno’s summary of Deuteronomy 17:8–​13, priests are to be the judges when there is any ambiguity or any major case. There is also the curious phrase, majores causae sacerdotum judicio finiuntur, whose structure is not suggested by either the Vetus Latina or the Vulgate. It may contain an echo of Cicero’s De legibus ii. 8: ‘And so that no violation of these customs shall take place, the priests shall determine [sacerdotes finiunto] the mode and the annual circuit of such offerings’.57 Here Cicero is discussing broadly the sacred foundation of natural law and, in particular, the various roles of the priests and the necessary shrines for an ideal society (groves in the country, lares and shrines in the city). Bruno was no Jerome, and this allusion combined with the only other known Ciceronian reference in Bruno’s corpus would hardly merit an angelic slap on the wrist, but it may suggest that Bruno was reading Deuteronomy along with classical texts or commentaries on them as part of the larger contemporary search for a legal basis for papal

55

56 57

PL, vol. 164, col. 326A: ‘Purpura enim justitiam designat, quam solis regibus induere licebat. Unde et illis per Sapientiam dicitur: “Diligite justitiam, qui judicatis terram (Sap. I, 1)”; propter quam causam et Romani pontifices ea utuntur. His ergo datur purpura, quibus est jus in populo facere justitiam’. PL, vol. 164, col. 510D. Cicero, De legibus, in De republica and De legibus, trans. C. Keys, Loeb Classical Library, 213 (Cambridge, MA, 1928; rpt. 2006), 396–​97.

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authority to intervene in disputes between bishops or between bishops and monasteries.58 There are multiple moments in the commentary on Deuteronomy when Bruno may have a collection very much like the 74 Titles in mind. While continuing to comment on Deuteronomy 17, Bruno allegorises this promised Israelite king morally, as an injunction against pride in bishops in particular and the clergy in general, in a way that echoes Titles 15, 16 or 47 on the character of the clergy.59 Likewise, when explaining Deuteronomy 21:15–​20, ‘[i]‌f a man has two wives, one beloved and one hated, and the son of the hated one is firstborn … he shall acknowledge the son of the hated [wife] as first-​born and shall give him a double portion of all he has’, Bruno wisely chooses the allegorical path. He allegorises this passage as the freedom of those who become clergy, no matter their birth status. To my larger point, Bruno also turns to the exegesis of 1 Timothy to explain Deuteronomy, as the 74 Titles frequently does: ‘[l]et the priests that rule well, be esteemed worthy of double honour … (1 Timothy 5:17)’.60 There could be multiple explanations for these similarities of choice. But then Bruno considers his next passage, Deuteronomy 21:21–​24: If a man has a stubborn and unruly son, who will not hear the commandments of his father or mother, and being corrected, ignores obedience, they shall … bring him to the elders of his city, and to the gate of judgement. … The people of the city shall stone him: and he shall die … Many parallels might have come to Bruno’s mind as he read this passage, such the intervention of Jesus at the stoning of the adulterous woman, or the prodigal son, instead he recalled the councils and the ‘sanctorum Patrum decreta’.61 He begins with one of his characteristic signals that he has something to add, puto: I think nothing less is signified than the priests and the bishops, who are the spiritual mothers and fathers; their children who do not obey their warnings and evangelical instruction … ought to be excommunicated. …

58 59 60 61

Cushing, Papacy and Law, 18–​19, 34–​39. Diversorum patrum, ed. Gilchrist, 15:  De prelatis imperitis indignis symoniacis neophitis; 16: Quibus sacri ordines sint tribuendi quibusque denegandi; 47: Ne clerici vel sacerdotes sint cupidi vel feneratores. PL, vol. 164, col. 519D–​20B. de Lubac, Medieval Exegesis, 282, n.1.

218 Hamilton This is not done without order, first he is called to his seniors, and then to the gate of judgement, [that is,] induced to a council, [so that] he might be heard and the decrees of the holy Fathers might be imposed on him.62 That phrase, the decrees of the holy Fathers, is common among papal reformers of the time and Gregory vii uses it in a famous letter to Henry iv in 1075, where he insists that he is not innovating (nichil novi) but returning (recurrimus) ‘to the decrees of the holy Fathers’ and ‘the rules of ecclesiastic discipline of the first and only church’.63 Bruno most likely had this broader concept of the developing reforming canons in mind.64 He echoes this broader Gregorian sentiment in a passage that is a clear description of a canon collection, while commenting on Exodus 20:8–​9, a passage that concerns the theft of property left with a neighbour and that Bruno allegorises as the popular accusation of a bishop if someone dies wrongfully. ‘Then the bishop runs to God, he hastens to the canons, he hears the apostolic doctors and the holy fathers speaking there and passing judgement, and if he is not able to defend himself by the judgement of those, he pays the fine’.65 As Gregory, Bruno encourages bishops to run to the canons of the holy Fathers. Like the 74 Titles, this passage also insists that no one can properly accuse the bishop except himself (and so he looks to the canons to see if he is at fault). Bruno also had specific contemporary ecclesiastical law in mind as he read Deuteronomy 25 which reminded him of, and is our evidence for, his role

62

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PL, vol. 164, col. 502C–​D: ‘In hoc capitulo nihil significari puto, nisi quia sacerdotes, et episcopi, qui omnium aliorum spirituales patres et matres sunt, eos filios, qui eorum monitis et evangelicis institutis non obediunt, sed potius errores sequentes, omni luxuriae, omnique iniquitati se subjiciunt, excommunicare et aeternae mortis damnare debeant. Ille excommunicatur, qui a toto populo, ut jam saepe diximus, lapidibus obruitur. Hoc autem non sine ordine fiat: ducatur prius ad seniores, et ad portam judicii, inducatur ad concilium, et quid sanctorum Patrum decreta de eo jubeant audiatur’. Gregorii VII Registrum, ed. E. Caspar, MGH, Epp. sel., vol. 2.1, Bk.3, no. 10, pp. 263–​67, here, 265; cited with a valuable discussion of reform and law in Gregory vii in Ladner, Images and Ideas, 684, n. 60. See also Cushing, Papacy and Law, 36–​39. Bruno’s two other clear references to canons are when someone kills a priest, the canons suggest greater punishment (PL, vol. 164, col. 290D) and when people believe vain superstition, they are forbidden by the canons to become priests (PL, vol. 164, col. 444D). PL, vol. 164, col. 293A: ‘Usque hodie namque videmus, si aliquis de populo male, et in gravi facinore moriatur, totum crimen in episcopum converti, illum homicidam esse illius culpa, et negligentia; illam animam periisse, et Deo furatam clamant. Tunc episcopus currat ad deos, festinet ad canones, audiat ibi apostolos doctores, et sanctos Patres loquentes et judicia ponentes, ipsorumque judicio si se defendere nequiverit, damnum persolvat’.

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arguing at the papal court on behalf of Siponto against Benevento.66 While considering Deuteronomy 25:11, ‘[w]‌hen two men … begin to fight each other, and the wife of one … puts out her hand and seizes the genitals of [her husband’s enemy], her hand shall be cut off and you shall have no mercy on her’, Bruno recalled a story: This recently happened to me, while I  was arguing for the Church of Siponto with the Bishop of Benevento, his archdeacon attempted to seize me by the genitals, he began to unjustly defame me, but the pride of his tongue cut off his hand immediately; and having been rebuked by the council he begged forgiveness. Satisfying [me] he obtained it. Benevento and Siponto had a complicated relationship in the late-​eleventh century. Pope Alexander ii, for example, both confirmed Siponto’s subordinate position to Benevento and referred to Siponto as an archbishopric.67 The authenticity of the document asserting the authority of Benevento has been questioned and so it may have been the source of the controversy.68 It is clear, however, from Bruno’s recollection of these events and from his other references to the canons in his commentary on the Pentateuch that he viewed his own exegetical work as an extension of and connection to the ecclesiology and norms of the canons. While it remains only a tantalising possibility that Bruno knew the 74 Titles, he clearly knew similar collections and certainly saw his exegetical work as part of the same effort. Just as the 74 Titles employed biblical exegesis and liturgical commentary to fashion the basis for legal authority, so, too, did exegetes and liturgical commentators such as Bruno of Segni practice law and use their commentaries as a tool for informing the law. These texts may be of different genre, but their methods and implications are largely the same.

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PL, vol. 164, col. 533C: ‘Haec autem mihi nuper accidisse memini; qui dum pro Ecclesia Sipontina cum Beneventano episcopo litigarem, mox archidiaconus ejus per verenda me arripere conatus, injuste me diffamare coepit; sed ejus linguae superba manus confestim abscissa est; et concilio reprehensus veniam satisfaciens petiit, et impetravit’. P. Kehr and W. Holtzmann, Italia pontifica sive repertorium privilegiorum et litterarum a Romanis pontificibus ante annum MCLXXXXVIII Italiae ecclesiis, monasteriis, civitatibus singulisque personis concessorum: Vol. 9. Samnium-​Apulia-​Lucania (Berlin, 1962), 13 (1063, post April), 14 (c.1063–​64); see also the discussion of these at 231. A. Ciaralli, V. De Donato and V. Matera (eds.), Le Più antiche carte del capitolo della cattedrale di Benevento (668–​1200) (Rome, 2002), xxi–​xxii, 148–​49, n. 47.

220 Hamilton Conclusion This confusion of genre distinctions in the eleventh century was a creative one. It enabled a largely decentralised reform movement to discuss the value of a clearly centralised ecclesiology without the means necessarily to execute it. It enabled fairly traditional canons and commentaries to be refashioned creatively as strongly papal by means of scriptural commentary or further canonical collections.69 The hypothesis of Fowler-​Magerl and Rolker, that the 74 Titles was sent to Gregory vii for the purposes of endorsing monastic privileges, suggests the broader decentralised manner in which reform took place. The comparative absence of genre distinction in the eleventh century, combined with the coherence of methods, themes and short-​term aims, allowed different genre and media to reinforce one another. This captures something of the power of the broader reforming culture—​readers and texts in communication with one another, thinking creatively along approximate lines—​with leaders and more prominent members for certain, but in the absence of a single reforming program. It suggests how one community might attempt to gain privileges by aligning itself broadly with the goals of another (temporarily forming a larger social network).70 The itinerant popes of the late-​eleventh and early-​twelfth centuries drew large and enthusiastic crowds that enhanced their charismatic authority as they issued canons that reiterated their main themes, but that charismatic authority and those canons ought not be confused with creating centralised and uniform institutional structures. That distinct project would be taken up centuries later.

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K. Cushing, ‘Law, Penance, and the “Gregorian” Reform: The Case of Padova, Biblioteca del seminario vescovile MS 529’, in Blumenthal, Winroth and Landau (eds.), Canon Law, Religion and Politics: ‘Liber Amicorum’ Robert Somerville, 28–​40, at 37. New computational tools for network analysis will continue to expand our understanding of the medieval church and pre-​modern institutions generally. For an introduction to the method, S. Borgatti, A. Mehra, D. Brass and G. Labianca, ‘Network Analysis in the Social Sciences’, Science, n.s. 323/​5916 (13 Feb. 2009), 892–​95; J.  Scott, Social Network Analysis (London, 1991, rpt. 2017). Examples of these methods applied to medieval studies, F. Rossi, N. Villa-​Vialaneix and F. Hautefeuille, ‘Exploration of a Large Database of French N ­ otarial Acts with Social Network Methods’, Digital Medievalist (18 July 2014), https://​journal. digitalmedievalist.org/​articles/​10.16995/​dm.52/​(accessed 18 March 2018); or A. Cappelli, M. Coscia, F. Giannotti, D. Pedreschi and S. Rinzivillo, ‘The Social Network of Dante’s “Inferno” ’, Leonardo, 44/​3 (2011), 246–​47.

Postface: The View from 2017 Bruce C. Brasington By sheer coincidence, 2017 marked the centennial of two events pertaining to the essays in this volume:  the promulgation of the 1917 Codex iuris canonici (Code of Canon Law) and the death of the German jurist and legal historian, Rudolf Sohm. Each deserves some consideration in this concluding ­essay, for the authors in this volume have frequently challenged how Sohm and his contemporaries—​and, by extension, many of the scholars who followed them—​understood canon law of the eleventh and twelfth centuries. Both Sohm and the authors of the Code viewed canon law in a Roman light. While this was self-​evident for a lawyer in the curia, it remained no less true for the Protestant Sohm at Leipzig. In his Das Altkatholische Kirchenrecht, published posthumously the following year,1 Sohm would make his final argument for the canons progressing from charisma to jurisprudence, from sacrament to law.2 The endpoint was the state, an ecclesiastical state, whose law enabled routinized, institutionalised practice essential to later governments and their bureaucracies.3 The road to modern institutions ran though twelfth-​century Rome.4 No less certain in 1917 was the decisive significance of a single text: Gratian’s Decretum. For Gratian had harvested an earlier tradition, reaffirmed the unity and structure of the Church under Roman primacy, and then enabled jurisprudents (as we remember from the introduction, increasingly trained in Roman 1 R. Sohm, Das Altkatholische Kirchenrecht und das Dekret Gratians (Munich-​Leipzig, 1918; rpt. Darmstadt, 1967). 2 Its inspiration came, obviously, at least in part from Max Weber. That Weber’s influence continues today is demonstrated by the essays in F. Felten, A. Kehnel and S. Weinfurter (ed.), Institution und Charisma:  Festschrift für Gert Melville zum 65. Geburtstag (Weimar-​Vienna, 2009), especially the essay of H.  Vorländer and G.  Melville, ‘Die Geltung gesatzter Ordnung: Vormoderne und moderne Verfassung im Vergleich’, 47–​54. 3 See most recently, D.  D’Avray, Medieval Religious Rationalities:  A Weberian Analysis (Cambridge, 2010)  and idem, Rationalities in History:  A Weberian Essay in Comparison (Cambridge, 2010). 4 Among the many subsequent authors who either explicitly or implicitly adopted this view, we should include as one of the most influential H. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA, 1983). See also the comments in the preface and introduction to G. Post, Studies in Medieval Legal Thought: Public Law and the State, 1100–​1322 (Princeton, 1964).

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222 Brasington law) to systematise the law. If, as Sohm argued, the Decretum still expressed an older, sacramental, law not fully detached from theology, it marked the end of an era.5 After 1140, the ‘classical period’, extending down to 1234,6 positive, normative Romano-​canon law would appear. Only then could the way to the Liber Extra of 1234 be explained. For a state must have a code. Pope Benedict xv surely would have agreed.7 A thorough exploration of medieval canon law’s twentieth-​century historiography far exceeds the modest goals of this Postface. What I do wish to highlight is something noted in this volume’s introduction: until very recently, historians of eleventh-​and twelfth-​century canon law shared, if in varying degrees, the rational, teleological assumptions of 1917. That view was what one might call progressive, at least as far as the term was understood a century ago. Scholars, Protestant and Catholic alike, were rehabilitating canon law. No longer one of the darker shadows of medieval ‘superstition and force’,8 viewed in hindsight it reflected a bright future to come. Bologna and Rome were no longer bastions of reactionary ‘alterity’;9 now, canon law could herald a twelfth-​century Renaissance that anticipated more secular and scientific days.10 There is much to commend about this view. Our authors do not discount in the slightest the remarkable, even innovative, aspects of legal developments, in both theory and practice, during the long twelfth century. All have given Rome (and Bologna) their due. However, whether concerning jurisprudence, 5

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There has been almost unceasing criticism of Sohm’s views ever since 1918. For the earliest, and still most representative example, U. Stutz’s review in the ZRG Kan. Abt., 8 (1918), 238–​46. For a recent, important study of Gratian, with consideration of Sohm and his critics, J. Wei, Gratian the Theologian, Studies in Medieval and Early Modern Canon Law, 13 (Washington D.C., 2016). Among various examples, W. Hartmann and K. Pennington (eds.), The History of the Medieval Canon Law in the Classical Period, 1140–​1234: From Gratian to the Decretals of Pope Gregory IX (Washington D.C., 2008); C. Donahue, Jr., ‘A New Synthesis of the History of Canon Law in the Classical Period’, ZRG Kan. Abt., 96 (2010), 609–​15; R. Helmholz, ‘The Development of Law in the Classical and Early Medieval Europe: The Bible in the Service of the Canon Law’, Chicago-​Kent College of Law Review, 70 (1995), 1557–​81. As noted in the introduction, perhaps the most extreme view of this historical progression is by W. Ullmann. H. Lea, Superstition and Force: Essays on the Wager of Law, the Wager of Battle, the Ordeal, Torture (3rd edn, Philadelphia, 1878). Useful in comparison here are R. Moore’s works ­noted earlier in this volume. I draw here on the observations made more generally by P. Freedman and G. Spiegel, ‘Medievalisms Old and New: The Rediscovery of Alterity in North American Medieval Studies’, AHR, 103 (1998), 677–​704. On which, see, above all, C. Haskins, The Renaissance of the Twelfth Century (Cambridge, MA, 1927).

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the significance of twelfth-century papal councils or the expansion and extension of Rome’s legal administration, each has also gone on to tell a different history. Rouen has taken its place alongside Rome; obscure archdeacons emerge from Gratian’s shadow. Rather than canon law as a means to later ends, whether legal, political or institutional, they have endeavoured to view it in context. From this perspective have come new insights. This new history could only come from careful study of the manuscripts. Sohm and the Code read the historical canon law as volumes, either finished or in the making. For their part, our authors have been more interested in the myriad, variable manuscripts, each with a story to tell. From such a perspective, questions emerge that would have seemed strange until just a few decades ago. When viewed as single, authoritative, volumes, canon law texts have a stability and uniformity that invites theory seeking to systematise and unify. The assumption of a textual end-​product seems to confirm teleology. When, however, one examines the manuscripts, first individually and then in larger groups, all changes. Like a pointillist painting which, at a distance, seems a composed unity, close examination reveals variety. From Greta Austin to Jason Taliadoros, our authors have taken the familiar and ‘made it strange’.11 Granted, our authors have advantages over their predecessors a century ago. There have been notable achievements in both textual criticism and codicology over the intervening decades. The introduction noted many outstanding examples, as well as the significance of the internet, enabling the creation and dissemination of research aids, editions and other resources undreamt of by Sohm and his contemporaries. One can only wonder what the pioneering historians of medieval canon law, men like Hinschius and Paul Fournier, would have thought of online editions of Pseudo-​Isidorian works or collections either directly or indirectly related to Ivo of Chartres.12 Even if modern scholars still face many of the same challenges confronting the pioneering editors of a century ago, for example, the inaccessibility of many manuscripts,13 they are still far better-​equipped to present and share their work. 11

12 13

A favourite expression of the late Professor D. Weber of Southern Methodist University. See, for example, his obituary by B. Johnson, in https://​www.historians.org/​publications-​ and- ​directories/​perspectives-​on-​history/​february-​2011/​in-​memoriam-​david-​j-​weber (­accessed 18 March 2017). I thank my colleague, Dr. Tim Bowman, for calling this to my attention. Respectively, http://​www.pseudoisidor.mgh.de/​ and https://​ivo-​of-​chartres.github.io/​ (both accessed 25 March 2017). Despite the considerable progress in digitisation, most twelfth-​century canonistic works are not on the web. Even when they are, the quality is not always consistent. No less challenging, and far more depressing, is the decaying state of microfilms, which sometimes preserve the only copy we have of a manuscript now damaged or lost.

224 Brasington Our authors have all engaged in what Stephan Kuttner called ‘juristic philology’.14 Of course, he hoped that from such labours complete, critical editions would eventually emerge and, as the reader has seen, there has been considerable progress in that direction. However, even the lack of modern editions has been a blessing in disguise. The still-​incomplete, unstable nature of our texts, from Burchard’s Decretum to Ricardus Anglicus’ Ordo, may be as much a blessing as a burden. For it has inspired questions, from, respectively, Greta Austin and Jason Taliadoros, that might not have come from texts considered fixed. What is fixed is not easily moved, not easily used. As noted above in the introduction, our authors have been concerned for precisely these issues, the movement and uses of canon law. This will be a theme for the remainder of this essay. Such attention to the life and practice of canon law reflects a wider historiographic trend in medieval studies of relatively recent origins. One of the earliest, and most influential, of these critics of static categories, and often the texts employed to justify them, was Elizabeth Brown. In 1974, she decried and deconstructed the ‘tyranny of a construct’ erected by ‘feudalism’.15 By undermining one of the fundamental historical assumptions of the last two hundred years, that the Middle Ages could best be described by the fief, she challenged her audience to engage medieval life and thought in its variety and particularity. The essays in this volume have continued in this spirit by considering, to echo Brown, the creative and flexible ways both ecclesiastics and secular individuals ‘dealt creatively and flexibly with numerous options’.16 Their agency, driven by their careers, education, and political/​religious agendas, comes to the fore. Their usage of canon law, in all its variety, is what matters.

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Much of what follows is inspired by Kuttner’s essay, ‘The Scientific Investigation of Medieval Canon Law’, Speculum, 24 (1949), 493–​501. E. Brown, ‘The Tyranny of a Construct:  Feudalism and Historians of Medieval Europe’, AHR, 79 (1974), 1063–​88. There are too many subsequent authors on the subject to list, but undoubtedly one of the most influential must be S. Reynolds, for example her collected essays published as The Middle Ages without Feudalism: Essays in Criticism and Comparison on the Medieval West (Ashgate, 2012), and, particularly for the subject of our volume, ‘The Emergence of Professional Law in the Long Twelfth Century’, Essay viii, pp. 347–​66. For a recent approach from one of the authors in this volume, see G. Austin, ‘How Old was the Old Law? Talking about Change in History of Medieval Canon Law’, BMCL, 32 (2015), 1–​18, also K. Pennington, ‘Learned Law, Droit Savant, Gelehrtes Recht: The Tyranny of a Concept’, RIDC, 5 (1994), 187–​209. For reflection on Sohm in this context, B. Brasington, ‘Avoiding the “Tyranny of a Concept”: Structural Considerations Concerning Twelfth Century Canon Law’, in G. Melville and M. Schürer (ed.), Das Eigene und das Ganze: Zum individuellen im mittelalterlichen Religiosentum (Münster-​Hamburg-​London, 2002), 419–​38.

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Thus, what was good for William the Conqueror or one of his knights was no less true for a bishop, judge-​delegate, or clever Danish ruler: they saw canon law not as a thing to be labeled, but as a collection of options to be consulted and used to prove a point, win a case, and establish a precedent for the future.17 Moreover, at least until the normative codes that began in the early thirteenth century, canon law was assumed to be diverse, more ‘laws’ than ‘law’. Our essays have also challenged the very definition of law taken for granted in 1917 and for decades to come. For every trained jurisprudent (and more on the various meanings of iurisperitus below), coming from Bologna or Montpellier, there was a legion of men familiar to varying degrees with canon law and how to use it. For a very few, perhaps legal study was essentially ‘mastery of arcana’.18 However, when one reflects on the individuals encountered in this volume all, even the most highly regarded jurisprudents like Vacarius and Ricardus Anglicus, were also very familiar with the realities of the court. They were all, as John Ott memorably puts it, ‘men on the move’. The range of law in this volume is impressive. For some, it was allied with liturgy and theology. In the warring cloisters and cathedral schools of the Empire, it served as a weapon for polemic. It served both secular and sacred politics, insofar as they were really all that different, in England and Denmark. From the heights of natural law, to the mundane, and complicated, realities of sexuality, gender, and property, canon law or laws, were ready to hand. In such attention to variety and use, these essays embrace a scholarly view only barely beginning to emerge in the days of Sohm and the Code: the utility of applying, with limitations, theories from the social sciences to history. That we find references to subjects such as arbitration, negotiation and networks, to name but three examples, is an indication of how anthropology has shaped the study of medieval law over the last forty years.19 In 1917, canon law meant courts; that we now spend equal time discussing arbitration and negotiation, 17

18

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B. Brasington, ‘Collections of Bishops’ Letters as Legal Florilegia’, in P.  Andersen, M.  Münster-​Swendsen and H.  Vogt (eds.), Law Before Gratian:  Law in Western Europe c.500–​1100. Proceedings of the Third Carlsberg Academy Conference on Medieval Legal History 2006, Proceedings of the Carlsberg Academy Conferences on Medieval Legal History, 3 (Copenhagen, 2007), 85–​86. Perhaps it was never intended for actual use but, instead, study to master ‘a body of esoteric knowledge’ in order to enter the legal profession. On this, J. Brundage, ‘The Rise of Professional Canonists and the Development of the Ius Commune’, ZRG Kan. Abt., 81 (1995), 26–​63, rpt. in Profession and Practice of Medieval Canon Law, (Farnham, 2004), Essay I, pp. 26–​63; see also M. Hoeflich and J. Grabher, ‘The Establishment of Normative Legal Texts: The Beginning of the Ius commune’, in HMCL, 2. W. Davies and P.  Fouracre, The Settlement of Disputes in Early Medieval Europe (Cambridge, 1986).

226 Brasington again as highlighted by John Ott, is but one example of how our focus on, and definition of, legal process has changed since 1917. Alongside lawmakers, we find peacemakers. The texts treated in this volume always connect with places and people. When considering the former, Rome may be omnipresent, but not the only location. Instead of a hierarchy, the Church and her law may resemble, as one can gather from Summerlin’s contribution, more a wheel. There was tension and friction between center and periphery, but each needed the other. Likewise, jurisprudence did not merely descend from the heights of the universities. We should not hasten to Bologna before pausing to reflect on canon law at Worms, Sutri and Trier. Decades ago, the eminent German scholar Hermann Kantorowicz commented:  ‘but the true legal historian aims at finding out what rulers, jurists and subjects actually thought and did, and knows that they were sometimes less, but never more, than human’.20 If our authors are perhaps less confident in their ability to discover what their medieval authors and readers actually thought and did, they still, I believe, would agree with Kantorowicz, that the texts, legal or otherwise, were products of human, all too human, action. Human agency determined what texts mattered, and did not matter, in a particular situation. Thus, it was not that the decrees of Second Lateran and Third Lateran were not respected by their respective audiences but, rather, as Dusil and Summerlin have highlighted, they were deemed less important for the legal questions at hand. What mattered was, as Summerlin puts it, ‘legal practice in the context of local synods’. Many of the people we have encountered in these essays would not have attracted the attention of Sohm and his contemporaries. For only a few, notably Vacarius, were jurisprudents in the modern sense of the world. Most were not doctors of law. Yet, all were students and practitioners in their own way. These iurisperiti could be liturgists and clerks, sober counsellors and harried archdeacons. Most would have been at least somewhat perplexed by the modern distinction between canon law and theology, a distinction that was just forming in the days of Stephen of Tournai.21 This volume brings texts and people together. What a legal text was, and meant, now differs, I  believe, profoundly from what was understood a century ago. There would be no place for a farrago of canons, as characterised 20 21

H. Kantorowicz, The Definition of Law (Cambridge, 1958), 36. Among various studies, H.  Kalb, ‘Überlegungen zur Entstehung der Kanonistik als Rechtswissenschaft-​Einige Aspekte’, Österreichsisches Archiv für Kirchenrecht, 41 (1992), 6–​ 10.

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by Austin, in Sohm’s Kirchenrecht. But that is the point. Until the thirteenth century, canon law was essentially just that: manuscript collections intended for study and use. Here our authors focus their attention, and continue the inquiry begun by scholars like Brian Stock and Patrick Wormald.22 The text thus cannot be separated from the person, or persons, who made it, read it, used it. Rather than a single ‘textual community’, to borrow Stock’s term, centred on, or at least inexorably trending towards, Rome, we find variety. There were, after all, many collections before Gratian; none achieved the status of a code. As noted from time to time in our studies, the Decretum itself had at least two recensions, perhaps more. None of these were normative either, no matter how much some scholars have hoped they were.23 As various essays in this volume have noted, perhaps most notably the contribution by Danica Summerlin, even papal councils and decretals need not have been judged as normative, a view that undoubtedly would have startled both Sohm and Pope Benedict xv. Perhaps the value of those councils and decretals lay, instead, in their catalytic function, bringing men together to hear, read and discuss the law before returning to their localities to study and, above all, litigate.24 In the textual and legal communities they formed, we may find the places where that usage of law most effected change.25 Among the giants of twelfth-​century canon law, from Pope Alexander iii to Vacarius, one should not overlook the contributions made by an archdeacon at Rouen or a member of Archbishop Eskil’s entourage. Perhaps the most important thing about councils is not their legislation but the fact that the meeting occurred; equally, perhaps the most important thing about decretals is not generally any individual letter but that,

22

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25

B. Stock, The Implications of Literacy: Written Language and Models of Interpretation in the Eleventh and Twelfth Centuries (Princeton, 1983); P. Wormald, The Making of English Law:  King Alfred to the Twelfth Century, Vol. 1:  Legislation and its Limits (Oxford, 1999, rpt. 2001). P. Classen, ‘Das Decretum Gratiani wurde nicht in Ferentino approbiert’, BMCL, 8 (1978), 38–​40. On the importance of communication, again informed by theory not anticipated a century ago, G. Drossbach, ‘Die Entwicklung des Kirchenrechts als raumübergreifendes Kommunikationsmodell im 12. Jahrhundert’, in G. Drossbach and H.-J. Schmidt (eds.), Zentrum und Netzwerk: Kirchliche Kommunikationen und Raumstrukturen im Mittelalter, Scrinium Friburgense, 22 (Berlin-​New York, 2008), 41–​62. Here my views are very much influenced by S. Milsom, A Natural History of the Common Law (Ithaca, 2003), ­chapter 4. While not referring here to the essay by E. Brown, his understanding of historians’ assumptions about the speed of legal change and their tendency to focus on ‘narrow subjects in short periods’ may be fruitfully compared with her views on the ‘tyranny’ of feudalism.

228 Brasington circulated as a group, they were viewed by more than a single recipient and created a community of thought. Even historical time is conceived differently in this volume than a century ago. In a way, this reflects how each period views texts and their reception. And that view reflects the wider understanding of historical significance and causation. To Sohm and others who followed him, until very recently, history was diachronic. Like a Lachmannian stemma assumed essential to creating an edition,26 key events, like texts, were the archetypes. Just as the earliest and best manuscript eventually led to later copies and families, so did events descend in some sort of reasonable way. What mattered most was recovering the earliest and best version, ideally the archetype. Only from that text, seemingly accurate and fixed, could one find answers to how history, including legal history, actually was and how it unfolded.27 This Lachmannian hermeneutic prompted the questions of 1917. Now, our questions are different, perhaps because our editions are often incomplete and unstable. Now all manuscripts, not just the best, are significant. Our questions concern the constructions of the text, its uses. Perhaps alongside jurisprudence and doctrine, we even find parables in our texts. All of this reflects a synchronic conception of text and history. We speak of a long twelfth century, not just dates in sequence; likewise, it is the life of the text, not just its beginning, that matters. Each manuscript tells a story, a story of many users. Instead of a pure text being contaminated by readings from a second scribe, it was used over time. Our authors’ alternative understanding of historical time and causation provides us with an understanding of legal change quite different from what Sohm and his contemporaries assumed a century ago. Instead of dramatic turning points, we have, largely, a story of legal development that resembles what S. F. C. Milsom has argued for English Common Law: It is not just that fundamental changes are slow: their visible surface effects may be too widely scattered in subject matter as well as in time for the causation to be demonstrable from particular pieces of evidence. … As in the natural sciences, fundamental propositions in legal history may 26

27

Among the many guides to the Lachmannian method of editing texts, whose origins lay in classics and Biblical studies, textual traditions often very, very different from the sprawling, interconnected manuscripts of medieval canon law, L. Reynolds and N. Wilson, Scribes and Scholars (4th edn, Oxford, 2014)  and P.  Maas, Textual Criticism, trans. B. Flower (Oxford, 1963). I am very much influenced here by the observations of P. Dembowski, ‘The “French” ­Tradition of Textual Philology and its Relevance to the Editing of Medieval Texts’, Modern Philology, 90/​4 (1993), 512–​32.

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stand or fall not with single facts but with their power to explain all the facts. Perhaps it is only a restatement of that last proposition to say that legal history, more than most kinds of history, depends upon the assumptions with which the materials are read. … Not knowing (or even missing) the assumptions of the time, he will read the materials in light of his own assumptions or those of his predecessors in the field; and, when he or his predecessors have established a framework for one period, that framework will almost inevitably be assumed to be valid for earlier times … 28 A century ago, scholars assumed decisive, purposeful change. It was obvious.29 This was how they read the materials, whether medieval common or canon law. Rudolph Sohm would surely have found this method scientific, with its goal the discovery of when canon law changed from theology. Like Milsom, our authors have read the law differently. Neither a pioneering scholar, Gratian, nor a dramatic event, a papal council, effected immediate change. Moreover, to read the medieval canon law in that way is to distort its history. Rather than foreshadowing later legal and institutional developments, a point rejected by Kathleen Cushing in her essay, we should take it on its own terms and in its context. This view holds equally true for Louis Hamilton’s rejection of those who would confine canon law to learned law and the written opinions of professional jurists. Equally, as Jason Taliadoros points out for Vacarius, we should view each ‘as his own man’, with ideas and arguments worth examining in context, and not merely for what they may anticipate in future law. As Milsom notes, change was slow and carried along by individual interest and action, not some sort of plan. Rather than ‘large intentions’ and ‘innovative leaps forward’,30 we find, as Melodie Eichbauer shows, Gratian and Stephen of Tournai selecting and interpreting canon law in ways that would reflect their respective concerns. For the later history of jurisprudence, what is striking is that they were turning to arguments from prescription. The future development of canonistic jurisprudence, nevertheless, was not on their minds. However remarkable and innovative the invocation of prescription may appear to us, to the medieval writers it was surely more a tool to establish and defend claims to properties and rights. Prescription, and the canons in Gratian which furnished it, was made, as Eichbauer argues, ‘to fit the socio-​political climate in which each worked’.

28 29 30

Milsom, A Natural History of the Common Law, 75–​77. On such assumptions by legal historians, see Ibid., 76. Ibid., 76–​77.

230 Brasington Attention to such adaptation characterises our essays. As Greta Austin shows, Burchard of Worms was concerned to fit the available canon collections to current concerns ranging from penance to episcopal authority. To Bruno of Segni, as Louis Hamilton demonstrates, canon law could be conceived as a kind of theology or liturgical commentary. Established traditions and trusted negotiators and arbitrators continued to fit or at least try to fit canon law to settle disputes as great as the case of Archbishop Eskil and as local as the partitioning of a mill in northern France. What might the reader use from this volume? For the specialist, there is an abundance of fresh information and interpretation, and there is no need, I believe, to comment further. The essays speak for themselves. Those, however, who have little or no training in the development of medieval canon law can profit no less from our authors’ works. All that they need to do is to follow Elizabeth Brown’s advice and resist the temptation to turn to older labels—​or create new ones—​to describe the variety of medieval life, and not just the life of canon law. Rather than labelling the law as a means to an end, a tool of a ‘persecuting society’, foundational to the building of the modern, bureaucratic state, or even, an attempt to bring heaven down to earth, the reader may find it most useful to think of canon law, or laws, in the arena of human interaction. Scholars have over the last few decades noted the ‘proceduralist’ turn in twelfth-​century canon law. More and more we find medieval authors concerned with procedure; the numerous ordines iudiciorum are but one example of how canonists were realising that the laws of Rome, both ancient and modern, had to be brought to the actualities of the court. From their reflection on procedure came increasing rationality and standardisation in canon law.31 In their own way, our authors have taken their own, proceduralist turn. To focus on procedure, on the uses of canon law in context, and not in some sort of interpretative framework fashioned later,32 is to better understand that our texts, like their authors, were living. When we attempt to fix the texts, which are all we have, as either monuments to superstition and force or as signposts to later history, we assume that only what they contributed to our world was significant. Sadly, that is the view of our own day towards the past, medieval or otherwise. In confronting that prejudice, our authors have done

31

32

Most notably, D. Bauer, ‘On the Historical Genesis of Legal Proceduralism’, in E. Broers et al. (eds.), Ius Brabanticum, ius commune, ius gentium: Opstellen aangeboden aan prof. mr. J. P. A. Coopmans ter gelegenheid van zijn tachtigste vejaadrag (Nimjegen, 2006), 209–​ 19 and ‘The Twelfth Century and the Emergence of the Juridical Subject’, ZRG Kan. Abt., 121 (2004), 207–​27. Milsom, A Natural History, 77.

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more than engage an aspect of medieval intellectual life. They have confronted our tradition. It is my hope that the readers of this volume, like the users of manuscripts, will not see that tradition as cultural debris suitable only for volumes lying on dusty shelves,33 but, instead, as ideas that can speak to us. Our world may not be filled with bishops and legates, archdeacons and canonists, but it is no less challenged by the task of finding order, peace and even justice in a very troubled world. Reflection on what these men, no less frail and fallible than we, thought and did may move us just a bit closer to those ​distant goals.

33

R. Kirk, ‘Cultural Debris: A Mordant Last Word’, in The Intemperate Professor and Other Cultural Splenetics (Baton Rouge, 1965), 160–​63.

Bibliography Manuscripts Admont, Stiftsbibliothek, 23 Admont, Stiftsbibliothek, 43 Archives départementales de l’Oise, H 26 Barcelona, Arxiu de la Corona d’Aragó, Santa Maria de Ripoll, 78 Cambridge, Gonville and Caius College, 676/​283 Cambridge, St John’s College, F.11 Châlons-​en-​Champagne, Bibliothèque municipale, 48 Cologne, Erzbischöfliche Diözesan-​und Dom-​Bibliothek, Cod. 123 Florence, Biblioteca Medicea Laurenziana, S. Marco 599 Florence, Biblioteca nationale Centrale, Conv. Soppr. A. 1.402 London, British Library, Royal 10.B.iv Munich, Bayerische Staatsbibliothek, Clm 17162 Munich, Bayerische Staatsbibliothek, Clm 27246 Oxford, New College, 220 Paris, Bibliothèque nationale de France, lat. 1596 Paris, Bibliothèque nationale de France, lat. 14876 Paris, Bibliothèque nationale de France, lat. 14938 Paris, Bibliothèque nationale de France, lat. 15001 Sankt Gallen, Stiftsbibliothek, 673 Sigüenza, Biblioteca del Cabildo, 10 Vatican City, Biblioteca Apostolica Vaticana, Pal. lat. 586 Vatican City, Biblioteca Apostolica Vaticana, Ottob. lat. 3027 Zwettl, Stiftsbibliothek, 162



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Index Note: Dates listed after a proper name indicate lifespan. Dates listed after a title indicate length of term. For example, Alvisius of Arras, Bishop (1131–​48) indicates that Alvisius was bishop of Arras from 1131 to 1148. Aachen 110 Absalon 51–​54, 61–​68 Adjudication 23, 35–​36, 45 Adrian i, Pope (772–​95) 202 Adrian iv, Pope (1154–​59) 30, 45, 53, 83 Alanus Anglicus, Canonist 90, 93 Alberic of Ostia (1080–​1148), Bishop 37, 48 Alexander ii, Pope (1061–​73) 52–​56, 59, 63–​64, 66–​68, 163, 219 Alexander iii, Pope (1159–​81) 11, 26, 40, 52–​59, 63–​64, 66–​68, 84, 124–​25, 130, 133, 155, 227 Alger of Liège (1055–​1131) 168, 172 Algrinus, Chancellor 32, 47 Alvisius of Arras, Bishop (1131–​48) 28–​29, 42 Anacletus, Pope (76–​88) 32, 44, 209, 211, 215 Anastasius iv, Pope (1153–​54) 45 Anchin 30, 36 Anselm of Laon (d. 1117), Bishop 75 Anselm of Lucca (d. 1086), Bishop 169, 171, 173, 186, 189, 196, 211 Appurtenances 72, 77 Aquitaine 32 Arras 28–​29, 30, 32, 35–​38, 40–​42, 46 Ascension Day 115 Asker, Dean of Lund 64–​65, 67 Atto of San Marco, Cardinal priest (1072–​84) 168 Autun 47 Auxerre 29–​33, 42, 45–​46, 49 Beauvais 38–​41, 47–​49 Benedict ix, Pope (1032–​48) 186 Benedict xv, Pope (1914–​22) 227 Benevento 219 Berard of Mâcon (d. 1121), Bishop 78 Bernard of Clairvaux (1090–​1115), Abbot 12, 32, 34, 44–​45, 54 Bernard of Pavia (1150–​1213), Canonist and Bishop 57, 137 Bernold of Constance (1054–​1100) 9, 191, 192

Berthold (Bertram) of St. Gereon 154 See Bertram of Metz, Bishop  Bertram of Metz, Bishop (1180–​1212) 154 Bobbio 199 Bologna 6, 12, 13, 15, 18, 69, 70–​73, 78, 81, 90, 138, 140, 151, 169, 222, 225–​26 bona fides 79 Benzo of Alba (d. ca. 1089), Bishop 164 Bonizo of Sutri (1045–​95), Bishop 19–​20, 160–​161, 169, 191 Borest 87 Bruno of Segni (1047–​1123), Bishop 20, 195–​ 196, 200, 213, 219 Burchard of Worms (950–​1025), Bishop 19, 69, 109, 113, 166, 168–​69, 188, 200, 230 Calixtus ii, Pope (1119–​24) 78 Canossa 186 Canonical Collections  Appendix Concilii Lateranensis 134, 137 Breviarium Extravagantium, Bernard of Pavia 137 Collectio canonum, Anselm of Lucca 9, 173 Collectio Hibernensis 199, 202 Concordantia discordantium canonum (Decretum), Gratian 3, 5–​8, 11, 12, 14, 18, 19, 21, 24, 25, 43, 69–​70, 72, 73, 79, 87, 88, 91, 93, 94, 96, 97, 100, 101, 108–​09, 111–​18, 120, 122, 123, 128, 130, 133, 149, 150–​51, 154, 159, 168, 169, 185, 188, 198, 221, 222, 224, 227 Corpus iuris canonici 57 Decretales (Liber Extra), Pope Gregory ix 4–​5, 52, 55, 57–​60, 126, 155, 156, 222 Decretum, Burchard of Worms 19, 109, 113, 168–​69, 185, 188 Decretum, Ivo of Chartres 5 Diversorum patrum sententiae (Collectio lxxiv titulorum/​Collection in 74 Titles) 4, 20, 169, 171, 173, 196

275

Index Exceptiones Petri 128 Liber de Vita Christiana, Bonizo of Sutri 159–​61, 164, 169–​70, 192 Panormia, Pseudo-​Ivo 5 Tripartita, Ivo of Chartres 5 Capua 197 Carcere Tulliano 48 Celestine ii, Pope (1143–​44) 45–​46 Celestine iii, Pope (1191–​98) 126 Cicero (106–​43 bce) 94, 216 Cistercian 31–​32, 44, 57, 125 Cîteaux 31, 44 Châlons 29, 32–​34, 38, 42, 46, 49 Chapel of the Monte 85 Chartres 5, 9, 25, 31, 33, 41–​42, 47, 55, 69, 75, 81, 160, 170–​71, 191, 198, 223 Chirograph 28, 37, 39, 40 Clement ii, Pope (1046–​47) 186 Clement iii, Pope (1187–​91) 84–​85, 194 Clermont 197 Cluniac 30–​31 Cluny 78, 80–​81 Colbaz Annals 64, 67 Concevreux 37 Concordat of Worms (1122) 73 Contubernium 101 conversi professi 146–​47 copulatio 147 Councils  Ancyra (314) 212 Bourges (1225) 145, 148 Braga (572) 84 Elvira (309) 142 Erfurt (932) 114–​15, 118, 144 Koblenz (922) 110, 114–​15, 118 Melfi (1089) 146, 197 Piacenza (1095) 164 First Lateran (1123) 73–​74, 78, 197 Second Lateran (1139) 19, 140–​41, 146, 148–​51, 153–​57, 226 Third Lateran (1179) 19, 121–​39, 226 Fourth Lateran (1215) 64, 122, 124, 156 Mainz (950) 114–​15, 118, 188 Melfi (1089) 146 Pisa (1135) 33, 148–​49 Reims (1119) 78, 132 Reims (1131) 30, 33, 132 Reims (1148) 33, 132 Rouen (1190) 129, 134–​36

Seligenstadt (1023) 19, 108–​20 Sutri (1046) 185–​86 Szabolcs (1092) 149 Toledo (693) 84 Tribur (895) 110 Lenten Synod (1076) 186 Second Vatican (1965) 142 Westminster (1175) 132–​33, 138 Westminster (1200) 19, 121, 122, 125, 126, 129–​30, 132–​36, 138 Worms (1076) 185, 188 Cremona 164 Cyprian (200–​58), Bishop 209, 215 Daibert of Pisa (d. 1105), Bishop 165 demonstratio 92, 93, 97 De iure canonico tractaturus 153 De ordinando pontifice  185 De Spiritu Sancto Libri Duo 103 Desiderius, abbot of Monte Cassino 213 See Victor iii  Dictatus papae 186, 191 Digest, Justinian 13, 98–​100 Diplomatarium Danicum 58–​59 Directa ad decessorem 143 Distinctio Lex naturalis 94 Distinctiones decretorum 97–​98 Déols 78 Dunstable Annals 127, 131 Eigenkirchen 77 Emma, Abbess of Origny-​Sainte-​Benoîte (1146–​57) 38 English common law 96, 228 Eskil of Lund, Archbishop (1137–​77) 18, 21, 51–​68, 227, 230 Eugenius iii, Pope (1145–​53) 33, 45, 47–​48 Eusebius, Pope (309–​310) 76 Evaristus, Pope (99–​107) 101 Expositio in Pentateuchum 20, 196 Familia 65, 103, 115, 119, 137–​38 Fas 92–​93 Faustus of Riez, Bishop (405–​10) 103–​04 Ferrara 81, 189, 192 Frederick Barbarossa (1122–​90), Holy Roman Emperor, 48 Freising 108, 114, 118–​19

276 Index Froidfontaine 46 Fulco of Reims (d. 900), Bishop 40 Geoffrey of Châlons-​en-​Champagne, Bishop (1131–​43), 29, 42, 46, 49 Geoffrey of Chartres, Bishop (1077–​89) 41 Geoffrey Cou-​de-​Cerf, Bishop of Châlons (1131–​43) 38 Geoffrey FitzPeter (1162–​1213), Earl 127 Gerard Pucelle (1117–​84), Canonist 133, 138 Gervase of Canterbury (1141–​1210), Chronicler 127 Gesta Danorum 18, 21, 51, 54, 61–​62 Gilbert of La Porrée (1085–​1154), Theologian 31 Giles de Braose, Bishop of Hereford (1200–​15) 127 Gloss ad Compilatio i 96 Gratian, Canonist 5–​7, 11–​14, 16–​21, 24, 43, 69–​78, 81–​83, 87, 91–​93, 96, 97, 99, 122, 128, 130, 133, 138, 149–​52, 154, 157, 159–​61, 183, 187, 198–​200, 219, 223, 227, 229 Grain tax 42 Gregory i, Pope (590–​604) 74, 76, 186, 188, 193 Gregory ix, Pope (1227–​141) 4–​5 Gregory v, Pope (996–​99) 76 Gregory vii, Pope (1073–​85) 78, 144–​45, 163, 185–​91, 194, 197, 210, 218, 220 Guy of Limoges, Bishop (1076–​86) 78 Hadrian iv, Pope 83 See Adrian iv  Haimo of Bazoches, Bishop of Châlons-​sur-​ Marne (1152–​53) 34 Henri de France, Archbishop of Reims (1162–​75) 1 Henry ii, King of England 53 Henry ii (973–​1024), Holy Roman Emperor 124 Henry iii (1017–​56), Holy Roman Emperor 198 Henry iv (1050–​1106), Holy Roman Emperor 163, 185, 187, 189, 191, 194, 218 Henry of Ravenna, Archbishop (1051–​72) 185 Henry of Susa/​Hostiensis (1200–​71) 156 Himerius of Tarragona, Bishop (fl. 385) 143 Honorius of Kent (d. 1210), Canonist 153–​54

Hospital of San Michel 77 Hubert Walter (1160–​1205), Archbishop of Canterbury 121, 126 Hugh, Abbot of Saint-​Barthélemy of Noyon (fl. 1177–​84) 85–​86 Hugh, Count of Roucy 37 Hugh of Pontigny, Abbot 42 Hugh iii of Mâcon, Bishop of Auxerre (1137–​51) 29 Humbald of Lyons, Archbishop (1118–​28) 78 Humbert of Silva-​Candida (1015–​61), Cardinal 185 Imar of Tusculum (d. 1161) 48 Immoveable Property 71 impedimentum ordinis 155–​56 in loco papae 28 Innocent i, Pope (401–​17) 182, 190 Innocent ii, Pope (1130–​43) 30–​32, 34, 41, 43–​45, 48, 132, 140, 148 Innocent iii, Pope (1198–​16) 3, 14, 59, 86, 124 Irmingard of Hammerstein (d. 1042) 111–​12 Iurisperiti 226 iuris precepta 104 ius commune 24 ius civile 18, 99 ius divinum 99 ius gentium 99, 105 ius providendi et consulendi, et sacerdotem inveniendi 76 iura spiritualia 80 ius vendendi, donandi vel utendi 77 Ivo of Chartres (1040–​1115), Bishop 69, 160, 170–​71, 191, 198, 223 Ivo of San Lorenzo 25 John de Gray 127 John of Salisbury (1120–​80), Bishop 56 John of Tynemouth (d. 1221), Canonist 138 John i, Pope (523–​26) 76 John xii, Pope (955–​64) 176 Josselin of Soissons, Bishop (1126–​52) 29, 31, 37, 39, 42 Justiciar 96, 127 Justinian i (527–​65), Byzantine Emperor, 14, 74, 98–​99, 105, 191 Knights Hospitaller 86–​87, 129–​30 Knights Templar 86–​87, 129–​30

Index Lachmannian Method 228 Laurentius Hispanus (1180–​1248), Canonist 90 Lay Stewards 76 Lectura ad Institutiones 100, 104–​06 lege fori 99 lege poli 99 Leo i, Pope (440–​61) 176, 192 Lérins 103 lex posita celitus 99 Libelli de lite 185, 187, 191 Liber ad Amicum 163–​65, 175 Liber contra multiplices et varios errores 98 Liber gratissimus 185 Liber pancrisis 75 Liber pauperum 98, 100, 104 Liber Pontificalis 175 Libertas 53, 93–​94, 105–​07 liberum arbitrium 96 licitum 92, 94 Licques 30 legitimus ordo 181 Litigate 35, 45, 227 London (inc. Westminster) 19, 122–​26, 128–​30, 132–​36, 138 Lothar ii/​i ii (835–​69), Holy Roman Emperor 44 Louis vii (1120–​80), King of France 1, 32–​33, 46–​47 Lucius ii, Pope (1144–​45) 47 Lucius iii, Pope (1181–​85) 45, 84–​85 Maiden Bradley, Leper colony at 135 Mainz 1, 19, 109, 114–​15, 118, 188 Mardick 38 Master Ralph of Sarre, dean in Kent (1176–​95/​96) 56 Matilda (1046–​1115), Countess 77, 166, 190, 193 matrimonium non esse censemus 147 Mercedes 80 Merton Abbey 96 Migaráno 77 Milo of Thérouanne, Bishop (1131–​58) 29 minaticum  See Grain Tax  Modena 81 Monte Cassino 78, 196–​97, 199, 213 Munich 108–​09, 114–​15, 118–​20

277 Natural Rights 89–​92, 95–​98, 107 Natural Law 18, 89–​101, 103–​07, 155, 216, 225 naturalis ratio 101 Nicolas ii, Pope (1059–​61) 145 Nicolaus de Tudeschis (1386–​1445) 156 Nogent-​sous-​Coucy 37 Notre-​Dame de Blois 86 Novalia 83 Oblation 72, 74–​75, 77, 80, 83–​84 Octavian 60 See Victor iv  Odo ii of Beauvais (d. 1144), Bishop 39 Odo of Dover (fl. 1170) 90 Ordinaries 42 Origen (184/​5–​253/​4) 97, 200 Origny 38, 40, 41, 43 Orléans 70, 81 Otto of San Nicola 48 Otto of Sully, Bishop of Paris (1196–​1208) 86 Panormitanus 156 See Nicolaus de Tudeschis  Paleae 122 Paris 12, 25, 30–​31, 34, 46–​47, 49, 57–​58, 69–​70, 85–​86, 126, 128, 134, 144, 151, 169 Paschal ii, Pope (1099–​1118) 191, 196, 197 Pataria 144, 163 Paucapalea (fl. 1150s) 151 pater familias 103 pensiones 80 Pentateuch 197, 199–​201, 211–​15, 219 Permissive Natural Rights 91, 92, 98 persona nomen iuris est 103 Peter Abelard (1079–​1142) 31 Peter of Celle (1115–​83), Bishop 55, 56, 66, 68 Peter Damian (1007–​72), Cardinal 185 Pietro Gasparri (1852–​1934), Cardinal 156 plena potestatis 102 plurima placita 38 Pomerania 64 Pontigny 31, 42 Pseudo-​Anacletus 209 Pseudo-​Fabian 211 Pseudo-​Isidorian 76, 188, 223 Praesumptio 73 Premonstratensian 31, 44 Prémontré 32

278 Index Prescription 18, 71–​74, 79–​82, 85, 87, 229 praescriptio longi temporis 71, 83 privilegium longa consuetudine 74 primitiarum 80 Quadrigesima 117 Ralph of Diceto (d. 1202), Chronicler 132 Raoul of Lagny (d. 1066), Abbot 46 Raoul of Laon (d. 1131) 31 Raoul of Vermandois (d. 1152), Count 33 Raymond of Peñafort (1175–​1275), Friar 5, 126, 155 Regino of Prüm (d. 915), Bishop 109 Reims 1, 9, 17, 23–​50, 55–​57, 78, 86, 123, 125, 132 Ricardus Anglicus (1161–​1242), Canonist 90, 95, 138, 224 Richard of Dover (d. 1184), Archbishop of Canterbury 132 rigor iustitiae 33 Risende of Faremoutiers, Abbess (1137–​46) 46 Robert i of Arras, Bishop (1115–​31) 35 Roger of Howden (d. 1201), Chronicler 127, 133 Rome 5, 18, 24, 26, 29, 34–​35, 44–​50, 53, 112, 119, 122, 125, 131, 140, 168, 175–​76, 188, 191, 196, 203, 209–​10, 215, 221–​23, 226–​27, 230 Rouen 30, 33–​34, 122, 125–​26, 129, 134–​36, 144, 223, 227 Rufinus, Canonist (fl. 1150–​91) 90–​94, 97–​99, 102, 106, 152–​54, 157 sacerdotes finiunto 216 Saint-​Barthélemy of Noyon 85 Saint-​Bertin 38, 40, 41, 43 Saint-​Denis 33, 37, 46, 47, 86 Saint-​Gall 7–​8, 16, 70, 199 Saint-​Germain-​des-​Prés 86 Saint-​Jean d’Amiens 30, 37 Saint-​Josse-​aux-​Bois 30 Saint-​Martin-​des-​Champs 46 Saint-​Médard, Soissons 31, 85 Saint-​Pry de Béthune 36 Saint-​Quentin 38 Saint-​Remi 41–​43, 47, 55–​57 Saint-​Symphorien of Beauvais 38

Saint-​Thierry of Reims 27, 31 Saint-​Vaast of Arras (Marchiennes) 32 Saint-​Vincent of Laon 37 Saint-​Vincent of Senlis 86 Saint-​Victor 46, 57, 85 Sainte-​Geneviève 57, 70, 84–​87 Samson of Reims (d. 1161), Bishop 30–​31, 37 San-​Bartholomew of Musiáno 77 San Niccoló 77 Santa Costanza 210 Saxo Grammaticus (1160–​1220) 51 Scania 61, 68 Scarpe River 36 Silvester iii (d. 1045), Pope/​Anti-​Pope 86 Simon of Bisignano, Canonist 90, 154 Simon of Sywell (d. 1205), Canonist 138 Siponto 219 Siricius, Pope (384–​99) 143 sollers ingenium 163 Stephen of Tournai (d. 1203), Canonist 18, 69–​72, 74, 79, 81–​87, 90, 226 Subjective Rights 18, 89–​92, 94, 95, 97, 98, 106 Suffragan 29, 47 Suger of Saint-​Denis (1081–​1151), Abbot 32, 33, 37, 46, 47 sui iuris 103 Suidger of Bamberg, Bishop 186 See Pope Clement ii  Summa  Summa Coloniensis/​Summa ‘Elegantius in iure divino’ 154 Summa ‘Est ius naturale’ 90 Summa ‘Imperatorie maiestate’ 90 Summa ‘In nomine’ 90 Summa Lipsiensis/​Summa ‘Omnis qui iuste iudicat’ 153 Summa Parisiensis 151 Summa ‘Permissio quedam’ 94 Summa quaestionum 96–​98 Summa ‘Quoniam in omnibus’ 151 Summa ‘Tractaturus Magister’ 90 sum cuique tribuere 104 Sylvester i, Pope (314–​35) 214, 215 Theoderic of Verdu (1045–​1105), Count 189 Theodosius i (347–​95), Emperor 33 Thibaud of Champagne (d. 1201), Count 33 Thibaud of Paris, Bishop (1143–​58) 46

279

Index Thibaud Brito of Amiens, Bishop (1144–​64) 30 Thomas Becket (1119–​70), Archbishop of Canterbury 52, 53 Tithe 71–​72, 74–​83, 85, 86, 87, 125, 129, 130, 140 titulus iustus 79 Tractatus de assumpto homine 98, 103 Tractaturus Magister 90 Ulger (d. 1123), Bishop of Angers 47 Urban ii, Pope (1088–​99) 146, 165, 166, 186, 188, 196 Uscapio 71 Vacarius (1120–​1200), Lawyer 18, 20, 98–​104, 106, 107, 138, 225 Valdemar (1131–​82), King of Denmark 53, 54, 65, 66 Valdemarian Dynasty 52, 62 Vallombrosan Order 131–​32 Vézelay 47 Victor iii, Pope (1026–​87) 196, 213 Victor iv, Anti-​Pope (1159–​64) 48, 53, 60, 66

Victor ii of Bologna, Bishop (1108–​29) 78 Vincentius Hispanus (d. 1248), Canonist 90 Vincoli 48 Vitry-​en-​Perthois 33 Votum consummatum 152 votum simplex 150, 152, 154 votum solemne 150, 152, 154 Waldensian 125 Walter of Coutances (d. 1207), Archbishop 129, 136 Walter of Mortagne (d. 1174) 16, 40 Welf iv (d. 1101), Duke of Bavaria 166 William of Longchamps (d. 1197), Bishop 1 William the Conqueror (1066–​87), King of England 225 William x of Aquitaine (1099–​1137), Duke 32 William ‘of the White Hands’ (1135–​1202), Archbishop 56, 86 William of San Pietro 48 Yconomos 76 See Lay Stewards