Ibn Khaldun: An Essay in Reinterpretation 963924158X, 9789639241589

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CEU Medievalia ISSN 1587-6470

Series Technical Editor: Annabella Pál Volumes 1, 2 and 6 are out of print Vol. 3. Oral History of the Middle Ages. The Spoken Word in Context Medium Aevum Quotidianum Sonderband XII. Gerhard Jaritz and Michael Richter, eds. 2001 978-963-9241-58-9 cloth, 978-963-9241-50-3 paperback

Violence and the Medieval Clergy

Vol. 4. Ibn Khaldun: An Essay in Reinterpretation Al-Azmeh, A., 2003 978-963-9241-58-9 cloth, 978-963-9241-50-3 paperback Vol. 5. People and Nature in Historical Perspective Laszlovszky / Szabó, 2003 978-963-9241-86-2 paperback Vol. 6. Latin Classics in Medieval Hungary: Eleventh century Nemerkényi, E., 2004 978-963-7326-04-2 paperback Vol. 9. Catalogue of the Slavonic Cyrillic Manuscripts of the National Széchényi Library Cleminson / Moussakova / Voutova, 2007 978-963-7326-97-4 cloth, 978-963-7326-82-0 paperback Vol. 10. The Apostolic Penitentiary in Local Contexts Jaritz / Jørgensen / Salonen, 2007 978-963-7326-83-7 paperback Vol. 11. The Edges of the Medieval World Jaritz / Kreem, 2009 978-963-9776-45-6 paperback Vol. 13. The Hospitallers in the Medieval Kingdom of Hungary c. 1150-1387 Hunyadi, 2010 978-963-9662-44-5 paperback ForthcomiNg: ???

Gerhard Jaritz (Budapest/Krems)

Edited by Gerhard Jaritz, Ana Marinković

Series Editor: József Laszlovszky

The studies in this volume concentrate on a complex set of socio‐cultural phenomena, the cult of saints, in a variety of regions from Egypt to Poland, with a focus on Italy and Central Europe. The subjects of the contributions range in time from the fourth until the eighteenth century. The diversity of approaches adopted by the contributors—from literary analysis and historical anthropology to archaeology and art history—represents that open and multidisciplinary historical research that characterizes the work of Gábor Klaniczay to whom these essays are dedicated.

Editors Ana Marinković (Zagreb)

Edited by

Gerhard Jaritz Ana Marinković

Contributors Tba.

Violence and the Medieval Clergy

Central European University Department of Medieval Studies http://medievalstudies.ceu.hu Central European University Press Budapest-New York http://www.ceupress.com ISBN 9789639776944

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M E DI E VA L I A 9 789639 776944

VIOLENCE AND THE MEDIEVAL CLERGY

CEU MEDIEVALIA 16 = MEDIUM AEVUM QUOTIDIANUM Sonderband 23 (2010) Series Editor: József Laszlovszky Series Technical Editor: Annabella Pál

Violence and the Medieval Clergy Edited by Gerhard Jaritz and Ana Marinković

Medium Aevum Quotidianum Krems/Donau & Central European University Department of Medieval Studies & Central European University Press Budapest · New York Budapest, 2011

© Editors and Contributors 2010 1st edition Technical Editor: Gerhard Jaritz Copy Editor: Judith Rasson Cover design for the series by Péter Tóth Cover Illustration: Tree of Vices (detail), third quarter 13th century, Austria. Vienna, Austrian National Library, cod. 12538, fol. 13r Joint publication by: Medium Aevum Quotidianum Körnermarkt 13, 3500 Krems, Austria Telephone (+43-2732) 84793, Fax (+43-2732) 64793-1 Central European University Department of Medieval Studies Nádor u. 9, H-1051 Budapest, Hungary Telephone: (+36-1) 327-3051, Fax: (+36-1) 327-3055 E-mail: [email protected], Website: http://medstud.ceu.hu Central European University Press An imprint of the Central European University Share Company Nádor u. 11, H-1051 Budapest, Hungary Telephone: (+36-1) 327-3138, Fax: (+36-1) 327-3183 E-mail: [email protected], Website: http://www.ceupress.com 400 West 59th Street, New York NY 10019, USA Telephone (+1-212) 547-6932, Fax: (+1-646) 557-2416 E-mail: [email protected] All rights reserved. No part of this publication may be reproduced, stored in retrieval system, or transmitted, in any form or by any means, without the permission of the Publishers. ISSN 1587-6470 CEU MEDIEVALIA ISBN 978-615-5053-26-9 Library of Congress Cataloging-in-Publication Data Violence and the Medieval Clergy / edited by Gerhard Jaritz, Ana Marinković – 1st ed. p. cm. -- (CEU medievalia ; 16) Papers from the workshop "Coping with violence, and the medieval clergy (from the local settlement of dispute to approaching the Papal Penitentiary)," held at Dubrovnik in 2008. Includes bibliographical references and index. ISBN 978-6155053269 (pbk.) 1. Violencee--Religious aspects--Catholic Church--History--To 1500--Congresses. 2. Catholic Church— Europe--Clergy--History--To 1500--Congresses. 3. Church history--Middle Ages, 600-1500--Congresses. I. Jaritz, Gerhard, 1949- II. Marinkovic, Ana. BX1069.5.V56 2011 261.8'3--dc22 2010052375 Printed in Hungary by Akaprint

TABLE OF CONTENTS

Preface …………………………………………………..…............................................. 1 Peter Clarke, The Medieval Clergy and Violence: An Historiographical Introduction …. 3 Kirsi Salonen, The Apostolic Penitentiary and Violence in the Roman Curia ............... 17 Torstein Jørgensen, “Killings, Unfortunately, Take Place More Often Here than Anywhere Else:” Civil and Clerical Homicide in Late Medieval Norway ....... 29 Etleva Lala, Violence and the Clergy in Late Medieval Albania: with and without the Penitentiary ……………………………………….… 47 Gerhard Jaritz, The Bread-Knife ….………….……..……………..…..……………. 55 Gordan Ravančić, Sacred Space, Violence and Public Law in the Cloisters of the Franciscan and Dominican Houses of Dubrovnik ..………..………. 67 Nella Lonza, The Priest Barbius and His Crime before the State and Church Authorities of Medieval Dubrovnik ……….……..……………………….... 77 List of Contributors………………………………………………………………..... 91 Index ………………………………………………………………..……………… 93

PREFACE

Studies of the Apostolic Penitentiary and its role and function for all strata of late medieval society have become an important field of research at the international level. The requests of Christians for grace to be granted by the papal curia offer information about a variety of problems and needs that confronted both clerics and laypeople and made petitions to the pope necessary or, at least, advisable. Since 2001, the Department of Medieval Studies of Central European University has been concentrating on comparative research in the East Central European data of the Penitentiary Registers. This has led to intensive cooperation with other scholars in the field, to a number of international meetings and the publication of their results.1 The most recent of these workshops was held in Dubrovnik in 2008 and dealt with a research question for which the Penitentiary registers contain rich material: “Coping with Violence, and the Medieval Clergy (from the Local Settlement of Dispute to Approaching the Apostolic Penitentiary).” In recent decades research into violence in the Middle Ages has seen a particular boom. In a large number of studies historians discovered that violence was omnipresent in medieval society and affected all areas of life and the members of all social strata. Although one has to be careful with such generalizations, it can be stated that the surviving sources deal regularly with issues of violent actions, signs and results of violence, violent people and coping with violence. Members of the clergy played an important role in recording such evidence – as writers about violence and critics of violence, but also as perpetrators, victims, and witnesses. However, systematic analyses of the patterns of behaviour and the different functions and actions of clerics on these issues have not yet been realized often in a context-bound and comparative way. The Dubrovnik workshop aimed to contribute towards changing this situation and offer a forum to discuss questions about the various roles of medieval clerics in the attempts 1

The results of meetings at Bergen (2003) and Budapest (2004) were published in Gerhard Jaritz, Torstein Jørgensen and Kirsi Salonen (ed.), The Long Arm of Papal Authority. Late Medieval Christian Peripheries and Their Communication with the Holy See, CEU Medievalia 8 (Budapest and New York: Central European University Press, 2005); selected papers of a workshop at Rome (2005) may be found in iidem (ed.), ... et usque ad ultimum terrae. The Apostolic Penitentiary in Local Contexts, CEU Medievalia 10 (Budapest and New York: Central European University Press, 2007).

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PREFACE

and processes designed to cope with violence. Particular emphasis was put on the function of the Apostolic Penitentiary and its decisions in this context. This volume contains selected contributions from the meeting. In his introductory paper, Peter Clarke offers an overview of the state of the art of research into the connection of the clergy and violence in the Middle Ages. Kirsi Salonen concentrates on violence at the Roman curia and its reflection in the Penitentiary records. Torstein Jørgensen and Etleva Lala deal with violence and the clergy in two peripheral areas of medieval Western Christianity, namely, Norway and Albania, and also include Penitentiary evidence in their analysis. Gerhard Jaritz studies the role of one important object in the violence-bound argumentation of the supplicants to the Penitentiary: the short bread-knife that was allowed to be carried by everyone and did not count as a weapon, but seems to have been used regularly as such. Gordan Ravančić and Nella Lonza offer analyses of problems of violence occurring in the clerical space of medieval Dubrovnik. November, 2011

Gerhard Jaritz (Budapest and Krems) Ana Marinković (Budapest and Zagreb)

THE MEDIEVAL CLERGY AND VIOLENCE: AN HISTORIOGRAPHICAL INTRODUCTION

Peter Clarke

It is a commonplace that the Middle Ages were violent. Life then was demonstrably ‘nasty, brutish and short’. In medieval society war was a frequent event, and violence, or the threat of it, was often used to resolve disputes. The period was allegedly violent from its inception. Violence accompanied the transition from ancient to medieval society, as barbarians invaded the declining Western Roman Empire. Violence also arguably played a key role in the social and political formation of the medieval West. In the central Middle Ages weak central power and untrammeled violence arguably forced the vulnerable to seek protection from and accept subjection to an emerging military aristocracy. The social dominance of this warrior elite was bolstered, according to Marc Bloch, by the violence of external aggressors, the Arab, Magyar and Viking raiders who began attacking Europe in the ninth century. In the tripartite model of medieval society this noble class or ordo were indeed the ‘bellatores’, those who made war.1 Accordingly secular authority in medieval society depended on violence. Kings demonstrated their power by limiting and controling violence among their subjects, a responsibility implicit in the idea of the king’s peace. One of their main functions was war-leader, a role depicted on medieval coins and seals showing kings as mounted fighting-men. Successful medieval rulers were expected to extend their realms by conquest and reward their military followers with the spoils of war: booty and land. Hence lay violence was normal in medieval society and virtually institutionalised at its upper levels. But what of clerical violence, the theme of this volume? In principle this might seem a contradiction in terms. If clergy were supposed to be teachers and models of Christian living, surely they were to avoid and oppose violence? The Ten Commandments condemned killing. And Christ taught his followers to love their ene1

Marc Bloch, Feudal Society, trans. L. A. Manyon, 2 vols. (London: Routledge & Kegan 1962), 1, 39-42; cf. François-Louis Ganshof, Feudalism (3rd edition; London: Longmans, 1964), esp. ch. 1. On the medieval tripartite model see Georges Duby, The Three Orders: Feudal Society Imagined, trans. A. Goldhammer (Chicago: Chicago University Press, 1980).

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mies and shun violence even in self-defence, turning ‘the other cheek’ to attackers. Certainly early Christians had observed these pacifistic principles often accepting martyrdom at the hands of their Roman and other persecutors. This non-resistance to the Roman state was also consistent with Christ’s and St Paul’s teachings to obey earthly authority. But things were to change in the fourth century when Christianity was officially tolerated and even became the state religion of the Roman Empire. How then could its Christian subjects reconcile obedience with non-violence when emperors fought wars and called on them to serve in these? Clergy, notably bishops as state ‘officials’, responded to this dilemma by justifying warfare in certain situations. They could cite biblical authorities in support of this. Despite its injunctions against violence, the Bible was actually ambivalent on the issue of war. The Gospels included Christ’s ambiguous statements that he came to bring not peace but the sword and to turn brother against brother. More explicitly the Old Testament contained numerous examples of the ancient Israelites waging war with God’s approval and even at His express command against His enemies, especially the stories of the Jewish military heroes Joshua and Judas Maccabeus.2 St Ambrose (d. 397), bishop of Milan, quoted such examples to justify Christian warfare upon enemies of the faith. This legitimised both fighting pagans and persecution of heretics, as the Roman Church and State increasingly sought to enforce religious orthodoxy. Patristic thought combined this Christian idea of ‘holy war’ with the pre-Christian concept of ‘just war’. The ancient Greek philospher Aristotle had ‘coined’ the latter term; the ancient Roman writer Cicero subsequently defined it as a war to correct an injustice done by the enemy. This idea expressly influenced St Augustine (d. 430), bishop of Hippo, who likewise argued that a just war avenged injuries. For him this included redressing grievances, and thus warfare was justified by the enemy’s guilt. Indeed Augustine distinguished that war might be a consequence of and a remedy for sin. In the latter case war was justified since it punished sin, but when it arose from sheer love of violence, it was evil. Hence for Augustine right intention justified war, and like Ambrose he cited Old Testament examples as illustrations. This viewpoint legitimised not only defensive wars, retaliating for unprovoked attacks, but also offensive ones, notably against the Church’s enemies. He also argued that only a legitimate authority might wage a just war, which meant that only God or the princeps (emperor) might order it. Effectively he gave the state a monopoly on legitimate violence, which might be exercised only by soldiers in its service. Social reasons explain his thinking, for Augustine was born into the Roman upper classes, but there were also religious grounds. His doctrine implied that ‘private’ violence was wrong even if it were carried out in self-defence, which was essentially Christ’s teaching. ‘Pub2

See Frederick H. Russell, The Just War in the Middle Ages (Cambridge: Cambridge University Press, 1975), esp. ch. 1. Cf. Carl Erdmann, The Origin of the Idea of Crusade, trans. M. W. Baldwin and W. Goffart (Princeton: Princeton University Press, 1977).

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lic’ warfare also entailed Christian obedience to the public authority waging it; Augustine argued that soldiers had a duty to fight for the state even in unjust wars rather than disobey orders however sinful. Later writers, notably the twelfth-century canonist Gratian, would develop upon Augustine’s views, but he established the core of the Church’s just war theory. Though it thereby excused lay participation in war, the Church remained opposed to clerical involvement in violence. It forbade clergy to bear arms and fight in wars. Some rulings of the Early Church even banned ordination of former soldiers. The Roman state reflected this position, for emperors exempted clergy from military service. Ecclesiastical authorities confirmed this ban in the early Middle Ages. Pope Nicholas I (85867) held that clergy who killed in war were suspended from their orders and could not be promoted further, even if acting in self-defence against infidel attack. Hence clerical participation in war, even if fought in a just cause, was completely prohibited. One of the few exceptions, sanctioned at the synod of Ratisbon (743), was that clergy might accompany armies for spiritual support, praying before battle to invoke saintly protection and hearing the confessions of troops, like military chaplains.3 However many clergy, especially prelates, violated such restrictions in the early Middle Ages and thereby occasioned their frequent repetition. Early medieval bishops and abbots normally came from the military aristocracy and were often obligated to raise troops from their lands to serve their feudal superiors. Some prelates even led such retinues into battle and fought with them. German bishops were particularly noted for such belligerence by the twelfth century.4 As Timothy Reuter has pointed out, they could often summon larger military contingents than lay magnates and a few even had successful military careers, notably Archbishop Christian of Mainz (d. 1183) who commanded imperial troops in Italy for twenty years. Nevertheless such warlike prelates often incurred the criticism of colleagues for setting a bad example to other clergy and society. Indeed clerical hostility to warfare had been growing since the ninth century as the clergy had increasingly become its victims. Initially they were targeted by external attackers, notably the Vikings who raided monasteries and churches. Admittedly local

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See Ferminio Poggiaspalla, “La chiesa e la partecipazione dei chierici alla guerra nella legislazione conciliare fino alla Decretali di Gregorio IX,” Ephemerides iuris canonici 15 (1959): 140-53; James A. Brundage, “Crusades, clerics and violence: reflections on a canonical theme,” The Experience of Crusading, I: Western Approaches, ed. Marcus Bull and Norman Housley (Cambridge: Cambridge University Press, 2003), 14756. See Timothy Reuter, “Episcopi cum sua militia: The Prelate as Warrior in the Early Staufer Era,” in Warriors and Churchmen in the High Middle Ages. Essays Presented to Karl Leyser, ed. Timothy Reuter (London: Hambledon Press, 1992), 79-94; cf. notably Friedrich Prinz, Klerus und Krieg im frühen Mittelalter: Untersuchungen zur Rolle der Kirche beim Aufbau der Königsherrschaft (Stuttgart: Anton Hiersemann, 1971); Benjamin Arnold, “German Bishops and their Military Retinues in the Medieval Empire,” German History 7 (1989): 161-83.

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lay aristocrats were meant to defend them against such incursions, but as this threat from outside waned, increasingly these nobles turned their martial violence inwards against each other as they competed for territory. Clergy were often ‘caught in the crossfire’ and even became subjected to the violence of their supposed lay ‘protectors’. Royal authority was too weak in France and Germany by the tenth century to restrain such violence, so power fragmented into the hands of these local warlords, who marked their regional dominance by building castles. The situation was particularly bad in France, and clergy reacted against this ‘private’ warfare above all there. Benedictine monks in northern France, Lester Little argued, fought back with spiritual weapons, proclaiming ritual curses against their attackers.5 The insecurity of French clergy also famously gave rise to the ‘Peace of God’ movement. French bishops held the first ‘peace councils’ in the last quarter of the tenth century.6 In 975 Bishop Guy of Le Puy called such a meeting to deal with those pillaging churches in his diocese. Guy told the armed men assembled there to swear an oath to keep the peace or face excommunication, a threat backed by the presence of his nephew’s troops. He and other bishops continued to hold such councils but depended less on such secular support and more on popular pressure to extract oaths from fighting men to observe the Peace of God. Relics of saints were used to draw larger crowds to these later councils, which declared curses in the names of these saints against peacebreakers, paralleling Benedictine practice. The peace councils particularly sought to protect vulnerable groups, including the ‘poor’ but above all the clergy themselves. They issued decrees against sacrilegious plunder of churches and assaults on clergy as well as theft of peasant property. Few councils met immediately after A.D. 1000, but the peace movement revived and changed in the 1020s. It expanded beyond its original heartlands of Aquitaine and Burgundy into other French regions and even northern Spain. The populace played a lesser role in it; secular rulers became its most prominent supporters as the power of kings and higher nobility rose again. In 1024, for example, King Robert of France and German Emperor Henry III met on the borders of their lands to declare a universal peace. Most significantly of all, councils now proclaimed the ‘Truce of God’ rather than the Peace. The Peace had aimed to protect certain groups at all times but the Truce sought to ban all violence at certain times, notably Lent and other periods of religious significance. It also went further than the Peace in suggesting that the shedding of any Christian blood, not just clerical, was sinful, as the council of Narbonne decreed in

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Lester K. Little, Benedictine Maledictions: liturgical cursing in Romanesque France (Ithaca: Cornell University Press, 1993). See The Peace of God: Social Violence and Religious Response in France around the Year 1000, ed. Thomas Head and Richard Landes (Ithaca: Cornell University Press, 1992); Thomas Head, “The Development of the Peace of God in Aquitaine (970-1005),” Speculum 74 (1999): 656-86.

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1054: ‘No Christian should kill another Christian, for whoever kills a Christian doubtless sheds the blood of Christ’. Such prohibitions applied to clerical as well as lay violence, since the peace councils renewed the traditional ban on clergy committing bloodshed, even prelates. Bishop Fulbert of Chartres (d. 1028) echoed this sentiment in a letter berating so-called ‘bishops’ who were more skilled in warfare than lay princes and were not ashamed to disturb the peace of churches or shed the blood of Christians.7 Some conciliar canons had even declared that such clergy bearing arms forfeited their protection under the Peace of God. Such views acquired greater significance in the context of the eleventhcentury Church reform movement. It aimed to remove clergy from involvement in secular affairs (in keeping with St Paul’s advice to Timothy) and release them from lay subjection, including feudal obligations. It also sought to direct lay violence towards ends approved by ecclesiastical authority. This had long been understood to mean fighting the Church’s enemies, and indeed those promoting the Truce of God considered warfare justified in the defence of Christendom. This thinking achieved its highest expression in the crusading movement. At the council of Clermont in 1095 Pope Urban II called on Christians to help their brethren in the east resist Muslim attack and probably proclaimed the Truce of God in the West. This ‘First Crusade’ exported the violence of the milites away from Europe towards a ‘holy’ goal. Declarations of universal peace indeed accompanied subsequent papal calls for crusades. But, in line with traditional doctrine, clergy were not meant to fight in these ‘holy’ wars. A canon of the council of Clermont confirmed the prohibition on clergy bearing arms. Urban’s sermon at Clermont apparently sought to restrain them from joining the crusader army. Certainly in a letter of 1096 to Vallombrosa he forbade priests and monks to go on crusade without the permission of their ecclesiastical superiors. Even with this consent they might only take part ‘in accordance with the discipline of the holy canons’, i.e. they might not fight but only provide spiritual support. Nevertheless crusaders almost became ‘honorary clergy’, receiving certain clerical privileges and adopting some aspects of monastic asceticism. More significantly the military orders emerged in the twelfth century to defend the crusader states. As Brundage has observed, their members were like monks in that they were professed, took vows and enjoyed papal immunities, and closely resembled lay brethren in other orders, but they differed from other religious since most bore arms and used them in their religious vocation.8 Canonists, therefore, had to use considerable ingenuity to get around the canonical ban on clergy carrying weapons and fighting with them. They did 7

8

See Poggiaspalla, “La chiesa e la partecipazione dei chierici alla guerra,” 145; Brundage, “Crusades, clerics and violence,” 149. Ibidem 152-6.

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so by devising a new legal category of ‘ecclesiastical persons’ to accommodate both clergy and military orders. Canonists also excused clerical participation in warfare in certain circumstances by the late twelfth century.9 Rufinus (c. 1164) held that clergy might use arms in extreme necessity defensively or against infidels on a superior’s order. Huguccio (c. 1188) agreed but specified that clergy might use only defensive arms in these instances, i.e. armour, not offensive weapons. Thirteenth-century canonists accepted this qualified position, limiting clergy to their traditional role of encouraging those fighting ‘just’ and ‘holy’ wars, except that they might wield offensive weapons in unavoidable personal self-defence, not military action. Pope Clement V (1305-14) subsequently confirmed this exception in canon law declaring that clergy committing such defensive bloodshed no longer incurred ‘irregularity’, an impediment to receiving and exercising holy orders.10 So far we have focussed on clerical attitudes to and the legitimacy of clerical involvement in ‘public’ violence, or warfare. Admittedly historians have termed wars among local magnates ‘private’, and even public authorities, i.e. princes, might wage wars for ‘private’ ends, rather than to serve the ‘common good’, which the theologian Thomas Aquinas (d. 1274) saw as the proper end of a just war. Indeed Guy Halsall has remarked on the difficulty in differentiating between ‘public’ and ‘private’ violence in the early Middle Ages and the equally problematic and related distinction of ‘legitimate’ and ‘illegitimate’ violence.11 ‘Illegitimate’ or criminal violence has been defined as ‘private’ violence, and we also need to explore violent crime in relation to medieval clergy since the historiography is extensive. Firstly clergy were often victims of ‘private’ violence in this sense. There are many medieval accounts of clergy being murdered; consequently some were even canonised as martyrs, most notably Thomas Becket, Archbishop of Canterbury (d. 1170).12 The papacy sought to protect clergy from such personal violence. Pope Innocent II made the best-known attempt by issuing the canon ‘Si quis suadente’ at the Second Lateran Council (1139).13 It ruled that anyone who laid violent hands on clergy or monks incurred automatic excommunication and might obtain absolution only in person at the papal curia. This ruling entered Gratian’s Decretum (c. 1140) and so became 9 10

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Poggiaspalla, “La chiesa e la partecipazione dei chierici alla guerra,” 149-52; Russell, Just War, 135. He revoked a ruling of Pope Innocent III (1198-1216) that recognised the Roman law principle of selfdefence but still insisted that such clergy incurred irregularity. Guy Halsall, “Violence and society in the early medieval west: an introductory survey,” in Violence and society in the early medieval West, ed. Guy Halsall (Woodbridge: Boydell Press, 1998), 1-45, at 7-16. For a recent fine biography of the archbishop see Anne Duggan, Thomas Becket (London: Arnold, 2004). More generally on the murder of bishops see Bischofsmord im Mittelalter, ed. Natalie Fryde and Dirk Reitz (Göttingen: Vandenhoeck & Ruprecht, 2003). R. H. Helmholz, ‘“Si quis suadente’ (C.17 q.4 c.29): Theory and practice,” in Proceedings of the Seventh International Congress of Medieval Canon Law, ed. Peter Linehan, Monumenta Iuris Canonici, Series C, 8 (Vatican City: Biblioteca Apostolica Vaticana, 1988), 425-38.

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part of the common law of the Western Church. It emphasized that assaults on clergy were serious crimes by reserving them to papal absolution; this required the assailants to make penitential pilgrimages to Rome. Admittedly in practice local bishops might absolve them for minor assaults and in other circumstances, at least in English church courts, but the principle remained. It reflected the idea of the reform movement that clergy were a separate, privileged caste within society, and hence worthy of special respect; their cloth was meant to protect them, even if it seldom did. Numerous petitions from lay assailants of clergy, seeking papal absolution, were recorded in the medieval registers of the Apostolic Penitentiary.14 The protection which the canon ‘Si quis suadente’ afforded became known as the privilegium canonis. And by the twelfth century clergy claimed another privilege, privilegium fori.15 This also concerned crime, including murder and assault, but in cases where clergy were allegedly perpetrators rather than victims. It meant immunity from lay justice, so that clergy accused of crimes might not be tried or punished by secular courts. It was related to privilegium canonis in that the latter technically forbade officials of secular justice from laying hands on clergy to arrest them, and certainly from inflicting physical penalties on them, including execution and mutilation. In the context of the reform movement privilegium fori also reinforced the notion of ecclesiastical liberty from lay control and the clergy’s special social status. Nevertheless it inconveniently suggested that some clergy fell short of the reformers’ ideals, committing not only canonical crimes, notably simony, but also serious felonies like laymen, notably murder. Ideally clergy were not supposed to participate in lay affairs or any violence (until Clement V excused this in self-defence). Canon law even forbade their involvement in administering lay justice, for this implicated them in bloodshed as secular courts imposed physical penalties for many crimes. Likewise church courts might not hand down ‘sentences of blood’. Admittedly clerks continued to serve secular authorities, even acting as justices, and ecclesiastical judges condemning heretics often handed them over to the ‘secular arm’ for execution. Nevertheless in theory lay and ecclesiastical jurisdictions were meant to be separate, but the line separating them was unclear and disputed at many points. And one of the jurisdictional issues that would provoke controversy between the medieval Church and ‘State’ was indeed privilegium fori. Under the impetus of the reform movement, the Western Church, and particularly the papacy, had extended and asserted its jurisdiction over many issues by the twelfth century, including all cases regarding the clergy. Its juridical authority was de-

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See Kirsi. Salonen, The Penitentiary as a Well of Grace in the Late Middle Ages: The Example of the Province of Uppsala 1448-1527 (Helsinki: Academia Scientarum Fennica, 2001), 128-38, 288-310. The two main studies of this privilege are Robert Génestal, Le privilegium fori en France du Décret de Gratien à la fin du XIVe siècle, 2 vols. (Paris: Ernest Leroux, 1921-24), and Leona C. Gabel, Benefit of Clergy in England in the Later Middle Ages (Northampton, Mass., 1929; repr. New York: Octagon, 1969).

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fined in new canonical collections, notably Gratian’s Decretum, and articulated through an international system of church courts extending from diocesan level up to the papal curia as the highest ecclesiastical tribunal in the West. Many secular rulers were wary of such developments and perceived them as a threat to their own growing power, especially their control over churches and clergy in their domains. This is not to say that privilegium fori was an innovation of the reform papacy. It had already emerged under the Emperor Constantine (d. 337) and it was also respected under the Frankish monarchy from the seventh century.16 By the ninth century many legal authorities (not all of them authentic) supported privilegium fori, and many of these were subsequently included in Gratian’s Decretum. However it was not systematically enforced nor widely contested before the growth of ecclesiastical power and canon law in the twelfth century. The first major clash over privilegium fori was in England, maybe because royal government was more advanced there and so more defensive of its claims. It was the most heated issue in the famous conflict between King Henry II (1154-89) and Thomas Becket, culminating in the latter’s death in 1170. The story is well known to historians, at least in England, and has been the subject of considerable debate in Anglophone historiography,17 so it will only be outlined in brief here. The issue of ‘criminous clerks’ was first raised by Henry at a council of English prelates in December 1163. He proposed that clergy convicted of crimes in the church courts should be handed over to royal justices for secular punishment. Becket and his fellow bishops opposed this, insisting on clerical immunity from lay justice. But Henry was determined, and in January 1164 he laid before a council of nobles and bishops a statement of the ‘customs of the realm’. The king thereby sought to restore ‘ancient’ royal rights over the English Church, including ‘criminous clerks’. The latter were the subject of clause 3 of this document, which became known as the ‘Constitutions of Clarendon’. The clause was worded ambiguously, but since Maitland historians have agreed that it meant that clergy accused of serious crimes were to be summoned before secular justices to face charges and then handed over, without trial, to be judged in the church courts as clergy. If convicted, they were to be ‘degraded’ and brought back to the secular court to receive punishment as laymen; ‘degradation’ was an ecclesiastical penalty depriving them of clerical status, thus reducing them to laymen. Royal officials were to attend the ecclesiastical 16

17

Génestal, Le privilegium fori en France, 1. ii-iii; 2. iii-xx. See also Anton Nissl, Der Gerichtsstand des Clerus im fränkischen Reich (Innsbruck: Wagner, 1886). The main contributions are Frederick W. Maitland, “Henry II and the Criminous Clerks,” English Historical Review 7 (1892): 224-34, repr. in his Roman Canon Law in the Church of England (London: Methuen, 1898), 132-47; Charles Duggan, “The Becket Dispute and the Criminous Clerks,” Bulletin of the Institute of Historical Research 35 (1962): 1-28, repr. in his Canon Law in Medieval England: the Becket Dispute and Decretal Collections (London: Variorum, 1982), art. X; Richard M. Fraher, “The Becket Dispute and Two Decretist Traditions,” Journal of Medieval History 4 (1978): 347-68. See also Génestal, Le privilegium fori en France, 2. 95114, and Duggan, Thomas Becket, 39-58.

THE MEDIEVAL CLERGY AND VIOLENCE

11

proceedings, apparently to prevent convicted clerks from escaping. Becket persuaded his fellow bishops to approve these royal ‘customs’, perhaps to spare them Henry’s likely retaliation,18 but refused to do so himself, eventually preferring exile. Clause 3 was the main sticking-point for him and Charles Duggan summarised Becket’s three principal objections to it: the lay jurisdiction asserted over clerks in the initial hearing; secular courts might not punish degraded clerks except for subsequent felonies committed as laymen; degradation was sufficient penalty for clerical crimes without additional lay punishment since God does not judge (and punish) twice for the same offence.19 Maitland, Génestal, Fraher and other historians have considered Becket’s views innovatory, notably in extending privilegium fori to degraded clerks for felonies they committed as clergy.20 Henry II certainly alleged that the proposed double punishment of convicted clerks was ‘customary’, going back to the time of his grandfather Henry I (1100-35). But this is debatable as English legal practice is unclear on this point before 1164. Some sources even indicate that English clergy were not normally subject to secular punishment but tried and sentenced by their bishops, notably following the separation of ecclesiastical and royal jurisdictions under King William I (106687).21 Henry’s predecessor Stephen had recognised episcopal jurisdiction over all clerks in a charter of 1136. This, however, reflected how far church reform had advanced under Stephen’s weak rule, and arguably Henry sought to strengthen royal government by limiting the extent of ecclesiastical jurisdiction, especially papal, in England. In this respect some historians have seen Henry as the real innovator not Becket. But Henry and Becket both claimed support for their positions from canon law, and historians have also intensely debated this.22 Maitland famously argued that the king had a better case in canon law than his archbishop. He noted in Gratian’s treatment of privilegium fori (Decretum C.11 q.1) that several texts used the phrase ‘curiae tradere’ in relation to criminous clerks. He argued that this was understood to mean delivery to the secular court for punishment, so these legal texts set precedents for Henry’s proposed procedure. Génestal also claimed that this was a standard interpretation of ‘curiae tradere’ by the twelfth century, and traced the phrase back to Roman law. Justinian (d. 565), he argued, had established this procedure of secular powers punishing degraded clerks, and Frankish laws subsequently adopted it. These legal authorities entered canonical collections, including Gratian’s Decretum, which apparently considered

18 19 20

21 22

As suggested by Duggan, Thomas Becket, 45. Duggan, “Becket Dispute,” 4. Maitland, Roman Canon Law, 146; Génestal, Le privilegium fori en France, 2. 100; Fraher, “Becket Dispute,” 354b, 356, 362a. Cf. Christopher R. Cheney, “The punishment of felonous clerks,” English Historical Review 51 (1936): 215-36, at 215. See Duggan, Thomas Becket, 48-9. See n. 17 above.

12

PETER CLARKE

the procedure standard. Génestal hence concluded that canon law backed Henry not Becket.23 However Charles Duggan challenged these interpretations and argued that ‘Becket’s case was canonically better grounded’. Gratian broadly defended clerical immunity from lay justice, he observed, and only conceded secular punishment of clergy with episcopal consent, restricting ‘curiae tradere’ to exceptional cases involving offences against bishops. Duggan also pointed out that delivery to lay justice was one meaning of ‘curiae tradere’ in Gratian’s Decretum but not the only one. In some texts it implied reduction to ‘curial’ status, a Roman law idea which suggested that clerks were sent to serve perpetually in a curia or household.24 Some canonists also interpreted the curia where clerks were sent as a bishop’s prison. Finally Duggan argued that contemporary decretists (commentators on the Decretum) held views more favourable to Becket’s position than the king’s. Notably Rufinus taught that clergy might be handed over to lay justice at the Church’s initiative, not the State’s as Henry intended; and Stephen of Tournai concluded that lay judges might only punish degraded clerks who reoffended. Admittedly this was the closest that a contemporary decretist came to opposing double punishment, but Beryl Smalley has shown that Becket’s views here owed more to theological than canonistic debate. Richard Fraher, however, has disagreed with Duggan’s reading of the canonistic sources. He argued that Bolognese decretists indeed supported clerical immunity from secular justice, but not beyond degradation, as Becket held, till after his death in 1170. Anglo-Norman canonists, according to Fraher, were even slower to change their views in response to the Becket dispute and only followed this Bolognese lead after 1190, even though Henry II had revoked clause 3 of the Clarendon Constitutions by 1176 and Pope Alexander III had issued the decretal ‘At si clerici’ (c. 1178) forbidding lay jurisdiction over criminous clerks and secular punishment of them. Nonetheless, as Anne Duggan has noted, such canonistic commentaries are notoriously hard to date and interpret, so Fraher has doubtless not had the last word.25 In any case even if privilegium fori, or ‘benefit of clergy’ as English historians call it, was not firmly established in England before the Becket conflict, much evidence suggests that it was respected thereafter both in practice and principle not only there but increasingly also on the continent. By 1190 it had been extended to Normandy, for example. Even though this appeared a posthumous victory for Becket, royal government subsequently increased its jurisdiction over criminous clerks in England, as Leona Gabel has demonstrated, and to a lesser extent in France, according to Génestal.26 With 23 24 25

26

Maitland, Roman Canon Law, 141-6; Génestal, Le privilegium fori en France, 2. iii-xxxix, 3-13, 98, 102-4. Duggan, ‘Becket Dispute’, 3 (quotation), 8-10; cf. also Duggan, Thomas Becket, 50-53. Duggan, Thomas Becket, 50. See n. 17 above for Fraher. See also Génestal, Le privilegium fori en France, 2. 20-26, on “At si clerici”. Génestal, Le privilegium fori en France, 2, esp. chs. 6-10; Gabel, Benefit of Clergy (as n. 15), esp. chs. 2-3. Cf. also Cheney, “Felonous clerks”; Austin L. Poole, “Outlawry as a punishment of criminous clerks,” in

THE MEDIEVAL CLERGY AND VIOLENCE

13

regard to the English Crown its judicial records make this clear by the mid-thirteenth century. Firstly clerks accused of crimes in England were normally arrested by the lay authorities, but not immediately delivered to the church courts for trial. Instead they were formally charged before royal justices, who required a jury to give a verdict on a clerk’s guilt usually before handing him over. This resembled the first stage of Henry II’s proposed procedure. Nonetheless the English lawyer Bracton, though a trained canonist, recognised it as standard practice under Henry III (1216-72), and English episcopal records refer to clergy already found guilty in the county courts as clerici convicti. Admittedly clergy were not judged and sentenced in the royal courts at this stage. However a guilty verdict entitled royal justices to seize a clerk’s property in the king’s name. There were clear political and fiscal motives behind this, for if an ecclesiastical trial confirmed the clerk’s guilt subsequently, his goods were forfeit to the Crown. Even if a church court acquitted him, restitution of his property was not automatic; his bishop had to request this formally by an act of royal ‘special grace’. And English bishops often complained that the Crown did not always release such property even then. Another grievance was that clergy often languished in royal jails for some time awaiting their hearing before itinerant justices and delivery to the Curch’s custody. Secondly if a clerk sought the transfer of his case to a church court, he had to plead ‘benefit of clergy’ and his bishop had to claim him from the royal authorities. Since lay judges might inflict capital punishment and often did but ecclesiastical judges might not, ‘benefit of clergy’ meant the difference between life and death to a convicted criminal so it had to be established whether he was genuinely entitled to it. Canonists regarded the tonsure as the outward sign of clerical status and basis for clerical privilege.27 Some canonical rulings suggested that clerical dress was also an important test of privilege, notably for minor clergy who were married or in lay occupations since secular authorities were especially inclined to doubt their clerical status in thirteenth-century France and England. Indeed royal courts in both kingdoms accepted the clerical tonsure and dress as proof of status in that century. But by the fourteenth century the English courts had introduced a Latin reading-test as the chief means to prove clerical status since literacy was seen as the preserve of clergy. In fact it was an inadequate method because some clergy were barely literate, while literacy was spreading among the later medieval laity thereby allowing spurious claims to ‘benefit of clergy’. In theory the bishop’s representative who came to claim the alleged clerk administered the test, but in practice royal judges had the final say and might even reject his assessment. Hence secular jurisdiction

27

Historical essays in honour of James Tait, ed. John G. Edwards, Vivian H. Galbraith and Ernest F. Jacob (Manchester: printed for the subscribers, 1933), 239-46. See Gabel, Benefit of Clergy, ch. 3; Génestal, Le privilegium fori en France, 1, esp. chs. 1 (on the tonsure) and 4 (on married clergy).

14

PETER CLARKE

denied some clergy access to ecclesiastical justice.28 In addition canon law deprived certain clergy of privilegium fori. Degraded clergy might no longer claim it if they reoffended. Canonists doubted whether apostates retained it, especially if they committed violence. And notably from 1274 bigamous clergy automatically lost their status and privileges since such minor clerks had married a widow or more than once. A canon of the Second Council of Lyon abandoned them to lay justice for crimes committed after their bigamy, but English royal law even understood this to apply retrospectively. In France lay jurisdiction also strictly enforced this ruling with papal support, even if bishops still sought to protect such clergy.29 However if a clerk secured the transfer of his case to ecclesiastical jurisdiction, his chances of conviction were apparently low. Certainly most cases involving criminous clerks that reached English church courts ended in acquittal, even if this overturned a guilty verdict in the county court. Two reasons account for this. One was that the church courts required higher standards of proof than lay judges, and the other was canonical purgation.30 Clerks might seek to prove their innocence by this procedure, which involved them assembling a set number of witnesses who were willing to testify that they were telling the truth when they denied their guilt. These were not necessarily witnesses to the alleged crimes but more like character-witnesses. Other parties might object to a clerk availing himself of purgation or to the compurgators he called to testify, but in practice it rarely happened, sometimes since supporters of the accused bribed opponents to buy their silence. Unsurprisingly secular authorities distrusted purgation, and in England they sought to limit its use by the later thirteenth century, delivering certain clerks to bishops provided that purgation was denied or deferred at the king’s pleasure. Nevertheless it could fail to clear the accused, and some clergy confessed their guilt before the church courts. Moreover bishops usually initiated the canonical trial by ordering an inquiry into the life and reputation of the accused; if it reported unfavourably, purgation was forbidden and conviction the usual outcome. When the church courts found clerks guilty of felonies, the normal penalty they imposed was degradation. According to Gabel, English bishops increasingly imprisoned such degraded clerks to perform life-long penance too and kept jails for this purpose. But did any criminous clerks also suffer secular punishment? Poole found that some degraded by their bishops were also exiled by the English Crown, and Génestal noted a similar practice in Normandy by 1205. As outlaws they lost all legal rights, effectively including their clerical privileges, since outlaws who returned from exile might be licitly hunted down and hanged. If clergy suspected of felonies failed to appear be28

29 30

Gabel, Benefit of Clergy, 71-2, 87-91; Génestal, Le privilegium fori en France, 1, esp. chs. 3 (bigamy) and 5 (apostasy). Cheney, “Felonous clerks,” 216-18; Génestal, Le privilegium fori en France, 1. 66-72. Gabel, Benefit of Clergy, ch. 4.

THE MEDIEVAL CLERGY AND VIOLENCE

15

fore English royal judges for an initial hearing, they also risked outlawry. Indeed Cheney argued that outlawed English clerks were generally fugitives rather than suffering double punishment. Nevertheless the Crown’s sequestration of property from clergy degraded by their bishops was a financial penalty, and English prelates certainly protested at this double punishment.31 However historians agree that in England the Crown generally respected the reservation of clerical crimes to ecclesiastical judgement and punishment (despite its attempts to restrict this to its advantage). Génestal concluded that the same was true in France by the later thirteenth century, except where canon law surrendered clergy to secular punishment for certain crimes, notably heresy.32 Further research is needed on privilegium fori in other parts of Europe, and many essays in this volume make a valuable contribution in this direction.33 In conclusion the existing historiography has largely discussed medieval clergy and violence in two contexts: war and crime. In theory clerks were not meant to participate in either, but in practice some did. The ecclesiastical authorities had to find ways of coping with this situation even if they had to co-operate with secular powers in disciplining violent clergy. Likewise the clergy were often victims of warfare and violent crime, and the Church also developed means to cope with these problems, notably the peace movement, crusades, and privilegium canonis. However certain questions need further research. How successful was the medieval Church in restraining violence against and by clergy? How common was clerical violence in the Middle Ages, especially compared with lay violence? Why were some clergy violent? What were lay attitudes toward clerical violence? One could go on, but arguably such gaps in our knowledge exist since past historiography has not addressed the topic of medieval clergy and violence in general, but only dealt with certain aspects of it. Admittedly recent historians have attempted general approaches to the place of violence in medieval society and to medieval warfare as a phenomenon,34 but these have rarely included much special and separate consideration of the clergy. This volume is, therefore, an important corrective to such 31

32 33

34

Poole, “Outlawry,” 243-6; Génestal, Le privilegium fori en France, 2. 110-14; Cheney, “Felonous clerks,” 234-6. On episcopal grievances see William R. Jones, “Relations of the Two Jurisdictions: Conflict and Co-operation in England during the Thirteenth and Fourteenth Centuries,” Studies in Medieval and Renaissance History 7 (1970): 77-210, esp. 178-92. Génestal, Le privilegium fori en France, 2, esp. chs. 7-10. The rich judicial records for late medieval Italy indicate one promising avenue for such research; see Trevor Dean, Crime and Justice in Late Medieval Italy (Cambridge: Cambridge University Press, 2007), and Prof. Andrea Zorzi’s work on Tuscany notably his L’amministrazione della giustizia penale nella Reppublica fiorentina. Aspetti e problemi (Florence: Olschki, 1988). E. g., Violence and society, ed. Halsall; Violence in Medieval Society, ed. Richard W. Kaeuper (Woodbridge: Boydell Press, 2000); Philippe Contamine, War in the Middle Ages, trans. M. Jones (Oxford: Blackwell, 1984); Helen J. Nicholson, Medieval Warfare (Basingstoke: Palgrave Macmillan, 2003); La guerre, la violence et les gens au Moyen Âge, ed. Philippe Contamine and Olivier Guyotjeannin, 2 vols. (Paris: CTHS, 1996); in ibidem 2. 89-126, clergy are considered but largely as victims of warfare.

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PETER CLARKE

neglect. The case studies it contains indicate the wealth of sources on the subject, not least the Apostolic Penitentiary records, and will hopefully lead the way for further research. The subject is an important one, since it has so much to tell us about clerical relations with the laity and the Church’s relationship with the ‘State’ in medieval Europe, inter alia. Indeed one significant way forward will be to study medieval ecclesiastical and secular records together; this requires more collaboration between scholars in the all too separate fields of church history and political history,35 and the study of medieval history can only be richer for that.

35

A project designed to encourage such collaboration internationally is ‘Law and Violence in the Middle Ages’ led by Prof. Anne Curry and Dr Peter Clarke of the History Department at the University of Southampton (UK); ); for further details see http://www.wun.ac.uk/ external/lvma/index.html.

THE APOSTOLIC PENITENTIARY AND VIOLENCE IN TH.E ROMAN CURIA

Kirsi Salonen

The Apostolic Penitentiary in the Middle Ages and its historical records This essay analyses the petitions brought before the Apostolic Penitentiary concerning violence committed in the papal curia during the pontificate of Pius II (1458–1464).1 Since some readers might not be familiar with the Apostolic Penitentiary and its medieval sources, I will start by explaining briefly what the Penitentiary was and what kinds of documents its archives can offer us in respect of violence. The Apostolic Penitentiary was one of the papal offices – officially classified as one of the papal tribunals – which dealt with all the issues that concerned sins. Defining the Penitentiary as a “tribunal” is, however, slightly misleading because the office did not hold court sessions after which it would decide if a person were guilty or not guilty. The Christians who came before it were not litigants, but simply people who needed some kind of grace from the papal curia. Thus, the Penitentiary simply granted graces – which people from all over Christendom requested in the form of a petition, supplicatio – to Christians who had a problem they had to solve.2 The powers given to the office by the popes allowed it to grant four kinds of graces:

1

2

The study is limited to one pontificate for the sake of proportionality. This essay is a result of my research project “The Apostolic Penitentiary and the Local Church,” financed by the Academy of Finland, to which I wish to express my gratitude. About the history and functioning of the Penitentiary, see Emil Göller, Die päpstliche Pönitentiarie von ihrem Ursprung bis zu ihrer Umgestaltung unter Pius V., 2 vol. in 4 parts (Rome: Königlich Preußisches Historisches Institut in Rom, 1907-1911); Ludwig Schmugge, Patrick Hersperger and Béatrice Wiggenhauser, Die Supplikenregister der päpstlichen Pönitentiarie aus der Zeit Pius’ II. (1458–1464), Bibliothek des Deutschen Historischen Instituts in Rom 84 (Tübingen: Niemeyer, 1996), 4-56; Kirsi Salonen, The Penitentiary as a Well of Grace in the Late Middle Ages. The Example of the Province of Uppsala 1448–1527. Suomalaisen Tiedeakatemian Toimituksia – Annales Academiae Scientiarum Fennicae 313 (Saarijärvi: Finnish Aacademy of Sciences, 2001), 40-56; Kirsi Salonen and Ludwig Schmugge, A Sip from the “Well of Grace”. Medieval Texts from the Apostolic Penitentiary, Studies in Medieval and Early Modern Canon Law 7 (Washington D.C.: Catholic University of America Press, 2009) 13-6 and 69-83.

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KIRSI SALONEN

1.

The Penitentiary could grant special absolutions for those who had broken the regulations of Canon Law so severely that the local father confessor or even the local bishop did not have the power to absolve them. Such crimes were, for example, killing or assaulting an ecclesiastic, committing simony, escaping from a monastery, or selling forbidden products to Muslims. 2. It could grant dispensations that allowed Christians to act against the regulations of the Church. With a dispensation from the Penitentiary, Christians could, for example, marry a close relative, receive priestly ordination despite an impediment like illegitimacy, minority, or a bodily defect, or move from one monastery to another. 3. The office could grant special licenses that allowed Christians not to observe certain ecclesiastical norms in matters that mainly had something to do with exercising one’s Christianity. For example, to confess to some other priest than to one’s own parish priest, to commute ecclesiastical vows to another kind of pious works, or to make a pilgrimage to the Holy Land. 4. Lastly, the Penitentiary had the power to grant official declarations. For example, it could declare that a cleric was not guilty of murder despite such an accusation. Furthermore, it could declare a marriage annulled or a monastic profession void if the supplicants could show that there was something canonically wrong in the contracting of the marriage or in taking the profession. The medieval records of the Penitentiary consist of register volumes which contain (abbreviated) copies of petitions directed to and approved by the office. The complete series of registers begin from the middle of the fifteenth century. The register volumes are relatively practical to use because they are divided internally into several different categories, each containing cases related to one specific matter. The main petition categories are: de matrimonialibus (about marriages), de diversis formis (concerning various types of cases), de declaratoriis (about declarations), de defectu natalium and de uberiori (matters related to illegitimacy), de promotis et promovendis (about ordinations), and de confessionalibus (licenses to choose a personal confessor).3 The Penitentiary and graces related to violence The petitions related to the theme of violence can be found in two categories in the Penitentiary registers: in the de diversis formis and in the de declaratoriis categories. The Penitentiary dealt normally with cases of violence in which at least one of the parties (perpetrator or victim) was an ecclesiastic, while violence cases among the laity were generally handled by the civil courts. If pure lay violence cases were brought to the 3

About the faculty of the Penitentiary, see Schmugge, Hersperger and Wiggenhauser, Die Supplikenregister, 68-217; Salonen, Penitentiary, 58-77 and 103-210; Salonen and Schmugge, A Sip, 17-68.

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authority of the Penitentiary it was usually question of violence between close relatives, which was considered as an especially severe form of violence and therefore the local father confessors or bishops sometimes refused to absolve the guilty people and sent them to the papal curia to obtain absolution from their sins.4 Before analysing more closely the content of the documents related to violent behaviour in the Roman curia, a few words are needed about how the Penitentiary could help those who had sinned by committing a violent act. This is important because there was a fundamental difference whether the violent act was committed by a layman or by a cleric. According to constitution 15 of the second Lateran Council, known as the constitution Si quis suadente diabolo, anyone who assaulted or murdered an ecclesiastic was subject to immediate and automatic excommunication from which only the pope could absolve the sinner.5 Thus, laypeople who had assaulted an ecclesiastic had to seek absolution from the papal curia and after that they would be free of the burden of sin. The Penitentiary could grant such absolutions. The case of violent clerics was more complicated. They incurred the same automatic excommunication, but in addition they became irregular (unfit to act in ecclesiastical service) and could no longer hold their offices. In order to cleanse their consciences clerics who had committed acts of violence needed (like any layman) an apostolic absolution. In addition, they needed a dispensation that would free them from the irregularity and allow them to continue in their office. The Penitentiary had the power to grant guilty clerics both graces. These graces can usually be found in the de diversis formis category and in each case there is a question about a supplicant who admitted being guilty of a violent act. There are also petitions related to violent behaviour in the De declaratoriis category. There we find mostly petitions of clerics or aspirant ecclesiastics who had been unjustly accused of a murder and who petitioned for a declaration of being innocent of the crime. In these cases the question of being “guilty” or “not guilty” was quite complicated and a person could demonstrate his innocence by using various extenuating circumstances which can be found in Canon Law. For example, if a person had killed someone accidentally or in self-defence, Canon Law did not consider him guilty of murder. Explaining that in his case it was only a question of an accident or of self-defence were the most common ways for a supplicant to try to receive a declaration stat-

4

5

About lay violence in the Penitentiary, see Kirsi Salonen, “The Apostolic Penitentiary and Domestic Violence”, in Law and Private Life in the Middle Ages, Proceedings of the Sixth Carlsberg Academy Conference on Medieval Legal History 2009, ed. Per Andersen et al. (forthcoming). C. 17 q. 4 c. 29, edited in Friedberg I, col. 822-3.

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KIRSI SALONEN

ing that he was not guilty of murder. The goal of the declaration was to ensure that a clergyman could continue in his career without problems.6 In order to have a general idea of the proportion of cases related to violence in the Penitentiary documentation, let us have a look at what kinds of cases, and how many, the office handled during the pontificate of Pius II, which is my example period. Table 1 shows how many petitions were classified into each petition category. This is a quite significant corpus of cases: 15,729 petitions. The most numerous petitions can be found in the de matrimonialibus, the de confessionalibus, and de diversis formis categories, followed by those regarding illegitimacy (de defectu natalium and de uberiori). The de promotis et promovendis category is relatively small and the de declaratoriis category contains only a few petitions. The supplications related to violence in the curia are all to be found in the de diversis formis category, altogether only 48.7 Table 1: Penitentiary cases during the pontificate of Pius II (1458–1464) Source: ASV, Penitenzieria Ap., Reg. Matrim. et Div., Vols. 7-11, 13

Case type

Cases

%

De matrimonialibus

4195

27%

De diversis formis

3650

23%

334

2%

2698

17%

483

3%

De promotis et promovendis

1008

6%

De confessionalibus

3361

22%

15,729

100%

De declaratoriis De defectu natalium De uberiori

Total

What kinds of violent acts were committed in the Roman curia? Theoretically, the Church did normally differentiate between various kinds of violent crimes in the sense that all those who were guilty of violent behaviour were excommunicated and needed to be absolved from their crimes – no matter whether 6

7

More about Penitentiary and violence cases in the de diversis formis and de declaratoriis categories, see Schmugge, Hersperger and Wiggenhauser, Die Supplikenregister, 98-116; Salonen, The Penitentiary, 128-38 and 203-10; Salonen and Schmugge, A Sip, 30-1 and 52-3. The number of petitions related to violence in general is quite large among the Penitentiary materials. In the de diversis formis category there are 1305 supplications related to violence (36%) and in the de declaratoriis category as many as 225 (67%). Only a very small number thus concern violence committed in the Roman curia.

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21

they had hit someone, caused someone’s death accidentally, or committed a premeditated murder. In practice, the Church obviously differentiated whether a violent act was or was not severe. In the 48 cases I have analysed for this article, two different types of violent crimes committed in the curia can be distinguished. In 46 cases there was a question of assault (with the Latin terminology: percussit, vulneravit, or manus violentas iniecit) which did not cause permanent injury to the victim, while in two cases there was a question of manslaughter (with the Latin terminology: interfecit). One of the murderers was Petrus Molinus, a cleric from the diocese of Vich, who had killed a cleric,8 and the other was Evangelista Dientigardi, a Roman layman whose victim was a man in priestly orders.9 What kinds of violent acts had the petitioners then committed? The phraseology or wording used in the petitions varies a bit according to the formulations of the proctor who composed the original supplication as well as according to how the scribes abbreviated the cases into the Penitentiary register. Thus percussit (hit) probably means the same as manus violentas iniecit (laid violent hands on), but they are very vague concepts and do not tell exactly how badly the violator assaulted his victim. In contrast, the verb vulneravit clearly refers to a violent act resulting in bloodshed. Sometimes the petitioners added slightly more explicit explanations to percussit and stated whether they had hit the victim until blood was shed or without bloodshed. These specifications cannot be found in all petitions, in fact, the Penitentiary documents do not always reveal how bad the violent act was. In only nine cases did the perpetrator admit to having wounded his victim, while in twelve cases he claimed that he had not caused the victim any great harm. One case is a question of a man tripping his victim. In half of the cases (24) it was not clear of what kind of violence was in question. In a few cases the violator explained more in detail what kind of weapon he had used against his victim. Alfonsus de Paz from the diocese of Salamanca had hit his victim with a certain iron object (cum quodam ferro percussit);10 Alexander Monstron from the diocese of Arras11 and Pucius Angeli from the diocese of Velletri12 used sticks as 8

9

10

11

ASV, Penitenzieria Ap., Reg. Matrim. et Div., vol. 11, fol. 140v: Petrus Molinus clericus Vicen. dioc. quendam clericum in curia Romana interfecit, quare clericidii reatum commisit et excommunicationis sententiam in tales latam incurrit, a quibus petit absolvi. Fiat de speciali, Ja. eps Vigintimilien, regens. ASV, Penitenzieria Ap., Reg. Matrim. et Div., vol. 13, fol. 166v: Evangelista Dientigardi laicus Roman. quendam presbiterum in curia Romana interfecit, propter quod exommunicationis incurrit sententiam ac presbitericidii reatum commisit, a quibus petit absolvi. Fiat de speciali, B. eps Regin, regens. ASV, Penitenzieria Ap., Reg. Matrim. et Div., vol. 8, fol. 127v: Alfonsus de Paz archipresbiter loci de Lodesina Salamantin. dioc. quendam presbiterum percussit cum quodam ferro in Romana curia usque ad sanguinis effusionem, quare excommunicationis sententiam incurrit. Supplicat igitur quatenus ipsum a dicta excommunicationis sententia absolvi mandare dignemini. Fiat de speciali, Phi. S. Laurentii in Lucina. ASV, Penitenzieria Ap., Reg. Matrim. et Div., vol. 9, fol. 140v: Alexander Monstron clericus Atrebaten. dioc. quendam clericum in Romana curia cum quodam baculo percussit, quare excommunicationis sententiam in tales promulgatam incurrit. Et cum dictus clericus ad plenum convaluerit, petit idem Alexender absolvi a dictis sententiis. Fiat de speciali, Phi.

22

KIRSI SALONEN

weapons (cum quocam baculo percussit). Johannes Petri from the diocese of Liège hit and wounded his victim with a certain kind of knife (cum quodam cultello percussit and vulneravit),13 while Petrus Martini from the diocese of Valence used the flat of his sword to hit his victim (cum planicie cuiusdam ensis percussit).14 Nicolaus de Teselen from the diocese of Cambrai did not use any weapon, but wounded his adversary by hitting him with his fist (cum pugno percussit et vulneravit).15 Summing up, the persons who had assaulted people in the Roman curia were normally not guilty of very severe violent crimes – except the two who were guilty of manslaughter – but typically the question was of relatively mild forms of violence, often even without bloodshed. The weapons used in the assaults do not demonstrate particularly violent behaviour either. It seems rather that the perpetrators used something they happened to have in hand at the moment, like a wooden stick, a small knife,16 and so on. Provenance To analyse in more detail the petitions related to violence in the Roman curia let us start by examining the provenance of the petitions. For the analysis of the provenance, I have divided Christendom into seven large territories17 and counted how many cases come from each of them. As appears in table 2, twenty petitions come from French territory, ten petitions from the territory of the Holy Roman Empire, nine from the Iberian Peninsula, six from the Apennine Peninsula, and one from Eastern Europe. The provenance of 12

13

14

15

16 17

ASV, Penitenzieria Ap., Reg. Matrim. et Div., vol. 9, fol. 191v: Pucius Angeli presbiter Velletren. in Romana curia quendam presbiterum cum quodam baculo percussit citra tamen sanguinis effusionem, quare excommunicationis sententias in tales tam per processus apostolicos quam alius a iure latas incurrit. Petit igitur idem Pucius absolvi a dictis sententiis. Fiat de speciali, A. prothon. Pisanus, regens. ASV, Penitenzieria Ap., Reg. Matrim. et Div., vol. 11, fol. 141v: Johannes Petri cleicus Leodien. dioc. quendam subdiaconum in Romana curia cum quodam cultello percussit et vulneravit, propter quod excommunicationis sententiam in tales latam incurrit. Et cum dictus subdiaconus de premissis convaluerit, petit idem exponens a dicta sententia absolvi. Fiat de speciali, Ja. eps Vigintimilien, regens. ASV, Penitenzieria Ap., Reg. Matrim. et Div., vol. 13, fol. 133r: Petrus Martini presbiter Valentin. dyoc. in Romana curia presens quendam clericum cum planicie cuiusdam ensis percussit citra tamen sanguinis effusionem, propter quod excommunicationis sententiam incurrit. Cum autem dictus clericus de premissis plene convaluerit, petit dictus presbiter a sententia excommunicationis ac peccatis suis aliis absolvi. Fiat de speciali, B. eps Reginus, regens etc. ASV, Penitenzieria Ap., Reg. Matrim. et Div., vol. 10, fol. 171v-172r: Nicolaus de Teselen presbiter Cameracen. dioc. quendam clericum in curia Romana cum pugno percussit et vulneravit, propter quod excommunicationis sententiam incurrit, a qua petit absolvi, actento quod de premissis dictus clericus convaluit. Fiat de speciali, Phi. Sancti Laurentii in Lucina. Concerning small knives, see Gerhard Jaritz’s article in this volume. The division of Christendom into seven territories is the same one that Ludwig Schmugge and I used when compiling the general statistics from the entire Penitentiary material. For example, Salonen and Schmugge, A Sip, 27, 48, 57, 61, 64, and 68.

THE APOSTOLIC PENITENTIARY AND VIOLENCE IN THE ROMAN CURIA

23

two cases is not clear18 and there are no such cases from the British Isles or Scandinavia at all. What can be said on the basis of these numbers? Table 2: Provenance of the cases Source: ASV, Penitenzieria Ap., Reg. Matrim. et Div., Vols. 7-11, 13

Provenance

Cases

British Isles

0

Eastern Europe

1

Holy Roman Empire

10

France

20

Iberian Peninsula

9

Italian Peninsula

6

Scandinavia

0

Unknown

2

Total

48

Since the corpus is as small as 48 cases, drawing further conclusions about the provenance and its meanings is not wise. However, these numbers demonstrate that people from various parts of Christendom committed violent acts in the curia. Based on proximity and relative ease of submitting a petition, one might expect the Italians living closest to the curia to be in the majority among the petitioners, but this was not the case. In fact, most of the people who acted violently in the Roman curia came from elsewhere, almost half of them from France. This is a sign of the fact that the Roman curia was a very inter- and multinational place. Perpetrators and victims Who were the assaulters in the Penitentiary petitions and who were their victims? Since we are talking about violence in the Roman curia, it is obvious to assume that the violent acts must have mainly taken place between men with ecclesiastical careers – a fact confirmed by the numbers presented in Table 3.

18

In one petition the home diocese of the supplicant is not mentioned at all, and in the other one the diocese is Aquensis, which can be either Acqui in Italy or Dax or Aix in France. The name of the supplicant in the last case does not help identify whether he was Italian or French.

24

KIRSI SALONEN

As can be seen from the numbers in Table 3, the majority of the perpetrators were clerics. Only three laymen were guilty of violent behaviour in the curia. One of them, the above-mentioned Roman citizen, Evangelista Dientigardi had killed a priest, while the two others were guilty of assaulting priests. All the other 45 supplicants were in clerical positions. One of the perpetrators, Didacus de Villa Corta from the diocese of Palencia, had just begun his career because he stated that his title was acolyte. Most of the supplicants (21) had already been ordained to the priesthood and two had been ordained to the lowest of the Holy Orders, that of subdeacon. Sixteen supplicants were in the minor orders, since they claimed that they were clerics. One petitioner said that he was a scolasticus, which does not indicate whether he was ordained to the holy orders or not. Table 3. Violators and victims Source: ASV, Penitenzieria Ap., Reg. Matrim. et Div., Vols. 7-11, 13

Perpetrator \ Victim

Acol.

Canon.

Cler.

Dec.

Diac.

Mon.

Presb.

Subd.

?

Total

Laicus

0

0

0

0

0

0

3

0

0

3

Acolitus

0

0

0

0

0

0

1

0

0

1

Clericus

0

0

11

0

0

1

3

1

0

16

Monacus/frater

0

0

3

0

0

0

0

0

0

3

Presbyter

0

1

7

1

1

0

9

0

2

21

Scolasticus

1

0

0

0

0

0

0

0

0

1

Subdiaconus

0

2

0

0

0

0

0

0

0

2

?

0

0

0

0

0

0

0

0

1

1

Total

1

3

21

1

1

1

16

1

3

48

Among the clerical petitioners we find one interesting person from the diocese of Cambrai, Johannes de Lapide (or Steyna), who was employed by the Penitentiary as a proctor. He had assaulted, without bloodshed, a cleric in the curia and had to seek absolution for this act, which his superior, Cardinal Penitentiary Philippus Calandrini, granted him on 11 October 1463.19 In his case there is thus no question of a quarrel

19

ASV, Penitenziaria Ap., Reg. Matrim. et Div., vol. 13, fol. 166v: Johannes de Lapide procurator penitentiariae manus violentas citra sanguinis effusionem in quendam clericum in curia Romana iniecit, quare excommunicationis incurrit sententiam, a qua petit absolvi. Fiat de speciali, Phi. In the right margin his home diocese is given: Cameracen. dioc.

THE APOSTOLIC PENITENTIARY AND VIOLENCE IN THE ROMAN CURIA

25

between two men who occasionally found themselves at the same time in the curia because Johannes lived permanently in Rome.20 Three petitioners were in monastic positions. One of them, Brother Rollandus Hospitis from an unknown diocese, said that he was a monacus, but did not reveal his order.21 Petrus Chance was a priest and Benedictine monk from a monastery outside Tours22 and Brother Franciscus de Brilhaco was the prior of the Benedictine monastery of Vigon in the diocese of Bourges.23 All the victims of violent behaviour had clerical standing. The most numerous groups of victims were clerics (21 persons) and priests (16). In addition, one acolyte, three canons, one dean, one deacon, one monk, and one subdeacon are mentioned as victims. In three cases the social status or clerical standing of the victim was not specified. In one of these three cases there was a question about a more complex situation. The supplication was made by six men from six dioceses of the Iberian peninsula (the dioceses of Valencia, Tarazona, Geronna, Lerida, Salamanca, and Tortosa) and they state that they had injured and wounded certain clerics and laymen in the Roman curia without specifying how many and under what circumstances.24 In certain cases there was a question about quarrels between men who certainly knew each other already. Such must have been the case of Hugo Mongin, a cleric from the diocese of Besançon, who had hit and wounded in the Roman curia a certain cleric, Johannes Ulphini, from the same diocese. It is possible that the men had travelled together to Rome to take care of some business and had ended up fighting in the curia. Another possibility is that the men were both working as clerics in the curia, but the

20 21

22

23

24

About him, see Schmugge, Hersperger and Wiggenhauser , Die Supplikenregister, 47. ASV, Penitenzieria Ap., Reg. Matrim. et Div., vol. 7, fol. 256v-257r: Frater Rollandus Hospitis monacus in Romana curia existens quendam clericum percussit, quare excommunications sententiam incurrit. Supplicat igitur quatenus ipsum a dicta excommunicationis sententia absolvi mandare dignemini. Fiat de speciali, Phi. S. Laurentii in Lucina. ASV, Penitenzieria Ap., Reg. Matrim. et Div., vol. 8, fol. 192r: Petrus Chance presbiter monacus professus monasterii maioris prope Thuronis ordinis sancti Benedicti in curia Romana quendam clericum percussit et vulneravit, propter quod excommunicationis sententiam in tales generaliter promulgatam incurrit. Et cum idem clericus ad plenum convaluerit, petit absolvi idem presbiter a dicta excommunicationis sententia. Fiat de speciali, Phi. ASV, Penitenzieria Ap., Reg. Matrim. et Div., vol. 13, fol. 177v: Frater Franciscus de Brilhaco prior de Vigon ordinis sancti Benedicti Bituricen. dioc. in curia Romana quendam clericum canonicum Andegaven. percussit et vulneravit, quare excommunicationis incurrit sententiam, a qua petit absolvi. Fiat de speciali, Phi. ASV, Penitenzieria Ap., Reg. Matrim. et Div., vol. 10, fol. 188v: Vincencius Roberti et Ludovicus Adola, Berengarius Martini de Daroca, Gundissalvus de Atera, Guabriel Samso, Guillelmus Berengarius Olzuolos, Petrus Fragerecha et Johannes de Valencia clerici et laicus Valentin., Tirasonen., Gerunden., Ilerden., Salamantin. et Dertusien. civitatis et diocesani manus violentas in quosdam clericos et laicos in curia Romana inieccerunt ac eosdem percusserunt et vulnerarunt, quare excommunicationum sententias in tales latas incurrerunt, a quibus petunt absolvi. Fiat de speciali, Jo. eps Castellanus, regens.

26

KIRSI SALONEN

short petition does not give any hints as to why they had ended up fighting.25 Another petition tells about two men from the Iberian Peninsula who had quarrelled in the curia. According to the text of the petition of Garsias Gundissalvi de Castanneda, priest from the diocese of Burgos, he and a certain Alfonsus Fernandi de Hamusbo, canon of Avila, had had fights in the curia.26 Aloisius de Ghisileriis, a cleric from Bologna assaulted Anthonius de Cassa, a priest from the diocese of Novara.27 Apart from the few cases where the name of the victim was stated, in most cases the perpetrator did not specify the victim by name or by provenance, but simply stated that he had injured a certain cleric or a certain priest (quendam clericum/presbyterum percussit). Why violence? The last point of my essay is the circumstances that led to violent behaviour. Why did these violent crimes take place? In principle, five main reasons for violent behaviour can be distinguished in the Penitentiary cases: 1) No explanation, 2) Instigation of the Devil, 3) Self-defence, 4) Anger/hatred, and 5) Accident.28 Almost all documents related to violent behavior in the Roman curia belong to the first group, i.e., the supplicants do not offer any kind of explanation for why they assaulted their victims. One of them was Didacus de Villa Corta, an acolyte from the diocese of Palencia, who had assaulted a priest without bloodshed (quendam presbyterum in curia absque sanguinis effusione percussit). His petition for absolution was granted by Cardinal Penitentiary Philippus Calandrini on 26 April 1461.29 In only three cases did the petitioners offer some kind of explanation for their behaviour. Two of them fit the fourth group of motivations, anger or hatred. Dominicus Nicolai, cleric from the diocese of Salamanca, explained in his petition, presented to the Penitentiary on 27 October 1462, that he had assaulted a certain priest because of

25

26

27

28

29

ASV, Penitenzieria Ap., Reg. Matrim. et Div., vol. 10, fol. 133v: Hugo Mongin clericus Bisuntin. dioc. quendam Johannem Wlphini clericum eiusdem dioce. in Romana curia percussit et wlneravit, quare excommunicationis sententiam in tales latam incurrit, a qua petit absolvi. Fiat de speciali. Phi. Sancti Laurentii in Lucina. ASV, Penitenzieria Ap., Reg. Matrim. et Div., vol. 7, fol. 128v(-130r): ... Sua nobis Garsias Gundisalvi de Castanneda presbiter Burgen dioc lator presentium peticione monstravit quod olim ipse prout latius tibi exponet et quidam Alfonsus Fernandi de Hamusbo canonicus Abulen in Romana curia existens nonnullas inter se inierunt ... ASV, Penitenzieria Ap., Reg. Matrim. et Div., vol. 9, fol. 185v: Alouisius de Ghisileriis clericus Bononien. manus violentas in quendam presbiterum Anthonium de Cassa Novarien. inieccit in curia, quare excommunicationis sententias in tales tam per processus apostolicos quam aliter latas incurrit, a quibus petit absolvi. Fiat de speciali, Phi. S. Laurentii in Lucina. About motivations and their explanations, see Salonen 2001, p. 294-7 as well as Salonen, “The Apostolic Penitentiary,” forthcoming. ASV, Penitenzieria Ap., Reg. Matrim. et Div., vol. 9, fol. 154v: Didacus de Villa Corta acolitus Palentin. dioc. quendam presbiterum in curia absque sanguinis effusione percussit, quare excommunicationis sententias incurrit a quibus petit absolvi. Fiat de speciali, Phi. S. Laurentii in Lucina.

THE APOSTOLIC PENITENTIARY AND VIOLENCE IN THE ROMAN CURIA

27

hatred (ira motus manus violentas in curia Romana in quendam presbyterum iniecit).30 Garsias Gundissalvi, a priest from the diocese of Burgos, in his turn had ended up in conflict with a certain Sancius in his room with the consequence that Sancius was wounded in the hand (... in curia conflictum cum quodam Sancio et in camera dicti exponentis fecit, in quo conflictu idem Sancius modicum super manu lesus remansit). He obtained absolution from the regent of the Penitentiary, Prothonotarius Galeottus de Oddis, on 21 May 1463.31 The third document is a bit more difficult to fit into the above-mentioned typical categories because the supplicant, Oliverius du Boyfiagn, a cleric from the diocese of Saint Malo, stated that he had acted maliciously, or more exactly: He had maliciously tripped a priest with his foot so that the latter fell to the ground (quendam presbyterum in Romana curia maliciose cum pede ad terram cadere fecit). Oliverius was absolved of his misbehavior on 11 October 1464.32 Conclusions What can be learned from these documents? First, the small number of cases handled in the Penitentiary demonstrates that violence in the curia was not an issue in the Late Middle Ages. The small number of such petitions, only 48 documents, made it difficult to make any kind of reliable statistical analysis on the basis of the material, but it does show that violent behaviour in the curia was a phenomenon that involved persons from almost all parts of Christendom, thus, it was not just a phenomenon of Italian priests fighting with each other. Apart from the two homicide cases, Penitentiary documents indicate that violence in the curia was not especially ferocious. The wording of the documents does not allow us to judge in all cases whether there was a question of violence with bloodshed or not. It seems that in many cases the violent act committed was not especially severe and it was more a question of a fight between two men. Weapons were used in assault only in rare cases, which indicates that it must have been a question of premeditated 30

31

32

ASV, Penitenzieria Ap., Reg. Matrim. et Div., vol. 11, fol. 234r: Dominicus Nicolai presbiter Portuen. quadam ira motus manus violentas in curia Romana in quendam presbiterum inieccit, quare excommunicationis incurrit sententiam in tales generaliter latam, a qua petit absolvi. Fiat de speciali satisfacto primo iniuriam passo et componat cum datario. Jo. episcopus Castellanus regens. ASV, Penitenzieria Ap., Reg. Matrim. et Div., vol. 11, fol. 192v: Garcias Gundissalvi presbiter Burgen. dioc. exponit quod ipse in curia conflictum cum quadam Sancio et in camera dicti exponentis fecit in quo conflictu idem Sancius modicum super manu lesus remansit. Et cum dictus exponens si premissa fecit aut ne supplicat tamen pro eius cauthela, quatenus ipsum a sententia excommunicationis, si quam premissorum occasione incurrit, absolvi mandare dignemini. Fiat de speciali, G. prothon. de Oddis, regens. ASV, Penitenzieria Ap., Reg. Matrim. et Div., vol. 13, fol. 135r: Oliverius du Boyfiagn clericus Maclovien. dyoc. quendam presbiterum in Romana curia maliciose cum pede ad terram cadere fecit ac postmodum de aula sive tenello per vim expulsit, propter quod excommunicationis sententiam imcurrit. Cum autem de percussionibus huiusmodi dictus presbiter convaluerit, petit a sententiis huiusmodi et peccatis ac excessibus huiusmodi dsolvi de gratia speciali.

28

KIRSI SALONEN

violence that probably took place after one became angry with the other for one or another reason. As one might have suspected, most of the victims and perpetrators had clerical standing, but a few laymen appear among the perpetrators as well. This is quite understandable because numerous laypeople had business in the curia, too, and had to be present there. The documents unfortunately do not tell what the perpetrators and victims were doing in the curia. One can suspect that most of them were people who had come to the curia to handle some matter there and had ended up with a fight during their temporary stay in Rome. On the other hand, as the case of the Penitentiary proctor, Johannes de Lapide, demonstrates, some of the petitioners were persons working in the papal curia and thus their presence in Rome was permanent. Unfortunately these documents do not offer many details regarding these conflicts, but at least they demonstrate that violence took place in the papal curia despite it being forbidden under the pain of excommunication. Nevertheless, the small number of these cases shows that most of the people present in the curia observed the norms and behaved properly.

“… KILLINGS, UNFORTUNATELY, TAKE PLACE MORE OFTEN HERE THAN ANYWHERE ELSE:” CIVIL AND CLERICAL HOMICIDE IN LATE MEDIEVAL NORWAY

Torstein Jørgensen

Introduction The quotation in the title is taken from a letter of rebuke from the bishop of Oslo to the people of the district of Upper Telemark in 1395.1 The bishop, who had visited the area, was consternated about what he had seen of violence and killing, both in terms of frequency and the degree of brutality. Whether the bishop was right in his comparative assertion or not can, of course, never be fully ascertained. But it is a fact that according to the preserved late medieval sources this area seems to have been especially stricken with violence and killing.2 From different sources we know that physical brutality and fighting, with or without weapons, often ending in death, occurred frequently in Norwegian society in the late Middle Ages. Altogether, some 300 cases of killing are registered as having been dealt with by the Norwegian civil jurisdictional apparatus during the period from 1300 to 1560.3 When it comes to the ecclesiastical structure, we know from the registers of the office of the Papal Penitentiary that clerics were by no means left out of these matters, either as perpetrators or victims. From the rather limited period of surviving protocols from the medieval operation of this office, i.e., from around 1450 onwards,4 altogether 34 supplications dealing with clerics who

1

2

3

4

” … manndrapp, þuj wær, hænda hær meir æn j nokrom adrom bygdælagom,” Norges Gamle Love (henceforth NGL) 2. Række, vol. I (Kristiania: Grøndahl & søn, 1904), 329. Steinar Imsen, Norsk bondekommunalisme fra Magnus Lagabøte til Kristian kvart, I. Middelalderen (Trondhjem: Tapir, 1990), 91. Olav Solberg, Forteljingar om drap – kriminalhistorier frå seinmellomalderen (Bergen: Fagbokforlaget, 2003), 15; Steinar Imsen, “Den gammelnorske drapsprosessen,” Historisk Tidsskrift 88, no 2 (2009), 188. The oldest existing protocol dates from 1409. A few scattered volumes are preserved from the first half of the fifteenth century, but a more complete series of annual register volumes have only been preserved from 1450 onwards.

30

TORSTEIN JØRGENSEN

had somehow been involved in killing and violence originated from the Norwegian church province.5 This article will outline different aspects connected to dealing with violence and homicide in late medieval Norway. The act of killing was a most dramatic event that involved a set of societal aspects such as legal proceedings and law, economics in the form of fines and compensation, morals, honour, and sometimes vengeance. For the perpetrator it was a most severe matter that meant that almost everything was suddenly at stake: One’s total existence could end by banishment or pardon, in ruin or restitution. Or it could remain more or less unresolved, or result in cases when the decisions of the courts and authorities were not enforced, such as when the imposed compensations were not paid and acts of revenge from the offended party entailed more killing. Particular focus will be put on cases of killing in which clerics were somehow involved. Clerics committing crimes were, in accordance with the privilegium fori, in principle only to be put on trial by ecclesiastical courts. In the later Middle Ages such cases were also among the matters that the popes reserved for themselves to decide, i.e., they could no longer be resolved by local bishops or archbishops, but had to be addressed to the Holy See. First, I will take a closer look at the issue of homicide in medieval Norway as treated by the civil system of justice. This will function as a backdrop for my second and more detailed focus on acts of violence and killing in which clerics were involved. Finally I will draw some perspectives on the connecting lines between the two. Homicide and the civil system of law and jurisdiction Two kinds of killing - the ubotamål and the botamål Old medieval Norwegian legislation distinguished between two categories of homicide that to some extent can be compared with the modern distinction between murder and manslaughter. The more serious felony of the former kind is often referred to in Norwegian texts as nidingsdrap, which indicates that the killing was a most disgraceful act of shame and dishonour.6 Examples of nidingsdrap are murder in the qualified sense as a premeditated act, killing of a close relative,7 or in places of peace, protection

5

6

7

All registered penitentiary supplications are published in Torstein Jørgensen and Gastone Saletnich, Synder og pavemakt: Botsbrev fra Den Norske Kirkeprovins og Suderøyene til Pavestolen 1438-1531, Diplomatarium Poenitentiariae Norvegicum (Stavanger: Misjonshøgskolens forlaget, 2004). See, for instance, Gulatingslovi, trans. Knut Robberstad (Oslo: Samlaget, 1952), IX, 29, p. 186, Magnus Lagabøters Landslov (henceforth MLL), trans. Absalon Taranger (Oslo: Universitetsforlaget, 1915-79), IV, 3-6, p. 44-47. Such as parents, children, brothers, and sisters.

“KILLINGS, UNFORTUNATELY, TAKE PLACE MORE OFTEN HERE THAN ANYWHERE ELSE”

31

or safe conduct,8 or killing someone by setting fire to a locked house. Together with other kinds of the most severe felonies these kinds of killing were categorised as ubotamål9 and the perpetrator was called ubotamann.10 The terms refer to an act of killing and a person who had committed homicide in a way that was so grave that it could not be compensated by fines, neither to the relatives of the murdered person nor to the king. The general sentence to be imposed on culprits of this category was to declare them outlaws and confiscate their property.11 Often such a person was simply put to death, either randomly by anyone12 or by an official execution.13 In many cases banished persons managed to flee the country, but some are also known to have remained untouched in their local communities.14 If, on the other hand, it was possible for the killer to raise an argument of sufficient mitigating circumstances, the act would be categorised as botamål15 and the perpetrator would be declared botamann.16 In such a case the culprit would be sentenced to pay compensation to the family of the deceased person and, in most cases, a fine to the king. In fact, a decisive condition for a homicide case to be accepted as botamål was that the person who had actually and in objective terms caused another’s death declared the killing on himself in public. This announcement was called viglysing, and was supposed to take place within the county, normally at the nearest farm unless it was inhabited by relatives of the deceased, on the same day as the killing had been committed.17 If, on the other hand, the killer committed his crime in secret or tried to conceal his act or to escape, the crime would be regarded as murder, or as the Landislaw of King Magnus the Lawmender puts it, “But if he does not in this way declare the killing, then he is a proper murderer and has forfeited his livestock and his peace.”18 The category of cases that could be resolved by fines and compensation is by far the best documented in the preserved source material. This is not surprising since 8 9 10

11

12 13 14 15 16

17

18

Such as churches and churchyards, thing locations and courts and somebody’s own home. A criminal act that cannot be solved by indemnification. A person who has committed a crime that cannot be resolved by indemnification. MLL, IV, 2-6, p. 4347. Gulatingslovi, IX, 29, p. 186. For a wider overview of crimes leading to sentences of banishment and confiscation, see MLL, IV, 3, p. 45-47. MLL, IV, 3, p. 45. MLL, IV, 9, p. 49. Solberg, Forteljingar om drap, 28. A criminal act that can be resolved by indemnification. A person who committed a crime that can be resolved by indemnification; Imsen, “Den gammelnorske drapsprosessen,” 185-229. “If someone kills another, then that person is the slayer who declares the killing on himself. But the killing shall be announced on the same day within the county, and he shall tell his name and his place of dwelling for the night, and the place from where he comes, and he shall state his declaration to a free and full-grown man.” MLL, IV, 12, p. 51-12. See also Imsen, “Den gammelnorske drapsprosessen,” 199-200. MLL, IV, 12, p. 51.

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this kind of case required more argumentation and deliberation, and not least negotiation on economic issues, than the more straightforward ubotamål cases. But due to this imbalance and the generally low number of cases it is impossible to suggest any numerical proportion between ubotamål and botamål cases.19 Documentation Within the civil system of legal procedure the treatment of botamål cases is reflected in different kinds of documents. In the first instance the killer would be in need of a so-called gridsbrev,20 i.e., a letter authorised by the king21 that granted him the right to remain untouched for the period when his case was under investigation and trial. It seems that a common procedure was that the culprit himself travelled to the royal chancellery and brought the letter back to the local authorities.22 Another point of this letter was to instruct the magistrate of the district or some other official to investigate and try the case, to register the facts of the event as accurately as possible by hearing witnesses. The result of this investigation was then put on paper in a so-called provsbrev,23 i.e., a letter of proof, addressed to the king. If the king accepted the argumentation presented in the letter of proof that the circumstances of homicide included enough mitigating elements to classify the killer as a botamann, a so-called landsvistbrev24 would be issued in the name of the king. This document granted the killer the right to live in peace in the realm once the fines imposed and amounts of compensation had been paid. Since killing was a matter of considerable public interest, not the least in the setting of the perpetrator’s and victim’s local community, the contents of the landsvistbrev seem to have been publicly announced at the local things. When the fines to the king had been received a kvitteringsbrev, i.e., letter of receipt, would be issued.25 With these two documents in possession the case was in principle resolved as far as the relation to the king was concerned. A remaining matter, however, was the settling of accounts with the kinsmen of the deceased. Fines and compensation Whereas murderers forfeited all their property – and were happy if they saved their lives by escaping – two kinds of penalties were levied on the part of the king on 19 20 21 22 23 24 25

Imsen, “Den gammelnorske drapsprosessen,” 188. Solberg, Forteljingar om drap, 29; Imsen, “Den gammelnorske drapsprosessen,” 200-2. The letter was normally issued by the royal chancellery. Imsen, “Den gammelnorske drapsprosessen,” 200. Ibidem, 203-9. The document could also be called drapsbrev, i.e., the letter that reported the killing. Ibidem, 216-9. Solberg, Forteljingar om drap, 29.

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killers who had the established status of botamenn. One was a fine called tegngjeld, established to compensate the king for the loss of one of his subjects;26 the other, called fredkjøp, was instituted as a purchase of the king’s peace.27 The former seems to have been imposed on the basis of a certain tariff, which, however, could be increased or reduced according to the circumstances. The latter seems to have been more the object of individual evaluation in each case.28 Notification of the amounts of these fines was the main issue of the landsvistbrev. For someone who had committed homicide the resolution of the case with the civil authorities was, of course, the first priority as far as questions of guilt and economy were concerned. The settlement with the kinsmen of the deceased, however, was also of the highest importance. The economic compensation levied on a killer and paid to the relatives of the victim was called frendebot.29 In some cases, such as if the killing was accidental, the king could abstain from claiming any kind of fine at all from the perpetrator. This did not, however, alter the necessity of compensating the kinsmen.30 The process of meting out this compensation, which included both an economic settlement and a formal reconciliation between the two parties, was normally a matter organised on the local level, either between the parties themselves or by the local law speaker assisted by members of some kind of jury.31 Examples of the size of the frendebot that we have from the sources show that this could be a very expensive affair and could be meted out in gold or silver, land or cattle. Sometimes the levied burden was so heavy that it took years until the final settlement was completed. And until this was done, the case was still pending. Sometimes the unsolved case could also be submitted to the authorities, with whom the killer could lose his status as botamann and be re-convicted as ubotamann.32 But the kinsmen of the victim could also take the matter into their own hands and revenge themselves on the killer. An example of this course of action is described in a letter of proof from 1315. The document tells of a killer who had obtained his royal gridsbrev, which he read in public, and also offered compensation to the family of the deceased. But the killer never applied to the magistrate for investigation of the case and the family of the deceased never saw anything of the promised compensation. Instead, six kinsmen of the killed man found the killer and put him to death, apparently

26 27 28 29

30

31 32

Tegn=subject, gjeld=dept. Fred=peace, kjøp=purchase. MLL, IV, 2 and 6; Imsen, “Den gammelnorske drapsprosessen,” 220-1. Frende=kin, bot=fine, compensation. Solberg, Forteljingar om drap, 29; Imsen, “Den gammelnorske drapsprosessen,” 202, 223-227. In this we see a distinction between punishment and compensation. Imsen, “Den gammelnorske drapsprosessen,” 213-4. Diplomatarium Norvegicum (henceforth DN), I, No 297; Imsen, “Den gammelnorske drapsprosessen,” 217. DN I, No 153; Imsen, “Den gammelnorske drapsprosessen,” 216.

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motivated by the idea that if compensation failed revenge was better for the honour of the family than nothing.33 Homicide among clerics and the ecclesiastical system of legal and penitentiary procedures Turn to the dominion of the medieval Church, the statutes of canon law and the legal procedures developed over the centuries to deal with matters pertaining to its jurisdiction reached into all corners of Western Christendom including the very northernmost of its provinces, the Norwegian archdiocese of Nidaros. The established system was in itself a well-structured tool for church authorities to deal with these matters both in theoretical terms as issues of theological and juridical nature and as far as procedures were concerned. The actual application and practice of the system in local communities far from the centre of the papal curia was, however, another matter. Also, when it came to the treatment of violence and killing in which clergymen were involved the statutes of canon law were, of course, both in theory and practice the basic platform for handling such cases. The main point here was that clerics who committed or took part in violence or killing ipso facto became irregulars.34 This implied that their priestly acts became invalid, and in practice such a person fell into a state of suspension.35 The need for a solution was therefore important. Since the act belonged to the so-called reserved delicts,36 i.e., matters that the pope had reserved for the papal administration to resolve, cases of this kind had to be sent all the way to the Holy See. On the mandate of the pope, the Apostolic Penitentiary was the principal office that was commissioned to deal with cases of clerical violence and killing.37 It is, however, important to note that although canon law principles formed the grounds upon which this office handled the cases submitted to them, the aim of the procedure was not only the execution of justice, but also, and no less important, the administration of divine grace. Of the already-mentioned 34 Norwegian cases of clerics involved in violence and killing registered as having been submitted to the Penitentiary Office, 27 supplications deal with killing and seven with violence. In 29 of the cases the perpetrators were clerics38 in the remaining five cases they were the victims.39 33 34

35

36 37 38

DN II, No 123; Solberg, Forteljingar om drap, 81-7. Corpus Iuris Canonici, II, Liber Extra 5.31.10, ed. Aemilius Friedberg, II, (Leipzig 1879, reprint Graz: Akademische Druck- und Verlagsanstalt, 1959), col. 838. Johannes Baptist Sägmüller, Lehrbuch des katholischen Kirchenrechts I (Freiburg: Herder, 1914), 226-7, Ludwig Schmugge et al., Die Supplikenregister der päpstlichen Pönitentiarie aus der Zeit Pius’ II. (1458-1464) (Tübingen: Niemeyer, 1996), 99. Provision from Lateranum II, 1139. Sacra Poenitentieria Apostolica. 24 cases of killing and five cases of violence.

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Documentation Three stages of documentation reflected the course of such cases, namely, the supplication from the perpetrator, the letter of reply from the penitentiary office, and the records of register protocols kept in this office. In the supplication the petitioner presented his or her case to the Penitentiary. For the purpose of speedy and efficient treatment the supplication had to be submitted in accordance with the so-called curial style,40 stressing the elements and aspects of the case that were relevant for an assessment according to canon law. Normally the supplication thus passed through the hands of one of the proctors officially commissioned to work as mediators between petitioners and the curial offices.41 Since clerics who had committed homicide – as irregulars – had an urgent need to have their cases resolved, they often travelled to the Holy See with their own supplications. Other cases which were not so urgent could be brought to Rome by messengers. Unfortunately, it seems that the Penitentiary office found no reason to keep the original supplication. They were supposed to have been handed back to the petitioner and, since they were generally not written on parchment but on paper, most of them have been lost.42 If the supplication was granted the resolution was passed on to the petitioner in the form of a littera ecclesiae, i.e., a letter of reply.43 As a letter primarily of personal value to the petitioner, at least in the matter of clerical violence,44 he was supposed to keep it as long as he lived, but after his death it lost its relevance. Since these documents were generally composed on parchment, however, they have survived in limited numbers in different archives around the world.45 Sometimes the grant was given unconditionally, but sometimes it was commissioned to the curial auditor for juridical examination or to the ordinarius, in most cases the local bishop, for an assessment of the facts of the case. The third category of documentation of penitentiary petitions, which lays the groundwork for more substantial research on these matters today, consists of the re39 40 41 42

43 44

45

Three cases of killing and two cases of violence. Stilus curiae. Schmugge et al., Supplikenregister, 19. Ibidem, 19-20. Filippo Tamburini, “Suppliche e lettere di penitenzieria (sec. XIV-XV),”Archivium Historiae Pontificae 11 (1973), 149-208. See also Torstein Jørgensen and Gastone Saletnich, Letters to the Pope: Norwegian Relations to the Holy See in the Late Middle Ages (Stavanger: Misjonshøgskolens forlaget, 1999), 28-9. Schmugge et al., Supplikenregister, 18. In other matters, such as the marital cases, the grace from the Pope was generally relevant also for the children and other relatives of the petitioners. Only one document of this category referring to the Norwegian church province seems to have survived. The littera was issued in Rome on 2 April 1400 and authorised the bishop of Stavanger to absolve a priest of homicide on the condition that the killing was committed in self-defence. DN, IV, No 709, p. 521-2. For the English translation, see Jørgensen and Saletnich, Letters to the Pope, 402.

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corded versions of the resolved cases in the register protocols of the penitentiary office. These registers include, however, only the cases granted. The refused cases did not change anything in the case of the supplicant and were worthless both to him and the papal curia. Most likely the negative decisions of the penitentiary were simply added to the sheet of the supplication which was sent back to the petitioner, who on his side cannot have been very interested in keeping it. The penitentiary protocols contain thousands of supplications from all over Western Christendom, of which those from clerics who had killed or hurt someone and from laymen who had killed or hurt clerics form an important part. However, as already mentioned, the oldest surviving protocols date only from the fifteenth century onwards.46 Argumentation and aim of the petition The ecclesiastical system also had a categorisation of cases that can be seen as a kind of parallel to the distinction between botamann and ubotamann. But unlike civil cases, the matter at stake in the ecclesiastical realm was not a question of life and death or different kinds of fines and monetary compensation to the victims. For a cleric who had killed someone and become irregular it was a matter of keeping or losing one’s means of livelihood. And both for him and for a lay person who had killed a priest the state of excommunication from the Church was a matter of the greatest importance implying that no less than one’s hope for eternal salvation was at stake. As far as economy was concerned, the submission of a supplication to the pope also had its costs, for travelling or sending the petition, and in terms of fees to be paid at different stages of the process. Also, clerics who had killed someone were not exempt from the civil imposition of compensation to the victim’s relatives. When guilt is admitted For priests who had killed and addressed the curia there were two main options: They could plead guilty or not guilty. If the guilt was obvious, the aim of the petition would simply be to obtain a papal absolution.47 For such a petitioner there was no need to go into detail about the course of events of the case. The decisive points were that an act of homicide had been committed, that the perpetrator was a priest, that

46

47

Only scattered protocols date from the first half of the century, but from 1450 onwards a more complete series of annual register protocols is preserved. For examples from the Norwegian material, see Archivio Segreto Vaticano (henceforth ASV), Penitenzieria Reg. Matrim. et Div., vol. 5, fol. 146r, vol. 5, fol. 294v, vol. 15, fol. 86r, vol. 18, fol. 183v, vol. 44, fol. 164v; Jørgensen and Saletnich, Synder og pavemakt, no. 39, 40, 44, 46, 79.

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he had been sentenced to excommunication, and that guilt was admitted. Thus, the records of these cases48 are generally short. An example of a standard supplication of this kind, as recorded in the penitentiary registers, is that by the priest Ivarus Gunnari, or Ivar Gunnarsson, which must have been his Norwegian name, who had killed another priest: Blessed Father, Your devoted Ivar Gunnarsson, priest from the diocese of Oslo, explains to Your Sanctity that he one day, instigated by the devil, killed a priest, thereby incurring the sentence of excommunication, as generally promulgated in such cases. The said petitioner now asks that Your Holiness may absolve him from the crime of homicide and in the same way from the sentence of excommunication and from his other sins, by ordinary mandate. Granted, by ordinary mandate, Dominicus, Santa Croce, Rome, 18 August, 1456.49 When guilt is not admitted If on the other hand, it was possible, as in some of the civil cases mentioned above, to avoid guilt on the basis of extenuating circumstances the perpetrator could plead innocent. The aim of the petition to the pope in such a case was a papal letter to confirm this innocence. Such a document would have the effect of debarring accusations of the opposite in the community of the supplicant, or as is often expressed in the texts, “to stop the mouth of”50 ignorant and simple accusers who thought otherwise about the question of guilt. The confirmation from the pope, which was issued in the form of an official declaration, generally also authorised the supplicant to remain in office and to be eligible for other offices and benefices. A special characteristic of the supplications in which the petitioner asked for a papal declaration of innocence is that they contain a longer narrative section in which the details of the dramatic event are 48

49

50

The supplications from laymen who had killed or hurt clerics and whose guilt had been settled follow the same pattern as the same kind of petitions from clerics. The aim was papal absolution and a lifting of the state of excommunication. ASV, Penitenzieria Reg. Matrim. et Div., vol. 9, fol. 178r, vol. 8, fol. 184r, vol. 18, fol. 183v, vol. 35, fol. 152r, vol. 38, fol. 251r; Jørgensen and Saletnich, Synder og pavemakt, no 6, 42, 47, 68, 77. The English version is my own translation of the following Latin text: Beatissime Pater, exponit Sanctitati Vestre devotus vir Ivarus Gunnari presbiter Asloensis diocesis quod ipse olim dyabolo instigante quendam presbiterum interfecit, propter quod sententiam excommunicationis incurrit in tales generaliter promulgatam. Supplicat Sanctitati Vestre predictus exponens quatenus ipsum a reatu homicidii ac sententia excommunicationis huiusmodi et peccatis suis aliis absolvi dignemini, ut in forma. Fiat in forma. D, S Crucis. , xv kal. sept. . ASV, Penitenzieria Reg. Matrim. et Div., vol. 5, fol. 294v; Jørgensen and Saletnich, Synder og pavemakt, no 40. ”… ad ora igitur … obstruenda …”. See, for instance, ASV, Penitenzieria Reg. Matrim. et Div., vol. 41, fol. 277r-v; Jørgensen and Saletnich, Synder og pavemakt, no 78.

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recounted. The text below can serve as an example to illustrate the different formats of a supplication for absolution versus a petition for a declaration of innocence. The supplication reports the case of the priest Jon Ingemundsson, of the diocese of Stavanger, who killed his servant, Hermann Bolbersan, in a quarrel about salary, probably in the year 1483: Jon Ingemundsson, a priest from the diocese of Stavanger, explains that one evening he was sitting at the dinner table in a house together with Hermann Bolbersan, a layman, who, when he was still alive, was his servant, on purpose to eat or to refresh himself. It then happened during an exchange of words between them that the said Hermann demanded from the petitioner the salary owed to him by the latter for his service or his job as a servant. Since the petitioner refused to pay the salary when he was asked, Hermann added that he would kill him in case he did not satisfy his request immediately. When the petitioner again refused to pay, Hermann struck the said petitioner with a sword he held in his hands, and with one blow pierced and ripped the latter’s coat at his right shoulder without, however, injuring his body. The petitioner, afraid of being exposed to Hermann’s anger and by no means intending to kill Hermann but rather to keep him away and to block his hands, averted violence by violence. With a small knife he had used at the table he injured Hermann with one stab in the chest. Of this Hermann died before nightfall. Although the petitioner was not guilty of this death other than in the aforementioned manner, but has been mourning his death deeply and is still mourning, and has a devoted and fervent desire to serve licitly in all his holy and priestly orders, some people who are envious of the petitioner assert, however, that he thus has made himself guilty of homicide and therefore is unable to licitly serve in all his holy and priestly orders. To silence the voices of these detractors the said petitioner now asks Your Holiness for a declaration to be issued stating that by what happened he neither made himself guilty of homicide nor incurred any stain of irregularity or inability, but unimpeded by the said circumstances, can freely and licitly serve in his holy orders by special mandate. Granted as below, Julianus, Bishop of Bertinoro, Regent. To be committed to the ordinary, who, provided that the necessary inquiries prove that the petitioner by averting violence with violence hit Hermann in self-defence against mortal danger, shall declare as is requested. Rome 9 February, 1484.51 This text is by no means the longest in this category, but it gives a good impression of the way in which such a petition was set up. As a letter whose main purpose was to argue that the petitioner met the requirements of one to be granted a declaration of

51

For the original text, see the appendix.

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innocence, a somewhat longer presentation of the course of events of the case was needed. The background of the actual conflict is stated briefly, in this case a servant’s claim of a salary from his clerical master. The scene of the case is a banquet at someone else’s house where both the priest and his servant sit at the same table as guests. The situation seems to be peaceful at the beginning, until the servant states his claim. Nothing is indicated as to whether the claim was rightful or not, nor was this an issue once the case developed into a homicide case. The description of the course of events is, despite its qualities of a dramatic narrative, a strictly edited version focused on, and more or less limited to, the points which are in favour of the petitioner that are relevant for the evaluation of the case in the penitentiary office. One crucial point in the trial of the case was the context in which the weapon was used, especially, as mentioned above, if a situation of self-defence could be established.52 Violence used in self-defence was regarded as an act within the framework of the law (vis licita). There is no doubt that the motif of self-defence was applicable to the case of Jon Ingemundsson, attacked as he was by the sword of his servant, trying to block the attacker’s hands. In such a situation to avert violence by violence was accepted.53 The term vim vi repellendo is a term with deep historical roots in pre-Christian Roman law. In the penitentiary supplications the term is one of the most frequently occurring points in texts where a petitioner applies for an apostolic declaration of innocence.54 Also, the tool used by the priest in this case to commit the killing was within the acceptable framework of canon law. Generally clerics were not allowed to carry and use weapons, as formulated in the Liber Extra: Clerici arma portantes et usurarii excommunicentur,55 but sometimes it was difficult to distinguish between weapons and tools. Axes and knives could be used for both purposes, and it was often the use rather than the item itself that decided if it was one thing or the other. The use of a small knife for cutting bread, for instance, was, of course, allowed for a priest.56 Thus, in addition to the circumstance of self-defence also the fact that the item used for the killing was a 52 53

54 55 56

Clementinae 5.4.1., Friedberg, Corpus Iuris Canonici II, col. 1184, Schmugge et al., Supplikenregister, 99, Corpus Iuris Canonici, II, Liber Extra 5.39.3: … si in continenti vim vi repellat, quum vim vi repellere omnes leges imniaque iura permittant. Friedberg, Corpus Iuris Canonici II, col. 890. Schmugge et al., Supplikenregister, 176. Corpus Iuris Canonici, II, Liber Extra, 3.1.2; Friedberg, Corpus Iuris Canonici II, col. 449. Stephan Kuttner, Kanonistische Schuldlehre von Gratian bis auf die Dekretalen Gregors IX: systematisch auf Grund der handschriftlichen Quellen dargestellt, Studie e testi 64 (Città del Vaticano: Biblioteca Apostolica Vaticana, 1935), 342-3. Examples: ASV, Penitenzieria Reg. Matrim et Div., vol. 16, ff. 128r-v; vol. 48, ff. 428r-v; vol. 59, ff. 363v-364v; vol. 77, ff. 9v-10r; Jørgensen and Saletnich, Synder og pavemakt, no 26, 29, 35, 65, Dan Sebastian Crişan, “Physical Violence and the Church: The De Declaratoriis Supplications from the German-Speaking Area during the Pontificate of Paul II,” MA thesis (Budapest: Central European University, 2006).

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small table knife is a most relevant point in the penitentiary evaluation of his case. The priest’s conduct and use of weapon also comply with the canon law principles of moderation. According to these the violence of the defender was not allowed to be stronger than that of the attacker. The so-called moderamen ratione instrumenti-principle implied that the weapon used was lighter and not heavier than that of the attacker.57 The text of this supplication also mentions something about the killer’s motives and general attitude. Already at the beginning it is stated that Jon’s purpose in attending the dinner was to eat, and nothing else, let alone some hidden intent of killing his servant. As grounds for his petition it is, by the use of rather fixed formulas, stressed that the supplicant has been mourning Hermann’s death and is still mourning it and that he has a devoted and burning desire to continue to serve in his orders in a licit way. The theological underpinning of canon law principles and their actual administration becomes visible in these formulations about a pious and compassionate person, to some extent a repentant sinner, with a strong holy vocation in his heart. For absolution to be obtained, which in fact was no less than the granting of divine grace, a repentant heart was necessary.58 Even in cases when guilt was not admitted, as in the case of Jon Ingemundsson, the demonstration of a clean and pious heart was relevant when assessing whether a person was innocent or not. A zealous determination to be faithful to one’s vocation was also an argument in this. When the guilt question is pending In the ecclesiastical system, there was also a third possibility that did not exist in the civil structure, namely, that of pleading not guilty and at the same time applying for absolution59 as a precaution against some guilt being attached to the event in spite of one’s argument for the opposite.60 Like the supplications for a declaration of innocence, the petitions for an absolution as a precaution against possible guilt also include longer narrative passages. An example of a supplication of this kind is that by the priest Bavald Larsson, from the diocese of Nidaros, who killed his drunken servant, Gudleik Eriksson, in 1514 or 1515. This killing also took place in connection with a banquet. The text briefly sketches a situation in which the drunken Gudleik broke into the setting of a peaceful meal and started to attack another of Bavald’s servants. After several vain attempts to reprove Gudleik, the priest punched him on his chin so he fell to the ground. When standing up again the drunken servant pulled his belt-knife and threw himself 57 58 59 60

Kuttner, Kanonistische Schuldlehre, 340-1. Cfr the principle of confession in the general term of contritio cordis et confessio oralis. In the civil structure the corresponding grace would have been a reprieve. Examples from the Norwegian material: ASV, Penitenzieria Reg. Matrim et Div., vol. 46, fol. 256r-v; vol. 48, fol. 428r-v; vol. 59, fol. 363v-364v; vol. 48, fol. 613v-614r; vol. 62, fol. 612v-613v; Jørgensen and Saletnich, Synder og pavemakt, no 24, 26, 29, 54, 61.

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against the priest, who for his part, in order to defend himself, had drawn a small knife that he was carrying. In the heat of the fight the priest’s knife caused a wound in Gudleik’s chest of which he died some days later. This group of penitentiary supplications, like those asking for declarations of innocence, also normally contains the same standard formulation stating that the petitioner is not guilty in any other way than as described in the account of the event. But instead of asking for a declaration to confirm innocence in order to silence the mouth of opponents who thought otherwise, these supplicants ask for absolution as a precaution in case they might have been guilty after all. A representative example of this category is the following excerpt from Bavald Larsson’s supplication: The said petitioner did not aim to kill the deceased, but is mourning deeply, and from what has been presented he is not guilty other than in the aforementioned manner since it all happened accidentally. It seems therefore that he is almost without guilt. But it is typical for good people to fear guilt where there is no guilt. He wishes, Holy Father, as a precaution, to be absolved from homicide, if he in this way has made himself guilty of it, and to remain in his orders and to serve at the altar. Therefore, as a precaution, he asks Your Holiness to instruct that this petitioner be absolved from homicide in case he committed such a crime in what has been described.61 These examples show that the argumentation of the supplications for a declaration of innocence and those asking for absolution as a precaution are very similar. Both focus on codified mitigating circumstances supporting the alleged innocence of a priest who has killed someone. The recorded courses of events also follow the same pattern. As far as the stressing of extenuating circumstances is concerned, the variation between the two categories of texts seems no larger than that between texts within each of the two categories. It is, therefore, difficult to give a general conclusion based on the facts of the cases about why some of these petitions asked for a declaration of innocence and others for absolution as a precaution against possible guilt. The best explanation seems to be that in the requests for absolution as a precaution the supplicant himself seems to have harboured doubts about his innocence, either because of the facts of the case or with regard to the canonical evaluation of them by the papal penitentiary. In none of these cases did the assessment of the penitentiary result in the conclusion that the supplicant was innocent by the grant of a declaration of innocence instead of the requested absolution as a precaution against possible guilt. 61

... licet idem orator in mortem dicti defuncti, de qua ab intimis dolet, minime aspiraverit nec de ea, alias quam ut premittitur, culpabilis fuerit, sed premissa casu acciderint et quasi inculpabilis esse videatur, quia tamen bonarum mentium est ibi timere culpam, ubi culpa minime reperitur, cuperetque, Pater Sancte, a reatu homicidii, si quem propter ea incurrit, tutiori pro cautela absolvi ac in suis ordinibus etiam in altaris ministerio manere, supplicat quatenus oratorem ipsum ab homicidii reatu, si quem propter premissa incurreret, ad cautelam et excessibus huiusmodi necnon peccatis etc. absolvi. ASV, Penitenzieria Reg. Matrim. et Div., vol. 59, ff. 363v-364v. T: Jørgensen and G. Saletnich, Synder og pavemakt, No 29.

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An explanation may be that when the grace was granted by the penitentiary cardinal or his regent, the process of assessment was not necessarily fully completed. What could remain were both a more thorough juridical examination and a further clarification of the true facts of the case. Hence, the vast majority of Norwegian supplications of both categories were committed either to the curial auditor or to the ordinary of the supplicant after the grant of the penitentiary, or to both, for juridical evaluation and examination as to whether the written petition agreed with the facts of the case. A standard formulation of this concern was: Granted by special and express mandate, Julianus, Bishop of Bertinoro, regent. The case be committed to the bishop of Mylopotamos, presently residing at the Roman Curia, who will examine whether the petitioner has the necessary evidence for his case as it has been presented in this letter, granted, Julianus. Rome at St. Peter’s, 16 January 1500. 62 Overlaps between the two systems The presentation here of dealing with homicide in the civil and ecclesiastical structures of legal procedures has so far focused on the handling of these cases as if it took place in totally separate rooms. To be sure, there were several similar and more or less parallel features, not the least as far as the principles of reasoning and argumentation were concerned. The good overview that has been established of the documented Norwegian cases of homicide63 leaves the general impression that a rather clear demarcation line between civil and ecclesiastical jurisdiction was in force, i.e., that civil cases of homicide were treated by the civil authorities and cases in which clerics were involved by the ecclesiastical system. The principle of a privilegium fori for clerics, thus, seems to have been respected in the main. The picture was, however, not that simple. Lay killers, of course, were not only forced to deal with civil authorities. They also had to settle their cases with the Church in the form of confession and penance. But these latter processes belonged to the forum internum, normally at the local or regional level, and they entailed little written evidence. Since most of the medieval church archives in Norway, like the rest of Scandinavia, were destroyed during the time of the Reformation, knowledge of all kinds of disciplinary and penitentiary cases as dealt with by local church authorities is limited. This also 62

63

Fiat de speciali et expresso, Iul, episcopus Brictonoriensis, regens; et committatur episcopo Milopotamensi ad presens in Romana Curia residenti attento, quod orator sufficientes probationes ad hoc sibi necessarias habeat in eadem; fiat, Iul Rome apud Sanctum Petrum, xvii kal. febr. anno octavo domini Alexandri pape vi. ASV, Penitenzieria Reg. Matrim. et Div., vol. 48, fol. 428r-v. T. Jørgensen and G. Saletnich, Synder og pavemakt, no 26. As for the civil cases, see S. Imsen, “Den gammelnorske drapsprosessen,” and for the ecclesiastical cases, T. Jørgensen and G. Saletnich, Synder og pavemakt.

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applies to the treatment of cases of homicide committed by the clergy. From other countries it is known that the existence of such local documentation is necessary to obtain a more complete and detailed understanding of the many different aspects that were part of the case.64 Among the homicide cases dealt with by the civil authorities, however, a limited number of cases appear in which the perpetrator was a priest. Although they are few, these documented cases leave an indication that there was also a civil jurisdictional side of the cases of clerical homicide. The question to ask, therefore, is whether this was a violation of the privilegium fori-principle. In order to answer this, a closer look at the Norwegian variant of the medieval discourse between King and Church on the drawing of a demarcation line between civil and ecclesiastical jurisdiction is necessary, here confined to some of the main points. In 1277 a formal agreement, referred to as the Compositio Tunbergensis or the Tønsberg Concordat,65 was signed by King Magnus the Lawmender and Archbishop Jon the Red of Nidaros. A main principle of the agreement is a concession on the part of the king renouncing royal jurisdiction in matters pertaining to Church law – causarum ad ecclesiam spectancium – which he, as the document states, renounces fully – renunciavit … omni iuri.66 Such cases were, again in the words of the document: Cases in which clergymen are at law with one another or are sued by laymen, matrimonial cases, birth, patronage, tithes, holy vows, wills – especially when gifts to churches are involved – monasteries and holy foundations, protection of pilgrims coming to Saint Olav’s or other Norwegian cathedrals’ doorsteps. Further, cases concerning church property, sacrilege, perjury, usury, simony, heresy, concubines, adultery, and incest and all other things which in any way may belong to the ecclesiastical forum according to separate jurisdiction, but with the reservation of royal right in cases in which, according to custom or the laws of the country, fines are to be imposed.67 The reservation stated in the concluding phrase of this paragraph is important to note. The king’s renunciation of jurisdictional rights in the matters listed was limited to cases that did not involve economic settlements in the form of fines. This implies that both 64

65

66 67

A very useful study of such cases is given in Paolo Ostinelli (ed.), Penitenzieria Apostolica: Le suppliche alla Sacra Penitenzieria Apostolica provienti dalla diocesi di Como (1438-1484) (Milano: ed. Unicopli, 2003). In Norwegian referred to as Sættargjerden. See Norske middelalderdokumenter i utvalg, ed. Sverre Bagge et al. (Bergen: Universitetsforlaget, 1973), 136-51. Norske Middelalderdokumenter, 143. Our translation from ibidem: “Omnes cause clericorum quando inter se litigant uel a laicis impetuntur, matrimonium, natalium, iuris patronatus, decimarum, votorum, testamentorum – maxime quando agitur de legatijs ecclesijs et piis locis et religiosis -, tuicio peregrinorum visitancium limina beati Olaui et aliarum ecclesiarum cathedralium in Norwagia et eorum cause. Item cause possessionem ecclesiarum, sacrilegij, periurij, usurarum, simonie, heresis, fornicationis, adulterij et incestus et alie consimiles que ad ad ecclesiam spectant mero iure saluo semper regio iure in hijs causis ubicumque debetur ex consuetudine approbata uel legibus regni mulcta pene pecuniarie persoluenda.”

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the ecclesiastical and civil jurisdictional structures operated in cases entailing penalties, and also in cases that, according to the contents (ratione materiae) or personal status (ratione personae), belonged to the ecclesiastical forum. The dividing line in the question of jurisdiction between the two realms was an issue that was never precisely drawn throughout the Middle Ages, and from time to time it was the object of further discussion and attempts at clarification. Thus, in 1337, the Norwegian National Council issued, after a disagreement between the king and archbishop, a prescript on how the episcopal officialis and the royal lagmann68 should cooperate and share power when fines were to be imposed for violations in the realm of ecclesiastical law.69 In the course of the fifteenth century, already-agreed-upon principles were again confirmed or specified.70 One of the few cases of clerical homicide that was dealt with by the civil authorities dates from 1357. The case was reported in a letter of proof from Telemark County,71 the very district that was rebuked by the bishop of Oslo for widespread violence, as mentioned at the beginning of this article. The letter contains a longer narrative section, similar to that found in the penitentiary supplications for a papal declaration of innocence, reporting the course of events of the case. The killing took place at the manor of the priest Guttorm Thorlaugsson, who had been found at his home by three aggressive neighbours. A dispute of words escalated into a free fight and ended with the priest killing one of the intruders with a blow to his head with an axe. The letter also states that the priest who committed the killing, in accordance with civil law,72 declared the killing on himself at a neighbouring farm before nightfall. The examination of the case by the hearing of witnesses and the summoning of the heirs of the deceased also follow the ordinary procedures of a civil homicide case. But it also bears clear similarities to the penitentiary supplications, such as the argument stressing similar mitigating circumstances. When it comes to the conclusion about the guilt question, the standard term used in the Norwegian letters of proof, i.e., the word ufyrirsynja,73 is a parallel to the standard formulation – cum autem ipse exponens alias quam ut premittitur culpabilis non fuerit – of the penitentiary petitions for declarations of innocence. It is not known whether the way this case was dealt with in the civil jurisdictional system had a parallel in the ecclesiastical structure, i.e., whether it was not only reported to the royal chancellery in the form of a letter of proof with a petition for a landsvistbrev, but also to the papal administration in the form of a supplication for a de68 69 70 71 72 73

Law speaker. NGL 1, III, p. 161-2. NGL 1, IV, p. 160-82; 2, II, p. 140-4; 1, II, p. 270-1. DN I, no 359. See above, note 17. The term is normally translated with the word “inadvertently,” but in fact it covers a wider range from “accidental” to “by some kind of intent.”

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claration of innocence. As already mentioned, the oldest surviving penitentiary supplications date from the early fifteenth century. The fact, however, that Guttorm’s case was brought to the king as far as the matter of fines was concerned – to the king in the form of tegngjeld and fredkjøp and compensation in the form of frendebot to the kinsmen of the deceased – was in agreement with the established regulations of royal and ecclesiastical jurisdiction. The letter of proof in the case of the priest, Guttorm Thorlaugsson, who killed a man, does, however, follow the general pattern of such letters in every respect. Thus, it leaves the impression that a cleric who had committed homicide was, or could be, treated in exactly the same way as a layperson who killed someone. Conclusion Because of the general scarcity of sources it is difficult to draw a more complete and consistent picture of how clerical violence was dealt with in Norway in the high and late Middle Ages. Very few cases are witnessed by more than one document, so it is impossible to follow the sequence of a case as it was dealt with by the authorities. It seems that civil and ecclesiastical authorities managed to agree upon some basic principles of a dividing line between their fields of jurisdiction and to some extent these principles were followed. During the period of preserved cases from the Apostolic Penitentiary office, supplications were regularly submitted by Norwegian clerics who had committed homicide, and a number of similar cases regarding laymen in the civil structure are registered and preserved in the sources. An overlapping field between the two realms is to be found in cases involving fines. But in some cases, as in the one described from Telemark, the royal power seems to have overruled the agreed-upon balance of power.

´

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Appendix 1484, February 9: Supplication of the priest Jon Ingemundsson, who had killed his servant, to the Apostolic Penitentiary: Iohannes Ingemundi presbiter Stawargensis diocesis quod, cum ipse olim in quadam domo de sero in mensa seu tabula cum quodam Hermanno Bolbersan laico ipsius domini adhuc vivente familiari animo ibidem comedendi seu se recreandi cum sedisset, accidit quod inter verba inter eos habita, dictus Hermannus ab ipso exponente salarium, in quo sibi ratione famulatus seu servicii erat obnoxius, primum dari petiisset et cum sibi petenti huiusmodi salarium dare obstinuisset, demum et ipse Hermanus1 subiunxisset quod nisi ipse exponens sibi ad statim de salario huismodi satisfaceret, eum interficeret, uti et tunc ipse Hermannus dictum exponentem quam primum tunc non solvebat, in ipsius scapula dextra vestes sibi cum quodam gladio, quem in suis tenebat manibus, unico ictu perforando seu scindendo absque tamen sui corporis lesione percussit, et cum exponens furori ipsius Hermanni cedere pavesset, non animo ipsum Hermannum interficiendi, sed potius ipsum a se divertendi et ut manus eius impedire possit vim vi repellendo cum quodam parvo cultello, quo ipse exponens in dicta mensa seu tabula utebatur, in illius pectore unico actu vulneravit, ex quo idem Hermannus illatenus nocte diem vite sue clausit extremum. Cum autem, Pater Sancte, dictus exponens in morte dicti Hermanni, absque ut premittitur, culpabilis non fuerit, ymo de ipsius morte ab intimis doluerit et dolet de presenti, cupiatque ex magno devotionis fervore in omnibus etiam sacris et presbiteratus ordinibus suis licite ministrare, a nonnullis tamen ipsius exponentis emulis asseritur ipsum propter premissa homicidii reatum incurrisse et propter ea in omnibus sacris etiam presbiteratus ordinibus suis licite ministrare non posse; ad ora igitur talium etc. emulorum obstruenda, supplicat eidem Sanctitati Vestre prefatus exponens quatenus ipsum occasione premissorum nullum homicidii reatum incurrisse nullamque irregularitatis sive inhabilitatis notam contraxisse, sed predictis non obstantibus ipsum in dictis suis etiam sacris et presbiteratus ordinibus libere et licite ministrare posse, misericorditer declarari mandare dignemini de gratia speciali. Fiat ut infra, Iul, episcopus Brethonoriensis, regens. Committatur ordinario et si vocatis vocandis sibi constiterit quod exponens vim vi repellendo et se defendendo aliter fugere seu movere non valens evadere dictum Hermannum percusserit, ut prefertur et de aliis expositis, declaret ut petitur. Rome v id. feb. . (ASV, Penitenzieria Reg. Matrim. et Div., vol. 33, fol. 173v; Jørgensen and Saletnich, Synder og pavemakt, no 75).

VIOLENCE AND THE CLERGY IN LATE MEDIEVAL ALBANIA: 1 WITH AND WITHOUT THE PENITENTIARY

Etleva Lala

The history of fifteenth-century Albania is marked by the war against the Ottomans led by George Kastrioti Skanderbeg. This was a large-scale war in which the whole Albanian population participated actively. The reasons for this strong resistance and large participation of the Albanians against the Ottomans are still a hot issue in Albanian historiography.2 Whether this violence was justified as a war to please a leader like Scanderbeg, a war against the occupiers of the homeland of the Albanians, or whether it was called a war against the infidels is an interesting question, but not the real scope of this study. The fact to be emphasized here is that violence was evidently present in the second half of the fifteenth century. As a result of the continuous war against the Ottomans for a period of twentyfive years, the territory was largely devastated and the population was brought to the limits of survival, not only from the economic viewpoint, but also concerning social, political, religious, and cultural aspects of life. Thus, a rise in violent crime in society seems to have been the agenda of the day. Nevertheless, studies of the violence of this time are totally missing with regard to medieval Albania. It is certainly to be expected that in such difficult times crime would touch not only the secular social strata but also the religious ones, which is the focus of this paper. This paper on violence and the Al-

1

2

The paper is the result of a project sponsored by The Fond of Excellence granted by the Albanian Ministry of Science and Education. The results herein are representing the own ideas of the author and do not reflect the opinion of the Albanian Ministry of Science and Education Oliver Jens Schmitt in his book Skanderbeg. Der neue Alexander auf dem Balkan (Regensburg: Friedrich Pustet, 2009; Albanian original Skënderbeu. Tirana, K & B, 2008), presented recently an alternative reason for Skanderbeg’s resistance, personalizing it as simple revenge for the murder of his father. For a hot debate on whether Skanderbeg fought for personal reasons against the Ottomans or for more patriotic ideals see the Albanian press in the period February-May 2009 and especially the studies of Sander Lleshi, Skënderbeu ose misioni i pamundur i Schmitt-it (Skanderbeg or the impossible mission of Schmitt) (Tirana: Onufri, 2009) and Kristo Frashëri, Skënderbeu i shpërfytyruar nga një historian zvicerian dhe disa analistë shqiptarë (Scanderbeg, distorted by a Swiss historian and some Albanian analysts) (Tirana: Dudaj, 2009).

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banian clergy should, thus, only be taken as a first and modest approach towards a largely untouched field of research. Violence by and against the Catholic clergy was certainly not the most frequent and representative type of violence in late medieval Albania. Most sources have survived from the fifteenth century, when Catholicism had a serious setback either because of the Turkish assaults or because of the spread of Serbian Orthodoxy. The Turkish presence in the Balkans endangered Christianity in every respect: institutionally, religiously, culturally, economically, etc. War against the Ottomans implied a considerable amount of violence in the territory, which should have reduced, to a certain extent, the violence among the inhabitants themselves. The aim of this paper lies in pointing out the types of violence applied by and used against the Catholic clergy in Late Medieval Albania. It addresses questions of the extent to which the phenomenon of violence and the clergy was influenced by the generally violent period, by Catholicism’s marginal role and the threats to Catholic identity, and by the social structures in the local communities. The records of the Holy Penitentiary offer important information on what was considered a violent act, although one has to bear in mind that these records record only the cases with happy endings, those which received absolution. Nevertheless, even these represent well the mentality behind the realities. Concerning violence in general, I start this paper with DuBruck’s theory about the relativity of crime perception and judgment in the Later Middle Ages.3 He states that, on the one hand, one could go free after murder by paying some money; on the other hand, the death penalty could follow a simple altercation, a rumor, suspicion, heresy, or general xenophobia. According to him, courts of law existed, but were often avoided in day-to-day operations.4 To the question of why conditions of life entailed so much violence, DuBruck answers that this was because criminality was punished in a lax manner by the authorities and/or frequently pardoned by the princes.5 This resulted in a general atmosphere of fear which then supported the dictum: “it is better to kill than to be killed.” The clergy was a category which in fact was not judged by any secular court, but only by ecclesiastical authorities. This was an old issue, present since the earliest times of Christianity, it was formulated and reformulated many times and discussed and studied thoroughly by many scholars.6 At the local level, this was regulated in the 3

4 5 6

Edelgard E. DuBruck, “Violence and Late-Medieval Justice,” Fifteenth-Century Studies 27, A Special Issue on Violence in Fifteenth-Century Text and Image, ed. Edelgard E. DuBruck and Yeal Even (Rochester: Camden House, 2002): 56-67. esp. 59-61. Ibidem, 59. Ibidem. See Giacomo Todeschini, Visibilmente Crudeli: Malviventi, persone sospette e gente qualunque dal Medioevo all’età moderna (Bologna: Mulino, 2007), esp. the second chapter: “L’infamia evidente,” 43-78.

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provincial council of Bar in 1099, in which it was explicitly mentioned that no one could accuse any cleric or even bring him to any secular court.7 This is the reason why there are so few cases of religious violence in other documents and also why the records of the Holy Penitentiary are of such a great value, although highly formulized. The records of the Holy Penitentiary show some interesting aspects of crimes committed by the religious. It is already known that not all the crimes committed by the clergy were presented at the Holy Roman Penitentiary for absolution, but only a limited number of them. Concerning the Albanian and Montenegrin cases that received absolution, according to these records, the only crimes committed were of two kinds: those causing the death and those resulting in injury to a cleric. A certain Duchas de Comitibus, a layman from the archdiocese of Bar, killed a certain priest, whose name is not written in the record, and received absolution in 1467.8 The entry in the Penitentiary records is very short and does not mention anything about the reasons for this presbytericidium. A similar crime was also committed by another layman, Boga Thuso, from the same diocese. In his case, however, the act was considered as olim dyabolo instigante, which shows that he admitted full responsibility for the crime.9 It is interesting to note that the name of the victim, that is, of the priest who was killed, remains unmentioned in both of these cases. This is not only true for the laymen coming from the archdiocese of Bar, but also for those coming from elsewhere. Georgius Nanessi, a layman from Durres, killed a certain priest, but he remains anonymous. The record of his absolution dates from 1469.10 In the other cases, when violence was so extreme as toend with the death of the victim, the name of the victim is always present in the record. A nobleman from Shkodra, called Jacobus Cole Georgii, injured a priest called Pascales by hitting him on the head (in capite percussit et vulneravit).11 The noblemen Marinus Jonima and Busa Humoy from the same city, hit the deacon Petrus Costa cum pugnis in facie.12 It is important to mention that in all these cases, it was extremely important that the victims fully re-

7

8 9 10 11 12

Milan von Šufflay, “Die Kirchenzustände im vortürkischen Albanien: Die orthodoxe Durchbruchzone im katholischen Damme,” in Illyrisch-albanische Forschungen, ed. Ludwig Thallóczy, vol. 1 (Munich and Leipzig: Verlag von Duncken and Humlot, 1916), 188-282, here 245; Acta et Diplomata res Albaniae Mediae Aetatis Illustrantia, ed. Ludwig Thallóczy, Konstandin Jireček and Milan von Šufflay (Vienna: Holzhausen, 19131918) [henceforth: Acta Albaniae], vol. I, 120; Kristo Frasheri, ed., Burime të zgjedhura për Historinë e Shqipërisë, vol. II (Tirana, 1962), 59; Giuseppe Valentini, Contributi alla Cronologia Albanese (Rome: Reale Accademia d’Italia, 1942, 1944), vol. IV, 15-6; Daniele Farlati, Illyricum Sacrum (Venice: Apud Sebastianum Coleti, 1751-1920), vol.VII, 28-9. Penitenziaria apostolica, Reg. Matrim. et div. , vol. 14, fol. 187v. Ibidem, fol. 190v. Ibidem, vol. 16, fol. 95v. Ibidem, vol. 14, fol. 227r. Ibidem, fol. 227r.

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covered their health, and this is mentioned explicitly in the record with the expression plene convaluit. Violence exercised by the priests themselves is no less frequent in these records. Nicolaus Samuelis and Petrus Bathare, both priests of the canonical church of Bar, attacked and hurt (percusserunt et verberaverunt) a deacon called Laurus, who certainly recovered his health fully (plene convaluit).13 The priest Nicolaus had also a similar incident, and it happened that his aggressor was his own brother (fratrem suum carnalem), Machusinos Miros. It would be highly intriguing to know the reasons behind this act, but all one can find out is that Machusino Miros asked for absolution from the Holy Penitentiary and received it.14 In another case, it is difficult to tell for sure who was aggressor and who the victim. Natalis Schorichic and Marinus Borse, both priests of the archbishopric of Bar, had a fight with each other and both asked for absolution, which they both received in 1471.15 Natalis describes his crime as having hit Marinus in the face (in facie percussit et vulneravit),16 whereas Marinus describes his mischief as presbyterum percussit cum sanguinis effusione.17 The entries are so short and so highly formalized that one cannot figure out any other details. Violence among and upon the clergy in the territories of medieval Albania and Montenegro was recorded quite early in the Albanian territories, not only in the sources of the Holy Penitentiary but also in other sources. These certainly do not imply any penance or requests for absolution, but are pure facts that violence recorded in the Holy Penitentiary was only one part, probably the smallest, of violence in the region. In the year 1199, Dominic, the bishop of Shasi, was accused de homicidii crimine.18 The case was judged by Johannes capellano and Symeones subdiaconus, papal legates in partibus Dioclie. Dominic was forced to abdicate, but through a false papal letter he returned to his seat. When Pope Innocent III was informed about this, Dominic had to escape to Hungary.19 To the question of why Hungary, a convincing answer comes from Pál Engel’s study on the realm of St. Stephen. The end of the twelfth century and the beginning of the thirteenth were characterized by the growing influence of the papacy. Combined with the zeal of the mendicant orders, this put an end to religious tolerance, especially in the 13 14 15

16 17 18 19

Ibidem, vol. 17, fol. 78r. Ibidem, fol. 116v. The case of Natalis Scorichic was recorded in ibidem, vol. 18, fol. 166v, whereas the one of Marinus Borse in ibidem, fol. 182v. Ibidem, fol. 166v. Ibidem, fol. 182v. Acta Albaniae I, n. 122. Constantin Jireček, Staat und Gesellschaft im mittelalterlichen Serbien. Studien zur Kulturgeschichte des 13. bis 15. Jahrhunderts, 4 vols. (Vienna: Im Kommission bei Alfred Hölder, 1912-1919), vol. I, 55; Augustin Theiner (ed.), Vetera monumenta Slavorum Meridionalium Historiam Illustrantia, vol. I: 1198-1549 (Rome: Typis Vaticanis, 1863), no. 10, 13, 53.

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royal courts. After the fourth Lateran Council in 1215, Hungary was probably the only kingdom where large numbers of Muslims still continued to live freely, undisturbed by any restriction. Even worse, there were Christians who had found it advantageous to convert to Islam.20 Such a milieu was certainly an ideal place for any fugitive priest accused of a crime. The earliest regulation against violence at the local level was recorded in the Provincial Council of Bar in 1199.21 The lack of a central secular authority and local quarrels of different parties, which had already started in the twelfth century, reached a peak in 1236, when the life of the bishop of Drivast was sacrificed: he was murdered by the citizens of Drivast.22 The clerics were sometimes also stubborn. In 1249, when the archbishop of Bar tried to suspend a suffrage bishop until he had been nominated by the pope, the bishop ignored his superior’s orders and continued to celebrate mass. Finally the pope suspended all the bishops of the archdiocese until they appeared before him in Rome. Only the archbishop of Bar was excluded from this order, for he was said to be too elderly to travel to Rome.23 Andreas Hungarus (1307-1324), archbishop of Bar, was a similar problematic Catholic personality in the region. He was a Franciscan from Zadar. After some years of archiepiscopal ministry in Bar, he had to step down from his office because the cathedral chapter of Antibari sent many accusations against him to the papal curia in Avignon. He gave up the papal pallium in Avignon, but replaced it with a false one on his arrival back in Bar. With this false authority, he removed Michael, the bishop of Arbanum, and nominated Lazarus, the abbot of the monastery of St. Alexander, as his successor.24 Otherwise, it was typical of him to give incorrect information to the Papal Curia, not to declare the vacant offices or the other way around, to declare offices which were not vacant as vacant, etc.25 There were often powerful archbishops, like Andreas Hungarus, who did not respect papal power, but did as they pleased. As a result, the Curia was badly informed and often nominated bishops where one was already there. Combined with the influence of powerful families, this resulted in double, sometimes even triple, parallel bishops in Arbanum, Alessio, Dagno, and elsewhere in the fourteenth and the fifteenth 20

21

22 23

24 25

Pál Engel, The Realm of St. Stephen: A History of Medieval Hungary, 895-1526, transl. Tamás Pálosfalvi (London and New York: I.B. Tauris Publishers, 2001), 97. Šufflay, “Kirchenzustände”, 245; Acta Albaniae I, 120. Frasheri, ed., Burime të zgjedhura, 59; Valentini, Contributi, vol. IV, 15-6; Farlati, Illyricum Sacrum VII, 28-9. Šufflay, Kirchenzustände, 245; Acta Albaniae I, 169, 195. John V. A. Fine jr., The Late Medieval Balkans. A Critical Survey from the Late Twelfth Century to the Ottoman Conquest (Ann Arbor: The University of Michigan Press, 1994), 46. Theiner, Monumenta Slavorum I, 135, 159; Jireček, Staat und Gesellschaft, 55. Šufflay, “Kirchenzustände,” 246.

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centuries.26 Such misconduct of the leading Catholic authorities in the region certainly had a negative impact on the local community, which was reflected not only in lack of respect but sometimes also in violent actions against the Catholic clergy and institutions. Such was the case in the years 1265-1266, when Andrea Vrana set the church of Rubig27 on fire. This church had become Catholic at that time and was also one of the oldest and most important sanctuaries in the country. A similar act was also attempted at the beginning of the fifteenth century; in 1401, two Franciscans from Durres tried to set fire to their own monastery, for which they were tortured.28 The hostility of the community towards the Catholic authorities, demonstrated from time to time in the sources, was often caused by interaction with the regional secular politics. So, for instance, when the archbishop of Ragusa pretended for the last time to all the territories of the Antibari See (1247-1255), the delegates of the archbishop of Ragusa, who pretended to have been sent by the Pope, were expelled in an unfriendly way by the inhabitants of Bar, shouting: Quid est papa? Dominus noster rex Urosius est nobis papa!29 Fine describes very vividly this occasion: In 1247, after the death of an Archbishop of Bar had created a vacancy in that see, an envoy of the Archbishop of Dubrovnik came to Bar to read a letter expressing Dubrovnik’s rights. The Serbian-appointed prince in Bar tried to be agreeable and neutral. But the leading cleric in Bar at the time, the archdeacon, could not find the time to meet the envoy. The archdeacon refused the first summons because he had to have lunch and the second because he had to go hunting; so eventually the Ragusan archbishop’s letter was read to an assembly demanded by the envoy and convoked by the prince, but attended only by the lay population, with the clerics prominent by their absence. The citizens shouted down the envoy, and when he suggested that the pope supported Dubrovnik’s claim they cried, “What is the pope? Our lord, King Urosh, is our pope!” After this failure the embassy, on the verge of departing, heard rumors that it was to be attacked on the road. So the prince gave it an escort, including his own son, to see it safely along its route.30 The written sources show a considerable number of Catholic clerics in the Albanian and Montengrin territories who were quite disobedient towards the Holy See and abused their authority in all possible ways. Johannes, archbishop of Bar (1363-1373), perhaps 26 27

28 29

30

Ibidem. Dhimiter Shuteriqi, “Një mbishkrim i Arbrit (1190-1216) dhe mbishkrime të tjera gjetur në Mirditë” (The inscription of Albanum (1190-1216) and other inscriptions found in Mirdita), Studime Historike 3 (1967): 131-58, esp. 147. Šufflay, “Kirchenzustände,” 246. Tadija Šmičiklas (ed.), Codex Diplomaticus regni Croatiae, Dalmatiae et Slavoniae (Zagreb: Academia Scientiarum et Artium Slavorum Meridionalium, 1904), vol. IV, 318, 507; Jireček, Staat und Gesellschaft, I, 54. Fine, Late Medieval Balkans, 139.

VIOLENCE AND THE CLERGY IN LATE MEDIEVAL ALBANIA

53

did not commit murder, but he engaged in highly aggressive acts.31 The bishop of Shkodra could not reside in his see in 1368 because Johannes did not allow him to do so.32 In 1369, he deported the bishop of Lezha, nominated by Pope Urban V,33 and in 1371 he made Dominic, another bishop of Lezha, flee the potentia laicalis.34 Nothing is mentioned about the kind of violence he used, but one thing is sure: nobody flees unless being forced to do so. Violence is also implicitly described in the case of the bishop of Kotor. In a letter of the community of Kotor addressed to the Venetian Senate, he is accused of twenty-five delinquencies. He hid behind the privileges of his religious office, and since he was the bishop he himself was also the judge. The Venetian Senate asked the bishop to travel to Venice, adding that if he failed to appear in the city he would be in a conflict with the Signoria.35 This decision was not called a violation of his privilege, nor was it a call to court. Nevertheless, this call was effective enough to make even the bravest man tremble with fear. Such cases are not often mentioned in the source, but they show the psychological violence used by the secular authority against the clergy. The records of the Holy Penitentiary show the most extreme cases of violence, although murder was neither the only nor the most frequent type of aggression and violence by the clergy. These records have an important role in highlighting the mentality behind violence and aggression. Murder is sometimes treated as equal to a beating, although only the luckiest cases are recorded and nothing is known about the petitioners who did not receive absolution. Marinus Firman (1492-1499), for instance, died a tragic death in Durres,36 but nothing has been found about it in the records of the Holy Penitentiary so far. The lack of such a record could be explained either as a failure of the petitioner to receive absolution, or as a missing request for absolution. The latter case could be justified by the presence of the Ottomans in the region, which offered an alternative way of living to all those who committed crimes. The Ottoman conquest put the lives of the Catholic clergy at even more risk than before and in extreme cases ag31

32

33 34 35

36

Šufflay, “Kirchenzustände”, 246: “Er konnte nach eigenem Wille schalten und walten. ... Die päpstlichen Ernennungen, die ihm nicht passten, liess er unbeachtet. Er griff auch in den Sprengel von Durazzo nach Arbanum und Alessio über.” Šufflay, “Kirchenzustände,” 246, Conrad Eubel, Hierarchia Catholica, vol. I (Regensburg: Monasteri, 1898), 559. Theiner, Monumenta Slavorum, 273. Šufflay, “Kirchenzustände,” 247, Theiner, Monumenta Slavorum I, 273. Giuseppe Valentini, Lo statuto personale in Albania all’epoca di Skanderbeg (Appunti dagli archivi della Reppublica Veneta) (Rome: Shejzat/Le Pleiadi 1967), note 38: Dicto miser lo Vescovo, digando davanti çudisio et in presentia de miser lo Conte che per el Papa el e çudese in temporal e spiritual, et cum questa audacia mete man su tuti li male ablati et converteli in suo uso … (R.) … mandetur Comiti nostro Catari quod mandare debeat dicto Episcopo quod sub pena indignationis gratie nostre debeat subito ad presentiam nostram se conferre (13.IV.1426 – Mix. vëll. 56, f. 9r-t (olim f. 7r-t). Šufflay, “Kirchenzustände,” 245; Farlati, Illyricum Sacrum VII, 374.

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gressors could go freely and convert to Islam. This is the reason why most of the bishops of Bar were afraid to stay in the region, but resided in Italy after 1467.37 The archbishop of Bar, Philip, and his successors had to concede their holdings in the areas occupied by the Ottomans in 1489.38 In conclusion, I would state that violence in medieval Albania is an open area of research, with many questions and difficulties, but with a good perspective for successful studies because it presents an important gateway to the mentality of the people at that time. The main challenge is the fragmentary nature of the documents, which show only small and sometimes unconnected pieces of the puzzle of reality. Nevertheless, even through the fragmentary data one can recognize general patterns and draw preliminary conclusions. The Catholic clergy in the Albanian and Montenegrin territories tended to be highly conscious of the authority they had through their ecclesiastical positions. It seems that they often misused this authority, becoming stubborn in many cases, and this often caused clashes with other clerics and with the lay population. The few cases recorded in the Holy Penitentiary under the de diversis formis category, show in general one kind of violence: physical beatings, which may or may not have resulted in murder. The question to be answered through other studies is whether this kind of violence was the only one recognized as such or whether this was simply the one that predominated in this period of time.

37 38

Šufflay, “Kirchenzustände,” 220; Farlati, Illyricum Sacrum VII, 299. Theiner, Monumenta Slavorum 713, f. 527-8: Philippo, archiepiscopo Antibarensi et eius immediato successori quaedam facultatem in partibus a Turchis occupatis conceduntur.

THE BREAD-KNIFE

Gerhard Jaritz

The length of a knife’s blade can play a rather important role in the daily life of a society. This is, for instance, true for the present United States. There, in addition to counties, cities, and townships, each of the 50 states has a knife law. There are books and websites “for the law-abiding traveller”1 or for “knife enthusiasts and those who carry knives on a regular (or not-so-regular) basis.”2 Blade length restrictions from three inches to six inches and more play an important role; switchblades and gravity knives are regularly prohibited. In late medieval and early modern society, particular emphasis and differentiation applied to the classification of the knife, on the one hand, as a weapon or, on the other hand, as an instrument with a small blade to be used for eating, especially for cutting bread. In secular society, the right to carry a knife with a blade longer than a bread-knife, that is, a weapon, was seen as connected with the freedom of the person and, thus, also judged as a sign of male honour.3 Sometimes one finds court decisions prohibiting carrying a knife with the exception of a small (bread-)knife. Let me give three examples: In the 1460s the Augsburg master builder Ulrich Tendrich stole from the township. He was caught in 1462 and punished in the following way:4 1

2 3

4

E.g., David Wong, Knife Laws of the Fifty States. A Guide for the Law-Abiding Traveler (Bloomington: AuthorHouse, 2006). http://www.knifelawsonline.com/knifehome (last accessed December 7, 2010). Katharina Simon Muscheid, “Der Umgang mit Alkohol: Männliche Soziabilität und weibliche Tugend,” in Kontraste im Alltag des Mittelalters, ed. Gerhard Jaritz, Forschungen des Instituts für Realienkunde des Mittelalters und der frühen Neuzeit. Diskussionen und Materialien 5 (Vienna: Verlag der Österreichischen Akademie der Wissenschaften, 2000), 58; Hans Fehr, “Das Waffenrecht der Bauern im Mittelalter,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung 35 (1914), 127-8. “Chronik des Burkhard Zink,” in Die Chroniken der schwäbischen Städte: Augsburg 2, Die Chroniken der deutschen Städte vom 14. bis 16. Jahrhundert 5 (Leipzig, 1866; repr. Göttingen: Vandenhoeck & Ruprecht, 1965), 283-4. Concerning urban laws in Germany determining the allowed length of knives see Georg Liebe, “Das Recht des Waffentragens in Deutschland,” Zeitschrift für Historische Waffenkunde 2 (1900/02), 341:

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• •

He lost his job as a master builder; He was no longer allowed to wear clothing incorporating marten, silk, or velvet and also forbidden to use any gold or silver appliqués. • He was no longer allowed to carry a knife with him except for a small breadknife. In the sixteenth century, and particularly in the German Reformation environment, one regularly finds a ban on frequenting taverns (Wirtshausverbot) as a punishment, often tightened with a prohibition of carrying a knife. Only a dull or broken bread-knife was allowed.5 In 1525, during the Peasant Wars, the peasants of Hain near Schweinfurt in Lower Franconia, Germany, had to deliver all their weapons and were forbidden to carry them for the rest of their lives, except for bread-knives.6 As early as the General Peace for Bavaria of 1244 peasants were only allowed to carry short knives on weekdays.7 The bread-knife played a particular role in sixteenth-century discourse concerning Anabaptists, who espoused non-violence. The Reformation chronicler, Johannes Kessler from St. Gall, who always showed his critical position towards the Swiss Anabaptists, described them in his Sabbata (1523-1539) as carrying only short breadknives and no arms, neither swords nor epées, the latter two being for them the clothes of wolves which should not be worn by sheep.8 In his polemics against the Anabaptists, Heinrich Bullinger emphasized in 1560 that Christ did not prohibit carrying arms, as one could kill with one’s belt or bread-knife equally way as with one’s sword.9 In contrast, the Hutterite Peter Rideman stressed, in his Rechenschaft unserer Religion, Lehr und Glauben, von den Brüdern, so man die Hutterischen nennt (1565), that Christians should not produce swords, spears, or rifles, etc. However, bread-knives, axes, and hoes should be made as they were necessary for daily use. One certainly might harm other people with these objects, but they were not produced to do harm. If someone still used them in a harmful way, then it was not the Anabaptists’ fault but the individual’s responsibility.10 5 6

7

8

9 10

See Simon Muscheid, “Der Umgang mit Alkohol,” 58. Stephan Ankenbrand and Karl Stolz, Heimatbuch Oberwerm (Schweinfurt, 1959; repr. Dettelbach: J. H. Röll Verlag, 2006), 31-2. Concerning peasants and their right to carry arms see Fehr, “Das Waffenrecht,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung 35 (1914), 111-211, and 38 (1917), 1-114. Fehr, “Das Waffenrecht,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung 38 (1917), 31. Clarence Bauman, Gewaltlosigkeit im Täufertum. Eine Untersuchung zur theologischen Ethik des oberdeutschen Täufertums der Reformationszeit, Studies in the History of Christian Thought III (Leiden: Brill, 1968), 45. Ibidem, 55, based on Heinrich Bullinger, Der Widertoufferen ursprung … (Zurich, 1560). Ibidem, 71, note 2: “Weil nun die Christen solche Rach nit brauchen und üben sollen, so müssen sie auch den Zeug, damit solche Rach und Verderbung durch andere mag gebrauchet warden, nit machen, auf daß sie nit fremder Sünden teilhaftig werden. Darumb wir weder Schwert, Spieß, Büchsen noch dergleichen Wehre oder Waffen machen. Was aber zu Nutz und täglichem Brauch der Menschen gemachet wird, als Brotmesser, Äxte, Hauen und dergleichen mögen wir wohl machen und tuen es auch. Wenn man den

THE BREAD-KNIFE

57

Clerics also owned bread-knives, which were not seen as weapons but as necessary objects of daily use. In connection with cases of violence one mainly comes across knives when clerics used them to defend themselves. In this context, one also finds the bread-knife in the registers of the Apostolic Penitentiary as part of a kind of pattern of excuse in the context of using it like a weapon, mostly for any necessary defence of oneself or the protection of others. On the one hand, one followed thereby the explicit prohibition of weapons for clerics as is stated, for instance, in the Decretalia of Pope Gregory IX (c. 1160-1241): Clerici arma portantes et usurarii excommunicentur.11 Mentioning the bread-knife or a knife used at the table, or just a small knife, in a petition to the papal curia was meant to serve as proof that the cleric did not carry and use a weapon, but just had an object with him that he needed, like everyone else, as an indispensable instrument for eating and which was not classified as a weapon. On the other hand, self-defence was permitted in an exceptional situation: vim vi repellendo et se defendendo.12 This was connected with not wanting to hurt anyone seriously or kill someone. Only a little number of bread-knife cases or, more generally, small knife cases, in which clerical supplicants to the papal curia were involved are mentioned in the registers of the penitentiary. For my analysis I chose source material from the Germanspeaking areas published to date in the seven volumes of the Repertorium Poenitentiariae Germanicum, which contain the register entries from 1431 to 1492.13 Most of the cases can be found in the De declaratoriis group, with a few in the De diversis formis group.14 I

11

12

13

14

gleich sagen sollt, es möge damit auch wohl einer den andern beschädigen und erwürgen, so wird es aber doch nit umb des Würgens und Beschädigens willen gemachet, darumb es uns zu machen nicht hindert. Will es aber je einer zu beschädigen brauchen, das ist ohn unsere Schuld, darumb trage er sein Urteil.“ Decretalium Gregorii papae IX compilationeis liber III, titulus I, capitulum II. See Emil Friedberg, ed., Corpus Iuris Canonici II, Decretalium Collectiones (Leipzig, 1881, repr. Graz: Akademische Druck- und Verlagsanstalt, 1959), col. 445. See also Andrzej Kakareko, La riforma della vita del clero nella diocesi di Vilna dopo il Concilio di Trento (1564-1796) (Rome: Editrice Pontificia Università Gregoriana, 1996), 15. E. g., Clementinae liber V, titulus IV, capitulum I: De homicidio voluntario vel casuali; Si furiosus, aut infans seu dormiens hominem mutilet vel occidat: nullam ex hox irregularitatem incurrit. Et idem de illo censemus, qui, mortem aliter vitare non valens, suum occidit vel mutilet invasorem (Friedberg, ed., Corpus Iuris Canonici II, Decretalium Collectiones, col. 1184). See also Kirsi Salonen, “Introduction,” in Auctoritate Papae. The Church Province of Uppsala and the Apostolic Penitentiary 1410-1526, ed. Claes Gejrot (Stockholm: National Archives of Sweden, 2008), 46; Kakareko, La riforma della vita, 15. Ludwig Schmugge et al. (ed.), Repertorium Poenitentiariae Germanicum. Verzeichnis der in den Supplikenregistern der Pönitentiarie vorkommenden Personen, Kirchen und Orte des Deutschen Reiches I (1431-1447; Eugene IV), II (1447-1455; Nicholas V), III (1455-1458; Calixtus III), IV (1458-1464; Pius II), V (1464-1471; Paul II), VI (1471-1484; Sixtus IV), VII (1484-1492; Innocent VIII) (Tübingen: Max Niemeyer Verlag, 1996-2008) (henceforth: RPG) Concerning the De declaratoriis- and the De diversis formis-cases see, generally, RPG IV, xxv-xxviii; Salonen, “Introduction,” 42-51 and 18-41, especially 45-6; eadem and Ludwig Schmugge, A Sip from the “Well of Grace.” Medieval Texts from the Apostolic Penitentiary (Washington, D.C.: The Catholic University of America Press, 2009), 28-56.

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traced and analysed 67 cases. This rather low number still follows an interesting trend. From 1431 to 1464, more than 30 years, such small knives only appear nine times in the context of clerical violence, but there were thirty cases in the twenty years between 1464 and 1484, and 28 cases in the eight years between 1484 and 1492. Four entries were made during the papacy of Eugene IV,15 one case under Nicholas V,16 two cases under Calixtus III,17 and two under Pius II.18 During the papacy of Paul II (1464-1471; eleven cases19) and under Sixtus IV (1471-1484; 19 cases20) and Innocent VIII (14841492; 28 cases21) they account for more than 5% of all the De declaratoriis entries. This cannot be seen as clear proof that clerics had become more violent or, at least, were forced to defend themselves more often. It seems that in the later period the excuse of defending oneself with a weapon-like object that was not classified as a weapon had developed, perhaps more frequently seen as a good excuse for clerics in cases of having killed or seriously injured an opponent. The petitions came from many different areas. The supplicants of the 67 cases noted above originated from thirty different dioceses in the German-speaking regions. Thirteen times there is just a single supplicant from a particular diocese, in nine cases it is two clerics from a diocese, and in three cases there are three petitions. There are four supplications each from Mainz and Salzburg, and six from Liège. Only one area was an exception: the diocese of Utrecht, from where thirteen petitions originated. This is an important difference for which, at least at the moment, no conclusive reason can be given. Indeed, it can be shown that the diocese of Utrecht, together with the dioceses of Liège, Mainz, Constance, and Cologne, generally represented the highest numbers of supplicants from the German-speaking areas to the Apostolic Penitentiary in the period between 1431 and 1492. However, the cases of violence in involving short (bread-) knives show another distribution and emphasis There are only two cases each from Constance and Cologne, four from Mainz, six supplications dealing with violence and the use of a short knife from Liège, but thirteen from Utrecht. Could the Utrecht pat15 16 17 18 19

20

21

RPG I, n. 212 (1439), n. 635 (1441), n. 648 (1441), n. 688 (1441). RPG II, n. 877 (1451). RPG III, n. 77 (1455), n. 213 (1456). RPG IV, n. 1267 (1460), n. 1804 (1461). RPG V, n. 2035 (1467), n. 2050 (1467), n. 2075 (1468), n. 2082 (1468), n. 2084 (1468), n. 2108 (1469), n. 2118 (1469), n. 2125 (1469), n. 2177 (1471), n. 2183 (1471), n. 2192 (1471). RPG VI, n. 3436 (1471), n. 3442 (1471), n. 3451 (1472), n. 3458 (1472), n. 3514 (1474), n. 3525 (1474), n. 3530 (1475), n. 3535 (1471), n. 3577 (1475), n. 3609 (1477), n. 3625 (1477), n. 3631 (1477), n. 3670 (1479), n. 3702 (1480), n. 3723 (1481), n. 3727 (1481), n. 3774 (1482), n. 3804 (1484), n. 3810 (1484). RPG VII, n. 1495 (1484), n. 1630 (1485), n. 1685 (1486), n. 1706 (1486), n. 1708 (1486), n. 1713 (1486), n. 1895 (1487), n. 2173 (1490), n. 2253 (1490), n. 2452 (1484), n. 2459 (1485), n. 2472 (1485), n. 2474 (1485), n. 2500 (1486), n. 2503 (1486), n. 2508 (1486), n. 2565 (1488), n. 2575 (1488), n. 2581 (1489), n. 2583 (1489), n. 2592 (1489), n. 2607 (1490), n. 2619 (1490), n. 2631 (1491), n. 2636 (1491), n. 2641 (1491), n. 2646 (1492), n. 2657 (1492).

THE BREAD-KNIFE

59

tern have had regional reasons in the context of the probable successes of such supplications? How is the object with which the clerics defended themselves called in the Registers? It had to be emphasised in the supplications that the knife was not a weapon. Therefore, it could be • parvus cultellus suus, cum quo panes scindere usus fuit;22 • quidam parvus cultellus, cum quo panem scindere solebat;23 • parvus cultellus, quem sibi ad panem scindendum adaptaverat;24 • gladius (cultellus), quem ipse ad scindendum panem secum deferebat;25 • quidam parvus cultellus, quem pro usu panis deferebat;26 • parvus cultellus, quem sibi ad panem scindendum adaptaverat;27 • quidam parvus cultellus, quem ad scindendum panis pro suo usu gestabat;28 • quidam parvus cultellus ad scindendum panem, cuius acies aliqualiter rupta fuit;29 • quidam parvus cultellus cum quo comedere solebat;30 • quidam parvus cultellus, quo in prandio uti solebat,31 • quidam cultellus, quo in mensa usus fuerat;32 • cultellus parvus, quem in manu tenebat dum collacionem faceret;33 • parvus cultellus, quo adhuc in mensa sedens comedendo usus erat;34 • cultellus quidam parvus … aptus ad mensam et scindendum panem;35 • parvus cultellus, quem cottidie ad usum suum panem scindendi et alia in mensa portabat;36 • quidam cultellus parvus quo in dicta refectione ad scindendum panis et non ad alium finem utebatur;37 • quidam parvus cultellus, quem pro usu incisionis panis secum portabat;38 • suus cultellus parvus;39 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39

RPG I, n. 212 (1439). Ibidem, n. 688 (1441); RPG V, n. 2082 (1468); RPG VII, n. 2503 (1486). RPG V, n. 2075 (1468). Ibidem, n. 2084 (1468).; RPG VI, n. 3727 (1481). Ibidem, n. 3625 (1477). RPG V, n. 2075 (1468). RPG VI, n. 3774 (1482). RPG V, n. 2118 (1469); RPG VI, n. 3670 (1479): only mentioning ad scindendum panem. RPG V, n. 2035 (1467). Ibidem, n. 2050 (1467). Ibidem., n. 2192 (1471). RPG VI, n. 3535 (1471). Ibidem, n. 3810 (1484). RPG VII, n. 2253 (1490). RPG VI, n. 3458 (1472). RPG VII, n. 1685 (1486). Ibidem, n. 2565 (1488). E. g., RPG I, n. 635 (1441), and more often.

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• • • •

quedam parva daga sive cultellus;40 cultellus vulgariter weydmesser quem penes se habebat;41 cultellus parvus tillitz vulgariter nuncupatus;42 quidam cultellus trusile nuncupatus, quem prout presbiteri in illis partibus gerere consueverunt;43 • quoddam parvum instrumentum ferreum et parvus cultellus, quibus in certis rebus dicti chori utilibus elaborandis diebus cottidianis et alternatis utebatur et que secum habebat.44 Only rarely does one find a knife obviously of this category without any of these attributes like quidam cultellus quem apud se habebat.45 A cleric from the diocese of Schwerin had lent some liturgical objects to another village church for their religious service. After this service the objects were deposited with a certain peasant (villanus ville), who then did not want to return them. The cleric tried to get them back, which led to a quarrel and fight, and the supplicant, ad evitandum mortis periculum sibi imminentem, pulled out his bread-knife non tamen animo ipsum laicum interficiendi vel iniurandi sed se defendendi, and stabbed his opponent unintentionally in the shoulder. As a result of this stab wound, the peasant died eleven days later.46 The supplication of the cleric was accepted and he received absolution. A number of times quarrels arose out of drinking bouts or the drunkenness of the cleric’s opponent.47 A priest from the diocese of Camin was invited to drink by another priest (invitatus ad bibendum), in the course of which a verbal quarrel started and then a fight in which the supplicant pulled out his small knife causa se defendendi et ut mortem evaderet.48 In the register of 1468, a cleric reported that he had to defend himself with a knife used for eating against a drunken scholar (scolaris ebrius et potu superatus).49 Even more regularly, the quarrels arose at gatherings and meals: a prandium,50 a collatio,51 40 41 42 43 44 45 46 47

48 49

50

51

RPG VI, n. 1436 (1471). RPG VII, n. 2500 (1486). Ibidem, n. 2575 (1488). Ibidem, n. 2646 (1492). Ibidem VII, n. 2474 (1485); see appendix, n. 5. RPG II, n. 877 (1451); also RPG III, n. 875 (1459); VI, n. 3723 (1481). RPG I, n. 212 (1439): see appendix, n. 1. E. g., RPG VI, n. 3436 (1471): … cervisia biberunt …; RPG VII, n. 2500 (1486): … ad bibendum servisiam …; ibidem, n. 2592 (1489): … furore quodam nescitur aliunde quam ebrietatis proveniente … RPG I, n. 635 (1441): see appendix, n. 2. RPG V, n. 2075 (1468): see appendix, n. 3. Another opponent, a priest himself ... potu repletus ultra rationem incepit blasphemare in societate: RPG I, n. 648 (1441). For the role of alcohol see also ibidem, n. 688 (1441): ... ex potu ...; RPG VI, n. 3436 (1471; see note 51); ibidem, n. 3530 (1475): ... vino forsan captus ...; ibidem, n. 3577 (1475): ... sicut ebrius ...; ibidem, n. 3625 (1477): ... ebrius ...; etc. E. g., RPG IV, n. 1267 (1460); RPG V, n. 2084 (1468); ibidem, n. 2108 (1469, see note 51); ibidem, n. 2118 (1469); ibidem, n. 2192 (1471); RPG VII, n. 1495 (1484): ibidem, n. 1630 (1485). E. g., RPG IV, n. 1804 (1461): … cum ipse [= Sifridus Gaubonid presbiter] in domo sua cum quodam presbitero et aliis laicis causa solacii congregatus in collatione sedisset, …; RPG V, n. 2082 (1468); ibidem, n. 2108 (1469): … ad

THE BREAD-KNIFE

61

or a cena.52 In particular, verba iniuriosia of the opponent led to the quarrel.53 Subdeacon Arnoldus de Eldix from the diocese of Liège was called bastardus et filius meretricis ignorando suum partum by another subdeacon, which led to a fight in which Arnoldus, se defendendo, stabbed his opponent with a small knife (parva diga).54 *** One may summarize: To pull out one’s knife on the occasion of a quarrel, name-calling or other verbal abuse, sometimes at a social gathering or facing drunkenness seems to have been a regular pattern in late medieval society. If a cleric got involved in such a situation it was important that he was able to prove: • that he could not be blamed of having provoked the quarrel, • that he acted in self-defence, • that he did not want to injure or kill his opponent, • and, certainly, that he neither possessed nor used a weapon. A possible loophole was that the cleric had defended himself against violent and dangerously aggressive opponents by using a legitimate object of daily life that everyone was always allowed to carry on his person: a small bread-knife. Accidents with breadknives that led to the injury or death of an adversary were situations for which the Apostolic Penitentiary might then absolve a cleric from guilt.

52

53

54

collationem seu ad prandium invitasset …; RPG VI, n. 3436 (1471): … quendam Henricum Ghiselberti laicum … in quadam taberna cervisiam bibere et collationem facere invenerunt, qui ipsos secum de huiusmodi cervisiam bibere et collationem facere invitavit; …; ibidem, n. 3535 (1471); ibidem, n. 3577 (1475); ibidem, n. 3670 (1479); RPG VII, 2631 (1491). E. g., RPG V, n. 2177 (1471); RPG VI, n. 3436 (1471); ibidem, n. 3804 (1484); RPG VII, n. 1895 (1487); ibidem, n. 2474 (1485): see appendix, n. 5; ibidem, n. 2607 (1490; ... cene quarundam nuptiarum, que dicta die celebrate fuerant, interesset; ...); ibidem, n. 2641 (1491). As examples on verba iniuriosia in the context of the use of bread-knives by clerics see, e. g., RPG IV, n. 1267 (1460); RPG V, n. 2035 (1467); ibidem, n. 2050 (1467); ibidem, n. 2108 (1469): verba iniuriosia et scandalosa; RPG VI, n. 3525 (1474): verba contumeliosa; ibidem, n. 3530 (1475); ibidem, n. 3442 (1471); ibidem, n. 3631 (1477); RPG VII, n. 2503 (1486). RPG VI, n. 3804 (1484): see appendix, n. 4.

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Appendix: Clerics approaching the Apostolic Penitentiary after having used a small (bread-) knife to defend themselves 1. 1439 October 20: Supplication of Johannes Kemppen, cleric from the diocese of Schwerin (RPG I, 26, n. 212) Johannes Kemppen cler. sacrista sive custos eccl. S. Georgii Criwitze Zwerin. dioc. exponit, quod quoddam prestitit ornatum, librum videlicet et calicem pro celebratione misse necessarios in eccl. Ville Settin, que d. eccl. S. Georgii filia est, apportatus p. quendam dom. Henricum Vrycman tunc eccl. predicte s. Georgii cap.; qui dom. H. post missam celebr. huiusmodi ornatum librum et calicem coram quodam Borgardo Gelleberch prefate ville villano deposuit ad conservandum; deinde vero d. exponens pro rehabendo libro et calice missus transiens ab ipso B., apud quem, ut premittitur, huiusmodi res deposite erant, librum et calicem postulavit, cui tunc idem B. male, turpiter et diabolice respondit; ipse tamen exponens huiusmodi turpia verba minime attendens reiterate ad dandum hec res et ne ipsum impediret, nam plura alia in sua eccl. facere haberet, humiliter ipse B. supplic., qui tunc magis ipsum inclamando alta horribili voce proclamavit eundem exponentem c. suo fr., qui nequam esset et latro naturaliter, fuisse et esse spurious; idem exponens tunc ipsi B. respondendo dixit huiusmodi verba potius persone sue convenire, nam talis esset quem ipsum nominaverat; tunc idem B. una c. eius ux. ianuam domus sibi preclusit et ad manus quondam cuspidem recepit, in ipsum exponentem crudeliter et furiose irruens eum interficere totis viribus conabatur; tunc idem exponens hinc inde fugiens, videns omn. vias sibi preclusas nec a d. laic. manibus posse liberari, ad evitandum mortis periculum sibi imminentem quondam parvum cultellum suum, c. quo panes scindere usus fuit, n. tamen animo ipsum laic. interficiendi vel iniurandi sed se defendendi, evaginavit et ipsi laic. obviando casualiter in spatulas transfigit, ex quo ut timetur vulnere undecimo die fuerat vita functus; c. autem d. exponens cupiat ad omn. ord. prom. et in hiis Altissimo [famulari]: supplic., quatenus ipsum a reatu huiusmodi homicidii si quem incurrit absol., secumque super irreg. et inhabil. c. ipso misericorditer disp. mandare dignemini de gratia speciali (f. u. i. Ni., signanda p. fiat, si est ita si mortem aliter evadere n. poterat) [Fl], 20. oct. [39] SP 2 146vs. 2. 1441 August 5: Supplication of Johannes Crakobo, priest from the diocese of Camin (RPG I, 67, n. 635) Johannes Crakobo presb. Camin. dioc. exponit, quod olim invitatus ad bibendum c. quodam presb., cui deinde caritative dixit »rogo ut mihi velitis subsidium prestare in istis festivitatibus arando campum«; qui presb. alia de causa furiosus respondit »campum matris tue circa posteriora arare volo«, cui dixit »non deroges honori mortue nec sanctorum«; statim incepit blasphemari, ad que omn. exponens respondit »fiat consensus dom. meorum«; et sic surrexit idem presb. et cultello pectus exponentis laceravit, arrepta lancea eum post hoc morti tradere vellet; cui obviavit exponens causa se defendendi et ut mortem evaderet suo cultello parvo, et etiam alii eos sequestrari desiderantes armis eorum, in quo tumultu

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idem presb. modicum in manu vulneratus erat; exponens autem timens maiores discordias discessit; idem presb. videns famulam quandam suam cuius mamillam eodem cultello, quo pectus exponentis laceravit, furiose inseruit, ita quod ex [im]bellicitate cedidit cadens in exstasim; ipsa autem ancilla eo iacente arrepta lancea primo perforavit eius genu et deinde genitalia pluries vulneravit, ut post octo dies vita defunctus est; c. autem, pater sancta, nonulli d. exponentis emuli simpliciter iur. ignari asserunt ipsum exponentem reatum homicidii incurrisse: supplic., quatenus ad obstruendum ora emulorum suorum [decl. nullum homicidium comm. nec irreg. aut inhabil. maculam contraxisse] (f.u.i. Ni., signetur p.f.d.s. ad cautelam) [F1], 5. aug. 41 SP 2bis 254r. 3. 1468 June 6: Supplication of Henricus Nienhusen, priest from the diocese of Ratzeburg (RPG V, 276, n. 2075) Henricus Nienhusen presb. Razeburg. dioc. [exponit], quod cum ipse quodam occurrente temp. causa cimiterium gloriosissime b. Marie Virginis op. Rostokken. accessisset et post aliquantulum morulam domum suam accedere vellet, quidam scol. se in itinere adiunxit et domum suam una cum eo intravit; et tunc dictus exp. sepedeictum scol. ut ad domum suam iret amicabiliter instanter rogavit; qui qidem scol. ebrius et potu superatus verba admonitoria dicti exp. minime advertens neque curans in dictum exp. nescitur quo spiritu ductus irruit et eum in terram proiecit et quendam cultellum extraxit; alteram vero manuum gutturi exp. in supino iacens acriter tenuit; videns se sic suppressum et modum de dicti scol. manibus evadendi nesciens penitus et ignorans parvum cultellum, quem sibi ad panem scindendum adaptaverat, vaginando cum eo vibravit non animo ipsum ledendo vel vel offendendo, sed vim vi repellendo casu infortuitu dictum scol. in pectore vulneravit, de quo vulnere vitam finivit, de qua morte doluit nec aliter quam ut premittitur in ipsius morte culpabilis fuerit; ab aliquibus vero simplicibus asseritur ipsum premissorum occasione homicidii reatum incurrisse et irreg. maculam contraxisse nec in suis ord. ministrare posse, ad ora igitur talium obstruenda; supplicatur de decl. ipsum premissorum occasione nullum homicidii reatum incurrisse nullamque irreg. maculam sive inhabilitatis notam contraxisse, sed in suis ord. libere ministrari posse ut in forma (f.u.i. Jo. s. Bernardi; videat eam dom. A. de Grassis, Jo.; comm.. ordin., et si vocatis vocandis sibi constiterit quod exp. vim vi repellendo et se defendeno aliter fugere seu mortem evitare non valens percusserit ut prefertur et de aliis expositis, declaret ut petitur) Rome apud s. Marcum 6. iun. 68 PA 16 155v. 4. 1484 January 3: Supplication of Arnoldus de Eldix, subdeacon from the diocese of Liège (RPG VI, 639, n. 3804) Arnoldus de Eldix subdiac. Leod. dioc.; [exponitur pro parte], quod ipse olim in op. Lovanien. in quadam cena, ubi material guerrarum Leod. narrabatur, existens, quidam Hugo de Louven subdiac. Leod. dioc. verba oblocutoria retulit de dom. Wilhelmo de Diberg dicens inter cetera se plus perdere in patria Leod. quam aliquis assedens in mensa huiusmodi; exp. vero se nimium dampna posse sustinere in dicta patria asseruit, quam prefatus Hugo, nam suos consanguineos et multos amicos in eadem

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haberet; depost vero idem Hugo exp. multa verba iniuriosa dixit et eum esse bastardum et filium meretricis ignorando suum patrem, necnon venisse ibidem ad explorandum que et qualia ipse aut alii dicerent ad renuntiandum ea dicto Wilhelmo de Diberg; exp. vero respondit eidem Hugoni se tam diutius esse velle traditorem seu exploratorem sicut et ipse Hugo; ex illo prefatus Hugo commotus arripuit exp. per crines et lesit eundem cum cultello in mentum tenens ipsum cum crinibus, et sic exp. vim vi repellendo non valens aufugere se defendendo dictum Hugonem in dextram pectorem cum parva diga percussit, ex qua percussione idem Hugo infra 8 dies expost decessit, ab aliquibus tamen simplicibus etc.: supplicatur pro parte exp. de decl. ipsum propter premissa nullum homicidii reatum seu irreg. maculam incurrisse ac inhabil. notam contraxisse, sed in suis susceptis ord. ministrare et ad alios ord. promoveri et in illis licite ministrare posse ut in forma (f.u.i. Jul. Brictonorien.; videat eam dom. A. de Grassis, Jul.; comm.. ordin. et si vocatis vocan[Rome]dis sibi constiterit, quod exp. vim vi repellendo et se defendendo aliter fugere seu mortem evadere non valens percusserit ut prefertur et de aliis expositis, declaret ut petitur) [Rome] 3. ian 84 PA 33 168vs. 5. 1485 July 27: Supplication of Ludovicus Dannenberch, Premonstratensian monk from the diocese of Havelberg (RPG VII, 392-3, n. 2474) Ludovicus Dannenberch presb. can. prof. mon. o. Prem. b. Marie Virginis et s. Nicolai loci in Jerichow Havelberg. dioc. per prep. soliti gubernari; exponitur pro parte, quod cum olim quadam die de mense aprilis proxime preteriti post lectas vesperas dicti diei et post cenam etiam extra refectorium in certo loco ipso exp. et aliis fratribus can. professis in eodem mon. tunc existentibus eiusdem mon. refectionem sumentibus, unus eorundem fratrum Johannes Smeth alias Pasche nuncupatus etiam presb. cuidam fratri Arnoldo Randow etiam presb. nonulla verba iniuriosa sine aliqua intermissione proferret et ambo simul rixarentur, dictusque exp., qui et. senior omnium fratrum predictorum erat, de mandato prep. sui superioris in absentia prioris eiusdem mon. sibi facto sub pena inobidientie et interdicti ingressus chori eccl. prefati mon. fr. Johannem vica voce et fr. Arnoldum prefatos semel tantum ut silentium facerent monuisset, ac idem fr. Johannes monitionem contempnens silentium non servasset et inobedientie et interdicti penas propterea incurisset, ac postmodum refectione predicta sumpta cum fratribus completionem legere volentibus chorum predictum unusque eorundem fratrum in absentia dicti exp. a versiculo »converte nos Deus salvator noster« legeret intrasset et cum eo alii fr. tunc presentes propter penitentiam prefati fratris Johannis completorium predictum legere negassent, duo ex eis exp. prefatum apud portam eiusdem chori tunc existentem interrogarunt ab eoque responso facto, quod nisi predictus fr. Johannes egrederetur eundem chorum nollet ingredi, dictus fr. Johannes, qui responsum audivit, egre ferens propterea in eundem exp. verba protulit opprobriosa illumque apprehensum percussit vulneravit et in terram impetuose constituit ipsumque tamen dictus exp. postquam a terra surrexit non amplius ne percuteretur rogavit; verum tamen idem fr. Johannes mala malis addendo rursus dictum exp. cum manibus iteratis vicibus in capite fortiter percussit et vulneravit; inde sentiens dictus exp. ac cernens sibi mortis periculum imminere et alias forsitan mortem evitare non posse dubitans vim vi repellendo et se defendendo cum quodam parvo instrumento ferreo et parvo cultello, quibus in certis

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rebus dicti chori utilibus elaborandis diebus cottidianis et alternatis utebatur et que secum habebat, eundem fr. Johannem percussorem suum percussit et ut asseritur vulneravit, ex quibus quidem percussione et vulneribus dictus fr. Johannes postmodum sicut Domino placuit diem suum clausit extremum; cum autem dictus exp. in morte prefati fratris Johannis alias quam ut premittitur culpabilis non fuerit ac de ea valde doluerit et doleat ab intimis de presenti cupiatque in omnibus suis ord. ministrare et Domino reg. habitu perp. famulari ac admin., off. et benef. dicti mon. et ord. retinere, a nonullis [tamen asseritur] ipsum premissorum occasione homicidii reatum incurrisse: supplicatur pro parte exp. de decl. ipsum nullum homicidii reatum commisisse nullamque irreg. maculam sive inhbil. notam contraxisse ut in forma (f.u.i., F. ep. Anagnin.; et comm. prep. mon. o. Prep. b. Marie Magdeburg. per prep. soliti gubernari, cum ordin. suumque superiorem prep. dicti mon. suspectum habeat, fiat F.; comm. e si vocatis vocandis sibi constiterit predicta vera esse et predictus exp. aliter mortem evadere non poterat, nisi dictum Johannem vulnerasset, et de aliis expositis, declaret ut petitur) Rome apud s. Petrum 27. iul. 85 PA 34 219r.

SACRED SPACE, VIOLENCE AND PUBLIC LAW IN THE CLOISTERS OF THE FRANCISCAN AND DOMINICAN HOUSES OF DUBROVNIK

Gordan Ravančić

Relations among different social groups and structures in any community are complex since they rely on a paradigm of institutional relationships as well as on personal links. By the same token, one also has to bear in mind the political will of the institutions involved in this relationship.1 Consequently, one has to recall that the relationship between public and private in the Middle Ages was rather different than we think today.2 Namely, during medieval times public space was much wider, and civil authorities repeatedly invaded private space for the sake of public interest.3 In this regard, the authorities of medieval Dubrovnik were no exception. Quite the contrary, because of a political interest in preserving their “nobility,” Dubrovnik authorities and officials often peeked into the bedrooms of common and noble citizens, not permitting vicious rumors to distract public officials from their work.4 An example of such interference is the case of a Dubrovnik nobleman, Stephan de Zamagna, which 1

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Regarding this, see, together with the cited literature, e. g., Tomislav Popić, “Oblikovanje srednjovjekovne stvarnosti – sociologija znanja i povijest” (The shaping of medieval reality – sociology of knowledge and history), Povijesni prilozi 33 (2007): 239-48; Mladen Anćić, “Kako ‘popraviti’ prošlost. Konstrukcija memorije na nadgrobnim spomenicima 15. stoljeća” (How to rectify the past. The construction of memory on fifteenth-century tombstones), Povijesni prilozi 34 (2007.): 83-102; Zdenka Janeković Römer, Okvir slobode – Dubrovačka vlastela između srednjovjekovlja i humanizma (The framework of freedom – the nobility of Dubrovnik between the Middle Ages and Humanism) (Zagreb and Dubrovnik: Zavod za povijesne znanosti HAZU u Dubrovniku, 1999), 251-324. Regarding this see, together with the cited literature, e. g., David Herlihy, “Società e spazio nella città Italiana del Medioevo,” in idem, Cities and Society in Medieval Italy (London: Variorum, 1980), 174-90; Gordan Ravančić, “Javni prostor i dokolica kasnosrednjovjekovnog i renesansnog Dubrovnika” (Public space and leisure in late medieval and Renaissance Dubrovnik), Anali Zavoda za povijesne znanosti HAZU u Dubrovniku 38 (2000): 53-64. Zdenka Janeković Römer, “Nasilje zakona: Gradska vlast i privatni život u kasnosrednjovjekovnom i ranonovovjekovnom Dubrovniku” (Violence of law: City authorities and private live in late medieval and early modern Dubrovnik), Anali Zavoda za povijesne znanosti HAZU u Dubrovniku 41 (2003): 9-44; Ravanćić, “Javni prostor,” passim. Regarding the interference of the civil law in marriage relationships, probably the best examined example is the case of Maruša Bratosaljić from the end of the fifteenth century. See Zdenka Janeković Römer, Maruša ili suđenje ljubavi: bračno-ljubavna priča iz srednjovjekovnog Dubrovnika (Maruša, or the trial of love: a story on marriage and love from medieval Dubrovnik) (Zagreb: Algoritam, 2007).

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happened in 1438. During this civil process, the Dubrovnik authorities tried to force this patrician into a marriage with a noble girl from the Caboga family, and they persisted until it was publicly proclaimed before the court that the marriage had been consummated per copulam carnalem prout est publica vox et fama.5 I assume that one should review the relationship between Dubrovnik authorities, ecclesiastical institutions, and the clergy in exactly the same way.6 Namely, regarding this relationship in the first place there was the problem of jurisdiction in the process of entering into a marriage.7 To be precise – even though all the questions regarding marriage were generally subject to canon law and ecclesiastical institutions, in real life Dubrovnik authorities frequently intervened and imposed their interests.8 Moreover, it is a fact that Dubrovnik authorities interfered in various ecclesiastical issues, probably considering them as a part of state policy.9 Furthermore, it is quite clear that during the late Middle Ages the civil authorities of Dubrovnik adjusted all the Church ceremonies according to their needs and “public interest.”10 However, one has to keep in mind that Dubrovnik’s community, and therefore civil authorities, too, were deeply steeped in Christianity and the Christian faith. By the same token, Dubrovnik authorities frequently vigorously supported and defended the papacy’s policy in the region during the dangerous times of the Ottoman threat. Thus, by the end of the fifteenth century, one notes that some extant sources refer to Dubrovnik as to respublica christiana.11 So, bearing in mind such an intense impregnation

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Acta consilii rogatorum, 3, vol. 22, fol. 158’-160 (Dubrovnik, State Archives). I would like to thank Zrinka Nikolić Jakus, who showed me this case. See also Gordan Ravančić, “Izvanbračna ljubav i ženska posluga u vlasteoskim obiteljima kasnosrednjovjekovnog Dubrovnika” (Extramarital love and female servants in noble families of Dubrovnik in the late Middle Ages), in Hereditas rerum croaticarum, ed. Alexander Buczynski, Milan Kruhek and Stjepan Matković (Zagreb: Hrvatski institut za povijest, 2003), 63-8. Surprisingly, in the historiography about Dubrovnik there are not many studies about the relationship between civil authorities and Church. The only comprehensive studies about this topic are: Kosta Vojnović, “Crkva i država u dubrovačkoj republici” (Church and state in the Republic of Dubrovnik), in Rad JAZU, vol. 119 (Zagreb: JAZU, 1894), 32-142; idem, “Crkva i država u dubrovačkoj republici – drugi dio” (Church and state in the Republic of Dubrovnik – part two), in Rad JAZU, vol. 121 (Zagreb: JAZU, 1895), 1-91, which are presently quite obsolete but still usable; Ivica Prlender, “Crkva i država u srednjovjekovnom Dubrovniku” (Church and state in medieval Dubrovnik), (PhD dissertation, Sveučilište u Zagrebu, 1998), which is still unpublished. A good example is the aforementioned case of Maruša Bratosaljić from the end of the fifteenth century; see: Janeković Römer, Maruša., passim. About the interference of the juridical jurisdiction see especially the chapter: “Nadležno pravo, sud i sudski službenici” (Competent law, court and judicial officials), 29-34. Janeković Römer, “Nasilje zakona,” 10-1. The situation was not much different in other parts of Europe, since the restoration of central royal power enforced the jurisdiction of civil law and the courts in all segments of life. See, e.g., Denys Hay, A general history of Europe: Europe in the Fourteenth and Fifteenth Centuries (London: Longman, 91980), 161-2. The fact that during the late Middle Ages many of Dubrovnik’s elected archbishops actually never came to the city indirectly witnesses that civil law and public authorities overwhelmed the Church’s authority. Janeković Römer, Okvir slobode, 291-324. Eadem, “Nasilje zakona,” 35; Liber Croceus, ed. Branislav Nedeljković, Zbornik za istoriju, jezik i knjiæevnost srpskog naroda III, 24 (Belgrade: SANU, 1997), 4.

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with the Christian spirit, one cannot avoid noticing that in Dubrovnik a kind of rigidity of civil institutions existed simultaneously towards the Church and clergy.12 It seems that in medieval Dubrovnik the principle of the state, at least on the surface, had overwhelmed all the other principles; as is written above the gates of the council chamber “Obliti privatorum publica curate.” Besides this, one has to admit that medieval legal structures were not strictly defined and separated, so the jurisdictions of the various courts coincided, interlaced, and sometimes even interfered.13 Similarly, generally speaking, ecclesiastical courts had jurisdiction over the clergy and ecclesiastical institutions. However, during the late Middle Ages, because of a strengthening of the state and civil/royal power, civil courts gradually usurped the right to judge clergy. Such a development can be witnessed in a case from Amiens from 1408. Namely, during this year the royal court processed many allegations against royal soldiers and officials who put clergymen into royal prisons. Consequently, this situation led to almost open conflict between the archbishop and the royal authorities, behind which was an ongoing process of struggle for domination. This can be “read” in the correspondence between the archbishop and the royal court. In his letters, the archbishop repeatedly complains that civil authorities did not want to hand over imprisoned clerics to the arbitration of ecclesiastical institutions and canon law. Moreover, the archbishop states that the civil authorities tortured these clerics and he strictly disapproves of such actions. On the other hand, the royal officials tried to avoid these handovers in numerous ways, since they stated that ecclesiastical courts were too mild and forgiving towards the accused. Furthermore, they maintained that absence of corporal punishment and even the death penalty could aggravate a situation in the city, which was “swallowed” by crime, predominantly perpetrated by clergymen.14 Such a relationship of mutual conflict and the real supremacy of the civil authorities can also be traced in medieval Dubrovnik, and several cases from the beginning and the first half of the fifteenth century illustrate it nicely. A more thorough investigation of the extant archival materials could reveal even more cases, but I believe that the following will serve well enough.15 Some of these cases illustrate a kind of feeble interference into the private space of ecclesiastical institutions, while others clearly reveal the “omnipotence” of Dubrovnik’s patricians, who had all the power in the city in their hands. By the same token, I believe that it is quite significant to 12 13 14 15

This question is open in Croatian historiography, but viewed from a different perspective in Janeković Römer, “Nasilje zakona,” 9-44, especially 35-9. Robert N. Swanson, Religion and Devotion in Europe c. 1215– c. 1515 (Cambridge: Cambridge University Press, 2000), 39-40; Trevor Dean, Crime in Medieval Europe (London: Longman, 2001), 108-14. Ibidem, 110-1. Some examples of violence against ecclesiastical institutions can be found in Janeković Römer, “Nasilje zakona,” 35-9.

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emphasize that all these examples come from the records of Dubrovnik’s Minor Council, which indirectly indicates the importance of these cases, since they were not handed over to lower ranks of the juridical hierarchy. The first case witnesses how Dubrovnik authorities saw the difference between the public and sacred (i.e., private) space of the Dominicans and their monastery in Dubrovnik. Namely, during the paving of this part of the city the civil authorities concluded that the ground-plan of the Dominican monastery, which abutted the east wall of the city’s fortifications, did not correspond with the planned plot of the streets. Therefore, on 26 February 1415, the Minor Council did not hesitate to order the Dominicans to remove their lavatory and to wall up some of the windows and doors of the monastery because of the new layout of the street.16 In the next year, something similar happened at the monastery of St. Mark.17 It is interesting to note that all the expenses of these renovations were supposed to be financed by the Dubrovnik commune. Therefore, one can assume that the Dubrovnik authorities saw this monastery as a public area of the city, not as an ecclesiastical private space. Moreover, the formulation of this decree clearly states that these orders did not take into account just the Dominican monastery, but the entire quarter of the city where the monastery was situated, which corroborates the above assumption. Other cases of similar conflicts between civil structures and ecclesiastical institutions also reveal that Dubrovnik’s patricians, probably because of their pragmatic approach, considered that these ecclesiastical institutions belonged to the city and not to the Church.18 Moreover, it seems that the Dubrovnik authorities not only considered the Church’s property as public space, but they also uncompromisingly usurped the right to judge clergy if it was in the political interest of the Republic. This should not surprise us much, since Dubrovnik authorities tried to monitor and control almost all segments of public (and often also private) life and space.19 Such an attitude can also be perceived in regulations and prohibitions from the beginning of the fifteenth century, according to which male Franciscans were forbidden to enter the convent of St. Clara and conduct holy mass.20 The situation became even worse in 1434 when, besides these restrictions, a love affair took place between young Clarissa Pervula de Tudisio and the Franciscan Antun Vukčić. Dubrovnik authorities reacted quickly and strictly, not hesitating to 16 17 18

19 20

Acta Consili Minoris, s. 5, vol. 1, fol. 13 (Dubrovnik, State Archives). Acta Consili Minoris, s. 5, vol. 1, fol. 73 (Dubrovnik, State Archives). Janeković Römer, “Nasilje zakona,” 38. The same could be concluded from some decrees of Dubrovnik’s Minor Council from the 1380s, since in these regulations the council decided without any consent of ecclesiastical institutions about the usage and distribution of some gardens between the monasteries of St. Bartholomew and St. Clara. See. Odluke veća Dubrovačke Republike (Decrees of the councils of the Republic of Dubrovnik), vol. I, ed. Mihajlo J. DINIĆ, Zbornik za istoriju, jezik i književnost srpskog naroda, III odelenje, knj. 15 (Belgrade: SANU i Naučna knjiga, 1951), 39-40. Ravančić, “Javno i privatno,” 54. Janeković Römer, “Nasilje zakona,” 37.

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intrude on the privacy of the lovers, nor to interfere in the jurisdiction of the ecclesiastical institutions. Namely, Clarissa was secretly taken to a convent in another Dalmatian city and the male “perpetrator” was put in jail. Moreover, all their abettors were also punished by expulsion from the city. Even a vigorous attempt by the archbishop was not enough to prevent a rigid punishment that was “acceptable to God and compatible with the crime so that this would be dignified before God and praised before the people.”21 Although this reaction of the Dubrovnik authorities was rigid, one could interpret it as an attempt to protect the moral life and virginity of the sisters in the convent of St. Clara. However, another case reveals that behind such reactions was just the simple need of the civil authorities to control all the segments of life within the city.22 Namely, sometime around the end of February or the beginning of March 1415, a brawl occurred in the cloister of the Franciscan monastery, which would not have been anything special if it had not provoked the legal action of Dubrovnik civil authorities, followed – as in the previous case – by the archbishop’s reaction. It seems that during the Middle Ages this cloister was a kind of half-public half-private space, where frequently one could find lay persons having a rest or just loitering.23 Such mingling did not usually bother the peace of the monks, but sometimes it could disturb the Franciscans’ quiet life, as happened when Vlaho Stankov, called Kotica, started a fight with some of the brothers.24 The reaction of the authorities was quick: Vlaho was forbidden to enter monastery and its cloister until the end of that year.25 Moreover, the civil authorities indiscreetly interfered in the Franciscans’ attempt to solve this case within the ecclesiastical institutions – they simply asked the Franciscan inquisitor, Nicolas from Split, to stop his activity and hand over the case to the civil authorities.26 As in the previous case, the archbishop’s intervention had no result. Quite the contrary, the Minor Council only requested advice from the Senate, after which the procedure led to separate legal processes against each of the unfortunates involved.27 After a long 21 22

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25 26 27

More about this case see in Janeković Römer, “Nasilje zakona,” 37-9. Regarding this I would like to point out additional examples in Ravančić, “Javni proctor,” passim; Z. Janeković Römer, “Nasilje zakona,” passim; Ravančić, “Prostitucija u kasnosrednjovjekovnom i renesansnom Dubrovniku” (Prostitution in medieval and Renaissance Dubrovnik), in Gradske marginalne skupine u Hrvatskoj kroz srednji vijek i ranomoderno doba (Urban marginal groups in Croatia in the medieval and early modern period), Zbornik radova sa znanstvenog kolokvija održanog 10. prosinca 2003 u Zagrebu, ed. Tomislav Popić (Zagreb: Hrvatski studiji, 2004.), passim. Anđelko Badurina, Uloga franjevačkih samostana u urbanizaciji dubrovačkog prostora (The role of the Franciscan monasteries in the urbanization of Dubrovnik) (Zagreb: Institut za povijest umjetnosti, 1990.), 15-1; Ravančić, “Javni prostor,” 55-6. It is important to note that in the sources Kotica was addressed as dompnus, which could indicate that he was also a clergyman. However, even if it were so, this would additionally prove Dubrovnik authorities’ usurpation of ecclesiastical jurisdictional rights. Acta Consili Minoris, s. 5, vol. 1, fol. 15' (State Archives Dubrovnik). Acta Consili Minoris, s. 5, vol. 1, fol. 15 (State Archives Dubrovnik). Acta Consili Minoris, s. 5, vol. 1, fol. 15'-16 (State Archives Dubrovnik).

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discussion, about which unfortunately there is no extant record, all the Franciscans involved were banned from the city. Most of them could not return until November 1416, while two were banned from the city only until the end of 1415. The sentence of the Franciscan Laurentius did not allow him to return to the city and its district for three years. From the extant sources, unfortunately, it is not possible to determine the cause of this brawl and who started it. However, there is no doubt that this sentence of the Minor Council could not have been stricter and more rigid, especially because this was not a crime that caused death, but only a brawl without any serious consequences. Still, something can be assumed and concluded from the extant records. Thus, the Franciscan Laurentius was probably considered the chief culprit since he “earned” the longest expulsion from the city. Similarly, Vlaho Stankov and his actions were probably the cause of the brawl that provoked “rage” of the Dubrovnik authorities. Other involved Franciscans probably just joined the fight that started between Laurentius and Vlaho; perhaps they were trying to defend their brother. In contrast, cases of clerics’ conviction in other parts of Europe usually did not involve such rigid sentences, except in the case of murder or another grave crime.28 Still, Dubrovnik patricians decided to punish these misbehaving friars gravely, so one can ask oneself what the grounds were for such a decision. Maybe the reason was deeper than can be seen at first glance and one should look into other circumstances in this period. Since there is no written explanation of these sentences in the extant records, one can only guess. The fact that Dubrovnik’s Franciscans were part of the Dalmatian Province, which was under the strong influence of Venice, may have played a certain role in this sentence, since the Dubrovnik authorities did not like Venetian interference in their jurisdiction.29 On the other hand, one should not forget that all this happened at the beginning of the fifteenth century – in the period when Dubrovnik was going through one of its economic and cultural peaks. This quick development led to some changes in the standards of living and behaving, so it is possible that Dubrovnik authorities started to fear that such changes might cause other, graver, changes. The fact that it is stated in the records that this sentence was given as an “example” and “against scandal” may perhaps be a guide in revealing why the punishment was so strict. The Franciscan mendicant order was rather popular among the commoners and Franciscans served as models of moral living. Thus, if a scandal such as a brawl were tolerated, who knew where it could lead? Therefore, it is possible that the Dubrovnik civil authorities acted strictly to try to prevent and avoid any other possible “deviations” of commoner behavior. The “poor” friars ended up banned from the city in order to “rectify” themselves and avoid “scandalizing” citizens. 28 29

See, e.g., Dean, Crime, 108-12. Janeković Römer , “Nasilje zakona,” 38.

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Appendix Acta Consili Minoris, s. 5, vol. 1 (State Archives Dubrovnik) Acts of the Minor Council №1 26th February 1415 Order of the Minor Council that the Dominican friars had to make some constructional modifications on the monastery because of the new street regulations fol. 13 [die XXVI februarii 1415] ⎣pro monasterio fratrum predicatorum⎦ Captum fuit quod omnes porte que funt circa monasterium fratrum predicatorum quocumque modo murentur exceptis solummodo tribus videlizet duabus ecclesie et tertia claustri versus ponentem. Et quod dictum monastrium pro diligenti custodia ciuitatis et conseruatione honestatis fratrum dicti monasterii reducatur in scoleum siue insulam sic quod remaneat expedita via comunis eundi circa muros ciuitatis. Et quod latrine siue conductum que sunt iuxta muros destruantur et fiant a redificentur aut in dicto monasterio in domo eius existente a parte ponentis aut in via versus ponentem subtus teram in illo loco et in ea parte dictorum locorum prout et sicut placuerint ipsis fratribus simile cum procuratroribus dictorum fratrum pro commoditate ipsorum fratrum. Et quod due siue tres fenestrie que sunt in vna cella ex parte (cass: murorum) murorum civitatis murentur uel inferrentur si et in quantum per exportationem terreni existentis retro ipsam cellam non videatur domino restori et minori consilio quod remaneant adeo alte quod nulla suspictio haberi rationabiliter debeat. Que omnia debeant expensis comunis. №2 9th March 1415 Decision and other records of the Minor Council about the case of brawl in the cloister of the Franciscan monastery fol. 15 die VIIII Captum fuit de mittendo in forcia fratrum Marinum de Antibaro capellanum monacarum et fratrem Nicolaum de Cataro ad dominum viceuicarium (cass: qui) et quod ipse faciat de eis iusticiam et de offerendo sibi brachium et carceris et omnia que erunt ad hoc oportuam. Captum fuit de offerendo domino vicetario brachium scalare (?) pro querendo fratrum Laurentium et

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(cass: esse) omnes alios et etiam carceres et alia opportuam in premissis. ⎣pro fratribus minoribus⎦ Captum fuit de procedendo contra fratres minores propter excessum comissum inter eos de vulnerabus et percussionibus inter se ipsos perpetratis (?) vigore habite primo licentie a venerabili fratre Nicola de Spaleto inquisitore ac viceuicario in prouincia Dalmatina. ⎣pro eisdem⎦ Captum fuit de induciando super processu predictorum fratrum vsque ad diem Iiuis de mane proxime futuri que erit etiam (?) presentis. fol. 15’ ⎣contra dompinum Blasium Stanchi⎦ Captum fuit de precipiando (?) dompino Blasio Stanchi dicto Cotiza quod nullo modo audeat nichil persumat intrare monasterium fratrum minorum de Ragusio vsque per totum menssem decembris proximo sub pena voluntatis rectori Ragusiis. ⎣pro Albanense⎦ Captum fuit de dando in illis rebus que videbuntur domino rectori et minori consilio illo Albanensi qui venit huc pro faciendo fieri vestes pro suo domino (?) valorem yperperos quinqua de denariis (?) nostri comunis. ⎣pro fratribus minoribus⎦ Captum fuit de non portando ad consilium rogatorum processum fiendum contra fratres minores propter delictum et excessum eorum. ⎣pro eisdem⎦ Captum fuit de procedendo contra dictos fratres minores singulatum (?) ad vnum ad vnum quem ad modum videbitur presenti consilio. fol. 16 die XIIIIo marcii 1415 Captum fuit in suprascripto minori consilio in quo interfuerunt consiliarii decem de excludendo per summam (?) infrascriptes fratres ordis minorum (?) prtopter uulneta rixas questinas et procussinas habitas inter dictos fratres, vt (cass: de) monasterium decetero remaneat in quiete et nullum scandalum in hac civitate per eos oriri possit viro ut ceteris etiam transeat in exemplum quo vercantur (?) similia decetero perpetiare (?) a civitate Ragusii et eius districtu in quam civitatem et districutm uenire non

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presumant infra tempora infrascripta et si uenerint totiens excludantur per illa eadem tempra quotiens per ipsos uel aliquem ipsorum fuerit contrafactum si legitime probari poterit. Frater Laurentius fuit exclusus a ciutate et districtu in parte suprascripta continetur per annos tres proxime futuros. Frater Marinus de Antibaro capellanus incarcarum usque ad diem XVam nouembris 1416. Frater Nixa de Cathero fuit exclusus utsupra usque ad dictam diem XVam nouembris 1416. Frater Petrus de Scardona suit exclusus utsupra usque ad dictam diem XVam nouembris 1416. Frater Ziuchus de Ragusio lector fuit exclusus utsupra usque ad dictam diem XVam nouembris 1416. Frater Jacobus de Spaleto fuit exclusus utsupra usque ad dictam diem XVam nouembris 1416. Frater Antonius de Caffia et frater Michael de Durachio lector Cathari usque per totum mensis decembris 1415. Captum fuit in suprascripto minori consilio quod illi fratres ex suprascriptis qui ad presens non sunt in carceribus habeant terminum recedendi in Ragusio per totam diem dominicam proxime futuram. №3 10th March 1416 Order of the Minor Council regarding the problem of the windows on the monastery of Saint Mark fol. 73’ [die X martii 1416] ⎣pro fenestra Sancti Marci⎦ Captum fuit de murando fenestram Sancti Marci que aspicit versus plateam et de faciendo vnam aliam fenestram in facie que est ex opposito domus thesaurariorum que sit fortis et bene ferrata.

THE PRIEST BARBIUS AND HIS CRIME BEFORE THE STATE AND CHURCH AUTHORITIES OF MEDIEVAL DUBROVNIK

Nella Lonza

The last days of August or early September of 1284 witnessed a crime that caused quite a stir among the citizens of Dubrovnik (Ragusa) and sealed the fate of both the perpetrator and the victim.1 The crime took place on the road to the Benedictine monastery of St. James at Višnjica (in via sancti Jacobi de Visiniza), located east of the city and overlooking the island of Lokrum. Today a popular promenade to the green oases surrounding the monastery, wedged between two urban zones, the area was once a road leading to Župa and further, to the borders of the Ragusan district (Astarea) and the hinterland.2 At the time, the whole area between the city walls and the St. James monastery was uninhabited. Indeed, a commoner and a noblewoman – a priest and a Benedictine nun – happening to run into each other in 1284 at such a secluded spot can hardly be described as chance, the violent outcome suggesting that these two persons were not strangers. A crime of passion? There is little reliable evidence on the personal relationship of the two people involved and the events underlying this incident, leaving much room for speculation. Of all the places where the Benedictine nun Mira might have been expected to be, this certainly was not one of them. At that time Dubrovnik had 1

2

Primary sources are published in: Tadija Smičiklas, (ed.), Codex diplomaticus Regni Croatiae, Dalmatiae et Slavoniae [hereafter: CD], vol. 6 (Zagreb: Jugoslavenska akademija znanosti i umjetnosti [hereafter: JAZU], 1908), 499-500, doc. 416; 510-1, doc. 427; 545-7, doc. 463; Josip Lučić (ed.), Spisi dubrovačke kancelarije (Registers of the Ragusan chancellary) [hereafter: SDK], vol. 3, Monumenta historica Ragusina, vol. 3 (Zagreb: JAZU and Zavod za hrvatsku povijest, 1988), 195, doc. 508; 196, doc. 509; 199-202, doc. 513. Documents from CD have recurrently been referred to in older historiography, most comprehensively in: Dušanka Dinić-Knežević, “Prilog iz života kaluđerica u srednjevekovnom Dubrovniku” (Contribution to the life of nuns in medieval Dubrovnik), Istraživanja Instituta za istoriju 6 (1979): 325-6. However, it was not until the publication of the complementary sources from SDK that many important and interesting aspects of this case came to light. Vinko Foretić and Ante Marinović, “Natpis iz XIV stoljeća na Dupcu kod Dubrovnika” (A fourteenthcentury inscription from Dubac near Dubrovnik), Anali Historijskog instituta Jugoslavenske akademije znanosti i umjetnosti 8-9 (1960-61): 172.

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seven Benedictine nunneries (St. Andrew, St. Bartholomew, St. Simon, St. Mary of Kaštel, St. Peter the Minor, St. Nicholas de lave and St. Thomas), all of which, except for the last, were located inside the city walls, even in Kaštel, the core of early Dubrovnik built on the cliffs above the sea.3 Although the monastic ideal was permeated with the ideals of modesty, retreat from the world, and contemplation, neither the Rule of St. Benedictine nor monastic practice insisted on strict enclosure. At the time this case took place, preparations were at an early stage for the drawing up of the decretal Periculoso, by which Pope Boniface VIII forbade nuns to leave the cloister.4 Even if Mira were allowed to leave the cloistered space, it does seem odd that a woman, moreover of noble birth and a nun, should find herself alone, outside the city walls and well beyond the bounds that both physically and symbolically encircled her social community. Mira was a nun of St. Andrew’s convent, which was located on the western edge of the sexterium of Kaštel, close to the walls enclosing the city from the sea. The monastic complex had been severely damaged in the Great Earthquake of 1667 and was never reconstructed.5 The size of Mira’s coenobitic community cannot be established with exactitude. Evidence from the mid-fourteenth century bears witness to four Benedictine nuns, this number remaining stable in the latter half of the same century.6 At the time, Benedictine nunneries in Dalmatia were generally small in size,7 and it is plausible that Mira shared her cloistered life with but a few nuns. Unlike the Franciscan convent of St. Clare, established in 1290 and staffed exclusively by patrician daughters,8 the Benedictine nuns made no such distinction and equally admitted plebeian girls. With regard to Mira, however, we have conclusive evidence that she was a noblewoman (nobilis domina). Mira evidently belonged to the patri-

3

4

5

6

7 8

SDK, vol. 4 (Zagreb: Hrvatska akademija znanosti i umjetnosti [hereafter: HAZU] and Zavod za hrvatsku povijest, 1993), 279, doc. 1296; Ivan Ostojić, Benediktinci u Hrvatskoj (Benedictines in Croatia), vol. 2 (Split: Benediktinski priorat Tkon, 1964), 474-85. VI 3.16.1: Aemilius Friedberg, ed., Corpus iuris canonici, vol. 2, Decretalium collectiones (Leipzig 1879, reprint Graz: Akademische Druck- u. Verlagsanstalt, 1955), 1053-4; Jean Leclerq, “La clôture: points de repère historiques,” Collectanea Cisterciensia 43 (1981): 370-1; Elizabeth Makowski, Canon Law and Cloistered Women: Periculoso and Its Commentators 1298-1545, Studies in Medieval and Early Modern Canon Law, vol. 5 (Washington: The Catholic University of America Press, 1997), 1-3. Lukša Beritić, “Ubikacija nestalih građevinskih spomenika u Dubrovniku” (On the location of unpreserved monuments in Dubrovnik), Prilozi povijesti umjetnosti u Dalmaciji 10 (1956): 72-4; Ostojić, Benediktinci, 477-8. State Archives of Dubrovnik [hereafter: SAD], Distributiones testamentorum, ser. 10.2, vol. 1, ff. 159v-160r; vol. 2, f. 19v; vol. 5, f. 130r. Ostojić, Benediktinci, 30. Zdenka Janeković Römer, Okvir slobode: dubrovačka vlastela između srednjovjekovlja i humanizma (The framework of freedom: the Ragusan patriciate between the Middle Ages and Humanism (Zagreb and Dubrovnik: Zavod za povijesne znanosti HAZU u Dubrovniku, 1999), 215.

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cian clan of Mlascagna (Mlascogna), descendants of the Naimeri/Maineri family,9 judging from the fact that Marinus Mlascagna was determined to avenge himself on Barbius for the shame inflicted upon him (ad vindicandum ontam meam).10 The social and family background of the male participant in this case can be traced with utmost accuracy. The priest, Barbius, was born into a non-noble family of merchants and artisans by the name of Longo.11 While the highest church positions (e.g., in the chapter) were distributed among the ecclesiastics of patrician origin, the Ragusan diocesan clergy stemmed mainly from the non-noble ranks.12 Before this violent incident, Barbius appears in a document from 1282 concerning an exchange of communal plots between Pasqua de Volcassio and the confraternity of St. Stephen. Fraternitas S. Stephani was, at that time, one of the most revered confraternities, receiving a considerable number of legacies.13 In this legal act, carried out in front of the archbishop, Barbius represented the confraternity as one of its two administrators,14 which indicates that he was among the more distinguished ecclesiastics. In the sentence passed by the archbishop’s court he is referred to as a “vile person” (vilis persona) not on account of his low origin but because of the horrible crime he had committed. On the road outside the city Barbius mutilated Mira by cutting off her nose (se dicte domine Mire... nasum incisisse). This violent act is also the key to what may have preceded it, for it bears very clear social implications. One might say that Mira’s permanently disfigured face served Barbius as a medium for broadcasting a certain message. Mutilation in the form of cutting off the nose was the punishment inflicted on women whose behaviour seriously undermined the concept of honour.15 This form of

9

10

11

12

13 14 15

For the Mlascagna clan see Irmgard Mahnken, Dubrovački patricijat u XIV veku (The Ragusan patriciate in the fourteenth century), Posebna izdanja SANU, vol. 340 (Belgrade: Srpska akademija nauka i umetnosti, 1960), vol. 1, 349-51 and vol. 2, table IL. For valuable assistance in genealogical matters I am indebted to Nenad Vekarić. In the documents related to Barbius’ case, Marinus is also mentioned under the surname of Maynero (SDK, vol. 3, 199, doc. 513). Gregor Čremošnik (ed.), Istorijski spomenici Dubrovačkog arhiva. Kancelariski i notarski spisi g. 1278-1301 (Historical documents from the archives of Dubrovnik. Chancellery and notary volumes, 1278-1301) (Belgrade: Srpska kraljevska akademija, 1932), 52; SDK, vol. 3, 76, doc. 230; 251, doc. 708; 333, doc. 1072; 337, doc. 1098; SDK, vol. 4, 89, doc. 308; 150, doc. 582; 162, doc. 665; 182, doc. 788; 223, doc. 1048; 228, doc. 1079; 324, doc. 1378. The family is traced in a series of documents from the fourteenth century (Mahnken, Dubrovački patricijat, vol. 1, 47). Zdenka Janeković Römer, Maruša ili suđenje ljubavi: Bračno-ljubavna priča iz srednjovjekovnog Dubrovnika (Maruša or the trial of love: a story on marriage and love from medieval Dubrovnik) (Zagreb: Algoritam, 2007), 193-4. Cf. SDK, vol. 4, 255-351. SDK, vol. 2 (Zagreb: JAZU and Centar za povijesne znanosti Sveučilišta u Zagrebu, 1984), 194, doc. 852. See especially Valentin Groebner, Defaced: the Visual Culture of Violence in the Late Middle Ages (New York: Zone Books, 2004), 60-86. Apart from women, this form of punishment was also intended for passive homosexuals (ibidem, 73-80).

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punishment is mentioned in Roman literature, and it later appeared in Byzantine law and the penal system of the Italian cities.16 Ragusan laws from 1299/1300 and 1366 employed this form of punishment to threaten female thieves unable to pay the fine or maids who entertained men in their master’s premises at night, and the judicial practice of fifteenth-century Dubrovnik had actually witnessed such sentences.17 By cutting off the nose, judicial authorities attained a two-fold stigmatisation: a lasting mark on the uncovered part of the body that reminded viewers of the crime also aimed to degrade the woman and diminish her social prospects.18 Cutting away the nose may also be traced in the out-of-court social practice as a retribution for misconduct, suspected or real, for a woman who had dishonoured her family, particularly by committing adultery or some other form of sexual misbehaviour.19 Its verbal equivalent – where the actions did not go beyond threat – was a stream of abuse inflicted upon women in everyday situations. Records of the medieval Ragusan Criminal Court bear witness to cases involving mere threats, but also to those in which a man actually cut off his wife’s nose if he believed that he had been dishonoured by her behaviour.20 The meaning of Barbius’ violent act against Mira might be elucidated with a

16

17

18

19 20

For the Byzantine law see Lujo Margetić, “O nekim osnovnim značajkama pokretanja kaznenog postupka u srednjovjekovnim dalmatinskim gradskim općinama” (On some elements of the initiation of criminal procedure in medieval Dalmation cities), Rad HAZU 475 (1997): 28; for southern Italy see the code of Frederick II from 1231, III, 14 in Domenico Maffei (ed.), Un’epitome in volgare del ‘Liber Augustalis’ (Bari: Laterza, 1995), 182; for Venice see Guido Ruggiero, “Constructing civic morality, deconstructing the body: civic rituals of punishment in Renaissance Venice,” in Riti e rituali nelle società medievali, ed. Jacques Chiffoleau, Lauro Martines and Agostino Paravicini Bagliani (Spoleto: Centro italiano di studi sull’alto medioevo, 1994), 180; for Bologna, Sarah Rubin Blanshei, “Criminal Law and Politics in Medieval Bologna,” Criminal Justice History 2 (1981): 19-20, note 7. See Valtazar Bogišić and Constantin Jireček (ed.), Liber statutorum civitatis Ragusii compositus anno 1272, Monumenta historico-juridica Slavorum Meridionalium, vol. 9 (Zagreb: JAZU, 1904), 127, 136-7 (VI, 4 and 33); Josephus Gelcich (ed.), Libri reformationum, vol. 4, Monumenta spectantia historiam Slavorum Meridionalium, vol. 28 (Zagreb: JAZU, 1896), 53; Constantin Jireček, “Der ragusanische Dichter Šiško Menčetić,” Archiv für slavische Philologie 18 (1897): 30-1; Risto Jeremić and Jorjo Tadić, Prilozi za istoriju zdravstvene kulture starog Dubrovnika (Contributions to the history of public health in old Dubrovnik), vol. 1 (Belgrade: Biblioteka Centralnog higijenskog zavoda, 1938), 127-8; Ilija Mitić, “Prilog proučavanju kazne sakaćenja na području Dubrovačke Republike i u nekim dalmatinskim gradovima” (A contribution to the research into the mutilation penalty on the territory of the Republic of Dubrovnik and in some Dalmatian towns), Zbornik Pravnog fakulteta u Zagrebu 32, no. 1-2 (1982): 144. Cf. Guido Ruggiero, Violence in Early Renaissance Venice (New Brunswick: Rutgers University Press, 1980), 108. Groebner, Defaced, 72-3. SDK, vol. 3, 178, doc. 476; SAD, Lamenta politica, ser. 11, vol. 2, f. 37v, 319r; SAD, Lamenta de intus, ser. 51, vol. 21, f. 57; SAD, Lamenta de intus et foris, ser. 53, vol. 1, f. 175rv; Bariša Krekić, “Dubrovnik’s Struggle Against Fires,” in idem, Dubrovnik: a Mediterranean Urban Society, 1300-1600 (Aldershot and Brookfield: Variorum, 1997), section VI, 13-4; Slavica Stojan, “Mizoginija i hrvatski pisci 18. stoljeća u Dubrovniku” (Misoginy in the works of eighteenth-century Croat writers in Dubrovnik), Anali Zavoda za

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case that occurred the same year: the nobleman Johannes de Crossio ordered Bratuša, his mistress, to undress, took her earrings, had her nose cut off, and put her aboard a ship to Dalmatia, the crew being given permission to sell her or act as they willed.21 Barbius’ violent act labelled Mira as a dishonoured woman, too. We can presume that he attacked and mutilated her because something in their relationship led him to believe that he had been betrayed. Had they been related, one might speculate that Barbius punished Mira on account of her intercourse with a third person. This not being the case, he evidently sought revenge for something that included no other person but themselves. Having committed the act, Barbius decided to flee, but not in haste or panic towards the Republic’s border, a couple of hours’ walk from the city, as might have been expected. Surprisingly, he took refuge with the pious women who dwelled next to the church of St. Blaise at Gorica, overlooking the western sea access to Dubrovnik. These recluses (recluse) were a typical female form of medieval piety and paramonastic religious life. At the time of Barbius’ escape, there were about twenty of them in Dubrovnik, located close to the city churches or those in the city environs. The solitary dwelling next to the small church of St. Blaise at Gorica was a most important one and usually provided a home for several anchoresses. Here Barbius not only found muchneeded refuge, but also obtained aid for his escape. In this sanctuary he remained as long as sixteen days, during which the recluses did their best to help him flee Dubrovnik by sea. Several futile attempts finally resulted in engaging Andreas de Vixi, who was about to sail his ship from the island of Koločep to Venice, to fetch “some of their things to be transported.” Carefully cloaked, Barbius was accompanied down the Gorica cliff, smuggled into a small boat and then aboard the ship, which set out for Venice.22 Did the recluses know the true identity of the man they offered shelter to? Since a decision to flee the Republic was not taken lightly, they must have realised the gravity of the situation. We shall never know if Barbius told them the truth or if the recluses gathered the details of the incident from some other source. Contrary to what their name suggests, the recluses communicated freely with the outer world, and, accordingly, may have learnt about the background of Barbius’ escape. In any event, the determination of these women to defy the church and state authorities by helping the fugitive earned them a pivotal role in this Ragusan case. At the request of the Ragusan count (comes), the Venetian authorities seized Barbius and extradited him to Dubrovnik, where he was to face trial before the criminal court. The unsettling news that Barbius’ would shortly arrive at the city gave rise to

21 22

povijesne znanosti HAZU u Dubrovniku 39 (2001): 446-7. On the protection of women against violence and preservation of their “sexual chastity” as a component of male honour see Groebner, Defaced, 81-2. SDK, vol. 3, 180-1, doc. 481; 210, doc. 520. SDK, vol. 3, 196, doc. 509.

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widespread speculation about his punishment, apparently only a fine of 75 perpers. Indeed, such a fine was in accordance with the Statute regulations: 50 perpers for serious injury of the face, plus half the amount for an escape.23 It should be noted, however, that this sum was more than a trifle: the current price of Bosnian female slaves, sold by Ragusan merchants, ranged between 6 and 15 perpers.24 The penal system of Dubrovnik in the late thirteenth century was based on 25 fines, similar to the legal practice of Venice and the Italian cities of the day.26 However, the drastic disproportion between a violent crime and the monetary punishment could easily give way to a feeling of injustice and consequently lead to friction. This can be seen in the case of Barbius. A group advocating on Mira’s behalf pointed out the distinctive meaning of the terms ratio (law) and iusticia (justice). In their view, justice ought to target Barbius’ person and not only his purse. The retribution or deserved punishment was felt to be social honour; the position of the victim and her family could be restored only by dishonouring the perpetrator’s body. Having no “healing effect” in kind, money was of little help here. The avengers were headed by Marinus de Mlascagna, most likely in his thirties at the time, apparently a well-established merchant and nobleman.27 Judging by his passionate approach to the matter, he might have been related to Mira by blood, even a brother, cousin or nephew. Aware of the possible implications of his intentions, he sought advice and support from noblemen he trusted.28 Grubeša de Ragnina,29 a man of the world from whom Marinus sought advice, disapproved of hasty decisions and suggested a “moderate approach” – that is, “to find companions more prudent than himself” (inveniat socios... sapienciores quam ipse) and go before the count to seek justice the legal way. Gervasius de Martinusii30 also advised Marinus “not to distance himself from the government” (non moveas te a dominacione). Succumbing to his impulsive nature, Ur-

23 24 25

26

27 28 29 30

SDK, vol. 3, 200, doc. 513; Bogišić and Jireček, Liber statutorum, 125-6 (VI, 3). SDK, vol. 2, 252-79. Nella Lonza, “‘Coram Domino Comite et suis Iudicibus’: Penal Procedure in Early-Fourteenth-Century Dubrovnik,” Criminal Justice History 15 (1994): 17-9; for a longer time span cf. eadem, Pod plaštem pravde: Kaznenopravni sustav Dubrovačke Republike u XVIII. stoljeću (Under the veil of justice: criminal justice in the eighteenth-century Republic of Dubrovnik) (Dubrovnik: Zavod za povijesne znanosti HAZU, 1997), 190. Guido Ruggiero, “Law and Punishment in Early Renaissance Venice,” Journal of Criminal Law & Criminology 69 (1978): 247; idem, “Politica e giustizia,” in Storia di Venezia dalle origini alla caduta della Serenissima, vol. 3, La formazione dello stato patrizio, ed. Girolamo Arnaldi, Giorgio Cracco and Alberto Tenenti (Rome: Istituto della Enciclopedia italiana, 1997), 393-4 and 402-3. For the age estimate and other biographical data I thank Nenad Vekarić. SDK, vol. 3, 195, doc. 508; 199, doc. 513. Mahnken, Dubrovački patricijat, vol. 1, 379. On the clan see ibidem, 305.

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sacius de Villarico31 readily offered to cut off Barbius’ nose and hand on condition that Marinus promised to pay the fine prescribed for such a crime.32 True, some of Marin’s confidants proved wiser and more reasonable than himself, as Grubeša de Ragnina had thoughtfully recommended, yet he turned a deaf ear to their advice. Did he believe that the chances of the court abandoning the legal framework and reaching a harsher punishment than that prescribed by the law were very slim?33 Or did he think that the only way to “wash out” the shame inflicted was to act personally? While the count’s entourage waited for Barbius to disembark in the city port and to then escort him to the Communal Palace, an angry crowd obstructed passage shouting: “Let him die, let the devil die” (moriatur, moriatur diabolus), stirring up revenge. It was then that Marinus de Mlascagna drew a knife and attacked the priest in an attempt to cut off his leg. In so doing, he called his kin and friends to join him in revenge (si habeo parentes et amicos meos, veniant nunc ad adiuvandum me vendicare ontam meam). Young Helias de Bonda34 joined in by trying to trick the guards into placing Barbius in his custody, claiming that the count had given his consent to lynching (Dimitite presbiterum, quia ego scio quod dominus comes vult quod interficiatur). The court records testify to a serious commotion, in which the count’s guards managed to overpower the assaulter. It was not until the arrival of Deacon Gregorius de Cernelio that the situation was finally controlled. Once he had soothed the guards’ fear and persuaded them to hand Mlascagna over to him (Dimittatis dictum Marinum mihi. Nolite timere), the social tensions abated and Barbius was escorted to the count. This, apparently, was not the only case of attempted lynching that Dubrovnik witnessed in medieval times,35 but it certainly attracted great attention and resulted in an official inquiry. Barbius enjoyed the status of an arrested person under the jurisdiction of the state and/or ecclesiastical authorities, thus any attempt at revenge on him was necessarily interpreted as defiance of the official institutions. Therefore, two parallel trials were initiated: one investigating Barbius’ assault on Mira, and the other Marinus’ assault upon Barbius. The action against Marinus de Mlascagna lasted about a week and included hearing eleven witnesses, with bail being set at the high amount of 200 per-

31 32 33

34 35

On theVillarico/Gullerico family see ibidem, 286. SDK, vol. 3, 200, doc. 513. Although the principle of legality in the modern sense of the word was not at work at the time, the Statute allowed the application of custom, interpretation by analogy and, as a last resort, free judgement of the court only for actions not covered by the law. Cf. Bogišić and Jireček, Liber statutorum, 2 and 27 (proemium; II, 4). Mahnken, Dubrovački patricijat, vol. 1, 159. Nella Lonza, “Tužba, osveta, nagodba: modeli reagiranja na zločin u srednjovjekovnom Dubrovniku” (Settling disputes in medieval Dubrovnik by court proceedings, revenge or out-of-court settlement), Anali Zavoda za povijesne znanosti HAZU u Dubrovniku 40 (2002): 88-92.

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pers.36 Although Marinus denied all the accusations (“I did not draw a knife, nor have I done anything wrong, nor have I been talked into doing anything of the kind”), the witnesses gave a detailed account of the events, sufficient for the court to bring a guilty verdict and a fine of 30 perpers. This was by no means a small fine, considering that the assault went no further than an attempt. The court evidently decided on the highest punishment possible in order to demonstrate that defiance and mob rule would not be tolerated. At the same time, without delay, Barbius was brought to trial. Since the defendant was a cleric, his case came before the ecclesiastical authorities.37 Given the nature of the crime, this personal immunity did not protect Barbius from forcible acts of the state institutions,38 and his arrest was never questioned. The process was initiated in the late September of 1284 by the archbishop of Dubrovnik, a learned Franciscan, Bonaventura of Parma, who had sat in this high ecclesiastical position for several years.39 At that time, this office was tranquil and offered little opportunity for its holder to ensconce himself on the throne; but shortly after Bonaventura’s arrival in Dubrovnik his entourage had been attacked by a group around the cleric Johannes de Prodanello and the archbishop’s palace was also stoned.40 Barbius faced inquisitorial procedure (inquisitio), a kind of procedure in use in the ecclesiastical courts, introduced by the decision of the Fourth Lateran Council in 1215.41 By the rules of this procedure, the court was authorised to indict someone ex officio and examine the evidence without having to wait for the plaintiff to press charges and submit evidence against the defendant. Although the inquisitorial procedure had formally maintained its subordinate place, in practice it proved to be a simpler, more flexible and more efficient form than the paradigmatic accusatorial model, and quickly spread in the practice of the state courts.42 It is interesting to note that while making the 36

37

38 39

40 41 42

On the court structure and the criminal procedure of the early fourteenth century cf. Lonza, “Pred gosparom knezom,” 28-47. Paul Fournier, Les officialités au Moyen Âge: Étude sur l’organisation, la compétence et la procédure des tribunaux ecclésiastiques ordinaires en France de 1180 à 1328 (Paris, 1880, reprint Aalen: Scientia, 1984), 65-73. Ibidem, 70-2. He accepted the archbishopric in 1281, and arrived in Dubrovnik shortly afterwards. On him see Daniel Farlati and Jacobus Coleti, Ecclesiae Ragusinae historia (Venice: Sebastianus Coleti, 1800), 115-6; Serafino Razzi, “Narrazioni o vero storia degli arcivescovi di Raugia,” in Povijest dubrovačke metropolije i dubrovačkih nadbiskupa (X.-XVI. stoljeća) (History of the archbishopric and archbishops of Dubrovnik, 10th -16th c), ed. Stjepan Krasić and Serafino Razzi (Dubrovnik: Biskupski ordinarijat Dubrovnik, 1999), 119. CD, vol. 6, 426-7, doc. 362; 476-7, doc. 394; 504-5, doc. 421. Canon Qualiter et quando was included in X 5.1.24 (Friedberg, Corpus iuris canonici II, 745-7). Fournier, Les officialités au Moyen Âge, 266-70; Richard M. Fraher, “IV Lateran’s revolution in criminal procedure: The birth of inquisitio, the end of ordeals, and Innocent III’s vision of ecclesiastical politics,” in Studia in honorem eminentissimi cardinalis Alphonsi M. Stickler, ed. Rosalius Iosephus Castillo Lara, Studia et textus historiae iuris canonici, vol. 7 (Rome: Libreria Ateneo Salesiano, 1992), 99-111; James Brundage, Medieval Canon Law (Harlow: Longman, 1995), 147-51; Massimo Vallerani, La giustizia pubblica medievale

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formal accusation, the archbishop’s court called upon the fact that the whole city of Dubrovnik was familiar with Barbius’ crime (fama publica deferente ad clamorem totius civitatis Ragusine).43 Here we are not dealing with a provisional rhetorical qualifier but with public opinion (fama publica, clamor) as a premise upon which the court could commence action ex officio.44 At the time of Barbius’ trial, legal doctrine took a consensual approach to the role of public opinion, best illustrated by Tractatus de ordine iudiciario, composed by Aegidius de Fuscarariis around 1260.45 Of the procedural acts concerning this case only the verdict has survived. Thus we learn that Barbius had spontaneously confessed to the crime (de plano confessus fuerit),46 yet details concerning the motive for his assault on Mira, likely to have been woven into the defendant’s testimony, failed to surface. As the confession was sufficient for a guilty verdict, the court did not have to go to the trouble of submitting other evidence, contributing most likely to an expedient and simple trial. A historian accustomed to the examples of latent tensions and open jurisdictional controversies between ecclesiastical and state authorities might find it curious that Barbius was tried before the representatives of the chapter together with the full state court of five members presided over by the count. Although the sentence was eventually passed by the archbishop in his palace, it was not formulated by the notary Antonio de Carletis of Parma, at the time member of archbishop’s staff,47 but by the government chancellor, Tomasino de Savere.48 In the comparative literature I have not been able to trace similar examples of such cooperation between the church and state authorities,49 yet I harbour doubts about the exclusiveness of the Ragusan practice. In his still-unrivalled study of the competence of medieval diocesan courts in France, Paul Fournier

43 44 45

46 47 48

49

(Bologna: Il Mulino, 2005), 34-45. For Dubrovnik see Nella Lonza, “L’accusatoire et l’infrajudiciaire: la «formule mixte» à Raguse (Dubrovnik) au Moyen Âge,” in Pratiques sociales et politiques judiciaires dans les villes de l’Occident européen à la fin du Moyen Âge, ed. Jacques Chiffoleau, Claude Gauvard and Andrea Zorzi (Rome: École française de Rome, 2007), 644-650. CD, vol. 6, 499, doc. 416. Vallerani, La giustizia pubblica medievale, 35-6. Ludwig Wahrmund (ed.), Der Ordo iudiciarius des Aegidius de Fuscarariis, Quellen zur Geschichte des Römisch-kanonischen Prozesses im Mittelalter, vol. 3.1 (Innsbruck 1916, reprint Aalen: Scientia Verlag, 1962), 156-9. On the author and his work see Johann Friedrich von Schulte, Die Geschichte der Quellen und Literatur des Canonischen Rechts, vol. 2 (Stuttgart 1875, reprint Graz : Akademische Druck- u. Verlagsanstalt, 1956), 139-42. CD, vol. 6, 499, doc. 416. For instance, he wrote documents in CD, vol. 6, 477, doc. 395; 478, doc. 396; 504-5, doc. 421. CD, vol. 6, 500, doc. 416. On this chancellor see Constantin Jireček, “Die mittelalterliche Kanzlei der Ragusaner,” Archiv für slavische Philologie 26 (1904): 187-8. Cf. Fournier, Les officialités au Moyen Âge. Paolo Prodi emphasizes that historiography should not examine the ecclastiastical and secular courts separately, considering their partial overlap in practice; Paolo Prodi, Una storia della giustizia: Dal pluralismo dei fori al moderno dualismo tra coscenza e diritto (Bologna: Il Mulino, 2000), 129-37.

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has outlined the gradual institution of ecclesiastical jurisdiction over the clergy, a process that occurred during the thirteenth century, providing a series of later examples which demonstrate the reluctance of the state institutions to observe clerical immunity.50 It is also likely that elsewhere in Europe, in the general demarcation between the ecclesiastical and secular jurisdictions, overlapping and provisional institutional forms still emerged. A case from Dubrovnik’s jurisprudence supports this assumption, the trial against Johannes de Prodanello mentioned above. It was presided over by the archbishop and conducted before several canons, the Ragusan count and his assistant, the full Minor Council (i.e., the government) with its eleven members, and numerous clerics and laymen. The representatives of secular institutions were not a mere audience witnessing a public trial, but were adequately appointed by virtue of their office. One might say that in late thirteenth-century Dubrovnik the church had predominant jurisdiction over the clerics, but still lacked a clear-cut boundary with the secular authorities. With reference to some common rhetorical figures on the retributive and preventive implications of punishment (nolentes quod tantum maleficium maneat inpunitum, sed quod pena istius sit metus multorum),51 Barbius Longus was to be deprived of all ecclesiastical honours and benefices (privamus... omni officio et ecclesiastico beneficio) and sentenced to life imprisonment (ut penitentiam agat... perpetuis carceribus detineri). The first component of the verdict did not deprive Barbius of his clerical status, but interfered deeply in his existence by leaving him without a stable source of livelihood; the second component seems even more serious, for it threatened life-long imprisonment, the harshest punishment that could be inflicted by the ecclesiastical court. The conditions of Barbius’ punishment and penitence were defined in detail by the archbishop of Dubrovnik. Two months after the verdict, by a special decree – issued in the cathedral, again in the presence of the count and the secular court! – the archbishop specified the terms of Barbius’ confinement.52 The prisoner was thrown into the dungeon below the church of St. Saviour de palude, which stood opposite the Communal Palace. In the fourteenth and fifteenth century this cellar was occasionally used for keeping prisoners (women in particular), who, for some reason, could not be kept in one of the regular prisons.53 Although located under a church, the dungeon was at the disposal of the government institutions. In these premises Barbius was to live on bread and water (commedere debeat panem et aquam solummodo), with both legs and one arm chained (conpedibus et vinculis ferreis 50 51

52 53

Fournier, Les officialités au Moyen Âge, 65-6. Drawn from Roman law, this formula specifically echoes the decretal Ut fame from 1203 (X 5.39.5). See Richard M. Fraher, “The theoretical justification for the new criminal law of the high Middle Ages: ‘Rei publicae interest ne crimina remaneant impunita’,” University of Illinois Law Review 3 (1984): 577-8. CD, vol. 6, 510-1, doc. 427. SDK, vol. 3, 135, doc. 407; Beritić, “Ubikacija,” 61-2; Nada Grujić, “Knežev dvor u Dubrovniku prije 1435. godine” (The Rector’s Palace in Dubrovnik before 1435), Prilozi povijesti umjetnosti u Dalmaciji 40 (2003-2004): 157.

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ad pedes et unam manum), and only in the case of poor health could these terms be alleviated.54 In fact, this was the harshest punishment cloaked in penitence that the diocesan court was empowered to impose,55 being considerably closer to the “just punishment” which had been demanded than that the secular court could have passed. However, the implementation of such penalties tended to dilute the strict verdict because the criminal’s subsequent repentance almost inevitably opened the door to a merciful pardon.56 Judging by the evidence, Barbius showed no resistance to the trial: apparently, he lodged no objection of either a procedural or material nature, and we know for certain that he confessed to the crime. Captivity, however, contributed to a change of his attitude, adding a new chapter to the story. Eventually, Barbius filed an appeal to the pope, claiming that the state authorities were not authorised to keep him imprisoned. As I have noted earlier, the sentence was passed by the archbishop, but the “secular-based” elements of the trial and the execution of punishment helped Barbius build his appeal around the court’s disregard for the immunity that he, as a cleric, was entitled to. As the appeal procedure entailed the local institutions,57 the fact that this case would be reconsidered by the bodies of the papal curia soon became the talk of the town. This turn of events led the Ragusan count to refute custody (refuto custodiam) before the archbishop, the decision being properly formulated and drafted on 2 July 1285.58 This was merely a formal act of transferring jurisdiction to the church authorities, aimed to counteract Barbius’ vexatious proof of the immunity violation, but it failed to open the door of his cell. The papal curia acted in accordance with the regular procedure: the case was assigned to a high ecclesiastic to act as judge delegate (iudex delegatus).59 In Barbius’ case it was the archbishop of Bari, whom the pope’s letter authorised threatening with excommunication if Barbius was not set free, on the condition that the statements in the appeal were true, commonly phrased as si est ita. For further dealings in this case the prelate appointed the priest Rogerius de Lupizo and furnished him with concrete instructions. Maintaining the right to act directly in this case, Rogerius demanded that 54 55

56 57

58 59

CD, vol. 6, 531-2, doc. 450. Joseph Blötzer, “Inquisition,” in The Catholic Encyclopedia, vol. 8 (New York, 1910, online: http://www. newadvent.org/cathen/08026a.htm: consulted on 17 July 2008); Bernard Hamilton, The Medieval Inquisition (London: Edward Arnold, 1981), 49-54; Jean Dubabin, Captivity and Imprisonment in Medieval Europe 1000-1300 (New York: Palgrave, 2002), 144-5, 151-2. Dubabin, Captivity and Imprisonment, 157. Wahrmund, Der Ordo iudiciarius des Aegidius de Fuscarariis, 146; Charles Duggan, “Papal Judges Delegate and the Making of the ‘New Law’ in the Twelfth Century,” in Cultures of Power: Lordship, Status, and Process in Twelfth-Century Europe, ed. Thomas N. Bisson (Philadelphia: University of Pennsylvania Press, 1995), 174. CD, vol. 6, 531-2, doc. 450. On this procedure see Duggan, “Papal Judges Delegate,” 174-6.

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Barbius be released from prison, that the Ragusan authorities vouch for his personal security, and that all the actors in this “sacrilege” be expelled from the government until they had submitted to the church demands. Rogerius arrived in Dubrovnik in the early spring of 1286 carrying two letters from his superiors, most formally styled but of hypothetical nature – his first task was to establish whether Barbius’ clerical immunity had actually been violated. Acting in conformity with his accountable office, the Ragusan count summoned all those who, in one way or the other, participated in authority – secular or ecclesiastical. Thus, the whole Major Council (all adult male patricians), the chapter and its dignitaries, the Ragusan clergy, and representatives of the Dominican and Franciscan Orders gathered in the largest building, St. Mary’s cathedral. After the letters Rogerius had brought were read out, the count replied “in his name and that of the whole commune and the Ragusan community” (nomine suo et vice et nomine totius comunis et universitatis Ragusii) that he did not have Barbius arrested and kept in custody, as was commonly known and evidenced by archbishop’s verdict and other documents. The count’s statements were not completely true, but allowed manipulation because the local secular and church authorities held a shared view of Barbius’ case. As no one felt the need or interest to refute the count’s words, the absence of dissenting voices provided poor grounds for Barbius’ appeal. The ensuing legal actions, if any, and the fate of Barbius are unknown. Did he meet his end in the dark cellar of St. Saviour’s? Or was he eventually pardoned and walked out a free man, although deprived of his clerical benefits? His life remains in the obscurity of unrecoverable past events. Equally obscure is the fate of Mira. Probably she spent the rest of her life in the convent of St. Andrew, her disfigured face a constant reminder of Barbius. The background of Barbius’ story anticipates a number of themes which I aim to address in the conclusion. Firstly, the judiciary still had difficulty in winning a dominant position among the devices designed to resolve social conflicts, and thus stood small chance in competition with revenge. Additionally, the penal system, based on fines, created principally to provide revenues and finance the count as well as the commune, not only failed to fulfil the lust for revenge of a certain social group but did not fit the understanding of articulated communal government, justice (iustitia) – granting each person due reward – being among its civic virtues. Most importantly, in the complex social tectonics surrounding “the case of Barbius” the deepest fissures did not emerge where one expects them the most, on the edge separating the competence of the secular and church institutions. The main tensions built on other issues: the state authorities faced the problem of having to bridle a serious vengeful attempt of a patrician group, while the church had to deal with the wilful action of the recluses. However, the question of jurisdiction over Barbius did not give rise to any friction between the

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two authorities during his escape, arrest, trial or imprisonment. In this case, the ecclesiastical and state authorities exhibited exemplary cooperation on the local level, moreover, they acted side by side. (translated by Vesna Baće)

LIST OF CONTRIBUTORS

Peter Clarke , History, School of Humanities, University of Southampton, Southhampton S017 1BJ, England Gerhard Jaritz, Department of Medieval Studies, Central European University, Nádor utca 9, 1051 Budapest, Hungary, and Institut für Realienkunde, Austrian Academy of Sciences, Körnermarkt 13, 3500 Krems, Austria Torstein Jørgensen, Centre for Medieval Studies, University of Bergen, P.O. BOX 7805, 5020 Bergen, Norway, and School of Mission & Theology, Misjonsmarka 12, 4024 Stavanger, Norway Etleva Lala, Fakulteti i Shkencave Humane (Faculty of Humanities), University of Elbasan, Rruga Rinia, 3000 Elbasan, Albania Nella Lonza, Zavod za povijesne znanosti HAZU (Croatian Academy of Sciences and Arts, The Institute of Historical Sciences), Lapadska obala 6, 20 000 Dubrovnik, Croatia Ana Marinković, Filozofski fakultet Sveučilišta u Zagrebu (University of Zagreb, Faculty of Humanities and Social Sciences), Ivana Lučića 3, 10 000 Zagreb, Croatia, and Department of Medieval Studies, Central European University, Nádor utca 9, 1051 Budapest, Hungary Gordan Ravančić, Hrvatski institut za povijest (Croatian Institute of History), Opatička 10, 10 000 Zagreb, Croatia Kirsi Salonen, Historiatieteen ja filosofian laitos (Department of History and Philosophy), Kanslerinrinne 1, 33014 Tampereen yliopisto, Finland

INDEX

Alessio, bishop of, 51 Alexander III, Pope, 12 Ambrose, Saint, 4 Amiens, 69 Anabaptists, 56 Andreas Hungarus, Archbishop of Bar, 51 Arabs, 3 Arbanum, bishop of, 51 Aristotle, 4 Arras, diocese, 21 Augsburg, 55 auditor, 35 Augustine, Saint, 4, 5 Avignon, 51 Bar, archbishop of, 51, 53, 54 archdiocese, 49, 50, 51 Bari, archbishop of, 87 Bertinoro, bishop of, 42 Besançon, diocese, 25 Bloch, Marc, 3 bloodshed, 21 Bologna, 12, 26 Bonaventura of Parma, Archbishop of Dubrovnik, 84 Boniface VIII, Pope, 78 botamål, 30, 31, 32 botamann, 31, 32, 33, 36 Bourges, diocese, 25 Bracton, Henry de, 13

bread-knife, 55-65 Bullinger, Heinrich, 56 Burgos, diocese, 26, 27 Calandrini, Philippus, Cardinal Penitentiary, 24, 26 Calixtus III, Pope, 58 Cambrai, diocese, 22 Camin, diocese, 60, 62 Canonists, 7, 8, 12, 13 Canon Law, 9, 18, 19 Canterbury, diocese, 8 Chartres, bishop of, 7 Clarendon, 10, 12 Clement V, Pope, 8 Clermont, 7 Cologne, archdiocese, 58 Compositio Tunbergensis, 43 Constance, diocese, 58 Constantine, Emperor, 10 Constitutions of Clarendon, 10, 12 Council of Bar, 49, 51 Council of Clermont, 7 Council of Lyon, Second, 14 Council of Narbonne, 6 Crusade, First, 7 Dagno, bishop of, 51 decretists, 12 Decretalia, 57 Decretum Gratiani, 8, 10, 11, 12 Drivast, bishop of, 51

94 drunkenness, 60 Dubrovnik, 67-75; 77-89 Archbishop of, 52, 69, 71, 84, 86 Benedictine nunneries, 77, 78 Dominicans, 70, 73 Franciscans, 70-73 Poor Clares, 70, 71, 78 Eugene IV, Pope, 58 forum internum, 42 fredkjøp, 33, 45 frendebot, 33, 45 Galeottus de Oddis, regent of the Penitentiary, 27 General Peace for Bavaria, 56 Geronna, diocese, 25 Gratian, 5, 8, 10, 11, 12 Gregory IX, Pope, 57 gridsbrev, 32, 33 hatred, 26, 27 Havelberg, diocese, 64 Henry II, English King, 10, 11, 12, 13 Henry III, English King, 13 Henry III, German Emperor, 6 Huguccio, 8 Hutterites, 56 Innocent VIII, Pope, 58 inquisition, 84 instigation of the Devil, 26, 49 Islam, 51 Israelites, 4 Jon the Red, Archbishop of Nidaros, 43 Joshua, 4 Judas Maccabeus, 4 Justinian, Emperor, 11 Kessler, Johannes, 56 knife, 55-65 knife laws, 55 Kotor, bishop of, 53

INDEX

kvitteringsbrev, 32 Landislaw, 31 landsvistbrev, 32, 33, 45 Lateran Council Second, 8, 19 Fourth, 51, 84 Le Puy, bishop of, 6 Lerida, diocese, 25 Lezha, bishop of, 53 Liber Extra, 39 Liège, diocese, 22, 58, 61, 63 littera ecxclesiae, 35 Lyon, 14 Magnus the Lawmender, King of Norway, 31, 43 Magyars, 3 Mainz, archbishop of, 5 archdiocese, 58 meals, 61 moderamen ratione instrumenti-principle, 40 Muslims, 7, 51 Mylopotamos, bishop of, 42 Narbonne, 6 Nicholas I, Pope, 5 Nicholas V, Pope, 58 Nidaros, archdiocese, 34, 40, 43 nidingsdrap, 30 Novara, diocese, 26 Olav, Saint, 43 Old Testament, 4 ordinarius, 35 Oslo, bishop of, 28, 44 diocese, 37 Ottomans, 47, 48, 53, 54 Palencia, diocese, 24, 26 patristic thought, 4 Paul II, Pope, 58

95

INDEX

Peace of God, 6, 7 pilgrimage, 9, 43 Pius II, Pope, 17, 20, 58 presbytericidium, 49 privilegium canonis, 9, 15 privilegium fori, 9, 10, 11, 12, 15, 30, 42, 43 proctor, 24 Ragusa, see Dubrovnik Ratisbon, 5 Ratzeburg, diocese, 63 Reformation, 56 Ridemann, Peter, 56 Robert, King of France, 6 Rome, 9 relics, 6 Reuter, Timothy, 5 Rufinus, 8, 12 Sabbata, 56 Saint Malo, diocese, 27 Salamanca, diocese, 21, 25, 26 Salzburg, archdiocese, 58 Schwerin, diocese, 59, 62 Serbian Orthodoxy, 48 Shasi, bishop of, 50 Shkodra, 49 Signoria, 53 Sixtus IV, Pope, 58 Skanderbeg, George Kastrioti, 47 Split, 71 Stavanger, diocese, 38 Stephen, English King, 11 Stephen of Tournai, 12 Synod of Ratisbon, 5 Tarazona, diocese, 25 tegngjeld, 33, 45 Telemark, 44 Ten Commandments, 3 thing, 32

Thomas Aquinas, 8 Thomas Becket, Archbishop of Canterbury, 8, 10, 11, 12 Tortosa, diocese, 25 Tours, 25 Tønsberg Concordat, 43 Truce of God, 6, 7 Turks, 48 ubotamål, 30, 31, 32 ubotamann, 33, 36 Upper Telemark, 29 Urban II, Pope, 7 Urban V, Pope, 53 Utrecht, diocese, 58 Valence, diocese, 22 Valencia, diocese, 25 Vallombrosa, 7 Venetian Senate, 53 Venice, 81 Velletri, diocese, 21 verba iniuriosia, 61 Vich, diocese, 21 viglysing, 31 Vikings, 3, 5 vim vi repellendo, 39, 57 vis licita, 39 war, 3, 4, 47 holy, 4 just, 4 William I, English King, 11

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Series Technical Editor: Annabella Pál Volumes 1, 2 and 6 are out of print Vol. 3. Oral History of the Middle Ages. The Spoken Word in Context Medium Aevum Quotidianum Sonderband XII. Gerhard Jaritz and Michael Richter, eds. 2001 978-963-9241-58-9 cloth, 978-963-9241-50-3 paperback

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Vol. 4. Ibn Khaldun: An Essay in Reinterpretation Al-Azmeh, A., 2003 978-963-9241-58-9 cloth, 978-963-9241-50-3 paperback Vol. 5. People and Nature in Historical Perspective Laszlovszky / Szabó, 2003 978-963-9241-86-2 paperback Vol. 6. Latin Classics in Medieval Hungary: Eleventh century Nemerkényi, E., 2004 978-963-7326-04-2 paperback Vol. 9. Catalogue of the Slavonic Cyrillic Manuscripts of the National Széchényi Library Cleminson / Moussakova / Voutova, 2007 978-963-7326-97-4 cloth, 978-963-7326-82-0 paperback Vol. 10. The Apostolic Penitentiary in Local Contexts Jaritz / Jørgensen / Salonen, 2007 978-963-7326-83-7 paperback Vol. 11. The Edges of the Medieval World Jaritz / Kreem, 2009 978-963-9776-45-6 paperback Vol. 13. The Hospitallers in the Medieval Kingdom of Hungary c. 1150-1387 Hunyadi, 2010 978-963-9662-44-5 paperback ForthcomiNg: ???

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