Medieval Canon Law (The Medieval World) [2 ed.] 0367742411, 9780367742416

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MEDIEVAL CANON LAW

It is impossible to understand how the medieval church functioned and, in turn, influenced the lay world within its care without understanding “canon law”. This book examines its development from its beginnings to the end of the Middle Ages, updating its findings in light of recent scholarly trends. This second edition has been fully revised and updated by Melodie H. Eichbauer to include additional material on the early Middle Ages; the significance of the discovery of earlier versions of Gratian’s Decretum; and the new research into law emanating from secular authorities, councils, episcopal acta, and juridical commentary to rethink our understanding of the sources of law and canon law’s place in medieval society. Separate chapters examine canon law in intellectual spaces; the canonical courts and their procedures; and, using the case studies of deviation from orthodoxy and marriage, canon law in the lives of people. The main body of the book concludes with the influence of canon law in Western society, but has been reworked by integrating sections cut from the first edition chapters on canon law in private and public life to highlight the importance of this field of research. Throughout the work and found in the bibliography are references to current literature and resources in order to make researching in the field more accessible. The first appendix provides examples of how canonical texts are cited while the second offers biographical notes on canonists featured in the work. The end result is a second edition that is significantly rewritten and updated but retains the spirit of Brundage’s original text. Covering all aspects of medieval canon law and its influence on medieval politics, society, and culture, this book provides students of medieval history with an accessible overview of this foundational aspect of medieval history. Melodie H. Eichbauer is Professor of Medieval History at Florida Gulf Coast University, USA. She is the editor of A Cultural History of Genocide, Vol. 2: The Middle Ages (2021) and co-editor of The Use of Canon Law in Ecclesiastical Administration (2018). Her research focuses on the dissemination of legal knowledge; the interpretation of law; and the ways in which social, political, and intellectual developments and trends shaped both between ca. 1000 and ca. 1500. James A. Brundage (1929–2021) was Professor Emeritus of History and, prior to his retirement, Ahmanson-Murphy chair of Medieval European History at the University of Kansas, USA. His publications included The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (2008), Handbook of Medieval Sexuality (1996) edited with Vern L. Bullough, and Law, Sex, and Christian Society in Medieval Europe (1987).

The Medieval World Series editors: Warren C. Brown, Caltech, USA and Piotr Górecki, University of California, Riverside, USA

The Cathars Malcolm Barber Disunited Kingdoms Michael Brown Christian-Jewish Relations, 1000–1300 Anna Sapir Abulafia Violence in Medieval Europe Warren C. Brown Europe’s Barbarians, AD 200–600 Edward James The Devil’s World Andrew Roach The Crusader States and their Neighbours P. M. Holt The Fourth Crusade Michael Angold Medieval Canon Law 2ed Melodie H. Eichbauer, Expanded and revised version of the First Edition by James A. Brundage https://www.routledge.com/The-Medieval-World/book-series/PEAMWD

MEDIEVAL CANON LAW Second Edition

Melodie H. Eichbauer Expanded and revised version of the First Edition by James A. Brundage

Cover image: Pope Boniface VIII consulting his cardinals with scribes of the papal chancery recording the proceedings. Liber sextus of Pope Boniface VIII. © The British Library, Add MS 23923, fol. 2. [https://www.bl.uk/ collection-items/illustration-of-pope-boniface-viii-and-his-cardinals] Second edition published 2023 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2023 Melodie H. Eichbauer and James A. Brundage The right of Melodie H. Eichbauer and James A. Brundage to be identified as authors of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. First edition published by Routledge 1995 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-367-74241-6 (hbk) ISBN: 978-0-367-74240-9 (pbk) ISBN: 978-1-003-15673-4 (ebk) DOI: 10.4324/9781003156734 Typeset in Bembo by SPi Technologies India Pvt Ltd (Straive)

For Prof. Brundage who inspired so many

CONTENTS

Illustrations ix James Brundage’s Preface to the First Edition x Melodie Eichbauer’s Preface to the Second Edition xii List of Abbreviations xiv Abbreviated Law Books xvii Introduction 1 1 Law in the Early Christian Church

7

2 Canon Law in the Early Middle Ages

19

3 Canon Law amid the Eleventh-Century Reform Efforts

35

4 Gratian and the Decretists

51

5 Decretal Collections and the Decretalists

66

6 Canon Law in Intellectual Spaces

84

7 Canonical Courts and Procedure

100

8 Canon Law in the Lives of People

122

viii  Contents

9 The Impact of Canon Law on Western Societies

145

10 Conclusion: The Relevance of Medieval Canon Law

157

Appendix I: A Guide to Citations of Legal Texts 164 Appendix II: Biographical Notes on Selected Canonists 173 Bibliography 183 Index 205 Table of Citations in Scripture 209 Table of Citations in Selected Legal Collections 210

ILLUSTRATIONS

Figures 4.1 Folio from Justinian’s Codex with gloss, ca. 1300. © Flickr’s The Commons 8.1 Table of Consanguinity (ca. 1270–1300) from Gratian’s Decretum. © Cleveland Museum of Art via Creative Commons

53 123

Maps 2.1 Europe in the ninth century. © Martolosko, CC BY-SA 3.0 via Creative Commons 6.1 Europe in the thirteenth century

26 92

JAMES BRUNDAGE’S PREFACE TO THE FIRST EDITION

This book attempts to sketch the broad outlines of the development of the canon law of the Western church from its beginnings to the end of the Middle Ages, which, in this context at least, means until the commencement of the Protestant Reformation in the early sixteenth century. Growing numbers of medievalists during the second half of the twentieth century have come to realize that canon law formed a crucial component of medieval life and thought. Its rules affected the lives and actions of practically everyone, its enforcement mechanisms were increasingly able to reach into everyday affairs at all social levels, from peasant villages to royal households, and the ideas debated in the canon law schools constituted an influential and pervasive element in medieval intellectual life. The records of contentious matters that came before canonical courts as well as the archives of ecclesiastical administrators who applied (or failed to apply) canonical rules make up a very large fraction of the evidence that survives from the Middle Ages. Serious study of medieval canon law quickly becomes highly technical. “[Law] schools make tough law,” observed Frederic William Maitland, and as usual he was right on the mark. Canon law was extremely tough indeed, not only in the sense that it was institutionally strong and sturdy, but also in the sense that it was difficult and technical. Medievalists have usually preferred to shy away from its technical mysteries. I have tried in this book to avoid most technical details. I should, however, alert readers that canonical waters, although alluring, can also be treacherous and warn historians that they must be prepared to steer carefully when they embark on investigations that may bring them into the vicinity of canonical shoals. I have incurred numerous debts in the course of writing this book. David Bates suggested the project to me during a chance encounter in the British Library tea room and I want to say here how glad I am that he did—it is a book that has long needed doing. Andrew MacLennan and his staff at Longman have been

James Brundage’s Preface to the First Edition  xi

both courteous and helpful throughout the process of bringing it to fruition. I am grateful as well for the institutional support I have consistently received from the University of Kansas, especially from its libraries and their staffs. I owe many debts to Kenneth Pennington, and not least among them is my gratitude, not only for reading the book in manuscript, but also for numerous suggestions that have improved it. I am likewise grateful to Charles Donahue Jr, for suggesting additional improvements and for saving me from some imprudent generalizations. Any faults that remain are mine alone.

MELODIE EICHBAUER’S PREFACE TO THE SECOND EDITION

The words from Prof. Brundage’s original Preface continue to ring true and bear repeating: Canon law formed a crucial component of medieval life and thought. Its rules affected the lives and actions of practically everyone, its enforcement mechanisms were increasingly able to reach into everyday affairs at all social levels, from peasant villages to royal households, and the ideas debated in the canon law schools constituted an influential and pervasive element in medieval intellectual life. The records of contentious matters that came before canonical courts as well as the archives of ecclesiastical administrators who applied (or failed to apply) canonical rules make up a very large fraction of the evidence that survives from the Middle Ages. That scholars acknowledge the above observations is a testament to the impact of research in medieval legal and ecclesiastical history. The first edition of Medieval Canon Law sought to sketch the broad outlines of the development of canon law in the Western church from its beginnings to the end of the Middle Ages. With almost 30 years since the publication of the first edition, the series editors Piotr Górecki and Warren Brown asked if I would take on the task of producing a second edition, a task that is a deep honor for me, after Prof. Brundage’s illness prevented him from doing so. I wanted the core objective of this edition to remain the same, but it quickly became apparent that lightly revising Brundage’s excellent volume was simply not possible. A bit of reworking was needed to reframe one of the great introductions to medieval canon law in light of recent discoveries and scholarly trends. What you read here, which in many ways is a substantive rewrite, are the results of that reframing, yet still inspired by the original volume. In some cases, I draw upon the original work, updating the arguments and adding references to current literature and resources to make researching in the field a bit more accessible. In most cases the revisions are substantial and significant with the original text changed to reflect trends in the scholarship. Greater attention, for example, has been paid to

Melodie Eichbauer’s Preface to the Second Edition  xiii

canon law prior to the twelfth century. Exploring canon law’s influence in other intellectual arenas serves as another example. Chapters have been retooled to provide more clarity. The chapter on canonical courts and procedure serves as one such example. The second edition also delves more into areas that students and scholars frequently find interesting, as in the case of the chapter on canon law in the lives of people. It, nevertheless, was important to me to end the work with Prof. Brundage. His observations on the influence of canon law in Western society continue to bear weight. This chapter, however, has been reworked to integrate sections from the first edition chapters on canon law in private and public life to emphasize the importance of this field of research. The end result is a second edition in which the spirit of Brundage’s original text is retained though the work is significantly rewritten. As one does, I have incurred a number of debts in the course of this work. First, and foremost, I owe tremendous gratitude to Prof. Brundage. It was his scholarship that made me want to study the Middle Ages. He also shaped, unknowingly, the type of teacher I wanted to become. He was such a generous person, giving his time to chat about legal history with and answer the questions of students at all levels of study. My mentor Kenneth Pennington, who received his MA in History at Wisconsin and studied under Prof. Brundage, embodies these characteristics. From him I learned the art of teaching and drawing the students into the conversation, mentoring students, and sharing whatever materials you might have. In working to honor those lessons, I owe a tremendous debt to David Blikstad who served as my student editorial assistant from the start of this project to its completion. While he was instrumental to compiling the bibliography, editing and formatting, and indexing, his true importance lay with reading, commenting, and talking through each chapter. As a potential user of the text, his eyes were critical to seeing where I assumed too much. He noted where concepts were covered too quickly, the flow from one point to another might be clouded, and where implications were not fleshed out. David is a testament to the fact that students contribute to and benefit our scholarship. I must also thank—and furnish with a few cocktails—the folks at FGCU’s Bradshaw Library, Danica Summerlin, Stephan Dusil, Kate Cushing, Greta Austin, and Bruce Brasington for the assistance they provided. Last, and surely not least, I have to thank my husband Paul, who endured me talking out the day’s work and setting up the next day’s direction while we completely renovated the house in the evening. Even though you had to hear about it every day, Wog, you still have to read it. And if anyone needs renovating tips, email me; I’m happy to share. My deepest hope is that this second edition honors Prof. Brundage’s memory by continuing to serve the wider community of scholars. Fort Myers, Florida 2022

LIST OF ABBREVIATIONS

Abelard AJLH AKKR BAV BL BMCL BNF/BN BSB C. c. ca. CCL CCCM CHR COGD

col., cols. CSEL D. d.a.c. d.p.c. De cons.

Abelard, Sic et non American Journal of Legal History Archiv für katholisches Kirchenrecht Biblioteca Apostolica Vaticana British Library Bulletin of Medieval Canon Law, New series Bibliothèque nationale de France/Biblioteca nazionale Bayerische Staatsbibliothek Causa canon (s), capitulum/capitula circa Corpus Christianorum, Series latina Corpus Christianorum, Continuatio mediaevalis Catholic Historical Review Conciliorum oecumenicorum generaliumque decreta, I: The Oecumenical Councils of the Roman Catholic Church: From Nicaea I to Nicaea II (325–787); II/1: From Constantinople IV to Pavia-Siena (869–1424); II/2: From Basel to Lateran V (1431–1517), eds. Alberto Melloni et al., Corpus Christianorum (Turnhout: Brepols, 2006–2013). column, columns Corpus scriptorum ecclesiasticorum latinorum Distinctio dictum ante canonem / capitulum dictum post canonem / capitulum De consecratione (= Part 3 of Gratian’s Decretum)

List of Abbreviations  xv De pen. DA DDC DMA EHR fol., fols. HMCL

HCP

JEH JK, JE, JL

JMH LHR MGH Capit. Conc. Const. Epp. Epp. saec. XIII Epp. sel. Fontes iuris Ldl LL LL nat. Germ. SS SS rer. Germ. SS rer. Germ. N.S. SS rer. Lang. MIC PL Potth. q. RB

De penitentia (= C. 33 q. 3 of Gratian’s Decretum) Deutsches Archiv für Erforschung des Mittelalters Dictionnaire de droit canonique Dictionary of the Middle Ages English Historical Review folio, folios The History of Medieval Canon Law in the Classical Period, 1140–1234: From Gratian to the Decretals of Pope Greogry IX, eds.Wilfried Hartmann and Kenneth Pennington, History of Medieval Canon Law (Washington DC: Catholic University of America Press, 2008) The History of Courts and Procedure in Medieval Canon Law, eds. Wilfried Hartmann and Kenneth Pennington, History of Medieval Canon Law (Washington DC: Catholic University of America Press, 2016) Journal of Ecclesiastical History Jaffé, Regesta pontificum romanorum… ed. secundam curaverunt F. Kaltenbrunner ( JK: an. ?-590), P. Ewald ( JE: an. 590-882), S. Loewenfeld ( JL: an. 882-1198) Journal of Medieval History Law and History Review Monumenta Germaniae historica Capitularia Concilia Constitutiones Epistolae (in Quart) Epistolae saeculi XIII Epistolae selectae Fontes iuris Germanici antiqui, Nova series Libelli de lite imperatorum et pontificum Leges (in Folio) Leges nationum Germanicarum Scriptores Scriptores rerum Germanicarum in usum scholarum separatim editi Scriptores rerum Germanicarum, Nova series Scriptores rerum Langobardicarum Monumenta iuris canonici Migne, Patrologia latina August Potthast, Regesta pontificum Romanorum (Berlin, 1874–1875) quaestio, quaestiones Revue bénédictine

xvi  List of Abbreviations RDC RHD RHE RIDC RS SB SCH SG Tanner

TRE ZKG ZRG Kan. Abt.

Revue de droit canonique Revue historique de droit français et étranger (4e série unless otherwise indicated) Revue d’histoire ecclésiastique Rivista internazionale di diritto comune Rolls Series (Rerum Britannicarum medii aevi scriptores) Staatsbibliothek/Stiftsbibliothek Studies in Church History Studia Gratiana Decrees of the Ecumenical Councils, 2 vols., trans. Norman P. Tanner (Washington DC: Georgetown University Press, 1990) Theologische Realenzyklopädie Zeitschrift für Kirchengeschichte Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanonistische Abteilung 

The Proceedings of the International Congresses of Medieval Canon Law will be referred to as (e.g.): Proceedings Toronto 2012

ABBREVIATED LAW BOOKS

BD COD. THEOD. 1 Comp. 2 Comp. 3 Comp. 4 Comp. 5 Comp. 10P 74T Clem. Cod. Dig. Ep. Jul. Extrav. comm. Extrav. Iohan. Gloss. ord. Grat. Inst. ID Nov. Pan. Polyc. VI X

Burchard of Worms’ Decretum Codex Theodosianus Compilatio prima Compilatio secunda Compilatio tertia Compilatio quarta Compilatio quinta Collectio decem partium (“Collection in Ten Parts”) Diversorum partum sententiae (“Collection in Seventy-Four Titles”) Constitutiones Clementinae (a part of Corpus iuris canonici) Code (a part of Justinian’s Corpus iuris civilis) Digest (a part of Justinian’s Corpus iuris civilis) Epitome Juliani Extravagantes communes (a part of Corpus iuris canonici) Extravagantes Iohannis XXII (a part of Corpus iuris canonici) Glossa ordinaria Gratian’s Decretum Institutes (a part of Justinian’s Corpus iuris civilis) Ivo of Chartres, Decretum Novellae (a part of Justinian’s Corpus iuris civilis) Panormia Polycarpus Boniface VIII’s Liber sextus (a part of Corpus iuris canonici) Liber extra (Gregory IX’s Decretales; a part of Corpus iuris canonici)

INTRODUCTION

Most of the written records that survive from the European Middle Ages are legal documents. They include such things as charters, registers, writs, contracts, wills, court rolls, tax records, and other written instruments of civil administration. They also include ecclesiastical legal documents, such as the canons of councils and synods, collections of church law, the act books and cause papers of ecclesiastical courts, bishops’ registers, mandates, memoranda, formularies, monastic cartularies, and numerous other artifacts of ecclesiastical administration. Likewise the chronicles, annals, and other narrative sources upon which historians also rely are typically filled with accounts of lawsuits and other legal actions that arise from property disputes, treaties, crimes, and the punishment of malefactors, not to mention domestic matters, such as marriages, dowries, divorces, and the disposition of estates. All of these had profound legal consequences and were governed by legal rules, many of them highly technical. Even medieval poets on occasion employed the language of the law to describe the legal consequences of love and marriage, betrayal and perjury, adultery and rape, death and mourning. Some grasp of medieval laws and legal conventions is accordingly essential for the study of almost any facet of medieval life. But which laws? Medieval laws came in abundant variety. Multiple legal systems coexisted and overlapped within the same town or region, each with its own complex rules and conventions as well as its own system of courts that applied them. Manorial law, feudal law, municipal law, royal law, maritime law, merchant law, Roman law, and canon law all nestled cheek by jowl with each other in medieval communities. Each claimed its special areas of competence, to be sure, but jurisdictional claims frequently competed with one another and disputes over jurisdictional questions erupted with lamentable regularity.

DOI: 10.4324/9781003156734-1

2  Introduction

Worldly-wise and canny litigants, however, could find ways to manipulate this competition for jurisdiction to their own advantage. Multiple courts and legal systems gave individuals and institutions the opportunity to take their lawsuits to the jurisdiction that seemed most likely to produce the result that they wanted in the shortest time and at the least expense. This does not mean, of course, that all medieval litigants acted rationally, any more than their modern counterparts do. But the situation certainly furnished clear-headed parties with ample opportunity either to stretch out or abbreviate the settlement of their legal claims, depending upon what best suited their interests. To penetrate the mists of the legal documents that survive from any of the multiple jurisdictions that flourished in the Middle Ages requires some knowledge of the subtleties and conventions of the legal language and procedures peculiar to that jurisdiction. In legal records, as historians have occasionally learned to their sorrow, things are seldom what they seem. The words “By force and arms” (vi et armis) in English common law documents, for example, do not necessarily mean that the trespass of which the petitioner complains involved either weapons or physical coercion—at least not in any ordinary meaning of these terms. Vi et armis was simply a technical formula necessary to bring the matter under royal jurisdiction. Similarly the “clerics” who appear in ecclesiastical documents were not always religious professionals, while some full-time religious professionals, such as nuns or members of military religious orders, for example, were technically not “clerics” at all. Likewise, a “libel” (libellus) in canon law need not be defamatory, nor does it mean a “little book”, which is another possible definition—in legal records, however, the term refers to the formal petition for redress necessary to initiate an action before a canonical judge. The terminology of legal documents is often baffling to the uninitiated, and people have complained about this for centuries.1 Canon law occupied a unique niche among the legal systems that flourished in the Middle Ages. While most legal systems were confined to a particular region or locality, canon law emerged as a working and often quite effective international law. With relatively few exceptions, the same canonical rules applied everywhere in Latin Christendom and, at least in principle, its rules applied equally to everyone, regardless of gender, class, or social standing. Thus dynastic alliances between royalty at the upper end of the social scale and peasant marriages at its lower end were both subject to the same body of canonical marriage rules. This does not mean, of course, that in practice canonical courts treated princes and ploughmen with evenhanded impartiality. The canonical legal system, like any other, often—perhaps too often—fell short of its ideals. What was remarkable, however, was that impartial equality was a canonical ideal at all. This book aims to provide an introduction to the fascinating field of medieval canon law. It seeks to provide an orientation to its history, development, and 1 John of Salisbury, Policraticus, sive de nugis curialium, 2 vols, ed. C. C. J. Web (Oxford, 1919), 5.19, 1:350–351; cf. E. K. Rand, “Ioannes Saresberiensis sillabizat,” Speculum 1 (1926): 447–448. Jonathan Swift made a similar complaint in Gulliver’s Travels, pt. 4, ch. 4.

Introduction  3

interaction with the world in which it operated. The first edition of this book, authored by James Brundage, sought to sketch the broad outlines of the development of canon law in the Western church from its beginnings to the end of the Middle Ages. The core objective of this second edition remains the same, but after almost 30 years since its publication a light revising was simply not possible. A bit of reworking was needed in the light of recent discoveries and scholarly trends. The second edition, rooted in the original volume, is in many ways a different work. Chapter 1, “Law in the Early Christian Church,” lays the foundation for canon law with the norms that developed in the early Christian Church to guide its members and to help individual communities navigate questions confronting its faithful. These norms originated in the Bible, in the writings of the Patristic Fathers, in decrees of church councils, and in papal decretals. Alongside these sources, Roman emperors of the fourth century would have a tremendous impact on the status of the Church and Roman law would serve as a secondary source for the canonical tradition. Norms that regulated Christian monasticism would also complement the canonical tradition. Texts found in these sources would be recopied into the canonical collections that began to appear at the turn of the fifth century. Chapter 2, “Canon Law in the Early Middle Ages,” delves into the realization that canon law in the early Middle Ages was truly an era in which law did not emanate from one centralized authority in the form of a “state”. Law was not simply a top-down measure. Law, rather, came from a diverse variety of legislative bodies, be it secular rulers, church councils, the papacy, penitential manuals, or monastic rules. These sources were not isolated from but rather crisscrossed one another. The products of these legislative bodies—along with Scripture and the writings of the Church Fathers also discussed in Chapter 1—were then selected for their applicability and gathered into a wide assortment of collections that served the needs of both the compiler and its community of users, needs that included the administration of justice, ecclesiastical governance, liturgical services, pastoral care, and overall spiritual welfare of both the religious and the laity. The early Middle Ages also saw the secular and the sacred becoming more intertwined as Frankish kings sought to harness the political advantages ecclesiastical institutions could offer. With the ascension of Charlemagne and the birth of the Carolingian empire, the secular and sacred came closer together. As the Carolingian empire faced headwinds and there was a perception of disarray, canonical collections and episcopal handbooks offered some mechanism for safeguarding, at least in theory, societal norms. Chapter 3, “Canon Law amid the Eleventh-Century Reform Efforts,” explores how canon law was used to address complaints about the influence of the secular sphere on ecclesiastical institutions and the drastic deterioration in the discipline of the clergy and of the spiritual services that began to surface by the beginning of the tenth century. From the pontificates of Leo IX (1049–1054) through Calixtus II (1119–1124), a key focus of papal and conciliar policy was to eliminate lay inference by ridding the church of the twin vices of simony and nicolaitism (clerical marriage). The papacy’s interjection of its authority led to clashes with the

4  Introduction

German emperors, known as the Investiture Controversy, and with it a wide use of legal sources to justify each party’s position. Yet calls for reform were not isolated to the papacy. During this extremely active period in the proliferation of legal texts, compilers created and adapted to the law to create collections that suited the needs of its users, be it to preserve monastic privileges, bolster episcopal rights, or administer the diocese more effectively. There existed a negotiation of the legal material to suit a purpose shaped by the individual’s environment, and since every compiler’s environment was different, each collection would be different in order to suit the needs of that environment. Chapter 4, “Gratian and the Decretists,” places one of the most important canonical collections of the Middle Ages into the overall intellectual revolution taking place at the turn of the twelfth century. Irnerius’s teaching of Roman law in Bologna revived the Corpus iuris civilis (Body of Civil Law), the product of the sixth-century Eastern Roman Emperor Justinian’s call for a reform of the legal system. As Irnerius was reviving the study of Roman law in Bologna, schools in northern France—the cathedral schools of Chartres, Reims, and Notre Dame in Paris; and the monastic schools of Bec, and Ste-Geneviève and St. Victor on the Left Bank of Paris—were likewise thriving for their focus on the artes liberales (liberal arts) and the development of the scholastic method, a method of inquiry that provided tools to analyze, cross-reference, and reconcile texts. The face of these two movements was Gratian, a Bolognese magister (teacher) of law whose Decretum became the textbook for the teaching of law across Europe and England, which, in turn, sparked new methods of commentary to facilitate teaching as well as to further clarify or correct Gratian’s understanding of the law. These commentors, known as Decretists, hailed from Anglo-Norman region, northern France, the Rhineland, and Italy. They sought to clarify, elaborate, and even contradict Gratian’s understanding of the law. Chapter 5, “Decretal Collections and the Decretalists,” engages in the papacy as a driver of law in the twelfth century. Papal decretals, which had been a feature of the canonical tradition since late antiquity, began to play a more important role. Popes took an active role in holding councils, whether in person or via their legate, which resulted in conciliar legislation. Jurists gathered these papal decretals and conciliar acts into new collections to keep lawbooks current since the circulation of Gratian’s Decretum earlier in the century. Just as canonists had commented on the Decretum, some of these same jurists, along with others of the age, commented on the decretal collections compiled. Known as Decretalists, they were steeped in both the law found in Gratian as well as Roman law, which was burgeoning at places such as Bologna. The “new law” (ius novum) found in these decretal collections, together with the “old law” (ius vetus) found in Gratian’s Decretum, produced a unified body of canon law studied at universities and used by administrators. Despite a unified body of law, the source of law had taken a distinct turn with the thirteenth century. No longer was it the mining of the wide variety of texts from older collections which included texts from a diverse variety of legislative bodies: ancient church councils and papal decretals, the writings of Church Fathers, secular rulers,

Introduction  5

penitential manuals, and monastic rules. With the thirteenth century, legal norms largely emanated from the centralized authority of the papacy. Chapter 6, “Canon Law in Intellectual Spaces,” explores canon law’s place in the wider intellectual climate. Penitentials and confessors’ manuals of the twelfth and thirteenth century drew on the principles and sources of canon law to instruct the priest in the salvation of the sinner’s soul. The treatises of thirteenth-century theologians saw the natural and divine law as found in the canonical collections as critical to keeping the faithful on the path to salvation. The twelfth and thirteenth century also ushered in the age of the ius commune, principles found in Roman and canon law, that established a set of universal legal principles and concepts, jurisprudential norms, customary legal norms, and constitutional norms. They factored into the courtroom, as seen with expert legal opinions known as consilia. They filtered into secular and customary legal collections across Europe as rulers and administrators considered—or were forced to consider—what was fair and just. The principles of the ius commune, principles which were woven into and inseparable from canon law, were neither the musings of law faculty nor the ideals of their students; they were the reflections on, and the application of, equity. Chapter 7, “Canonical Courts and Procedure,” delves into the evolution of the canonical courts and procedural norms. This chapter begins by laying bare the various ecclesiastical courts, their personnel, and their purpose. Diocesan and synodal courts served in most cases as the court of first instance, with the court of the archbishop, or metropolitan’s court, serving as a court of appeals or court of first instance in egregious cases. By 1325, the decisions of the papacy’s external forum, the Roman Rota, had overtaken decretal letters as the principal vehicle for legal innovation in the Western church while the papacy’s internal forum, the Apostolic Penitentiary, served as the “tribunal of conscience.” Canonical procedural law grew increasing systematized between the twelfth and fourteenth centuries. Persons with formal legal training came to shape and operate this sophisticated, technical, and complex body of law. Under these circumstances, it is scarcely surprising to discover that jurists also became progressively more concerned with problems of procedural law and jurisprudence. Thus, they produced manuals and treatises to help judicial personnel navigate these waters. These works served as indispensable tools to the trial process and creating an atmosphere in which due process and justice could be upheld. The second part of this chapter turns from courts to procedure. It explains the evolution of the principles of due process, the different types of procedure, the course of a trial, and the development of procedural manuals used by officers of the court. With canon law permeating the entire medieval social order, Chapter 8, “Canon Law in the Lives of People,” uses the case studies of deviation from religious norms and marriage to explore ways in which law was imposed on people, but also how people used the law for their own ends. The papal inquisition is probably the most famous example of how the institutional Church and its legal apparatus involved itself in the lives of people who had strayed from accepted belief. Serving penitential and punitive functions, it was the forum for detecting and correcting deviant

6  Introduction

behavior and belief. Marital law reveals that people had a level of legal understanding and used the law to reach a desired outcome. Couples sought dispensations from the papacy in cases of consanguinity and affinity to have their marriage, and their children, recognized. Women, in particular, made use of the court system that, in this case, gave them the ability to bring cases on their behalf. Inquisitorial trials and marital law reveal a world of written canonical texts and the legal practice of found registers and court records, a world in which academic lawyers and the laity engaged and navigated. Chapter 9, “The Impact of Canon Law on Western Societies,” pulls together themes found in the first edition to demonstrate that medieval canon law is not legal system of a by-gone era. The speculations and insights of medieval canonists remain enshrined both within the common law tradition of the English-speaking world and within the civil law heritage of Continental Europeans. Canon law influenced commercial activity, examples being just price and excess profit, charging of interest on loans, and when people could work. It supported the ownership of private property and helped to move testamentary practices from a rigid system to one that allowed the dying to determine who inherits their goods. Canon law laid the foundation for social safety-nets, such as poor relief. Finally, canonists created mechanisms by which to address legal problems inherent in both ecclesiastical and secular corporate organization and structure. Medieval canon law, in short, constituted a fundamental, formative force in the creation of some of the elemental ideas and institutions that continue to this day to characterize Western societies. Canonical records, documents, commentaries, and glosses can reveal a great deal about how medieval institutions worked, about how medieval people of all sorts thought and acted, and about the delicate relationship between law and society in the Middle Ages. Beyond that, the study of medieval canon law has already shown important and previously unsuspected linkages between the medieval Church’s legal system and the development of some of the most basic institutions of modern constitutional government. Both canonical public law, which treats the relationship between governments and their subjects, and canonical private law, which deals with the ways in which private persons managed their affairs, can tell us much about the sources of our own institutions and societies, as well as about the vanished world of medieval Christendom, out of which the world we see around us ultimately grew.

1 LAW IN THE EARLY CHRISTIAN CHURCH

The early Christian Church began with a body of norms—rules regulating ­behavior—that sought to guide its members and help individual communities nav­ igate questions confronting its faithful. Over time, these norms would evolve into a body of law.1 The Old and New Testament and the writings of the Patristic Fathers who addressed matters pertaining to the Christian community serve as the earliest sources for these norms. As the Christian community grew in size, geographic scope, and complexity, church councils—attended by bishops, clergy, and secular officials—would become important forums for resolving matters involving both the shepherd (priest) and his flock (faithful). By the end of the fourth century, the bishop of Rome would see his influence grow as he was consulted by other bishops regarding all sorts of matters pertaining to the Church. His responses, papal decre­ tals, would become a source of authority. Scripture, the writings of the Church Fathers, conciliar canons, and decretals served as manuals to guide the clergy and the laity. The Christian community necessitated some rules and regulations for the orderly conduct of its business, to define the functions of its officers, and to gov­ ern relationships among its members. Alongside these sources, Roman emperors of the fourth century, in particular Constantine and Theodosius II, would have a tremendous impact on the status of the Church, and Roman law would serve as a secondary source for the canonical tradition. Norms that regulated Christian monasticism would also complement the canonical tradition. Monks, nuns, and monastic communities would become a counterpoint to the secular clergy as the Middle Ages progressed. Collectively, these sources of norms and civil law would

1  A. Thier, “Dynamische Schriftlichkeit, Zur Normbildung in den vorgratianischen Kanonessamm­ lungen,” ZRG Kan Abt. 93 (2007): 1–33. DOI: 10.4324/9781003156734-2

8  Law in the Early Christian Church

form the foundation for canon law as their texts would be recopied into the canon­ ical collections that began to appear at the turn of the fifth century.2 Scripture and the New Testament, in particular, serve as the earliest sources for Christian norms. They were aimed at maintaining discipline among church mem­ bers and concentrated on the internal concerns of the group. Of particular impor­ tance were the Gospels and the letters of the apostle Paul. Both reflect a climate in which Christian communities throughout the Roman Empire struggled to survive in a hostile environment. Jewish communities rejected Christian claims about the Messiahship of Jesus, deplored the conversion of Jews to the new faith, and were scandalized by the failure of those converts to continue observing the prescriptions of Mosaic law. Many Gentiles were equally unwelcoming to the new religion, but for different reasons. Pagan intellectuals dismissed Christian claims to have received divine revelations as irrational, while government authorities suspected Christians of criminal, perhaps even treasonous, conspiracies. Ordinary people found the ascetic habits of Christians peculiar and resented their rejection of the social bond­ ing involved in the celebration of the civic festivals of the pagan religious calen­ dar. Because Christians had constituted a small, close-knit, secretive group who habitually kept to themselves and shunned intimate contact with the surrounding society, hostility toward them soon hardened into open persecution. This began as early as the reign of Nero (54–68), who found the Christians convenient scapegoats for the great fire at Rome in 64 CE and for other civic discontents. Persecution continued sporadically until the abdication of the emperor Diocletian (284–305), who made the liquidation of Christianity one of the major goals in his program of imperial renewal. In such an environment, Christian norms centered largely on internal matters, such as the order of worship, relationships among members of the community, and the rights and obligations assigned to different subgroups among the members. Rules governing these issues seem to have been formulated by bish­ ops and other community leaders, and presumably represented some sort of group consensus about appropriate behavioral norms. The apostolic tradition—both real and dubious (apocryphal)—was compiled into collections of regulations for the use of church authorities, and appeared quite early in the Church’s history. The earliest surviving handbook, the Didache or Doctrine of the Twelve Apostles, dates from the end of the first or the beginning of the second century. This brief work—it is scarcely more than pamphlet-size—consists of a series of moral precepts, followed by prescriptions for the conduct of liturgical services and a handful of rules about church governance. The Didache was soon followed by more ample explanations of the basic rules that governed conduct in early Christian communities. The second-century Pastor of Hermas seems more

2  B. Ferme and G. Falchi, Introduzione allo studio delle fonti dell’Utrumque Iuris (Vatican City, 2006), 32–36 provides an introduction to the special place held by Scripture, and tradition as set out in apostolic and pseudo-apostolic writings, councils, and papal letters. Supplementing these sources are Roman law, theological texts, monastic rules, writings of the Church Fathers and saints, and histories (pp. 36–39).

Law in the Early Christian Church  9

apocalyptic than a book of norms. It consists of five “visions” or revelations, a dozen rules of conduct, and ten parables on eschatological themes. The Traditio apostolica, ascribed to Hippolytus, appeared early in the third century. Its author, whomever he may have been, claims that his book transmits the genuine doctrine of the apostles and warns that deviation from that tradition will lead to doctri­ nal error and heretical beliefs. While the subject matter of the Traditio apostolica is chiefly liturgical, it also contains valuable information about the organization and structure of the third-century church. The mid-third-century Didascalia apostolorum incorporates much of the material in the Traditio apostolica, but adds further infor­ mation about such matters as the Christian community’s responsibility for widows and orphans, Jewish–Christian relations, and rules on fasting and penance, as well as liturgical matters.3 The Patristic Fathers who followed on the heels of the apostolic tradition were bishop-theologians who directly engaged in issues facing the local and wider Christian community. Basil of Caesarea (d. 379), Gregory of Nazianzus (d. 389), Gregory of Nyssa (d. ca. 395), Jerome (d. 419/20), Ambrose (d. 397), and Augustine of Hippo (d. 430) are among these Fathers. Their writings would be absorbed by and shape the canonical tradition. Augustine, in particular, would prove tre­ mendously important. His thoughts on law, politics, and orthodoxy can be found throughout his body of theological writings. He distinguished between eternal law (God), natural law (a “notion” of eternal law “impressed on human beings”), temporal law (secular law that can change over time and vary by place and cir­ cumstance), and divine law (sometimes interpreted as Mosaic law and other times considered as any laws passed down by God). He used scriptural ideas in his City of God as a lens through which to elucidate the relationship between Christians and civil government and the role the former should undertake in the secular world. Augustine’s views on what constituted a just war and the roles to be played by both ecclesiastical and secular officials laid the foundation for legal thought on the subject for centuries.4 His extensive writings on matters concerning the faith and against heretical movements—namely, Arians, Manichaeans, Donatists, and Pelagians—shaped the Church’s views toward deviations from mainstream teach­ ings and doctrine. Augustine’s writings demonstrate how Patristic Fathers, though not concerned with creating “law”, nevertheless developed behavioral norms that shaped a sense of group identity and created a social order that bound and regulated the Christian community.

3  See J. Gaudemet, Les sources du droit de l’église en Occident du IIe au VIIe siècle (Paris, 1985) and, more briefly, L. Roger, “Law, Canon: To Gratian,” in DMA, 7:395–413. 4 See B. Gronewoller, “Augustine of Hippo,” in Great Christian Jurists and Legal Collections in the First Millennium, ed. P. Reynolds (Cambridge, 2019), 268–282; E. M. Atkins and R. J. Dodaro, Augustine: Political Writings (Cambridge, 2001); H. E. Six-Means, Augustine and Catholic Christianization: The Catholicization of Roman Africa, 391–408 (New York, 2011) is particularly helpful for placing Augustine within the wider cultural, political, and religious climate of the time.

10  Law in the Early Christian Church

Patristic Fathers, such as Augustine, developed the norms for regulating the Christian community and also found themselves in the position of enforcing those very norms that bound its members. From the reign of Constantine, Christian emperors explicitly recognized the jurisdictional authority of bishops and other church officers over issues that involved doctrine and morals and gave their deci­ sions the force of public law.5 The bishops’ court, the audientia episcopalis, adjudi­ cated ecclesiastical matters and, as healers of the community friction, facilitated civil dispute settlements through arbitration, negotiation, and mediation. Since canon law had not developed its own distinctive rules governing evidence and procedure in contentious matters, episcopal courts by and large adapted for their own pur­ poses the norms found in Roman civil law. The details of this adaptation, however, are obscure and the scanty surviving sources give the impression that procedures varied considerably between different regions and perhaps even between different judges in the same region. Also varied were the types of cases the ecclesiastical courts of this early period would hear as the boundaries of their activity were not neatly defined. Some cases only involved the church or clergy; other cases were civil in nature.6 What we can say is that the judicial functions of bishops in this early period mainly centered on arbitration; they typically sought to resolve conflicts by mediating between the parties rather than imposing judgments from on high. In some situations, however, canonical judges felt obliged to penalize members of the church either for heinous moral lapses or for beliefs that challenged the authority of orthodox leaders. The audientia episcopalis and other church tribunals, particularly councils and synods, asserted penal jurisdiction over deviations from the Christian faith to combat the threat of heresy. The audientia episcopalis laid a foundation for canon law to be vested with coercive power, as well as moral authority, and for the ecclesiastical hierarchy it, in effect, became an arm of the judicial apparatus of Roman government. Beginning as provincial synods in the second century and expanding to include gatherings of the entire Church in the fourth century, councils were the third forum from which ecclesiastical norms emanated. As the letters of the apostle Paul suggest, councils originated as venues for the local churches to regularize and correct the behavior of church leaders and community. By the mid-third century, as examples from Africa and the Eastern Roman Empire suggest, gatherings of bishops, priests, deacons, and laity played an important role in clarifying matters of practice and teaching, such as the date of Easter, the validity of baptisms per­ formed by sects, and the emerging beliefs that differed from the mainstream. The collective actions of councils saw the value of developing uniform procedures and policies. This shift from strictly local concerns to a collegial body drew from the Roman cultural norm of consensus, i.e. not necessarily unanimity. Councils also drew upon the four stages of Roman parliamentary procedure: presentation of 5  Cod. Theod. 1.27.1–2, see The Theodosian Code, trans. C. Pharr (New York, 1952). 6 N. Lenski, “Evidence for the Audientia episcopalis in the New Letters of Augustine,” in Law, Society, and Authority in Late Antiquity, ed. R. Mathisen (Oxford, 2001), 83–97.

Law in the Early Christian Church  11

the issue (relatio); voicing of participant viewpoints (sententiae); voting on a res­ olution created from the sententiae; and the recording of the decisions. Councils could also take the form of debate/dialogue or could be convened by the order of the emperor. By the fourth century, councils had become institutionalized and ubiquitous.7 As the conciliar movement consolidated, they tended to address the discipline of the clergy, administrative regulations pertaining to the clergy and holy orders, and regulations for the laity. The Iberian council of Elvira (ca. 306) is the earliest-known council for which decrees survive. The canons address the sexual behavior of the clergy and laity, translating bishops and clergy to other churches, and episcopal visits to the imperial court.8 Councils gathering clergy from all of Christendom addressed, among other issues, questions regarding the nature of Christ and deviations from ortho­ dox teaching.9 The first such council was that of Nicaea (325) which Emperor Constantine convened to address the teachings of the priest Arius who believed that only God the Father could be unbegotten and un-generated. Since God made Christ, he was neither co-equal, nor co-eternal, nor co-substantial with God. The resulting Nicene Creed, still recited today, held that Christ was equal to the God, they share the same substance, and neither existed before the other. The First Council of Constantinople (381) banned the teachings of Bishop Apollinarius of Laodica who maintained that Christ had a human body and a human soul but no human mind. He was born from Mary knowing everything and thus had no moral development. The council determined that if Christ was not a complete man, he could not save the whole of human nature (mind, body, and soul). In 431, the Council of Ephesus banned the teachings of Nestorius, the archbishop of Constantinople, who maintained two separate natures in Christ: one divine and the other human. The council determined that Christ was at once God and man with both these natures operating freely in him. Also condemned were the teaching of the British theologian Pelagius, who held that there was no original sin and man could take the initial steps towards salvation by his own efforts. The Council of Chalcedon banned the belief of the Monophysites in 451, which held that Christ possessed only a divine nature. The council concluded that Christ had two natures: one divine and one human. Councils would emerge in the fourth century as legislative bodies and would become a source of law, doctrinal pro­ nouncements, and spiritual guidance. The Church in the fourth century had begun to develop an organizational structure whose main features still endure to the present day in Roman Catholic Christianity. That structure is hierarchical; that is, authority and responsibility within the organization are distributed unequally among functionaries according

7  H. Hess, The Early Development of Canon Law and the Council of Serdica (Oxford, 2020), 5–38. 8 Ibid., 93–209 for an introduction to the council and an analysis of the subjects addressed; pp. 211–255 for the original text and facing English translation. 9  For the following councils, see COGD I. A translation can be found in Tanner, vol. 1.

12  Law in the Early Christian Church

to their rank or position.10 Priests and other ministers among the lower clergy enjoy limited authority over the laity within a small geographical region that came to be known as a parish. Parish priests are responsible to a bishop, who super­ vises a larger region, called a diocese. The bishop has the right to impose rules on his priests and to discipline or remove those who fail to obey them. The bishop, in turn, is subordinate to a metropolitan or archbishop, whose authority extends throughout a still larger region, called a province, which includes several dioceses. Each bishop must answer to his metropolitan for the conduct of the priests and laypersons within his diocese and the metropolitan has the authority to prescribe rules that the bishops subordinate to him must follow. Metropolitans, in turn, are responsible to even higher authorities, the patriarchs, who may supervise church affairs in several different kingdoms. The First Council of Constantinople (381) rec­ ognized the bishops of Alexandria, Antioch, Constantinople, Jerusalem, and Rome as patriarchs.11 Among these five patriarchs (collectively called the pentarchy), the bishops of Rome not only claimed patriarchal authority throughout the Western Empire, but also asserted that they possessed a preeminent authority over the other patriarchs, a claim that made the Eastern patriarchs uneasy. Due in part to the claims to special authority that they had begun to assert over the other bishops of the Christian world, by the fifth century the bishops of Rome began to take a more prominent role as a source of ecclesiastical law. Papal decretals, or rescripts, were letters, in which the Roman bishops responded to questions posed to them, usually by other bishops, regarding church doctrine, governance, and dis­ cipline. The earliest preserved decretal (385) was that of Pope Siricius (384–399), who responded to a letter received by his predecessor Pope Damascus (366–384). Bishop Himerius of Tarragona had written to the bishop of Rome asking for guid­ ance on the proper practices and seasons of the liturgical year for baptism, whether those who were baptized into a heretical sect should be re-baptized, the treatment of Christians who lapsed into paganism, admissions to the minor and major orders, the punishment of monks and nuns who have fornicated, what to do with married priests and deacons who had children with their wives after their ordination, and questions regarding penance. Papal decretals through the end of the fifth century tended to respond to questions about rituals and liturgy, ecclesiastical hierarchy and authority, celibacy, “bigamy” (that is, remarriage after being widowed or mar­ riage to a widow, both of which prohibited a man from entering the priesthood),

10 Prior to the fourth century, the structure of the Church was more collegial rather than hierarchi­ cal. Christianity was concentrated largely in cities and that community, over which the bishop presided, was often referred to by the name of that city (e.g. Alexandria, Corinth, Ephesus, etc.). Priests and deacons assisted the bishop, who was chosen by the members of the local church, but as the sole pastor of all the Christians within his city he was not formally responsible to any higher authority outside of it. The subordination of authority occurred in the fourth century when the Church was integrated into the administrative system of the Empire. For a fuller dis­ cussion, see M. Fahey, “The Catholicity of the Church in the New Testament and in the Early Patristic Period,” The Jurist 52 (1992): 44–70. 11  First Council of Constantinople, cc.2–3, in COGD I:20–21.

Law in the Early Christian Church  13

marriage, heresy, heretics’ return to the orthodox church, and penance. The popes structured these rescripts in a fashion echoing the charters and letters of Roman emperors and imperial officials.12 The Roman legal tradition co-existed alongside the writings of the Church Fathers, conciliar canons, and papal decretals. The Theodosian Code, for example, was published in the eastern half of the Roman Empire in 437 and in the western half in 438. It contains imperial constitutions from Constantine I until Theodosius II in 437, and reflects the extent to which imperial laws were concerned ecclesias­ tical governance and discipline. It brought together imperial laws with the works of the classical Roman jurists by uniting all Roman law while removing obsolete laws and eliminating contradictions. The period of persecution of Christians had ended with the accession to power of Constantine I (306–337). He and his suc­ cessors—with the exception of Julian the Apostate (361–363)—transformed the relationship between the Christian church and the Roman government not only by embracing Christianity, but also by making it a pillar of the Roman official establishment. Imperial edicts enriched the Church with privileges, favors, and public funds. Book 16 of the Theodosian Code focuses specifically on Christianity. It, for example, prohibits rebaptism, condemns apostates who left the Christian faith, and places the status of Catholics within a wider societal framework.13 Clerics were exempted from all compulsory public service.14 Bishops could not be sum­ moned to civil courts; furthermore, cases involving clerics were to be heard by the bishops in ecclesiastical court.15 Every person had the right to bequeath any property he wished to the church at this death.16 The privileges granted, however, only applied to adherents of the Catholic faith. All heresies, which were addressed individually by name, were condemned: their places of worship confiscated, and their children were forbidden from inheriting.17 Paganism was banned and sacrifices condemned.18 The Roman church had become an organ of imperial government, but was also used as an arm of imperial administration. Yet governmental policy also served church authorities, who deemed it insuf­ ficient simply to isolate Christians from non-believers. Imperial authority made it possible to penalize Christians who rejected beliefs and practices that the church’s leaders regarded as central. As early as 380 the emperor Theodosius I described as 12  D. d’Avray, Papal Jurisprudence c.400: Sources of the Canon Law Tradition (Cambridge, 2019). 13 Cod. Theod. 16.6 (rebaptism), 16.7 (apostates). For the contents of Book 16, see pp. 440–476. The Sirmondian Constitutions supplemented the Theodosian Code with 21 constitutions from the fourth and early fifth centuries addressing matters similar to Book 16. For more on this, see J. Matthews, Laying Down the Law: A Study of the Theodosian Code (New Haven, 2000), 121–167; and M. Vessey, “The Origins of the Collectio Sirmondiana: A New Look at the Evidence,” in The Theodosian Code: Studies in the Imperial, 2nd edn., eds. J. Harries and I. Wood (London, 2010), 178–199. 14 Ibid., 16.2.2, 7, 10, 14. 15 I bid., 16.2.12, 23, 41; 16.11. 16 Ibid., 16.2.4. 17 Ibid., 16.5. 18 Ibid., 16.10.

14  Law in the Early Christian Church

“demented and insane” those who rejected the tenets of faith defined by the bish­ ops of Rome and Alexandria and warned menacingly that anyone who persisted in erroneous beliefs would be subject to imperial retribution.19 In 386, Theodosius I spelled out the meaning of this last phrase more bluntly. He decreed that “authors of sedition and disturbers of the peace of the church” must “pay the penalty of high treason with their life and blood.”20 Deviance from approved Christian doctrine or disobedience to the behavioral standards set by the bishops was now a capital crime. Over the course of about three generations, Christianity had been transformed from the religion of a small, persecuted minority on the fringes of Roman society into the official religion of the Roman Empire. By the century’s end, bishops had been vested with judicial authority to enforce behavioral norms, and flouting them, at least in public, was rapidly becoming hazardous to life and fortune. Roman civil law and ecclesiastical canon law would infiltrate each other’s col­ lections and would eventually become known as utrumque ius.21 As will be discussed in later chapters, compilers of canonical collections of the early Middle Ages, for example, would draw directly upon Roman legal norms such as the Epitome of Julian, a work that represents a lecture course given by Julian—the best-known law professor at Constantinople—on the 124 Greek Novellae of Justinian.22 The Breviarium Alarici, also known as the Lex Romana Visigothorum, was a collection of various Roman legal texts published and compiled at the request of Alaric II, king of the Visigoths (484–507), in 506.23 The included interpretationes (interpre­ tations)—detailed comments on the laws that served as aides for using the law— sought to expound, summarize, give the meanings of terms, or offer updates to reflect the regional, political, social, and cultural differences in a post-Roman world that continued to use Roman law.24 The Breviarium Alarici would become instru­ mental for canonical collections of the early Middle Ages. Compilers and users of law would not draw specifically on the Theodosian Code, rather it would be known and used through the Breviary of Alaric.25 Collectively, religious and imperial texts defined both norms for the religious life of members of early Christian communities and the key elements of mainstream

19 Ibid., 16.1.2.1. 20 Ibid., 16.1.4. 21  Ferme and Falchi, Introduzione allo studio delle fonti dell’Utrumque Iuris, ch. 5. 22 S. Corcoran, “UCL Volterra Project,” https://www.ucl.ac.uk/volterra/texts/epitome-iuliani. Its use in teaching at Constantinople may not have extended far past Justinian’s death as Justin II closed the law school. 23 The collection included selections from: the Gregorian Code (290s); the Hermogenian Code (290s); the Theodosian Code; Novellae (new laws) of Emperors Theodosius II (402–450) and Valentinian III (425–455) issued after the circulation of the Theodosian Code; and extracts from the Roman jurists, Papinian, Paul’s Sentences, and Gaius’ Institutes. 24 J. Matthews, “Interpreting the Interpretationes of the Breviarium,” in Law, Society, and Authority in Late Antiquity, ed. Mathisen, 11–32. 25 I. Wood, “The Code in Merovingian Gaul,” and D. Walters, “From Benedict to Gratian: The Code in Medieval Ecclesiastical Authors,” in The Theodosian Code, eds. Harries and Wood, 161–177 and 200–216, respectively.

Law in the Early Christian Church  15

Christian doctrine. They drew increasingly sharp lines between authentic Christians and others, whom they labelled heretics, apostates, and unbelievers. In addition, canon law in the early Church sought to enumerate the powers and qualifications of bishops and other clerics, to define their obligations, and to pro­ vide disciplinary measures to curb those who exceeded their authority or failed to measure up to the high standards of conduct expected. As Christian commu­ nities after Constantine’s time soon became large property holders, the canons also prescribed rules for the management and use of the church’s physical goods. Early canonical collections included material on a wide variety of practical issues that concerned the leaders of Christian communities. Marriage and family law, Christian attitudes toward slavery, military service, economic activities, relations between Christians and their non-Christian neighbors, and the preservation of beliefs and practices that church authorities regarded as essential all ranked at the top of the list of problems they addressed. These texts were very much concerned with regulating marriage and family ­relationships, a topic already evident in the letters of St. Paul, and subsequent writers about the rules governing Christian life almost invariably dealt with it.26 Christian subjects of the Roman Empire contracted marriage in much the same way as other Romans did, although from quite an early period they supplemented the obser­ vances customary among pagans with Christian rituals and blessings. Christian communities, however, conceived of the nature and consequences of marriage in quite different terms than their pagan contemporaries. Christians, for one thing, strongly discouraged marriage across religious lines and imposed sanctions, often quite severe ones, upon those who sought to marry adherents of other religions. For another, Christian law came to interpret matrimonial consent rather differently than did civil marriage law. Most Christian teachers believed that consent to mar­ riage involved a permanent commitment that, once given, could not subsequently be revoked; pagan Roman lawyers, however, conceived of marital consent as an ongoing process, and marriage continued, in consequence, so long as the parties continued to consent to the union, but terminated once one party withdrew con­ sent. Like contemporary pagan law, early Christian law required that parents, as well as the parties, consent to a prospective marriage; unlike pagans, however, Christians did not reserve the right of consent solely to the male head of household, but rather expected that couples should seek the agreement of all those charged with the care and supervision of the young before entering into a marital union.27 Christian law concerning slavery also departed in important ways from the norms common among pagan Romans. No Christian authorities condemned the practice of slavery outright, to be sure; they commonly accepted the institution as a necessary and inevitable social institution. It was not unusual for Christian 26  For example, I Cor. 7:1–9, 26–36; Eph. 5:3–4; Gal. 5:16–21. 27 S. Treggiari, Roman Marriage: Iusti coniuges from the Time of Cicero to the Time of Ulpian (Oxford, 1991); J. Gaudemet, L’èglise dans l’empire romain (IVe–Ve siècles), Vol. 3: Histoire du droit et des institutiones de l’èglise en Occident (Paris, 1989), 515–554.

16  Law in the Early Christian Church

churches and the clergy, as well as laymen, to possess slaves of their own and to employ them to perform the many kinds of routine labor for which the technology of late antiquity provided no satisfactory alternative energy sources. At the same time, however, Christian religious teachers, like some of their pagan counterparts, particularly among the Stoics, affirmed that slavery was unnatural, and that in an ideal world all human beings ought to be free. Since this present terrestrial world was far from ideal, however, both the law and the practice of early Christian com­ munities sought to limit the exploitation of slaves, rather than to abolish an insti­ tution so central to the society and economy of their age. Christian law, although it did not attack the institution of slavery, did insist that Christians must treat their slaves humanely and admonished owners to make every effort to provide for the religious needs of their slaves. The canons, unlike Roman civil law, recognized the capacity of slaves to marry legitimately and attempted to preserve the integrity of slave families by restricting the rights of owners to separate married slaves from their spouses and children.28 The texts of the early Church were also concerned with issues involving military service and, more generally, the restrictions that Christian society ought to place on violence. The question of whether Christians could serve in the Roman army trou­ bled several early Church Fathers, as did related questions about the circumstances under which it was proper for a Christian to use force to defend himself, his family, or his community from aggressors. During the period of religious persecution prior to Constantine, Christians debated whether it was lawful for them to resist the perse­ cutors, while after Constantine the focus shifted to questions about the circumstances under which a Christian government might wage war and whether Christians should participate in the execution of criminals condemned by Roman courts.29 Church authorities in the Christian Empire became increasingly anxious to insulate members of their flock from Jews and pagans who remained outside the fold. Hence canon law showed growing concern during the fifth and sixth cen­ turies about limiting even casual contacts with unbelievers. Canons of councils and local synods forbade the faithful to dine with non-Christians, to dance with them, or to share the baths with them, much less to participate, even passively, in circumcisions and other non-Christian religious observances. Christians were not to accept the care of Jewish physicians or to call Jews as witnesses in lawsuits. No pagan or Jew was to exercise authority over Christians as a judge or magistrate, and non-Christians were restrained from buying or keeping Christian slaves. Christian parents, moreover, were encouraged to see to it that their children were taught exclusively by Christian teachers. Christian teachers, in turn, were warned repeat­ edly to beware of the harmful consequences of having their pupils study pagan 28 M. Sommar, The Slaves of the Churches: A History (Oxford, 2020); Gaudemet, L’èglise dans l’empire romain (IVe–Ve siècles), 563–567; M. Falcão, Las prohibiciones matrimoniales de carácter social en el Imperio Romano (Pamplona, 1973). 29 A. von Harnack, Militia Christi: The Christian Religion and the Military in the First Three Centuries, trans. D. McInnes Gracie (Philadelphia, 1981); L. Swift, “Search the Scriptures: Patristic Exegesis and the Ius belli,” in Peace in a Nuclear Age, ed. C. Reid, Jr. (Washington, DC, 1986), 34–68.

Law in the Early Christian Church  17

literature and philosophy save under strict supervision, lest they imbibe ideas and attitudes that might inhibit proper spiritual development. All of these restrictions on contacts between Christians and those who did not share their religious beliefs sought in part to preserve religious orthodoxy from contamination by alien beliefs and ideas and also to foster the dissemination of Christian beliefs and ideas among the faithful. Norms that regulated Christian monasticism, which first appeared during the third century in the eastern Mediterranean (above all in Egypt and Syria), would complement the canonical tradition. Monks and nuns lived under a regula, or rule, that comprised of teachings of the original founder, guidelines to practical appli­ cation of Scripture, guidelines for beginners entering the monastic life, tools to exercise humility, particular regulations for the community, punishments for var­ ious transgressions, and the formal and legal basis for monastic conversion. About thirty rules survive from the Latin West dating from late antiquity to the mid-sixth century. While there was no one “standard” rule for all monks and nuns, they all embraced the Bible as the ultimate source. Each rule sought to guide the shape, and regulate every aspect, of communal (cenobitic) monastic life. For example, rules covered such topics as liturgical hours, dress, diet, visitors, and engaging with the outside world.30 Among the more prevalent rules from the first quarter of the fifth century (ca. 400–425) were the Rule of Pachomius,31 the Rule of Basil,32 and Augustine’s Praeceptum and the Ordo monasterii likewise attributed to him.33 In the sixth century, influential rules were those of Caesarius (d. 542) for nuns,34 and, in particular, the anonymous Rule of the Master (Regula magistri, before 530) which St. Benedict of Nursia used as a source to compile his Rule (ca. 550).35 Benedict’s Rule prescribed a balanced regimen in which the monk’s daily routine centered on periods of formal community worship, physical labor, and individual meditation and prayer. Each monastic house, which sought to be a self-sufficient agricultural community isolated so far as possible from contact with worldly society, constituted an autonomous, self-governing community, headed by an abbot whom the monks elected for life. Under the abbot, and responsible to him, subordinate officials bore responsibility for organizing and managing the spiritual and material resources of 30 A. Diem, “Monastic Rules,” and H. Feiss, OSB, “Benedict’s Rule,” in Great Christian Jurists and Legal Collections in the First Millennium, ed. Reynolds, 214–236, here 230–231, and 334–352, here 336, respectively. For a particularly helpful introduction to monasticism in general, see G. Melville, The World of Medieval Monasticism: Its History and Forms of Life (Collegeville, 2016). For more information on historiographical trends in the field of medieval monasticism, see the essays in A. Beach and I. Cochelin, eds., Cambridge History of Medieval Monasticism (Cambridge, 2020). 31 P. Rousseau, Pachomius: The Making of a Community in Fourth-Century Egypt (Berkeley, 1999), esp. 77–104. 32 A. Silvas, trans., The Rule of St Basil in Latin and English: A Revised Critical Edition (Collegeville, 2013). 33  T. van Bavel, ed., and R. Canning, trans., The Rule of Saint Augustine (Kalamazoo, 1996). 34 M. McCarthy, trans., The Rule for Nuns of St. Caesarius of Arles: A Translation with a Critical Introduction (Washington, DC, 1960). 35  A. de Vogüé, Études sur la Règle de Saint Benoît: Nouveau recueil (Bégrolles-en-Mauges, 1996).

18  Law in the Early Christian Church

the group. As monks, nuns, and hermits emerged in the West in the mid-fourth century and as monasticism became an increasingly prominent feature of Christian religious life and practice, particularly from the fifth and sixth centuries onward, canon law would have to take account of their status and the status of their property. Canon law grew out of norms stemming from the Bible, from Church Fathers, from councils and synods, from papal decretals, and from monastic rules that, col­ lectively, served as mechanisms for regulating religious beliefs and practices. The Christian church of late antiquity and the early Middle Ages, however, would become more legalistic, particularly as Roman law addressed matters of faith. As the organization of the church transformed and norms, as we will see, were gath­ ered into canonical collections to be used by ecclesiastical officials, canon law would emerge as not only an important element of Christian religious life, but also as an autonomous legal system complementary to the legal system of late Roman government.

2 CANON LAW IN THE EARLY MIDDLE AGES

The early Middle Ages (ca. 476–ca. 1000) experienced dramatic changes as the Church grew in stature and as the Western Roman Empire morphed into diverse Germanic kingdoms. Canon law likewise changed as it grew from a body of norms into an autonomous legal system that paralleled the legal system of the late Roman government followed by the codes of secular kings. Canon law in the early Middle Ages occupied a different space and context from that which characterized the high Middle Ages. It was an “an age without jurists” in the sense that professionally trained experts were not prevalent, but it was not an age when juridical knowledge was lost. It was not a period devoid of legal science and users of law interpreted the significance of that which they inherited by selecting which texts to include in collections.1 This truly was an era in which law did not emanate from one centralized authority in the form of a “state”. Law was not simply a top-down measure. Law, rather, came from a diverse variety of legislative bodies, be it secular rulers, church councils, the papacy, penitential manuals, or monastic rules. The products of these legislative bodies were then selected for their applicability and gathered into a wide assortment of collections that served the needs of both the compiler and its community of users, needs that included the administration of justice, ecclesiastical governance, liturgical services, pastoral care, and overall spiritual welfare of both the religious and the laity. Although Roman governments had weathered innumerable emergencies, a rapid series of grave political crises in the fifth century inflicted irreversible wounds

1  M. Bellomo, The Common Legal Past of Europe, 1000–1800, trans. L. G. Cochrane (Washington, DC, 1995), 34–54 famously referred to the early medieval period as “an age without jurists,” though scholarship is working to recast this understanding. DOI: 10.4324/9781003156734-3

20  Canon Law in the Early Middle Ages

from which the Empire in the West would not survive.2 The crises of the fifth and sixth centuries centered upon the successful invasion of the Western Empire by Germanic peoples, who subsequently settled in and secured political control of the whole region that we now describe as Western Europe. These non-Roman peoples from northern and central Europe had begun to make inroads into imperial territory during the fourth century and before the year 400, when a few groups had settled in some of the less densely populated provinces of the Empire.3 Common usage would describe them as “barbarians”, despite the fact that knowledge of Latin was not uncommon, and they were, by Roman standards, tolerably “civilized”. Although these initial settlements accommodated the perennial Roman need for military manpower, the situation deteriorated sharply after 400 to the point where Roman defenses were finally overwhelmed. By the fifth century’s close, Roman rule had ended for practical purposes nearly everywhere west of the Adriatic Sea. Picking up the mantle of Rome’s administration were the Franks in Gaul, the Lombards in Italy, and the Anglo-Saxon kingdoms in Britain and in the regions east of the Rhine.4 The legal collections of the various kingdoms, especially of those on the continent, are more appropriately referred to as Völkerrecht (law of the people) rather than as leges barbarorum (law of the barbarians). Collections compiled in the southern kingdoms (those of the Visigoths, Ostrogoths, Burgundians, and Lombards) and in the northern kingdoms (those dominated by the Franks) were written primarily in Latin—though occasionally Germanic terms would appear—and would rely on a common Roman law vocabulary, some of which was technical. Even in AngloSaxon England, where collections are found in the vernacular, continental models were followed. These collections characterize the regimes that produced them, but also, to a greater or lesser degree, draw explicitly on late Roman legal collections. The Lombard Leges Langobardorum was a composite of laws from the Edictum Rothari, legislation of various kings, and glosses/expositions for teaching Roman law found texts such as the Liber Papiensis, Lombarda, and Expositio ad librum Papiensis. The Visigoth Codex Euricianus and the Ostrogoth Edict Theodorici incorporated Roman law and legal principles. In Gaul placita, which recorded both judicial decisions of 2  The Eastern half of the Roman Empire, however, survived the loss of its Western twin and continued not merely to exist but even to flourish for another thousand years. After the sixth century, the surviving Eastern Roman state is usually referred to as the Byzantine Empire. 3  See W. Goffart, Barbarian Tides: The Migration Age and the Later Roman Empire (Philadelphia, 2006) for a reassessment of the assumptions of migration and invasion, as well an analysis of “Germanic” as a misleading, but unavoidable, description. 4 Scholars are increasingly treating “Germanic” as a linguistic, rather than an ethnic, attribute. Maurizio Lupoi has argued that Germanic migration did not entail entire “populations”, but rather clusters of families or social groups, or of tribes linked by matrimony or territorial contiguity. Because most of these groups lacked a distinct ethnic identity, groups assimilated into one another despite distinct names. As such, they had a shared heritage and thus would share a common “Germanic law”. See M. Lupoi, The Origins of the European Legal Order, trans. by A. Belton (Cambridge, 2000), 21, 22. See also T. Faulkner, Law and Authority in the Early Middle Ages: The Frankish Leges in the Carolingian Period (Cambridge, 2016), ch. 1 and ch. 2.

Canon Law in the Early Middle Ages  21

disputes brought before the royal court and land conveyances, derived from Roman legal practice.5 To some extent, one can see the period as an osmosis of Roman and Germanic law, a union of traditions, in which a homogenized legal framework was created. Stated another way, while the cultural context of the peoples factored into the extent to which legal osmosis took place—for example, southern kingdoms incorporated more Roman legal texts more frequently—legal texts were borrowed freely from a number of sources and adapted to fit the social and economic conditions of the time and place. This approach was neither “Roman” nor “Germanic”; there was no single “national” center responsible for the production of law and there was no monopoly on legislation.6 The new political order in the West shaped the subsequent development of the Church’s own institutional structures and its legal system. Between the sixth and the mid-eighth centuries, as church councils bear witness, there existed a symbiotic relationship between ecclesiastical institutions and civil governments. Frankish councils, such as those at Orléans (511) and Mâcon (585), cited imperial edicts; secular rulers, such as Clothar II, adopted conciliar legislation.7 Rulers of the Frankish and Visigoth kingdoms, in particular, saw councils both as an extension of the symbolic notion of imitatio imperii (imitation of imperial rule) and also as a forum where collaboration with the ecclesiastical administrators of their respective realms could take place. For example, of the eighty councils convened in Frankish Gaul between 511 and 768 (the ascension of Charlemagne to the Frankish throne), rulers

5  A. Callander Murray, “Law of the Post-Roman Kingdoms,” in Great Christian Jurists and Legal Collections in the First Millennium, ed. P. Reynolds (Cambridge, 2019), 73–106, here 86–87, 101, 89–92 provides a list of the collections for each kingdom: Southern Kingdoms Visigoth: Codex Euricianus, Lex Romana Visigothorum, Lex/Leges Visigothorum Ostrogoth: Edict Theodorici Burgundian: Lex Burgundionum / Liber Constitutionum, Lex Romana Burgundionum Lombard: Leges Langobardorum Northern Kingdoms Salian Franks: Lex Salica Austrasian Franks: Lex Ribvaria Alamannian Franks: Pactus Alamannorum, Lex Baivariorum See the bibliography for available translations. 6 Lupoi, The Origins of the European Legal Order, 186, 218–222. In his first edition, Brundage referenced S. L. Guterman, The Principle of the Personality of Law in the Germanic Kingdoms of Western Europe from the Fifth to the Eleventh Century (New York, 1990) in noting that “Germanic rulers regarded law as an attribute of personality, rather than of territory—that is, they assumed that a legal tradition formed an inalienable part of each individual’s ethnic heritage, and accordingly that everyone should be governed by the norms of the legal system into which he or she was born” (19–20). Lupoi, however, has argued that if a law could not apply to one people (ethnically speaking) there is not a personality of law, see The Origins of the European Legal Order, 393–405. 7 G. I. Halfond, The Archaeology of Frankish Church Councils, AD 511–768 (Leiden, 2010), 9–10 nn.33 and 34. Examples of councils adopting secular legislation were: Orléans (511), c.1 and c.23; Orléans (541), c.13; Orléans (549), c.7; Tours (567), c.21 and c.22; Mâcon (581/583), c.16; Mâcon (585), c.9. See also Chothar II Edictum (MGH Capit. 1:9, pp. 20–23) for secular legislation adopting conciliar decrees.

22  Canon Law in the Early Middle Ages

convoked 60% of them. Yet they neither made a concerted nor sustained effort to monopolize the calling for or agenda of a council. Frankish councils addressed the needs of those who convoked and attended it, and those needs were as diverse as the locations in which they were held. They reissued canons from earlier councils as a way to enforce current policy and guard against unwanted behavior. Yet councils also innovated by adapting existing policy to address present concerns. Conciliar policy regarding the Jews at the Councils of Clermont (535) and Mâcon (581/583) added the phrase aut tolonari (“or toll collectors”) to previous conciliar legislation that had forbidden Jews from being iudices over Christian peoples. The additional wording further clarified, and restricted, Jewish influence. Councils also granted and confirmed privileges to churches and monasteries, rendered judicial decisions, facilitated peace talks, and mediated ecclesiastical and royal interests by informing and influencing royal policy. Such efforts were instrumental to the protection of ecclesiastical property, donations, and tithes. They also helped to establish parameters for acceptable behavior among the laity. While councils could regulate the rights of the nobility, non-Christians, and even slaves and freedmen, they required the cooperation and buy-in of secular officials to ensure enforcement.8 As one can imagine, the sheer number of canons issued by the sheer number of councils held since the first council at Nicaea in 325 had made wading through conciliar law daunting. Attempts were made to bring the decrees of various councils together into collections, organized into canons; a term from the Greek κανοων, meaning a rule, and originally used to describe conciliar decrees.9 The earliest attempts at organization, which date to the fifth century, were organized chronologically. That is, the collection would begin with the decrees from the earliest councils and work forward to the most recent. For example, the Corpus canonum Africano-Romanum (ca. 420) drew together the decisions of the Council of Nicaea (325), the Council of Serdica (343), and African councils. The Collectio Wirceburgnsis (“Collection of Würzburg”) was compiled in the sixth or seventh century somewhere outside of Gaul and likewise organized councils, and their canons, chronologically. The Collectio Dioynsiana organized not only councils chronologically but also included papal decretals. The collection was compiled around 500 in Rome by the Scythian monk Dionysius Exiguus (d. ca. 537–555) which, in its original form, included a majority of the canons from chapter 47 of the Constitutiones apostolicae, also known as the Canones Apostolorum (“Canons of the Apostles”); and the canons from the councils of Nicaea, Ancrya, Neocaesarea, Gangra, Antioch, Laodicea, 8 Halfond’s The Archaeology of Frankish Church Councils and his article, “Ecclesiastical Councils,” in Great Christian Jurists and Legal Collections in the First Millennium, ed. Reynolds, 107–127, are excellent sources for understanding early Frankish councils within their time and place. 9  Helpful handbooks providing information about collections, literature, and manuscripts are: B. Ferme and G. Falchi, Introduzione allo studio delle fonti dell’Utrumque Iuris (Vatican City, 2006), chs. 2–6; L. Kéry, Canonical Collections of the Early Middle Ages (ca. 400–1140): A Biobibliographical Guide to the Manuscripts and Literature (Washington, DC, 1999); and L. Fowler-Magerl, Clavis Canonum: Selected Canon Law Collections before 1140 (Hannover, 2005).

Canon Law in the Early Middle Ages  23

Constantinople, and Sardica. Chronological collections made finding the conciliar canons of a council convenient, if you knew when it was held in relation to other councils, but they did not provide a picture of the law issued on a particular subject. As with conciliar canons, efforts had been made previously to compile decretals into collections for future reference. Some of the earliest decretals compiled in collections were from Popes Innocent I, Zosimus, and Celestine.10 The sixth-­ century decretal collections the Collectio Corbeiensis (“Collection of Corbie”) and the Collectio Pithouensis included the decretals of Innocent I and Celestine.11 The Collectio Quesnelliana (ca. 495) included decretals of Siricius, Innocent I, Zosimus, Celestine, and Pope Leo I.12 Decretals of Pope Leo I (d. 461) can also be found in an appendix of the Collectio Corbeiensis and in the Collectio Grimanica.13 By the sixth century, papal decretals would have equal authority with conciliar decrees, as underscored by the First Council of Braga (563) and the Third Council of Toledo (589). As a result, decretals would be appended to conciliar collections such as to the Corpus canonum Africano-Romanum and to the Collectio Dioynsiana. It is important to stress that no one collection was deemed authoritative. Collections rather were compiled to suit the needs of a particular location, compiler, or user. Chronologically arranged collections of conciliar canons and papal decretals abound. For example, the Collectio Remensis dates to the second half of the sixth century from somewhere in Gaul. The Collectio Corbeiensis, compiled around Vienna, and the Collectio Coloniensis, compiled around Arles, both date from sixth century as well. The Collectio Pithouensis was compiled around Sens or Auxerre in central Gaul around the turn of the seventh century. As a final example, the Collectio Sanblasiana was compiled somewhere in Italy in the sixth century. It is also important to remember that people travelled and so too did their texts. For example, the Collectio Corbeiensis shares a close connection with the Collectio Pithouensis. The compiler of the Collectio Sanblasiana drew upon the Collectio Dioynsiana. The individuality of connections between collections underscore that the Church did not have a single body of law but rather a rich legal tradition in which conciliar canons and papal decretals played a vital role. As the sacred and the secular intermingled at Frankish church councils, we turn to the British Isles for developments in spiritual reconciliation. The church of Late Antiquity had been employing a variety of methods to reconcile sinners with the body of Christ.14 Formal public ceremonies were but one method for forgiving sins. During these ceremonies, the repentant sinner had to make a public confession 10  Canones urbicani: Innocent I: JK 293, 303; Zosimus: JK 339; Celestine: JK 369, 371. Epistolae decretales: Innocent I: JK 286, 293, 303; Zosimus: JK 339; and Celestine: JK 369 in its entirety, and 371. 11  Innocent I: JK 286, 293, 303; Celestine: JK 369, 371. 12  Siricius: JK 255; Innocent I: JK 286, 293, 303, 311; Zosimus: JK 339; Celestine JK 369, 371. 13 D. Jasper, “Papal Letters and Decretals Written from the Beginning through the Pontificate of Gregory the Great (to 604),” in Papal Letters in the Early Middle Ages, D. Jasper and H. Fuhrmann (Washington, DC, 2001), 7–87. 14 A beginning point for penitential literature is C. Vogel’s Les Libri Paenitentiales (Turnhout, 1978). For what follows, see R. Means, Penance in Medieval Europe, 600–1200 (Cambridge, 2014).

24  Canon Law in the Early Middle Ages

of wrongdoing. The penitent was then obliged to openly perform certain public acts of expiation before he or she could be reconciled with the church and readmitted to communion. Public confession thus embodied both a reconciliatory and also a disciplinary element. Since public penance could be performed only once in a lifetime, many Christians understandably chose to postpone repentance until late in life, an issue that the church began to discuss in the fifth and sixth centuries as liturgical developments, such as rogation ceremonies, and sermons emphasized the importance and value of penance. Monasticism would have a profound impact on penitential practices. The Rule of St. Benedict required that monks confess daily their sins to God but also to confess every bad thought, no matter how trivial, and deed, even if committed in secret, to the abbot. This private rite of confession was one in which the penitent confessed in secret. Irish monasticism, particularly during the flowering of penitential thought between 650 and 768, would have a tremendous impact on private penance and, with it, reconciliation. A new genre of ecclesiastical text, penitentials were handbooks that provided guidance for priests who heard confessions. Their texts would infiltrate canonical collections and give canon law an inward-looking character. Penitential handbooks took the structure of indexes or tables listing the crime (e.g., homicide), sin (e.g., nocturnal emission), or precept (e.g., allowing a mouse to drown in the ale) with appropriate penances for reconciliation. The efficacy of absolution was contingent upon performance of individual acts of penitence that the confessor tailored to suit the circumstances and the offenses that the penitent had committed. Penance, performed in private, could be repeated as often as necessary. Monastic influence on penitentials can be seen with Irish Paenitentiale Cummeani which seems tailored to religious life. The Irish Finnian (or Vinnian) of Clonard wrote one of the earliest well-developed, methodical penitentials in the first half of the sixth century. Finnian distinguished sharply in the penances he prescribed between the more demanding punishments appropriate for the clergy and the milder ones that the sins of the laity merited. Thus, for example, a cleric who quarreled with his neighbor and entertained thoughts of killing him was to fast for six months on bread and water and to abstain from wine and meat for an additional six months before he could be readmitted to communion. A layman guilty of the same offense had to do penance only for a week since, as Finnian explained, “he is a man of this world and his guilt is lighter in this world and his reward less in the world to come” (c.6–c.7). Finnian’s work, like most later handbooks of penance, devoted substantial space to a wide variety of sexual misbehaviors. Almost two-fifths of Finnian’s canons deal with sexual offenses of one kind or another, a proportion that remained fairly typical of later penitentials.15 Penitential handbooks were considerably larger and deal with a wider 15 T he standard edition of Finnian’s text appears in L. Bieler, The Irish Penitentials (Dublin, 1963), 74–95; an English translation from an earlier edition may be found in Medieval Handbooks of Penance, eds. and trans. J. T. McNeill and H. M. Gamer (New York, rpt. 1965), 86–97. For an analysis of the proportion of sexual offenses in a representative sample of penitentals, see P. J. Payer, Sex and the Penitentials (Toronto, 1984).

Canon Law in the Early Middle Ages  25

range of sins than that of Finnian. They also could prescribe punishments different from his. Some consisted of little more than extended tariffs of sins and suggested penalties, while others attempted to explain more amply the reasons for distinguishing between different offenses and to set their prescriptions within a broader theological context. Penance was thus for monks as well as for the laity of whatever status or rank. The Irish, however, did not monopolize penitential literature as seen by the numerous handbooks, such as the Anglo-Saxon penitentials of Pseudo-Bede and Egbert, compiled in Britain during this period. Penitential thought and practice were transplanted to the continent in the seventh century and flourished between the eighth and tenth centuries. The Paenitentiale Oxoniense II preserves the character of penance in eighth-century Frisia (modern-day Netherlands, Friesland, and parts of northern Germany along the North Sea). For example, it prescribed four weeks’ penance for any Christian who helped their neighbor build a funeral pyre, a prescription which points to Christians and non-Christians living together. Continental penitentials, such as those of Pseudo-Theodore, Rabanus Maurus, Halitgar of Cambrai, and of Regino of Prüm, brought together conciliar texts and writings of the Church Fathers. Halitgar of Cambrai’s penitential (ca. 829) brought together such texts at the request of Archbishop Ebbo of Reims for a clearly organized manual on which priests could rely to tend to the spiritual wellbeing of the flock.16 Compiled at the turn of the tenth century for Archbishop Hatto of Mainz (d. 913), Regino’s Libri duo de synodalibus causis et disciplinis ecclesiasticis (“Two Books on Synodal Investigations and Ecclesiastical Instruction”) gathered texts into a handbook to assist with the bishop’s inquiry into practices of pastors and laity of the parishes and those of the abbots and monks within his diocese.17 The aim of penance was curative. On the one hand, sin was envisioned as a moral sickness that required treatment to restore the sinner to spiritual health. Penitentials, then, represented a kind of spiritual pharmacy that supplied confessors with a list of the sins they might encounter, together with a menu of penitential acts appropriate for each type of sin. This allowed the confessor to prescribe a course of penance to match the spiritual needs of each sinner. Penance also played a role in conflict resolution, as seen by prescriptions to compensate injuries, which, hopefully, would mitigate the anger of the offended party and prevent future upheaval to the social order. Penitential handbooks of incorporated canons of behavior were based upon the councils and other traditional canonical sources, but also drew upon the author’s own experience and practice as a confessor. Since priests throughout Western Christendom consulted these manuals and relied upon them for guidance 16 “Letter of Archbishop Ebbo of Reims to Bishop Halitgar of Cambrai,” in Prefaces to Canon Law Books in Latin Christianity: Selected Translations, 500–1317, 2nd edn., trans. R. Somerville and B. Brasington (Washington, DC, 2020), 65–66. 17 “Preface to Two Books concerning Synodal Investigations and Ecclesiastical Instructions of Abbot Regino of Prüm (906): Dedicatory Letter to Archbishop Hatto of Mainz,” in Prefaces to Canon Law Books in Latin Christianity, 2nd edn., trans. Somerville and Brasington, 79–80. See also W. Hartmann, ed., Das Sendhandbuch des Regino von Prüm (Darmstadt, 2004).

26  Canon Law in the Early Middle Ages

in dealing with the sinners who confessed to them, the penitentials became in effect a source of law, although few of their authors held high offices in the ecclesiastical hierarchy and were seldom vested with formal legislative power. Penance was woven into religion, society, and politics.18 Together with the canonical collections, penitentials set forth the norms and various procedures for ecclesiastical authorities who sat in judgment of offenses that ranged from the criminal to the mundane. There thus existed an interplay between judicial authority to correct offenses and the issuing of appropriate penance found in penitential manuals to reconcile the offender. The penitential forum (forum poenitentiae) would influence and be influenced by legal developments. This intersection between objectives, procedure, and subject matter point to the line between penance and law as blurred at best and non-existent at worst. It also would parallel the entanglement of ecclesiastical and secular agendas that marked the Carolingian period. While the sixth through the mid-eighth centuries was marked by a symbiotic relationship between church councils and secular rulers in Gaul, Charlemagne’s ascension to the Frankish throne and birth of the Carolingian empire altered the dynamics of that relationship by more fully entwining the secular and sacred.

MAP 2.1 

Europe in the ninth century

© Martolosko, CC BY-SA 3.0 via Creative Commons

18 For a case study on the intersections of law and penance, see A. Firey, A Contrite Heart: Prosecution and Redemption in the Carolingian Empire (Leiden, 2009).

Canon Law in the Early Middle Ages  27

Charlemagne, along with his successor, Louis the Pious (d. 840), embarked on efforts to renew the church throughout the realm and to reform ecclesiastical institutions and discipline.19 Charlemagne, for example, took an active role at the Council of Frankfurt (794) and he organized councils at Arles, Reims, Maniz, Châlons, and Tours. The entwinement of the secular and sacred also bears out in the number of Carolingian manuscripts that contain both ecclesiastical and secular legislation.20 Louis the Pious would task the monk Benedict of Aniane (d. 821) with reforming monastic life. His Codex Regularum (“Code of the Regulars”) gathered together the surviving monastic rules from the Latin West—rules such as those of the Regulae partum, Pachomius, Basil, Augustine, Columbanus, and a rule for female monastics—in addition to Benedict’s Rule of the Master (Regula magistri), which was presented at the apex of monastic rules. Benedict of Aniane’s Code of the Regulars, in essence, established the Benedictine Rule as the rule to be followed in Frankish monasteries.21 Bishop Theodulf of Orléans (d. 821) would adapt a portion of Benedict’s Rule, “Instruments of Good Works”, to assist the parish priests with their care of spiritual wellbeing of the laity.22 Though not new to Carolingian rule, royal capitularies became an important vehicle for disseminating the king’s secular and ecclesiastical agenda; they were a vehicle for legislating on ecclesiastical matters. The Capitulary of Herstal (779), for example, greatly improved the church’s ability to fund its activities by calling upon imperial officials to enforce payment of the tithe, the 10% tax on most types of income that remained the basis of church finance for more than a thousand years. The resulting growth of ecclesiastical resources made it possible to multiply the numbers of parishes and to bring regular religious services and instruction to many parts of the empire, where they previously had been haphazard and occasional. Other capitularies dealt with monastic schools and libraries, with standardization of liturgical observances, with clerical discipline, and with a host of other matters vital to the wellbeing of the Carolingian church. Most famously, Charlemagne’s capitulary Admonitio generalis (789) cited canons and decretals from particular councils and popes in efforts to revive education, religious observance, and reform clerical and lay behavior by creating a new generation of educated clergy who would be able to perform the Christian rights and to instruct the people on doctrinal matters.23 Capitularies made it clear that Charlemagne viewed himself as the head of both the religious and civil establishment within his empire. The emperor sought to bring order into every aspect of church life. He was concerned about the liturgy and demanded that worship be conducted according to a uniform ritual throughout 19  See J. R. Davis, Charlemagne’s Practice of Empire (Cambridge, 2015). 20 Halfond, The Archaeology of Frankish Church Councils, 10 n.35. Examples being Paris, BNF, lat. 1455; BAV, lat. 3527; and BAV, lat. 5751. 21 A. Diem, “Monastic Rules,” in Great Christian Jurists and Legal Collections in the First Millennium, ed. Reynolds, 214–236, here 216. 22 S. G. Bruce, “Textual Triage and Pastoral Care in the Carolingian Age: The Example of the Rule of Benedict,” Traditio 75 (2020): 127–141. 23  Admonitio generalis (MGH Capit. 1:22, pp. 52–62).

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his domains. He cared about church music and took pains to see that choirs were properly instructed so that their performances would enhance, rather than detract from, the solemnity of liturgical ceremonies. He directed bishops and abbots to provide more adequately for the education of their monks and clerics. He encouraged missionaries to spread the Gospel and baptize pagans and supported their work actively, in part at least because he viewed their labors as an important element in the pacification of newly conquered territories. He likewise enforced the collection of taxes for church support, especially the tithe, which funded many of the church’s activities. With no sharp dividing line between royal and ecclesiastical powers, regulation of the church became an integral part of royal functions.24 Later canonists came to treat the Carolingian capitularies as legitimate sources of ecclesiastical law and routinely incorporated them in subsequent collections of the canons. Capitularies existed as a source of law alongside conciliar canons and papal decretals which contributed to an already rich and overlapping legal tradition. Take leprosy as an example. Pippin III [the Short] issued a capitulary at the Council of Compiègne (757) that would be included in the legal collection the Decretum Compendiense, which allowed for the healthy partner to separate from the leprous partner with the leprous spouse’s consent. It did not matter whether the leprous spouse was the husband or the wife; Pippin III’s capitulary applied equally to both.25 Pippin III’s contemporary Pope Stephen II (754) also commented on the issue of leprosy in a letter dealing with the indissolubility of marriage. He wrote that if someone was joined to another in marriage, the couple could not separate even if infirmity prevented one of the partners from rendering the marriage debt. The exceptions were if one of the partners suffered from demonic possession or the stain of leprosy. Thus, if a healthy man led a woman into marriage who then became leprous, they were permitted to separate lest the disease should befall him and pollute any children conceived. The clean were to be joined to the clean.26 While one was not dependent upon another, both Pippin III [the Short]’s capitulary and Pope Stephen II’s decretal (754) allowed for the healthy partner to separate from the leprous partner so that the disease would not be passed onto the children. Canonical collections played an integral role in Charlemagne’s efforts to raise the status of the church, which, in turn, greatly increased both the effectiveness and importance of canon law within the ecclesiastical institution. Responding to Charlemagne’s request, Pope Adrian I (d. 795) furnished him in 774 with an up-todate compendium of the canons—the Hadriana, a newly-revised version of the Dionysiana, which Dionysius Exiguus had compiled towards the end of the fifth century—that could serve as the fundamental statement of the church’s current law. The synod of Aachen (802) directed bishops throughout the Carolingian empire to use this revised collection, in conjunction with the collection of Spanish conciliar 24 See Faulkner, Law and Authority in the Early Middle Ages, ch. 3 and ch. 5 for how some capitularies were independent of royal efforts, reflecting the needs and concerns of those using the law. 25  Pippini capitularia [Council of Compiègne], c.19 (MGH Capit. 1:15, pp. 37–39). 26  Responsa Stephani Papae II, c.2 (PL 89:1024); Responsa Stephani Papae II c.9 (PL 89: 1026).

Canon Law in the Early Middle Ages  29

canons known as the Hispana, as the fundamental lawbooks in their courts. The content of the Admonitio generalis drew heavily from this collection.27 Alongside the Dionysio-Hadriana, the Dacheriana was a highly influential collection, especially in the province of Reims between the ninth and eleventh centuries. It was divided into three books dealing with penance, crimes, and judgment; accusers, the accused, judges, and those things pertaining to ecclesiastical rules; and, finally, those things concerning the sacred orders. These collections were organized systematically. That is, a compiler would pull together pertinent arguments from a wide array of sources, such as Scripture, writings of the Church Fathers, conciliar decrees, papal decretals, and Roman law, and organize those sources into particular themes. Unlike chronologically arranged canonical collections, such as the Collectio Dioynsiana, systemically or thematically arranged collections pulled together pertinent arguments from a wide array of sources—such as Scripture, writings of the Church Fathers, conciliar decrees, papal decretals, and Roman law—and organized those sources into particular themes. Such collections were not new to the eighth century but rather date from as early as the fourth century. The so-called Constitutiones apostolicae, compiled in Syria or Palestine probably around 380, was organized systematically into eight books. It drew upon the Scriptures, apocryphal literature, creeds, conciliar canons, and church histories to set forth a framework of the obligations and prerogatives of various groups within the Christian fold. The systematically arranged Statuta ecclesiae antiqua was a fifth-century collection of decrees drawn from Gallic and Spanish councils that addressed disciplinary regulations for clergy and laity alike.28 The seventh-century collection known as the Hispana comprised a great mass of canons, drawn not only from the early Greek councils, but also from North Africa, Gaul, and especially from Spain, where conciliar legislation was both extensive and important. It also included numerous papal decretals from Pope Damasus I (d. 384) to Gregory I (d. 604). In its first reiteration, the collection, known as the Collectio hispana chronologica, presented its conciliar canons and papal decretals in chronological order. During the second half of the seventh century, however, the material would be reorganized by subject and became known as the Collectio hispana systematica and provided its users with more convenient access to the canons than chronologically arranged collections. The Irish systematic collection, the Collectio Hiberensis (ca. 669–ca.748), is a fascinating compilation. On the one hand, it addresses topics one would expect in a canonical collection: the individual ecclesiastical orders; religious orders; Christian practice (e.g., alms, prayer, fasting, care for the dead, and sin); sites for churches; usury; oaths; women, family (parents, their offspring, and inheritance), and marriage; and curses and benedictions. It also addresses in great detail judicial procedure, sorcery,

27 Y. Hen, “Knowledge of Canon Law among Rural Priests: The Evidence of Two Carolingian Manuscripts from Around 800,” Journal of Theological Studies 50, no.1 (1999): 117–134. It is worth noting that collections such as the Quesnelliana, Sanblasiana, Hispana, parts of the original Dionysiana, and the Vetus Gallica continued to find use. 28 Kéry, Canonical Collections of the Early Middle Ages, 1–2, 7.

30  Canon Law in the Early Middle Ages

crimes and vengeance, penance, and excommunication. On the other hand, the collection includes books that might not usually receive such specific and particular treatment: kingship and the concept of principatus (Books 24 and 36); interactions with barbarians (Book 58); lordship and subjugation (Book 23); the relationship between church and the world (Book 41); fugitives and refugees (Books 27 and 28); and eating and other uses of animals (Books 52 and 53).29 Thematic organization would become the norm for the organization of most canonical collections. Under Charlemagne, church reform policy and canon law had political objectives in addition to a concern with improving the quality of religious life around the empire. With an eye on using church institutions and personnel as instruments of political power, he selected his bishops for their potential usefulness as officers of government and as well as religious leaders. He had employed other clergymen as secretaries in his own household and had entrusted them with a significant share of responsibility for orderly administration and record-keeping. Nothing, however, lasts forever and that goes double for empires. After the great emperor’s death in 814, the regime that he had built soon began to falter and ultimately fell. The continued efforts at reform by Charlemagne’s sole surviving son, Louis the Pious, provoked widespread resentment among the ruling aristocracy, while his second marriage, which added a further heir to vie for power with the two sons of his first marriage, complicated dynastic politics. Rivalries among Louis’s heirs, combined with the greed, ambition, and fecklessness of his grandsons, resulted in a territorial breakup of the Carolingian realm, inevitably accompanied by a diminution in the political power of its rulers. These dynastic jealousies, political intrigues, and territorial fragmentation coincided with attacks by powerful foreign enemies as the later Carolingians found themselves beset simultaneously by Vikings from Scandinavia, Magyars from Central Europe and the Russian plains, and Muslims from Spain and North Africa. Since churches, monasteries, and convents of nuns were especially attractive targets for the Vikings and other outside attackers, local military leaders who assumed responsibility for organizing the defense of their regions—dukes, counts, and other warlords who lacked formal titles or public authority—put a large part of their effort into defending religious institutions against the ravages of invaders. In return, the defenders sought to assert control over ecclesiastical positions and property. Bishops, abbots, and other church officials, down to and including parish priests, typically came to be named by local landowners and noblemen, who often demanded concessions of church property from the successful candidate in return for securing his appointment. For example, should a local strongman wish to provide his son with a dignified and comfortable living as a bishop or abbot,

29 R. Flechner, ed., The Hibernensis (Washington, DC, 2019). Book 1 includes an introduction and a Latin edition; Book 2 is the English translation, commentary, and indexes. Flechner notes that the Hibernensis possess characteristics that appear close to vernacular secular law. See also R. Flechner, Making Laws for a Christian Society: The Hibernensis and the Beginnings of Church Law in Ireland and Britain (New York-London, 2021).

Canon Law in the Early Middle Ages  31

the chances were extremely good that the boy would be taken care of, no matter how meager his qualifications for the position. Knights and nobles almost everywhere claimed the right to appropriate part, and sometimes all, of the tithe and other church revenues from their manors for their own use in compensation for the protection that they offered against even more voracious competitors. Or, to cite another common situation, when a local landowner wished to divorce one wife and marry another, canonical authorities might be hard-pressed to resist the pressures he could exert to get his way. We conventionally describe this state of affairs as “the proprietary church regime” (Eigenkirchentum), a term coined by German scholars.30 Ecclesiastical prelates—bishops and abbots—having originated oftentimes from the secular nobility took advantage of this fractured environment by exerting more independence and political force. Amid this climate there appeared a series of canonical collections based on both genuine and forged papal decretals. Collectively, these collections are known as the “Pseudo-Isidorian forgeries”, so named after the most influential of the collections, the Pseudo-Isidorian Decretals. Forged in the same circle as the PseudoIsidorian Decretals are the collections the Capitula Angilramni; the Hispana Gallica Augustodunensis/Pseudo-Isidorian Hispana; and the collection of false Carolingian capitularies attributed to Benedictus Levita. In addition are the lesser-known forgeries such as the Excerptiones de gestis Chalcedonensis concilii, which is an altered version of the acts of the Council of Chalcedon (451); a purported decretal of Gregory IV, known as Divinis praeceptis, which recorded Leo I’s concept of the bishop of Rome’s “fullness of power” (plenitudo potestatis); and the Collectio Danieliana.31 The Pseudo-Isidorian Decretals were highly influential throughout the Middle Ages and no one ever suspected there were forgeries scattered throughout the collection until the sixteenth century. It was thought to be the work of Isidore of Seville (d. 636) or of an Isidore the Merchant (Isidorus Mercator). It was most likely composed between 830 and 850 in northern France in the diocese of Reims. Some scholars have suggested Paschasius Radbertus, who was then a monk at Corbie (he would serve as abbot from 843–850), as the compiler. The work consists of three parts, with each part being organized chronologically. Part I includes sixty forged papal decretals from Anacletus (d. 88) to Miltiades (d. 314). None of these popes left surviving authentic letters. “Isidore the Merchant” created these forgeries by piecing together authentic material from different sources to give each decretal a specific meaning. Part II consists of authentic conciliar canons from the First Council of Nicaea (325) to the Second Council of Seville (619). Part III consists of a mixture of papal decretals, which are both false and authentic, from Sylvester I (d. 335) to Gregory II (d. 731). It also contains the “Donation of 30  More recently see S. Wood, The Proprietary Church in the Medieval West (Oxford, 2009). 31 C. Harder, “Pseudo-Isidorus Mercator,” in Great Christian Jurists and Legal Collections in the First Millennium, ed. Reynolds, 397–412. For more extended analysis, see C. Harder, Pseudoisidor und das Papsttum: Funktion und Bedeutung des apostolischen Stuhls in den pseudoisidorischen Fälschungen (Cologne, 2014). See also H. Fuhrmann, “The Pseudo-Isidorian Forgeries,” in Papal Letters in the Early Middle Ages, Jasper and Fuhrmann, 137–195.

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Constantine” (Constitutum Constantini), a forged document in which the emperor Constantine transferred command over the Western Empire and the city of Rome to the bishop, Sylvester, and his successors.32 In sum, the texts, supposedly from the “golden age” of the early church, supported the contention that the hierarchical structure of the Church went back to its very foundations. The collection demonstrates that the bishops of Rome had dominated Christian life from the earliest times and that papal approval was essential for the validity of conciliar and synodal canons. Such exaltations of papal prerogatives would come to bear in the eleventh century when the “Pseudo-Isidorian forgeries” and, in particular the Pseudo-Isidorian Decretals, had a significant influence on canonical collections. It furnished those compilers with ammunition that they used effectively in their campaigns to centralize the church’s administrative authority at Rome. The Pseudo-Isidorian Decretals also invented new procedural forms and evidential requirements that considerably complicated litigation, thus bolstering the authority of bishops by making it difficult to press charges against them and by forbidding their prosecution and dismissal by laymen. It also diminished the power of the archbishop over suffragan bishops as the bishop of Rome could intervene in church matters. Yet the autonomous authority of bishops suffered from the expansion of papal authority as the ability to call a council rested in the hands of the bishop of Rome. As the political climate changed, compilers of canonical collections kept them, the users of such collections, and the church as an institution at the forefront of those changes by attempting to safeguard some sense of social stability. Two collections of particular importance were the episcopal handbooks of Abbot Regino of Prüm (d. 915) and of Burchard of Worms (d. 1025). Handbooks were instrumental to how episcopal visitations of churches and monasteries in the diocese were to be conducted and they were used as teaching texts. They were systematically organized and provided guidance on proper procedures and rituals, when to assign penance or a sentence of excommunicate, when and for what reasons to hold local episcopal synods, for following the correct procedure for ordination, and for carrying out episcopal duties in general. Works intended to help archbishops, bishops, and cathedral clergy in carrying out their ministerial duties were not new. Episcopal statutes or capitula episcoporum had been composed by a number of early ninth-century Carolingian bishops for priests in their diocese and were designed to guide them in the various canonical, liturgical, and administrative matters: Theodulf of Orléans composed two, Gerbald of Liège composed three, and Waltcaud of Liège composed one. These capitula episcoporum dealt with clerical conduct, the performance of the liturgical offices, the administration of baptism, penance, and various rites for the sick and the dying. The collections of both Regino and Burchard demonstrate the extent to which law, penance, and moral theology overlapped. Regino of Prüm’s Libri duo de 32 See “Preface to the Collection of ‘Isidore Mercator’ (ca. 850): Dedicatory Letter to the Reader,” in Prefaces to Canon Law Books in Latin Christianity, 2nd edn., trans. Somerville and Brasington, 70–77; and H. Fuhrmann, “The Pseudo-Isidorian Forgeries,” in Papal Letters in the Early Middle Ages, 135–195.

Canon Law in the Early Middle Ages  33

synodalibus causis et disciplinis ecclesiasticis (“Two Books on Synodal Investigations and Ecclesiastical Instructions”) (ca. 906) provides a handbook on tradition, procedures for various rituals and practices, and the administering of penance. In his dedicatory letter to Archbishop Hatto of Mainz, Regino hoped that his work would serve as a guide when the archbishop did not have his abundance of books readily at hand.33 Book 1 addressed regulations and instructions for the clergy and reinforced church administration by setting forth areas of inquiry while conducting local visits and synods. Book 2 addressed the matters related to the laity and their offenses.34 Burchard of Worms’ Decretum (1008–1012) became one of the most influence collections of the Middle Ages.35 Organized into twenty books, Burchard navigated the gray area between canon law and the problems of moral theology. Books 1–3 addressed the different clerical offices; synods; church administration of buildings, tithes, oblations; and Scripture. Books 4 and 5 addressed the administration of the sacraments of baptism and the eucharist, respectively. Book 6 treated the consequences of various forms of homicide: murder, manslaughter, patricide, fratricide, and the like. Book 7 concerned consanguinity and incest. Book 8 dealt with the monastic life of both men and women. Book 9 treated the legal problems of single women, both unmarried and widowed. Book 10 had to do with magic and sorcery. Books 11 and 12 dealt respectively with excommunication and theft, and oaths and perjury. Books 13 and 14 focused on the law concerning fasts and feasts, as well as the moral shortcomings that resulted from overindulgence in food and drink. Book 15 treated civil rulers and the laity and their relationship to the church, while Book 16 dealt with procedures regarding accusations, witnesses, and judges in church courts. Book 17 dealt with fornication and other sexual offences. Book 18 concerned Christians who were ill or dying. Book 19 on penance, sometimes called the Corrector, became a particularly popular reference work for confessors and for that reason was often copied separately from the rest of his Decretum. Scribes sometimes copied Book 20, a treatise on speculative theology, separately as well, frequently under the title of the Speculator, since it dealt with topics such as providence, predestination, the coming of the Antichrist, the Last Judgment and the resurrection of the dead.36

33 “Preface to Two Books concerning Synodal Investigations and Ecclesiastical Instructions of Abbot Regino of Prüm (906): Dedicatory Letter to Archbishop Hatto of Mainz,” in Prefaces to Canon Law Books in Latin Christianity, 2nd edn., trans. Somerville and Brasington, 79–80, here 80. 34 G. Austin, “Regino of Prüm,” in Great Christian Jurists and Legal Collections in the First Millennium, ed. Reynolds, 444–457. For a critical edition, see Hartmann, ed., Das Sendhandbuch des Regino von Priim. 35 For influential studies on Burchard, see G. Austin, “Jurisprudence in the Service of Pastoral Care: The ‘Decretum’ of Burchard of Worms,” Speculum 79 (2004): 929–959; G. Austin, Shaping Church Law Around the Year 1000: The Decretum of Burchard of Worms (Farnham, 2009); B. Kynast, Tradition und Innovation im kirchlichen Recht: Das Bußbuch im Dekret des Bischofs Burchard von Worms (Ostfildern, 2020). 36 “Preface to the Decretum of Bishop Burchard of Worms (Early Eleventh Century): Dedicatory Letter to Provost Brunicho of Worms,” in Prefaces to Canon Law Books in Latin Christianity, 2nd edn., trans. Somerville and Brasington, 84–89, here 86–88.

34  Canon Law in the Early Middle Ages

The episcopal handbooks of Regino and Burchard were central to pastoral care, a task which required a working understanding of prevailing legal norms and penitential practice. Their texts had to address the needs of their perspective readers; however, they also had to be understandable and usable. Regino envisioned his handbook to be used by bishops and senior clergy. Attributing texts to church councils, even though they may have originated with episcopal acts, he ensured that his texts possessed sufficient authority. Furthermore, minus the list of questions asked by the priest found in Book 1, he let contractions stand; the same offense could be addressed in a swath of canons, each with a different penance prescribed. Regino left the ambiguities to remain so as to provide the user with as much information as possible to determine the appropriate penance warranted. Burchard sought to compile a manual that could be used by anyone tasked with pastoral care. He relied heavily on Scripture. He also edited his texts to eliminate inconsistences and conflicts. He sought to eliminate the confused, varied, and disordered impression that the canons and judgments for those doing penance could leave by creating a work with coherence.37 Penance played an important role in both works. Regino’s Libri duo regulated and explained how and when priests should hear confession and how penance should be performed. For example, Regino identified Ash Wednesday as the date for confession as well as describing the process of public penance. It may be that confession on Ash Wednesday was an initial stage and that those deemed to have committed serious or public sins were required to do public penance. It has also been suggested recently that Burchard’s Decretum served a public, synodal, purpose, rather than simply a work used in administering private penance.38 The ecclesiastical legal tradition of the early Middle Ages was not driven by the dictates of the papacy, to be passed down and implemented by bishops and parish clergy. Rather the sources of law were varied, overlapping, and sometimes, but not always, in dialogue with each other. Authentic papal decretals were influential, as were the sources for Roman law discussed in Chapter 1. Compilations of secular legal codes had also drawn on Roman law. Church councils, royal capitularies, and forged papal decretals all possessed legal authority. In different ways and for different purposes, the multitude of chronological and systematic canonical collections incorporated these sources—along with Scripture and the writings of the Church Fathers also discussed in Chapter 1—to render the legal tradition, with its host of authorities, usable. The early Middle Ages also saw the secular and the sacred becoming more intertwined as Frankish kings sought to harness the political advantages ecclesiastical institutions could offer. As the Carolingian empire declined, however, the perception of political disarray increased, canonical collections and episcopal handbooks blurred the lines between law and penance to offer some mechanism for safeguarding, at least in theory, societal norms.

37 “Preface to the Decretum of Bishop Burchard of Worms (Early Eleventh Century): Dedicatory Letter to Provost Brunicho of Worms,” in Prefaces to Canon Law Books in Latin Christianity, 2nd edn., trans. Somerville and Brasington, 85. 38 J. Burden, “Reading Burchard’s Corrector: Canon Law and Penance in the High Middle Ages,” JMH 46 (2020): 77–97.

3 CANON LAW AMID THE ELEVENTH-CENTURY REFORM EFFORTS

The influence of the secular sphere on ecclesiastical institutions that intensified during the Carolingian period had left an indelible mark on the Church. Bishops came from noble families, further intwining church and secular affairs. Wealthy donors, local lords, and the monarchy drew upon church property for private use. Nor was the papacy immune to these developments. With Otto I (d. 973), the Holy Roman Emperor was known to play a role in appointing the next pope. In Rome, the powerful Crescentians and Tusculans had used the papacy to augment their families’ power at the expense of the other. While the Crescentians managed to have one of their own elected pope, John XIII (d. 972), they wielded much control over the papacy through their secular office, serving as praefectus (prefect) of Rome. The Tusculans managed to have more from their family elected pope, but three of them—Benedict VIII (d. 1024), John XIX (d. 1032), and Benedict IX (d. 1048)—simultaneously served as Count of Tusculum. The secular was the sacred and the sacred was the secular. Additionally, there was a drastic deterioration in the discipline of the clergy and of the spiritual services that they provided. Even monks, it was said, no longer fasted and prayed; instead, they feasted and played their days away. Many monks, in truth, did enter the monastic life under compulsion, rather than out of idealistic aspirations for a life of asceticism and devotion. A substantial number of religious houses became little more than ecclesiastical country clubs, filled with the surplus offspring of noble families who exiled their extra sons and daughters to monasteries where they would no longer be a drain on the family wealth. Nunneries, it was said, were little more than brothels, although they were perhaps a bit cleaner and more orderly than most such establishments. Complaints about these matters began to surface from all directions by the beginning of the tenth century and over the following century-and-a-half they

DOI: 10.4324/9781003156734-4

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grew in frequency, in number, and in intensity.1 In the mid-eleventh century, reform-minded clerics came to sit on the papal throne. Holy Roman Emperor Henry III (d. 1056) appointed Bruno of Toul—a reforming monk from Lorraine, who conveniently happened to be Henry’s cousin—as Pope Leo IX. The new pope brought with him to Rome a phalanx of fellow-reformers, including Frederick of Lorraine (later Pope Stephen IX), Humbert of Moyenmoutier (soon named as cardinal of Silva Candida), and Hildebrand (later Pope Gregory VII). The result was an ecclesiastical hierarchy which began to question openly the secularization of the Church and, with that, the place the laity had within ecclesiastical affairs. Writers complained about the ignorance, boorishness, lust, and greed of the priests whom local landowners appointed to parish churches. The people complained about the quality of spiritual care they were receiving from those charged with the care of souls. Those in the religious order called for a return to the essence of monastic life prescribed by St. Benedict. The Burgundian monastery of Cluny (founded in 909), for example, was prominent among the reformed religious communities and soon attracted others to the cause. Calls for reform and the restoration of a perceived long-lost past when the Church was pure(r) were in the air, and those calls impacted the legal landscape. The clergy were at the heart of these calls for reform as they were ordained to rule the church.2 From the pontificates of Leo IX (1049–1054) through Calixtus II (1119–1124) a key focus of papal and conciliar policy was to eliminate lay inference. In order to secure freedom from lay control, which was their ultimate objective, two chief vices of contemporary ecclesiastical life had to be eradicated: simony and nicolaitism. Simony was so-called from Simon Magus, who tried to bribe St. Peter to give him the power to confer the Holy Spirit through the laying on of hands (Acts 8:9–24). In the language of the reformers, simony referred to: the giving of money or goods in exchange for an office; the fulfilling of an obligation in exchange for an office; and finally, the fulfilling of a future promise in exchange for an office. Antagonism between the forces of reform seeking to ensure the integrity of the ecclesiastical office and those whose practices and behaviors the reformers sought to change resulted in the long and acrimonious struggle, often called the Investiture Controversy. In short, the Investiture Controversy centered on, but was not limited to, the question of whether the pope or the secular ruler controlled appointments of church officials and invested the bishop or abbot with his secular and spiritual authority. Without question, one ceremony serving two functions was convenient: the secular ruler invested the prelate with lands, to which he was beholden to the ruler, and with his ecclesiastical office. However, the 1 K. G. Cushing, Reform and the Papacy in the Eleventh Century: Spirituality and Social Change (Manchester, 2005) provides an excellent analysis of the interconnected nature of the issues spurring the reform movement. 2  For a discussion of what reform meant to the popes of this period, see J. Yezdi Malegam, “ProPapacy Polemic and the Purity of the Church: The Gregorian Reform,” in A Companion to the Medieval Papacy: Growth of an Ideology and Institution, eds. K. Sisson and A. A. Larson (Leiden, 2016), 37–65.

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one ceremony presided over by the secular ruler also reduced the authority of the papacy as there was no real role for the pope to play, and augmented the authority of the monarchy as the king appointed and installed the prelate. While the Investiture Controversy was not the sole reason for efforts to reform the church, it did play an important role. The Investiture Controversy would involve five popes (Nicholas II, Gregory VII, Urban II, Paschal II, and Calixtus II) and two Holy Roman emperors (Henry IV and Henry V), and take about sixty years to resolve. To be sure, there were more than a few notable high, and low, points during this soap opera. At the 1059 Synod of the Lateran in Rome, Pope Nicholas II issued a decree on papal elections which gave the College of Cardinals the sole right of electing popes and banned the practice of lay investiture, that is, laymen giving bishops the symbols of their spiritual offices. Emperor Henry IV’s refusal both to abide by this papal policy and to send Archbishop Hermann of Bremen to Rome for judgment resulted in his excommunication by Pope Gregory VII, though the pope would later reconcile him at Canossa in 1077. At the Council of Clermont in 1095, Pope Urban II would again condemn the abuses of simony and lay investiture, forbidding bishops to do homage to rulers. In 1111, Pope Paschal II proposed a solution to the Investiture Controversy which involved bishops returning to kings all regalia (royal lands, rights, powers, and privileges) and be content with the lands given to their churches by the pious. This would have removed bishops from royal administration completely. Paschal II’s cardinals, the German bishops, and Henry V vehemently rejected this proposal. After Paschal II refused to crown Henry V emperor, Henry took the pope captive, which lead to the Privilege of Mammolo whereby the imprisoned pope surrendered to Henry V on all the major issues: he granted the emperor the right of investiture before consecration of bishops, promised to anoint Henry emperor, and promised never to excommunicate Henry. The cardinals and bishops rejected the Privilege and Paschal, once freed from captivity, moved away from it. After the long, drawn-out dispute, the Investiture Controversy would finally come to a close in the first quarter of the twelfth century. While no record survives, the Concordat of London (1107) resolved the issue in England and France. Bishops and abbots were to be freely elected, receive the king’s consent, swear feudal oath to him and be put in possession of his bishopric, and then receive ordination to their office. It would also influence the resolution in the Holy Roman Empire, but that resolution would not come officially until 1122 with the Concordat of Worms. With that agreement, Emperor Henry V renounced imperial right to investiture with the ring and crosier, thus allowing for free canonical elections and consecration. Pope Calixtus II agreed to allow elections in presence of the king or his representatives for German episcopal and abbey elections, though the emperor could intervene in disputed elections. The emperor could also invest candidates before consecration with the regalia, using the scepter instead of the ring and crosier. Upon receiving the regalia, the prelates had to fulfill legal obligations (not defined) toward the ruler. Then the

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prelate would proceed to Rome for consecration to his ecclesiastical office by the pope.3 In what amounted to a debate over the authority and jurisdiction of the emperor versus that of the pope, each side justified their perceived right to invest prelates in different types of documents. While they may not always fit neatly into the categories of legal sources, they are important for understanding the legal climate of the time. The treatise Dictatus papae (1075), found in the register of Pope Gregory VII, most clearly articulated the papacy’s position.4 1 . 2. 3. 4.

That the Roman church was founded by God alone. That the Roman pontiff alone can with right be called universal. That he alone can depose or reinstate bishops. That, in a council his legate, even if a lower grade, is above all bishops, and can pass sentence of deposition against them. 5. That the pope may depose the absent. 6. That, among other things, we ought not to remain in the same house with those excommunicated by him. 7. That for him alone is it lawful, according to the needs of the time, to make new laws, to assemble together new congregations, to make an abbey of a canonry; and, on the other hand, to divide a rich bishopric and unite the poor ones. 8. That he alone may use the imperial insignia. 9. That of the pope alone all princes shall kiss the feet. 10. That his name alone shall be spoken in the churches. 11. That this is the only name in the world. 12. That it may be permitted to him to depose emperors. 13. That he may be permitted to transfer bishops if need be. 14. That he has power to ordain a clerk of any church he may wish. 15. That he who is ordained by him may preside over another church, but may not hold a subordinate position; and that such a one may not receive a higher grade from any bishop. 16. That no synod shall be called a general one without his order. 17. That no chapter and no book shall be considered canonical without his authority. 18. That a sentence passed by him may be retracted by no one; and that he himself, alone of all, may retract it. 19. That he himself may be judged by no one. 20. That no one shall dare to condemn one who appeals to the apostolic chair. 21. That to the latter should be referred the more important cases of every church. 22. That the Roman church has never erred; nor will it err to all eternity, the Scripture bearing witness. 3  Emperor Henry V, Constitutiones, Concordatum Wormatiense (MGH LL 2, pp. 75–76). 4  Das Register Gregors. VII Liber 2, 55a (MGH Epp. sel. 2.1, pp. 202–208); E. F. Henderson, trans., Select Historical Documents of the Middle Ages (London, 1910), 366–367.

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23. That the Roman pontiff, if he has been canonically ordained, is undoubtedly made a saint by the merits of St. Peter; St. Ennodius, bishop of Pavia, bearing witness, and many holy fathers agreeing with him. As is contained in the decrees of St. Symmachus the pope. 24. That, by his command and consent, it may be lawful for subordinates to bring accusations. 25. That he may depose and reinstate bishops without assembling a synod. 26. That he who is not at peace with the Roman church shall not be considered catholic. 27. That he may absolve subjects from their fealty to wicked men. Dictatus papae modified the ecclesiastical order by outlining the prerogatives of the church in Rome and obedience to its bishop. The pope subordinated bishops to his authority; he possessed the ability to transfer them from one diocese to another or to restructure dioceses as he saw fit. The pope was above a council, possessing the ability to convene it and the right to ratify its decisions. He possessed jurisdiction in major cases and could release others from their oaths of loyalty through excommunication of those to whom they were bound. The pope was above judgment.5 Because of Dictatus papae’s inclusion in the register of Gregory VII’s letters, it was long thought that he authored the text. However, this view has since been revised. Peter Damian has been suggested as a possible author. So too has Deusdedit, who served as the cardinal-priest of S. Pietro in Vincoli, based on the close parallels to his canonical collection. In the preface to his collection, Deusdedit drew from traditional sources in support of papal jurisdictional authority. Councils were the first crutch upon which he leaned. He pointed to the 318 fathers who sat together in the Council of Nicaea where it was stated that councils ought not to be celebrated nor bishops condemned without the decision of the Roman pontiff, and all major cases should be referred to his judgment. Deusdedit was sure to note, in addition to the number of bishops in attendance, that this decision was reported to Pope Felix by Athanasius, bishop of Alexandria. He drew upon the Council of Sardica, which hosted 300 bishops, where it was deemed proper that bishops from every single province report to the head, that is, to the see of blessed Peter. He also leaned on writings of the Church Fathers. The eminent martyr Cyprian, primate of the African province, acknowledged his humble obedience to the statutes of the priests and deacons governing the Roman church. Deusdedit then seemed to take a subtle jab at the emperor by noting that it was impious for anyone to boast about being a 5  B. Ferme and G. Falchi, Introduzione allo studio delle fonti dell’Utrumque Iuris (Vatican City, 2006), 211–213. See also K. Grant, “A Divine Mandate: Pope Gregory VII’s Defense of Papal Authority,” in Authorities in the Middle Ages: Influence, Legitimacy, and Power in Medieval Society, eds. S. Kangas, M. Korpiola, and T. Ainonen (Berlin, 2013), 39–54; H. Fuhrmann, “Papst Gregor VII. und das Kirchenrecht: Zum Problem des Dictatus Papae,” in La Riforma Gregoriana e l’Europa, I: Congresso Internazionale, Salerno, 20–25 maggio 1985. Relazioni, ed. A. M. Stickler (Roma, 1989), 123–149; H. Mordek, “‘Dictatus papae’ e ‘proprie auctoritates apostolice sedis’; Intorno all’idea del primato pontificio di Gregorio VII,” Rivista di storia della Chiesa in Italia 28, no. 1 (1974): 1–22.

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Christian but not assent to the admonitions of the Roman church. Desiring to disclose to the ignorant the privilege of the authority of Peter, Paul, their successors, and thus of the Roman church, he organized this work to begin with the privilege of the authority of the Roman church in the first book. The second book treats the clergy and Book 3 treats the possessions of the church. Book 4 addresses the liberty of the church, both of its clergy and its property, a critical topic for consideration because the secular world attempts to subjugate the church of God to its will.6 Henry IV’s position is best summarized in a letter to Hildebrand, Gregory VII’s given name prior to assuming the papacy. He criticized that archbishops, bishops, and priests have been trodden under foot like slaves, ignorant of what their master was doing, and that he won favor by crushing them. Henry even noted the words of the Church Father, Gregory VII’s namesake, Gregory I, to describe the current pope: “The pride of him who is in power increases the more, the greater the number of those subject to him; and he thinks that he himself can do more than all.” His benediction referring to the pope by his given name, followed by the descriptor “not pope but false monk,” foreshadowed Henry’s attack on the validity of Gregory’s election to the apostolic see. He accused Gregory of obtaining his position by money, favor, and the sword. Essentially, he accused Gregory of being a simoniac himself. Though he sat on the “throne of peace”, he caused disruption: arming subjects against those in authority over them; teaching that [certain] bishops ought to be despised, and usurping for laymen the ministry over their priests and allowing them to depose or condemn those whom they themselves had received as teachers.7 Henry then turned to Gregory’s attack on his royal authority. He pointed out that his royal power was conferred upon him by God. How could he be unworthy to rule when God anointed him to do so? He questioned Gregory’s audacity at threatening to divest him of his throne, as if he had received his kingdom from the pope rather than from God, as if the empire were in the pope’s hands and not in God’s. Henry pointed to the tradition of the Holy Fathers to support his stance: he was not to be deposed for any crime unless he strayed from the faith, and then he was subject to the judgment of God alone. He presented Julian the Apostate, who was handed over to God alone to be judged and deposed, as an example. He then presented the words of the apostles. Peter instructed follows to “[f]ear God, honor the king.” Gregory’s actions have demonstrated that he neither feared God and nor did he honor the king. Paul himself said: “If any one, either I or an angel from Heaven, should preach a gospel other than that which has been preached to you, he shall be damned.” Henry’s conclusion, based on the transgressions outlined, was that 6  “Preface to the Book of Canons of Cardinal Deusdedit (1086): Dedicatory Letter to Pope Victor III and the Clergy of the Roman Church,” in Prefaces to Canon Law Books in Latin Christianity: Selected Translations, 500–1317, 2nd edn., trans. R. Somerville and B. Brasington (Washington, DC, 2020), 104–110, here 104–106; Die Kanonessammlung des Kardinals Deusdedit, ed. V. Wolf von Glanvell (Aalen, rpt. 1967). 7  Emperor Henry IV, Constitutiones, Regis litterae ad papam (MGH LL 2, p. 47); Henderson, trans., Select Historical Documents of the Middle Ages, 372–373.

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Gregory “[d]escend, descend, to be damned throughout the ages.” Gregory must resign the position he usurped so another could be elected.8 Supporters from both the imperial and papal camps compiled polemical works in defense of their respective candidate. Collectively, these letters and treatises are known as the Libelli de lite and they reflected a renewed interest in rhetoric that was emerging in the eleventh century.9 Royal letters compiled between 1073 and 1082, for instance, were addressed to clerical audiences, to be sure, but not all letters were. Some letters suggest they were for lay audiences to garner their support. (Whether this is true or not is another question.) The Libelli de lite also reveal a use of canon law, especially the works of Pseudo-Isidore, Burchard’s Decretum, conciliar texts, and writings of the Church Fathers. Such is the case from the earliest works in defense of the papacy, such as Peter Damian’s Liber gratissimus (“Most Favored Book”) to Archbishop Henry of Ravenna (1052) and Humbert of Silva-Candida’s Libri tres adversus simoniacos (“Three Books against Simoniacs”, ca. 1058). The pro-papal treatise Liber de unitate ecclesiae conservanda (“Book on Preserving the Unity of the Church”) drew on legal sources—such as the Pseudo-Isidorian Decretals, the Collectio Dionysiana, the Collectio Quesnelliana—as well as works of secular authors—such as Cicero, Lucan, Terence, Sallust, Juvenal, and Quintilian—in order to defend Rome’s authority. The Libelli de lite collectively engage in the debate of who could make law and thus what legal precepts were authoritative. For example, Bernold of Constance, while conceding upon papal judgments their respective importance, noted that they were not necessarily binding. This was especially the case when the judgment countered positions taken by the Church Fathers. In order to debate the law, authors had to engage with the law. Royal letters reflect Pope Gelasius’s two sword theory and notions of the “just king” (rex iustus), among other themes. The German realm was very active early on in polemical writing. Writers such as Wenrich of Trier, Gebhard of Salzburg, and Manegold of Lautenbach focused on the use of excommunication as a weapon, the legality of being able to be released from an oath, and conceptions of “right order” by using the rhetorical device of drawing on “common knowledge” as an effective tool for reaching a wider audience through combatting the intellectual positions of the opposite party. The treatise Defensio Heinrici IV regis (“Defense of King Henry IV”) sought to construct an autonomous secular legal sphere, defining the legitimate function of the secular laws and their implication for the Church. Giving reason an active force in relation to both religious and secular law, the author grounded his argument in a conception of rationality that ensured “right order” as envisioned by the emperor. More legalistic was the work of Peter Crassus, who drew on both canon law and Roman law in order 8 Ibid. 9  For what follows, see K. G. Cushing, “Law and Disputation in Eleventh-Century Libelli de lite,” in The Use of Canon Law in Ecclesiastical Administration, 1000–1234, eds. M. H. Eichbauer and D. Summerlin (Leiden, 2018), 185–194; L. Melve, Inventing the Public Sphere: The Public Debate during the Investiture Contest (c. 1030–1122) (Leiden, 2007); Cushing, Reform and the Papacy in the Eleventh Century, 111–138.

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to defend royal power. The treatise De investitura episcoporum (“Concerning the Investiture of Bishops”, 1109) put forth the divine mandate of the Salian tradition with a clear conceptualization of the election of the emperor. It defined relationship between the ruler and the ruled, and liberated the emperor from papal influence. The Libelli de lite presented positions related to episcopalism (the rights of bishops), papal infallibility, notions of theocratic and hierocratic power, questions of resistance, and individualism. Regulating access to the episcopate as a way to combat simony riddle the canonical tradition. Papal letters and conciliar canons decreed that a prospective bishop should be steeped in ecclesiastical discipline. Thus, to enter the episcopate he not only must have progressed through orders (lector, deacon, priest) where he learned ecclesiastical discipline, he also must have been elected and consecrated. In other words, one could not enter the episcopate directly from the laity and he must have been properly trained so he could teach. Irrespective of whether the candidate comes from among the wealthy, from the scholastics at court, or from administration, he must have first been a lector and must have performed in the office of deacon and priest. A bishop should be elected from among the priests of the city, though a candidate from another city could be considered if there were no available or viable options. The role the laity had played by inserting themselves into the election of prelates was, in theory, being curbed as it came into conflict with the papacy’s idea of what constituted the proper ordering of powers.10 The second chief vice concerning church reformers, clerical marriages and fornication, was referred to as nicolaitism. The term derived from the Nicolaitans, a heretical sect accused of sexual promiscuity referred to in the book of Revelation (2:6, 2:14–15). The eleventh-century reformers, in turn, used the term Nicolaites to refer indiscriminately to married clergymen, clerics who kept concubines or frequented prostitutes, and, in general, to all monks, priests, or other members of the clergy who were in any way sexually active. A resurgence in calls for clerical celibacy can be seen as early as the 1022 synod of Pavia held jointly by Pope Benedict VII and Emperor Henry II. There, all women were excluded from the houses of priests, and married clergy, including bishops, were deposed. The children and possibly the wives of clerics were to become serfs of the cleric’s manor. Behind such legislation lay a concern regarding the loss of church property to the families of priests. At a Roman synod in 1049, Pope Leo IX forbade those in major orders to have sexual relations with their wives; a year later, he commanded that all clergy and laity to abstain from communion with priests and deacons who were guilty of fornication.11 Pope Gregory VII would continue the efforts to enforce clerical 10 For a modern comprehensive discussion of elections, see A. Thier, Hierarchie und Autonomie: Regelungstraditionen der Bischofsbestellung in der Geschichte des kirchlichen Wahlrechts bis 1140 (Frankfurt am Main, 2011); and K. Pennington, “The Golden Age of Episcopal Elections 1100– 1300,” BMCL 35 (2018): 243–253. 11 U.-R. Blumenthal, “Pope Gregory VII and the Prohibition of Nicolaitism,” in Medieval Purity and Piety: Essays on Medieval Clerical Celibacy and Religious Reform, ed. M. Frassetto (New YorkLondon, 1998), 239–267.

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celibacy begun by Leo IX. Those efforts, however, revealed that the clerical rank and file were not necessarily on board. This was a radical change in the structure and operations of Western society as it would require priests to forsake their wives, abandon their children, and embrace a life of sexual renunciation that few had probably contemplated when they were ordained. Gregory VII would face considerable resistance from the German episcopate and it would take a few years into his pontificate before he was able to broach the matter in France and in England.12 The canonical tradition linked clerical celibacy with requirements of those in the major and minor orders. Those in the major orders—subdeacon, deacon, priest, and bishop—were forbidden to marry and were to remain celibate. Pope Alexander II, for example, had mandated celibacy for all clerics above the rank of subdeacon. The First Lateran Council (1123), convened by Pope Calixtus II, held that marriages contracted by priests, deacons, subdeacons, and monks were void and the persons involved ought to undergo penance. It not only reinforced the long-held view that priests were forbidden to marry, it also reconsidered the legal status of those marriages that had been contracted. While such unions had traditionally been treated as binding even if illicit, the council decreed that the marriages of those in the major orders no longer possessed legal, even if illicit, status. Those in the major orders who contracted a marriage illicitly should be separated from their wife and their marriage voided. Nothing was stated regarding those in the minor orders, who presumably were permitted to marry. Should someone in the minor orders contract a marriage and then wish to progress into the major orders, he had to make a profession of continence to which his wife had agreed. The marriage remained, but it was a chaste spiritual marriage.13 Thus, a man who was already married at the point of ordination and did not put away his wife remained married, though he must live with his wife as though she were his sister. Ordination did not dissolve a marriage and a husband could not be ordained without his wife’s consent. Though celibacy was preferred, one could marry in the minor orders, but that marriage must take place before entering the subdeaconate. The norms found in the canonical tradition, particularly papal letters and conciliar canons, had set clear guidelines for the qualities and characteristics that someone seeking ordination should possess in order to prevent the unworthy from acquiring an ecclesiastical position. These norms provided fodder for reformers aimed to raise the standards among the clergy. Prelates had railed against the illiteracy of the parish priest who scarcely possessed the rudiments of learning which would enable him to conduct the services of the church.14 As such, those in the major orders must not be ignorant of letters. Priests (sacerdotes) should know the Scriptures, the canons, and works of preaching and doctrine. They should know the works of pagans and 12 H. E. J. Cowdrey, “Pope Gregory VII and the Chastity of the Clergy,” in Medieval Purity and Piety, ed. Frassetto, 269–302. 13  First Lateran Council, c.7, c.21 (COGD II/1, 90, 94); D. Elliot, Spiritual Marriage: Sexual Abstinence in Medieval Wedlock (Princeton, 1995), 51–93. 14 R. W. Collins, “The Parish Priest and His Flock as Depicted by the Councils of the Twelfth and Thirteenth Centuries,” Journal of Religion 10, no. 3 (1930): 313–332.

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gentiles, but that knowledge should serve a purpose, not simply for indulging in delights, and they should not spread that knowledge either in writing or in speech as they will lead others to ruin. Secular works of poets and fictions were useful for learning grammar. Grammar was important in order to understand the Scriptures. Dialectic was important for reasoning, speaking rightly, and discerning what was true and false. Whoever entered the major orders should be of free as opposed to servile status, even if that lord was a bishop or abbot. He should be physically fit, not having voluntarily mutilated himself by becoming a eunuch because he could not remain chaste, and he should neither be handicapped nor physically unable to perform his pastoral duties. He should not play dice and drink, be a flatterer, be quarrelsome or litigious, a usurer, or seditious. Looking ahead, conciliar canons of the twelfth, and even into the thirteenth, century suggest that one of the most common failings of the clergy was that they ran and frequented taverns and engaged in playing with dice and gambling.15 The second half of the eleventh century saw the appearance of numerous compilations of canon law designed to further the objectives of church reform. Several of these—such as the Collectio canonum completed about 1083 by Bishop Anselm of Lucca (d. 1086), or the collection that Cardinal Deusdedit (d. 1100) assembled about 1087—were the work of identifiable members of the reform party at the papal curia. The ambitious collection of the French bishop, Ivo of Chartres (d. 1115), entitled the Decretum comprised 3,760 canons divided into 17 books. This work was too bulky and complex, however, to serve as a convenient reference work. The Panormia, a more compact canonical collection comprising slightly more than a thousand canons and arranged in eight books, was produced from this collection. It achieved far greater popular success than its more cumbersome companion, though it is unlikely that Ivo compiled it. The Panormia was widely disseminated throughout Western Christendom and later canonists drew upon it freely for subsequent collections.16 Once firmly attributed to Ivo as well, the Tripartita (“Collection in Three Parts”) is, like the Panormia, seen as being compiled in the region of Chartres but the ascription to him is rather shaky. While calls for reform and spiritual renewal came from a swathe of stakeholders, a by-product oftentimes emphasized is the impacts on the pope’s authority. However, not all reformers conceived of papal primacy in the same way. Take, as one example, views on the ability of the Church to wage war. In Book 13 of his Collectio canonum, Anselm of Lucca sought not only to provide canonical justification for war, but also for the Church to conduct that war. God had ordained 15 Ibid., 313–319. Examples of twelfth-century councils are: the Council of Gran in 1114, the Council of London in 1138, the Council of Tours in 1163, and the Third Lateran Council in 1179. Examples of thirteenth-century councils are: the Fourth Lateran Council in 1215, the Council of Worcester in 1240, the Council of Le Mans and Liege both in 1247, Council of Valencia in 1261, and the Council of Salzburg in 1274. 16 C. Rolker, Canon Law and the Letters of Ivo of Chartres (Cambridge, 2010) argues, based on an analysis of canonical ideas contained in Ivo of Chartres’ letters, that he most likely did not compile the Panormia.

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the Church to be the executor of His will. It was the Church’s responsibility to placate God by correcting severely the evils of wrongdoers and bring them back into the fold, otherwise be regarded as a conspirator to the evils.17 A just war must be from love and thus conducted with benevolence.18 Anselm made no mention of the secular realm’s obligation to assist the Church. The Church, rather, was able to wage a war under its own authority. By using the writings of St. Augustine and Pope Gregory I, Anselm aimed to support ecclesiastical rights to direct the ius gladii and vis armata against heretics, excommunicates, enemies of the peace, and infidels.19 He essentially wanted to justify papal-led coercion against all enemies of the Church. In Book 10 of his Decretum, Ivo of Chartres purposed a slightly different stance. He argued for the ecclesiastical suppression of evil and the coercion of heretics. The Church, however, may not undertake this suppression on its own; it may only encourage their suppression. While wars for the faith were pleasing to God, He authorized only the secular, not the ecclesiastical, realm to kill. Kings could punish evildoers because they were the ministers of God.20 Ivo of Chartres seemed to take a more moderate stance toward a just war and the Church’s involvement in it; the Church may encourage a war, but it may not be involved in it. Thus, there were two different views on papal authority with respects to warfare. On the one hand was that of Anselm of Lucca, Gregory VII’s staunchest supporter, who thought that not only could the Church wage war but also could lead an army. Leaving out the secular authority’s obligation to assist the Church, Anselm argued that the Church was well within its right to defend itself by force. On the other hand was the viewpoint of Ivo of Chartres, who thought that the Church could call a war but not lead an army. The Church may call for the suppression of evil and the coercion of heretics, but it may not undertake this suppression on its own; rather, it had to call upon secular authorities who were responsible for punishing wrongdoings. The Diversorum partum sententiae (“Collection in Seventy-Four Titles”; 74T) is another collection most often thought of a work specific to the Gregorian Reform. Its emphasis on papal primacy led scholars to characterize it as the first collection of the movement. The Rome-driven emphasis on simony, clerical celibacy, and lay investiture seemed to undercut diocesan and parish concerns with improving

17 K. Cushing, Papacy and Law in the Gregorian Revolution: The Canonistic Work of Anselm of Lucca (New York, 1998), Appendix II Abridged Edition of Books 12 and 13 of the Collectio canonum from BAV, lat. 1363, 13.12–29. 18 Ibid., 13.2–3, 9–10, 12, 21. In c.21, Anselm parallels persecutio (persecution) with misercordia (mercy) 19  F. Russell, The Just War in the Middle Ages (Cambridge, 1975), 37–38. 20 ID 10.73–74, 80; Pan. 8.2, 26; J. Brundage, “St. Anslem, Ivo of Chartres and the Ideology of the First Crusade,” rpt. in The Crusades, Holy War, and Canon Law (Aldershot, 1991), 181–182.

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spirituality.21 The 74T, now thought to have been compiled at Reims, however underscores the desire of a compiler—and thus the user—to protect monastic liberties. The collection, which drew heavily upon the Pseudo-Isidorian Decretales, is, yes, concerned principally with the primary of the Roman church, along with criminal and other legal procedures affecting the clergy, the quality of a candidate put forth for clerical office and whether simony was involved, and the powers of ministers in the church.22 It is this emphasis on papal primacy, an emphasis characteristic of Italian collections but not of collections of northern France, that led scholars to see the 74T as a collection with a monastic agenda, one using papal primacy to formulate an argument in support of the freedom of a monastery from outside interference. The choice of texts in titles two and three show a clear concern with the privileges of religious communities, thus linking the theme of papal authority, found in the first title, with monastic rights. The compiler either purposefully chose texts that favored monastic houses or adapted Pseudo-Isidorian texts to favor monasteries. The compiler thus intended to circumscribe the authority of bishops. For example, the compiler altered the Pseudo-Gregory I canon “Quam sit necessarium” (JE †1366) so that the text would authorize abbots—not bishops—to solve internal conflicts and conflicts over monastic property. The alterations to Pseudo-Isidorian texts and the compilation date of the late eleventh century corresponds to the trend toward monastic liberties and exemptions from episcopal control. The 74T became a popular collection in monastic houses. Monastic libraries either copied or owned a large portion of the existing manuscripts, such as the copy in cartulary at SaintDenis. No copy can be shown to have come from an episcopal library.23 During a period active in the proliferation of law, compilers and copiers continued to adapt texts to suit the needs of the users. The Collectio canonum offers a final example of this. William of Champeaux possibly inspired the collection and it may have been copied at the abbey of Saint-Victor around 1125; if not, it was possessed by the abbey’s library by 1200.24 The collection drew from the books of Burchard 21 Because of the emphasis on papal primacy, Gilchrist attributed an Italian origin to the collection; see Diversorum patrum sententie sive Collectio in LXXIV titulos digesta, ed. J. T. Gilchrist (Vatican City, 1973), xxii; J. T. Gilchrist, trans., The Collection in Seventy-Four Titles: A Canon Law Manual of the Gregorian Reform (Toronto, 1980); 2. J. Gilchrist, “Changing the Structure of a Canonical Collection: The Collection in Seventy-Four Titles, Four Books, and the PseudoIsidorian Decretals,” in Iure Veritas: Studies in Canon Law in Memory of Schafer Williams, eds. S. B. Bowman and B. E. Cody (Cincinnati, 1991), 93–117, here 93–94. For additional historiography on its Italian origin, see C. Rolker, “The Collection in Seventy-Four Titles: A Monastic Canon Law Collection from Eleventh-Century France,” in Readers, Texts and Compilers in the Earlier Middle Ages: Studies in Medieval Canon Law in Honour of Linda Fowler-Magerl, eds. M. Brett and K. G. Cushing (Aldershot, 2009), 59–72, here 60–62. 22 Gilchrist, trans., The Collection in Seventy-Four Titles, 17, 23–26; Rolker, “The Collection in Seventy-Four Titles,” 60. 23 L. Fowler-Magerl, Clavis Canonum Clavis Canonum: Selected Canon Law Collections Before 1140 (Hannover, 2005), 116; Rolker, “The Collection in Seventy-Four Titles,” 65–70. 24 U.-R. Blumenthal, “The Collection of S. Victor (=V), Paris: Liturgy, Canon Law, and Polemical Literature,” in Ritual, Text and Law: Studies in Medieval Canon Law and Liturgy Presented to Roger E. Reynolds, eds. K. G. Cushing and R. F. Gyug (Aldershot, 2004), 293–307, here 294; Paris, Bibliothèque de l’Arsenal, lat. 721, fol. 165r–250v.

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of Worm’s Decretum, but omitted those books that did not suit the compiler’s needs: Books 4–6 (sacraments, homicide), Book 8 (men and women), Book 10 (divination and magic), Books 13–14 (fasting and drunkenness), Book 18 (visitation and last rights), and Book 20 (penance). The compiler then supplemented the collection with texts drawn from Pseudo-Isidorian Decretales; from a version of the 74T with an appendix compiled at the abbey of Saint-Blasien in the south of Hirasu (known as the Swabian Appendix); from Martin of Braga’s “Ex decretis Orientalium Patrum”; and possibly from the Codex Udalrici, a pro-German collection of poems, official records, and documents dedicated Bishop Gebhard of Würzburg in 1125. The Collectio canonum begins with the structure of the Church: primacy of Rome, elections of bishops and accusations that can be made against them, and clerical behavior and discipline. It then moves to churches and their goods, excommunication, oaths and perjury, the laity, accusations and procedure, fornication and incest, and marriage. In addition to the liturgical and theological material seamlessly woven into canonical texts, the Collectio canonum showed an interest in affairs between regnum and sacerdotium taking place in Germany between 1060 and 1125.25 The proliferation of law also went hand in hand with the recognized need for more effective courts and enforcement mechanisms as tools for good diocesan administration. In this endeavor Ivo of Chartres proved indispensable. His Prologue addressed the importance of caritas (charity) and misericordia (mercy), both of which the judge was to keep at the forefront of his mind as he used dispensations as a way to bring about order, harmony, and enact legal change.26 Ivo saw dispensation as a medicine to heal, and thus he was concerned with the nature and limits of dispensation, a right that that he felt belonged to the episcopacy. His Prologue was on how the law applied to the Church and, to that end, on the systemization and defining of legal norms in order to balance rigor and mercy. Canonists found Ivo’s Prologue immensely valuable as a guide for resolving the discrepancies that they often encountered between contradictory ecclesiastical laws. Faced with such conflicts Ivo advised users to examine the context in which the canons had been adopted. Such an examination might reveal that the apparently conflicting canons had addressed different problems or separate aspects of a single problem. In that case the users might be able to resolve apparent discrepancies by showing that the canons did not in fact conflict at all. Ivo also cautioned users to test the authenticity of their sources in order to eliminate forged or interpolated texts that might conflict with

25 P. Fournier, “Collections Issues du Décret de Burchard,” in Mélanges Paul Fabre: Études d’histoire du Moyen Age (Paris, 1902), 199–203; P. Fournier and G. Le Bras, Histoire des Collections Canonique en Occident: Depuis les Fausses Décrétales jusqu’au Décret de Gratien, Vol. 2: De la réforme grégorienne au Décret de Gratien (Paris, 1932), 261–265; Fowler-Magerl, Clavis Canonum, 237–238; L. Kéry, Canonical Collections in the Early Middle Ages, ca. 400–1140: A Bibliographic Guide to the Manuscripts and Literature (Washington, DC, 1999), 288; Blumenthal, “The Collection of St. Victor (=V), Paris,” 293–308. 26 “Prologue of Ivo of Chartres,” in Prefaces to Canon Law Books in Latin Christianity, 2nd edn., trans. Somerville and Brasington, 113–132; B. Brasington, Ways of Mercy: The Prologue of Ivo of Chartres, Edition and Analysis (Münster, 2004), 34–36, 40.

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authentic canonical rules. In addition, Ivo declared that when users interpreted the law, they must take account of the hierarchy of jurisdictions within the church. The basic principle here was that canons that originated with higher authorities took precedence over canons adopted by lesser authorities. Thus, if the canons of a general council conflicted with the canons of a provincial council or a diocesan synod, the general council’s enactments overrode those of the lesser body. Further, Ivo warned users that they must be alert to the distinctions between variable laws and invariable laws and between general and particular canons. Variable laws might be subject to dispensation by an appropriate authority, while invariable laws were not. The application of particular canons was limited to specific regions or situations or classes of persons, whereas general laws applied across the board to all Christians. The rules he set forth for the interpretation of canonical texts became central to the work of later canonists, and especially to the work of Gratian (whom we meet in the next chapter). The Collectio decem partium (“Collection in Ten Parts”)—a revised, updated, and enlarged version of the Panormia, possibly compiled by Walter of Thérouanne between 1125 and 1130—reflects the importance placed on judgment and correction as essential elements of a diocesan administrator’s duties.27 This collection specified particular titles which the corresponding book of the Panormia did not specify. Part 5 included topics concerning the selection of judges, the condemning of bishops and clerics, and sentences. Part 6 specified a section on the power of binding and loosing. The collection made use of the Roman law collections available at the time, drawing most heavily from the Epitome of Julian and the Benedictus Levita followed by portions of Emperor Justinian’s sixth-century Corpus iuris civilis (Institutes, Digest, and Codex) which was just starting to be rediscovered,28 and from the Sentences of Paul via the Breviary of Alaric; a few passages came from the Theodosian Code. Walter relied on Roman law in Part 6 to elucidate the elements comprising the legal process—first and foremost witnesses and testimony, followed by accusations, the judge, delays and sentences, and legal status—and key areas where judgment would have to be passed—wills and inheritance, and, in particular, economic issues. He also used Roman law in Part 7 to lay bare legitimate betrothals and marriage, second marriages, the legitimacy and governance of children, prohibitions on concubinage and prostitution, and, in one text, the celibacy of bishops. The incorporation of Roman law was instrumental to the changing social and economic climate. As the Church often adjudicated legal cases, it needed 27 “Preface to the Collection in Ten Parts (Perhaps Compiled shortly after 1123 by Archdeacon Walter of Thérouanne): Dedicatory Letter to an Unknown Patron, Perhaps to Bishop John of Thérouanne,” in Prefaces to Canon Law Books in Latin Christianity, 2nd edn., trans. Somerville and Brasington, 132–137; M. H. Eichbauer, “A Desire for the Latest and the Greatest: Papal Decretals and Roman Law in the Collectio decem paritum,” BMCL 36 (2019): 195–208. 28 D. Walters, “From Benedict to Gratian: The Code in Medieval Ecclesiastical Authors,” in The Theodosian: Studies in the Imperial Law of Late Antiquity, 2nd edn., eds. J. Harries and I. Wood (London, 2010), 200–216; W. P. Müller, “The Rediscovery of Justinian’s Digest in the Middle Ages,” BMCL 20 (1990): 1–29.

Canon Law amid the Eleventh-Century Reform Efforts  49

a more structured mechanism by which to do so. Legal theory was not an overt concern, but rather the focus lay on practicality. Walter or the compiler was careful to include texts that clearly outlined procedural matters: from accusations, to who could and could not testify and under what conditions testimony should not be accepted, to the duties of the judge. However, his inclusion of texts also shined light on the matters in which the Church might most frequently be involved in litigating: execution of wills and inheritance; loans and debts; all manner of property, including whether one could possess wild animals; marital and family law, with special attention being given to the rights of children to ensure their safety and care. Collections of the eleventh and early twelfth century should not be seen as a part of a papal agenda, but rather illustrate interest in issues germane to the reformers.29 The similarities between collections are a part of the social mindscape advocating certain standards of practice, courtesy, in large part, to the Via Francigena, which served as the main route from Canterbury to Rome beginning in the tenth century and likewise facilitated the dissemination of legal collections. Canonical collections, farragines (collections without a particular internal order), legal texts, and people steeped in legal learning easily travelled along this route which included, for example, Canterbury, Arras, Laon, Reims, and Pavia. In particular, the route between Châlons-sur-Marne (69th station) and Thérouanne (77th station) was of considerable significance for the development of canon law in northern Europe in the late eleventh and early twelfth centuries, with Reims as a central hub (70th station). Both monasteries and cathedrals played important roles at each station. For example, both the cathedral of Arras and the monastery of Saint-Vaast were important stations, as was the monastery of Saint-Bertin, located approximately 15 kilometers north-west of Thérouanne in Saint-Omer. Clerics accessed different libraries—be it cathedral or monastic—and copied legal texts of particular interest to them.30 The differences within this mindscape, however, demonstrate a negotiation of the material to suit a purpose shaped by the individual’s environment.31 A “standard” among collections would not exist because no “standard” environment existed. Since every compiler’s environment was different, each collection would be different in order to suit the needs of that environment. Thus, while there 29 C. Rolker, Canon Law and the Letters of Ivo of Chartres (Cambridge, 2013); K. Rennie, The Collectio Burdegalensis: A Study and Register of an Eleventh-Century Canon Law Collection (Toronto, 2013). 30  L . Fowler-Magerl, “The Collection and Transmission of Canon Law along the Northern Section of the Via Francigena in the Eleventh and Twelfth Centuries,” in Bishops, Texts and the Use of Canon Law Around 1100: Essays in Honour of Martin Brett, eds. B. C. Brasington and K. G. Cushing (Farnham-Burlington, 2008), 129–139; Rolker, Canon Law and the Letters of Ivo of Chartres, 70–71, 82. 31 E. Zerubavel, Social Mindscapes: An Invitation to Cognitive Sociology (Cambridge, 1997), 5–11, 17, 81–82, 87. Kathleen G. Cushing has noted that however much reform initiatives may have been promulgated as proscriptive or normative measures establishing uniformly binding and enforceable laws, in reality the measures were prescriptive, seeking an idealized vision of what the reformers aspired to achieve for the Church and Christian society. See Reform and the Papacy in the Eleventh Century, 31.

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might have been a European-wide “clerical culture” by the early twelfth century because of more standardized social mechanisms for exchange (e.g., more councils and a call for better education), compilers of legal codes adapted common culture as evident not in what topics they covered (as the collections all cover pretty much the same topics), but rather in the context in which the compilers addressed that topic (i.e., how it is covered).

4 GRATIAN AND THE DECRETISTS

The last few chapters, hopefully, have underscored that throughout the early medieval and reform periods, compilers constructed an array of legal collections, each adapted to suit the particular needs of its users. The collections highlighted represent but a few among those actually compiled; the number is far greater. As one might expect, such active production of law resulted in discrepancies among the collections and thus within the legal tradition. After all, no one authority was responsible for the production of law and the compilation of legal collections was a private affair; that is, not at the direction of a ruler for use in government but rather by individuals who had a need for a usable text. Discrepancies also arose with the recopying of collections as errors were introduced or texts were altered to suit the needs of the copyist. Throughout the centuries, discrepancies went unchecked and multiplied. As we saw at the end of the last chapter, at the turn of the twelfth century compilers of canonical collections in northern France were taking part in a renewed interest in Roman law. The compiler of the Collectio Britannica, for example, excavated Roman libraries and archives of the papal curia for the original texts. He was the first to cite the Digest of Justinian directly since Pope Gregory I had cited it in the seventh century. But what was this Roman law that had piqued the interest of so many? Justinian, Emperor of the Eastern Roman Empire (527–565), had recaptured many of the areas in the West previously lost.1 In addition to his campaign of reconquest, Justinian called for a reform of the Roman legal system. From these reforms came the Corpus iuris civilis (Body of Civil Law) which, in theory, reconciled all the contradicting laws and systematized the legal code in such a way to 1  Justinian’s general Belisarius had regained North Africa and southern Spain from the Vandals by 533 along with Sicily and Italy (including Rome) from the Ostrogoths and Lombards by 540 for the Eastern Roman Empire. DOI: 10.4324/9781003156734-5

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make it more comprehensible and usable. The Corpus iuris civilis comprised of four collections. The Institutes was a textbook that quickly summarized and served as a general introduction to the main principles of Roman law and procedure. It relied heavily on the earlier Institutes of Gaius. The Digest was drawn from the work of legal writers between the first and the fourth centuries A.D., though the bulk of it was drawn from the jurists of the classical period of Roman law (Julian, Papinian, Ulpian, and Paul). It is important to remember, however, that the Digest represents old law as filtered by Justinian’s commission who was ordered to eliminate everything that was obsolete or contradictory and to modify the rest to bring it up to date. It contained three parts: the Digest vetus (Books 1–24.2); the middle part known as the Infortatium (Books 24.3–38.17); and the last part known as the Digest novum (Books 39.1–50.17). The Codex comprised of all imperial law still in effect at the time of the work. It drew upon the Gregorian, Hermogenian, and Theodosian Codes, the post-Theodosian laws, and Justinian’s own laws. Finally, the Novellae were Justinian’s legislation after 535 and was the only part of the Corpus iuris civilis to be issued in Greek. While Justinian’s reconquest would have a short shelf life as his gains were lost again after his death, his legal compilation would continue to influence law for centuries—the German civil legal code at the turn of the twentieth century, the Bürgerliches Gesetzbuch (BGB) drew upon Roman law—though not without interruption. The Institutes remained known throughout the early medieval period. There is some evidence that the Digestum vetus and the Infortatium were used, as were Books 1–9 of the Codex.2 The permanent transition of political authority from the Roman Empire to the Germanic kingdoms, however, resulted in parts of the Corpus iuris civilis being “lost”. The Novellae, the Digestum novum, and Books 10–12 of the Codex (the Tres libri) were not rediscovered until the twelfth century.3 Irnerius has received much of the credit for reviving Roman law. He was a jurist working early in the twelfth century in northern Italy, arguing cases in the court of Countess Matilda of Tuscany (d. 1115) and then serving as a judge appointed by the Emperor Henry V. He simplified Latin translations of the Greek Novellae, adding some of his own words, and copied them in the margins of the Codex next to the imperial statutes that needed updating, clarification, or change. Later jurists referred to these reworked texts as “authenticae” and together they became known

2  S. Kuttner, “Harmony from Dissonance: An Interpretation of Medieval Canon Law,” in Wimmer Lecture X, 1956, St. Vincent College (Latrobe, 1960), 6. Jean Gaudemet, however, has argued that the Digest was not used, and the Codex was unknown in Gaul and quickly forgotten in Italy, though it initially had a little more success there because of the Sententiae Pauli. The Institutes were studied and glossed, but they too did not cross the Alps. See J. Gaudemet, “Le droit romain dans la pratique et chez les docteurs aux XIe et XIIe siècles,” Cahiers de civilization médiévale 8, no. 31–32 (1965): 365–380, here 366–367. 3  W. P. Müller, “The Rediscovery of Justinian’s Digest in the Middle Ages,” BMCL 20 (1990): 1–29; M. Bellomo, The Common Legal Past of Europe, 1000–1800, trans. L. G. Cochrane (Washington, DC, 1995), 61.

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FIGURE 4.1 

Folio from Justinian’s Codex with gloss, ca. 1300

© Flickr’s The Commons

as the Authenticum. Irnerius’s comments on Justinian’s legal code can be found in the Institutes, Digest, and Codex, along with his work on the Novellae.4 Finally, he 4  Manuscript copyists and binders normally combined the Tres libri (Books 10–12 of the Codex), the Institutes, and the Authenticum into a single tome, which they referred to simply as The Volume (Volumen).

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gained renown as a teacher of law at Bologna, reportedly having taught the famous “Four Doctors”—Martinus, Bulgarus, Hugo, and Jacobus de Porta Ravennate— who themselves taught Roman law there in the mid-twelfth century.5 By the middle of the twelfth century Bologna had become a center for legal studies. The city’s reputation began in the closing decades of the eleventh century, when Irnerius began teaching law. His renown as an original and inspiring teacher with a unique knowledge of Roman civil law had spread to Germany and beyond.6 Consequently, non-Italian students soon began to trickle across the Alps in the hope of acquiring a grasp of legal principles that would qualify them as men of practical learning and might lead to profitable careers in the service of powerful rulers, either in church or state. The teaching of law during Irnerius’s generation and in the generation of the “Four Doctors” was a private enterprise, without public subsidy, institutional framework, or governmental control. An individual could set up in business as a law teacher simply by buying or renting a house with a hall large enough for lectures, furnishing it with a desk and chair for the teacher, and perhaps adding a few benches for students. He announced the times and topics of the lectures he proposed to give, then waited for students to show up… and pay their fees. If he possessed a reputation for learning, had a circle of friends well situated to publicize his talents, and possessed the necessary amount of luck, he might succeed in attracting enough students to make a living.7 Law teachers and students gained a further measure of security and prestige around 1155, when Holy Roman Emperor, Frederick Barbarossa (d. 1190) published a decree, known as the Authentica “Habita”, that placed them under imperial protection and authorized judges to penalize with fourfold damages anyone who in the future dared to molest them. The emperor further bestowed exclusive jurisdiction over students upon their teachers and the bishop of the city in which they studied. This, in principle, essentially formed a “student guild” whereby students, as a collective, were exempted from the jurisdiction of local or municipal authorities and made them answerable for their misdeeds solely to academic and ecclesiastical authorities.8 While Irnerius was reviving the study of Roman law in Bologna, schools in northern France—the cathedral schools of Chartres, Reims, and Notre Dame in Paris; and the monastic schools of Bec, and Ste-Geneviève and St. Victor on the Left Bank of Paris—were likewise thriving for their focus on the artes liberales 5  A. Padovani, “Irnerius (c.1055 to c.1125),” in Law and the Christian Tradition in Italy: The Legacy of the Great Jurists, eds. O. Condorelli and R. Domingo (London-New York, 2020), 25–40; M. Ascheri, The Laws of Late Medieval Italy (1000–1500): Foundations for a European Legal System (Leiden, 2013), 21–28; F. Roversi-Monaco, “‘Il circolo’ giuridico di Matilde: Da Bonizone a Irnerio,” Bologna nel Medioevo, ed. O. Capitani (Bologna, 2007), 387–409; E. Cortese, Il diritto nella storia medievale. II: Il basso medioevo (Rome, 1995), 57–102. 6  K. Pennington, “Irnerius,” BMCL 36 (2019): 107–122; idem, “Odofredus and Irnerius,” RIDC 28 (2017): 11–27. 7  See, in particular, J. A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago, 2008), chs. 3, 5–6. 8  See Ascheri, The Laws of Late Medieval Italy (1000–1500), 109–134 for a survey of the rise of university teaching of law in the twelfth century.

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(liberal arts) and the development of the scholastic method. The liberal arts were considered a preparatory course for the higher faculties of theology, law, or medicine. The study of grammar, rhetoric, and dialectic was applied to the use of reason (ratio) to prove a point through debate (disputatio). At Paris, dialectic and grammar were highly regarded as they were necessary prerequisites to the study of the arts and theology. By way of examples, Lanfranc of Bec’s commentary on Paul was organized in a question-and-answer format between those asking the questions and Paul answering them. Lanfranc repeatedly interjected phrases such as “it is as if someone said (quasi quis diceret)” to help the reader reconstruct the debate between Paul and the other party.9 Glosses, such as those on Paul’s letter to the Galatians (4:1–3), would then explain the text; elaborate or restate various words and phrases; separate the arguments into the categories of per similitudinem (likeness), pro diversitate causarum (differences between parts), and totum pro parte (the whole for a part); and reorder the words to remove obscurities.10 Anselm of Bec would develop this technique further by analyzing differing positions in his Monologion. Anselm of Laon’s Cur Deus Homo (“Why God Became Man”) likewise employed the dialectical method of question and answer in the form of a conversation between himself and Boso. This dialogue interpreted texts and served as the foundation using reason to provide a rationed argument about the truths of Christianity in order to convert disbelievers and doubters. Peter Abelard’s Sic et Non (“Yes and No”) highlights the flowering of the scholastic method as he demonstrated the conflicting views on any given subject of religious importance.11 With his treatise Liber de misericordia et Justitia (“Book on Mercy and Justice”) Alger of Liège sought to counter what he deemed as the misinterpretation of canonical principles. Gathering precepts from a variety of sources, he distinguished between those focused on mercy and those focused on justice by paying particular attention to the diverse circumstances, persons, and times in which those precepts were issued.12 Similarly, as discussed in the previous   9 A. Novikoff, “Anselm, Dialogue, and the Rise of Scholastic Disputation,” Speculum 86, no. 2 (2011): 387–418. Novikoff has argued that the application of dialectical disputation to Scripture was not common prior to 1050. 10 C. Radding, “The Geography of Learning in Early Eleventh-Century Europe: Lanfranc of Bec and Berengar of Tours Revisited,” Bullettino dell’Istituto storico italiano per il Medio Evo e archvio muratoriano 98 (1992): 145–172, esp. 149–160. 11 For works on the schools of Paris in the first half of the twelfth century, see: C. Giraud, ed., A Companion to Twelfth-Century Schools (Leiden, 2020); I. P. Wei, Intellectual Culture in Medieval Paris: Theologians and the University c.1100–1330 (Cambridge, 2014); S. Young, Scholarly Community at the Early University of Paris: Theologians, Education and Society, 1215–1248 (Cambridge, 2014); A. Novikoff, The Medieval Culture of Disputation: Pedagogy, Practice, and Performance (Philadelphia, 2013); M. Clanchy and L. Smith, “Abelard’s Description of the School of Laon: What Might It Tell Us about Early Scholastic Teaching?,” Nottingham Medieval Studies 54 (2010): 1–34; P. W. Rosemann, Peter Lombard (Oxford, 2004). 12 “Preface to Alger of Liège’s Book concerning Mercy and Just (Early Twelfth Century: Preface in the Form of a Letter ‘To All Catholics’,” in Prefaces to Canon Law Books in Latin Christianity: Selected Translations, 500–1317, 2nd edn., trans. R. Somerville and B. Brasington (Washington, DC, 2020), 138–140; R. Kretzschmar, Alger von Lüttichs Traktat De misericordia et iustitia: Ein kanonisticher Konkordanzversuch aus der Zeit des Investiturstreits (Sigmaringen, 1985), esp. 141–154.

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chapter, Ivo of Chartres’s Prologue, which circulated with a number of canonical collections, demonstrated his methodology reconciliation: authorities (auctoritates) who hold seemingly contradictory views should be considered through the lens of whether strict judgment was warranted or whether compassion and leniency was the better path. The scholastic method was fundamental to parsing the sources and reconciling the discrepancies that had arisen. The twelfth-century “Concordance of Disconcordant Canons” (Concordia discordantium canonum, i.e., the Decretum) compiled by Gratian exemplifies the rediscovery of Roman law taking place in Bologna and the scholastic method to reconcile discrepancies taking hold in the schools at Paris. Also known as the “Father [of the Science] of Canon Law”, Gratian remains a shadowy figure. While once thought to be a Camaldolese monk at the monastery of Saints Felix and Nabor, an affiliation with a monastic order is in doubt. We do know that Gratian was both a canon lawyer and a pastoral theologian.13 His treatise on penance, the De penitentia (C.33 q.3), circulated as a part of his canonical collection. We do not know, however, where he trained. While his thoughts seem to have been shaped by the school of Laon, we are uncertain whether he studied at Laon or was influenced by works from the Laonese masters who travelled to Bologna along the Via Francigena.14 We know he taught canon law at Bologna in the early to mid-twelfth century, but we do not know if he had a long or a short teaching career. While we are uncertain as to whether Gratian compiled his canonical collections in finished versions or whether it was a work in progress, the manuscript tradition reveals the dissemination and adaption of legal thought as it engaged in a broader religious, political, social, and intellectual climate.15 Finally, we believe Gratian ended his career as a bishop, though scholars do not necessarily agree on which episcopal see.16 The Decretum was a teaching tool that fully engaged in the twelfth-century intellectual climate. The Decretum was composed between ca. 1130 and ca. 1140s, and 13 See, for example, A. A. Larson, “Gratian (Late Eleventh Century to ca. 1145),” in Law and the Christian Tradition in Italy, eds. Condorelli and Domingo, 43–52; P. Landau, “Gratian and the Decretum Gratiani,” in HMCL, 22–54. On the Via Francigena, see L. Fowler-Magerl, “The Collection and Transmission of Canon Law along the Northern Section of the Via Francigena in the Eleventh and Twelfth Centuries,” in Bishops, Texts and the Use of Canon Law Around 1100: Essays in Honour of Martin Brett, eds. B. C. Brasington and K. G. Cushing (Farnham-Burlington, 2008), 129–139. 14 A. A. Larson, Master of Penance: Gratian and the Development of Penitential Thought and Law in the Twelfth Century (Washington, DC, 2014); J. C. Wei, Gratian the Theologian (Washington, DC, 2016). 15 For a synthesis of the recension debate and its implications, see M. H. Eichbauer, “Gratian’s Decretum and the Changing Historiographical Landscape,” History Compass 11, no. 12 (2013): 1111–1125. For views on manuscript tradition and the transmission of legal knowledge, see the essays in S. Dusil and A. Thier, eds., Creating and Sharing Legal Knowledge in the Twelfth Century: Sankt Gallen, Stiftsbibliothek, 673 and Its Context (Leiden, 2022). 16 On different views regarding Gratian’s the relationship between teaching career and his elevation to an episcopal see, K. Pennington, “The Biography of Gratian, The Father of Canon Law,” Villanova Law Review 59, no. 4 (2014): 679–706; and A. Winroth, “Where Gratian Slept: The Life and Death of the Father of Canon Law,” ZRG Kan. Abt. 99 (2013): 105–128.

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it experienced a wide circulation by 1150. Canonists, particularly Italian canonists, continued to expand and update the Decretum with the addition of texts, approximately 150 in all, known as paleae. The additions to Gratian’s text continued until about 1190, at which point the fluidity of the text hardened.17 Part III of the Decretum, known as the De consecratione, circulated before 1158 and is an appended theological tract on the sacraments now believed to have been authored by someone other than Gratian.18 Part I of the Decretum comprises of 101 Distinctions (Distinctiones). The first twenty distinctions (distinctiones) (D.1–D.20) outline the hierarchical structure of law with natural law (ius naturale) superseding the man-made law (ius gentium).19 He identified natural law with divine law, that is the teachings found in scriptural revelation, and he equated this in turn with “what is right” (ius).20 What is right, he believed, was unchangeable. Law also included human law (lex), which is variable. Human laws, Gratian concluded, must be reasonable and must conform to the practices of a community if they were to be valid and effective. Gratian accordingly maintained that when laws no longer responded to a community’s current behavior, they ceased to be effective and lost the validity that they once enjoyed.21 The next sixty distinctions (D.21–D.80) deal with clerical ordination and promotion and the remaining twenty distinctions (D.81–D.101) serve as its epilogue by adding further nuance to many of the same topics. The relationship between the first part of the Decretum, the Distinctiones, and the second part, the Causae (cases) has served as a source of confusion since the commentators, the Decretists, began writing their summa. Sicard of Cremona, for example, found this first part clumsy. In fact, Gratian never actually referred to the first section as the “Distinctiones”; instead he referenced tracts, such as a “Tract on ordination” (Tractatus ordinandorum) and a “Tract on the promotion of clerics” (Tractatus de promotione clericorum).22 Part II comprises of 36 cases (Causae) and marked a new way to teach law. Gratian began each case with a hypothetical case statement that presented a number of legal issues. The hypothetical is followed by a series of questions that focused on particular aspects of the case and disentangled the legal issues. Each question begins with a statement that introduced the legal issue to be explored. For example, Gratian drew the introductory statement of Causa 29 question 1 from Roman law for a definition of marriage. According to the Institutes and the Digest, a marriage is “the union of a man and woman keeping an 17 G. Murano, “The List of paleae in Ms Pal. Lat. 622,” in Sacri canones editandi: Studies on Medieval Canon Law in Memory of Jiří Kejř, ed. P. Otmar Krafl (Brno, 2017), 146–175. 18 K. Wojtyła, “Le traité de ‘penitentia’ de Gratien dans l’abrégé de Gdańsk Mar. F. 275,” SG 7 (1959): 355–390; J. Van Engen, “Observations on De consecratione,” in Proceedings Berkeley 1980, 309–320. 19 Gratian, The Treatise on Laws (Decretum DD. 1–20) with the Ordinary Gloss, trans. A. Thompson (Washington, DC, 1993). 20  Grat., D.1 d.a.c.1, c.1, d.p.c.1. 21  Grat., D.4 d.p.c.3. 22 On the idea of tracts, see M. H. Eichbauer, “Rethinking Causae 23–26 as the Causae hereticorum,” ZRG Kan. Abt. 101 (2015): 86–149, here 103–108.

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undivided way of life. Mutual consent makes marriage… Consent occurs when two or more perceive the same thing.”23 The canons that made up the questions originated from different authorities—conciliar decrees, letters of the Church Fathers (e.g., Augustine and Jerome), papal letters, Roman law, and secular law—and either proved or disproved the issue under consideration. Gratian also demonstrated a familiarity with the work of contemporary Roman jurists. For example, Causa 2 on judicial procedure and Causa 15 on clerical crimes exhibit a familiarity with themes and language found in Bulgarus’s tract on procedure known as Tractatus de iudiciis (ca. 1130) and in his tract De iuris et facti ignorantia (ca. 1140) on the ignorance of law and deed.24 The quaestio, a hallmark of the northern French theological milieu, particularly the school at Laon, stems from disputatio, which was integral to teaching.25 Inserted throughout the question (questio) are dicta, that is, Gratian’s opinion on the matter at hand. While Gratian was not the first insert his own opinion, as Bonizo of Sutri did so in his Liber de Vita Christiana (ca. 1089–1095),26 he was the first to do so in a systematic and extensive fashion. The cases themselves address simony (Causa 1), procedure (Causae 2–7), clerics and ecclesiastical property (Causae 8–15), monastic issues (Causae 16–20), and marriage (Causae 27–36), which includes the De penitentia (C.33 q.3). Causae 22–26 nicely illustrate Gratian’s method of linking related legal issues together to form a tract on a particular topic. These causae are often understood as cases that address the oath and perjury (Causa 22), just war (Causa 23), the pope’s ability to grant privileges (Causa 25), and heresy and magic (Causae 24 and 26). However, these themes are a springboard into larger issues, and the cases coalesce to form a tract on obedience and the execution of one’s office. Gratian used the bilateral norms inherent in the oath, societal norms laid out in Causa 22, to establish boundaries within and between the various ecclesiastical ranks. Causa 23 applied those norms to explore the bishop’s navigation of his duties to the pope and the emperor. The pope had to accept the bishop’s holding of secular properties, and the emperor—as the feudal lord—had to offer protection. Causa 24 applies the bonds to the bishop’s ability to bind and to loosen, which was intertwined with adherence to the bishop of Rome as the pope was the keeper of orthodoxy. The bond between the pope and the universal church grounds Causa 25 as he was tasked with the duty to preserve the universal church. While the pope should uphold the general decrees of the councils and of his predecessors, he may have to deviate from 23 Grat. C.29 q.1 d.a.c.1; Inst. 1.9.1; Dig. 2.14.1.2; K. Pennington, “‘The ‘Big Bang’: Roman Law in the Early Twelfth-Century,” RIDC 18 (2007): 43–70, here 59. 24 Bulgarus, interestingly enough, compiled Tractatus de iudiciis—also known as De arbitris, De iudiciis, or Excerpta legum—at the request of the papal chancellor Haimeric and it was referenced by Pope Innocent II. See Pennington, “‘The ‘Big Bang’”, 48–58; J. A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians and Courts (Chicago, 2008), 86. 25 A. Padovani, “Sull’uso del metodo questionante nel Decretum: Un contributo,” BMCL 30 (2017): 61–87. 26 W. L. North, “Bonizo of Sutri, the Dicta Bonizonis and the Development of the Jurisprudence of Canon Law before Gratian,” in The Use of Canon Law in Ecclesiastical Administration, 1000–1250, eds. M. H. Eichbauer and D. Summerlin (Leiden, 2018), 159–184.

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them by granting special privileges to punish or to ensure the wellbeing of a church. Finally, the bonds linking the priest both to his bishop and to his parish ground Causa 26. While the priest was obligated to adhere to his bishop and not infringe upon the latter’s purview of binding and loosening, he also was to safeguard the salvation of his flock both by ensuring they did not succumb to superstition and by reconciling the dying if the bishop was unavailable.27 The Decretum, as we now know, did not circulate in one edition;28 rather, as the changes and additions to Causae 22–26 exemplify, the text was modified and the legal thoughts found therein continued to evolve. The additional texts not only hardened the tenor of the cluster by emphasizing the hierarchical pyramid that structured relationships to allow supervision and correction to happen efficiently, but also showed more concern for the laity. The additions to Causa 22 emphasized swearing by God alone to more closely align the supervision of the oath to the Church and, as such, augment the Church’s ability to punish perjury. Additions to Causa 23 reflect the secular realm’s duty to assist the Church when called upon, particularly in matters of correction. Conversely, the ability of the feudal bishop to serve in a secular capacity was curtailed in favor of his spiritual functions. Additions to Causa 24 re-emphasized the connection between Rome’s unerring nature and its place as the sole keeper of orthodoxy and obedience. Faith and fulfillment of one’s duty (that is, adherence) to Rome went hand in hand with excommunication playing a necessary corrective role. Additions to Causa 24 also stressed the utility of sentencing, laid down procedural norms, and expanded the list of excommunicable offenses (both faith- and non-faith-based) to correct the erring laity. Additions to Causa 26 likewise focused on the correction of priests and laity for superstition. While the priest did retain his ability to reconcile if the individual was on his deathbed and the bishop was not available, the additions underscored the bishop’s purview over penance and the joy with which the penitent should undertake it. The pope also found himself bound by the hierarchical pyramid. Additions to Causa 25 emphasized the pope’s obedience to previously made decrees, with the ability to grant special privileges downplayed. Just as the secular realm was obligated to assist the Church when called upon, as laid out in Causa 23, the emperor should not disturb but rather uphold the privileges of churches, bishops, metropolitans, and the papacy. Collectively, the additional texts reflect a crystallization of the Church as the keeper of societal norms. 27 On this, see Eichbauer, “Rethinking Causae 23–26 as the Causae hereticorum,” 109–123. 28 T he development of Gratian’s text is a point of disagreement. Some scholars have argued that Gratian compiled his Decretum in completely formed redactions. Others have interpreted the Decretum as a work of progressive development, evolving as Gratian’s teaching career evolved. For the former view, see, for example, A. Winroth, “Recent Work on the Making of Gratian’s Decretum,” BMCL 26 (2006): 1–29; M. Sommar, “Gratian’s Causa VII and the Multiple Recension Theories,” BMCL 24 (2000): 78–96.; A. Winroth, The Making of Gratian’s Decretum (Cambridge, 2000). For the latter view see, for example, M. H. Eichbauer, “From the First to the Second Recension: The Progressive Evolution of the Decretum,” BMCL 29 (2012): 119–67; J. M. Viejo-Ximénez, “Les Étapes de l’incorporation des textes romains au Décret de Gratien,” RDC 51, no.1 (2001): 251–260; Pennington, “The ‘Big Bang’,” 43–70.

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Gratian had adapted techniques used by scholastics at the twelfth-century schools of Paris, namely those of divisions (divisiones), distinctions (distinctiones), questions (quaestiones), dialectical arguments (a minori, a maiori), and the solution of contraries (solutio contrariorum). His Decretum quickly became the standard textbook in the canon law schools as seen both by the questions and explanations that teachers raised in their lectures about various problems, and by cross-references to other relevant parts of Gratian’s text found in the margins of manuscripts. A new literary genre thus sprung from the schools as teachers commented on texts such as the Decretum as a part of their classroom use. “Glosses” are the comments made or questions posed on a particular word or passage. Glosses can explain the significance of a difficult word or can provide cross-references to other legal texts. “Notabilia”, known for their opening words Nota quod (“It is noted that…”), are glosses that point to the most important parts of a text. “Allegationes pro et contra” (“Arguments for and against”) address a question raised in the text. A “gloss apparatus”, or lectura, is a collection of numerous or extensive glosses made by a particular teacher on an entire text. A lectura should summarize the text, pointing to the most noteworthy topics or associated ideas, explain the difficulties within the text, show parallels with other texts, refer to and reconcile arguments against the text, and answer the questions arising from the text. A summa is a concise but systematic commentary on an entire text, without the word-for-word explanation of a gloss apparatus. Commentaries on the Decretum originated from the schools of Bologna, Paris, in the Rhineland, and by the efforts of those who worked in the Anglo-Norman regions.29 Those who glossed and/or compiled works such as lectura, summa, abbreviations, and transformations of the Decretum were referred to as Decretists.30 The earliest surviving collection of glosses on Gratian’s text is from the school at Bologna and is ascribed to a teacher named Paucapalea, who composed his glosses on Gratian before 1148.31 Another early Bolognese law teacher who commented in detail on Gratian’s text was Master Rolandus. He wrote shortly after Paucapalea and modern scholars had assumed that he was the same Rolandus who later became Pope Alexander III (d. 1181), although this is no longer believed to 29 O n the rise of the universities, see H. Rashdall, The Universities of Europe in the Middle Ages, Vol. 1: Salerno, Bologna, Paris (Oxford, 1936); and more recently H. de Ridder-Symoens, ed., History of the University in Europe, Vol. 1: Universities in the Middle Ages (Cambridge, 1992). 30 R. Weigand, Glossatoren des Dekret Gratians (Keip, 1997) is one of the best introductions to key Decretists. A useful resource for looking up jurists is the “Bio-Bibliographic Guide to Medieval and Early Modern Jurists” eds. K. Pennington and C. Donahue, Jr., http://amesfoundation.law. harvard.edu/BioBibCanonists/HomePage_biobib2.php. The database is an encyclopaedic guide to canonists beginning with Gratian to 1500. Users can search either by author or by work. Each entry begins with a brief description of the jurist or text and will end with a bibliography of relevant secondary literature. Entries include a list of texts attributed the author (if the author is known), a list of manuscripts, and a list of early and modern editions of each text. 31 For a comprehensive introduction to the Bolognese canonists, see K. Pennington and W. P. Müller, “The Decretists: The Italian School,” in HMCL, 121–173; Paucapalea über das Decretum Gratiani, ed. J. F. von Schulte (repr., Aalen, 1965).

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be correct.32 Among the most important twelfth-century Bolognese Decretists were Rufinus (d. 1192),33 along with Huguccio (d. 1210) whose ideas and insights have continued to influence some basic legal and political ideas right down to the present.34 Rufinus and Huguccio exemplified a career pattern that became extremely common among later canonists. They began their careers as law teachers and occasionally engaged in practice as legal experts or consultants (iurisperiti) both to high-ranking church officials and to civil authorities of various kinds. Both men received appointments to the church’s hierarchy toward the close of their careers: Huguccio as bishop of Ferrara in 1190, Rufinus first as bishop of Assisi and later as archbishop of Sorrento. Transmontane schools—schools north of the Alps—also produced summae of the Decretum in addition to other legal texts.35 Between 1170 and 1190 in northern France, a peculiar family of Decretum manuscripts were produced at Paris and Sens, the latter at which Pope Alexander III spent his exile from 1164 to 1165 and Archbishop Thomas Becket of Canterbury spent his from 1166 to 1170.36 Teachers of canon law at Paris included Stephen of Tournai (d. 1203); and the anonymous authors of the Summa Parisiensis (ca. 1170), the Summa Monacensis/Summa “Inperatorie maiestati” (1175–1178), the Summa “Tractaturus magister Gratianus” (ca. 1181–1185), and the Animal est substantia/Summa Bambergensis (ca. 1206–1210). Key characteristics of the Paris summae include: the use of theological questions, references to Paris theologians and legal cases or problems in the area, and the excessive use of Roman law in argumentation (until it was banned in Paris in 1219). The Anglo-Norman legal tradition was flourishing by the 1190s and concentrated on matters of practical interest, such as procedure, actions, and formularies. Vacarius, an Italian canonist and theologian who had studied at Bologna in the 1140s before serving in the household of the Archbishop of Canterbury (ca. 1145) followed by the Archbishop and York (from c.1159), compiled the Liber pauperum (ca. 1170), which became the 32  D ie Summa magistri Rolandi nachmals Papstes Alexander III, ed. F. Thaner (Innsbruck, 1874). On the decoupling of Magister Rolandus’s identity from that of Pope Alexander III, see R. Weigand, “Magister Rolandus und Papst Alexander III,” AKKR 149 (1980): 3–144; J. T. Noonan, Jr. “Who was Rolandus?,” in Law, Church, and Society: Essays in Honor of Stephan Kuttner, eds. K. Pennington and R. Somerville (Philadelphia, 1977), 21–48. 33  Summa Decretorum: Rufinus,von Bolgona, ed. H. Singer (repr. Aalen, 1963). 34 W. P. Müller, Huguccio: The Life, Works, and Thought of a Twelfth-Century Jurist (Washington, DC, 1994). 35 For a comprehensive introduction to the transmontane school, see R. Weigand, “The Trans­ montane Decretists,” in HMCL, 174–210. 36 Titus Lenherr referred to as this particular manuscript group as the Σ-group and Regula Gujer referred to as the S-group; for those studies, see T. Lenherr, “Die Summarien zu den Texten des 2. Laterankonzils von 1139 in Gratians Dekret,” AKKR 150 (1981): 528–551; and R. Gujer, Concordia Discordantium Codicum Manuscriptorum? Die Textentwicklung von 18 Handschriften anhand der D.16 des “Decretum Gratiani” (Cologne, 2004). On the localization of this group to Paris and Sens, see Wei’s detailed analysis of two particular manuscripts of French origin that made their way to Halberstadt in “Gratian’s Decretum in France and Halberstadt,” in Rechtshandschriften des deutschen Mittelalters: Produktionsorte und Importwege; Tagungsband des Arbeitsgesprächs an der Herzog August Bibliothek ( Juni 2010), eds. G. Drossbach and P. Carmassi (Wiesbaden, 2014), 367–387.

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textbook for the study of the Digest and the Codex in England.37 The procedural treatises such as the Ulpianus de edendo and the Ordo Bambergensis (ca. 1182–1185) set forth Romano-canonical procedure found in the Digest, Codex, Authenticum, and Causa 2 of the Decretum. Such texts served as important references for judges and judges-delegate, their staff, and advocates engaged as practitioners of law.38 The Rhineland school at Cologne and Mainz in the late twelfth century seems to have been short-lived, flourishing in the 1170s. Bertram of Metz had studied at Paris before teaching at Cologne. He may have compiled the Summa “Elegantius in iure divino”/Summa Coloniensis around 1169, which was the main work of the Cologne school.39 Gérard Pucelle (d. 1184) briefly taught at Cologne and Sicard of Cremona briefly taught at Mainz between 1179 and 1183.40 The Paris, Anglo-Norman, and Rhineland schools demonstrate that the formal teaching of law spread quickly, and yet it was not taught with the same emphasis everywhere. Some canonists tried to collect the extensive marginal commentaries into one work to serve as the “standard gloss”. This effort became known as the Glossa ordinaria (“Ordinary Gloss”) of the Decretum, a task undertaken first by Johannes Teutonicus (d. 1245), a German canonist whose personality is said not to have sparkled. He drew together the contributions of previous teachers such as Huguccio, Laurentius, and the work of “Ordinaturus magister”.41 Additions to the Glossa ordinaria were made on occasion by others, such as Bernardus Compostellanus antiquus and Raymond of Penyafort. Bartholomaeus Brixiensis (d. 1258) completed the last revised version ca. 1240. Others sought to make a text, such as the Decretum, more usable by creating abbreviations (abbreviationes). Abbreviations comprised of texts selected from a collection and transcribed literally or with few changes, eliminating the rest as irrelevant to the abbreviator’s purpose.42 Transformations

37 Kuttner and E. Rathbone, “Anglo-Norman Canonists of the Twelfth Century: An Introductory Study,” Traditio 7 (1951): 279–358; J. Taliadoros, Law and Theology in Twelfth-Century England: The Works of Master Vacarius: 1115/20–c.1200) (Turnhout, 2006). 38 B. Brasington, Order in the Court: Medieval Procedural Treatises in Translation (Leiden, 2016); L. Fowler-Magerl, Ordines Iudicarii and Libelli de Ordine Iudicorum (From the Middle of the Twelfth to the End of the Fifteenth Century) (Turnhout, 1994). 39  Summa ‘Elegantius in iure divino’ seu Coloniensis, 4 vols., eds. G. Fransen and S. Kuttner (Vatican City, 1990); S. Kuttner, “Bertram of Metz,” Traditio 13 (1957): 501–505. 40 P. Landau, “Simon von Bisignano, Sikard von Cremona und Die Mainzer Kanonistik der Barbarossazeit: Zur Biographie des Simon von Bisignano und zur Forschungsgeschichte,” BMCL 28 (1971): 119–144. 41 For an overview of the types of glosses and other legal literary genres, see Ascheri, The Laws of Late Medieval Italy (1000–1500), 194–206. On the development of the Glossa ordinaria, see R. Weigand, “The Development of the Gloss ordinaria to Gratian’s Decretum,” in HMCL, esp. 82–86 on Teutonicus; see also K. Pennington, “Johannes Teutonicus (ca.1170/75–1245),” in Great Christian Jurists in German History, eds. M. Schmoeckel and J. Witte, Jr. (Tübingen, 2020), 1–12. Teutonicus taught canon law at Bologna in the first decade of the thirteenth century before going to S. Mariae in Halberstadt. 42  For example, see those analyzed in A. Beyer, Lokale Abbreviationen des Decretum Gratiani (Frankfurt-am-Main, 1998).

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(transformationes) of texts such as the Decretum, as seen with those of Omnebene and Laborans, changed the order of selected texts from the original collection.43 Teachers commenting on Gratian’s text sought to clarify and elaborate concepts they found in Gratian’s text. Take, for example, Gratian’s understanding of law as springing from two basic sources—natural law and customary practices—discussed above. Drawing on the Roman jurist Ulpian,44 Huguccio sought to elaborate on Gratian’s text by identifying equity and justice as inseparable, for both sought to give to everyone what was due to them.45 He also distinguished between natural justice and positive justice. Natural justice for Huguccio meant the benevolence that arises from natural human affections, such as the love of a mother for her children, and its origin is ultimately divine. Positive justice is of human origin. Positive justice, he continued, aimed to punish offenders and to make good the losses that victims suffered. Human law, according to Huguccio who again drew on Ulpian, differs from justice, for law in this world is an art that tries (not always successfully) to achieve goodness and fairness.46 Huguccio further maintained that laws derive their authority from reason. An unreasonable law cannot be valid, he concluded, no matter what authority decrees it. God, who personifies reason, could not possibly make an unreasonable law; and while human legislators might perversely attempt to do so, any unreasonable legislation they might enact was ipso facto void.47 Decretists’ commentary reflected the climate in which they worked.48 As we will see in Chapter 8, by the later twelfth century the Church had come to regard heresy as an existential threat. The glosses of Rolandus, the Summa Parisiensis, and Simon of Bisignano on Causa 24 echo this climate. Heresy was more than simply disobedience; it was a crime. Rolandus equated the crime of heresy to crime of simony, while the Summa Parisiensis noted that one who followed a now-damned heresy was subject to a sententia lata (automatic sentence). He would go on to note that it was permitted to be accused and excommunicated after death for the crime of simony, heresy, and sacrilege—the Summa Parisiensis added high treason to this list—but it was not possible to do so for other crimes. Also by the later twelfth century, the bonds linking a cleric to his superior and associated obligations expected were firmly entrenched. In their comments on Causa 23, Rufinus, Rolandus, the Summa Parisiensis, and Simon of Bisignano paid 43 S. Dusil, Wissensordnungen des Rechts im Wandel: Päpstlicher: Jurisdiktionsprimat und Zölibat zwischen 1000 und 1215 (Leuven, 2018), 454–461; R. Weigand, “Die frühen kanonistischen Schulen und die Dekretabbreviatio Omnebenes,” AKKR 155 (1986) 79–91; N. Martin, “Die ‘Compilatio Decretorum’ des Kardinals Laborans: Eine Umarbeitung des gratianischen Dekrets aus dem 12. Jahrhundert” (PhD diss., University of Heidelberg, 1985). 44  Dig. 1.1.10.pr: “Iustitia est constans et perpetua voluntas ius suum cuique tribuendi.” 45 Huguccio, Summa, D.50 c.25 s.v. ut constitueretur, quoted in G. Le Bras, C. Lefebvre, and J. Rambaud, L’âge classique, 1140–1378: Sources et theorie du droit (Paris, 1965), 357 n.4. 46 Huguccio, Summa, D.50 c.25 s.v. iubeo, quoted in Le Bras, Lefebvre, and Rambaud, L’âge Classique, 358 n.1; Dig. 1.1.10.pr. 47 Huguccio, Summa, D.4 d.p.c.3, quoted by K. Pennington, Pope and Bishops: The Papal Monarchy in the Twelfth and Thirteenth Centuries (Philadelphia, 1984), 21–22. 48  See Eichbauer, “Rethinking Causae 23–26 as the Causae hereticorum,” 127–133.

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particular attention to the authority tasked with punishment and what constituted the “right order” for doing so. All commented that because justice was secular— and not spiritual—business and power of the military, for example, could not be in the hands of clerics. Rufinus noted that bishops who had accepted civil power over cities lacked the power to issue corporal sentences—maiming and capital punishment—against the recalcitrant. Rolandus noted that those who did not have the power of the sword could not issue a death sentence while Simon of Bisignano commented that those who had issued such sentences could not be promoted to the sacred orders. The Summa Parisiensis distinguished the sentence of a civil judge, of an ecclesiastical judge, and that of ecclesiastical and civil judges. While a civil judge issued a judgment of blood, an ecclesiastical judge inflicted ecclesiastical requital such as excommunication and degrading. Monetary punishment fell under the purview of both. In essence, a bishop may continue to have feudal functions, but those functions could not counter the obligations associated with his ecclesiastical rank. Their glosses on Causa 26 focused on the limits of the priest vis-à-vis his bishop. The Summa Parisiensis introduced Causa 26 by commenting that the previous causa (Causa 25) showed that no bishop was able to violate decrees of the apostolic see as it was the eternal axis of churches. Causa 26, accordingly, addressed the ability of a priest to usurp the power of a bishop. Rolandus stated that those of lesser rank (minores) ought to show obedience to their superiors in all things. As such, priests were not able to cut short (mutilare) the judgments of bishops. Rolandus and Rufinus stated that a priest could not reconcile the excommunicated by name unless the bishop was absent and death was imminent. Rufinus then distinguished between ceremonial (sollempnem) and private reconciliation. The former was the purview of the bishop alone; the priest’s reconciliation was a private one. Stephen of Tournai brought his tenure as an abbot to bear with his comments on Causae 10, 12, 13, 14, and 16. Whereas Gratian had focused on prescriptions and tithing rights through the lens of a bishop’s rights and privileges, Stephen used the same texts to emphasize the preservation of monastic rights and privileges.49 He drew on precedents in support of his legal argument, namely that a bishop may retain spiritual rights to a parish, but through prescription he could lose the property and tithing rights. This argument countered Gratian who emphasized the bishop’s control over that which was in his diocese. In one example, the bishop of Chartres had possessed a church, along with its temporal and spiritual revenues, located in the diocese of Orléans for 30 years without interruption. While the revenues were to remain with the bishop of Chartres, the parish itself would remain in the diocese of Orléans. In another example, the bishop of Bologna had possessed a certain church for 30 or 40 years that the bishop of Modena insisted was within the limits of his diocese. If the church was found to be within the diocesan limits of 49  Prescription is found in Roman law and refers to rights obtained through long usage. See also M. H. Eichbauer, “Law in Service of a Community: Property and Tithing Rights in Gratian’s Decretum and Stephen of Tournai’s Summa,” in The Use of Canon Law in Ecclesiastical Administration, eds. Eichbauer and Summerlin, 69–88.

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Bologna, it remained with Bologna. If the bishop of Bologna had held the church undisturbed, though it was found to be in the diocese of Modena, it remained with Bologna. If the bishop of Modena, however, had raised an exception before the end of the 30 years and the church was found it be within his borders, the unjust retention by Bologna would result in the church being restored to Modena without delay.50 Having spent twenty years as abbot of two houses of canons regular before becoming bishop, Stephen adapted his legal education at Bologna to his circumstances. Prescription provided a means by which monasteries could augment their holding at the expense of the bishop. The Decretists’ commentary on Gratian’s Decretum was the maturation of an intellectual revolution that began at the end of the eleventh century. Irnerius’s teaching of Roman law in Bologna paralleled the interest northern French canonists were taking in such texts. Meanwhile the schools of Paris actively engaged in a method of inquiry that provided tools to analyze, cross-reference, and reconcile texts. Such techniques for critical analysis would continue to be refined at universities, such as Bologna, Paris, and Oxford, as faculty taught the next generation of lawyers, administrators (both ecclesiastical and secular), theologians, and pastors. Innovations aside, law remained private; even Gratian’s Decretum was never officially adopted as the legal collection for the Church. That would change in the first quarter of the thirteenth century as the papacy reached the peak of legislative pre-eminence.

50  Stephen of Tournai, Summa, ad C.16 q.3 c.6 s.v. Inter memoratos, s.v. cuius quamvis vetusta, s.v. limis provisus monstraverit vis signis (Munich, BSB, 17162, fol. 119ra–rb).

5 DECRETAL COLLECTIONS AND THE DECRETALISTS

Papal decretals had played an integral role in the canonical legal tradition from its earliest foundations. These letters contained the pope’s view on a particular legal matter, whether he was responding to a question or reacting to a situation that had come to his attention. Papal decretals sat alongside Scripture, writings of the Church Fathers, and conciliar canons as important sources of legal norms. The development of canonical courts in the twelfth century, refined, to some extent, the character of papal decretals. As the number of litigants bringing cases before the courts for resolution increased, so too did the pope’s legislative voice. Responsa/ responsiones (responses) were decretal letters responding to questions from bishops seeking a legal opinion. Rescripta/rescriptae (rescripts) were decretal letters responding to judicial appeals.1 These decretal letters were dispatched to the parties involved announcing papal decisions on individual cases, and frequently spelled out in some detail the rationale that underlay the decision. Because these rulings were not generally made public, their contents were often intended only for the parties who received them. Many of the decretals resemble, at least roughly, modern appellate court decisions and, as a result, practicing canonists and teachers of canon law found it useful, indeed essential, to make copies of these decretals and assemble them into

1  A. Duggan’s essays “Current Research on the Decretals between Gratian’s Decretum and the Liber Extra,” Ephemerides Iuris Canonici 57 (2017): 245–275; and “Making the Old Law ‘New’, II. Canon Law in the New Environments: Norway and the Latin Kingdom of Jerusalem,” in Medieval Canon Law Collections and European ius commune= Középkori kánonjogi gyűjtemények és az európai ius commune, ed. S. Szabolcs Anzelm (Budapest, 2006), 236–262 offer excellent case studies demonstrating how popes used responsa and rescripta to address difficulties brought to them in a delicate and thoughtful manner as opposed to using such opportunities to augment their power. DOI: 10.4324/9781003156734-6

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collections. These private decretal collections soon emerged as important reference works for canon lawyers who wished to keep abreast of current law.2 While not on account of the papacy’s intentional efforts, papal letters, along with newer conciliar legislation, served as the principal source of law included in most of the later twelfth-century collections. For this reason, “decretal law” is often referred to as “new law” and those who commented on it are referred to as “Decretalists”. The papacy was sensitive to the fact that they were shaping church law. Before 1234, compilers, not the papacy, determined which decretals and conciliar canons were important to include in their collections. By selecting and compiling this “new law” into collections and then by commenting on it, such canonists framed what the legal tradition should be.3 Together with the “old law” (ius vetus) found in Gratian’s Decretum, “new law” (ius novum) would form a unified body of canon law. The second half of the twelfth century witnessed a proliferation of canonical collections devoted principally to papal decretals. Three factors set the stage for this proliferation. The first, the sophistication of papal governance, had its roots in the reform movement of the eleventh and early twelfth century. A few innovations are worth noting as they contributed significantly to the rise of an organized bureaucratic structure.4 Among the most important is that the Roman cardinalate transformed from a local body focused on serving the city of Rome into the College of Cardinals, a body tasked with the election of the pope and to act as “spiritual senators of the universal church”. This collegium comprised of cardinal-bishops, -priests, and -deacons who were appointed from across Europe. Another key innovation was the reorganization of papal offices and, effectively, the creation of the Roman curia (curia Romana) under Pope Urban II. The chamberlain (camerarius) oversaw the financial office (camera), an office that was reorganized under Pope Urban II. The chancellery under the auspices of the papal secretary issued papal documents that confirmed, extended, or created privileges of rights and possessions, and also announced judicial decisions. The papal consistory dealt with the growing volume of business and offered advice on all matters concerning the welfare of the papacy and the government of the universal church. In addition to serving the curia, the cardinals also became involved in the resolution of questions concerning the Catholic faith and investigating the teachings of suspect theologians. 2 See G. Drossbach, “Decretals and Lawmaking,” in Cambridge History of Canon Law, eds. A. Winroth and J. C. Wei (Cambridge, 2022), 208–229, whom I thank for an offprint of her essay as the volume was not yet in print; A. Larson and K. Sisson, “Papal Decretals,” in A Companion to the Medieval Papacy: Growth of an Ideology and Institution, eds. A. Larson and K. Sisson (Leiden, 2016), 158–173; G. Fransen, Les décrétales et les collections de décrétales (Turnhout, 1972). 3  L. Kéry’s work is particularly important on this point. See, in particular, “Dekretalenrecht zwischen Zentrale und Peripherie,” in Römisches Zentrum und kirchliche Peripherie/Roman Center and Church Periphery: Das universale Papsttum als Bezugspunkt der Kirchen von den Reformpäpsten bis zu Innozenz III., eds. J. Johrendt and H. Müller (Berlin, 2008), 19–45. 4  For a fuller discussion of the papal government’s evolution, see I. S. Robinson, The Papacy 1073– 1198: Continuity and Innovation (Cambridge, 1990), esp. ch. 2. For a discussion of the papal government within the wider reforms of the eleventh century, see K. G. Cushing, Reform and the Papacy in the Eleventh Century: Spirituality and Social Change (Manchester, 2005), 81–85.

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The use of papal legates—representatives of the pope tasked with conducting business across Christendom on the papacy’s behalf—also increased dramatically. Legates confirmed ecclesiastical possessions and rights, confirmed episcopal elections and synodal judgments, and settled disputes between churches. The papacy also relied more heavily on “standing legates”. Rather than being appointed for a particular assignment, “standing legates” were on retainer in that they were commissioned long-term to act on the pope’s behalf. Papal legates also served on occasion as judges-delegate, judges appointed by the pope to investigate cases of particular complexity.5 Sometimes the judge-delegate might be from the area and thus knew the persons involved and the origins of the dispute; though associated with the papacy, they also knew how to work within the local or provincial legal tradition.6 Other times, the judge-delegate might be an outsider appointed for his objectivity. Papal legates and judges-delegates became staples of the papal bureaucracy in the twelfth century because litigation was consuming much of the curia’s time and efforts. Since the fourth century Rome had claimed appellate jurisdiction over the other churches; that is, the Roman see was the court of appeal and the pope’s decision was final. This stance was echoed and strengthened in the Pseudo-Isidorian Decretals. It was strengthened again during the reform period; in 1115, Pope Paschal II reminded King Henry I of England that the pope’s purview included reviewing and handling the weightier matters that impacted any church. It would come to its fullest understanding in the late twelfth century as Pope Alexander III recognized that the procedure of appeal was the basis of the pope’s judicial primacy. In addition to acting as the final court of appeal, the papal curia also acted as a court of first instance (the court in which a case is first tried, not an appeals court) before the end of the twelfth century. The growth of the pope’s status prompted litigants to bring their cases directly to the curia without first having recourse to lower courts (the bishop’s or archdeacon’s court served as the court of first instance, followed by the court of the metropolitan).7 Papal direction of councils, which reflected the overall growth of papal authority, was a second factor setting the stage for the proliferation of decretal collections. Regional councils had long been the venue at which local matters were discussed and resolved. While they continued to be so in the eleventh and twelfth centuries, the papacy used papal synods held at regional locations as the best place to promote its reform agenda.8 Pope Urban II upended the traditional conciliar process of bishops debating and formulating decrees at a council followed (usually) by 5  See K. R. Rennie, Law and Practice in the Age of Reform: The Legatine Work of Hugh of Die (1073– 1106) (Turnhout, 2010). For a history of papal legates, see idem, The Foundation of Medieval Papal Legation (London, 2013) 6  For the papacy’s use of the same judges-delegate in the province of Reims, see J. S. Ott, “Men on the Move: Papal Judges-Delegate in the Province of Reims in the Early Twelfth Century,” in The Use of Canon Law in Ecclesiastical Administration, 1000–1234, eds. M. H. Eichbauer and D. Summerlin (Leiden, 2018), 23–50. 7  See Robinson, The Papacy 1073–1198, chs. 4 and 5. 8  On general councils as an arm of papal government, see Robinson, The Papacy 1073–1198, ch. 3.

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papal  ratification to now promulgating decrees and the bishops acclaiming those decrees at the council. Urban II, for example, held such councils at Piacenza (1095), Clermont (1095), Nîmes (1096), and Rome (1099).9 These papal synods often repeated common themes, such as those found at the general council, the First Lateran Council, held by Pope Calixtus II in 1123: simony, avoidance of excommunicates, canonical election, clerical celibacy, alienation of church property by laymen, consanguineous marriages, crusading indulgence, and the Peace and Truce of God. The council also brought the Investiture Controversy to a close by ratifying the Concordat of Worms and addressed a series of jurisdictional disputes between various ecclesiastics.10 Pope Innocent II, as another example, held councils at Clermont (1130), Reims (1131), Piacenza (1132), and Pisa (1135). Innocent II reiterated themes addressed at the Second Lateran Council (1139). He condemned the papal schism involving Anacletus II which had begun in 1130. He also condemned schismatics and heretics, simony, inheritance of ecclesiastical offices, clerical concubinage, nuns who married, sons of priests ministering at the altar, consanguineous marriages, lending at interest, assaults on clerics, and arson. Finally, he addressed episcopal behavior, the protection of ecclesiastical property, and the proper administration of the sacraments.11 Papal councils thus became an important mechanism by which the papacy engaged with and steered the direction of the Church by promoting its agenda. The third factor setting the stage for the proliferation of decretal collections arose out of the success of Gratian’s work. The previous chapter introduced us to the literary genres developed in the schools to comment upon texts such as the Decretum as vehicles to explain, cross-reference to other legal texts, or even to disagree with Gratian. The popularity of Gratian’s text at the schools was unparalleled and it continued to have texts added to it. Such texts were copied in the margins of Decretum manuscripts and, with successive recopying of manuscripts, would be woven into the main text. These texts are known as paleae, after the Bolognese canonist Paucapalea who was the first to comment on the Decretum. It quickly became clear to canonists serving as both teachers and administrators that they needed to keep their repository of law current, particularly as they came across problems for which existing canon law either furnished unsatisfactory solutions or none at all. They returned, in some cases, to Burchard of Worms’ Decretum or to the register of Pope Gregory I for additional texts.12 They also turned to the papal decretals of popes from Eugenius III (1145–1153) to Clement III (1191–1198). The texts also could derive from recent councils, such as Pope Alexander III’s council of Tours 9  On the council of Piacenza, see R. Somerville, Pope Urban II’s Council of Piacenza (Oxford, 2011). 10 COGD II/1, 89–94 with an introduction on 75–85. See also A. J. Duggan, “Conciliar Law 1123–1215: The Legislation of the Four Lateran Councils,” in HMCL, 318–366, here 324–328. 11 COGD II/1, 105–113 with an introduction on 97–101. See also Duggan, “Conciliar Law 1123– 1215,” in HMCL, 328–333. 12 On the continued importance of the older legal tradition, see D. Summerlin, “Using the ‘Old Law’ in Twelfth-Century Decretal Collections,” in New Discourses in Medieval Canon Law Research: Challenging the Master Narrative, ed. C. Rolker (Leiden, 2019), 145–169.

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(1163) and Third Lateran Council (1179). Such texts were collected together and became known as “extravagantes” (vagant extra Decretum),13 texts which circulated outside the Decretum. These early additions were texts that circulated as supplements to the Decretum, known as Dekretanhänge, and these appendices could be copied at the end of the Decretum or circulate independently. These appendices ushered what scholars have traditionally viewed as a new era: Gratian’s text and all that preceded it would be regarded as “old law” while newer collections, drawn principally, though not exclusively, from papal decretals and canons from recent papal councils would be regarded as “new law”.14 Decretal collections were instrumental to the legal practitioner. Take, for example, the English decretal collection, the Collectio Fontanensis, which was compiled at the abbey of Fountains and was used by its abbot. The Cistercian abbey had been founded in 1132 and by 1170/1180 had become an important player in English politics. The decretal collection, compiled between 1180 and 1190, was a reference tool for the abbot who was tasked to serve as a papal judge-delegate on difficult cases. The collection included decretals dealing with procedural law; marital law; property law involving the church, particularly as it pertained to the distribution of the tithe between churches and monasteries; and monastic law outlining rules and privileges.15 Ecclesiastical administrators viewed collections of the most recent law as critical to supplementing the old law found in the collections of Burchard of Worms, Ivo of Chartres, and Gratian, for example. Decretal collections compiled between ca. 1150 and ca. 1190 are often categorized as either “primitive” or “systematic” collections. A “primitive” collection is one in which the texts were copied in no discernible order with no planned organization. Furthermore, they were largely compiled from recent decretal letters and conciliar decrees. Some of the earliest primitive collections originated in England.16 The collection known as Wigorniensis Altera serves as an example. It belonged to Worcester Cathedral and comprised of approximately ten decretals sent by Pope Alexander III to papal judges-delegates, the majority of whom worked in England. The Collectio Belverensis is a mishmash beginning with the canons from Pope Alexander III’s Council of Tours (1163), followed by decretals that are also found in the Collectio Wigorniensis Altera, followed then by nine additional letters, then canons from the Council of Westminster (1175), and finally nine more decretals

13 In the first edition, Brundage noted that extravagantes was commonly used to describe official papal utterances that had not yet been incorporated in an official collection of canons. 14 C. Duggan, “Decretal Collections from Gratian’s Decretum to the Compilationes antiquae: The Making of New Case Law,” in HMCL, 246–292, here 253–256. 15 P. Landau, “Collectio Fontanensis: A Decretal Collection of the Twelfth Century for an English Cistercian Abbey,” in Law as Profession and Practice in Medieval Europe: Essays in Honor of James A. Brundage, eds. K. Pennington and M. H. Eichbauer (Farnham, 2011), 187–204. 16 T he best introduction to primitive and systematic decretal collections to ca. 1190 and their geographic scope remains C. Duggan, Twelfth-Century Decretal Collections and their Importance in English History (London, 1963); and idem, “Decretal Collections from Gratian’s Decretum to the Compilationes antique: The Making of the New Case Law,” in HMCL, 246–292.

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received either at Canterbury or by Cistercian abbeys.17 In both examples the texts were simply added as is rather than being reorganized into a usable order, such as by topic. The decretals of Pope Alexander III play a key role in English, French, and Italian “families” of primitive collections.18 “Systematic” collections, by contrast, were thematic. Compilers organized recent decretals and conciliar decrees—in addition to a significant amount of pre-Gratian material—into books, or into titles, or into books and titles. Such an organization was suitable for working jurists and academics. The collection Parisiensis secunda (ca. 1177/1178) is the first such example.19 It included 95 sections with headings such as De consuetudine (“On custom”), De novis statutis (“On new statutes”), De appellationibus (“On appeals”), and De clericis depositis (“On clerics who have deposed”). The collection includes cross-references to Gratian’s Decretum and to Roman law in the margins of the text. As with primitive collections, scholars have organized systematic collections into groups: the Worcester Tradition, the Appendix group, the Anglo-Norman group, the Bamberg group, the Frankfurt group, and the Bruges group.20 The collections in the Worcester Tradition (deriving from Worcester and Exeter, ca. 1181) owe their origins to judges-delegate and canonists at Worcester, particularly to decretals from Alexander III to Bartholomew of Exeter (d. 1184) and Roger of Worcester (d. 1179) as papal judges-delegate followed by Baldwin, archdeacon of Totnes and then monk (ca. 1169) and abbot (ca. 1175) of the Cistercian monastery of Forde. Individual books addressed by the collections in this tradition deal with marriage, status of the clerics and the religious, and procedural law. The Appendix group (originating either from Lincoln or Oxford after 1184) includes a significant amount of material from Pope Alexander III and demonstrates deep connections between the Angevin territories in England and in the Norman territories in France, particular Rouen. The Anglo-Norman group similarly demonstrates the close ties between England and Normandy. The Bamberg group (Tours, after 1184) was compiled in France shortly after the pontificate of Lucius III (d. 1185) and used titles to organize material into themes addressing 17 Duggan, Twelfth-Century Decretal Collections and their Importance in English History, 46–47. 18 See Duggan, Twelfth-Century Decretal Collections and their Importance in English History, 124–135; idem, “Decretal Collections from Gratian’s Decretum to the Compilationes antique,” in HMCL, 256–269 for the collections contained in the particular families and respective branches of those families. G. Drossbach, “Die Collectio Victorina prima: Dekretalenrecht in Saint-Victor,” in Diligens Scrutator Sacri Eloquii: Beiträge zur Exegese- und Theologiegeschichte des Mittelalters Festgabe für Rainer Berndt SJ zum 65. Geburtstag, eds. H. Peter Neuheuser, R. M. W. Stammberger, and M. M. Tischler (Münster, 2016), 349–363 has analyzed the Collectio Victorina and demonstrated how the abbey of St. Victor was a key player in burgeoning legal tradition of northern France. 19 Duggan, “Decretal Collections from Gratian’s Decretum to the Compilationes antique,” in HMCL, 270–271. Peter Landau has attributed the origin of the collection to Bologna and the canonist Bernard of Pavia, see “Die Entstehung der systematischen Dekretalensammlungen und die europäische Kanonistik des 12. Jahrhunderts,” ZRG Kan. Abt. 65 (1979): 120–148. 20 See Duggan, Twelfth-Century Decretal Collections and their Importance in English History, 49–57; idem, “Decretal Collections from Gratian’s Decretum to the Compilationes antique,” in HMCL, 270–287. See also Drossbach, “Decretals and Lawmaking,” in Cambridge History of Canon Law, eds. Winroth and Wei, 208–229.

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clerical status, ecclesiastical property, criminal cases, judicial procedure, and marriage. The Frankfurt group (ca. 1183) originated in the area around Sens while the Bruges group (after 1187) originated around Reims. England, northern France, and the Norman territories that bound the two kingdoms proved to be fertile areas for the production of new law. Though the division and arraignment differ between the groups, the different groups of decretal collections circulated between regions and influenced one another. Collectively, they would lay the groundwork for the distinct fields of procedure, criminal, and marriage law.21 The rate at which decretal collections quickened after 1190 as canonists teaching at the universities, notably at Bologna, sought to keep pace with increasing number of responsa and rescripta coming from the papal curia. The canonists who compiled and commented on decretal collections, the Decretalists, were in many cases the same men, the Decretists, who produced commentaries on the Decretum. For example, the canonist Petrus Hispanus glossed Gratian’s Decretum and Bernard of Pavia’s decretal collection the Breviarium, discussed below. Similar to the categorization of primitive and systematic collections into various family groups, scholars tend to group decretal collections dating between ca. 1190 and ca. 1234 into particular periods: 1190–1210, 1210–1217, 1217–1234, and 1234–1325.22 The period 1190 to 1210 was dominated by what would become known as the Compilationes antiquae (“Old Compilations”). It began with Bernard of Pavia (d. 1213)’s Breviarium extravagantium, compiled between 1188 and 1192 and after 1210 often referred to as Compilatio prima (“First Compilation”). Bernard organized nearly 1,000 decretals into five books, each dealing with a singular theme: iudex (“judge”), iudicium (“trial”), clerus (“clergy”), connubia (“marriage”), and crimen (“crime”). He further subdivided each book into titles that focused on subtopics within the book’s principal theme. He arranged the individual canons (capitula) within each title in chronological order, so that readers could determine which were the most recent decisions on that subject. The capitula are for the most part papal decretals, although Bernard included some conciliar canons, as well as citations from the Church Fathers and a few excerpts from Roman and Germanic laws. Bernard’s decretal collection was no doubt the product of his own experience as a canon law teacher at Bologna, and other teachers there and elsewhere quickly adopted it as a supplement to Gratian’s text and incorporated it into their syllabi. The Breviarium was the first of five such systematic decretal collections that the next generation of law teachers 21 O f tremendous importance is the work of W. Holtzmann, Studies in the Collections of TwelfthCentury Decretals, eds., rev., and trans. C. R. Cheney and Mary G. Cheney (Vatican City, 1979). For recent reassessment of the Collectio Francofurtana’s place as a transitional text between primitive and systematic collections, see G. Drossbach, “Die Collectio Francofurtana und die fünf Bücher der Compilatio prima,” in Iuris Historia: Liber amicorum Gero Dolezalek, eds. V. Colli and E. Conte (Berkeley, 2008), 145–159; P. Landau and G. Drossbach, eds., Die Collectio Francofurtana: Eine französische Decretalensammlung. Analyse beruhend auf Vorarbeiten von Walther Holtzmann (Vatican City, 2007); Drossbach, “Schools and Decretals in the 12th century: The Collectio Francofurtana,” BMCL 24 (2000): 65–82. 22 W hat follows is grounded in K. Pennington, “The Decretalists, 1190–1234,” and “Decretal Collections, 1190–1234,” in HMCL, 211–245 and 293–317, respectively.

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adopted as part of the curriculum. The English canonist Richard Anglicus taught at Bologna and while there wrote a fundamental commentary on the Breviarium ca. 1198 in which he cited Roman law. Petrus Beneventanus, a notary of the Roman curia under Pope Innocent III, compiled the collection Compilatio tertia (“Third Compilation”) around 1209/1210 at the request of the pope. All of the 482 chapters in the 122 titles of Compilatio tertia were drawn from the decretals issued by Pope Innocent III during the first twelve years of his pontificate. The pope transmitted it formally to the University of Bologna by the bull Devotioni vestri, which made Compilatio tertia the first papally authorized collection of canon law since the eighth-century Collectio Dionysio-Hadriana. In an odd, and oftentimes confusing ordering, the Englishman Johannes Galensis (John of Wales) compiled the collection known as Compilatio secunda (“Second Compilation”) sometime between 1210 and 1215, and after the compilation of Compilatio tertia. He drew from the decretals of Popes Alexander III, Clement III, and Celestine III. It, like the two compilations that preceded it, would be accepted by the law schools. Collectively, Compilationes prima, tertia, and secunda were glossed and taught alongside the Decretum. The period 1210–1217 is marked by the glossing, teaching, and supplementation of Compilationes antiquae to keep the collections up to date. Glossing a text, as we saw with Gratian’s Decretum, was an important tool for furthering legal thought. As Ken Pennington has noted regarding Laurentius Hispanus’s glosses on Compilationes, “Laurentius had a gift of placing old problems in new settings— or seeing paradoxes or difficulties in the proverbial.”23 Other significant glossators of the Compilationes were Vincentius Hispanus, Damasus Hungarus, and Johannes Teutonicus. Sometimes, particular needs resulted in an adaption and augmentation of the compilations to the point that new collections were created, such as the Pragensis, Palatina I, Abrincensis II, and Bambergensis secunda. Other times, decretals particular to a region were added to a current version, such as the northern French version of the Compilatio tertia. With the promulgation of seventy-one canons resulting from Innocent III’s Fourth Lateran Council (1215), Johannes Teutonicus added them along with decretals of Innocent III at the end of Compilatio tertia and called this work Compilatio quarta. However, unlike the first three Compilationes, this collection was not immediately accepted as Innocent III himself refused to approve it.24 It was not until the 1220s that the work was firmly entrenched in the canonical tradition and regularly taught at the schools. With its acceptance Compilationes antiquae now included four collections.

23  Pennington, “The Decretalists, 1190–1234,” in HMCL, 229. 24 K. Pennington has suggested that Teutonicus did not submit a completed version of Compilatio quarta to Innocent III for authentication but only a draft. In addition, the pope may have wished the council’s canons to circulate separately. See “The Fourth Lateran Council: Its Legislation, and the Development of Legal Procedure,” in The Fourth Lateran Council: Institutional Reform and Spiritual Renewal. Proceedings of the Conference Marking the Eight Hundredth Anniversary of the Council Organized by Pontificio Comitato di Scienze Storiche (Rome, 15–17 October 2015), eds. G. Melville and J. Helmrath (Affalterbach, 2017), 41–54, here 42–47.

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The period 1217–1234 is marked by two canonists: Tancred of Bologna and Raymond of Penyafort. Tancred of Bologna (d. ca. 1236) studied Roman law under Azo and canon law under Laurentius Hispanus. Under the direction of Pope Honorius III, he compiled the last compilation to be included in the Compilationes antiquae, Compilatio quinta (“Fifth Compilation”). This collection comprised largely of the pope’s own decretals taken directly from his register. Tancred also commented on the Compilationes prima, tertia, and secunda, and this commentary became the Ordinary Gloss. Raymond of Penyafort (d. 1275), like Tancred and so many others, had studied and taught at Bologna. After returning to Spain and entering the Dominican order in 1222, Pope Gregory IX (d. 1241) recalled him to Rome in 1230 to compile a new official decretal collection that would include all of the relevant papal and conciliar law since Gratian up to his own time into one authoritative volume. Honorius III’s commissioning of Compilatio quinta had laid the groundwork for the “official” papal commissioning of canonical collections. On behalf of the pope and relying heavily on his register of letters, Raymond of Penyafort compiled the Decretales of Pope Gregory IX (1234), better known as the Liber extravagantium or Liber extra.25 The structure of the Liber extra followed that of the Compilationes antiquae that Bernard of Pavia had laid out first in his Breviarium/Compilatio prima. The pope published the work, a massive compilation of almost 2,000 decretals, officially in September 1234, and in his letter of transmission to the Universities of Bologna and Paris directed that it be taught in the law faculties as the official law of the Roman church.26 The Liber extra remained officially in force among Roman Catholics until 1918. With Compilatio quinta, but in particular with the Liber extra, we see that the compilation of legal texts was no longer a private affair. Papal responses (responsiones) and rescripts (rescriptae), once intended to assist the addressee with that particular matter, were now tailored so they could be applied universally. The writing and circulation of decretals continued after 1234, and within a few years of the Liber extra the publication of both official and unofficial collections commenced once again. Pope Innocent IV (d. 1254) published no less than three collections of Novellae (“New Laws”) in 1245, 1246, and 1253, while Gregory X (d. 1276) promulgated a further collection called, logically enough, the Novissimae (“Newest Laws”) in 1276. Pope Boniface VIII (d. 1303) incorporated most of the decretals officially published by his predecessors, together with other

25 For Liber extra manuscripts, see M. Bertram, “Signaturenliste der Handschriften der Dekretalen Gregors IX. (Liber extra),” Online-Publikationen des Deutschen Historischen Instituts in Rom (April 2014), available at http://www.dhi-roma.it/bertram_extrahss.html (accessed 1 April 2021). For an in-depth study of Raymond of Penyafort’s method of approaching the source material and his method of working, see E. Reno III, “The Authoritative Text: Raymond of Penyafort’s Editing of the Decretals of Gregory IX (1243)” (PhD diss., Columbia University, 2011); S. Kuttner, “Raymond of Peñafort as Editor: The ‘Decretales’ and ‘Constitutiones’ of Gregory IX,” BMCL 12 (1982): 65–80. 26 For the Liber extra within a Parisian context, see F. Cahu, Un témoin de la production du livre universitaire dans la France du XIIIe siècle: La collection des Décrétales de Grégoire IX (Turnhout, 2013).

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constitutions of his own, in the Sext or Liber sextus (“Sixth Book of Decretals”) in 1298. The Liber sextus consisted of five books structured on the conventional pattern of other decretal collections. The canons were drawn from the decrees of the first and second general councils of Lyon (1245 and 1274) and decretal letters of Gregory IX, Innocent IV (d. 1254), Alexander IV (d. 1261), Urban IV (d. 1264), Clement IV (d. 1268), Gregory X (d. 1276), Nicholas III (d. 1280), and Boniface VIII himself. Early in the fourteenth century another, and much smaller, official collection of new canons, the Constitutiones Clementinae (“Clementine constitutions”), was published by order of Pope John XXII (d. 1334) in 1317. The collection includes one decretal of Boniface VIII and one of Urban IV; the remaining decretals are all by Pope Clement V (d. 1314). Between 1325 and 1327 Zenzelinus de Cassanis (d. 1354), a former professor of canon and civil law at the University of Montpellier, compiled the Extravagantes Johannis XXII while a resident at the Roman curia in Avignon. This small private collection of twenty decretals was later divided into fourteen titles and published, together with the glosses of Zenzelinus, at the end of the fifteenth century by Jean Chappuis, a licentiate in canon law of the University of Paris. Chappuis would also compile the Extravagantes communes, a collection including sixty-nine decretals, which included three decretals of John XXII that also appeared in the Extravagantes Johannis XXII, two decretals of Clement V and one of Boniface VIII that also appeared in the Constitutiones Clementinae, and a decretal of Benedict XI (d. 1304) later revoked by Clement V. With the invention of printing in Europe at the end of the fifteenth century, the classical canonical texts—Gratian’s Decretum, the Liber extra, the Liber sextus, the Constitutiones Clementinae, the Extravagantes Johannis XXII, and the Extravagantes communes—appeared in Paris in 1500–1503 thanks to Chappius’s editing under the collective title the Corpus iuris canonici (“Body of Canon Law”), a title intended to parallel the publication of Justinian’s codification of Roman law, the Corpus iuris civilis (“Body of Civil Law”).27 The ius novum found in decretal collections comprised not only of thousands of papal decretals, but also hundreds of conciliar canons enacted at councils presided over by the pope. The canons of the Council of Reims (1148) convened by Pope Eugenius III were incorporated in six decretal collections. Seven English decretal collections incorporated the canons from Pope Alexander III’s Council of Tours (1163). Canons from the Council of Westminster (1175), convened by Alexander III’s legate Richard of Canterbury, likewise were included in decretal collections. Of particular importance to decretal collections through the Liber extra were the canons from the Third Lateran (1179) and the Fourth Lateran (1215). All of the canons from the Third Lateran Council circulated in decretal collections, twenty-two decretal collections to be exact, and they all found 27 For more information on the collections in the Compilationes antiquae and the Corpus iuris canonci, see the “Bio-Bibliographical Guide to Medieval and Early Modern Jurists,” edited by K. Pennington and C. Donahue Jr., available at http://amesfoundation.law.harvard.edu/ BioBibCanonists/.

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their way into the Liber extra. Johannes Teutonicus included the canons from the Fourth Lateran Council, canons which Innocent III and his curia had authored, in Compilatio quarta. From there they found their way into the Liber extra. The council was so influential that Teutonicus, Vincentius Hispanus, and Damasus Hungarus each compiled a set of glosses of the canons.28 Canons from the First Council of Lyon (1245) and the Second Council of Lyon (1274) factor into the Liber sextus. The Council of Vienne (1311–1312) under Pope Clement V after the papacy had relocated to Avignon (France) was attended by only 170 prelates (though only 231 had been invited). The canons from this council factor heavily in the Constitutiones Clementinae, promulgated by Pope John XXII in 1317.29 Compilers of decretal collections influenced the reception of conciliar canons by consciously deciding which to include or to exclude. Yet decretal collections were neither the official medium, nor the only medium, by which conciliar canons circulated. Prior to the thirteenth century, conciliar canons did not circulate in a definitive form. For example, the canons promulgated at Pope Urban II’s Council of Clermont (1095), at Pope Calixtus II’s First Lateran Council (1123), and at the councils of Pope Innocent II, including his Second Lateran Council (1139), circulated in varying number. That is, the manuscript tradition does not always agree about the number of canons promulgated at the council.30 Decretal collections likewise varied as to which canons of Pope Alexander III’s Third Lateran Council (1179) were included.31 The reception of conciliar canons is thus particularly interesting because there is no guarantee that a copy of conciliar canons was complete with all of the canons promulgated. In addition, there was no guarantee that provincial and diocesan synods would re-promulgate the decrees. For example, Walter of Coutances selectively chose which canons from the Third Lateran Council to re-promulgate at the Council of Rouen in 1190. Roger, bishop of Cambrai, issued only one canon from the Third Lateran Council at the Council of Cambrai held

28 Duggan, “Conciliar Law 1123–1215,” in HMCL, 338–339 and notes for the specific collections, 353–354; A. García y García, “The Fourth Lateran Council and the Canonists,” in HMCL, 367–378, here 368, 370–373. Regarding the council’s impact on particular areas of law, see the essays in A. Larson and A. Massironi, eds., The Fourth Lateran Council and the Development of Canon Law and the ius commune (Turnhout, 2018). 29 For the Council of Vienne, see R. Saccenti, “Concilium Viennese 1311–1312,” in COGD II/1, 361–367; J. LeClercq, Le concile de Vienne 1311–1312 (Paris, 1964); L. Veerecke, “La réforme de l’église au concile de Vienne 1311–1312,” Studia moralia 14 (1976): 283–337; S. Menache, Clement V (Cambridge 1998), 279–304. For a guide to the manuscript tradition of the Constitutiones Clementinae, see J. Tarrant, “The Manuscripts of the Constitutiones Clementinae, part I: Admont to München,” ZRG Kan. Abt. 101 (1984): 64–133 and part II: “Napoli to Zwettl,” ZRG Kan. Abt. 102 (1985): 76–146. 30 M. Brett and L. I. Hamilton, “New Evidence for the Canons of the First Lateran Council,” BMCL 30 (2013): 1–20; M. Brett and R. Somerville, “The Transmission of the Councils from 1130 to 1139,” in Pope Innocent II (1130–43). The World vs the City, eds. J. Doran and D. J. Smith (London-New York, 2016), 226–271. 31 For a detailed study, see D. Summerlin, The Canons of the Third Lateran Council of 1179: Their Origin and Reception (Cambridge, 2019), 125–182.

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sometime between 1181 and 1187.32 The Council of Westminster (1200) held under Hubert Walter adopted only those canons of the Third Lateran Council that suited the needs of the region, canons which he drew from the Anglo-Norman decretal collection Appendix Concilii Lateranensis.33 A provincial or diocesan council could omit some canons, repeat others in their entirety, and adapt others to fit the needs of the council. For example, the Angers Compilation, dating between 1216 and 1219 and recording the decrees of synods in France and Anglo-Norman England, included canons promulgated at Pope Innocent III’s Fourth Lateran Council (1215). However, these canons were adapted. Canon 21 of the Fourth Lateran Council required the laity to confess yearly and to receive the eucharist at Easter, unless, having consulted with a priest, there was a good reason to refrain from receiving it for the time being. Those who failed to do so were barred from entering church for the remainder of their lives and denied a Christian burial. The canon as found in the Angers Collection failed to include the portion of the conciliar canon dealing with refraining from the eucharist and the repercussions for not receiving it. Richard Poore, bishop of Salisbury, also selectively included canons from the council; he likewise edited the language of the council’s canons in his collection of statutes for his diocese, particularly in the case punishment for clerical fornication.34 As a final example, c.62 of the Fourth Lateran Council dealt with the proper storage, care, and use of holy relics: it sought the proper treatment of relics, to control the behavior of alms collections, to curb the abuses of indulgences, and to require authorization to beg for alms and to preach. However, which elements of the canon were emphasized depended upon local circumstances. The Benedictine abbeys of Sainte-Colombe, Saint-Pierre-le-Vif, and Saint-Loup-de Naud (a priory of Saint-Pierre-le-Vif) in the diocese of Sens side-stepped the portion of the canon that forbade the use of relics for financial gain.35 While decretal collections may have recorded conciliar canons deemed essential by the compiler, (arch)bishops and abbots were equally important for the form and fashion in which conciliar canons were implemented. The abundant literature on decretal law was almost invariably a by-product of the teaching process and represented lectures and observations on the texts made by law teachers of the period. Many of the more celebrated writers combined teaching with private practice, administrative careers, and/or judicial appointments. Geoffrey of Trani (d. 1245), author of an early and much-copied Summa on the Liber extra,

32 I bid., 206. For more on local reception of the canons from the Third Lateran Council see pp. 119–213. 33 D. Summerlin, “Hubert Walter’s Council of Westminster in 1200 and Its Use of Alexander III’s 1179 Council,” in The Use of Canon Law in Ecclesiastical Administration, eds. Eichbauer and Summerlin, 121–139. 34 J. M. Wayno, “Rethinking the Fourth Lateran Council of 1215,” Speculum 93, no. 3 (2018): 611–637, 622–627. 35 C. Oakland, “The Legacy of Canon 62 in the Diocese of Sens in Northern France (1215–1469),” in The Fourth Lateran Council and the Development of Canon Law and the ius commune, eds. A. Larson and A. Massironi, 187–204.

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first taught at Naples and then at Bologna, then took a judicial appointment at the papal curia, and finally ended with an appointment as a cardinal.36 One of Geoffrey’s patrons was Sinibaldo dei Fieschi, who, after teaching for a time at Bologna and holding a succession of increasingly important curial positions, ultimately became Pope Innocent IV.37 Even during his eventful pontificate, Sinibaldo continued his work as a legal scholar and completed his Apparatus in quinque libros decretalium, a commentary on the Liber extra shortly before his death. One of Sinibaldo’s contemporaries during his student years at Bologna was Henry of Susa (d. 1271), who taught canon law for a brief period at Paris but spent much of his mature life as an adviser to kings and popes. Like Sinibaldo, Henry of Susa continued to revise and expand his legal writings long after he had stopped lecturing. He completed a short Summa on the titles of the Liber extra (which later came to be called the Summa aurea or “Golden Summa”) while he was archbishop of Embrun and his lengthy Lectura on the Liber extra after he had become cardinal-bishop of Ostia in 1262. As a consequence of this last and highest of his ecclesiastical offices, Henry of Susa is usually referred to as Hostiensis.38 William Durand (d. 1296), a younger contemporary of Hostiensis and Innocent IV, likewise combined scholarship and an academic career with judicial and administrative appointments. After completing his doctorate at Bologna, Durand taught there for a while and later took a professorship at Modena. Subsequently he was appointed to a judgeship in the curia, then returned to Bologna as its papal governor, and late in life became bishop of Mende in the French Midi. Durand’s contemporaries rightly regarded him as a distinguished scholar, especially for his Speculum iudiciale, which he completed while serving as a judge and which he subsequently revised while he was a bishop. Durand’s Speculum became the leading procedural textbook of the later Middle Ages.39 One of the last of the great figures of canon law in the period between 1234 and 1325 was Giovanni d’Andrea, commonly known by the Latinized form of his name as Johannes Andreae (d. 1348). Johannes Andreae, unlike the others, was a married layman and taught throughout most of his life, mainly at Bologna, where he completed his doctorate between 1296 and 1300. Johannes combined his teaching with service as a legal adviser to the municipality of Bologna and to several popes, notably John XXII, who appointed him a papal legate—a most unusual position for a layman to hold. Johannes compiled the standard gloss to the Liber sextus and to the Constitutiones Clementinae, wrote a lengthy Lectura (which he entitled Novella, 36 S. Kuttner, “Der Kardinalat des Gottfried von Trani,” Studia et documenta historiae et iuris 6 (1940): 124–131. 37 K. G. Cushing, “Sinibaldo Fieschi (Pope Innocent IV) 1180/90–1254,” in Law and the Christian Tradition in Italy: The Legacy of the Great Jurists, eds. O. Condorelli and R. Domingo (LondonNew York: Routledge, 2020), 70–81. 38 Pennington, “Enrico da Susa (Cardinal Hostiensis (ca. 1200–1271),” in Law and the Christian Tradition in Italy, eds. Condorelli and Domingo, 82–97. 39 O. Condorelli, “Guillaume Durand (c.1230–1296),” in Great Christian Jurists in French History, eds. O. Descamps and R. Domingo (Cambridge, 2019), 52–70.

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in honor of one of his daughters who bore that name), and composed numerous additional comments on the Speculum iudiciale of William Durand.40 Contributing further to the abundant literature on decretal law was the incorporation of Roman law which began to take off in the late eleventh/early twelfth century and increased exponentially throughout the twelfth and thirteenth centuries. Canonists in the late twelfth century habitually borrowed terms, ideas, concepts, and institutions from the civilians, while civilian writers frequently compared canonical institutions and practices with those that they found in Roman legal texts. By the early thirteenth century the symbiotic relationship between the two learned laws (so called in contrast to customary law and municipal statutory law, which were not typically subjects of formal study in university law faculties) had grown so close and pervasive that scholars sometimes speak of a “reception” of Roman law by the canonists. “Reception” in this context means that canonists accepted the law of Justinian’s Corpus as a supplementary source of canon law.41 Thus, when canonical sources failed to supply answers to a question or solutions to a problem, canonists sometimes drew the information and legal rules that they needed from Roman law sources. In a practical sense, as well, the two laws were interdependent. Law students who realistically hoped to make a living as practicing lawyers needed to study both laws in order to acquire the skills necessary to assure themselves a livelihood. Short handbooks of civil law for canonists and of canon law for civilians consequently found an eager readership and circulated widely.42 Bologna was an important center for the teaching of Roman law and canon law. Bulgarus de Bulgarinis (d. ca. 1166), along with Martinus Gosia (d. ca. 1160), Hugo da Porta Ravennate (d. between 1166 and 1171), and Jacobus (d. 1178) were regarded as the “Four Doctors”. These jurists had studied under Irnerius and followed in his footsteps, teaching Roman law at Bologna between ca. 1130 and ca. 1170. Bulgarus and Martinus were the most renowned of the Four Doctors. Bulgarus studied the interpretation of a law and the particular purpose for its enactment. Martinus’s study of law led him to believe that a law could be modified by reference to equity. He is best known for his treatise on consanguinity and his treatise on dowry law. Hugo compiled a treaty on inheritance known as the Summa de petitione hereditatis. Finally, Jacobus may have compiled a treatise on criminal law. Among those in the generation that followed the “Four Doctors” as magisters 40 P. D. Clarke, “Giovanni d’Andrea (1270–1348),” in Law and the Christian Tradition in Italy, eds. Condorelli and Domingo, 145–159; J. Otaduy, “Juan de Andrés,” in Juristas universales, ed. R. Domingo (Madrid, 2004), 1:499–506; S. Stelling-Michaud, “Jean d’André,” in DDC, 6:89–92; F. Gillmann, “Zur Frage der Abfassungszeit der Novelle des Johannes Andreä zu den Dekretalen – Gregors IX.,” AKKR 104 (1924): 261–275. 41 E. C. C. Coppens, “L’interpétation analogique des termes de droit romaine en droit canonique médiéval,” in Actes du colloque “Terminologie de la vie intellectuelle au moyen âge” (Turnhout, 1988), 54–64; S. Kuttner, “Some Considerations on the Role of secular Law and the Institutions in the History of Canon Law,” in Scritti di sociologia e politica in onore di Luigi Sturzo (Bologna, 1953), 2:351–362, repr. in Kuttner’s Studies in the History of Medieval Canon Law. 42 I. Baumgärtner, “‘Was muß ein Legist vom Kirchenrecht wissen?’ Rofredus Beneventanus und sein Libelli de iure canonico,” in Proceedings Cambridge 1984, 223–245.

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of Roman law include: Rogerius (d. 1162); Placentius (d. ca. 1182), who taught at Montpellier; and Johannes Bassianus, who studied under Bulgarus (second half of twelfth century). The canonist and theologian Vacarius worked in the household of Theobald, archbishop of Canterbury and taught Roman law at Oxford possibly between 1149 and the 1190s. He compiled the Liber pauperum (“The Poor Men’s Book”) after 1149, which served as an introduction to the study of Roman law. The thirteenth century saw Roman jurists—such as Hugolinus de Presbytero (d. ca. 1235); Azo (d. ca. 1230), who had studied under Bassianus, Tancred (d. 1236); Accursius (fl. 1230s), who had studied under Azo; Odofredus (d. ca. 1265); and Cino Sinibuldi of Pistoia (d. 1336)—commenting on Justinian’s Corpus iuris civilis (Institutes, Digest, Codex, and Novellae) and, in turn, influencing canonical commentary.43 The marriage of lepers offers an excellent case study both of decretals engaging in a shifting social climate and of Decretalist commentary adapting Gratian’s Decretum and Roman law to newly perceived problems. Canonists of the mid-eleventh and early twelfth century, such as Gratian, interpreted leprosy through the lens of reform and renewal. The leprous sinner, marked by divine judgment (divinum iudicium), was an allegory for the need to confess and perform satisfaction to be cleansed by God. The leprous simoniac was a metaphor for the clerical sin of simony and rapid promotion through the ecclesiastical ranks.44 The rapid proliferation of leprosaria (leper houses) in the twelfth century, however, marked a shift in thinking of leprosy as a spiritual affliction to one regarded as a significant threat to public health. Bernard of Pavia devoted an entire title to this issue, De coniugio leprosorum, in his Compilatio prima, a title which also would be incorporated into the Liber extra. The papacy and Decretalists grappled with the question of whether leprosy should be treated under the same umbrella as serious illnesses, and thus subject to the same legal principles, or was this disease separate and distinct enough to warrant a new legal principle. Of particular concern was whether a spouse could be forced to render the conjugal debt, a challenging issue that elicited different opinions. In one case, Pope Alexander III decreed that if wife could not be exhorted to render

43 E. Cortese, Il diritto nella storia medievale. II: Il basso medioevo (Rome, 1995), 145–195; M. Bellomo, The Common Legal Past of Europe, 1000–1800, trans. by L. G. Cochrane (Washington, DC, 1995), 167–174; Brundage, The Medieval Origins of the Legal Profession, 82–93; P. Stein, Roman Law in European History (Cambridge, 1999), 47–49. On Vacarius in particular, see the work of J. Taliadoros, Law and Theology in Twelfth-Century England: The Works of Master Vacarius (c.1115/1120–c.1200) (Turnhout, 2006). On Azo and Accursius in particular, see E. Conte, “Azo (ca. 1165 to ca. 1220/30) and Accursius (1182/5 to ca. 1263),” in Law and the Christian Tradition in Italy, eds. Condorelli and Domingo, 56–69. On Cino Sinibuldi of Pistoia see G. Speciale, “Cino Sinibuldi da Pistoia (ca. 1265–1336),” in Law and the Christian Tradition in Italy, eds. Condorelli and Domingo, 128–144. Individual entries that can be accessed in K. Pennington and C. Donahue Jr., “Bio-Bibliographical Guide to Medieval and Early Modern Jurists,” available at http://amesfoundation.law.harvard.edu/BioBibCanonists/. 44 M. H. Eichbauer, “Legal Authorities and Their Legislative Priorities: The Treatment of Leprosy in the Sources of Canon Law,” ZRG Kan. Abt. 106 (2020): 153–195, here 163–174.

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debt, then the couple should remain celibate.45 In another case, he decreed that the debt should be rendered without exception.46 Bernard of Pavia had concluded that leprosy (elephantinus) equated to scabies (an itch) and tigna (a bad smell caused by a discharge); they neither impeded the ability to contract a marriage, nor separated an already contracted marriage, nor negated the conjugal debt.47 Geoffrey of Trani agreed that the healthy spouse should live nearby the leprous spouse if s/he had entered a leper house so as to render the debt upon request.48 As martial law was a keen area of interest for the papacy, Hostiensis devoted particular attention to how leprosy impacted the rendering of the conjugal debt. He stressed the importance of conjugal affection and the duty to render the debt. Drawing from a gloss of Alanus Anglicus,49 Hostiensis maintained that while a wife had to share neither the same bed nor the same house with the leprous spouse, she should reside nearby so her husband was not cheated of his debt.50 What, however, should happen if she continued to resist rendering the debt despite being repeatedly chided to do so? Could she be compelled despite her refusal? Hostiensis leaned on Gratian’s Decretum—specifically C.33 q.5 c.2 in which a husband may not force his wife to consent to his vow of chastity, and C.32 q.5 c.17 in which a husband could not be sent away no matter how he changed—to argue that the healthy ought to render the debt. No leprous person, however, ought to be so wicked as to demand it too often, and therefore the husband ought to proceed with utmost caution. On this, Hostiensis commented, every master agreed: the wife was compelled to render the conjugal debt. “[W]hat is demanded must be rendered in accord with the Apostles’ general commandment, which gives no exception for this case.”51 This mandate originated not from a special positive right, which, as Gratian laid out in Cause 25, could be changed, but rather from apostolic precept and from a general positive right, which could not be changed.52 He offered a litany of cross-references to legal principles from the Digest and from Gratian’s Decretum to illustrate concepts generally held without exception: the definition of a proctor (Dig. 3.3.1), that all clerics should live a life in common (C.12 q.1 c.2), that decretal letters possessed authority (D.19 c.1), that those who waged wars by the authority of God did not

45 1 Comp. 4.8.1 (X 4.8.1). See Brundage, “Marriage and Sexuality in the Decretals of Pope Alexander III,” in Miscellanea Rolando Bandinelli Papa Alessandro III, ed. F. Liotta (Siena 1986), 57–83; C. Duggan, “Decretals of Alexander III to England”, in Miscellanea Rolando Bandinelli Papa Alessandro III, 85–151. 46  1 Comp. 4.8.2 (X 4.8.2). 47 Bernard of Pavia, Summa Decretalium, eds. E. Adolph and T. Laspeyres (Regensburg 1860, rpt. Graz 1956), ad X 4.8 (pp. 152–153). 48 Godfredus Tranensis, Summa super titulis Decretalium (Lyon 1519; rpt. Aalen 1968), ad X 4.8 (fol. 179vb / p. 360). 49  See P. Landau, “Alanus Anglicus,” in Lexikon des Mittelalters (Turnhout/München-Zürich, 1980), 1:267–268. 50 Hostiensis, Lectura sive apparatus domini Hostiensis super quinque libris decretalium, 2 vols (Strasbourg 1512), ad X 4.8.1 s.v. §Quoniam igitur – Ministrent (vol. 2 fol. 217ra). 51  1 Comp. 4.8.2 (X 4.8.2). 52 Hostiensis, Lectura, ad X 4.8.1 s.v. §Quoniam igitur – Ministrent (vol. 2 fol. 217ra–217rb).

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transgress His precept not to kill (C.23 q.5 c.19), the method by which a debtor was formally released from his obligations (Dig. 46.4.6), and that investiture of a church by the laity was prohibited (C.1 q.3 c.8).53 Having laid out the position that a wife should render the debt to her leprous husband, Hostiensis maintained that with her refusals she could not be compelled to do so.54 He provided cross-references, also from the Gratian’s Decretum and the Digest, to illustrate the shades of grey in the law: though charged with a crime, defendants retained their possessions until the case against them has been proved (C.2 q.2 c.2); that law originated from different sources, for example, divine ordinances were established by nature while human ordinances were established by usage (D.1 c.1); while not committing the violent act, he who could have prevented it was liable for not doing so (Dig. 9.2.45.pr); that those who defended themselves were without fault unless they injured another accidently while defending themselves (Dig. 9.2.45.4); and while a debtor’s possessions could be taken to repay that which was owed, he must be allowed to keep household equipment and clothing (Dig. 20.1.6). Hostiensis then offered a few cross-references to Justinian’s Codex and the Decretum to point out that generally held principles could be changed as interpretations changed: concerning compromises (Cod. 2.4.3), that the emperor’s duty was to interpret questions involving equity and law (Cod. 1.14.1), and that second marriages were proven as lawful as first marriages (C.31 q.1 c.12). In each of these cases context and circumstances played key roles to interpreting the law. He maintained further that one ought not to be excommunicated by the Church in the event that an infirmity was so horrible that the healthy spouse was in no way able to be moved to marital relations. A sentence of excommunication could not bind that which was impossible to perform.55 The Church ought to uphold, not loosen, the debt; if, however, the husband, perhaps on account of some horrible disfigurement or other cause, was no longer able to render it, there should be a relaxing of the norm.56 While spouses were to render the conjugal debt, if, after having been advised to do so, the wife did not want to acquiesce, she was not to be compelled and the couple should remain chaste.57 Stated another way, if the wife could not be convinced to render the debt and both spouses promised to remain celibate, the situation should be accepted. If, however, one of the two spouses violated the promise of continence, s/he would be excommunicated.58 Pope Innocent IV would note that though the wife could be exhorted to render the debt, if, after all the exhortations, she refused, her decision should be tolerated.59 Johannes Andreae would echo the position, maintaining that while the healthy should render the debt, they 53  Ibid., ad X 4.8.2 s.v. §Quod si virum – Generali (vol. 2 fols. 217rb–217va). 54 Ibid., ad X 4.8.1 s.v. §Quoniam igitur – Ministrent (vol. 2 fol. 217rb); Ibid., ad X 4.8.1 s.v. §Quod si mandatum – Excommunicationis. 55  Ibid., ad X 4.8.2 s.v. §Quod si virum – Precepto apostoli (vol. 2 fol. 217va). 56  Ibid., ad X 4.8.2 s.v. §Quod si virum – Inventitur (vol. 2 fol. 217va). 57 Hostiensis, Summa aurea ( Venice 1574), ad X. 4.8 (col. 1322). 58 Hostiensis, Lectura, ad X 4.8.1 s.v. Pervenit (vol. 2 fol. 217ra). 59  Pope Innocent IV, Apparatus in quinque libros Decretalium (Frankfurt 1570), ad X 4.8.1 (fol. 473rb).

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ought not to be compelled to do so.60 If the wife could not be swayed, she was not to be compelled and the partners should promise to remain celibate. Papal responses to episcopal questions about the extent to which a leprosy diagnosis impacted a marriage underscores a papacy actively shaping the law in reaction to the current climate. The commentary of the Decretalists expounded on the pope’s decretals to flesh out the juridical implications using principals found in the decretals, the Decretum, and in Roman law. In the twelfth century, the papacy found itself more engaged as a driver of law. Papal decretals, which had been a feature of the canonical tradition since late antiquity, began to play a more important role. Responses (responsa/responsiones) and rescripts (rescripta/rescriptae) recorded the pope’s response to legal question or his decision on a case. Popes took an active role in holding councils, whether in person or via their legate, which added to their legislative activity. The pace of legislation had begun to quicken. Jurists gathered these papal decretals and conciliar acts into new collections to keep lawbooks current since the circulation of Gratian’s Decretum earlier in the century. Just as canonists had commented on the Decretum, some of these same jurists along with others of the age commented on the decretal collections compiled. Known as Decretalists, they were steeped in both the law found in Gratian as well as Roman law, which was burgeoning at places such as Bologna. The ius novum (“new law”) found in these decretal collections together with the ius vetus (“old law”) found in Gratian’s Decretum formed a unified body of canon law studied at universities and used by administrators. Despite a unified body of law, the source of law had taken a distinct turn with the thirteenth century. No longer was it the mining of the wide variety of texts from older collections which included texts from a diverse variety of legislative bodies—ancient church councils and papal decretals, the writings of Church Fathers, secular rulers, penitential manuals, and monastic rules. With the thirteenth century, legal norms largely emanated from a centralized authority, the papacy and the juridical commentary on their decretals and conciliar canons. This increasing acceptance of papal juridical authority, in turn, diminished the ability of judges elsewhere in the ecclesiastical hierarchy to make their own decisions and develop the legal sources.

60  Johannes Andreae, Apparatus glossarum in Decretales, ad X 4.8.1 s.v. Ministrent.

6 CANON LAW IN INTELLECTUAL SPACES

Canon law permeated European life in the Middle Ages. It not only regulated the life of clerics and the religious, but also regulated the life of laity through the sacraments and marital relations. It structured the relationship between the sacred and secular with policies regarding ecclesiastical property and donations, and secular interference within the Church. Canon law infused and informed the world in which it occupied. As a body of thought it was studied and applied by those who found its principles useful.1 This chapter explores a few examples of the spaces canonical thought permeated. Penitentials addressed similar topics and drew from similar sources as canonical collections. Theological tracts of the twelfth and thirteenth century demonstrate the slippage between theology and law through the lens of divine and natural law. Romano-canonical principles likewise permeated secular and customary law as compilers saw such principles as integral to their particular locale. Humans sin. It has been, and always will be, a fact of Christian life. Confession of those sins to and performance of acts prescribed by the priest who served as a doctor for the soul atoned for those sins, reconciled the sinner with God, and returned him/her to the road of perfection. The acts prescribed by the confessor, the priest, are referred to as penance.2 Confessors, who tended to the sins of clerics, monastics, and the laity, often turned to penitentials, manuals that helped them to determine the nature and gravity of the sin and to assign the appropriate penance in atonement for it. For example, a priest might assign a pilgrimage to a saint’s shrine as penance to atone for the sin of homicide. To atone for the sin of greed, the priest 1  See B. Stock, The Implications of Literacy: Written Language and Models of Interpretation in the Eleventh and Twelfth Centuries (Princeton, 1983), Part II Textual Communities. 2  For an excellent introduction to penance, see R. Means, Penance in Medieval Europe, 600–1200 (Cambridge, 2014). DOI: 10.4324/9781003156734-7

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might assign the penance of fasting on bread and water. As we have seen, the line between canon law and penance had been blurred since the early Middle Ages. Canonical collections, such as those of Regino of Prüm, Burchard of Worms, and Gratian, wove penance into individual books or had sections devoted explicitly to the subject. Penitentials, like canonical collections, addressed topics such as lying, homicide, marriage, and excommunication. Penitentials, also like canonical collections, drew upon Scripture, conciliar canons, monastic rules, and, on occasion, secular law. Together with the canonical collections, penitentials set forth the norms and processes for the clerical authorities who sat in judgment of offenses. Early medieval penitentials prescribed specific “tariffs” for all sorts of behavioral, particularly sexual, transgressions as a way to resolve conflict through pragmatic, practical, and pastoral means. The priest welcomed, questioned, and advised the penitent by discerning his intentions and what was in his heart and, based upon the information gleaned during confession, determined what price or “tariff”, should be paid, that is, performed, to compensate for the transgression.3 One of the earliest penitentials was that of Finnian (or Vinnian) of Clonard, which dates from Ireland in the first half of the sixth century. It recommended that a cleric who lusted after a virgin or any woman in his heart, but did not speak it, serve a penance of seven days on an allowance of bread and water. In another example, it recommended a penance of six years, three of which on an allowance of bread and water and the remaining three years abstaining from meat and wine, if a cleric or woman who practiced magic led anyone astray by their magic.4 Dating from the seventh century, the Anglo-Saxon Iudicia Theodori is attributed to Archbishop Theodore of Canterbury. In his penitential, one finds regulations stipulating that if a lay Christian vomits because of drunkenness, he should do penance for 15 days. He who drinks blood or semen shall do penance for three years. As a final example, if a mouse should fall into a liquid, it should be removed and sprinkled with holy water. If the mouse was alive, the liquid could be drunk. If the mouse was dead, the liquid should be discarded and the container cleaned.5 The twelfth- and early-thirteenth-century Libri penitentiales (“Books of Penance”) and Summae confessorum (“Summa for Confessors”) marked a gradual shift from an overwhelming concern with satisfaction for sins to a concern with the penitent’s intentionality behind and confession of sins. Description of sin and the contextualization of sexual offenses called upon the priest to use his best judgment.6 3  C. Vogel, Les Libri Paenitentiales (Turnout, 1978); J. Longère, “Quelques ‘Summa de poenitentia’ à la fin du XIIe siècle et au début du XIIIe siècle,” in La piété populaire au Moyen Âge, ed. E. Delaruelle (Turin, 1975), 45–58. 4  L. Bieler, ed., The Irish Penitentials (Dublin, 1963), c.17, c.18 (p. 81). 5  Die Canones Theodori Cantuariensis und ihre Ueberlieferungsformen, ed. P. W. Finsterwalder (Weimar, 1929), 1.5; 1.3, 8; see also A. J. Frantzen, “The Tradition of Penitentials in Anglo-Saxon England,” Anglo-Saxon England 11 (1982): 23–56. 6  J. Goering, “The Internal Forum and the Literature of Penance and Confession,” in HMCL, 379– 428; more broadly see O. Lottin, Psychologie et Morale aux XIIe et XIIIe Siècles, 6 vols (Gembloux, 1942–1960); S. Kuttner, Kanonistische Schuldlehre von Gratian bis auf die Dekretalen Gregors IX: Systematisch auf Grund der handschriftlichen Quellen dargestellt (Vatican City, 1935).

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These manuals were particularly concerned with the way in which confessors conducted confession by elaborating on the theology, law, doctrine, and social problems underlying the sacrament of penance.7 The penitential manuals of the twelfth and thirteenth centuries represent the need for the confessor to be a “jack of all trades”, competent in theology in order to instruct and guide the penitent, competent in canon law in order to deal with offenses that fell under church law, and competent in Roman law in order to draw upon principles not covered by canon law. All of these competencies, however, had to be distilled in a manner that would be rendered serviceable to the intended user who may not be trained to read the technical language or did not have access to the source material to read it for himself.8 The penitential forum paralleled the judicial forum and twelfth- and early-­ thirteenth-century pastoral theologians wove legal texts into their penitentials as they sought the correction of and atonement for sin in order to return the faithful to the path toward God. Peter the Chanter’s Summa de sacramentis et animae conciliis was composed in stages between 1191 and his death in 1197 while teaching theology at the University of Paris. It includes a wide swath of material found in Gratian’s Decretum; in conciliar canons, primarily from the eleventh and twelfth century, such as from the councils of Rome (1078), Reims (1119, 1131, and 1148), Rouen (1128 and 1190), Tours (1163), and from the Second Lateran (1139) and Third Lateran (1179) Councils; from papal letters found in decretal collections such as Compilationes I and II; and, finally, Roman legal principles found in the Digest, Institutes, and Codex.9 In his discussion of excommunication, a central— and ­practical—consideration was whether the crime was hidden and the number of people engaged in the crime. If, for example, the crime was hidden to all, the perpetrator could not be excommunicated despite such actions being a mortal sin. If the crime was open, such as a dice thrower, boxer, or balistarius, then the perpetrators could be excommunicated. The exceptions, however, were in whether there was a fear of retaliation from the prince or if the multitude were involved in the sin.10 The latter exception—raised both by St. Augustine in his treatise Contra Parmenianum and in his letter to Count Boniface and by Ivo of Chartres in his

  7 L. Boyle, “Summae confessorum,” in Les genres littéraires dans les sources théologiques et philosophiques médiévales: Définition, crique et exploitation: Actes du colloque internationale de Louvain-la-Neuve 25–27 mai 1981 (Louvain-la-Neuve 1982), 227–237; Vogel, Les Libri Paenitentiales, 13. See E. Papp Kamali, Felony and the Guilty Mind in Medieval England (Cambridge, 2019) for how judicial conceptions of intentionality (mens rea) intersected with the Church’s focus on confession and the internal state, particularly after the Fourth Lateran Council. See K. L. Jansen’s Peace and Penance in Late Medieval Italy (Princeton, 2018) for ways in which religious and civic leaders of Florence devised devices similar to confession and penance to settle disputes and maintain peace in the commune.   8  F. Bloomfield, ed., Thomae de Chobham Summa Confessorum (Louvain-Paris, 1968), xvi–xvii.   9 P. Chanter, Summa de sacramentis et animae consiliis, ed. J. Dugauquier (Lille, 1954–1967), table of citations for ecclesiastical authors and secular authors found in II, pp. 497–505; III.2a and III.2b, pp. 799–817. 10 Chanter, Summa de sacramentis et animae consiliis, III.2a, §242, pp. 241–242.

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Prologue—was of particular concern.11 Peter acknowledged the position taken at the Third Lateran Council (c.14), which excommunicated the laity who usurped the tithe because such actions endangered the ability of the Church to fulfill its charge of caring for souls. But then he discounted this view, drawing rather on C.23 q.4 d.p.c.31 in which Gratian held that if the majority were involved in sin, they should not be sentenced for fear of creating a schism. Peter homed in on Gratian’s view that if the majority were engaged in the crime, no punishment should be rendered. To him, the pervasiveness of the laity holding the tithe, while a sin, was not the most pressing of sins to punish.12 Theological tracts of the twelfth century likewise drew upon legal sources courtesy of both the intellectual climate around Paris—a climate interested in the reconciliation of disputes and methodical harmonization of authoritative texts— and the porous disciplinary boundaries between theology and law in northern France during the twelfth century. Peter Abelard (d. 1142) had drawn upon the prevailing legal thought in northern France available to him for various positions presented in his Sic et Non (1115–1117). For example, Abelard turned to papal decretals to sketch the contours of clerical marriage and the texts he selected represented the current legal viewpoint. Abelard, drawing on a letter of Pope Stephan IX, noted that a key difference between the Eastern and Western churches was whether priests, deacons, and subdeacons could marry. In the Western church, no one from subdeacon to bishop had the right to marry.13 Turning to the minor orders, however, a letter of Pope Leo IX decreed that doorkeepers, lectors, exorcists, or acolytes who had not taken vows and donned the habit of a monk were permitted to marry should they not wish to profess chastity. The woman must be a virgin—that is, neither a non-virgin, a divorced or twice-married woman, nor a widow—and the marriage must have the blessing of a priest. Should any of these qualifiers be ignored, he would not be able to pass from the minor orders into the subdeaconate in the major order.14 If those in the major orders—subdeacon, deacon, priest, or bishop—were found to have transgressed these rules, they would be removed from their position. Gregory I decreed that an abbot/deacon deposed for taking a wife could not be reinstated to his position. Subdeacons who made similar missteps were likewise removed from office and had to take communion with the laity.15 These texts are found in the Panormia, but the Panormia delves into the issue of clerical marriage as it connected to the question of clerical celibacy, which was a hot topic for eleventh-century reforms… and a

11 B. Brasington, Ways of Mercy: The Prologue of Ivo of Chartres, Edition and Analysis (Münster, 2004), 126–128 of the critical edition. 12 I Comp. 3.26.23 (X 3.30.19); Grat. C.23 q.4 d.p.c.31; Chanter, Summa de sacramentis et animae consiliis, III.2a, §242, p. 241. 13  Abelard 122.2 / Pan. 3.84. 14  Abelard 122.3 / Pan. 3.107. 15 Abelard 122.5 / Pan. 3.142. See also J. Brundage, Law, Sex, and Christian Society in Medieval Europe (Chicago, 1987), 214–223.

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bit of a challenge for Abelard given his history with Helöise.16 Grouped with those canons in the Panormia is the position not presented by Abelard: that those who enter the major orders must profess chastity, not keep concubines, and abstain from carnal relations if they are married, or otherwise lose their office.17 Abelard knew the prevailing legal thought on clerical marriage, but his interest lay in presenting it from the perspective of whether it was possible and at what point. The connected stance regarding celibacy, he left silent.18 The thirteenth-century mendicant theologians of the University of Paris continued to be intellectually versatile, also drawing upon legal thought though not in the same way as the secular masters who preceded them. In an age grappling with Aristotelian philosophy, their treatises were more speculative in character, often considering the nature of human acts, the sacraments, and God. Divine law, natural law, and the nature of law itself played more important roles than the particulars of the legal pronouncements themselves. Take, for example, the Franciscan St. Bonaventure (d. 1274). His De Reductione Artium ad Theologiam (“On the Reduction of the Arts to Theology”, ca. 1270) and sermons on the Ten Commandments given in 1267 during Lent at the University of Paris engaged with divine law—which comprised of the “necessary precepts, salutary warnings, and counsels of perfections and thus demonstrates what is the good and acceptable and perfect will of God”19—and with natural law. As the basis for all laws and divine precepts are the Ten Commandments, they serve the rule of a two-fold justice: those by which we are ordered to God (three commandments); and those by which we are ordered to our neighbor (seven commandments), namely do to others what you would wish done to yourself and do not do to others what you do not wish done to yourself. Transgressing these commandments are violations of natural law.20 16 Pan. 3.49; Pan. 3.50; Pan. 3.59 / ID 6.134; Pan. 3.102; Pan. 3.104; Pan. 3.107. See also S. Dusil, Wissensordnungen des Rechts im Wandel: Päpstlicher, Jurisdiktionsprimat und Zölibat zwischen 1000 und 1215 (Leuven, 2018), 111–112, and 148–152. Dusil points to the inclusion of c.12 of Urban II’s Council of Melfi in Pan. 3.101 which mandated the compulsory separation of clerics from the spouses, even, presumably, in the cases where a marriage was contracted licitly while still in the minor orders. Those who did not comply risked having the secular authorities place such women into bondage as servants. 17  Pan. 3.85–92; Pan. 3.101; Pan. 3.105; Pan. 3.133; Pan. 3.135. 18 As Stephan Dusil notes, eleventh-century reformers were debating the idea that all clerical marriages, even those licitly contracted while in the minor orders, were no longer valid even if the marriage was chaste. See “The Emerging Jurisprudence, the Second Lateran Council of 1139 and the Development of Canonical Impediments,” in The Use of Canon Law in the Ecclesiastical Administration, 1000–1234, eds. M. H. Eichbauer and D. Summerlin (Leiden, 2018), 140–158, here 140–146. 19 Bonaventure, De Reductione Artium ad Theologiam/On the Reduction of the Arts to Theology, trans. Z. Hayes, O.F.M (New York, 1996), no. 23, pp. 58, 59; no. 24, pp. 58, 59. 20 Bonaventure, Collationes de decem praeceptis/Collations on the Ten Commandments, trans. P. J. Spaeth (St. Bonaventure, New York, 1995), Collation I, nos. 20–21, p. 26; no. 23, p. 27; no. 24, p. 28. The Ten Commandments, in case one needs a reminder, are: you shall not have strange gods, take the name of your God in vain, kill, commit adultery, steal, bear false witness, desire your neighbor’s wife, nor covet your neighbor’s goods; you shall keep the sabbath, and you shall honor your father and mother.

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Divine and natural law are necessary prerequisites to which one’s journey to God are hinged. As such Bonaventure links transgressions typically found in legal codes to transgressions of divine and natural law. For example, he uses the second commandment—“You shall not take the name of your God in vain”—to rail against all forms of magic (e.g. verbal incantations, inscription of characters and images, and offering of sacrifices),21 and against the three forms of idolatry which include pacts with demons, superstitious fabrication of errors, and incorrect evaluations of creatures.22 The eighth ­commandment—“You shall not bear false witness against your neighbor”—anchors his discussion of vows, oaths, and lying.23 As a final example, Bonaventure’s discussion of sexual transgressions falls under the sixth commandment “You shall not commit adultery”. All sexual desire is forbidden unless it lies within the bond of matrimony formed within the Church. Illicit use of the sexual organs through adultery, fornication, harlotry, deflowering, sacrilege, and incest are sins against nature.24 The moral codes contained in God’s commandments anchored Bonaventure’s discussion of deviations from the faith; vows, oaths, and perjury; heresy; murder; sexual transgressions; and theft, which included a very brief mention of usury and simony. Though Bonaventure did not explicitly cite from legal sources, St. Thomas Aquinas engaged with law, on occasion, as an external factor that influenced human acts or human decision making. For example, Aquinas cited Gratian’s Decretum seven times in his Commentary on the Sentences and 81 times in his Summa theologiae. He cited papal decretals 32 times in his Commentary on Peter Lombard’s Sentences.25 Both theologians relied heavily on the Bible, particularly the Psalms, and the Church Fathers, particularly Augustine; sources upon which canonists also relied. While these sources did not necessarily differ, the purpose of the works and the intended audience of those works did. In Bonaventure and Aquinas’s quest to provide a pathway for the journey of the human spirit toward the love of God, and with that love of neighbor, the need of and use for law was to serve theology. Yet, disciplinary specialization did not mean being walled off from other areas of knowledge or that being known for their work in one discipline negated competency in another discipline. The porous boundaries between theology and legal thought suggest that theologians, at least some, had a working knowledge of the law. Theologians, after all, worked in an environment where lay

21  Ibid., Collation III, no. 4, p. 48. 22  Ibid., Collation III, no. 6, p. 49. 23  Ibid., Collation III, no. 26, p. 56. 24  Ibid., Collation VI, nos. 12–16, pp. 88–90. 25 K. Pennington, “Lex naturalis and Ius naturale,” The Jurist 68 (2008) 569–591, here 578. He drew his statistics from the Index Thomisticum (http://www.corpusthomisticum.org/it/index. age). While Pennington was critical of Aquinas’s handling of the law (579–585), it should be remembered that Aquinas was not approaching the law from the vantage point of a lawyer. For Aquinas treatise on law, see R. J. Henle, S.J., The Treatise on Law. St. Thomas Aquinas, Summa Theologiae, I–II, qq. 90–97 (Notre Dame, 1993).

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and ecclesiastical jurisdictions would overlap, and they needed to be intellectually versatile. Canonists had worked to draw clearer and tighter distinctions between divine and natural law. Gratian first defined natural law as “what is contained in the Law and the Gospel. By it, each person is commanded to do to other what he wants done to himself and prohibited from inflicting on others what he does not want done to himself.” This definition, which could be seen to echo the theologian Hugh of St. Victor, equated natural law, found in Scripture, with the Golden Rule. Seeming to slip between natural law and divine law, Gratian defined divine ordinances as those determined by nature, and thus natural law is equated to divine law.26 Following Isidore of Seville (d. 636), Gratian also identified natural law with the positive divine law of Scripture. Divine law was understood as the moral teachings of the Old Testament expressed in natural law. What God commands, as it belongs to natural law, stands ahead of customs or enactments which become null and void if contrary to natural law.27 Decretists commenting on Gratian’s Decretum identified natural law with an innate human inclination to do good and avoid evil, while they reserved the term divine law to designate the rules enunciated in the Scriptures. Natural law, according to the Glossa ordinaria, could be interpreted as granting both subjective and objective rights. Subjective rights, Rufinus characterized, were “a certain force instilled in every human creature by nature to do good and avoid the opposite” and included “commands, prohibitions, and demonstrations.” Objective rights were “the moral laws known through reason” and which were summed up by the Golden Rule found in the book of Matthew: do to others what he would have done to himself and not to do to others what he would not have done to himself (Matt. 7:12).28 Hostiensis devoted a significant portion of the prologue to his Summa on the titles of the Liber extra to the classification of laws. He saw the divine law contained in the Scriptures as an extension of rational natural law, and this led him to declare that human laws or judicial decisions that violated rational natural law, were untenable and lacked any binding force.29 In essence, divine and natural law helped man to achieve his purpose in God. Canonical thought was also instrumental to conversations about the nature of authority and the substitution of the term “positive law” for the older term “human law”. The significance of the new usage lay in its emphasis upon the notion that human authorities could create law by the express or positive action of a person 26 Grat. D.1 d.a.c.1 s.v. Naturali: “idest, divino” (Corpus Iuris Canonici with Glossa Ordinaria [Rome 1582], col. 1); Grat. D.1 c.1; Gratian, The Treatise on Laws (Decretum DD. 1–20), trans. A. Thompson with the Ordinary Gloss trans. J. Gordley (Washington, DC, 1993), 3–4. 27 Grat. D.8 d.p.c.1; Gratian, The Treatise on Laws, 25. Grat. D.8 c.2 s.v. Sicut; Gratian, The Treatise on Laws, 26. 28 B. Tierney, Liberty and Law: The Idea of Permissive Natural Law, 1100–1800 (Washington, DC, 2014), 18, 62–65. See also, T. Sol, Droit subjectif ou droit objectif? La notion de ius en droit sacramentaire au XIIe siècle (Turnhout, 2017). 29 Hostiensis, Summa aurea (Lyon, 1537), §5–§6 (fol. 2va).

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or group that possessed legislative authority. The new term appeared in one of Gregory IX’s decretals in the Liber extra, and this gave it official standing.30 A further refinement of this usage differentiated between positive laws that were “constituted” and those that were “unconstituted”. A constituted positive law meant one expressly proclaimed by a pope, monarch, or other authority, while unconstituted positive law referred to laws that originated in the customs of a community and thus derived their force from the implicit assent of the community to a particular practice, rather than from a legislative command by a ruler.31 The conversations in which theologians, canonists, and, as we will see, civil jurists and secular law engaged had roots in “general law”; a concept for which we find increasingly frequent references from the second half of the thirteenth century onward. This “general law”, or ius commune, referred to those principles of substantive law (the body of rules setting forth rights and obligations) and procedure that were in common use throughout Christendom. These principles were not simply debated in the classroom amongst law faculty and students, but rather influenced and shaped society and secular institutions. In effect, the general law usually meant Romano-canonical legal concepts and practices that municipal and royal courts could invoke to settle problems for which appropriate local custom or statute was lacking.32 The ius commune included not only the texts of Romano-canonical law, but also acceptance of the standard glosses and opinions of the commentators as authoritative sources of legitimate law. It was a pan-European system of norms, principles, and practices which allowed judges to adjust the rules to fit the circumstances of a particular situation where justice seemed to require departure from strict law. Thus, the ius commune in effect transformed Romano-canonical law into sets, or ‘blocks’ of legal practices and principles that were conceived as underlying local custom and statute.33 Judges could and did exercise discretion to invoke the ‘blocks’ of principles or practices that they deemed useful in order to resolve a dispute and make peace within a community. The ius commune, and with it canon law, operated in theory as well as in practice. The Romano-canonical principles of the ius commune shaped answers to societal questions and problems. The consilia of Bartolo da Sassoferrato (d. 1357) and Baldus de Ubaldis (d. 1400) are excellent examples of jurists who taught law and were 30  X 1.4.11. 31 Grat. D.1 c.5; see further G. Le Bras, C. Lefebvre, and J. Rambaud, L’âge classique, 1140–1378: Sources et théorie du droit (Paris, 1965), 388–396. 32 Despite the similarity in terms, the ius commune must not be confused with English Common Law, which was the body of customary rules worked out in English practice from the midtwelfth century onward. See A. Watson, The Making of the Civil Law (Cambridge, 1981). 33 K. Pennington, “Introduction to the Courts,” in HCP, 3–29, here 5; idem., “‘The ‘Big Bang’: Roman Law in the Early Twelfth-Century,” RIDC 18 (2007): 43–70. The standard development of the ius commune can be found in M. Bellomo, The Common Legal Past of Europe, 1000–1800, trans. L. G. Cochrane (Washington, DC, 1995). On Romano-canonical law in Italy, France, and Scotland see also A. Watson, Sources of Law, Legal Change, and Ambiguity (Philadelphia, 1984), 51–75.

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practicing lawyers applying the ius commune to the legal issues they faced. A consilium could either be an expert legal opinion in support of the position of a particular party which that party sought out, or it could be a legal opinion sought out by the judge from a jurist not involved in the case. The jurist Bartolo da Sassoferrato had been asked to weigh in on an inheritance dispute between the natural great-­g randsons of one Gualterio di Pietro of San Severino. One of Gualterio’s great-grandsons, Pascuccio, was a minor when he was made heir to his father’s, Gualterio’s grandson,

MAP 6.1 

Europe in the thirteenth century.

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family property. Cola, Pascuccio’s father, possessed goods from both his paternal and maternal line. Pascuccio died and his material grandfather, Atto, laid claim to Pascuccio’s portion from Gualterio’s side. Gualterio’s other two great-grandsons, Angelo and Menalcha, opposed Atto’s claim. Bartolo drew primarily upon the Digest to form his opinion in support of Atto. In another example of a consilium, Baldus de Ulbaldis relied principally on the Codex in his opinion on whether a woman could transfer a greater portion of her dowry, which she acquired after the death of first husband, to the children of her second marriage rather than to her son from the first marriage. Baldus concluded that the woman was permitted to do so and that it was not in violation of the Roman law Hac edictali (Cod. 5.9.6) which prohibited the second husband from receiving a larger portion than the children of the first marriage. In this case, the second husband was not receiving the portion, but rather the children of that second marriage. If the son of the first marriage wished to pursue the case, he must do so via an alternative legal avenue.34 As society changed, what it needed from the law also changed and therefore law had to keep pace to reflect the times. To this end, compilers of secular law saw the norms of both Roman and canon law as being useful.35 The Christianization of Denmark facilitated the influence of the Latin language, used by the Church and canon law. Both the Danish crown and church adopted, borrowed, and, in some cases, created Latin legal language modelled on Romano-canonical processes for recording disputes in their legal documents. The Diplomatarium Danicum, a collection of Danish charters, preserved the reliance on oral testimony in Danish law but it utilized the ars dictaminis (forms of letter writing), followed by use of the testimonium placiti (testimony of the courts) that developed from the notarial arts (ars notaria) toward the end of the thirteenth century, to frame and record the outcome of the proceedings.36 The conversion of central Europe also brought with it the influence of the ius commune. For example, the kingdoms of Bulgaria, Serbia, and Bosnia were heavily influenced by Roman law and the law 34 On consilia, see O. Cavallar and J. Kirshner, eds., Jurists and Jurisprudence in Medieval Italy: Texts and Contexts (Toronto, 2020), 43.3, pp. 792–796; 42.2, pp. 771–772, respectively. On the jurists, see O. Condorelli, “Bartolo da Sassoferrato (1313/14–1357),” and J. Kirshner, “Baldo degli Ubaldi da Perugia (1327–1400),” in Law and the Christian Tradition in Italy: The Legacy of the Great Jurists, eds. O. Condorelli and R. Domingo (London-New York, 2020), 160–178, and 179–197, respectively. 35 For an overview of the different forms of secular law, such as territorial law, feudal law, the Assizes and Liber Augustalis (Constitutions of Melfi) for Sicily, and maritime and commercial law, see M. Ascheri, The Laws of Late Medieval Italy (1000–1500): Foundations for a European Legal System (Leiden, 2013), ch. 5. 36 A. Leegaard Knudsen, “Latin and the Vernacular in Medieval Legal Documents: The Case of Denmark,” in Law and Language in the Middle Ages, eds. M. W. McHaffie, J. Benham, and H. Vogt (Leiden, 2018), 107–127; see also M. Korpiola, “High and Late Medieval Scandinavia: Codified Vernacular Law and Learned Legal Influences,” in The Oxford Handbook of European Legal History, eds. H. Pihlajamäki, M. D. Dubber, and M. Godfrey (Oxford, 2018), 378–403. To access Diplomatarium Danicum online, see https://diplomatarium.dk/english (accessed 11 May 2021).

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of the Eastern Roman Empire (Byzantine Empire). The secular laws of Dalmatia, in what is now modern-day Croatia, drew heavily on Italian statutes, in addition to both Roman and canon law.37 Principles and arguments from Roman law provided an authoritative source for refining and changing traditional rules that no longer fit the current culture. The glosses of Hugolino and Azo on the Codex engaged with customary legal status of serfs (manentes) found in the statutes of Bologna as opposed to that of the colonus found in Roman law. The end goal was to make it harder for serfs who come to the city and fled their landlords to be returned. The commentary of Romanists (glossators of Roman law) also shaped how Italian communes defended their rights against the Holy Roman Emperor Frederick Barbarossa’s attempts to exercise dominion over them.38 In Spain, the legal code La Ley de las siete Partidas (1265), promulgated under King Alphonso X the Wise of Castile (d. 1284), expounded on the ius commune as applied to the sources of law and the Church, administrative and military law, the organization of justice, feudal and family law, civil responsibility, rights of succession, and criminal law.39 As with other secular legal systems, the ius commune had some influence on English Common Law. The writ of Cessavit per biennium offers but one example.40 The original writ addressed the rights of a landowner to take back his property should the person to whom he leased it default on his obligations for two years. A possible impetus for the Statute of Gloucester was the complaint of Ellis of Tingewick. He had sought a remedy against the person to whom he had leased land and woodland wood for five marks per year (other evidence suggests that this was a grant in fee farm), but the lessee had destroyed the woodland and allowed the land to lie uncultivated to the point that Ellis could not be compensated for arrears of rent. While Roman law and canon law did not address the specific situation set forth in the writ, they did address questions of contracts and prescription, that is the acquisition of ownership of property through continuous and uncontested possession or use for a fixed period of time.41 And while we do not know if the specific legal texts were used, we do know that Accursius’s gloss on the Corpus iuris civilis, Azo’s Summa codicis, Bernard of Parma’s glosses on the Decretales, commentary on the decretals of Pope Innocent IV, and William Durand’s Speculum iudiciale were known. It can be said then that the person who formulated the writ had knowledge

37 M. Korpiola, “Customary Law and the Influence of Ius Commune in High and Late Medieval East Central Europe,” in The Oxford Handbook of European Legal History, eds. Pihlajamäki, Dubber, and Godfrey (Oxford, 2018), 404–429. 38 E. Conte, “Roman Law vs. Custom in a Changing Society: Italy in the Twelfth and Thirteenth Centuries,” in Custom: The Development and Uses of a Legal Concept in the Middle Ages. Proceedings of the Fifth Carlsberg Academy Conference on Medieval Legal History 2008, eds. P. Andersen and M. Münster-Swendsen (Copenhagen, 2009), 33–49. 39 Ascheri, The Laws of Late Medieval Italy, 245 n.1. 40 The writ had its roots in the 1278 Statute of Gloucester (ch. 4) but was reissued in a more generalized form in the 1285 Statute of Westminster II (ch. 21). 41  Cod. 4.66.2, Nov. 7.3.2, Nov. 120.8; X 3.18.4.

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of Roman and canon law and he used that knowledge to provide a legal solution to a problem that at that moment did not have one.42 Written texts of the Roman and canon law had circulated and were used in England in the middle years of the twelfth century. The Leges Henrici Primi (from the first half of the twelfth century) drew upon canonical principles.43 Ranulf de Glanville, Chief Justiciar for King Henry II, was immersed in the intellectual environment of the ius commune as he compiled Tractatus de legibus et consuetudinibus regni Anglie (“The Treatise on the Laws and Customs of the Kingdom of England”).44 The Magna Carta (1215), the charter delineating the relationship between the English king and the nobility/people, incorporated, in appropriate contexts, the principles of the ius commune. Such principles, for example, included the rights and liberties of the Church; enforcement of wills and protection of inheritance; framing the crown’s right to tax, collect on debt which included the safeguarding of the rights of those who stood as sureties for the debts of others, and seizing of land; framing of levying of fines on freemen, villeins, barons, and clergy; and the safeguarding of justice.45 As seen in William FitzStephen’s account of the royal council of Northampton in October 1164, Henry II’s court justified the legal action taken against Thomas Becket, archbishop of Canterbury, using Roman legal concepts. Essentially, the king’s court used the principles of the ius commune—such as “was charged/sued” (conventus est), pressing a claim for a specific sum (certi condictio = condictio certae pecuniae), regarding the matter of a loan (for use) (ex causa commodati), regarding the matter of surety (ex causa fideiussionis), an action for guardianship (actio tutelae), and warranted guarantee (cautio fideiussoria)—to advance civilian-style claims and actions.46 As the medieval treatise Bracton demonstrates, Roman, and to 42 D. Ibbetson, “Civilian and Canonist Influence on the Writ of Cessavit Per Biennium,” in Laws, Lawyers and Texts: Studies in Medieval Legal History in Honour of Paul Brand, eds. S. Jenks, J. Rose, and C. Whittick (Leiden, 2012), 87–100. As Ibbetson’s concluding comments (p. 100) suggest, scholars remain hesitant toward attributing extensive influence of the ius commune on English Common Law, though its influence is recognized. See also A. Musson, “The Influence of the Canon Law on the Administration of Justice in Late Medieval England,” in Der Einfluss der Kanonistik auf die europäische Rechtskultur. Vol. 4: Prozessrecht, ed. Y. Mausen (Cologne, 2014), 325–343. 43 L . J. Downer, ed., Leges Henrici Primi (Oxford, 1972); P. Wormald, The Making of English Law: King Alfred to the 12th Century, I: Legislation and Is Limits (Oxford, 1999; repr. 2001), 236–244, 411–414, 465–473. 44 G. D. G. Hall, ed. and trans., Tractatus de legibus et consuetudinibus regni Anglie qui Glanvilla vocatur/ The Treatise on Laws and Customs (Oxford, repr. 1993); J. Hudson, “From the Leges to Glanvill: Legal Expertise and Legal Reasoning,” in English Law Before Magna Carta: Felix Liebermann and Die Gesetze der Angelsachen, eds. S. Jurasinski, L. Oliver, and A. Rabin (Leiden, 2010), 221–249. 45 R. H. Helmholz, “Magna Carta and the Ius commune”, The University of Chicago Law Review 66, no. 2 (1999): 297–371; For more on surety, see K. Pennington, “The Ius commune, Suretyship, and Magna Carta,” RIDC 11 (2000): 255–274. 46 A. J. Duggan, “Roman, Canon and Common Law in Twelfth-Century England: The Council of Northampton (1164) Re-examined,” Historical Research 83, no. 221 (2010): 379–408. Duggan’s emphasis on clerics serving the crown is an important point as it shows the particular slippage between secular and sacred in the common law system. As she notes: “… the intellectual environment of the English law was enlarged and enriched by exposure to the learned law, Roman and canon, in the critical years 1160–80, when Henry II’s lawmen were fashioning the common law critical years 1160–80, when Henry II’s lawmen were fashioning the common law; …” (402).

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a lesser extent canonical, legal principles factored into the legal and professional identity of English jurists who were keen to prove that English law was already in line with those principles.47 Codes of customary law, known in French as coutumiers, proliferated in the twelfth and thirteenth centuries. While once thought that a coutumier was limited to the geographic region for which it was issued,48 it is now thought that manuscripts of coutumiers moved to areas other than the regions for which they were compiled and the ideas contained therein influenced the compilation of other coutumiers. As a result, legal concepts in one collection echoed those in other collections with the end result being less of a customary code with particulars specific to an area and more collections for use in an area that echoed other collections intended for the same purpose.49 Romano-canonical principles of the ius commune infiltrated the pages of coutumiers with compilers drawing implicitly and explicitly from both Roman and canon law. The Livre de Jostice et de Plet—compiled between 1260 and 1273, possibly by a student studying at Orléans—explicitly referenced the Liber extra of Gregory IX on 31 occasions in addition to 195 texts from the Digest.50 Coutumiers benefited from vernacular translations of the Romano-canonical tradition which made a different legal culture assessable to a new legal culture. Translations of Roman law appearing in the southern French dialect (Occitan/langue d’oc) include the Lo Codi, a synthesis of Justinian’s Codex between 1158 and 1162. The thirteenth century saw translations of Tancred of Bologna’s procedural manual, Gratian’s Decretum, Gregory IX’s Liber extra, and the entirety of Justinian’s Corpus iuris civilis. An example of a northern French translation (langue d’oïl) of Justinian’s Institutes demonstrates how the translator could make precise and deliberate changes to ensure that the specialized Latin was rendered into a generalized French. For example, the Roman term res publica translated into the more familiar term empire, which could also mean “rule, authority, or governance”. Sometimes the translator clarified difficult terminology, such as the Roman concept of “age of maturity” in the section of “On Supervisors” (De curatoribus), which meant boys over the age of 14 and women who were able to be in the company of men were to have a supervisor until the age of 25. The attribution of a text could be altered to emphasize the emperor as law-giver by omitting the accompanying names of the jurists found in the original. The text of a particular law could be altered to ensure that the reader had at the forefront of their mind that the law being read was that of the Roman empire, not of their own 47 T. McSweeney, Priests of the Law. Roman Law and the Making of the Common Law’s First Professionals (Oxford, 2019). 48 F. R. P. Akehurst, trans., The Coutumes de Beauvaisis of Philippe de Beaumanoir (Philadelphia, 1992), xiii. 49  A. Kuskowski, “Inventing Legal Space: From Regional Custom to Common Law in the Coutumiers of Medieval France,” in Space in the Medieval West: Places, Territories, and Imagined Geographies, ed. F. Madeline (London-New York, 2014), 133–155, here 137, 141. 50 J. Gaudemet, “L’influence des droits savants (romain et canonique) sur les texts de droit coutumier en occident avant le XVle siècle,” La norma en el derecho canonico. Actas del lll Congreso internacional de derecho canónico, Pamplona, 10-15 de octubre de 1976 (1979), 165–194.

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time.51 Translators, like the Romanists, engaged in the reshaping and reframing of Roman law for a new cultural milieux. The Coutumes de Beauvaisis, a code of customary law for Beauvaisis and the county of Clermont and compiled by Philippe de Beaumanoir who served as the chief judge (the bailli) of Gâtinais from 1279 to 1283, exemplifies the incorporation of Roman law and canon law. Beaumanoir would have needed to navigate the general practices and jurisdictional boundaries of lay and church courts, and his familiarity with Romano-canonical law enabled him to navigate within it, enforce it, or deviate from it as needed. Rather than cite explicitly from his legal source(s), he synthesized the principles found within the texts that he used. The canon law outlined in his coutumier shows a familiarity with procedural treatises, such as the canonist Tancred of Bologna’s Ordo iudiciarius. Written around 1216, Tancred’s Ordo was the most popular of the procedural handbooks.52 The treatise is neatly organized into four parts: the first treats the persons who ought to make up a trial; the second offers instructions regarding the plaintiff, defendant, judge, and those things which precede the trial (litis contesatio); the third concerns the trial and all things which pertain to the judgment up to the definitive sentence; the fourth addresses sentences and their execution, appeals, and restitution.53 Each part is subdivided to treat a particular legal concept and provides cross-references to the relevant texts contained in Gratian’s Decretum, the Liber extra of Gregory IX, and Justinian’s Codex and Digest. As the secular administrator for his district, Beaumanoir had within his territorial boundaries churches subject to the bishop as well as monasteries. Because he would have had to be familiar with procedure in ecclesiastical courts, Beaumanoir consolidated for everyday use principles found in both Tancred and the Liber extra. He knew that a bishop could not summon someone to court who resided outside his diocese without first seeking the permission of that bishop. A bishop should adhere to his jurisdictional boundaries. It behooved the individual to appear, however, or face being deemed contumacious and excommunicated, particularly if he ignored three summons.54 Interestingly, Beaumanoir recognizes the principle that an excommunication is a sentence to be feared irrespective of whether it is just or unjust.55 If the individual owned something in that diocese, or if he made a claim involving someone from the diocese and that individual made a counterclaim, which was unique to ecclesiastical court,56 or if his predecessor had begun a claim in the diocese and then died, he was still responsible for appearing even if 51  A. Kuskowski, “Translating Justinian: Transmitting and Transforming Roman Law in the Middle Ages,” in Law and Language in the Middle Ages, eds. McHaffie, Benham, and Vogt, 30–51. 52 J. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago, 2008), 162. 53 Tancred of Bologna, Ordo iudiciarius, in Libri de Iudiciorum Ordine, ed. F. C. Bergmann (Göttingen 1842; repr. Darmstadt, 1965), 86–316, here 90–91. 54 Ibid., 2.1 §3, p. 129; 2.3 §1–§2, pp. 133–134; 2.4 §1, pp. 135–136. X 1.3.34; X 2.19.7. 55 Akehurst, trans., The Coutumes de Beauvaisis of Philippe de Beaumanoir, ch. 2 §91, p. 42; on just and unjust sentences, see Grat. C.11 q.3. 56 Ibid., ch. 11 §357, p. 118; §359, p. 119; Brundage, The Medieval Origins of the Legal Profession, 419, 431. Brundage notes the ease in which counter claims were made in ecclesiastical court as opposed to secular court.

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he lived outside the diocese. In the case of appeals, if the judge is a papal legate, he must appeal directly to the pope. Otherwise, as laid out in Tancred’s Ordo, he may appeal to the bishop if the suit was before the dean, to the archbishop if the suit was before the bishop, and to the pope if the suit was before the archbishop.57 Echoing Tancred’s Ordo, Beaumanoir noted that ecclesiastical courts should not hear cases on feast days, the grain harvest, grape harvest, Holy Week, Easter week, the week of Pentecost, and the week of Christmas.58 As chief judge, Beaumanoir would have had to understand the relationship between the secular and the sacred and, because the sacred and secular did collide, would have had to accept that ecclesiastical and secular courts sometimes shared jurisdiction. For example, secular courts dealt with all cases involving a trial by battle or where the loss of life or limb was involved, except in cases in which one of the individuals involved was of privileged status such as clerics.59 If a cleric was suspected of a crime, secular judges could arrest him and hold him in prison, but could not put him to death in the prison. At the ecclesiastical judge’s request, the secular arm was to hand over the cleric, state the reason for his arrest, and allow the ecclesiastical judge to try him according to canon law having paid the secular court for the expense of his imprisonment. If the crime was not serious, no payment was required.60 If the secular judge did not know he was a cleric on account of his lack of tonsure, the ecclesiastical judge must prove his status and, if he could not, he remained in the custody of the secular court. If someone in the habit of cleric was arrested for a serious crime, he should be handed over to the ecclesiastical judge to determine whether he was in fact a cleric or simply a layman posing as one. If he was a cleric, he was sentenced to life in prison if found guilty. Yet if the person was found to be a layman, and he was found guilty of a serious crime, the Church could sentence him to life in prison as the ecclesiastical judge was not required to hand him over to secular authorities. If, however, the layman was arrested for something other than a serious crime, the ecclesiastical judge should hand him over to secular authorities.61 Beaumanoir seemed to be expounding on a basic principle found in the Liber extra: a layman who was posing as a cleric was not under ecclesiastical jurisdiction.62 In cases of threats or acts of violence between a cleric and a layman, a cleric who wished to ask for a guaranteed peace must do so in secular court but he swore to that peace in ecclesiastical court. Conversely, the layman must ask for the peace in ecclesiastical court but swear to it in secular court.63 In this regard,

57  Ibid., ch. 2 §93, p. 43; Tancred, Ordo, 4.5 §4, pp. 292–293. 58 I bid., ch. 2 §96, p. 44; Tancred, Ordo, 2.18 §1, p. 185; X 2.9.1; Brundage, The Medieval Origins of the Legal Profession, 420. 59 I bid., ch. 11 §340, p. 126; Tancred, Ordo, 1.5 §2, p. 112; X 3.49.5–6; X 3.50.5, X 3.50.9. 60 I bid., ch. 11 §350, p. 128; ch. 11 §352, p. 128. 61 Ibid., ch. 11 §353, p. 128; ch. 11 §354, p. 129; ch. 11 §355, p. 129. X 5.37.6 states that for serious crimes a cleric ought to be degraded and placed in a monastery, which could serve as a de facto prison. 62  X 5.33.27. 63  Akehurst, trans., The Coutumes de Beauvaisis of Philippe de Beaumanoir, ch. 11 §347, p. 127.

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Beaumanoir may have taken some liberties with his interpretation of ecclesiastical law.64 With that said, Beaumanoir recognized that effective governance entailed understanding the legal plurality in which one worked: what were the jurisdictional limitations, how jurisdictions overlapped, and in what ways they were in dialogue with each other. Canon law played a role in shaping the world in which it operated. Pastoral theologians turned to canon and Roman law in the formation of their penitentials. They were addressing, after all, similar topics such as excommunication and murder. The speculative theologians of the thirteenth century continued to see law as important. For them natural and a divine law as echoed in the canonical collections played a critical role. These works sought to keep the faithful on the path to salvation of their souls. The Romano-canonical principles of the ius commune, principles which were woven into and inseparable from canon law, were also not isolated to the university as musings of law faculty or the ideals of their students. They were found in the courtroom as seen with consilia. They filtered into secular and customary legal collections as rulers and administrators considered—or were forced to consider—what was fair and just. The ius commune truly was a set of universal legal principles and concepts, jurisprudential norms, customary legal norms, and constitutional norms.65

64  Neither Tancred nor the Liber extra seem to address this matter. 65 H. A. Kelly, “Medieval Jus commune versus/uersus Modern Ius commune; or Old ‘Juice’ and New Use,” in Proceedings Washington 2004, 377–403.

7 CANONICAL COURTS AND PROCEDURE

The Church’s courts addressed the transgressions of both laity and clerics and did so using procedural processes, which themselves were not stagnant but rather adapted over time. This chapter begins by laying out the various ecclesiastical courts, their personnel, and their purpose. Diocesan and synodal courts served in most cases as the court of first instance with the court of the archbishop, or metropolitan’s court, serving as a court of appeals or court of first instance in egregious cases. The pope exercised both original and appellate jurisdictions over controversies from every part of Western Christendom and his standing as the ultimate appeals judge of the Latin church was one of the principal sources of papal power.1 By 1325, the decisions of the papacy’s judicial forum, the Roman Rota, had overtaken decretal letters as the principal means for legal innovation in the Western church. The papacy’s penitential forum, the Apostolic Penitentiary, served as the “tribunal of conscience”. Like canonical collections, the courts evolved into a systematic structure. They would come to use Romano-canonical rules to settle the disputes brought before them and to impose disciplinary sanctions upon those who infringed the Church’s rules of behavior. As procedure evolved, procedural manuals helped legal experts navigate these waters. The second part of this chapter thus turns from courts to procedure. It explains the evolution of the principles of due process, the different types of procedure, the course of a trial, and the development of procedural manuals used by officers of the court. At the local level, bishops through the twelfth century usually treated dispute resolution as one duty among many in the ordinary course of business. Bishops themselves could be legal experts as a result of long experience in dealing with

1  Original jurisdiction is when the court is hearing the case for the first time. Appellate jurisdiction is when a court is hearing an appeal on a ruling made in a lower court. DOI: 10.4324/9781003156734-8

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the problems that came before them almost daily.2 Some bishops, notably Hubert Walter, archbishop of Canterbury (d. 1205), had resident canonical experts in their households to guide them through the legal maze. Bishops who faced a particularly delicate or perplexing legal problem had the option of convening a synod to deal with the matter. Synods were general assemblies of the clergy within a diocese or region. Their meetings provided a forum where clerics and their bishop could consult one another about current issues. The synodal canons or decrees adopted dealt with recurring problems. Synods could also conduct judicial hearings when the bishop needed or wanted the clergy of his diocese to participate in settling particularly difficult or important controversies. A synod could thus double as a court to which the bishop could refer legal issues of general interest or great importance—or matters for which he did not wish to bear sole responsibility. Bishops and synods remained the principal agents for the adjudication of canonical issues during the twelfth century and continued, in some places, to play judicial roles well beyond that period. Such arrangements became increasingly unsatisfactory, however, as canon law itself grew ever more complex and voluminous. Bishops, busy with other administrative and political concerns, could not readily find either the time or the patience to sit in judgment hour after hour, day after day, on routine disputes among members of their flock. Synods were expensive and time-consuming since holding one required dozens or even hundreds of clerics to absent themselves from their regular duties, often for considerable periods of time, to make the journey, participate in the synod, and then return home. The situation was equally frustrating from the viewpoint of litigants. They might have to follow the bishop for days or weeks on his peregrinations from one parish to the next, waiting for him to find time to deal with their complaints. Summoning a synod compounded the problem and exposed litigants to even greater delay and expense. Between the closing years of the twelfth century and those of the thirteenth century, judicial personnel became more specialized. Bishops in many parts of Christendom began to delegate most of their judicial duties to the “officiality” (officialis). The “officials” (officiales) were men who had formal training in law and often served as full-time judges functioning as the bishop’s judicial delegate.3 Advocates, lawyers who often boasted advanced degrees in canon or civil law, and sometimes in both, advised clients as officers of the court about technical questions of law, prepared the formal submissions that procedural law required, and presented legal arguments on behalf of their clients. An iurisperitus, a legal counsellor who 2  While focused on the period 1563 to 1615, T. Deutscher’s Punishment and Penance: Two Phases in the History of the Bishop’s Tribunal of Novara (Toronto, 2013) is an excellent study on an episcopal court’s adjudication of cases involving the clergy and the laity. 3 M. Burger, Bishops, Clerks, and Diocesan Governance in Thirteenth-Century England Reward and Punishment (Cambridge, 2012), 6; M. Vleeschouwers-Van Melkebeek, Le tribunal de l’officialité de Tournai et les comptes du scelleu, Introduction, édition et traduction française (Tournai, 2016) examines the fifteenth-century offficales’ records of the diocese of Tournai. The date and the name of the convicted, the reason of the conviction, whether punishment was imposed upon the condemned (financial fine or excommunication/interdict), and whether the fine was completely or at least partially paid are recorded.

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was often also an advocate, supplied a formal written opinion (consilium) at the request of either a judge or an individual litigant. Iurisperiti might also be employed to analyze the testimony of witnesses and other evidence, and to supply the legal arguments (allegationes) that supported the view of their client and then present that view orally and in writing to the court. Unlike the advocates and iurisperiti, proctors were not expected to be legal experts and hence depended less on academic credentials and more on their practical ability to manage litigation and to guide litigants successfully through the procedural and bureaucratic labyrinths of the court. Their expertise lay with the technicalities of courtroom practice. Proctors could prepare procedural documents, locate witnesses, and make court appearances on their client’s behalf. Notaries possessed a combination of formal academic study of the ars notariae, which dealt with the forms and contents of legal documents, and apprenticeship in a chancery or court. The documents notaries drafted had the standing of public instruments and judges normally accepted them as prima facie evidence that the transactions they recorded had taken place as described.4 The records of many local episcopal consistory courts typically lack a final decision. The records of the bishop’s court for the diocese of Ely (England) reveal that sometimes parties simply abandoned their cases part-way through the proceedings. In many instances they settled the matter out of court, and it is not unusual to find this indicated in a terse note by the recording clerk stating simply, “settled peacefully” (pax est) or “by agreement” (concordia est). The debt cases heard in the fifteenth-century bishop’s court of Carpentras (France) echo the preference of settlements. These cases often involved horizontal loans between social equals and loans from money lenders. They tended to be for a moderate amount and agreed upon through a verbal contract or a written contract signed by a notary, who was often a member of the clergy. As an agreed-upon obligation to repay another, the contract was a sworn oath and thus failure to fulfil one’s oath, failure to repay the debt, fell under the auspices of the bishop’s court. Carpentras’ register of cases reveal that lenders used the court as a vehicle for pressuring borrowers to admit their debt and agree upon a resolution. The episcopal consistory court was a forum for bringing conflicts to a close through peaceful means.5 Lesser prelates, such as archdeacons and occasionally rural or urban deans, in many regions developed additional courts of their own. These tribunals exercised jurisdiction over petty infractions of church law and heard lawsuits in which the 4 J. A. Brundage, “The Practice of Canon Law,” in HCP, 51–73, esp. 55–59; other positions included the registrar of the court who maintained the court’s records and apparitors (summoners) who served as court bailiffs. See K. L. Jansen, “‘Pro bono pacis’: Crime, Conflict, and Dispute Resolution: The Evidence of Notarial Peace Contracts in Late Medieval Florence,” Speculum 88 (2013): 427–456 for the role that notaries played in the resolution of conflict and the maintenance of peace outside of the judge’s courtroom. 5  For the diocese of Ely, see J. A. Brundage, “The Bar of the Ely Consistory Court in the Fourteenth Century: Advocates, Proctors, and Others,” JEH 43, no. 4 (1992): 541–560. For the diocese of Carpentras, see E. Hardman, Conflicts, Confessions, and Contracts: Diocesan Justice in Late FifteenthCentury Carpentras (Leiden, 2017). See also T. Lange, Excommunication for Debt in Late Medieval France (Cambridge, 2016).

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property or other disputed issues seemed not sufficiently important to warrant taking them to the bishop’s consistory court. Much of the business of the lower courts involved enforcement of the Church’s disciplinary rules concerning sexual misbehavior, drunkenness, marital disputes, infractions of the Church’s prohibition of work on Sundays and feast days, and the like. The archdeacon’s court touched matters of personal conduct and morality in particularly intimate ways and laypeople often resented this intrusion into their daily lives and domestic relationships. People further suspected (perhaps with good cause) that local bigwigs and men of means could persuade archdeacons to overlook their own misdemeanors by a judicious use of gifts, bribes, and other inducements. Suspicions of venality and corruption contributed further to the unpopularity of archdeacons and other minor prelates who exercised jurisdiction at the local level. Since archdeacons, like bishops, were often men of importance with numerous other demands on their time, they, too, sometimes appointed an official (officialis) of their own—often men with formal legal training—to exercise their judicial functions. Inevitably, there were parties who appeared before the lower courts and left displeased with the outcome of the litigation in which they were involved. For those who were sufficiently unhappy to pursue the matter further, litigants had numerous potential avenues for appeal to higher canonical courts. Archbishops (also known as metropolitans) had their own consistory court to hear controversies that arose within the boundaries of the diocese over which they presided. Alternatively, the aggrieved litigant could appeal to the papal courts, either after or in place of appealing to the metropolitan’s court. Popes, like other bishops, for centuries exercised their judicial functions in person and routinely spent numerous hours almost every day attending to the complaints of litigants, the arguments of advocates, and the advice of their own legal counsellors. By the mid-twelfth century, however, the pope’s judicial duties threatened to overwhelm the rest of his responsibilities. Concerned churchmen urged that he cut back on this part of his duties and delegate all but the most essential judicial tasks to others. St. Bernard of Clairvaux (d. 1153) admonished his former pupil, Pope Eugene III (d. 1153): I ask you, what is the point of wrangling and listening to litigants from morning to night? And would that the evil of the day were sufficient for it, but the nights are not even free!… One day passes on litigation to the next, one night reveals malice to the next; so much so that you have no time to breathe, no time to rest and no time for leisure. I have no doubt that you deplore this situation as much as I, but that is in vain unless you try to remedy it… Patience is a great virtue, but I would hardly have wished it for you in this case.6 6  St. Bernard of Clairvaux, “De consideratione ad Eugenium Papam,” 1.3.4–1.4.5, in Bernard’s Opera, eds. J. Leclercq, C. H. Talbot, and H. M. Rochais (Rome, 1957–1977), 3:397–399. For the translation, see J. D. Anderson and E. T. Kennan, Five Books on Consideration: Advice to the Pope (Kalamazoo, 1976), 29–30.

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Despite entreaties such as these, late-twelfth-century popes continued to contend with a rising tide of litigation. They secured a measure of relief by appointing evergreater numbers of men with legal training to the College of Cardinals and relying increasingly upon the advice of the cardinals who assisted them in hearing cases in what came to be called the Roman consistory. The consistory replaced the old synod of the Roman clergy, which under Gregory VII (d. 1085) had become primarily a court of justice. In the new judicial structure, the pope met daily with the cardinals and other advisers. There the whole group heard arguments and appeals, which the pope then decided in consultation with the cardinals. The consistory was thus a judicial body in which the cardinals sifted through the arguments and issues that litigants raised and advised the pope about his options in disposing of the matter before them. This arrangement shifted the burden of the preliminary analysis of disputes from the pope to the cardinals, but still left the final determination of each case in the pope’s hands. Although the consistory eased the burden of the pope’s personal involvement in the judicial processes, it still required a massive commitment of papal time. Other papal business—political, diplomatic, financial, and religious—urgently demanded attention. Judicial offices developed during the thirteenth and fourteenth centuries to distribute the papacy’s workload. The Audientia litterarum contradictarum screened the issuance of papal mandates and regulated the activities of the proctors who represented clients and managed their business at the curia.7 The Referendarii signaturae evolved from a group of clerks in the papal consistory who prepared documents for the pope’s signature to one that drafted replies to petitions and determined which appellate cases were sufficiently important or meritorious to warrant the pope’s personal attention. By the late Middle Ages, it would morph into the Signatura iustitiae, the highest-ranking papal appellate court.8 The pope’s chief fiscal officer, the chamberlain (camerarius) who oversaw the financial office of the camera, appointed a hearing officer (auditor) to adjudicate disputes that arose out of financial operations and eventually to deal also with disciplinary problems among members of the papal curia.9 A part of the papal curia by the fourteenth century, the penitential forum of the Apostolic Penitentiary and the judicial forum of the Roman Rota stood at the apex of the ecclesiastical corrective system. Like the episcopal consistory court, both courts relied on the services of auditors and freelance proctors who hovered 7  P. Herde, Audientia litterarum contradictarum: Untersuchungen über die päpstlichen Justizbriefe und die päpstlichen Delegationsgerichtsbarkeit vom 13. bis zum Beginn des 16. Jahrhunderts, 2 vols (Tübingen, 1970). 8 R. Puza, “Signatura iustitiae und commissio: Ein Beitrag zum Prozeßgang an der römischen Kurie in der Neuzeit,” ZRG Kan Abt. 64 (1978): 95–115; R. Naz, “Signature apostolique, Tribunal de la,” in DDC, 7:1012–1018. 9  D. Williman, “Summary Justice in the Avignonese Camera,” in Proceedings Berkeley 1980, 437– 449. For an overview of the camera as the financial wing of the papal curia, see S. Weiß, “The Curia: Camera,” in A Companion to the Medieval Papacy: Growth of an Ideology and Institution, eds. K. Sisson and A. A. Larson (Leiden, 2016), 220–238; and I. S. Robinson, The Papacy, 1073–1198: Continuity and Innovation (Cambridge, 1990), 244–291.

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around the courts to represent the litigants.10 Though it neither held court sessions nor made decisions about the guilt or innocence of the litigants petitioning it in the same manner as the Roman Rota, the Apostolic Penitentiary served as the court of conscience (forum conscientiae) and the court of grace (forum gratiae). As the court of one’s conscience, the Apostolic Penitentiary corrected errant behavior for the salvation of the penitent’s soul through the absolution of sins and ecclesiastical censures reserved for the pope. It issued indulgences, letters of confession, and dispensations from ecclesiastical law. Examples of the wide range of cases the Penitentiary would hear include: illegal marriages from consanguinity and affinity, those closely related to a previous fiancé(e), spiritual affinity, and adoptive relationship; illegitimacy of children; monastic issues pertaining to observing vows and changing houses; breaking oaths or vows; simony, irregular promotion, and creating a career for illegitimate children; exercising clerical offices under excommunication; excommunication for failing to pay annual payments to the church; violence and murder; sacrilege against church property or persons; and apostasy. The graces granted were of four types: special absolutions to Christians who had violated the rules of canon law in an especially severe way; dispensations to those Christians who needed for some good reason to act against the norms of the Church and where the Church could grant them the possibility to do so; licenses to Christians who wanted to deviate from some usual Christian practice; and letters of declaration granting Christians some exemption, such as consuming dairy during Lent.11 The Sacra Romana Rota (Sacred Roman Rota), officially known as the Audientia sacri palatii, assumed an increasingly prominent role not only for clarifying existing law but also for creating new canonistic rules through judicial decision in the 10 For an introduction in English to the fees charged by the Papal Penitentiary under Benedict XII and Leo X, see W. P. Müller, “The Price of Papal Pardon: New Fifteenth-Century Evidence,” in Päpste, Pilger, Pönitentiarie: Festschrift für Ludwig Schmugge zum 65. Geburtstag, eds. A. Meyer, C. Rendtel, and M. Wittmer-Butsch (Tübingen, 2004), 457–481. 11 B. Schwarz, “The Roman Curia (until about 1300),” in HCP, 160–228, esp. 215–216; K. Salonen, “The Curia: The Apostolic Penitentiary,” in A Companion to the Medieval Papacy, eds. Sisson and Larson, 259–275, esp. 266 n.25 for printed edition of penitentiary registers; K. Salonen and L. Schmugge, A Sip from the “well of grace”: Medieval Texts from the Apostolic Penitentiary (Washington, DC, 2009). German areas, such as Speyer, would request and be granted a dispensation, often called “butter letter”, to consume butter during Lent because of the scarcity of olive oil; see M. Klipsch, “Vom Fasten bei Wasser und Brot bis zum Fleisch- und Buttergenuss. Spätmittelalterliche Buß- und Fastenpraxis im Spiegel kurialer Registerüberlieferung,” in Friedensnobelpreis und historische Grundlagenforschung: Ludwig Quidde und die Erschließung der kurialen Registerüberlieferung, ed. M. Matheus (Berlin, 2012), 279–302, here 295–299. See also P. D. Clarke, “Between Avignon and Rome: Minor Penitentiaries at the Papal Curia in the Thirteenth and Fourteenth Centuries,” Rivista di storia della Chiesa in Italia 63 (2010): 455–510. For case studies of dispensations in Scandinavia, and Central and Eastern Europe, see G. Jaritz, T. Jørgensen, K. Salonen, eds., The Apostolic Penitentiary in Local Contexts: --et usque ad ultimum terrae (Budapest, 2007). The Penitenzieria Apostolica, Registra Matrimonialium et Diversorum is an important source for penitential cases covering the period between 1409 and 1890. P. Thomas Wollmann, ed., “Literae” of the Apostolic Penitentiary “in partibus” (1400–1500): Ein Beitrag zur kurialen Diplomatik (Wiesbaden, 2021) compiled petitions from major and minor penitentiaries in the fifteenth century from Bavaria, Baden-Württemberg, and Austria.

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fourteenth century. It acted as the court of appeals for all lower—episcopal and archepiscopal—courts. For those who had the means (and connections) to take their case directly to the papacy and for those living in the diocese of Rome or in the Papal States, the Rota served as the court of first instance. In the case of those living in the Papal States, the Rota also adjudicated civil matters in addition to ecclesiastical matters. In general, however, the Rota is known to have heard cases litigating benefices, marriages, property, and other topics. At the turn of the sixteenth century, the vast number of cases—approximately 80%—involved ecclesiastical benefices.12 Most of the cases that came before the Rota originated in Italy and the Iberian Peninsula, followed by Germany and France. Eastern Europe and Britain account for a negligible number of cases—2% and 1%, respectively— appearing before the Rota. As we saw above in the examples of the episcopal consistory courts of Ely and Carpentras, litigants brought a case to court hoping for a resolution, which did not necessarily have to end with a court decision. In fact, most of the Rota cases seem not to have ended in a decision. Almost 50% of the cases concluded within a month, which is too short to see a case through from start to finish, and 74% concluded within six months.13 It seems that the reality of a papal tribunal may have been the motivation needed to bring cantankerous parties to the negotiation table. The ordo iuris, the principle of due process, was central to court procedure. Whether known under cognate names of the ordo iudiciarius, as seen in canon law, or the ordo iudiciorum, as seen in Roman law, the ordo denotes the defendant’s presumption of innocence, privilege against self-incrimination, and right to confront an accuser in court.14 Even though the ordo was systematized in the early thirteenth century, the concepts contained therein were not new and date back to late antiquity. A text attributed to Sermon 351 of Augustine, which Isidore of Seville included in his Synonymia (II.86), used the expression ordo iudiciarius. Pope Gregory I made a similar alliteration when he stated that bishops should be deposed ordinabiliter.15 The rubric De ordine iudiciorum can be found in Justinian’s Codex (3.8). Gratian used ordo iudiciarius in the hypothetical of Causa 2, and Causae 2–6 are often referred to as the tractatus de ordine iudiciarius.

12 In his study of papal criminal proceedings against prelates between 1198 and 1342, J. ThéryAstruc observed a similar trend. Dilapidatio—mismanagement of the churches secular holdings (temporalities)—accounts for more than a half of the charges levied, while charges of simony account for a third of the cases and sexual misconduct account for a quarter of the cases. See “The Papacy’s Criminal Proceedings against Prelates in the Age of Theocracy,” in Proceedings Toronto 2012, 875–889. 13 K. Salonen, “The Curia: The Sacra Romana Rota,” in A Companion to the Medieval Papacy, eds. Sisson and Larson, 276–288; eadem, Papal Justice in the Late Middle Ages: The Sacra Romana Rota (London-New York, 2016). 14 J. A. Brundage, “Full and Partial Proof in Classical Canonical Procedure,” The Jurist 67, no. 1 (2007): 58–71. 15 L. Fowler-Magerl, Ordines Iudiciarii and Libelli de Ordine Iudiciorum: From the Middle of the Twelfth to the End of the Fifteenth Century (Turnhout, 1994), 20–21.

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The protections guaranteed by the ordo can be found in Scripture. The canonist Paucapalea (ca. 1150) traced its origins to Adam and Eve in Paradise. Dissecting Genesis 3:9–12, he pointed to the different aspects of a trial. God had issued a summons for Adam to answer charges against him by asking “Adam ubi es? (Adam, where are you?)” Adam defended himself by blaming Eve: “My wife, whom You gave to me, gave [the apple] to me, and I ate it.” Essentially, even God could not pass judgment without first summoning defendants and hearing their pleas. Men, therefore, were also obliged to summon the litigants before judging. Stephen of Tournai (d. 1203) built upon Paucapalea—who had drawn on Deuteronomy 19:15 to justify that the testimony of two or three witnesses safeguarded truth—by assigning the appropriate legal term to each part of Adam and Eve’s trial. Adam had raised a formal objection (exceptio), to God’s complaint (actio). Adam then imparted the blame on Eve and the serpent. Stephen thus defined the ordo as: The defendant shall be summoned before his own judge and be legitimately called by three edicts or one peremptory edict. He must be permitted to have legitimate delays. The accusation must be formally presented in writing. Legitimate witnesses must be produced. A decision may be rendered only after someone had been convicted or confessed. The decision must in be writing.16 The implication was that if God was required to uphold the rights of Adam and Eve then these rights transcended positive law and were protected under natural law. Pope Innocent IV (d. 1254) argued further that the prince, bound by natural law to render justice, could neither forego the judicial process nor ignore an action. A bit later Johannes Monachus (d. 1313), bishop of Meaux and an advisor to King Philip IV the Fair, expounded on the rights of the defendant with the notion of being “innocent until proven guilty.” In his decretal Rem non novam (1303), Pope Boniface VIII had upheld the validity of a papal summons regardless of whether or not the defendant knew of it. Johannes’s gloss of the decretal, however, noted that natural law safeguarded the summons. A pope, while above positive law, was not above natural law and thus could not circumvent this right. No judge, not even the pope, could pronounce a just judgment unless the defendant was present in court. He concluded that “a person is presumed innocent until proven guilty” (quilibet presumitur innocens nisi probetur nocens).17 Divine and natural law guaranteed one’s right to due process, and thus the right of people to pursue justice.

16  D ie Summa des Stephanus Tornacensis über das Decretum Gratiani, ed. J. F von Schulte (Giessen, 1891), C.2 q.1 s.v. an in manifestis (p. 158); K. Pennington, “The Jurisprudence of Procedure,” in HCP, 125–159, here 139. 17 On canonistic use of Scripture for the origins of the ordo, see Pennington, “The Jurisprudence of Procedure,” in HCP, 125–159, here 137–139; idem, “Innocent until Proven Guilty: The Origins of a Legal Maxim,” The Jurist 103 (2003): 106–124; idem, “Due Process, Community and the Prince in the Evolution of the ‘ordo iudiciarius’,” RIDC 9 (1998): 9–47.

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The ordo iuris represented the procedural rights owed throughout the judicial process in both ecclesiastical and secular courts. Between the twelfth and into the sixteenth centuries, there were two principal ways in which a case could be brought to court. The first method was with an accusation (accusatio), which had its origins in Roman law and had been adopted by ecclesiastical courts. In this method, the plaintiff (accuser, actor) was required to bring an accusation against another, the defendant (reus) either orally or in writing (known a libellus inscriptionis) to start the judicial process. In its original form, the plaintiff (accuser, actor) was subject to the poena talionis if he lost the trial; that is, if the accuser failed to prove his case against the defendant (reus), he would suffer the same penalty as the defendant had he been convicted. To some jurists, such as Tancred of Bologna (d. ca. 1236), the threat of the poena talionis protected would-be defendants from being dragged into the premature litigation as the accuser should think long and hard before filing formal charges. In reality, the stipulation had fallen out of disuse in many, though not all, ecclesiastical and secular courts by the twelfth century.18 The second principal method was the inquisitorial process (inquisitio), which allowed a judge to investigate a crime and summon the accused to court without an accuser submitting a formal written complaint. Innocent III’s canon Qualiter et quando (c.8) at the Fourth Lateran Council sanctioned the method for ecclesiastical courts to investigate criminous clerics, though secular courts adopted it soon after. Genesis 18:21 provided the theoretical framework for inquisitorial procedure: the outcries of the sins of Sodom and Gomorrah had reached heaven, thereby causing God to investigate the situation.19 Rather than needing an accuser, a judge could begin an action against a suspected perpetrator based on his or her publica fama or mala fama. One achieved such status either by being judged as “infamous by reason of law” (infamia iuris)—a result of a previous guilty verdict—or on account of one’s reputation within the community for chronic misconduct. In either case, even though no one had seen the accused perpetrator commit the crime, one’s reputation in the community made them the prime suspect. A judge initiated a case on account of one’s fama when a sufficient number of credible people knew of what happened and who had done it, but that knowledge neither came from the person who committed the act nor could it be traced back to one person who might be spreading false information. Essentially, fama weighed heavily in determining if the legal process would be triggered and, if it was, the judge could proceed by calling witnesses.20 18 O. Cavallar and J. Kirshner, Jurists and Jurisprudence in Medieval Italy: Texts and Contexts (Toronto, 2020), 319–321, 21.1 (pp. 338–351) provides Albertus Gandinus’s view on who may accuse, be accused, and how an accusation is made as found in his Tractatus de maleficiis; K. Pennington, “Introduction to the Courts,” in HCP, 3–29, here 4, 8–10. 19  Gen. 18:20–21. 20 Cavallar and Kirshner, Jurists and Jurisprudence in Medieval Italy, 323–326, 21.1 (pp. 336–338, 354–374) provides Albertus Gandinus’s view on when an accusation is necessary and on the specifics of judicial inquiry in his Tractatus de maleficiis. See also L. Gutiérrez Masson, “Inquisitio, fama, evidentia: La contribución de Inocencio III a la teoria de la notoriedad del delito,” Vergentis no. 2 (2016): 293–308; Pennington, “Introduction to the Courts,” and “The Jurisprudence of Procedure,” in HCP, 4, 10–18; 142–143, 146–147, respectively; Brundage, “Full and Partial

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The judicial process that followed an accusation (accusatio) was similar for both civil and criminal cases. A civil case is one in which the plaintiff sought compensation for the wrong. A criminal case is one in which a legally sanctioned punishment, such as excommunication, could be levied.21 Following an accusation, the defendant (reus) as the accused was to be summoned to appear in court by posting the notice in a prominent place, such as on his door or on the door of his parish church. The third and final citation, or a single peremptory citation, indicated that if the defendant failed to appear in court, the trial would proceed in his absence and he could be declared contumacious, which in turn could result in excommunication.22 Once (or if) the defendant (reus) appeared in court, the plaintiff (accuser, actor) had to submit the charges in writing, known as the “libel” (libellus inscriptionis), if it had not been done so already. Once the defendant received the libel, he could either answer on the spot or ask for a twenty-day delay to decide whether to defend against the claims and, should he choose to do so, to frame his formal reply. During this period the defendant also had the option of responding to the libel by submitting either a peremptory exception, which objected either to a legal or factual element of the case, or a dilatory exception, which logged a procedural error.23 If the judge chose to allow one or more of the defendant’s exceptions, the issue that the exception raised must then be adjudicated before the main issues in the case could come to trial. Should the ruling on an exception go against the defendant, he was compelled to pay both his own and the plaintiff’s costs immediately for that phase of the action. The intent, presumably, was to deter frivolous exceptions and the consequent delays by making defendants pay for them. With exceptions out of the way, the actual trial, known as the litis contestatio, could begin. Once again, the plaintiff (accuser, actor) repeated his claims (by now usually amended and made more specific) and the defendant (reus) repeated his specific denial of them. Each side swore the calumny oath: the plaintiff called upon God to witness that he had not brought his action simply to harass the defendant and that he intended to prove his claims honestly. The defendant also swore that he would offer an honest defense to the plaintiff’s claims and that he was not doing so out of malice. The legal representatives of the parties—whether advocates Proof,” 68–70; Théry-Astruc, “Fama: L’opinion publique comme prevue judiciaire: Aperçu sur la revolution médiévale de l’inquisitoire,” in La Preuve en justice: de l’Antiquité à nos jours, ed. B. Lemesle (Rennes, 2003), 119–147. 21 Pennington, “The Jurisprudence of Procedure,” in HCP, 129–131 focuses in particular on the Roman jurist Bulgarus’s explanation of the ordo in a letter to the papal chancellor Haimeric; P. Hyams, “Due Process versus the Maintenance of Order in European Law: The Contribution of the Ius commune,” in The Moral World of Law, ed. P. Coss (Cambridge, 2000), 62–90. Cavallar and Kirshner, Jurists and Jurisprudence in Medieval Italy, 17.1 (pp. 268–277) outlines the procedural process for civil cases according to the 1415 Statutes of Florence. The discussion of accusatory procedure as it pertains to criminal cases on pp. 319–321 suggests the same process. 22 Tancred, Ordo iudiciarius 2.3.1, in Pilii, Tancredi, Gratiae libri de iudiciorum ordine, ed. F. Bergmann (rpt. Aalen, 1965), pp. 132–139; J. Andreae, Processus iudiciarius (Nürnberg, 1572), fol. 2v. 23 See E. Corran, “An Approach to Canonical Procedure: The Compilation of ‘exceptiones’ in British Library Add. 24979,” BMCL 30 (2013): 71–87.

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or proctors—might take the oath on behalf of those they represent as they shepherded the case. Although they acted in the name of the principals whom they represented, it was their responsibility to prove the claims that their clients had asserted. Advocates and proctors must produce trustworthy and credible evidence that would support the assertions he had made.24 In accusatorial cases, the burden of proof lay upon the plaintiff. The defendant, for his part, sought to produce evidence that would convincingly contradict or undermine the claims made against him. His task was less demanding, at least in the sense that he did not have to produce positive proof of his claims, but simply show that the assertions lacked adequate foundation in fact or in law. The standard of proof in accusatory proceedings was extraordinarily high, for the plaintiff (accuser, actor) must provide “full proof ” (plena probatio) of his charges. He could do this only by furnishing evidence that was “clearer than the mid-day light”.25 In practice, then, full proof required either that the defendant confess or that the plaintiff substantiate his complaint by the sworn testimony of at least two credible witnesses who had both seen and heard the critical episode or event that was at issue. The rationale behind this exceptionally high standard of proof rested upon the Scriptural admonition that “the evidence of two or three witnesses is required to sustain any charge.”26 Each side in the dispute furnished the judge with a list of witnesses it wished to call, together with a list of questions that the judge was to put to each of them. When witnesses appeared on the appointed day, they were first placed under oath swearing to the truthfulness of their testimony and that it did not result from either favor or animus. Each of them was then called separately for questioning by the judge or a judicial examiner in private. The judge asked the questions submitted by the parties and supplemented those by any further questions he deemed relevant or appropriate. The character of the witnesses and the truthfulness of what the witnesses saw or heard was also scrutinized. A notary was also present to record the questions and answers. Slaves, women (in some circumstances), those under the age of fourteen, the insane, the infamous, the poor, criminals, and infidels were barred from testimony. Also, judges, legal representatives, and officers of the court could not serve as witnesses in cases in which they were involved.27 Lest 24 Cavallar and Kirshner, Jurists and Jurisprudence in Medieval Italy, 178–183 and 11.1 (pp. 183–198) for William Durantis’s assessment in his Speculum iudicale of what barred someone from serving as an advocate in particular cases; what advocates should wear, their character, and their comportment; and their responsibilities to their clients. 25 On full and partial proof, see the interesting discussion by J. Franklin, “The Ancient Legal Sources of Seventeenth-Century Probability,” in The Uses of Antiquity: The Scientific Revolution and the Classical Tradition, ed. S. Gaukroger (Dordrecht, 1991), 123–144, here 126–139. 26  Matt. 18:16; cf. Deut. 19:15, II Cor. 13:1. 27 C. Donahue, Jr. “The Courts of the Ius commune,” in HCP, 125–159, 74–124, 83–94 focuses in particular on Tancred of Bologna’s discussion of witnesses in his Ordo iudicarius. S. Lepsius, Der Richter und die Zeugen: Eine Untersuchung anhand des Tractatus testimoniorum des Bartolus von Sassoferrato (Frankfurt am Main, 2003) focuses on Bartolus of Sassoferrato’s Tractatus testimoniorum, a teaching text on the questioning of witnesses and how to evaluate their testimony as evidence.

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litigants draw out proceedings unnecessarily, Pope Innocent III limited the number of witnesses who might be produced to forty.28 Literal proof, that is evidence from documents, was important as well, but opinions differed as to whether it should carry as much weight as oral testimony. Forgery of charters and other documents, including papal mandates and decretals, was commonplace and judges had good reason to be skeptical of written instruments. Canon lawyers had rules designed to detect forgeries,29 but application of these rules was far from infallible, even at the hands of a pope. Thomas of Marlborough, advocate for Evesham Abbey, for example, described how Innocent III carefully examined two papal bulls that Thomas produced in the course of a lawsuit and pronounced them genuine, although we now know that they were forgeries.30 Innocent Ill’s ruling on a case in 1206 set forth guidelines for the evaluation of written and oral evidence that furnished judges with a set of standards to apply in situations where documents were challenged, but canonists continued to be wary of written evidence.31 It seemed contrary to nature, Innocent IV would later declare, to trust the skin of a dead animal more than the voice of a living man.32 In the end, confession to the crime was critical since most crimes were concealed from the public eye, and thus two eyewitnesses were not easy to come by. While offenders, when discovered and hauled before a tribunal, sometimes broke down and confessed, the determined and obdurate criminal often resisted successfully any urge that he might feel toward self-incrimination. When the judge was satisfied that he had all the relevant evidence in hand, he “published”, or authorized disclosure, of the record of the testimony to the parties and their counsel. He would also set a day for counsel to present their arguments. The advocates and/or proctors now examined the depositions of witnesses and framed arguments (positiones) intended to call to the judge’s attention the strength of the evidence for their client’s case and the contradictions and other flaws in the evidence that their opponents had produced. Lawyers for the parties also prepared arguments in law (allegationes), in which they directed the judge’s attention to the canons that supported their theory of the case and those that told against their opponent’s position. Judges preferred that the oral arguments be kept brief. When arguments were especially complex and lengthy, counsel might submit written positiones and allegationes, which the judges could study when reaching their decision.33 Once the judge had heard oral arguments and had the written versions in hand he then appointed a day for the parties to appear to hear his decision and sentence. Judges normally announced their decisions orally. Protocol required that they do so while seated and that the announcement be made during the daylight hours. The 28  X 2.20.37. 29 X 2.22 dealt with the rules to detect forgeries. On written proof, see M. T. Clancy, From Memory to Written Record: England, 1066–1307, 3rd edn (Chichester-Malden, 2013), 262–300. 30 Clancy, From Memory to Written Record, 318–328. 31  X 2.22.10. 32  Innocent IV, Apparatus to X 2.22.15 §1 (Frankfurt, 1570), fol. 279vb–280ra. 33 Tancred, Ordo iudiciarius 3.4.2 and 3.15, pp. 208–209 and 261–268.

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oral decision was also committed to writing and the survival of draft decisions confirms what one might have expected; namely, that these documents were carefully composed, reviewed, and revised prior to publication.34 The decision normally gave a brief statement of the judge’s findings in fact. Unlike modern English and American judicial decisions, medieval canonical judges rarely discussed in any detail the legal reasoning that underlay their conclusions. With the judge having issued a definitive sentence, both orally and in writing, the aggrieved had the right to appeal the decision on the basis that the ruling violated equity or the rights of the litigant.35 While the accusatorial process applied to both civil and criminal cases, the inquisitorial process is most often associated with criminal cases. Its development and use, however, first must be placed within the context of two other twelfth-­century juridical processes: denuncio, which existed alongside the accusatorial process used in criminal trials, and accusations per notorium. Denunciation (denuncio) had its basis in the Gospel of Matthew: if your brother does something wrong and refuses to listen to your “charitable admonition”, you should report his wrong to the community.36 The standard of proof in a proceeding by denunciation was as high as that under the accusatory procedure and conviction of the obdurate criminal was therefore far from easy to secure. It was particularly unsatisfactory in penalizing the perpetrators of “occult crimes”, who took the precaution of hiding their nefarious conduct from public view. The processes of the ordo iuris had been quite successful in safeguarding the rights of the accused, so successful that it was difficult for the court to obtain a conviction, even when wrongdoing was well-known. Around the turn of the thirteenth century, the papacy thus began to experiment with alternative approaches to the problem of punishing crime. One novel strategy for dealing with canonical crimes was procedure per notorium. The rationale for this procedure lay in what may be called the “common sense” approach to criminal justice, which held that where the fact of a crime and the identity of the offender were both obvious and well known throughout the community, the niceties of the conventional ordo iuris were irrelevant and need not be applied. This approach to the problem of crime enjoyed considerable popular appeal since it seemed to punish offenders swiftly and cheaply while at the same time avoiding the dodges and delays of lawyers. Advocates of this approach could even point to respectable canonical authority for their position, since Gratian, when commenting upon a passage from St. Ambrose, had remarked that a judge need not observe all the procedural steps of conventional judicial procedure.37 Building upon this observation, Popes Lucius III (d. 1185) and Innocent III (d. 1216) 34 J. E. Sayers, Papal Judges Delegate in the Province of Canterbury, 1198–1254: A Study in Ecclesiastical Jurisdiction and Administration (Oxford, 1997), 321–322 prints a fine example of a draft decision from Egerton Charter 409 in the British Library. 35 For a helpful and concise discussion of a trial’s components from start to finish, see G. R. Evans, Law and Theology in the Middle Ages (London-New York, 2002), ch. 14 (the process), ch. 20 (evidence), ch. 21 (sentencing), and ch. 22 (appeal). 36  Matt. 18:15–17; cf. Lev. 19:17. 37  Grat. C.2 q.1 d.p.c14, d.p.c.17.

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authorized courts to employ an abbreviated and much simplified criminal procedure when they dealt with cases in which a priest was openly living in sin with a concubine or patronizing prostitutes. Not only was an accuser or denunciation not required in these situations, the pontiffs declared, but the courts could also relax the strict standard of proof that the ordo iuris demanded.38 If “full proof ” by the evidence of two credible eyewitnesses was not available, then “partial proof ”, that is the testimony of one witness supported by circumstantial evidence, would do. Procedure per notorium promised a quick and easy solution to the problem of punishing flagrant crimes that outraged a community. Conviction in proceedings per notorium simply required that the judge establish that numerous members of the community in which the defendant resided believed that he was guilty of some crime. No eyewitnesses needed to be produced. Conservative jurists abhorred this course of action, which they considered far too summary to warrant punishment. They insisted that the judge must at least summon the defendant and question him about the allegations before pronouncing judgment, but that seems to have been the limit of the defendant’s rights under this procedure. Yet there were jurists who constructed a rationale for employing this procedure on the grounds that the public interest required that crimes must not go unpunished.39 Authorities claimed that “the public interest” thus legitimized this new procedure.40 Procedure per notorium, however, needed all the legitimacy its defenders could muster. On its darker side this procedure stripped defendants of nearly all the protections that the conventional ordo iuris afforded them. This opened the way for abuse of the Church’s criminal justice system because proceedings per notorium could easily be manipulated or contrived in order to brand a criminal person whose real crime was to be disagreeable to their superiors or unpopular among their neighbors. Punishment of notorious crimes in this summary fashion also suffered from an inherent intellectual flaw. Although per notorium procedure no doubt did facilitate punishment of flagrant offenders, and in that sense served the public interest, its apologists never quite managed to produce convincing answers to the counterargument that if the crime and the identity of the offender really were so widely known as to be notorious in a rigorous sense of that term, then a judge ought to be able to find witnesses to prove it. If no witnesses could be produced, according to this reasoning, then the charge should be classed as merely “manifest”, that is, widely believed, rather than “notorious”, that is, widely known. Because per notorium procedure was such a slippery, and hence potentially dangerous, tool, jurists warned future advocates and judges that they should employ it rarely and with great caution.41 William Durand (d. 1296), the most eminent of the thirteenth-century 38  X 3.2.8. 39 R. 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): 577–595 develops this argument in detail. 40 Tancred, Ordo iudiciarii 2.7.1, pp. 151–152. 41 Hostiensis, Summa aurea, lib. 5 De criminibus sine ordine puniendis, 1481–1482; Durandus, Speculum iudiciale, lib. 3, partic. 1, rubr. Quid sit pene occultum §7 (Basel, 1574), p. 48.

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procedural writers, went so far as to declare that in order to warrant conviction per notorium the offender must commit his crime at a time when the judge was acting in his official capacity and in the presence of a large enough crowd to make the offence public knowledge. Under these circumstances an offence was indeed “notorious” in the full rigor of the term. Otherwise, however, Durand maintained that a conviction per notorium would not be justified so long as the defendant denied guilt.42 Jurists in addition to Durand, such as Tancred of Bologna and Hostiensis also expressed reservations about convictions per notorium because of the danger it posed to safeguarding the integrity of the ordo.43 The reservations that academic jurists voiced about this procedure presumably account for the introduction in practice of defense by compurgation. While compurgation did not address the underlying facts of the case, it was a way of dealing with rumors and repairing one’s reputation. Once common knowledge of an offence had been established, judges could, and often did, require defendants who denied the allegations against them under oath to purge themselves of the accusation by producing a stipulated number of oath-helpers or compurgators who were prepared to swear that they believed the defendant’s sworn denial. Thus, the accused swore a formal oath that he was innocent of the crime and found the required number of supporters willing to swear an oath to the accused’s character and to the validity of his compurgation. The judge would vet the supporters to ensure that they were of good repute, not deemed infamous, have the appropriate status, and that they were neighbors of the accused and familiar with this character.44 In a way we see a Goldilocks situation: the protections afforded by the ordo iuris made it too hard to render a conviction in criminal cases using accusatio and denuncio procedures; however, per notorium procedure was too soft and jurists expressed concern over the sidestepping of the ordo iuris. It is within the context of that inquisitorial procedure (inquisitio) came to the fore as a sort of middle ground at the Fourth Lateran Council with Innocent III’s canon Qualiter et quando (c.8).45 Like the process per notorium, procedure per inquisitionem allowed a judge to take action against a suspected offender ex officio, without any accusation or denunciation. Again resembling the process per notorium, all that a judge needed was the widespread belief that an individual had committed an offense: ill-fame (mala fama) constituted an adequate basis for judicial investigation and hence could be deemed to take the place of an accuser.46 It was not necessary for the judge to produce a written complaint, 42 Durandus, Speculum iudiciale, lib. 3, partic. 1, rubr. De notoriis criminibus §9, and rub. Notorium quid sit (Basel, 1574), pp. 44–45, 49–52. See also Pennington discussion of per notorium procedure in The Prince and the Law, 229–230, 247–248, 256–257, 264–266. 43 R. H. Helmholz, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago, 2008), 605–609; Brundage, “Full and Partial Proof,” 59–66. 44 Helmholz, “Crime, Compurgation and the Courts of the Medieval Church,” Law and History Review 1 no. 1 (Spring 1983): 1–26. See also A. Fiori, Il giuramento di innocenza nel processo canonico medievale: Storia e disciplina della “purgatio canonica” (Frankfurt am Main, 2012). 45  COGD II/1, 171–172; X 5.1.24. 46 See also Evans, Law and Theology in the Middle Ages, Part IV on notoriety and shorting the judicial process.

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nor did he need to admonish the defendant informally, as in a process per denunciationem, before commencing the action; one’s mala fama served as the denunciation.47 The whole conduct of a proceeding per inquisitionem—determining when and if to initiate the procedure, deciding what charges to levy and against whom, producing witnesses, taking their testimony, responding to the claims and arguments of the defendant, arriving at a decision, and pronouncing sentence—rested in the hands of the judge, who thus combined the functions of investigator and prosecutor with his judicial role.48 Once a judge had determined that mala fama existed and that the information was sufficiently serious and specific to warrant formal charges against a defendant, however, the evidentiary requirements of the standard ordo iudis came into play and afforded the defendant a degree of protection. The defendant must be cited before the judge, he must be informed of the charges against him, and he had the right to offer a defense, unless he wished to plead guilty. William Durand insisted that full proof of guilt according to the prescriptions of the ordo iudiciarius was essential before a judge proceeding per inquisitionem could declare a defendant guilty.49 What exactly did the trial process need to have in order to safeguard the spirit of the ordo iuris while at the same time allowing for an expeditious pace, but not so expeditious that decisions would be overturned on appeal? Courts encountered this question as they began to streamline some of the procedural rules as seen by the use of phrases such as summarie (“summarily”), de plano et absque iudiciorum strepitu (“plainly and without clamor of judgments”), simpliciter et de plano, sine strepitu aduocatorum et figura iudicii (“plainly and simply, without the clamor of advocates and judicial niceties”). That courts sought a simplified and speedier juridical process should not be surprising. Protests against inordinate delays and excessive costs caused by flaws in the reigning procedural system have been commonplace in the history of every highly developed legal system, from antiquity to the present. However, rules needed to be in place to ensure that rights were not violated in the process of seeking judicial efficiency. Canon 6 of the Council of Vienne in France (1311–1312), which was later incorporated into the Constitutiones Clementinae (2.1.2) allowed 47 T héry-Astruc has demonstrated instances in which denunciation and inquisitorial process could merge. Canons and monks could approach the curia for the pope to begin an inquiry ex officio into their bishop or abbot on account of his fama. Before the pope could begin an inquiry based on fama, they needed to have given successive warnings to their superior to change his behavior beforehand. This was known as tria monitio and derived from Matth. 18:15. See “The Papacy’s Criminal Proceedings against Prelates in the Age of Theocracy,” in Proceedings Toronto 2012, 883. 48 J. Teutonicus, Gloss. ord., ad C.2 q.6 c.40 s.v. exploratores and C.3 q.6 c.10 s.v. de expulsis; Bernard of Parma, Gloss. ord., ad X 5.1.15 s.v. criminale; Gandinus, Tractatus de maleficiis, 2.111–120. See J. Carraway Vitiello, Public Justice and the Criminal Trial in Late Medieval Italy: Reggio Emilia in the Visconti Age (Leiden, 2016); and M. Vallerani, “Criminal Court Procedure in Late Medieval Bologna: Cultural and Social Contexts,” in Violence and Justice in Bologna: 1200–1700, ed. S. R. Blanshei (London-New York, 2018), 27–53 for case studies on the navigation of procedure in the criminal courts to suit the needs of the community. 49 Durandus, Speculum iudiciale, lib. 3, partic. 1, rubr. Manifestum quid sit, pr., s.v. Licet aperta (Basel, 1574), pp. 47–48.

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judges to employ summary procedure in cases involving marriage, usury, tithes, and benefices. Left unexplained, however, was exactly what that procedure should look like. Clement V’s decretal Pastoralis (Clem. 2.11.2) safeguarded the defendant’s defense in court as established by natural law while Saepe contingit (Clem. 5.11.2) clarified that: judges did not have to require the libellus; holidays did not have to be observed; objections, appeals, and witnesses could be limited. A judge, however, could not omit necessary proofs or legitimate defenses from the process; he could not exclude a summons; and he could not deny the oath of calumny. Summary procedure allowed judges to hear cases and take testimony during some periods when the conduct of formal judicial business was normally forbidden, and to curtail the use of dilatory exceptions and appeals by the parties.50 Bartolus of Sassoferrato, a civil jurist, would note that a trial must allow for a summons, petitions, exceptions, delays, and proofs as they were guaranteed by natural law. Summary procedure could not exclude these elements.51 Medieval jurists had to confront tensions between two conflicting set of values: issues that church authorities and canonists confronted in dealing with safeguarding the protections afforded by the ordo iuris, on the one hand, while at the same time ensuring that crimes could be prosecuted and justice could be rendered, on the other hand. A safe and just society requires reasonable certainty that those who break the law will, at least most of the time, be apprehended and punished. At the same time, however, a safe and just society also requires some assurance that its members will not be convicted and punished for crimes they have not committed. Authorities at the beginning of the thirteenth century concluded that the stiff standard of proof that the ordo iuris required allowed excessive numbers of criminals to escape the punishment they deserved. In an effort to repair the deficiency they perceived in the legal system, they introduced alternative forms of action per notorium and per inquisitionem. Academic authorities, however, concluded that procedure per notorium sacrificed too many of the procedural safeguards built into the ordo iuris. Hence, they taught their students that this procedure should be used sparingly and sought to hedge it with limitations that made it fundamentally unworkable. Academic lawyers insisted that inquisitorial procedure adhere to a process that afforded defendants at least some of the formal protections of the conventional ordo. This furnishes an instructive example of what might be called “jurist nullification”, whereby academic law teachers taught the church’s future lawyers to modify or

50  See also Pennington, The Prince and the Law, 132–164, 188–190. 51  Cavallar and Kirshner, Jurists and Jurisprudence in Medieval Italy, 260–261; Pennington, “Introduction to the Courts,” in HCP, 24–29; Donahue, “The Courts of the Ius commune,” HCP, 116–117; O. Descamps, “Aux origines de la procédure sommaire: Remarques sur la constitution Saepe contingit (Clem V, 11.2),” in Der Einfluss der Kanonistik auf die europäische Rechtskulture, Vol. 4: Prozessrecht, ed. O. Condorelli et al. (Köln, 2014), 45–64; K. W. Nörr, “Rechtsgeschichtliche Apostillen zur Clementine Saepe,” repr. in “Panta rei”: Studi dedicati a Manlio Bellomo, ed. O. Condorelli (Rome, 2004), 4:225–238.

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even ignore certain parts of the canon law that they considered poorly conceived or simply wrong.52 Juridical discussions of procedure norms in criminal cases had a notable impact on conceptions of punishment. Canon law characteristically gave judges broad discretion to fit the punishment both to the crime and to the circumstances of the criminal. In part, certainly, this reflected what is sometimes called the medicinal approach to sentencing, that is, a belief that the primary goal of punishment ought to be rehabilitation of the criminal. Medicinal punishment was the norm in canonical penal law up to the late eleventh century. The application of canonical rules during the early Middle Ages tended to be episodic and reactive: church authorities in that period commonly took action only when offenses became so glaring and public that they were likely to cause scandal and lead others astray. For the rest, early medieval churchmen were inclined to leave the detection and punishment of secret offenders to the penitential forum, the private, individual ministry of their confessors, whose first goal was to try to save the sinner, rather than to pursue delinquents and subject them to formal disciplinary action. Those who occupied the papal throne from the end of the eleventh century onward, however, tended to be more aggressive in these matters. They set in motion an energetic and vigorous approach to penal law, an approach that could be said to overshadow, at times, the penitential stage of correction. Bishops and other prelates, as we will see in Chapter 8, should seek out offenders against orthodox belief and behavior. Once detected, offenders ought to be put on public trial for their misdeeds and, when convicted, their punishment should likewise be public and punitive enough to make other potential offenders think twice before imitating the miscreants. Penal law, according to this view, must serve deterrent as well as corrective purposes. The menu of penalties from which a judge might choose when sentencing a convicted defendant was accordingly rich and varied. The judge, at least in theory, should compound a mixture of punishments appropriate to each case. Uniform sentencing was far less important, in this view, than the fit between a particular crime and the retribution that followed.53 The list of ecclesiastical penalties included coercive penalties such as excommunication, interdict, or suspension from office if a cleric.54 These were designed primarily to bring pressure on the 52 The allusion here is to “ jury nullification” in England and American common law. This occurs when what lawyers and judges call a “runaway jury” refuses to find a defendant guilty, despite the evidence and the judge’s instructions on the law. For an instructive treatment of this topic see T. A. Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800 (Chicago, 1985), esp. ch. 2. 53 How to be a good judge was a matter of concern for legal thinkers and theologians alike. Procedural manuals, theological texts, sermons, legal treatises, and letter collections all took up this topic. On this see P. Byrne, Justice and Mercy: Moral Theology and the Exercise of Law in TwelfthCentury England (Manchester, 2018). 54 See F. Keygnaert, “The Meaning of Ecclesiastical Exclusion in the Archdiocese of Reims, c.1100: The Legal Difference between Excommunication, Anathema and Interdict,” in Proceedings Toronto 2012, 767–778; E. Vodola, Excommunication in the Middle Ages (Berkeley-Los Angeles, 1986).

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miscreant to comply with the law and make his peace with church authorities. Retributive penalties, such as fines, restitution of ill-gotten gains, deposition from office if a cleric, degradation from clerical status, confinement in a monastery, or other types of imprisonment, deprived the guilty party of status, income, or freedom as punishment for his misdeeds. Purgative penalties, such as pilgrimages, the donning of penitent’s garb, participation in processions, the public offering of gifts to repair damages, ritual flogging, fasts, and abstinence from meat, wine, or sex for prescribed periods, served to humiliate the penitent while at the same time they purified him of the guilt he had incurred. The most horrendous canonical crimes, especially heresy, might even merit “relaxation to the secular arm”, which involved turning the convicted defendant over to civil authorities who could inflict upon the convict the physical punishments permitted in their courts (such as amputation of limbs, branding, beating, and various forms of execution).55 As litigation increased and courtroom activity became more formalized in the course of the twelfth and thirteenth century, the need for guides to processes likewise increased and became more formalized.56 Procedural manuals served as reference manuals for judges, lawyers, and their staff as practitioners of law. Earlier in the chapter we were introduced to views contained in the manuals and treatises of Bulgarus, Albertus Gandinus, Tancred of Bologna, William Durand, and Bartolus of Sassoferrato. Bologna was active in the production of manuals and treatises, but so too were Paris and the Anglo-Norman region.57 To offer a few examples, the ordo known as “Tractaturi”, assembled in northern France after 1165, drew more heavily upon Roman law than upon canon law, but ecclesiastical lawyers used it for the formulation and presentation of cases in church courts.58 The Ulpianus de edendo was compiled in the Anglo-Norman region sometime during the 1150s or 1160s during the reign of King Henry II. It sought a complete treatment of civilian procedure and was grounded in texts almost entirely taken from the Justinianic Corpus of the Codex, Digest, and Authenticum.59 The titles of the Ordo Bambergensis, 55 See F. Donald Logan, Excommunication and the Secular Arm in Medieval England: A Study in Legal Procedure from the Thirteenth to the Sixteenth Century (Toronto, 1968). 56 On this see Brundage, The Medieval Origins of the Legal Profession; idem, “‘My Learned Friend’: Professional Etiquette in Medieval Courtrooms,” in Readers, Texts Compilers in the Earlier Middle Ages: Studies in Medieval Canon Law in Honour of Linda Fowler-Magerl, eds. M. Brett and K. G. Cushing (London: Routledge, 2007), 183–196. 57 Fowler-Magerl noted that the Romano-canonical procedure entered England through ecclesiastical courts (Ordines Iudicarii and Libelli de Ordine Iudicorum, 93). In addition to the procedural manuals discussed she pointed to a few others worth noting briefly. The ordo “Abbas cuiusdam monasterii”, compiled possibly for the deacons of Lincoln in 1210, and the ordo “Iudicium est trinus actus trium personarum”, compiled in Oxford after 1198, both take the form of questions. William of Drogheda compiled an ordo “Cum in singulis diebus” at Oxford between 1239 and 1245 (66). A shorter ordo intended for courts of the local judges ordinary, the “Iudicium est actus trium personarum” was written for the courts of Westminster after 1234 (72). 58 Fowler-Magerl, Ordines Iudicarii and Libelli de Ordine Iudicorum, 60–61. For the edition see Incerti auctoris Ordo Iudiciarius, Pars Summae Legum et Tractatus de Praescriptione, ed. C. Gross (Innsbruck, 1870). 59 B. Brasington, Order in the Court: Medieval Procedural Treatises in Translation (Leiden, 2016), 123–127. For the edition, see Incerti auctoris ordo iudiciorum (Ulpianus De Edendo), ed. G. Haenel (Leipzig, 1838).

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a manual compiled some time after 1186 and connected both to Oxford but also to Ireland, were organized similarly to those in the Ulpianus de edendo. Contrary to the Ulpianus de edendo which only drew on Gratian once in the section on appeals, it includes texts from both Roman law and canon law, drawing significantly from Gratian’s Decretum. The Ordo Bambergensis also discussed excommunication and marriage, topics not addressed in the Ulpianus de edendo.60 Unlike the Ulpianus de edendo, however, the Ordo Bambergensis had a limited circulation in the AngloNorman region.61 The Practica legum et decretorum—written between 1182 and 1189 by William of Longchamp, who served simultaneously in the roles of bishop of Ely, papal legate, and King Richard I’s chancellor—paid particular attention to exceptions and modified Roman procedure to take canonists’ concerns with equity into consideration.62 Three ordines served as commentaries on Causae 2–6, the tract on procedure in Gratian’s Decretum: the Summa Elnonensis, compiled in Paris between 1160 and 1170, possibly by Gérard Pucelle before he left Paris to teach canon law at Cologne;63 the “In principio”, which was compiled in Reims, or maybe even in Amiens, around 1171; and the “Videndum est quis sit ordo”, compiled by canonist Peter of Blois between 1185 and 1189 in north-eastern France. They contained a section devoted to procedure appropriate in civil matters and a section devoted to procedure appropriate in criminal matters.64 Procedural manuals laid bare, in a streamlined format for navigation, the norms derived from Roman law, canon law found in Gratian’s Decretum, and professional commentaries—or some combination thereof—that would guide each stage of the trial.65 They were structured in such a way that those of varying intellectual interests and expertise in law could ensure procedural rules were followed. Ordines were sometimes divided into parts. The “Tractaturi”, as an interesting example, comprises of three parts. Part 1 addresses procedure.66 Part 2 treats financial transactions, such as borrowing and lending, deposits, sureties, buying and selling, leasing and renting, 60 Brasington, Order in the Court, 197–203. 61 Fowler-Magerl, Ordines Iudicarii and Libelli de Ordine Iudicorum, 62. 62 Brasington, Order in the Court, 172–180; Donahue, Jr.’s review essay of Brasington’s work in BMCL 34 (2017): 289. For the edition, see Der Ordo iudiciarius des Codex Bambergensis P.I.11, ed. J. F. von Schulte (Vienna, 1872), 289–325; Fowler-Magerl, Ordines Iudicarii and Libelli de Ordine Iudicorum, 64. 63 G. Fransen, “Colligite Fragmenta: La Summa Elnonensis,” SG XIII (1967): 85–108, here 88–89, 107–108. 64 Fowler-Magerl, Ordines Iudicarii and Libelli de Ordine Iudicorum, 62–63. 65 C. 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. T. N. Bisson (Philadelphia, 1995), 172–200, here 177, 196. 66  Incerti auctoris Ordo Iudiciarius, 88–158. André Gouron has suggested that this part may have been compiled by Walter of Coutances shortly after 1160. Walter had worked in the service of Kings Henry II and Richard I of England, and he was bishop of Lincoln from 1182/1183 to 1184, followed by archbishop of Rouen from 1184 until his death in 1207. Walter is also attributed with overseeing the compilation of the Appendix Lateranensis III while he served as bishop of Lincoln. See A. Gouron, “Une école de canonistes anglais à Paris: Maître Walter et ses disciples (vers 1170),” Journal des Savants 1 (2000): 47–72; P. Landau, “Walter von Coutances und die Anfänge der anglo-normannischen Rechtswissenschaft,” in “Panta rei,” ed. Condorelli, 3:183–204.

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and contracts establishing a long-term lease of immoveable property in which the one leasing the land enjoyed full rights of that property but rent was paid. It also provides example formulas ranging from calling someone to court to making the transaction.67 Part 3 deals with prescription, that is, the acquisition of ownership (usucapio) of property through continuous and uncontested possession or use for a fixed period of time.68 Even if not divided into parts, ordines typically were divided into sequentially organized chapters addressing the procedure of a particular stage of the trial. The manuals typically began with how charges were brought about and the process of summoning someone to court. They would move to discuss acceptable stays and delays to the trial. A chapter on juridical order would address civil and criminal charges and the differences between them. They would discuss the oath of calumnia which accompanied the sureties paid on both sides. The ordines would address who could and could not serve as witnesses and the acceptable forms of proof.69 They addressed the voluntary oath and the judicial oaths taken in the course of testimony and perjury. A section would address the various personnel involved in the trial, focusing poignantly on the proctors and the judges. A separate section would deal with arbiters, as decisions arising out of arbitration did not possess the same authority as judgments. Finally, the ordines typically ended by addressing the sentencing phase and appeals.70 Ordines made the procedural process accessible and easier to follow, thus safeguarding the rights of both defendant and accuser. As developments in courts, procedure, and procedural manuals make clear, by the fourteenth century the authorities of the Latin church had created a formidable apparatus for law enforcement and adjudication. Canonical courts furnished civil litigants with a forum for resolving their disputes on a wide variety of matters, while the church’s criminal justice system took cognizance of a broad spectrum of canonical offences that ranged from petty aberrations from behavioral norms to crimes of the utmost gravity. Canonical procedural law grew increasingly sophisticated, technical, and complex, as persons with formal legal training became increasingly available to operate it. The procedures that characterized actions heard by

67  Incerti auctoris Ordo Iudiciarius, 159–247. See also A. Berger, Encyclopedic Dictionary of Roman Law (Philadelphia, repr. 1991), 452. A long-term contract was called an emphiteosis. 68  Incerti auctoris Ordo Iudiciarius, 251–269. See also Berger who noted that under Justinian praescriptio longi temporis equated to usucapio, see Encyclopedic Dictionary of Roman Law, 645, 752. 69 B. Brasington found that the De testibus tractaturi drew on Gratian’s Decretum and decretals of Pope Alexander III—not Roman law—to demonstrate that the testimony of a witness who had since died could be accepted by the court so long as it was validated. See “De testibus tractaturi: A Late Twelfth-Century Italian Canonistic Treatise on Legal Procedure,” Vergentis no. 4 (2017): 167–177. For a study of another twelfth century, Saepenumero (uero) in iudiciis examinandis, which deals with forms of proof and whether the testimony of witnesses should or should not be accepted based on the witnesses’ s character, status, and trustworthiness, see B. Brasington’s “A Twelfth-Century Treatise on Proof: Saepenumero (uero) in iudiciis examinandis,” BMCL 32 (2015): 57–77. 70  Incerti auctoris Ordo Iudiciarius, 88–158; Ulpianus De Edendo, 1–53; Der Ordo iudiciarius des Codex Bambergensis, 7–44.

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diocesan synods or episcopal courts gave way between the twelfth and fourteenth centuries to processes that necessitated the skills of an increasingly professionalized body of legal experts. Under these circumstances it is scarcely surprising to discover that canon lawyers also became progressively more concerned with problems of procedural law and jurisprudence. Procedural manuals helped judicial personnel navigate these waters. They served as indispensable tools to the trial process and to creating an atmosphere in which due process and justice could be upheld.

8 CANON LAW IN THE LIVES OF PEOPLE

As previous chapters have brought to bear, medieval canon and Roman civil law had a close relationship. Canonists studied Roman civil law as part of their training, while Romanists (jurists of Roman law) acquired a working knowledge of canon law in order to make a reasonable living. Together canonists and civil lawyers were integral to the development of the norms and procedural process associated with the ius commune, which, in turn, allowed the two, formally distinct, legal systems of canon and civil law to borrow procedural practices, ideas, and doctrines from one another when useful or appropriate. Church law and civil law complemented and competed with each other; the two laws oftentimes operated within the same geographical region, dealt with the same legal issues, and served much of the same population. The end result was a slippage between the two courts. Secular courts might validate a marriage that took place in a church court while hearing a case regarding property, and a church court might uphold a marriage contract made in secular court by enforcing the payment of the dowry.1 Jurists of the twelfth-­and thirteenth-­ century English common law tradition turned to canon law for clarification of familial relationships, particularly in inheritances cases. They borrowed from the canonical tradition the methods of counting degrees of consanguinity, and they adopted consanguinity trees as the visual representations of how those degrees were counted.2 1  F. Pedersen, “A Matter of Choice: Spiritual and Secular Jurisdiction in Two English Marriage Cases in the Early Fourteenth Century,” in Law and Learning in the Middle Ages. Proceedings of the Second Carlsberg Academy Conference on Medieval Legal History 2005, eds. H. Vogt and M. Münster-­ Swendsen (Copenhagen, 2006), 223–234. 2  S. Worby, “The Influence of the Learned Laws on Common Law Kinship: An Introduction,” in Law and Learning in the Middle Ages, eds. Vogt and Münster-­Swendsen 207–222. See, for example, C. Beattie and M. Frank Stevens, eds., Married Women and the Law in Premodern Northwest Europe (Woodbridge, 2013) for essays exploring the access married women had to legal recourse in cases with financial implications (e.g., property, contracts). DOI: 10.4324/9781003156734-9

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FIGURE 8.1 

Table of Consanguinity (ca. 1270–1300) from Gratian’s Decretum

© Cleveland Museum of Art via Creative Commons

Canon law permeated the entire medieval social order, repeatedly touching the lives of practically every person from cradle to grave, regardless of social status or occupation. Its fasting regulations controlled what people ate and when they ate it. Its tax system demanded contributions from every peasant and workman, while its usury laws made life difficult (although not necessarily unrewarding) for money changers, merchants, bankers, and financiers. Its feasts, festivals, and holidays shaped patterns of work and play. Both Christian worship and beliefs provided the context within which individuals prayed and thought. From baptism to burial, canon law was a major presence in everyday life from top to bottom of the social scale.3 3  The interplay of law and society is often referred to as “new legal history”. This scholarly approach places law into dialogue with political, economic, social, and religious developments. See, in particular, A. Musson, Medieval Law in Context: The Growth of Legal Consciousness from Magna Carta to the Peasants’ Revolt (Manchester, 2001), 3; D. Sugarman, “Writing ‘Law and Society’ Histories,”

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Deviation from accepted religious beliefs and marriage are two excellent case studies in which to explore canon law’s impact on the lives of people. Canonical collections, inquisitorial manuals, and marriage treatises clarified the current legal thought and pushed it in new directions. The institutional Church and the creation of the “other” are best illustrated through the manner in which Jews and Muslims, despite being outside of the Church, were on the receiving end of the canon law. The papal inquisition is probably the most famous example of how the institutional Church and its legal apparatus involved itself in the lives of people who chose not to follow orthodox belief and practice. The papacy also took an active role in marital relations and the Apostolic Penitentiary heard more than its fair share of petitions requesting dispensations for one form of impediment or another. However, the law was not simply imposed on people. As marital law reveals, people had a level of legal understanding and used the law to reach a desired outcome. Canonists had traditionally been clear about the limits within which law operated. Borrowing from the Roman juristic tradition, they adopted as a basic premise the principle of the third-­century jurist Modestinus, who asserted that “[l]aw has the power to order, to forbid, to permit, and to punish.”4 Laws, furthermore, must deal with future actions and events, not past ones. Stated another way, laws had no retroactive force: they could not order, forbid, permit, or punish actions, no matter how wicked or undesirable, that occurred before the law was created.5 A law could also not revoke prior transactions, except under exceptional circumstances, when the matter had not been completed at the time of the law’s creation and when the legislator expressly stated that the new law applied to ongoing transactions.6 Finally, despite existing legal restrictions on Jews,7 early canonists had generally accepted the premise that canon law was binding only upon Christians. Jews and other non-­ Christians under Christian rule, for example, were not obliged to observe canonical marriage rules that forbade persons related by blood or by legal ties (in-­laws, for example) to marry one another. The Modern Law Review 55 (1992): 292–308. For how particular facets of the law—such as sanctuary, compurgation, commerce, wills, and defamation—developed in canon law and the ius commune in England, see R. Helmholz, The Ius Commune in England: Four Studies (Oxford, 2001); and The Oxford History of the Laws of England: The History of the Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford, 2004). 4 Dig. 1.3.7; see, for example, Grat. D.3 d.p.c.3; Die Summa magistri Rolandi nachmals Papstes Alexander III, ed. F. Thaner (Innsbruck, 1874), proem., p. 3; Summa “Elegantius in iure divino” seu Coloniensis, eds. G. Fransen and S. Kuttner (Vatican City, 1990), 1.24a, 1:6. 5  This again was a Roman law principle, see Cod. 1.14.7; Also Summa “Elegantius in iure divino”, 1.26, 1:7, as well as X 1.2.2. 6  X 1.2.13. 7  For a well-­rounded study of the legal tradition between the sixth and the fourteenth centuries, see Jews in Early Christian Law: Byzantium and the Latin West, 6th–11th Centuries, eds. J. Tolan, N. de Lange, L. Foschia, and C. Nomo-­Pekelman (Turnhout, 2014); and W. Pakter, Medieval Canon Law and the Jews (Ebelsbach, 1988). The former is very good for the uncertain extent to which laws were enforced and obeyed and the latter, despite its title, devotes considerable space to Roman and secular law. For legal texts, see A. Linder, The Jews in the Legal Sources of the Early Middle Ages (Detroit, 1997).

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During the high and later Middle Ages, however, the limits of the law became more nebulous. With the latter half of the twelfth century, canonists began to scrutinize more intently the legal relationship between Christians and Jews. While traditional norms found in St. Paul, St. Augustine, Gregory the Great, and Roman law continued to shape juridical thinking toward the Jews (who were tolerated so long as they served Christian aims), the way in which texts were framed seemed to push the limits of the law to further marginalize Jews. While Gratian’s Decretum prevented the forced conversions of Jews and protected their religious services, bishops should coax Jews to conversion. Those Jews who did convert had to remain Christian and could be forced to do so if need be.8 The Anglo-­Norman glossators John of Tynemouth and Simon of Southwell reinforced this position in their gloss of C.23 q.8 c.11 (Dispar nimirum), which protected Jews against Christian attack. Canonists applied the concept of conditional force, such as the threat to kill the individual unless he converted, to argue that that the convert had conditionally consented and thus the conversion was valid. Returning to Judaism made them guilty of blasphemy. The Decretum also repeated the “old law” that Jews could not possess or employ Christian servants and Jewish slaves who converted to Christianity were freed, and it repeated provisions that Jews could not hold public office and therefore could not have jurisdiction over Christians. Jews also could not bring a lawsuit against Christians in court. Finally, the Decretum repeated provisions separating Jewish converts from other Jews, forbidding interreligious marriages, mandating that Jews who did marry Christian women must convert, and removing Christian children from Jewish parents and relatives. The Ordinary Gloss of the Decretum justified removing Christian children from Jewish parents by maintaining that baptism had dissolved the patria potestas (father’s legal rights) though the children continued to retain their inheritance. With this said, Jewish children were not to be removed from their Jewish parents as it would, according to Huguccio, violate the rights of parents. Converted Jews who continued to fraternize with Jews could be handed over to Christians—though canonists were clear to articulate that they were not to be slaves—and the Jews with whom they were fraternalizing could be publicly flogged as corporal punishment if the bishop or lay prince instructed it.9 Thirteenth-­and fourteenth-­century canon law sharpened the negative connotations while further subjecting Jews to its policies. The Fourth Lateran Council serves as one such example.10 The council prohibited Jews from extorting exces8  Grat. D.45 c.3–c.5. 9 Grat. D.54 c. 13–c.15; C.17 q. 4 d.p.c.30, c.31, and d.p.c.31; C.2 q.7 c.24–c.25; C.28 q.1 c.10–c.14. Gratian had included texts dealing with the legal status of the Jews late in the compilation of the Decretum. See K. Pennington, “Gratian and the Jews,” BMCL 31 (2014): 111–124; A. Sapir Abulafia, “Responses to Genocide: Coercion and Marginalization in ‘Gratian’s Decretum with Particular Reference to Jews and Muslims’,” in A Cultural History of Genocide, Vol. 2: The Middle Ages, ed. M. H. Eichbauer (London, 2021), 101–122; eadem, “Gratian and the Jews,” Jaarboek Thomas Instituut te Utrecht 36 (2017): 9–39 [ journal is continued as European Journal for the Study of Thomas Aquinas (2019–)]. 10 I. M. Resnick, “The Jews’ Badge,” Jews and Muslims under the Fourth Lateran Council: Papers Commemorating the Octocentenary of the Fourth Lateran Council (1215), eds. I. M. Resnick and

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sive usury from Christians, which canonists interpreted as exceeding the legitimate amount set out in the statutes of towns and cities. It also imposed indirect excommunication on Jews who had taken over houses and other properties from Christians (be it from defaulting on loans or other ways) and failed to pay the tithes and offerings traditionally owed by Christians on this property. It required Jews and Saracens living in Christian lands to wear distinctive clothing in public to avoid comingling with Christians; precedents for distinctive dress were found in Roman law (matron v. prostitute), monastic custom (habit of novice v. professed), and normal life (men dress v. female dress). Jews and Saracens were also prohibited from appearing in public on Christian days of public penance and lamentations and prohibited intermarriage; public authorities were tasked with the enforcement of these provisions. The council reiterated… yet again… provisions preventing Jews from holding public office and against converts who continued to affiliate with their previous faith.11 The Second Council of Lyon (1274) had addressed Christian moneylenders in northern Italy and in cities and territories of northern Europe by calling on secular and religious authorities to refuse lodging to foreign usurers and to expel such usurers from their lands, yet this provision would, over time, be applied to Jews. The first canonist to do so was John of Legnano (d. 1383). While juridical opinions would waffle as whether it was appropriate to apply this decree to Jews, Jewish usurers in practice tended to be subjected to the same canonical rules as their Christian usurers by the fourteenth century.12 Canonists began to consider imposing the law on Muslims quite late in the twelfth century. Gratian’s Decretum, which does not have a subsection on the subject, contains only five references to Muslims.13 Bernard of Pavia, however, devoted a specific title to Jews and Muslims in his Compilatio prima.14 Nevertheless, canonists tended to see Jews and Muslims through different lenses. They tended to view Jews through a lens of faith; on account of Jews’ continued faithlessness, there existed M.-T. Champagne (Turnhout, 2018), 65–79; J. Goering, “Lateran Council IV and the cura Judaeorum,” in The Fourth Lateran Council: Institutional Reform and Spiritual Renewal. Proceedings of the Conference Marking the Eight Hundredth Anniversary of the Council Organized by Pontificio Comitato di Scienze Storiche (Rome, 15–17 October 2015), eds. G. Melville and J. Helmrath (Affalterbach, 2017), 243–253. 11 COGD II/1, pp. 198–200: c.67 (X 5.19.18 and Gloss. ord., ad s.v. Quanto), c. 68 (X 5.6.15), c.69 (X 5.6.16), c.70 (X 5.9.4). 12 COGD II/1, pp. 350–353: c.26 (VI 5.5.1); G. Battista Ziletti, ed., Criminalium consiliorum atque responsorum tam ex veteribus quam iunioribus cel eberrimis iurisconsultis collectorum, 2 vols (Venice, 1560) is an excellent source for consilia. R. W. Dorin, “‘Once the Jews have been Expelled’: Intent and Interpretation Late Medieval Canon Law,” LHR 34 (2016): 335–362. For efforts at pastoral care of the Jews, see R. Rist, “The Medieval Papacy and the Concepts of ‘Anti-­Judaism’ and ‘Anti-­Semitism’,” in Authority and Power in the Medieval Church, c. 1000–c. 1500, ed. T. W. Smith (Turnhout, 2020): 79–107; Goering, “Lateran Council IV and the cura Judaeorum,” in The Fourth Lateran Council, eds. Melville and Helmrath, 250–252. 13 Three references are found in C.23 q.8, and two references are found in the Distinctions (D.50 c.38 and D.56 c.10). 14 I Comp. 5.5 (X 5.6) is entitled De Iudaeis et Sarracenis et eorum servis (“Concerning Jews and Muslims and their Slaves”).

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a need to safeguard social separation and Christian dominance. They tended to view Muslims, in contrast, as external invaders and a military threat, a perception which held sway until the Council of Vienne (1313–1314) when Muslim belief and practice came under consideration.15 When glossators came to consider the law’s applicability on Muslims, they seemed to do so in relation to the laws governing the Jews. Essentially, they would adapt policies pertaining to Jews and apply them to Muslims. The Glossa ordinaria of Gratian’s Decretum wove Muslims into glosses on canons focused on the Jews.16 The anonymous author of Summa Permissio quaedam noted in comments on C.23 q.8 c.11, which protected Jews against Christian attack, that there was no difference between Jews and Saracens as such: Christians should wage war against any non-­Christian who persecute and expel Christians, but not against those who were peaceful. The Glossa ordinaria of Gratian’s Decretum echoed this point: if Muslims did not persecute Christians, they could not be attacked, and Christians were even permitted to partake of their meals. Christians, however, were not permitted to partake in meals with Jews.17 By the beginning of the fourteenth century most had come to accept that the pope, as Vicar of Christ, possessed the power to make laws that applied even to non-­ Christians. The papacy, as Innocent IV bears witness, saw its charge as ultimately responsible to Christ for the souls of all human beings irrespective of faith. To that end, the pope was obliged to ensure that non-­Christians obeyed natural law and had the opportunity to learn the truth of Christianity. If non-­Christian rulers failed to enforce natural law or refused to allow Christian missionary activity in their territories, the papacy could justly authorize the use of force in support of their efforts to carry out its charge. Innocent IV, however, also insisted that non-­Christians could own property as it was an element of the natural law. Hostiensis, on the other hand, rejected this view. On account of the incarnation, those who failed to accept Christ’s faith lost any legitimate right to government and property.18 Boniface VIII’s decretal Unam sanctam (1302)—which is interpreted most often within the context of the struggle between the pope and King Philip IV the Fair of France—reiterated the papacy’s claim to jurisdiction over all, which would include non-­Christians: “we declare, we proclaim, we define that it is absolutely necessary for salvation that every human creature be subject to the Roman Pontiff.”19 The application of laws 15 R. Szpiech, “Saracens and Church Councils, from Nablus (1120) to Vienne (1313–14),” in Jews and Muslims under the Fourth Lateran Council, eds. Resnick and Champagne 115–137. 16  Grat. C.11 q.3 c.24, C.23 q.8 c.11, C.28 q.1 c.13, and C.28 q.1. c.14. 17 A. Sapir Abulafia, “Engagement with Judaism and Islam in Gratian’s Causa 23,” in Jews and Christians in Medieval Europe: The Historiographical Legacy of Bernhard Blumenkranz, eds. P. Buc, M. Keil, and J. Tolan (Turnhout, 2015), 35–56; eadem, “Gratian and the Jews,” 9–39, here 18–19; D. M. Freidenreich, “Muslims in Western Canon Law, 1000–1500,” in Christian-­Muslim Relations: A Bibliographical History, Vol. 3 (1050–1200), eds. D. Thomas and A. Mallett (Leiden, 2011), 41–68, here 53. 18  D. M. Freidenreich, “Muslims in Western Canon Law, 1000–1500,” in Christian–Muslim Relations, eds. Thomas and Mallett 41–68, here 50. The differing positions of Innocent IV and Hostiensis provided the framework for juridical debate of the property rights of non-­Christians. 19  Extrav. comm. 1.8.1.

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over non-­Christians would vary by place, however. In Iberia, the Fourth Lateran Council’s restrictions against the Jews being fully applied to Muslims did not come to fruition until the fifteenth century when they were included in secular collections, such as the royal ordinance of Valladolid (1412), Cortes of Toledo (1480), and the Sentencia de Medina Del Campo (1465).20 Eventually, Jews and Muslims came to became indistinguishable from heretics: all three were considered among the unfaithful. Heretics (along with blasphemers and the sacrilegious), like Jews and Muslims, fell under canonical jurisdiction.21 One could be deemed a heretic for a number of reasons: (1) doubting the articles of the faith, (2) simony, (3) having been excommunicated, (4) misinterpreting the Scriptures, (5) creating new false opinions, (6) depriving the Church of Rome of its privileges, and (7) not obeying the precepts of the Apostolic See.22 Heresy condemnations included not only those outside established orthodoxy, such as the Cathars, but also those from within the establishment, such as the theologians Abelard (d. 1142) and Joachim of Fiore (d. 1202), and political dissidents such as Emperor Frederick II Hohenstaufen (d. 1250) and Marsilius of Padua (d. 1342).23 Reponses to heresy came in the form of papal decretals, inquests by bishops, and mendicant engagement in preaching and hearing confessions.24 Pope Lucius III’s decretal Ad abolendam (1184) and Innocent III’s decretal Vergentis in senium (1199) escalated the legal process against heretics. Ad abolendam called for ecclesiastics notoriously convicted of heresy to be deposed from their order and despoiled of their benefice. Essentially, in losing his status within the Church, he could, if necessary, be delivered to the secular arm for punishment. He, however, may avoid such an outcome if he renounced his errors and submitted himself to his bishop for correction. If a layman, he was to be handed over to the secular arm for punishment unless he abjured his heresy, made satisfaction, and immediately returned to the Catholic faith. Those suspected of heresy were to provide full evidence of their innocence according to the level of suspicion against them and according to their status or else they were subject to the same sentence as those convicted. 20 A. Echevarria, “The Marks of the Other: The Impact of Lateran IV in the Regulations Governing Muslims in the Iberian Peninsula,” in Jews and Muslims under the Fourth Lateran Council, eds. Resnick and Champagne, 183–198. 21  D. M. Freidenreich, “Sharing Meals with Non-­ Christians in Canon Law Commentaries, circa 1160–1260: A Case Study in Legal Development,” Medieval Encounters 14 (2008): 41–77; S. K. Stantchev, ‘“Apply to Muslims what was said of the Jews:’ Popes and Canonists between a Taxonomy of Otherness and Infidelitas,” LHR 32 (2014): 65–96 22 R. Maceratini, “Innocenzo III, il Concilio Lateranese IV e Lo Status Giuridico dell’Eretico nella Glossa Ordinaria al Decreto di Graziano ed in Quella di Accursio al Codice di Giustianio,” Vergentis no. 3 (2016): 19–58, here 44–45. These positions were outlined on the gloss of Grat. C.24 q.3 d.p.c.25 s.v. inter schisma et heresim. 23 The literature on these topics is great. For an introduction, see the essays in Religion, Power, and Resistance from the Eleventh to the Sixteenth Century: Playing the Heresy Card, eds. K. Bollermann, T. M. Izbicki, and C. J. Nederman (New York, 2014). 24 See M. Frassetto, “Precursors to Religious Inquisition: Anti-­heretical Efforts to 1184,” and L. J. Sackville, “The Church’s Institutional Response to Heresy in the 13th Century,” in A Companion to Heresy Inquisitions, ed. D. S. Prudlo (Leiden, 2019), 41–72, 108–140, respectively.

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Those found to have relapsed after having abjured themselves were to be delivered to the secular arm without any further hearing and their goods confiscated for the use of the Church. A bishop was to be suspended for three years from his episcopal dignity and administration if he were negligent or slow to prosecute heresy. All secular leaders should swear an oath to assist the Church in rooting out and prosecuting heretics, otherwise they should be deprived of their status, sentenced with excommunication, and their goods confiscated for the use of the Church.25 The decretal Vergentis in senium excommunicated, heretics and brought the crime of heresy under the umbrella of Roman law’s crimen laesae majestatis (­treason). They were regarded as infamous ipso iure (by the law itself) on account of one’s actions; a sentence of condemnation was not necessary. Their property was confiscated, a ruling that impacted their children even if they were not guilty of the error committed by their parents. Condemned heretics were banned from holding public office, giving testimony in court, making wills, or inheriting. Innocent also applied these provisions to those who supported, defended, and harbored heretics.26 We saw in Chapter 7 that inquisitorial procedure played an important role in trying transgressions for which there were not eyewitnesses, such as murder or sexual misconduct of the clergy.27 The Fourth Lateran Council called for inquests into clerical excessus (misconduct) based on clamor or fama (public report) in cases where scandalum (scandal) was a risk even though there was no accuser.28 Yet, as we also saw, inquisitorial procedure neither began with the Fourth Lateran Council nor was it developed to prosecute heresy. It grew organically in the second half of the twelfth century from the needs of courts to prosecute crimes in general. It neither restricted due process, nor did it privilege heresy over other crimes, nor did the procedure used in ecclesiastical courts differ significantly from that used in secular courts. In short, inquisitiones were legal inquiries that tried crimes and 25  I Comp. 5.6.5 (X 5.7.9). 26 III Comp. 3.4.1 (X 5.7.10). See also G. M. Cantarella, “L’evoluzione della normativa antiereticale di Innocenzo III dalla Vergentis in senium (1199) al IV concilio lateranense (1215),” Bullettino dell’Istituto storico italiano per il Medio Evo 106, no. 2 (2004): 207–240; Maceratini, “Innocenzo III, il Concilio Lateranese IV e Lo Status Giuridico dell’Eretico nella Glossa Ordinaria al Decreto di Graziano ed in Quella di Accursio al Codice di Giustianio,” 31–32. Macerantini notes the Romanist Accursius’s side-­stepping of Vergentis despite possessing a copy of the decretal collection Appendix Concilii Lateransis. 27 For an introduction to the use of inquisitorial procedure in non-­public crimes, see H. A. Kelly, “Inquisitorial Due Process and the Status of Secret Crimes,” in Proceedings San Diego 1988, 407– 414. For an excellent introduction to “deviant” beliefs, see C. Caldwell Ames, Medieval Heresies: Christianity, Judaism, and Islam (Cambridge, 2015). 28 CODG II/1, pp. 171–172: c.8 (X 5.1.24). In his study of the parallels between c.8 and Robert of Courson’s Summa penitentiae, which dealt with the ordo, accusation, infamia, fraternal correction, and scandal in his penitential, John Sabapathy maintained that the community played a vital role in asserting publica infamia as the community was tasked with responsibility to hold clerics accountable. While a community’s perception of scandal was important, a community could be wrong; a realization that c.8 reflects by requiring a superior to investigate rumors of misconduct from reliable sources, but with exceptional care. See “Some Difficulties in Forming Persecuting Societies before Lateran IV Canon 8: Robert of Courson thinks about Communities & Inquisitions,” in The Fourth Lateran Council, eds. Melville and Helmrath 175–200.

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clerical misconduct. Inquisitiones hereticae pravitatis would be legal inquiries into heresy spearheaded by the papacy.29 A group of loosely-­related ecclesiastical courts that specialized in cases of doctrinal deviance, the papal inquisition comprised of inquisitors to investigate claims of heresy. Pope Gregory IX appointed Conrad of Marburg (d. 1233) as the first special prosecutor of heresy and he served the chief inquisitor in Germany. The pope would send Robert le Bougre, a Dominican friar, to northern France.30 By the end of the 1230s, Dominican and Franciscan inquisitors could be found in Lombardy and in central Italy investigating the Waldensian heresy.31 As the thirteenth century progressed, inquisitorial courts appeared in Sicily and southern Italy, Armenia, Morocco, and Norway. The contours and effectiveness of inquisitorial courts varied in the thirteenth century, as efforts in southern France demonstrate.32 Furthermore, episcopal engagement with inquisitorial activities also varied.33 In response to such a diffused structure, the papacy undertook a more centralized role in the operations of inquisitorial tribunals in the fourteenth century.34 In sum, we need to take care to distinguish between “inquisition” as a type of procedure and “inquisition” as a body that prosecuted heresy. Furthermore, we must remember that there was not one “inquisition” that prosecuted heresy. Scholars, for example, separate the fifteenth-­century Spanish Inquisition—the fairly well-­organized inquisition begun 29 H. A. Kelly, “The Fourth Lateran Ordo of Inquisition Adapted to the Prosecution of Heresy,” in A Companion to Heresy Inquisitions, ed. Prudlo, 75–107; L. Kéry, “Kirchenrechtliche Grundlagen des öffentlichen Strafrechts,” ZRG Kan. Abt. 91 (2005): 128–167; L. Kéry, “‘Inquisitio – ­denunciatio – exceptio’: Möglichkeiten der Verfahrenseinleitung im Dekretalenrecht,” ZRG Kan. Abt. 88 (2001): 226–268; H. A. Kelly, “Inquisition, Public Fame and Confession: General Rules and English Practice,” in The Culture of Inquisition in Medieval England, eds. M. C. Flannery and K. T. Walter (Cambridge, 2013), 9, 13–14; K. Pennington, “Introduction to the Courts,” in HCP, 3–29, here 10–18; K. Pennington, “The Fourth Lateran Council: Its Legislation, and the Development of Legal Procedure,” in The Fourth Lateran Council, eds. Melville and Helmrath, 41–54, here 51–53. 30 V. Bivolarov, Inquisitoren-­Handbücher: Papsturkunden und juristische Gutachten aus dem 13. Jahrhundert mit Edition des Consilium von Guido Fulcodii (Wiesbaden, 2014) provides an extensive list of papal decretals and jurists’ consilia written between the years 1230/31 and 1292 addressing inquisitorial practice. A collection of translated documents pertaining to the inquisition can be found in J. H. Arnold and P. Biller, trans., Heresy and Inquisition in France, 1200–1300 (Manchester, 2016). For an introduction to the early modern Italian Inquisition, which was founded in 1542 and lasted in different manifestations until the 1790s, see C. F. Black, The Italian Inquisition (New Haven, 2009). 31  See, for example, J. Moore, Inquisition and Its Organisation in Italy, 1250–1350 (York, 2019). 32 On the efforts of Pope Honorius III (d. 1227), see T. W. Smith, “The Interface between Papal Authority and Heresy: The Legates of Honorius III in Languedoc, 1216–1227,” in Authority and Power in the Medieval Church, ed. Smith, 135–144. For the structural constraints inquisitors faced in southern France, see J. Given, Inquisition and Medieval Society: Power, Discipline and Resistance in Languedoc (Ithaca, 2001). 33 See R. Välimäki, “Bishops and the Inquisition of Heresy in the Late Medieval Germany,” in Dominus Episcopus: Medieval Bishops between Diocese and Court, eds. A. J. Lappin with E. Balzamo (Stockholm, 2018), 186–206; Bivolarov, Inquisitoren-­Handbücher, 262. For the shifting attitudes on heresy trials in the fourteenth and fifteenth century, see R. Vose, “Heresy Inquisitions in the Later Middle Ages,” in A Companion to Heresy Inquisitions, ed. Prudlo, 141–171. 34 On the efforts of Boniface VIII, see VI 5.2.16–17. On the efforts of Pope Clement V, see Clem. 5.3.1–2.

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by King Ferdinand and Queen Isabella—from the ecclesiastical tribunals of the papal inquisition.35 Inquisitorial manuals, in theory, shed light on structural operations and serve as important windows into the processes and procedures of heresy trials. Their production coincided with the wider tradition of textual output which included procedural manuals, penitential and guidelines for hearing confessions, literature on how to write sermons, and administrative and financial record keeping. These portable manuals played an important role in creating a framework for investigating heretical belief, gathering information, interrogating suspects, noting similarities and differences between groups, and preserving that information for use in different places and at different times.36 The earliest inquisitorial manual, the Ordo processus narbonensis, dates to 1248 or 1249 and was written by the inquisitors for Toulouse, Bernard de Caux and Jean de Saint Pierre. It was revised and expanded between 1262 and 1277.37 The first version of the French De inquisitione hereticorum was written in 1271 and set forth how to interrogate suspects. Bernard Gui’s Practica inquistionis heretice pravitatis (ca. 1323) is a five-­part manual for practitioners which included information on legal formulas pertaining to summons, to decisions, to abjurations, and for use in sermons and at sentences; on the law of inquisition and how to behave as an inquisitor; on the conduct of interrogations, description of various heretical sects and questions to determine if the suspect was a follower.38 Nicholas Eymerich’s Directorium inquisitiorum (1376) was written for Dominicans in the kingdom of Aragon, though it had a wider transmission, and is divided into three parts: a theological and legal justification for suppressing heresy through the inquisition; sources of canon law and glosses relevant to heresy and heretics set forth in 58 quaestiones; and a description of how to call a general sermon (sermo generalis), organize and conduct an inquisition, advice about the sects, and disposition of cases. Eymerich’s work was central to expanding inquisitorial activity both into cases of witchcraft by seeing suspects as potentially demonically possessed and cooperating with demons, and by applying inquisitorial thought about Jews and Muslims.39 35 For a helpful overview, see D. S. Prudlo’s introduction in A Companion to Heresy Inquisitions, 1–8; more fully see E. Peters, Inquisition (Berkeley-­L os Angeles, 1989), 122–154; R. Kieckhefer, “The Office of Inquisition and Medieval Heresy: The Transition from Personal to Institutional Jurisdiction,” JEH 46, no. 1 (1995): 36–61. As R. Vose raises (see n.33 above, pp. 167–168), the rise of a strong centralized monarchy played a key role in shifting the power of heresy inquisitions away from ecclesiastical tribunals; see also H. Rawlings, “The Spanish Inquisition and Converso Challenge (c.1480–1525): A Question of Race, Religion or Socio-­Political Ascendancy?” and W. Thomas, “The Metamorphosis of the Spanish Inquisition, 1520–1648,” in A Companion to Heresy Inquisitions, ed. Prudlo, 175–197 and 198–227, respectively. 36 L . J. Sackville, “The Inquisitor’s Manual at Work,” Viator 44 (2013): 201–216 with p. 216 providing a list of manuals with manuscripts and an edition if available. 37 For an English translation, see W. L. Wakefield, Heresy, Crusade and Inquisition in Southern France 1100–1250 (Berkeley-­L os Angeles, 1974), 250–258. 38 D. Hill, Inquisition in the Fourteenth Century: The Manuals of Bernard Gui and Nicholas Eymerich (York, 2019), 31–45. For an English translation of Part 5, see J. Shirley, trans., The Inquisitor’s Guide: A Medieval Manual on Heretics (Welwyn Garden City, 2006). 39 Hill, Inquisition in the Fourteenth Century, 47–56, 209; M. D. Bailey, “Muslims in Medieval Inquisitorial Thought: Nicolau Eymeric and His Contexts,” Church History 90 (2021): 1–20.

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Though geographical variation existed, heresy trials (inquisitio hereticae pravitatis) typically had three phases which highlighted their penitential and punitive purpose of encouraging confession and saving the soul of the heretic, if that was possible, while protecting the community from falling into the same heretical sin.40 Detection of heretics was the first stage. The inquisitor would choose a suitable place to hold the inquisition and then give both a general sermon where he announced a “grace period or indulgence period” (tempus gratiae sive indulgentiae)—a period during which people could come forward and tell truth about themselves and about others in order to escape imprisonment—as well as sermons tailored to specific groups. Once the grace period ended, the second stage began with the inquisitor conducting an investigation (the informatio), collecting evidence, and summoning the suspect for interrogation. During this period, the inquisitor could receive legal advice and assistance from prelates, papal legates, and local lawyers (who could also serve in as supra-­judicial advisors). He would also be assisted by at least one notary. Pope Boniface VIII permitted the names of accusers and witnesses to remain anonymous if the inquisitor felt that his own life was in danger.41 The accused could be required to go through a process of canonical compurgation (purgatio canonica)—swearing to one’s innocence and assisted by the number of compurgatores (oath-­helpers) required by the judge—on account of his mala fama. If he refused to swear an oath, his heresy was presumed and a sentence carried out. If the suspect failed to prove his innocence, a confession, an admission of heresy, was to be elicited, if necessary, by excommunication or incarceration. Once a confession was achieved, the third phase began: the guilty would abjure the heresy. Some resisted the procedure of abjuration by authoring their own statements of belief, an important act of control as the abjuration was often the only legal document the defendant signed. Both the abjured heretic and court had copies of the document. For the bishop, abjurations proved critical as evidence because without proof of a prior abjuration ecclesiastical courts could not recuse recalcitrant heretics to the secular arm.42 Recalcitrant heretics who did not repent or slipped back into their heresy were moved from the inquisitorial court, which was seen as penitential, to the secular court where the death penalty could be imposed. Dominican inquisitors justified handing heretics over to secular arm by pointing out that God, and the authorities appointed for the task, had long killed apostates. This “first death” was nothing compared to the “second death” of damnation that unrepentant heretics surely received.43

40 A papal appointee, the bishop himself, or the bishop’s officialis could be tasked with conducting heresy trials. What follows leans toward the inquisitor as a papal appointee. 41  VI 5.1.1; VI 5.1.2. 42 G. Gertz, “Heresy Inquisition and Authorship, 1400–1560,” in The Culture of Inquisition in Medieval England, eds. Flannery and Walter, 130–145; see Bivolarov, Inquisitoren-­Handbücher, 290–310 for procedure, 265 for legal assistance provide to inquisitor, and 268 for the role of the officialis. 43 C. Caldwell Ames, Righteous Persecution: Inquisition, Dominicans, and Christianity (Philadelphia, 2009), 182–227.

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The inquisitorial register that Jacques Fournier, the bishop of Pamiers (and future Pope Benedict XII), kept during his work in Toulouse reflects the effort put into eliciting a confession. His inquisitorial court sat for 370 days between 1318 and 1325 and dealt with 98 cases, mostly against those accused of being Cathars. His registers are a wealth of information as he began by asking a wide array of questions on various topics and sought to draw out as much detail as possible by allowing the accused to answer at length. His line of questions went beyond heretical beliefs to include questions about all aspects of daily life and behavior, which resulted in confessions of everyday people engaged in aspects of witchcraft and sexual immorality.44 As Fournier’s register highlights, confession lay at the heart of the inquisitor’s search for truth. Inquisitorial manuals, confessionals, and pastoral literature provided guidance on how to conduct confession and how to instruct the laity to confess. The timing of the confession was critical. An inquisitor needed to be mindful of whether the confession was given freely by seeking out the inquisitor before the general sermon; whether it was given during or after the Period of Grace which followed the general sermon; whether it was given after a citation or after torture; or if the confession was given before being burned at the stake. In order to obtain the confession, inquisitors employed coercive forms of interrogation, of which imprisonment if important. Bernard Gui, for example, imprisoned 260 out of 637 suspects and in three-­quarters of Jacques Fournier’s cases suspects averaged approximately 37 weeks in prison before providing a full confession.45 Because confession was central for both the penitential and punitive components of the inquisition, torture to establish facts held a particular place in the process, particularly in places where confession needed some assistance. Torture was introduced into inquisitorial tribunals in 1252 with the bull Ad extirpanda of Innocent IV.46 Azo (d. ca. 1230), who taught Roman law at Bologna, doubted its reliability. The civil lawyer Albertus Gandinus (d. 1310), however, held that torture to elicit a confession was permitted if sufficient proof was present, though a confession from 44 E . Sherman, “Jacques Fournier and Thirteenth-­Century Inquisitorial Methods,” Pope Benedict XII (1334–1342): The Guardian of Orthodoxy, ed. I. Bueno (Amsterdam, 2018), 27–56. For translations of Jacques Fournier’s registers, see J. Duvernoy, trans., Le registre d’Inquisition de Jacques Fournier (évêque de Pamiers: 1318–1325), 3 vols (Paris, 1978); G. W. Davis, The Inquisition at Albi, 1299–1300: Text of Register and Analysis (New York, 1974), J. Duvernoy, trans., Inquisition à Pamiers: Interrogatoires de Jacques Fournier évêque de Pamiers, 1318–1325 (Toulouse, 1966). 45 See J. H. Arnold, Inquisition and Power: Catharism and the Confessing Subject in Medieval Languedoc (Philadelphia, 2001); Given, Inquisition and Medieval Society, 23–90; I. Bueno, Defining Heresy: Inquisition, Theology, and Papal Policy in the Time of Jacques Fournier, trans. I. Bolognese, T. Brophy, and S. Rolfe Prodan (Leiden, 2015), Table 1 (pp. 31–44) provides a list of the trials conducted for Fournier. The name of the accused, place of origin, dates of trial, number of witnesses, number of interrogations, accusation, whether the person was detained in prison, date of sentence, and the final sentence are provided. 46 Hill, Inquisition in the Fourteenth Century, 92–144, 142–164 explores sermons in more depth; A. Fiori, “Et si haereticus non sit… La condanna dei sola suspicione notabiles,” RIDC 27 (2016): 185–226; Bueno, Defining Heresy, 45–87, Part I focuses on Fournier’s court based on organization of the tribunal, inquisitorial procedures, and categories guiding the identification of heretics; M. G. Pegg, The Corruption of Angels: The Great Inquisition of 1245–1246 (Princeton, 2001).

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torture could not be the only piece of proof. Eymerich, who saw torture as a central feature of the inquisitorial interrogation, pointed to its viability when certain pieces were in place: (1) when the suspect was neither condemned by his confession nor by evidence nor by legitimate production of witnesses to the point he would have to abjure heresy, but his admissions were inconsistent or there was sufficient proof for the use of torture; (2) when he was denounced as a heretic and he vacillated and was hesitant during questioning; (3) when his fama denounced him as a heretic and there was one witness of fact; (4) when his fama rejected him as a heretic though there was one witness of fact and one or more extremely strong pieces of evidence, or two or more strong pieces of evidence; (5) when there was a witness against him and one or more extremely strong pieces of evidence; and (6) when there were several pieces of evidence against him and there was sufficient evidence even without fama or a witness.47 Eymerich is emblematic of a formalized system of torture that jurists would continue to navigate. There had to be one eyewitness or a sufficient amount of circumstantial evidence to have probable cause. The court had to be certain that a confession could be obtained if torture was employed. The defendant had to be shown the instruments of torture first in the hopes that he would confess. Officials had to regulate torture so as not to bring about death or cause permanent injury, and only sanctioned techniques could be used (e.g., leg-­screw, sleeplessness, and stretching on the rack). Finally, a medical expert and a notary had to be present to observe and record the procedure.48 While inquisitorial procedure in Europe may have safeguarded one’s rights and canonical collections such as Gregory IX’s Liber extra and Boniface VII’s Liber sextus covered the basic rules governing inquisitions in the titles “De accusationibus, inquisitionibus, et denunctionibus” and “De haeresis”, not everyone was entitled to due process at the same level.49 Turning again to the Fourth Lateran Council, it had guaranteed the accused the right to be tried only on public crimes widely attributed to fama publica; the right to know and understand the charges against him; the right to know the identity of the witnesses against him; and the right to testify only to what he knew or believed about others (i.e. his testimony could not be self-­incriminating by revealing a crime only he knew he committed).50 Heresy trials, however, could involve suspects being coerced to incriminate themselves by revealing under oath secret crimes they committed. Pope Alexander IV (d. 1261) established that an 47 Hill, Inquisition in the Fourteenth Century 114–125, esp. Table 1 and Table 2. 48 K. Pennington, “Torture and Fear: Enemies of Justice,” RIDC 18 (2008): 203–242, here 221– 225; idem, “Torture in the Ius commune,” in Mélanges en l’honneur d’Anne Lefebvre-­Teillard, eds. B. d’Alteroche et al. (Paris, 2009), 813–838; E. Peters, Torture, expanded edn (Philadelphia, 1996), esp. 18–39, 49–57, 64–68. 49 P. Hyams, “Due Process versus the Maintenance of Order in European Law: The Contribution of the Ius commune,” in The Moral World of Law, ed. P. Coss (Cambridge, 2000), 62–90, here 71–72. 50 CODG II/1, pp. 171–172: c.8 (X 5.1.24); Kelly, “The Fourth Lateran Ordo of Inquisition Adapted to the Prosecution of Heresy,” in A Companion to Heresy Inquisitions, ed. Prudlo, 75–107; item, “Inquisitorial Deviations and Cover-­Ups: The Trials of Margaret Porete and Guiard of Cressonessart, 1308–1310,” Speculum 89, no. 4 (2014): 936–973.

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exceptional crime (crimen exceptum)—which included heresy, sorcery, and t­ reason— warranted the suspension of due process and permitted the judge to suspend the accused’s procedural rights.51 In the case of the suspected Beguine Margaret Porete, the Dominican inquisitor William of Paris neither charged Margaret nor explained the evidence that roused suspicion against her.52 In the case of Joan of Arc, the judge Peter Cauchon did not present her with charges but told her only that she was there to answer questions and she was not provided counsel.53 In the case of the accused Wycliffite John Aston, the inquisitor Archbishop Courteney of London produced an anonymous refutation to Aston’s denial of having espoused or taught a heresy, thereby leading to his condemnation. The Repertorium inquisitorum in Valencia (1494) likewise permitted the suppression of witnesses’ names as a prerogative permitted by Pope Innocent IV’s decretal Cum negotium (1254).54 The fight against heresy had resulted in the adoption, but also the later erosion of the rights afforded by the Fourth Lateran council and the ordo iuris in general. In addition to the papacy’s investigation of heresy, the Church’s regulation of familial relations is a second important example of when canon law infiltrated the lives of people. To some extent, marital law developed from consultation and discussion when the facts of a specific case, such as whether a valid marriage had taken place, raised questions about how the law should be applied. A bishop brought his question(s) to the papacy, and the pope entered into dialogue with the bishop to come to a resolution. A case in point is Alexander III’s famous response to questions from Archbishop Romuald II of Salerno (d.  1181/82) about the necessity of consummation to the formation of marriage. The exchange between archbishop and pope reveals a back-­and-­forth on policy, in this case on the question of whether consent or consummation made a marriage. With its circulation, being taught at the universities, and inclusion in collections, Alexander III’s response became law.55 51 VI 5.2.8; Kelly, “The Fourth Lateran Ordo of Inquisition Adapted to the Prosecution of Heresy,” in A Companion to Heresy Inquisitions, ed. Prudlo, 101–106; E. Peters, “Crimen exceptum: The History of an Idea,” in Proceedings Syracuse 1996, 137–194, here 193; H. A. Kelly, “The Right to Remain Silent: Before and After Joan of Arc,” Speculum 68, no. 4 (1993): 992–1026, here 996–997, 1000, 1005; idem, “Inquisition and the Prosecution of Heresy: Misconceptions and Abuses,” Church History 58, no. 4 (1989): 439–451, here 446, 449. 52 Kelly, “Inquisitorial Deviations and Cover-­Ups”; see also, S. Field, The Beguine, the Angel, and the Inquisitor: The Trials of Marguerite Porete and Guiard of Cressonessart (Notre Dame, 2012) for full analysis of her trial. 53 H. A. Kelly, “Questions of Due Process and Conviction in the Trial of Joan of Arc,” in Religion, Power, and Resistance, eds. Bollermann, Izbicki, and Nederman, 81–101; Kelly, “The Right to Remain Silent,” 1012, 1018. 54 H. A. Kelly, “Trial Procedures against Wyclif and Wycliffites in England and at the Council of Constance,” Huntington Library Quarterly 61, no. 1 (1999): 1–28, here 3, 11–13, 17–18; idem, “Inquisition and the Prosecution of Heresy,” 443–445. 55 X 4.4.3; A. J. Duggan, “The Nature of Alexander III’s Contribution to Marriage Law, with Special Reference to Licit Preter Solitum,” in Law and Marriage in Medieval and Early Modern Times: Proceedings of the Eighth Carlsberg Academy Conference on Medieval Legal History 2011, eds. P. Andersen, H. M. Sigh, K. Salonen, and H. Vogt (Copenhagen, 2012), 43–64.

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Marriage treatises, such as the Summa de matrimonio of Raymond of Penyafort (d. 1275), began to circulate as specialized tools to distill the law, its context, and the particulars of this legal landscape.56 Raymond’s treatise fleshed out the factors that determined the validity of a marriage or a marriage contract, concerns which led him to engage with questions of present versus future consent; the role of consummation; and impediments such as impossibility of intercourse and relationships between the two partners within the prohibited degrees. The basic issue that canonical judges often had to decide was: Are these two people married to each other or are they not?57 The question had roots in the twelfth-­century debate of what “made” a marriage: consent or consummation. The Paris theologian Peter Lombard had espoused the view that present consent alone made a marriage valid: that is, consent must be in the present tense—“I take you as my husband/wife”— not in the future tense— “I will take you as my husband/wife.” From the moment one consents in the present tense, there is a marriage even if consummation had not preceded or did not follow.58 The Bolognese canonist Gratian had espoused the view that a betrothal began the marriage, but consummation was necessary to complete a marriage. While a couple entered into a betrothal by giving consent given in future tense to marry, the marriage was ratified with the consent given in present tense and the conjugal debt rendered.59 Raymond’s treatise reflected the state of marital law in the thirteenth century: parties had be of the age of reason in order to contract a marriage, that is, fourteen for boys and twelve for girls. Marriage was initiated by consent, completed through holiness before consummation, and finally completed in signification by consummation. Without consent, however, all the other celebrations—even

56 Raymond of Penyafort, Summa on Marriage, trans. P. J. Payer (Toronto, 2005), 2–4. Raymond’s topics include engagements (title 1), marriage (title 2), impediments to marriage (titles 3–18) legal procedure in marriage cases (titles 19–23), legitimacy of children (title 24), dowries and gifts in view of marriage (title 25). He had taken advantage of his work compiling the Decretales (Liber extra) at the request Pope Gregory IX to rework Tancred of Bologna’s treatise on marriage. For more on Penyafort’s career, see José Miguel Viejo-­X iménez, “Raymond of Penyafort,” in Great Christian Jurists in Spanish History, eds. R. Domingo and J. Martínez–Torrón (Cambridge 2018), 50–68. 57 J. A. Brundage, Law, Sex, and Christian Society in Medieval Europe (Chicago, 1987) and R. H Helmholz, Marriage Litigation in Medieval England (Cambridge, 1975) remain staples in the field of marital law, esp. here 235–242. See also, G. Le Bras, “Le Mariage dans la théologie et le droit de l’Eglise du XIe au XIIIe siècle,” Cahiers de civilization médiévale 11 (1968): 191–201; G. Duby, Medieval Marriage: Two Models from Twelfth-­Century France, trans. E. Foster (Baltimore, 1978); Gaudemet, “Les origins historiques de la faculté de romper le marriage non consummé,” in Sociétés et marriage (Strasbourg, 1980), 210–229. 58 Magistri Petri Lombardi, Sententiae in IV libris distinctae (Rome, 1981), vol. 2 / P. Lombard, The Sentences, Book 4: On the Doctrine of Signs, trans. G. Silano (Toronto, 2010), 4.27.3–4, pp. 422–424 / pp. 161–162; 4.27.10, pp. 430–431 / p. 168; 4.28.1.3, p.432 / p. 170; Lombard, Sententiae, 4.28.3, pp. 434–435 / pp. 171–172. 59 Grat. C.27 q.2 d.p.c.34 followed by c.35–c.38; Grat. C.27 q.2 d.p.c.45. See also J. Alesandro, “Una Caro and the Consummation of Marriage in the Decretum Gratiani,” ZRG Kan. Abt. 98 (2012): 64–148.

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intercourse—negated the marriage.60 A betrothal (sponsalia) entailed a pledge to take someone as a husband or wife in the future and possibly the giving of an engagement ring. It became indissoluble if sexual intercourse followed. If it did not, a vow in future tense could be broken.61 Dissolution of an engagement could occur if: (1) one of the partners entered into a religious life before intercourse, even if the other partner disagreed; (2) one had moved to another region and was no longer available for marriage; (3) one became a leper, paralyzed, or deformed; (4) a case of affinity arose; (5) the partners mutually absolved each other of the engagement vow; (6) one of them fornicated; (7) a woman consented in future and a man consented to another in present tense or in the future tense followed by fornication; and (8) minors reached adulthood and wished to be absolved from engagement bond.62 Canon law had a number of impediments preventing a marriage,63 but a few are worthy of mention on account of the attention they receive in the sources. The impossibility of intercourse raised concern because the central point of marriage was to have children and prevent incontinence. Natural impotence, which could be either temporary or permanent, included frigidity in a man, constriction in a woman, or failure on account of the age of the child. Accidental impotence included castration and bewitchment. If the impotence was natural but ­temporary— such as if a marriage was contracted before the husband reached puberty and mature function, the marriage was postponed until he was able to perform. If the natural impotence in a frigid man was permanent, his condition impeded a marriage from being contracted and broke off one already contracted. Raymond spent considerable time on impediments stemming from consanguinity (blood relations) and affinity (related by marriage),64 adoption,65 and spiritual 60  Raymond of Penyafort, Summa on Marriage, tit. 1, pp.13–14; tit. 2, pp. 19–22, 27. 61 Both Gratian and Lombard agreed that children had to be seven years old in order to be betrothed. This was considered the age of reason at which point one could understand what was happening and could consent. Marriage, however, could not take place before the puberty, that is fourteen for boys and twelve for girls. See Grat. C.30 q.2 d.a.c.1, C.22 q.5 c.15, C.20 q.1 c.1; Lombard, Sententiae, 4.36.4, p. 475 / p. 206. C. Donahue, Jr., Law, Marriage, and Society in the Later Middle Ages: Arguments about Marriage in Five Courts (Cambridge, 2007), 1, 16–18. 62 Raymond of Penyafort, Summa on Marriage, tit. 1, pp. 13–14, 17–18. On the dissolution of a non-­ consummated marriage, see also D. d’Avray, Medieval Marriage: Symbolism and Society (Oxford, 2005), ch. 4. 63 For more on impediments to marriage, see Raymond of Penyafort, Summa on Marriage, tit. 3–tit. 5, pp. 30–38; tit. 12–tit. 13, pp. 56–58; tit. 18, p.70; Donahue, Jr., Law, Marriage, and Society in the Later Middle Ages, 18–31 also provides a helpful discussion of the various impediments. 64 R aymond of Penyafort, Summa on Marriage, tit. 6; pp. 39–42; X 4.13 is devoted to topic with the heading “On the person who conjugally knows a blood relative of his wife or spouse”. C. Rolker, “The Hot and the Cold Language: Incest Discourses in the Twelfth and Thirteenth Centuries,” in Proceedings Toronto 2012, 651–665 has sought to put the word “incest” within its context by analyzing the differences between “hot discourse”—the horror of incest—and “cold discourse”—the value of exogamy. 65 Raymond of Penyafort, Summa on Marriage, tit. 8; pp. 47–48. Adoption was the taking in of an outside person. So long as the adopted person was under the legal authority of the head of house, s/he is a member of the house and the same rules of consanguinity applied.

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affinity.66 He reiterated the prohibition of marriage through the fourth degree (i.e., between first cousins), but he also indicated that those had married in the fifth, sixth, and seventh degrees before the Church reduced the prohibited degrees could remained in marital affection if the marriage had been consummated. Raymond was referring to the c.50 of the Fourth Lateran Council (1215),67 which reduced forbidden degrees of marriage from seven to four.68 This canon, along with c.51 on clandestine marriages and c.52 on the computation of the degrees, stemmed from Innocent III’s own experience in dealing with marital cases in which the legal complexities necessitated a change in policy to provide proper pastoral care and address the practical realities. As marriages and remarriages took place, impediments of consanguinity and affinity created a web of forbidden relationships that had become problematic to navigate if a suitable marriage was to be contracted. During Innocent III’s pontificate, about a third of the marital cases dealt with consanguinity and affinity as conjugal impediments to marriage. Of this third, a little less than half of those cases involved impediments of the fourth degree or beyond. These cases almost always resulted in a papal dispensation so the marriage could take place or continue.69 Innocent III’s reduction of the prohibited degrees at the Fourth Lateran Council from seven to four had origins in the cases that came before the papacy, but these issues were not new to his pontificate. Situations arose when the straightforward application of canonical norms bumped up against local customs or circumstances. Dispensations from the law enabled the papacy to navigate the waters by deviating from accepted policy when needs arose.70 Between 1163 and 1169, Alexander III permitted Archbishop Øystein of Nidaros/Trondheim to allow marriages in fifth, sixth, and seventh degree on an island that was twelve days or more away from Norway until circumstances changed and the dispensation was no longer needed. In 1166, he approved of the prospective marriage of Geoffrey (son of Henry II of England) to Constance of Brittany, both of whom were great-­ grandchildren of Henry I of England. Furthermore, he instructed John, bishop 66 Ibid., tit. 7; pp. 43–46. Spiritual affinity occurred when one received a child from the baptismal font as a godparent. Marriages between yourself and the child as well as between the godchild and natural children were forbidden. 67  COGD II/1, p. 190. 68 BD 7.28, using the Roman inheritance table, was the first to label all relationships within seven degrees as incestuous. 69 C. M. Rousseau, “Harbingers of the Future: Marriage Cases during the Pontificate of Innocent III and Lateran IV,” ZRG Kan. Abt. 103 (2017): 178–203. The Appendix (pp. 200–203) provides a list of marriage cases listed in Potthast, indicating which are within the prohibited degrees. 70 T hough he was focused on an overly rigid observance created in the wake of the reduction of prohibited degrees from four to seven at the Fourth Lateran Council, D. d’Avray did note that dispensations were a way to introduce flexibility as a counter measure; see “Lateran IV and Marriage: What Lateran IV did not do about Marriage?,” in The Fourth Lateran Council, eds. Melville and Helmrath, 137–142, here 138–139. For a survey of papal involvement in marital royal marriages as a mechanism for shaping the political narrative, see D. d’Avray, Papacy, Monarchy, and Marriage, 860–1600 (Cambridge, 2015). For translations of marriage litigation of high-­profile cases, see idem, Dissolving Royal Marriages: A Documentary History, 860–1600 (Cambridge, 2014).

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of  Poitiers (d.  1181), not to separate marriages in the third or fourth degree unless they were public and notorious (publicum et notorium) or challenged by someone unlikely to commit perjury. Alexander III also allowed Archbishop Gerard of Spalato (Split, Croatia) to overlook marriages in the fourth and fifth degree. In 1171/1172 he responded to inquiries of Archbishop Stephen of Uppsala (a newly created archdiocese) by stating that couples already married within the fourth or fifth degree should not be separated, but that such marriages were prohibited in the future. Alexander III had distinguished between statuta hominum (statutes of man) versus statuta Domini (statutes of God). He regarded the rules pertaining to the more remote degrees of consanguinity as human, not divine, law and thus they could be modified.71 Between 1000 and 1250, the Rus princes seemed to largely follow consanguinity regulations internally. However, they were not opposed to violating these regulations if a marriage alliance with a Catholic neighbor served a larger purpose. Russian princes generally seemed to have broken consanguinity regulations in the more distant degrees, and they were able to obtain dispensations on the basis of immediate need or for a clear value. Russian marriage alliances with Polish nobility and royalty and with Danish and Hungarian families, for example, were frequently within the sixth degree of consanguinity.72 Canon law, however, was not simply imposed on people. When court and episcopal visitation records—the earliest of which are from Canterbury in the thirteenth century—are integrated into the conversation of juridical sources,73 we can see the extent to which the laity, both men and women, knew the law and navigated it to seek a desired end.74 Marriage, family, and sexual behavior brought the largest numbers of people into contact with ecclesiastical courts and the Apostolic Penitentiary seems to have spent a significant amount of their time dealing with such cases.75 71 A. J. Duggan, “‘Our letters have not usually made law (legem facere) on such matters’ (Alexander III, 1169): A New Look at the Formation of the Canon Law of Marriage in the Twelfth Century,” in Proceedings Toronto 2012, 627–649. 72 T. Zajac, “Marriage Impediments in Canon Law and Practice: Consanguinity Regulations and the Case of the Orthodox-­Catholic Intermarriage in Kyivan Rus, ca. 1000–1250,” in Proceedings Toronto 2012, 711–729. 73  Sources supplementing canon law treatises, collections, and commentary, particularly in England, could include: pleas rolls, bishops’ registers, visitation records, act books for specific years of a bishop (such as those for Canterbury Cathedral), court rolls of abbeys, consistory court rolls, courts of requests, mayor’s court of London, yearbooks of kings’ reigns, king’s court rolls, parliamentary court rolls, and secular legal collections (e.g. Bracton). See S. Butler, Divorce in Medieval England: From One to Two Persons in Law (New York, 2013), 183–188. 74 B. C. Kane, Popular Memory and Gender in Medieval England: Men, Women, and Testimony in the Church Courts, c.1200–1500 (Woodbridge, 2019), ch. 2 explores the differing perceptions of testimony given by men versus women and the challenges faced by women with respects to character and behavior. 75 L. Schmugge, Marriage on Trial: Late Medieval German Couples at the Papal Court, trans. A. A. Larson (Washington, DC, 2012), 345 has shown that while the bishop’s court held principal jurisdiction, secular courts were not inferior to the ecclesiastical courts in these efforts. In the bishoprics of Basel, Chur, and Constance, adultery, marital abuse, and rape were pursued and punished by secular courts with as much energy as by bishop’s courts. See also P. Daudet,

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German applications for dispensation from a marriage impediment demonstrate a knowledge of foundational legal norms, such as “marriages are to be contracted of one’s own free will” (libera matrimonia esse debeant) or “an affinitas superveniens is not a ground for separation” (non dirimit matrimonium).76 It was this navigation that led the laity into dialogue with the Apostolic Penitentiary, which, by the later Middle Ages, was the forum for dispensations in cases involving impediments arising from consanguinity, affinity, and spiritual affinity. For example, the Apostolic Penitentiary received almost 115,000 applications for dispensations from Italy, France, Germany, Britain, Spain, and Portugal between 1455 and 1492. Marital issues account for approximately 37% of the petitions, the largest category of dispensation requests.77 These requests sought not only to dissolve a marriage, but also to validate an existing marriage.78 Petitioners used a central objective of canon law, which was the maintenance of existing marriages, to their favor. The papal curia not infrequently heard requests to have a previous judgment of annulment lifted under the pretext that the original judgment would cause “considerable scandals” (graviora scandala) if it continued to stand. It tended to value the continuation of a marriage more so than the lower courts which characteristically valued strict adherence to canon law.79 In the second half of the fourteenth century, German petitions reveal that less than a quarter of the cases involved spiritual affinity. Marital affinity comprised about a third of the petitions. Petitions concerning consanguinity comprised approximately half of the total. Almost two-­thirds of petitions claimed that the couple had not known that an impediment had existed at the time of the marriage. In other words, people knew the law of impediments and what the prohibited degrees were.80 Of the petitions from Scandinavia between 1450 and 1530, slightly more than a half were couples seeking a dispensation to marry. Slightly less than half were already married and

L’établissement de la compétence de l’Église en matière de divorce et de consanguinité (France, Xe–XIIe siècles) (Paris, 1941); and idem, Les origines carolingiennes de la compétence exclusive de l’Eglise (France et Germanie) (Paris, 1933). 76 X 4.1.29; X 4.13.2; Schmugge, Marriage on Trial, 342. See also W. P. Müller, Marriage Litigation in the Western Church (Cambridge, 2021) found that in areas such as Franco-­Germanic and English territories of the north, a large number of cases took on a penitential format as opposed to following the procedures of the ordo iudiciarius. In southern territories, such as in Italy and Iberia, public notaries played a critical role in the arbitration of marriage disputes. 77 Schmugge, Marriage on Trial, 12–13. 78 The courts of the officiales (known as officialate courts) in Germany, France, and England in the second half of the fifteenth century, for example, dealt heavily with suits seeking to confirm the existence of marriages. Registers of English and French officialate courts in the late Middle Ages show that 80% of the cases sought to affirm a marriage while 20% sought separation. The marriage cases handled before the ecclesiastical courts in Basel, Chur, and Constance reveal a lower percentage, with 60%–65% seeking to affirm a marriage percent while that percentage is even lower in Regensburg at 40%. See Schmugge, Marriage on Trial, 347. 79 Schmugge, Marriage on Trial, 348. 80 Ibid., 64–79 esp. Graph 4 and Graph 5. Of the cases involving spiritual affinity, 15% of the petitions cited affinity arising from baptism and 3% of the cases cited affinity arising from confirmation.

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needed a dispensation to remain so. These petitions almost always requested the legitimization of children. Of those already married, almost three-­quarters were ignorant that an impediment existed when they married and less than a quarter knew beforehand and were asking for absolution and a dispensation after the fact. Almost half of the petitions on behalf of those already married concerned consanguinity and about a third concerned affinity. Of the petitions involving either consanguinity or affinity, almost three-­quarters were for dispensations for marriages in the fourth degree and slightly more than a third for cases in which a marital impediment existed on both sides of the family.81 Some cases, clandestine marriages and petitions requesting a separation from a marriage, were prickly issues for ecclesiastical courts. A clandestine marriage was one in which a marriage: could not be proven because of a lack of witnesses or other evidence; could be proven but lacked any ceremony in facie ecclesie (in the face of the church); or was celebrated in facie but lacked some element of the prescribed ceremony, for example, pronouncement of ecclesiastical banns (announcement of a contracted marriage agreement). A clandestine marriage, therefore, was not necessarily one in which the couple absconded to Las Vegas to be married by an Elvis Presley impersonator. Clandestine marriages included those in which witnesses and a cleric were present, but there were no ecclesiastical banns beforehand and no ecclesiastical celebration (sollemnisatio) afterwards.82 In the diocese of Canterbury between ca. 1200 and 1305, most matrimonial cases, which included cases of clandestine marriage, brought before the court were to validate a marriage. These cases were largely brought by women who knew the ins and outs of the law: the role of intercourse and the importance of present consent.83 It is not hard to imagine why clandestine marriages were a thorn in the Church’s paw. One party, for example, might have a change of heart and run off with a wealthier or more attractive partner, whereupon the deserted spouse brought legal action to demand that the wayward partner return. The first party might then deny that they had ever exchanged marital consent, while the other insisted that they had. Such cases were referred to as “pre-­contract cases” and proof in such situations presented judges with formidable problems. The Church was then left in the position of determining which marriage was valid: the one asserted to by the deserted spouse who brought legal action to demand that the errant partner return or the marriage to the upgraded spouse? Furthermore, without ecclesiastical banns published beforehand, the Church could not ensure the absence of factors impeding the marriage (e.g. consanguinity and affinity). Compounding matters, secular law 81  K. Salonen, “Forbidden Marital Strategies: Papal Marriage Dispensations for Scandinavian Couples in the Later Middle Ages,” in Medieval Christianity in the North: New Studies, eds. K. Salonen, K. Villads Jensen, and T. Jørgensen (Turnhout, 2013), 181–208. 82 Donahue, Jr., Law, Marriage, and Society in the Later Middle Ages, 4; Schmugge, Marriage on Trial, 92; B. Schnautz Johnson, “The Making of Marriage in Thirteenth Century England: Verb Tense,” Texas Journal of Women and the Law 15, no. 2 (Spring 2006): 271–303. 83 Johnson, “The Making of Marriage in Thirteenth Century England,” 285–296 with different cases studies.

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needed assurances that property rights could be determined with some semblance of certainty. The Fourth Lateran Council would try to curtail clandestine marriages and prohibit priests from witnessing such marriages. All intended marriages should be pronounced publicly in church by the priest so that any existing impediments could be brought to light. Such marriages that did occur, however, were not invalidated, and, in effect, the council ended up not solving the issue of clandestine marriages because they remained valid if contracted.84 Petitions to the Apostolic Penitentiary for a pardon of clandestine marriages suggest that: (a) such marriages occurred in cases when a marriage impediment was present, particularly those bound by a spiritual kinship; and (b) many couples in a clandestine marriage had children. Only in a small number of cases was the clandestine nature of the marriage used as an excuse for divorce.85 When petitions for divorce did arise, they came in essentially two forms. The first was a divortium quoad vinculum (separation from the bond), which essentially granted a divorce with permission to remarry. This form of divorce was granted only when there was an impediment to the marriage; essentially it amounted to an annulment. The second was a divortium a mensa et thoro (separation from table and bed) which was a divorce but without permission to remarry so long as both partners were alive.86 Raymond of Penyafort treated separation from the perspective of a woman approaching the court to have a marriage enforced.87 In divorce petitions claiming fornication (or sodomy),88 a wife could not be accused of adultery by a husband if: he was convicted of fornicating; he offered her in prostitution; she believed her husband to be dead and married another; she thought she was fornicating with her husband; she was oppressed by force; or he reconciled with her after adultery and she did it again.89 Court records reveal that when it is possible to see who brought forward the claim, the plaintiffs were predominantly women. For example, approximately three-­ quarters of the plaintiffs in the dioceses of Brussels and Cambrai were women. Yet, as English records demonstrate, while divorce occurred throughout the social ranks, a courtroom divorce was best suited to women of means: the length and expense of the proceedings, the need for financial support during that time, and protection from vengeful husbands necessitated access to money.90 In dioceses such as Paris, Cambrai, and Brussels, separation cases 84 IV Lateran, c.51 (COGD II/1, p. 191); D. d’Avray, “Lateran IV and Marriage,” in The Fourth Lateran Council, eds. Melville and Helmrath, 137–142, here 140–142. 85 Schmugge, Marriage on Trial, 338–340. 86  Donahue, Jr., Law, Marriage, and Society in the Later Middle Ages, 33. 87  Raymond of Penyafort, Summa on Marriage, tit. 19, pp. 71–74. 88 See, in particular, C. J. Reid, Jr. “‘May a Man Marry a Man?’: Medieval Canon Lawyers and Theologians Analyze Same-­Sex Unions,” BMCL 31 (2014): 205–236. 89 R aymond of Penyafort, Summa on Marriage, tit. 22, pp. 80–83. Raymond acknowledged a final possibility: when an unbelieving husband dismissed his unbelieving wife and she married another, and then both her and first husband converted. In this case the first husband bound to take her back, though Raymond confessed this situation rarely happened. 90 M inus the diocese of Canterbury, court records are not readily available until the fourteenth century and become more available in the fifteenth century. Importantly, see Donahue, Jr., Law, Marriage, and Society in the Later Middle Ages which is a fascinating and detailed study of

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were second to cases dealing with marriages cases in which future consent, some of which were followed by intercourse, was given. Cases brought before the court in marital disputes should follow the same process as outlined in the ordo iuris: a claim could be brought before the court, either in writing or orally followed by in writing, and witnesses should be called and interviewed.91 Judgments regarding the dowry likewise fell under the jurisdiction of church courts. In cases of divorce, the dowry from the father (known as “profective dowry”) must be restored to the father and the daughter; a woman’s adventive dowry (what she gave to herself) must be returned to her. If the dowry consisted of immovable possessions, it must be returned immediately on the dissolution of the marriage. If it consisted of moveable possessions, such as money, clothing, or animals, it could be returned within the year.92 Canon law came to recognize different forms of violence against women. Marital violence—coerced nuptials and cruelty within the marriage—as grounds for divorce entered into mainstream thinking with the canonist Panormitanus (d. 1445) at the turn of the fifteenth century, but it was not held as common opinion until the sixteenth century.93 Raymond of Penyafort was clear that violence or fear was an impediment to marriage. Where there was violence or fear, consent could not be given. Violent force—such as capturing or dragging, leading away unwillingly, or bounding—and fear of sexual violation and enslavement, blows, and of death excluded consent. What that said, whatever be the fear or violence in contracting a marriage, if the woman remained for a year and a half with her husband or consented to carnal intercourse, she could not allege fear afterwards.94 Raymond’s view was grounded in his stress on the need for consent to a marriage. Thirteenth-­century legal texts, such as Bracton, Eike of Repgow’s Sachsenspiegel (“Saxon Mirror”, 1225), the Statutes of Westminster (1275 and 1285), and Phillipe Beaumanoir’s Coutumes de Beauvasis (1283), all noted the lack of consent as an impediment.95 While the Church recognized violence against women as lack of consent, raptus (rape) was a delicate matter. Thirteenth-­century court cases from Bologna demonstrate that trials for rape hinged not on whether the alleged victim had been enticing or lying, but rather on her status. A study of cases of claiming raptus suggest that women were not targeted simply on account of their wealth, though such cases did occur. Rather many victims could be poor, unmarried women, which posed a threat to an assailant. Because the accusatorial procedure process was fairly inexpensive in its initial stages, women could file a claim against the assailant, thus opening marriage cases in the diocesan archiepiscopal court of York (1300–1500) and the episcopal courts of Ely (1374–1381), Paris (1384–1387), Cambrai (1438–1453), and Brussels (1448–1459); as well as Butler, Divorce in Medieval England. 91  Raymond of Penyafort, Summa on Marriage, tit. 20–21, pp.75–79. 92  Ibid., tit. 25, pp. 87–89. 93 Donahue, Jr., Law, Marriage, and Society in the Later Middle Ages, 522–523; Butler, Divorce in Medieval England, 149. 94  Raymond of Penyafort, Summa on Marriage, tit. 11, pp. 54–55. 95  H. Kümper, “Did Medieval Canon Marriage Law Invent Our Modern Notion of Rape?: Revisiting the Idea of Consent Before and After 1200,” in Law and Marriage in Medieval and Early Modern Times, eds. Andersen, Sigh, Salonen, and Vogt, 127–138.

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the door to brokering an out-­of-­court settlement such as a fine or marriage. Women considered inhonesta (disreputable) could not file a claim of raptus because it was believed that such women could not be raped. Bolognese cases further reveal a decline in rape accusations with the switch to inquisitorial procedure where the court brought the case.96 The overlapping meanings of raptus (rape) added further complexity to such cases. In addition to a non-­consensual, forced act of ravishment (rape and forced marriage), raptus also meant consensual abduction (elopement) and consensual adultery. For example, the statutes of Westminster (1275 and 1285) used raptus to denote abduction as well as sexual assault. When rapuit and raptu were paired with abduxit or abductione, the terms almost always referred to elopement and not to sexual assault against her.97 Raptus, in the sense of consenting to be with someone, was used as a tool to curb illicit marriages such as clandestine marriages. As we have seen throughout this chapter, canon law exercised considerable power over the lives of ordinary people, irrespective of whether people were a part of the Christian church. The shape this law took stemmed from cases, questions, and fears presented to both bishops and the papacy. Inquisitorial manuals and marriage treatises are hallmarks of how canon law could impose itself on the lives of people. Yet as marriage litigation demonstrates, the laity were not passive recipients of the law. They knew the law and used it to their advantage. Couples sought dispensations from the papacy in cases of consanguinity and affinity in order to have their marriage, and their children, recognized as legitimate. Women, in particular, made use of the court system that, in this case, gave them the ability to bring cases on their behalf. They used the courts to have their marriages enforced, or, in the cases of divorce, to have their property returned. They sought redress in cases of force. Canonical texts, manuals and treatises, and court records reveal a world of written law and the legal practice shaped by academic lawyers, but also one in which the laity engaged and navigated.

96 C. Lansing, “Accusations of Rape in Thirteenth-­Century Bologna,” in Violence and Justice in Bologna, 1250–1700, ed. S. Rubin Blanshei (Lanham, 2018), 167–185. Lansing studied sixty accusation cases from 1286, 1287, and 1289 and twenty-­three contemporary sentences from inquisition trials. 97 On this subject see, C. Dunn, Stolen Women in Medieval England: Rape, Abduction and Adultery, 1100–1500, (Cambridge, 2013), here 14, 19, 25–28, 37.

9 THE IMPACT OF CANON LAW ON WESTERN SOCIETIES1

Canon law was by no means a matter that concerned solely the clergy or the devout. Until the mid-fourteenth century, when men trained in civil law gradually began to displace canonists, rulers and other powerful persons, both lay and clerical, as well as religious communities, municipalities, and other institutions, found it prudent either to maintain a resident canon lawyer in their households or, more commonly, to grant pensions to one or more of them as a long-term retainer. Trained canonists routinely served as ambassadors, spokesmen, and negotiators for both great and small corporations, cities, and individual potentates. They were able to do this by engaging with, shaping, and embedding ecclesiastical norms into the intellectual culture of the period; they would lay the foundation for what it meant to engage in a profession. Canon law was woven into the fabric of medieval life and its influence permeated the entire medieval social order, reaching into virtually every nook and cranny of human conduct. It influenced commercial activity, namely just price and excess profit, charging of interest on loans, and when people could work. It supported the ownership of private property and helped to move testamentary practices from a rigid system to one that allowed the dying to determine who inherits their goods. Canon law laid the foundation for social safety-nets, such as poor relief. Finally, canonists created mechanisms by which to address legal problems inherent in both ecclesiastical and secular corporate organization and structure. As we have seen, canon law was an integral part of the intellectual ferment of the Middle Ages. The thirteenth century, as a case in point, was an age of spectacular innovation in nearly every department of Western life. It witnessed the birth and flowering of the mendicant religious orders; the rise of universities; advancements in scholastic theology and philosophy; the burgeoning of sophisticated poetry in 1  This chapter integrates sections from the first edition chapters on canon law in private and public life to emphasize the importance of this field of research. DOI: 10.4324/9781003156734-10

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the vernacular languages; and the invention or improvement of numerous scientific, technical, and mechanical devices. It also produced massive amounts of new law and new legal doctrines nearly everywhere in the Latin West. Thirteenthcentury England was an age rich in legislation, from Magna Carta (1215) to the Statutes of Mortmain (1279), Westminster II (1285), and De tallagio non concedendo (1297). It was also the age of Bracton and of court reports in the yearbooks. Thirteenth-century France likewise witnessed a great wave of legal innovation, including a long string of royal Ordonnances, the establishment of the Parlement de Paris, and the appearance of Beaumanoir’s Coutumes de Beauvaisis. Similarly in thirteenth-century Germany we have the Sachsenspiegel, in Spain the Siete partidas and the Fuero real, and in Italy the Liber Augustalis, as well as an astonishing wealth of municipal statutes. The flourishing law schools and the compilation of legal collections were central to engaging with and shaping the Middle Ages. Canonists devised new solutions to problems, old and new, originated fresh approaches to the analysis of institutions, and contributed novel ideas to what has since become the common stock of Western tradition. Styles of investigation and genres of canonistic writing transformed as law became more intricate and technical. Ambitious attempts at synthesis gave way to small-scale treatises upon increasingly minute technical problems. Canonistic summae became increasingly rare in the fourteenth and fifteenth centuries, although those that did appear showed a marked increase in size and complexity since they had to take account of an ever-growing volume of canonical scholarship. A characteristic genre of canonical writing in this period was the monograph on some specialized topic, such as arbitration techniques, the taxation of litigation costs, intestate succession, provision to benefices, precedence in liturgical processions, or the privileges of academic rank. The consilium was another favorite genre as they analyzed in great detail the law relevant to a some highly specific situation. Some late medieval legal experts compiled collections of replies that they or others had written in response to inquiries in real cases, while others simply used the consilium as a literary vehicle for discussion of complex legal problems. Late medieval canonists also produced numerous aids to legal scholarship, such as dictionaries and digests or epitomes, that were increasingly necessary to locate relevant material within the vast body of legal literature—“the ocean of law”, as some described it. Canonists, in short, formed one major creative component of the intellectual as well as the practical life of the European Middle Ages. The teaching of canon law contributed to the idea of what constitutes a “profession”. From the sixth through the eleventh centuries, there were those who practiced law. They served as judges in trials; they acted as proctors and advocates; they provided legal advice. However, such individuals did not receive a law degree; they came to know the law, for example, through individualized study or something akin to an apprenticeship, and they came to be respected for their knowledge and conduct in such cases. Practicing law was often one of many duties; they were also bishops or teachers in the cathedral school. Law was not their principal occupation. Ivo of Chartres serves as an excellent example. He received his education in the

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liberal arts but also learned law. He engaged with the law and compiled canonical collections, but his principal function was serving as bishop of Chartres. Beginning in the twelfth century, however, people went to school specifically to study law, a program which had formal requirements for certified graduates. By the 1220s, a “master of decrees” (magister decretorum) was likely to mean a person who had pursued a prescribed course of studies in canon law at a university and at the end of it had passed an examination given by his teachers, who certified that he was competent both to teach and to practice as a canonist. By the 1250s, degree structure and nomenclature had grown more complex. The title “doctor of decrees” (doctor decretorum) had by then come into common use to designate a fully-trained canonist, one who had not only completed a course of studies that stretched over five years or more, but had also passed both a preliminary private examination and a public one and had also lectured in canon law at the university that conferred his title. Those who had completed the first year or two of canonical studies were coming by this time to be described as “bachelors of decrees”, while those who had progressed far enough to take and pass the private examination often bore the title “licentiate in decrees”. Those who completed their study and associated requirements participated in an admissions ceremony which involved the swearing of an oath of office and the entry of the new practitioner’s name on a register of practitioners. The admissions oath, in turn, spelled out in general terms some basic professional obligations that the newly admitted practitioner undertook to observe. Fledgling practitioners swore that they would represent and advise their clients with the utmost diligence and zeal. They further swore that they would not knowingly accept unjust or ill-founded causes, that they would neither fabricate evidence themselves nor introduce evidence fabricated by others, that they would not conceal relevant evidence from their opponents or the court, and that if during the course of proceedings they became aware that their client’s case was frivolous or maliciously brought in order to harass their opponent, they would immediately abandon the client, withdraw from the case, and inform the judge of their reasons for doing so. Finally, many jurisdictions in the Middle Ages—especially in Italy, local guilds, or associations of university-trained lawyers—imposed their own examinations and other requirements upon those who sought to qualify as advocates or proctors in the courts.2 The same holds true today: a lawyer must pass the bar exam in the state in which s/he wishes to practice in order to participate in the profession. The external focus of canon law helped to shape societal frameworks that today we take for granted. The jurisdictional boundaries of canon law were often fuzzy, and many jurisdictional frontiers remained uncertainly defined throughout the Middle Ages. Medieval church courts claimed, and often exercised, authority over numerous aspects of life that people in modern secularized societies tend to 2  See, in particular, R. Helmholz, The Profession of Ecclesiastical Lawyers: An Historical Introduction, (Cambridge, 2019); J. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago, 2008).

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regard as the business of civil government. Commercial activity is one such area. Canonical courts intervened in matters involving just price—the price that the buyer was willing to pay and the seller was willing to accept—and excess profit through the manipulation of market prices. The Church punished those engaged in forestalling (the artificial manipulation of the market by withholding supplies of a vital commodity, such as salt, in order to drive up prices), engrossing (refusing to sell a massed supply of foodstuffs until buyers pay a steep price for it), and regrating (buying commodities in bulk at a market town and then reselling them in the countryside at many times the purchase price). Canonists, however, sometimes applied just price theory inconsistently when services rather than commodities were at issue. For example, when journeymen attempted to drive up wages by withholding labor from the guild masters who employed them, canonists were prepared to treat this as illegal interference with market economics. When guild masters resorted to collective action to drive wages lower, however, the issue of market manipulation seemed to become much fuzzier and canonical sanctions were seldom invoked.3 Church authorities had claimed the right to regulate the charging of interest for loans from its earliest days. The first Council of Nicaea in 325 forbade clergymen from doing so.4 Later authorities gradually broadened the prohibition by extending it to Christian laymen and to all classes of loans. Any return in addition to the principal of a loan constituted usury and usury was a canonical crime for which church courts could impose substantial penalties. Usurers who took or demanded interest upon a loan must return their unlawful gains to the borrower and might suffer further penalties, both spiritual and temporal, as a consequence of their unlawful actions. They were also subject to excommunication and canonical infamia, which rendered them ineligible to hold positions of public trust, to bring accusations in court, to testify at a trial, or to make a valid will. Actual punishment for these crimes was uneven, and, by the end of the Middle Ages, church authorities realized that they could not enforce an economic policy rooted in moral policy. They thus modified the canonical prohibition of all interest charges and to permit lenders to collect modest amounts of interest legally, while still condemning excessive interest as the social evil of usury.5 Canon law further imposed limits upon the periods when people could legally engage in work, especially “servile” work. The law mandated abstinence from work on Sundays and holy days throughout the year. Prohibition of labor on these occasions was grounded, at least in theory, on the premise that the holiday would enable everyone to attend Mass and participate in other devotional exercises and would 3 J. W. Baldwin, “Medieval Theories of the Just Price,” Transactions of the American Philosophical Society, New Ser. 49, no. 4 (1959): 1–92; idem, “The Medieval Merchant before the Bar of Canon Law,” Papers of the Michigan Academy of Science, Arts, and Letters 44 (1959): 287–299. 4  COGD I: I Nicaea, c.17. 5  J. Gilchrist, The Church and Economic Activity in the Middle Ages (London, 1969), 53–76, 104–115; F. Schneider, “Das kirchliche Zinsverbot und die kuriale Praxis im 13. Jahrhundert,” in Festgabe, enthaltend vornehmlich vorreformationsgeschichtliche Forschungen, Heinrich Finke… gewidmet (Münster, 1904), 127–167.

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thus provide spiritual as well as corporal refreshment for the entire community.6 By the twelfth century, saints’ days and other festivals in the Roman liturgical calendar added about 40 days annually of enforced leisure to the 52 Sundays when work was forbidden.7 Further, workers were obliged to refrain from labor on the feast days of local saints celebrated in their own region, and these averaged about 30 additional days each year when work was illegal. In total, then, canonical regulations subtracted something in excess of 120 days, the equivalent of four months every year, from the time available for productive labor. Despite loss of productivity and income, frequent holidays no doubt contributed in some measure to social wellbeing, since they afforded workers periodic and frequent respite from the daily grind, often featuring dances, feasts, dramas, and pageants. These bursts of merriment punctuated the unexciting chores of daily life. Canonists, like other jurists of the ius commune tradition, were vocal champions of individualism and of an economy based on private ownership which must, they thought, entitle a rightful owner to enjoy as much property as he could accumulate and to dispose of it in any way that he pleased, provided that its disposition threatened no harm to others. Thus, the industrious, well-connected and lucky entrepreneur, for example, had every right to amass as enormous a fortune as he could, and likewise to give every penny of it away if and when that suited his fancy. In property matters, medieval jurists were staunchly on the side of individual proprietors and, by the same token, were deeply suspicious of joint-proprietorship arrangements, since they feared that tenants-in-common would be more apt than a single owner to neglect property, to allow it to fall into disuse or decay, and to stifle its effective exploitation because of conflicts and jealousies among the co-owners. Both canonists and civilians, in addition, zealously defended the rights of property owners against efforts by public authorities to confiscate their wealth through taxation or by any other means. Confiscation by a ruler, they agreed, was tyranny and subjects had every right to resist it. The Church’s support of private ownership of property parallels the critical role canon law played in the development during the high Middle Ages of those mechanisms for transmission of property between generations that we usually style last wills and testaments. Prior to the eleventh century, Germanic inheritance practices held sway whereby the property of deceased family members was divided according to fixed rules. Changes in social structure and ecclesiastical influence helped to nudge Europeans toward a more flexible and voluntary process, a process furthered by a revived awareness of Roman law from the beginning of the twelfth century, which further stimulated reintroduction of ancient testamentary practices (and, more especially, their adaptation to fit contemporary conditions). In England, more than in most regions of medieval Europe, canonical courts became the regular forum for the probate of wills and testaments and the disposition of 6  C. R. Cheney, “Rules for the Observance of Feast-Days in Medieval England,” Bulletin of the Institute for Historical Research 34 (1961): 117–147. 7  Grat. De cons. D.3 c.1.

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claims arising under them.8 The dominance of canon law over probate jurisdiction was already well established by the end of the twelfth century and Glanville, King Henry II’s chief justiciar, refers to it as if it were a routine matter that secular courts did not contest.9 During the late medieval period, however, the Common Law courts succeeded in wresting debt claims against a decedent’s estate away from the canonical courts and into their own jurisdiction. Civil law and secular courts on the Continent, however, were less ready than their English counterparts to yield control over testamentary matters to the Church. Instead, testamentary questions were usually treated as matters of mixed jurisdiction.10 Church courts secured control in cases where the formalities of making a testament were at issue and also over legacies and bequests for pious causes, as well as the testaments of clerics; civil courts dealt with most other disputes that arose from testamentary disposition of property.11 Poor relief was another area where canon law controlled a vital element of medieval social structure. The Church had, from early on, accepted special responsibility for alleviating poverty and providing support for the disadvantaged. Gratian and his early commentators put the matter clearly: the bishop bore primary responsibility for assisting the poor in his diocese and defending them against oppressors, while the rest of the clergy shared in that duty.12 Funding for poor relief in medieval society came in the first instance from tithes, the 10% tax on most forms of income that the Church levied, at least in principle, on everyone.13 A fourth part of the revenue of each parish was supposed to be earmarked for assistance to the poor, according to some canonical texts, although other authorities prescribed that as much as a third should be allocated to this function.14 In theory, this should have yielded quite substantial funding for poor relief, but the administration of 8  M. M. Sheehan, The Will in Medieval England: From the Conversion of the Anglo-Saxons to the End of the Thirteenth Century (Toronto, 1963). 9  G. D. G. Hall, ed. and trans., Tractatus de legibus et consuetudinibus regni Anglie qui Glanvilla vocatur/ The Treatise on Laws and Customs (rpt. Oxford, 1993), 7.8; F. Pollock and F. W. Maitland, The History of the English Law before the Time of Edward I, 2nd edn (Cambridge 1968) 2:331–333. 10 R. H. Helmholz, “Debt Claims and Probate Jurisdiction in Historical Perspective,” American Journal of Legal History 23 (1979): 68–82; repr. in his Canon Law and the Law of England (London, 1987), 307–321. 11 For example, F. R. P. Akehurst, trans., The Coutumes de Beauvaisis of Philippe de Beaumanoir (Philadelphia, 1992), Ch. 11 §317, p. 120; Ch. 11 §333, p. 124; Ch. 12 §427–428, p. 153; J. Petit, ed., Registre des causes civiles de l’officialité épiscopale de Paris, 1384–1387 (Paris, 1919), xxviii and passim; C. Calisse, A History of Italian Law, trans. L. B. Register (London, 1928), 638–641. 12 B. Tierney, Medieval Poor Law: A Sketch of Canonical Theory and Its Application in England (BerkeleyLos Angeles, 1956), 68–71; J. A. Brundage, “Legal Aid for the Poor and the Professionalization of Law in the Middle Ages,” Journal of Legal History 9 (1988): 169–179; J. Taliadoros, “Law, Theology, and Morality: Conceptions of the Rights to Relief of the Poor in Twelfth and Thirteenth Centuries,” Journal of Religious History 37 (2013): 474–493. On voluntary poverty as a religious ideal see L. K. Little, Religious Poverty and the Profit Economy in Medieval Europe (Ithaca, 1978). 13 C. E. Boyd, Tithes and Parishes in Medieval Italy: The Historical Roots of a Modern Problem (Ithaca, 1952); G. Constable, Monastic Tithes from Their Origins to the Twelfth Century (Cambridge, 1964); P. Górecki, Parishes, Tithes and Society in Earlier Medieval Poland, ca. 1100–1250 (Philadelphia, 1993). 14  Grat. C.12 q.2 c.23, c.26–c.31; Tierney, Medieval Poor Law, 72–75.

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tithes in practice was fraught with problems and conflicts. In many regions, lay­ proprietors—often the lords of manors—converted tithe revenues to their own uses.15 Elsewhere the rectors of parishes treated tithes as part of their personal income and shared them only grudgingly with the other nominal beneficiaries. The Church’s influence over prices and usury, work, private property and the right to dispose of that property, and poor relief demonstrates its tremendous influence over society. This influence vis-à-vis its legal arm reflects its influence as a corporation. Canonists created mechanisms by which to address legal problems inherent in corporate organization and structure. They devised answers to a variety of questions: What was, or ought to be, the proper relationship between the chief officer and the other members of such a corporate body? Did the head, by virtue of his office, enjoy an all-encompassing right to exercise absolute power over the members? If not, what were the limits of the head’s powers? Could the head single-handedly alienate property given to the whole group? What if the head of the group proved to be greedy, irresponsible, incompetent, immoral, or otherwise unfit for office; could he be removed? If so, how, under what circumstances, and by whom could this be achieved? Could the members impose legitimate constraints upon their leader’s policies and actions and, if so, how could they do this? Who was to judge if the head exceeded his authority? Who could enforce such a judgment, and how? These questions were not easily answered. For example, Pope Innocent IV (d. 1254) and Hostiensis (d. 1271) could not agree on corporate structure and power relationships within a corporate body because each began with a fundamentally different conception of how corporate entities ought to conduct their business. Innocent IV grounded his treatment of ecclesiastical corporations on the premise that power within these institutions ought to be concentrated in the hands of the principal officer. The head of the group, to be sure, might delegate partial responsibility and limited authority over some matters to subordinate officers, who were answerable to him for the proper discharge of their duties. Innocent’s view of corporations, accordingly, may be described as authoritarian. The head of the corporation is ultimately the sole legitimate source of power and the members are dependent upon him. The exercise of power by the head is not subject to review or limitation by the other members of the group. Innocent envisioned the corporate head as an authoritarian ruler, responsible only to higher authority and ultimately to God.16 In rejecting this view, Hostiensis taught that head and members shared corporate authority and responsibility. The head of the body, Hostiensis conceded, was entitled to make the final determination on matters that solely affected the rights and property that belonged to his office. Even on those issues, however, he must consult the other members of the group before 15 For a full treatment of the proprietary church, see S. Wood, The Proprietary Church in the Medieval West (Oxford, 2006). 16 Innocent IV, Apparatus in quinque libros Decretalium (Frankfurt am Main, 1570), ad X 1.2.8 s.v. sedis §2 (fol. 4ra–rb).

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taking final action. The members retained authority over matters that affected them alone. On these, the members could make final disposition, although the head, of course, retained the right to participate in discussions of these affairs and even to vote on them, since he remained, after all, a member of the corporate body. On matters that involved the joint interests of head and members, according to Hostiensis, the two shared authority and responsibility, so that neither could act without the consent of the other.17 Canonists distinguished between three major classes of corporate business. One class of business pertained exclusively, or mainly, to the prelate or other head of the corporate body. A second pertained primarily to the members of the body, while a third class consisted of matters in which head and members had joint interest. In dealing with matters that fell into the first of these classes, the corporate head must ask the advice of the members, but did not require their consent. The members of the corporation could take action on matters in the second class, even without the consent of the head, although the head was entitled to be heard and to vote on these issues because he was a member of the corporation. Matters that fell into the third class, where joint interests were involved, required that both head and members agree before lawful action could be taken.18 This analysis of corporate decision-making required those who taught canon law in the schools to define the meaning of terms such as “advise” and “consent”. Thirteenth-century academic lawyers who taught canon law in universities such as Bologna, Paris, and Oxford took up this task. Although some early writers used the terms “advise” and “consent” as if they were synonyms, Hostiensis and others by mid-century distinguished them sharply from one another. When the head of a corporate group, such as a chapter, a monastery, or perhaps the College of Cardinals, was required only to take counsel with the members, but was not bound to abide by the advice he received from them, then “advise” was the appropriate verb to describe the situation. But if the “consent” of the members was required, the head must not only consult with the members, but also win their approval. The result was to impose limits upon the authority and discretion of the head of a corporation and to allow the members a voice in the determination both of corporate policy and actions. As early as the time of Innocent III, some writers had interpreted the theological teaching that the Church formed the mystical body of Christ as grounds for classifying the entire Latin Church as a corporate entity, with the pope as its head and the College of Cardinals as members. Later canonists, such as John of Paris (d. 1306) and Cardinal Zabarella (d. 1417) in the fourteenth and fifteenth centuries, pushed this analysis much further. Just as the powers of the heads of other ecclesiastical corporations were limited by the powers of the members, they argued, so likewise papal power was not absolute. Instead, the cardinals and especially the 17 Hostiensis, Lectura sive apparatus domini Hostiensis super quinque libris decretalium, 2 vols (Strasbourg 1512), ad X 1.2.8 s.v. §Fuit and s.v. §Quo circa (vol. 1 fol. 7vb–8ra). 18  Bernard of Parma, Gloss. ord., ad X 1.3.21 s.v. debeant.

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general councils of the Church enjoyed the right to limit the exercise of papal discretion and to establish boundaries within which popes must operate.19 The pope, like other Christians, they asserted, was bound to observe the laws of the Church. Should he defy the limits that the law established, he acted illegitimately and, in extreme circumstances, might even be deposed. These issues concerning the limits of papal authority and the relationship between popes, cardinals, and councils lay at the heart of the conciliarist controversies in the later Middle Ages. Just as canonists conceived of the Church as the mystical body of Christ, civil lawyers likewise adopted the notion that the commonwealth (respublica) formed another mystical body, the body politic, in which the ruler was the head and his subjects were the members of a corporate entity. Canonistic corporation theories thus influenced debates concerning the limits of the power of kings and other rulers within civil society. Out of the elaboration of canonical corporation theory emerged some novel political ideas that have subsequently become basic to modern Western notions about constitutional government.20 Canonists, followed by civil lawyers, adapted a Roman legal rule originally fashioned to govern the conduct of business when a minor or other person legally unable to manage property had two or more guardians. The rule seems almost absurdly simple: “What touches all should be approved by all” (quod omnes tangit) or, in other words, all parties with a legal interest in any matter must consent before a legitimate transaction concerning it can be completed.21 A key issue, however, was that the quod omnes tangit rule seemed to require unanimous consent for every proposed transaction, with the result that each individual member of the group possessed a potential veto power that could overrule the wishes of all the other members. This could obviously create serious problems, and lawyers soon devised at least partial solutions to them. One obvious approach was to require that only the numerical majority of the body need consent to a proposal, rather than that everyone must consent unanimously to every item of business. Again, Roman law supplied a mechanism that medieval canonists adapted for purposes very different from those that the classical jurists had originally envisioned. The mechanism this time was the mandate, a specialized kind of contract used in Roman law to create a proctor (procurator)—the Latin term that gave rise to the English word proxy. Romans in Late Antiquity mandated proctors to transact all sorts of business that would have been impossible or inconvenient for the principal

19 B. Tierney, Foundations of the Conciliar Theory: The Contribution of the Medieval Canonists from Gratian to the Great Schism, enlarged new edn (Leiden, 1998), 143–214. 20 B. Tierney, “Medieval Canon Law and Western Constitutionalism,” Catholic Historical Review 52 (1966): 1–17; repr. in his Church Law and Constitutional Thought in the Middle Ages (London, 1979); K. Pennington, “Law, Legislative Authority and Theories of Government, 1150–1300,” in Cambridge History of Medieval Political Thought, c.350–c.1450, ed. J. H. Burns (Cambridge, 1988), 436–453. 21 Dig. 41.2.22; see, in particular, K. Pennington, The Prince and the Law, 1200–1600: Sovereignty and Rights in Western Legal Tradition (Berkeley-Los Angeles, 1993); G. Post, “A Romanocanonical Maxim, ‘Quod omens tangit’ in Bracton,” Traditio 4 (1946): 197–251.

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to execute in person. Depending upon the terms of his mandate, the proctor might be empowered to buy or sell goods, pay or receive money, conclude contracts, or act upon the principal’s behalf in litigation—any or all of these with the same force or effect as if the principal had done them himself. Following the canonists, some thirteenth-century civil lawyers thinking about the sources of royal power concluded that subjects, speaking through representatives, might lawfully impose limits upon the exercise of kingly prerogatives. Out of the questions and the answers that corporation theory suggested emerged the basic elements of what we may call “parliamentary constitutionalism”.22 These included the notion of the rule of law, which holds that rulers like their subjects must obey the law, combined with theories of representation and consent that entitled relatively small groups of a ruler’s subjects to speak for the rest and to impose some limits upon the ruler’s freedom from control. The conceptual framework that made possible the development of legislative assemblies, such as the English Parliament, the Spanish Cortes, and the French Estates-General, among others, emerged gradually out of speculative arguments among academic lawyers in the thirteenth and fourteenth centuries about these and related matters of legal principle. Canon law was simultaneously a product of, and an integrating component within, medieval religion and politics. The boundaries between canon law and civil law remained highly permeable throughout the Middle Ages and well into modern times. The ius commune on the Continent, which drew upon both of the learned laws, provided the underlying platform upon which many secular legal systems rested into the twentieth century. The two learned laws depended so heavily upon one another that it is often difficult or misleading to classify one or another legal scholar or commentary as civilian or canonist. Although university curricula and degrees distinguished sharply between civilians and canonists, the symbiosis between them was close, if not always cordial. Canon law had cemented its imprint on society. Although Protestant Christians in principle rejected the canon law of the medieval church, they often retained a substantial part of its regulations and policies.23 This was particularly evident in the Anglican Church, where medieval canon law remained a notable force long after the break with Rome. Justices and serjeants of the English king’s court would have found it necessary to have some knowledge of Roman-canonical law and its procedure. Questions of bastardy, inheritance and a widow’s rights, litigants pressing a matter in ecclesiastical court that should in fact be heard in secular court, and the rights of churches demonstrate that lay courts of English Common law and

22 Tierney, “Medieval Canon Law and Western Constitutionalism”; on questions of governance see also R. W. Kaeuper, P. Dingman, and P. Sposato, eds., Law, Governance, and Justice: New Views on Medieval Constitutionalism (Leiden, 2013). 23 See, for example, R. H. Helmholz, The Oxford History of the Laws of England: The History of the Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford, 2004); idem, Roman Canon Law in Reformation England (Cambridge, 1990).

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the ecclesiastical courts of the ius commune intersected with one another.24 The ius commune continued to influence English lawyers writing about the ius gentium (law of nations) after the establishment of Protestantism in England under Queen Elizabeth; this was in spite of Henry VIII’s dismantling of the canon law faculties at Oxford and Cambridge and, with the help of Parliament, the abolishment of the papacy’s appellate jurisdiction even over matters in which the English Church had continued to hold jurisdiction. The writings of influential jurists writing between 1550 and 1750, such as Sir William Blackstone (d. 1780), Francis Bacon (d. 1626), George Dawson (d. 1700), John Dodderidge (d. 1628), William Fulbecke (d. 1603), Thomas Ridley (d. 1629), and Thomas Wood (d. 1722), reflect a familiarity with the theoretical topics of the natural law and the law of nations. Canonical thinking on the ius gentium found its way into contemporary thought and the works of Sir Arthur Duck (d. 1648), Richard Cosin (d. 1597), Colybute Downing (d. 1644), Alberico Gentili (d. 1608), Henry Swinburne (d. 1624), Robert Wiseman (d. 1654), and Richard Zouche (d. 1661).25 Romano-canonical jurisprudence was thus woven into the fabric of English Common law from at least the first half of the twelfth century to the second half of the eighteenth century. Various sixteenth-century projects for the creation of a reformed English canon law thus foundered, with the result that a substantial part of the law of the early modern Anglican Church remained virtually identical with medieval canon law. Historians now recognize the importance of this remarkable continuity and are exploring its causes and consequences.26 Evangelical Protestants on the Continent typically cast off a good deal more of the heritage of medieval canon law than did their Anglican brethren in England. Even so, marked elements of continuity remained between the older law and the new discipline of the established Protestant churches, perhaps most notably within the German Lutheran tradition.27 Nonconformist Protestant groups, 24 See, for example, P. Brand, “The Common Lawyers of the Reign of Edward I and the Canon Law,” in Studies in Canon Law and Common Law in Honor of R. H. Helmholz, ed. T. L. Harris (Berkeley, 2015), 27–40. 25 R. Helmholz, “The ius gentium and the Canon Law in England, 1550–1750,” in Der Einfluss der Kanonistik auf die europäische Rechtskultur, Vol. 6: Völkerrecht, eds. O. Condorelli, F. Roumy, and M. Schmoeckel (Cologne, 2020), 190–203. 26 B. Tierney, Liberty and Law: The Idea of Permissive Natural Law, 1100–1800 (Washington, DC, 2014); Helmholz, Roman Canon Law in Reformation England. Projects exploring understanding of jurists from a particular geographic region have added to our understanding of juristic thought, see W. Decock and J. Oosterhuis, eds., Great Christian Jurists in the Low Countries (Cambridge, 2021); M. Schmoeckel and J. Witte Jr., eds., Great Christian Jurists in German History (Tübingen, 2020); O. Condorelli and R. Domingo (eds.), Law and the Christian Tradition in Italy: The Legacy of the Great Jurists (London-New York, 2020); O. Descamps and R. Domingo, eds., Great Christian Jurists in French History (Cambridge, 2019); R. Domingo and J. Martínez-Torrón (eds.), Great Christians Jurists in Spanish History (Cambridge, 2018); M. Hill and R. H. Helmholz, eds., Great Christian Jurists in English History (Cambridge, 2017). 27 For an overview see P. Landau, “Kirchenverfassungen,” in Theologische Realenzyklopädie, Vol. 19: Kirchenrechtsquellen – Kreuz, eds. H. R. Balz and G. Müller (Berlin, 1990), 110–165, here 147–155.

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however, vehemently rejected not only the rules embodied in the canon law of the medieval church, but the very idea of canon law itself. Baptists and Quakers, for example, believed that the Scriptures and the Holy Spirit were the only authentic Christian guides to salvation. Medieval canon law, in their view, was an alltoo-human invention that had led countless men and women into religious error. Other Protestant groups, such as Congregationalists, maintained that the autonomous local churches described in the Acts of the Apostles and the Pauline letters were the proper models for Christians to imitate. Individual congregations, they believed, must be responsible for making and enforcing whatever rules their members deemed necessary and appropriate for their community. Despite fierce disagreements in post-Reformation Europe and the Americas over the role of religious law in Christian life, numerous elements of the medieval canonistic tradition remain embedded in the civil laws of modern national states.28 Laws concerning marriage, family relationships, inheritance, sexual conduct, and other types of personal behavior, for example, often retain substantial elements of medieval church law at their core. Western societies to this day vigorously resist efforts to displace those core elements. The history of divorce laws in the nineteenth and twentieth centuries demonstrates this with particular clarity.29 The tax treatment of churches and other religious bodies in most Western nations, to cite another obvious example, is predicated on the medieval canonical policy that exempted church property from the usual fiscal obligations that governments impose on other corporate groups. Medieval canon law, to conclude, not only remains a major source of religious law (at least in those modern churches that identify themselves with the traditions of Catholic Christianity), but also influenced many vital elements of modern secular legal systems. The speculations and insights of medieval canonists remain enshrined both within the common law tradition of the English-speaking world and within the civil law heritage of Continental Europeans. This is most obviously true in family law and testamentary law, but canonical tradition is also evident in many other branches of the law—contracts, torts, property law, and corporate law among them. Canonical ideas and techniques even more obviously underlie much of Continental procedure and substantive law as well. Western political thought and, indeed, the idea of constitutional government itself ultimately draw much of their substance and many of their basic premises from debates that raged in the canon law faculties in the twelfth and thirteenth centuries. Medieval canon law, in short, constituted a fundamental formative force in the creation of some of the elemental ideas and institutions that continue to this day to characterize Western societies.

28 See, for example, J. Muldoon, ed., Bridging the Medieval–Modern Divide: Medieval Themes in the World of the Reformation (London-New York, 2013). 29 R. Phillips, Putting Asunder: A History of Divorce in Western Society (Cambridge, 1988); L. Stone, Road to Divorce: England, 1530–1987 (Oxford, 1990).

CONCLUSION The Relevance of Medieval Canon Law

The history of canon law begins in the early Christian Church as a body of norms— rules regulating behavior—to guide its members and to help individual communities navigate questions confronting its faithful. These norms came from a variety of sources and would serve as the foundation for later canonical collections. The New Testament—especially the Gospels and the letters of the Apostle Paul—were of particular importance, setting for the earliest guidance on what it meant to be a Christian. Collections, such as the Didache and the Didascalia apostolorum, comprised of basic rules that governed conduct of Christian communities and liturgical services. The writings of bishops, most famously St. Augustine of Hippo, shaped the theological framework of Christian belief; established the practice of the faith; and delineated the relationship of the faith vis-à-vis heretics, Jews, and pagans. Synods and councils would serve as the venue for the adoption of policies and regulations to be followed by Christians everywhere. There, the regulations set forth by bishops for their particular locale would be normed for all the faithful. The writings of the bishop of Rome, as the successor of St. Peter, came to hold particular sway as the ecclesiastical hierarchy took shape with Christianity’s spread and growing influence. As the Church acquired property, converts, and prestige, its legal system grew and flourished under the patronage of Christian emperors from the reign of Constantine onward. Roman secular law, such as the Theodosian Code and Breviary of Alaric, interwove with Christian norms by legislating on subjects pertaining to the Church. Finally, regulations found in monastic rules, such as those of Pachomius and Basil, infiltrated ecclesiastical life and thought. The norms found in these sources would evolve over time into a body of law as new problems presented themselves and new opportunities appeared. The body of norms of the early Christian Church point to a legal decentralization within the Church: norms emanated from various sources of authority DOI: 10.4324/9781003156734-11

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and not from one singular authoritative source. Scripture, writings of the Church Fathers, decrees of councils and synods, papal decretals, penitential texts, monastic rules, and even secular legislation impacting the Church all held sway. With no one exclusive authority as solely responsible for the production and dissemination of law, legal collections did not have a standard characteristic. The compilation of collections was a private affair; that is, for individuals who had a need for a usable text. Forgeries drew both upon authentic and spurious sources to advocate for the agenda of the compiler. The Pseudo-Isidorian Decretals sought to bolster the authority of the episcopacy at the expense, to some extent, of the papacy. Church councils, called for and attended by secular rulers, and royal capitularies addressed matters affecting both church and state. Germanic kings, like their Roman predecessors, saw the Church’s hierarchy as a useful, indeed a nearly indispensable, adjunct to their own regimes. They found it politic to shower gifts and favors, property and privileges upon the Church. In return, the rulers expected support, both moral and political, from the Church’s leaders. The result was an intersection of ecclesiastical and secular law. Penitential handbooks treated crimes, such as homicide, that one might think would fall solely under the purview of the secular realm in addition to addressing sins and everyday transgressions. Canonical collections proliferated from all corners of Christendom. Created to suit the needs of the user, collections gathered canons from the church councils, such as the Canones Apostolorum, or papal decretals deemed important, such as the Collectio Quesnelliana, and organized them in a chronological order for easy reference. Systematic canonical collections, such as the Collectio Dioynsiana and the Collectio hispana systematica, drew material from Scripture, writings of the Church Fathers, conciliar decrees, papal decretals, Roman law, and secular law and arranged those sources around particular themes. Episcopal handbooks likewise drew together the wide swath of sources pertaining to ecclesiastical law, behavioral norms, and penance and were organized thematically. The collections of Abbot Regino of Prüm and of Burchard of Worms helped the bishop administer his diocese and the priest to care for his flock. The Investiture Controversy saw law as a tool to spur reform of the Church and supporting a particular interpretation of the “right order”. Treatises such as the Libelli de lite, and collections such as those of Anselm of Lucca, Ivo of Chartres, or the Diversorum partum sententiae (“Collection in Seventy-Four Titles”) augmented secular authority, papal primacy, episcopal rights, or monastic rights; law was the puppet of its master. Collections drew on similar texts, but each used those text differently. Reformers looked upon canon law as an essential tool in their efforts to rescue the Church from what they regarded as the evils of lay control. Shrewd rulers had endeavored to ensure the loyalty of bishops and other ecclesiastical dignitaries by influencing, or, when possible, even dictating the selection of those who filled key offices within the Church. Clerical objections to such interference in churchly business by laymen, even royal or noble laymen, surfaced vigorously, however, and took the form of a powerful church reform movement whose members had secured control of the papacy by the mid-eleventh century. The results were renewed efforts to strengthen the Church’s legal system.

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Canon law did not exist in a vacuum but rather engaged with the climate in which it operated. It operated alongside social and political developments. The church of the Carolingian empire was one in which the secular and the sacred were deeply engaged. Charlemagne issued capitularies that directly impacted the Church, and bishops were key players in the maintenance of his empire. The church of the Reform era sought to disentangle the two entities. Legal thought was central to this endeavor. Dictatus papae on behalf of Pope Gregory VII, letters of Emperor Henry IV, and the Libelli de lite demonstrate that canon law was found in more than collections. It was found in all sorts of writing where legal texts and precedents could be used to support one’s position. Yet canon law also operated in a climate of what could be considered an “intellectual pluralism”: a climate in which the disciplinary boundaries were porous and possessing a competency in different areas of knowledge was valued. From the earliest days of the Church, knowledge of its norms was necessary for clerics of all ranks to carry out their priestly functions. As bishops and abbots undertook judicial functions, they needed a working knowledge of the law even if they were not legal specialists. In a sense, one could think that prelates might need the medieval equivalent of a Master’s in Church Administration, comprising of canon law, business administration, theology, and sociology. Even with the rise of the universities and greater degree specialization, the walls between disciplines remained somewhat porous. Theologians possessed a working knowledge of law even if it was not their primary area of inquiry as evident by the incorporation of legal concepts woven into their works. Could it be that just as today’s graduate students might take a class outside of but related to their area of specialization, medieval students may have taken a law class or sat in on the lectures of law faculty while pursuing their theology degree? After all, in a letter to the archdeacon of Oxford, Walter Map, extolling the virtues of theology above all other sciences, the canonist, archdeacon of Brecon, and royal clerk Gerard of Wales (d. 1223) likened the academic disciplines to an edifice: liberal arts were the foundation and theology was the roof. Extending Gerard’s analogy to a logical conclusion, law served as the walls that built upon the foundation and supported the roof.1 Like theologians, secular administrators needed some level of intellectual versatility. As seen with the coutumier of Philippe de Beaumanoir, ecclesiastical and secular jurisdictions overlapped. We also see both in his coutumier and in secular legal collections from across Europe that the principles and norms of the Romano-canonical tradition infiltrated and influenced legal thought beyond the ecclesiastical courts. Intellectual pluralism enabled compilers to negotiate the material available and tailor it to the social and political needs of their environment. When judges and pleaders in customary law courts or (especially in Italy) municipal courts could discover no method in their local law for resolving a dispute, they often turned to Romano-canonical practices as a substitute for custom or statute. 1  G. Cambrensis, Symbolum Electorum, Epist. 24 in Opera, Vol. 1, ed. J. S. Brewer (London: Longman, Green, Longman, and Roberts, 1861), 271–287. See also J. Baldwin, Masters, Princes and Merchants: The Social Views of Peter the Chanter and His Circle, 2 vols (Princeton, 1970), 1:83.

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The “Renaissance of the Twelfth Century” had proved instrumental for legal thought.2 Scholastic thought had led to new methods of analysis and interpretation. The revival of Justinian’s Corpus iuris civilis ushered in a renewed interest in the teaching and use of Roman law. The treatises and commentaries of the Romanists—lawyers, such as the “Four Doctors”, specializing in civil Roman law—intersected with the treatises and commentaries of canonists. The emergence of similar ideas among civil lawyers and canonists reflected, at least in part, the long-standing intellectual interdependence of civil and canon law. That interdependence reached far back into the early history of the Christian church and the notion that “[t]he church lives by Roman law” (ecclesia vivit lege Romana) was a familiar aphorism. The revival of Roman law that flourished during the twelfth century reinforced the canonists’ inclination to mine Roman law for ideas and practices that they could apply to canonical problems. In consequence, as we have seen, some formal training in Roman law was essential for every canonist, while for practical reasons men trained in civil law usually needed to learn some canon law. Paradoxically during the thirteenth century, when law teachers within the universities commonly separated themselves into two distinct faculties of civil and canon law, the interdependence between them became increasingly marked. Within this climate, the schools emerged as powerful engines for reshaping the ecclesiastical establishment to meet the demands of a society that decade by decade became more complex and demanding. Gratian as the “Father [of the Science] of Canon Law” sought to create a teaching tool that reconciled legal discrepancies and taught students how to deconstruct a problem, analyze its components, and arrive at a conclusion that fit within the parameters of the law. Though still considered a private collection, Gratian’s Decretum had provided the reformed church with a comprehensive textbook of canon law. Its complexity and influence can be seen in the number of manuscripts still extant and in the subsequent literary works compiled by the Decretists to clarify, elaborate, and even contradict Gratian’s understanding of the law. Decretal collections and commentary of the Decretalists sought to keep legal thought up to date. Canonists integrated Roman legal principles into their commentaries on the Decretum and the decretal collections to further clarify the law and push legal thinking forward. The implicit theory that justified such borrowings from the learned laws maintained that Roman law comprised, in some sense, a universal law of venerable antiquity, and that the principles of “canonical equity” were likewise applicable everywhere in Christian society. The two learned laws, in this view of things, comprised “everyone’s general law” (lex omnium generalis) that judges could legitimately fall back upon to supply lacunae in the particular laws of any region in Christendom. The belief that Romano-canonical law constituted a universally applicable ius commune proved particularly helpful in dealing with conflict-of-law problems that arose when the courts had to adjudicate disputes between parties 2  For more on the intellectual developments, see R. Benson and G. Constable, eds., Renaissance and Renewal in the Twelfth Century (Toronto, 1991).

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from different cities or regions. It enabled the judge in such a situation to resolve the problem by calling upon an impartial rule, rather than choosing between the laws that the parties relied upon. The ius commune thus emerged in the late Middle Ages and the Early Modern era as a “peacemaker’s law”, which allowed courts to settle issues definitively and finally, while at the same time maintaining a degree of flexibility to choose the solution that seemed most appropriate and least likely to promote further discord.3 By the end of the twelfth century, alumni of the canon law schools had begun to occupy most of the chief seats of power within the Church. As Bruce Brasington has aptly noted, this was a legally minded world, a world in which canonists engaged and shaped. Armed with a detailed command of the intricacies of substantive law and procedure, trained canon lawyers became indispensable experts upon whom authorities at every level of the hierarchy necessarily relied. Some canonists became popes themselves—Gregory IX, Innocent IV, Boniface VIII, and John XXII are formidable examples—while other canonists secured control not only of the dayto-day operations of the papal judicial system, but also of its diplomatic, financial, and administrative offices. Canonists with increasing frequency became cardinals, archbishops, bishops, abbots, or archdeacons in every corner of the Western church. By the mid-thirteenth century, canonists dominated a church that was becoming increasingly legalistic with every passing generation. Medieval canon law was a good deal more than simply a set of religious regulations with which pious persons might choose to comply. The Church’s claim of jurisdiction over the regulation of clerical and lay behavior had afforded it a wide latitude to correct the errant. The ecclesiastical court system, much like today’s court system, began at the local diocesan—archdeacon and dean—level and afforded opportunities to appeal to the next higher court—be it episcopal or archiepiscopal—or directly to the pope himself. The Roman Rota stood as the highest court in Western Christendom. In the course of the fourteenth century, its decisions became the source of new law. The Apostolic Penitentiary paralleled the Roman Rota. While not a judicial court, it was the court of one’s conscience, providing absolution for one’s soul and dispensations from ecclesiastical regulations. Because of the influence that ecclesiastical courts held over society, it should come as no surprise that canon law had a tremendous impact on the shaping of procedural norms. Canonists thought deeply about the balance between assuring that crimes were punished and safeguarding the principles of due process espoused by the ordo iuris. Judicial processes—such as accusatio, denuncatio, per notorium, and per inquisitio— and the elements earmarking the progression of a trial sought to find the proverbial porridge that was just right. The work of canonical and civil jurists in these areas continue to be felt today as we grapple with their concerns about how to balance the scales of equity and justice. 3  See generally M. Bellomo, The Common Legal Past of Europe, 1000–1800, trans. L. G. Cochrane (Washington, DC, 1995); J. Q. Whitman, The Legacy of Roman Law in the German Romantic Era: Historical Vision and Legal Change (Princeton, 1990), 7–9 provides a helpful overview of the role of the ius commune in late medieval and early modern Germany.

162  Conclusion

Yet equity could be said to have its limits and canonical courts had their less benign side. The Church imposed regulations to prevent Jews from holding a position of authority or influence over Christians. Such regulations eventually would be applied to Muslims as well. As the Church’s judicial apparatus became more intricate it also became more imposing. The papal inquisition against heresy sought to ferret out religious dissent. Canonists and inquisitors struggled… sometimes unsuccessfully… to balance the objectives against the established procedural norms of due process. Judges and other court officials were often accused of venality and while those charges may have exaggerated the frequency and scope of corruption, there can be little doubt that many complaints had merit. Canonical judges were empowered to inquire into the most intimate and personal corners of people’s lives and in consequence acquired a reputation for intrusiveness and censoriousness. This odious reputation was enhanced by the development of inquisitorial procedures for detecting and punishing “occult” crimes. Inquisitorial procedure stripped the accused of most of the safeguards that earlier church authorities had devised to protect defendants against convictions on inadequate evidence. The rationale for this change of policy asserted that the older procedural safeguards resulted in ineffective administration of the judicial system. The conventional rules, according to partisans of the new criminal procedure, too often allowed the guilty to escape unpunished and thereby undermined the general welfare of Christian society. In effect, they argued that the end—punishing criminals—justified the means, that is, disregarding defendants’ rights. This is an argument that is still heard, for these issues are always with us. Inquisitorial procedure allowed church courts to pursue rumors and complaints, not only concerning the actions and behavior of the faithful, but about their beliefs, thoughts, and opinions as well. Indeed, church courts often penalized persons convicted of harboring unorthodox ideas far more harshly than those whose actions deviated from the canonical norms. F. W. Maitland once declared that “[t]he medieval church was a state,” and he added it would be difficult, indeed impossible, to formulate a definition of a state that would not equally well fit the church in the high Middle Ages.4 Canonical jurisdiction and the various civil jurisdictions frequently overlapped one another. The medieval church had shared power with civil governments: in every region canon law operated in tandem with other juridical systems. Canon law offered 4 F. W. Maitland, Roman Canon Law in the Church of England (London, 1898), 100, pursues the argument still further: The medieval church was a state. Convenience may forbid us to call it a state very often, but we ought to do so from time to time, for we could frame no acceptable definition of a state which would not comprehend the church. What has it not that a state should have? It has laws, lawgivers, law courts, lawyers. It uses physical force to compel men to obey its laws. It keeps prisons. In the thirteenth century, though with squeamish phrases, it pronounces sentence of death. It is no voluntary society. If people are not born into it, they are baptized into it when they cannot help themselves. If they attempt to leave it they are guilty of the crimen laesae maiestatis, and are likely to be burnt. It is supported by involuntary contributions, by tithe and tax. That men believe it to have a supernatural origin does not alter the case. Kings have reigned by divine right, and republics have been founded in the name of God-given liberty.

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litigants in many civil controversies an alternative forum in which to air their disputes and seek relief from wrongs. For persons accused of crimes, the canonical courts offered a system of justice that demanded more rigorous proof than secular jurisdictions frequently did before pronouncing guilt; and even (perhaps especially) for the convicted, canonical tribunals provided a potential haven from the physical punishment used in royal and customary law courts. These jurisdictional distinctions were not lost on the people. They knew, at least at some level, the canonical legal norms and manipulated them to suit their purpose. Those forced to abjure heresy shaped their own professions of faith. Couples turned to the Apostolic Penitentiary for dispensations to have their marriages validated despite some impediment. Women used the church courts to enforce a marriage contract or to reclaim their dowry. Yet canon law was so much more than the relationship between church and state or the relationship between secular and sacred jurisdictions. Canon law intimately touched lives of people, whether ecclesiastical or lay, weaving itself into the very fabric of medieval life and thought. Canonists helped to formulate our understanding of what constitutes a corporate body and the head’s duties to its members. Their interpretation of the law and its application played a pivotal role in the argument that the government must abide by the same rules as the people. Canonists shaped how we think about just price, usury, and work and holidays. They influenced our understanding of private property and inheritance. Canon law was at the forefront of policies that paved the way for social safety-nets. Whether medieval or modern, understanding a society means understandings its laws, the foundations upon which they are built, and how they influence and are influenced by the world in which they engage.

Appendix I A GUIDE TO CITATIONS OF LEGAL TEXTS

Legal citations can be tricky. How do you understand a source citation in the scholarly literature? How do you make sense of a citation in a manuscript? It all can seem a bit daunting. However, once you understand the method, the world of Romanocanonical law will be your oyster.

Canonical Collections Early medieval chronological collections, such as Collectio Dioynsiana, are structured chronologically. Church councils, for example, will be copied in order of the council’s date and under each council the canons will be copied. The scholarly literature will cite the council and canon number as it appears in the manuscript. Keep in mind that manuscripts can differ. Scribes, for example, might transpose the order of the canons or the number of canons for a particular council might differ between manuscripts. Some pre-twelfth century systematic collections—collections structured according into themes—can be organized by book/title/part and canon. Essentially, the citation proceeds in order from the largest unit to the smallest. Examples of this organization are Burchard of Worms Decretum; Anselm of Lucca’s Collectio canonum; Ivo of Chartres’ Decretum; the Panormia; and the Collectio decem partium. Citations in the scholarship may read, for example, BD 10.1 (Burchard’s Decretum, Bk. 10 c.1) or Pan. 8.7 (Panormia, Bk. 8 c.7). The manuscript tradition might refer to the book/title/part with an Arabic numeral and to the relevant canon by its incipit (the first one or two words). For example, Pan. 8.7 might be referenced as VIII c. Qui subdiaconum. Other pre-twelfth century systematic collections can be organized book-title/ part-canon. Again, the citation proceeds in order from the largest unit to the

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smallest. Examples of this organization are the Tripartita and the Collectio III librorum. Citations in the scholarship may read, for example, Tripartita 3.8.7 (Bk. 3 pt.8 c.7). The manuscript tradition might refer to the book with an Arabic numeral, to the relevant title/part by name and the canon by its incipit (the first one or two words). For example, Tripartita 3.8.7 might be referenced as III De primate Romanae ecclesiae c. Ego Hludouicus imperator. Because Gratian’s Decretum was a teaching text organized around cases and questions, it is cited differently in the scholarly literature than the collections that preceded it. However, citations still proceed in order from the largest unit to the smallest. Citations follow as such: Causa-question-dictum that introduces the question and precedes the first canon C.23 q.4 d.a.c.1 Causa-question-canon C.23 q.4 c.34 Causa-question-dictum after canon C.23 q.4 d.p.c.16 Distinction-canon D.32 c.4 Distinction-dictum after canon D.93 d.p.c.21 Distinction-dictum that introduces the question and precedes the first canon D.28 d.a.c.1. De penitentia De pen D.1 c.3 De consecratione De cons. D.2 d.a.c.1 If working with the manuscript tradition of Gratian’s Decretum, you will encounter the incipit of the canon or citation to a particular place in the canon. For example: Distinctions di. xxxij c. multorum = D.32 c.2 xxiv § Cum itaque = D.24 d.p.c.4 D. lxxvi § necessario ergo = D.76 d.p.c.8 Causae C. iii q. i Nulli dubium = C.3. q.1 c.5 xxiii q. viii § hinc datur = C.23 q.8 d.p.c.25 De penitentia iii de pen. Totam = De pen. D.3 c.24

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De consecratione ii de cons. In Christo ii. = De cons. D.2 c.87 ii. = the second time In Christo appeared as the incipit. The first instance is in c.53 Each of the five compilations of Quinque compilationes antiquae is divided into five books (libri). Each book, in turn, was subdivided into titles (tituli), treating individual aspects of the general topic of the book. Each title, in turn, was composed of chapters (capitula), which are arranged in chronological order within the title. Citations in the scholarly literature proceed in order from the largest unit to the smallest: Compilation-book-title-chapter. It is also common to add in parentheses a reference to the place, if any, where the chapter may be found in the Liber extra; thus: 1 Comp. 2.20.34 (X–) [for a chapter not found in the Liber extra] 2 Comp. 1.3.1 (X 1.6.11) 4 Comp. 5.4.2 (X 5.6.16) When working with the manuscripts, the Compilationes are normally referred to extra. or extrav. to indicate a citation from one of the decretal collections. Occasionally, but not often, there will be some indication of which Compilatione is being referenced and sometimes the name of the compiler will appear, as for example, extrav. Tancredi in a reference to Compilatio quinta. An abbreviated form of the titulus, followed by the opening words of the capitulum cited, will also be given. Occasionally, too, the number of the book (almost invariably in Roman numerals) will be added. Thus: extra. de appellationibus, super eo = I Comp. 2.28.13 extra. ii. de electione, suffraganeis = II Comp. 1.3.1 iv. extra v. de iudeis, cum sit nimis = IV Comp. 5.4.2 Citations to the Decretales Gregorii IX / Liber extra (X) proceed in order from the largest unit to the smallest, that is, book-title-chapter. The scholarship cites the Liber extra as: X 1.18.7 X 3.5.8 X 4.6.1 X 5.18.2 A few common abbreviations often appear in citations from the Liber extra include: c. un. = capitulum unicum c. fin. = capitulum finalem de serv. non ordi. = de servis non ordinandis = X 1.18

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de iure. = de iureiurando = X 2.24 de m. et o. = de maioritate et obedientia = X 1.33 de r. j. = de regulis iuris = X 5.41 de spo. et ma. = de sponsalibus et matrimoniis = X 4.1 de v. s. = de verborum significatione = X 5.40 de vi. et ho. = de vita et honestate clericorum = X 3.1 de vo. et vo. = de voto et voti redemptione = X 3.34 qui fi. = qui filii sint legitimi = X 4.17 de furt. = de furtis = X 5.18 These abbreviations can also be found in the Liber sextus, Constitutiones Clementinae Extravagantes Johannis XXII, and the Extravagantes communes. You can figure out the abbreviations by working through the titles in the respective book of the collection using Friedberg’s Corpus iuris canonici, Vol. 2. The manuscript tradition will draw on the above abbreviations to denote the book and title and incipit of the capitulum: Extra. de serv. non ordi., miramur = X 1.18.8 extra. de vo. et vo., litteraturam = X 3.34.3 in X de furt. c. fures = X 5.18.2 Citations to the Liber sextus (VI) proceed in order from the largest unit to the smallest, that is, book-title-chapter. The scholarship cites the Liber sextus as: VI 3.4.41 VI 5.11.7 The manuscript tradition will denote the book and title and incipit of the capitulum: VI de prebend. c. mandatum = VI 3.4.41 li[ber]. vi. de sent. excomm., venerabilibus = VI 5.11.7 Citations to the Constitutiones Clementinae (Clem.) proceed in order from the largest unit to the smallest, that is, book-title-chapter. The scholarship cites the Clementines as: Clem. 3.14.2 Clem. 1.3.5 The manuscript tradition will denote the book and title and incipit of the capitulum: Clem. de celebratione missarum, dignum = Clem. 3.14.2 Clem de elect. et elect. pot., in plerisque = Clem. 1.2.5

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Citations to the Extravagantes Johannis XXII (Extrav. Iohan. or Extrav. Jo.) proceed in order from the largest unit to the smallest, that is, title and chapter. The scholarship cites the Extravagantes Johannis XXII as: Extrav. Jo. 4.1 Extrav. Jo. 14.2 The manuscript tradition gives the capitulum and incipit, and then title: c. 1 de concess. preb. tit. IV in Extrav. Jo. XXII = Extrav. Jo. XXII 4.1 c. 2 de verb. sig. tit. XIV in Extra. Jo. XXII = Extrav. Jo. XXII 14.2 Citations to the Extravagantes communes (Extrav. comm.) proceed in order from the largest unit to the smallest, that is, book-title-chapter. The scholarship cites the Extravagantes communes as: Extrav. comm. 5.2.1 Extrav. comm. 5.2.1 The manuscript tradition gives the capitulum and incipit, then reference to the book and title: c. 1 de iudaeis (V, 2) in Extrav. Comm = Extrav. comm 5.2.1 c. un. (5,5) in Extrav. comm = Extrav. comm 5.5.1

Glosses to Canon Law The standard gloss apparatus is known as the Glossa ordinaria = Gloss. ord. for the Decretum, the Liber extra, Liber sextus, and the Constitutiones Clementinae. The gloss of Zenzelinus is usually printed alongside the text of the Extrav. Iohan. while the Extrav. comm. never received an authoritative gloss. The Gloss. ord. was taught as a usual and customary part of the law curriculum in the universities and cited in the courts as an authority almost equal in weight to the canonical texts themselves. The Glossa ordinaria to the Decretum was first compiled by Johannes Teutonicus (d. 1245/1246), who drew heavily from the Summa of Huguccio (d. 1210) and the Apparatus of Laurentius Hispanus (d. 1248). Johannes Teutonicus completed the first redaction of the Gloss. ord. before 1217. This version was subsequently reworked and expanded by Bartholomew of Brescia (d. ca. 1258), who completed his revision ca. 1245. Early printed versions of the Gloss. ord. frequently incorporate other material as well, notably the Casus decretorum of Benencasa (d. 1206) and additiones from the gloss apparatus of Guido de Baysio (d. 1313), known as the Rosarium decreti (written between 1296 and 1300).

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The Glossa ordinaria on the Decretales Gregorii IX / Liber extra is the work of Bernard of Parma (d. 1263), who apparently continued to work on it up to the time of his death. Bernard wrote many of the glosses in this apparatus himself, but he also made liberal use of the work of commentators on the Quinque compilationes antiquae, notably Alanus Anglicus, Bernardus Compostellanus antiquus, Laurentius Hispanus, Tancred, and Vincentius Hispanus. Printed versions of this Gloss. ord. frequently incorporate additiones, drawn mainly from Johannes Andreae, Panormitanus, and Hostiensis. The printed versions also add to the Gloss. ord. much of the text of Bernard of Parma’s Casus longi on the Liber extra. The Glossa ordinaria on the Sext / Liber sextus and Constitutiones Clementinae were the work of Johannes Andreae. Johannes finished his Gloss. ord. on the Liber sextus in 1304 and his gloss on the Constitutiones Clementinae in 1326. Gloss apparatuses often gave credit for individual glosses to their authors, usually by attaching a siglum, or abbreviated form of the master’s name, to his comments. For a list of sigla of jurists, see Rudolf Weigand, “The Glossa ordinaria,” in The History of Medieval Courts and Procedure in Medieval Canon Law, edited by Wilfried Hartmann and Kenneth Pennington, History of Medieval Canon Law, 6 (Washington, DC: Catholic University of America Press, 2016), 95–97. Citations proceed as author (if applicable)-title of gloss-text being glossed-specific location of gloss. Gloss. ord., ad D.82 c. 1 s.v. Episcopus pauperibus Gloss. ord., ad X 3.6.4 s.v. Administrationis Stephen of Tournai, Summa decretorum, ad C.16 q.3 c.6 s.v. Inter memoratos Huguccio, Summa, D.50 c.25 s.v. iubeo Hostiensis, Lectura, ad X 4.8.1 s.v. §Quoniam igitur

Roman Law Citations The Institutes of Justinian represent an adaptation and revision by Tribonian of the most successful legal textbook of the classical period, the Institutes of Gaius. In that constitution the emperor designated the new work as the officially sanctioned introductory text for beginning law students and the approved guide to the basic principles of Roman law. The work consists of four books, which are divided into titles; the titles are subdivided into fragments, each of which consists of an introduction (principium) and numbered paragraphs. The scholarly literature will reference the number of the book-title-lex in that order. Inst. 2.1.4 Inst. 3.15.2 Inst. 4.3.pr.

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The manuscript tradition usually consists of an abbreviated version of the title followed by the opening words of the fragment. Inst, de rer. div., riparum = De rerum divisione (Bk. 2 tit. 1) = Inst. 2.1.4 de ver. ob., omnis, in Inst. = De verborum obligatione (Bk. 3 tit. 15) = Inst. 3.15.2 Inst, de 1. aquil., damni = De lege Aquilia (Bk. 4 tit. 3) = Inst. 4.3.pr. Scholarly citations usually refer to the Digest (also known as the Pandecta) of Justinian either as Dig. or D.; of the two, Dig. is preferable to avoid possible confusion with a citation to Pars I of the Decretum. Scholars reference the number of the book-title-lex-paragraph in that order. Dig. 19.2.9.6 Dig. 1.5.4.pr. Dig. 1.2.2.5 Dig. 26.4.pr. The common abbreviation in the manuscript tradition for the Digest was ff.; this apparently represents a misreading of the Greek letter pi (π), which stood for The Pandects (πανδεκτα). Sometimes one might come across the citation of Dig. vet. (Digestum vetus, that is, Books 1–24.2), Infort. (Infortiatum, that is, Books 24.3–38), and Dig. nov. (Digestum novum, that is, Books 39–50). ff. locati conducti, si quis domum, § si alienam = Locati conducti (Bk. 2 tit. 2), si quis domum (the start of lex 9), § si alienam (paragraph 6) = Dig. 19.2.9.6 ff. de sta. ho. l. libertas = De statu hominum (Bk. 1 tit. 5), l. libertas (start of lex 5) = Dig. 1.5.4.pr. Dig. vet., De orig. iuris, necessarium, § his legibus = De origine iuris et omnium magistratuum et successione prudentium (Bk. 1 tit. 2), necessarium (the start of lex 2), § his legibus (paragraph 5) = Dig. 1.2.2.5 Infort. De leg. tutoris, legitima tutela = De legitimis tutoribus (Bk. 24 tit. 4), legitima tutela (the start of lex 1) = Dig. 26.4. pr. The scholarly literature tends to cite Justinian’s Codex by the book number-­ title-lex-paragraph in that order. Some modern citations abbreviate the name of the Codex as Cod., others prefer C.J. (for Codex Justiniani), while still others simply refer to it as C.; of these three options, Cod. or C.J. are preferable, since they are less likely to mislead than C. used alone, which can easily be confused with a citation to Pars II of the Decretum. Scholars reference the number of the book, title, lex, and paragraph in that order. Cod. 1.3.32.7 C.J. 5.4.23.5 The manuscript tradition tends to cite passages in the Codex by the opening words of the titulus and lex.

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C. de episcopis, 1. omnes § privilegiis sane = De episcopis et clericis et orphanotrophis et brephotrophis et xenodochis et asceteriis (Bk. 1 tit. 3), l. omnes (lex 32), § privilegiis sane (paragraph 7) = Cod. 1.3.32.7 C. de nup., 1. Imperialis § His illud = De nuptiis (Bk. 5 tit. 4), l. Imperialis (lex 23) § His illud (paragraph 5) = Cod. 5.4.23.5 The Novellae leges (Novels) consist of 168 laws promulgated between 535 and 545 and collected during the reign of Eastern Roman Emperor Tiberius II (578–582). In the West, the Novellae were known as the Authenticum or Liber authenticorum and numbered only 134 laws. From the eleventh century, Western glossators at Bologna were accustomed to use a version of the Authenticum in which 96 of the Novellae were grouped into nine collationes, which were divided into tituli; the titles were subdivided into fragmenta, and these typically consisted of a prefatio (preface), numbered paragraphs (or capitula), and an epilogum (epilogue). Citations in scholarly literature normally proceeds from the largest to the smallest units, giving in sequence the numbers of the collatio, titulus, and fragmentum. Liber authenticorum: Auth. coll. 7.2.3 = Nov. 90 Corpus authenticorum: Excerptum Nov. 123.38 = Auth. 134 coll. 9.15 post Cod. 1.2.13. The usual medieval system of citing the Authenticum began with the titulus, followed by the opening words of the fragmentum or other subdivision, and closed with the number of the collatio. Liber authenticorum: Authen. de testibus, neque igitur, coll vii. = Nov. 90 cap. 3 = Nov. 90.3 Corpus authenticorum: C. de sacrosanctis ecclesiis, auth. Si qua mulier = Nov. 123 cap. 138 = Nov. 123.138 Citations of the Authenticum are further complicated by the fact that medieval scribes customarily incorporated summaries of the Novellae from the Authenticum into the relevant sections of manuscripts of the Codex, a practice that early printers also adopted. These summaries were known individually as authenticae and collectively as the Corpus authenticorum. Medieval citations of the Corpus authenticorum usually open with the words of the appropriate titulus of the Codex, followed by the opening words of the particular authenticum that is being referred to. Modern citations of the Corpus authenticorum normally give the number of the corresponding Novel, followed by the number of the specific sub-section in question, the equivalent numbered reference to the Liber authenticorum, and a numbered reference to the section of the Codex in which the authenticum occurs. To complicate still further the problem of locating and verifying medieval citations, the standard modern edition of the Novellae by Schöll and Kroll does not furnish a proper concordance of the Novellae and the Authenticum. In practice, therefore, it is necessary to verify

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references to the Authenticum either from the Indices corporis iuris civilis iuxta vetustiores editiones cum criticis collatis, prepared by Ugo Nicolini and Franca Sinatti d’Amico, in the Subsidia series of Ius Romanum medii aevi (Milan, 1964–) or the Indices titulorum et legum Corporis iuris ciuilis compiled by Xavier Ochoa and Aloisio Diez (Roma, 1965). Stephan Kuttner, “On the Medieval Tradition of Justinian’s Novellae: An Index Titolorum Authentici in Novem Collationes digesti,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanonistische Abteilung 80 (1994): 87–98 has also proved helpful in understanding the Authenticum.

Appendix II BIOGRAPHICAL NOTES ON SELECTED CANONISTS

Below are a few helpful sources on the lives, careers, and writings of canonists who appear frequently in the work. In addition, these biographical sketches illustrate concretely remarks made earlier concerning the variety of careers open to canonists, as well as their geographical mobility and the diversity of their origins. [~ is the approximation sign and designates a range of dates within which a person probably lived or an event probably occurred.] For resources on the lives and works of additional jurists, see: Condorelli, Orazio, and Rafael Domingo, eds. Law and the Christian Tradition in Italy: The Legacy of the Great Jurists. London-New York: Routledge, 2020. Decock, Win, and Janwillem Oosterhuis, eds. Great Christian Jurists in the Low Countries. Law and Christianity. Cambridge: Cambridge University Press, 2021. Descamps, Olivier, and Rafael Domingo, eds. Great Christian Jurists in French History. Law and Christianity. Cambridge: Cambridge University Press, 2019. Domingo, Rafael, and Javier Martínez-Torrón, eds. Great Christians Jurists in Spanish History. Law and Christianity. Cambridge: Cambridge University Press, 2018. Donahue, Jr., Charles, and Kenneth Pennington, eds. “Bio-Bibliographic Guide to Medieval and Early Modern Jurists.” Available at http://amesfoundation.law. harvard.edu/BioBibCanonists/HomePage_biobib2.php Hill, Mark, and Richard H. Helmholz, eds. Great Christian Jurists in English History. Law and Christianity. Cambridge: Cambridge University Press, 2017. Reynolds, Philip L., ed. Great Christian Jurists and Legal Collections in the First Millennium. Cambridge Studies in Law and Christianity. Cambridge: Cambridge University Press, 2019. Schmoeckel, Mathias, and John Witte Jr., eds., Great Christian Jurists in German History. Tübingen: Mohr Siebeck, 2020.

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Anselm of Lucca (ca. 1040–1086). Anselm was born in Milan of a noble family involved in imperial service as judiciaries and notaries, and connected to the cathedral and canonry of St. Ambrose. Pope Gregory VII consecrated him bishop of Lucca in April 1073 and Anselm played an instrumental role in the papacy’s struggle against imperial involvement in the church during the Investiture Controversy. He had a brief retirement into a Cluniac monastery around 1075 but he would become involved in the Lenten synod of 1076 at which Emperor Henry IV was excommunicated. He had tried, with the assistance of Gregory VII and Countess Matilda of Tuscany, to reform the canons of San Martino. It was not to be, however, and the resulting ire led to Anselm being driven out of Lucca when the canons elicited the support of Henry IV and Wibert of Ravenna who had been appointed antipope. Anselm spent the remainder of his life in exile in the circle of Matilda of Tuscany, fighting against the supporters of Henry and Wibert. He compiled the Collectio canonum, a collection noted for its support of papal authority. Baldus de Ubaldis (ca. 1327–1400). Baldus was born into a family with strong academic credentials. His father, Francesco Ubaldi, was a professor of medicine at Perugia and Baldus, who studied both civil and canon law at Perugia and Pisa, later taught at six universities during a long and complex career in which he combined teaching and practice. Two of Baldus’s brothers, as well as his son, Francesco, were also well-known jurists. Perhaps the most visible of Baldus’s many notable students was Pierre Roger de Beaufort, who became Pope Gregory XI (1370–1378). Baldus could also count among his pupils several of the most influential jurists of the succeeding generation, including Peter of Ancharano, Cardinal Zabarella, Johannes ab Imola, and Paulus de Castro. Baldus wrote extensively on both civil and canon law. The most important of his canonistic works was his Commentary on the first three books of the Liber extra. He also wrote a great number of consilia, as well as additiones to the Speculum iudiciale of William Durand. Bartholomaeus Brixiensis (Bartholomew of Brescia; d. 1258). Few traces survive of the career of Bartholomaeus Brixiensis. He studied canon law under Tancred at Bologna, where he also attended the lectures of Hugolinus in Roman law. After completing his studies, Bartholomaeus himself taught canon law at Bologna. His principal works include two sets of quaestiones disputatae and his revised and updated version of Johannes Teutonicus’s Glossa ordinaria on the Decretum of Gratian. Virtually all glossed manuscripts of the Decretum after the mid-thirteenth century reproduce Bartholomaeus’s revised form of the ordinary gloss, as do the numerous printed editions that appeared between the fifteenth and the seventeenth centuries. Benedetto Gaetani (Pope Boniface VIII; ca. 1235–1303). Born at Anagni into the powerful Gaetani clan, Benedetto enjoyed a meteoric ecclesiastical career. Ambitious and able, Benedetto studied canon law at Bologna and then immediately entered the papal curia, where he progressed swiftly into the upper ranks of the papal bureaucracy. Successive popes entrusted him with numerous diplomatic missions and in 1281 Pope Martin IV (1281–1285) rewarded his successful performance by naming him a cardinal. A crisis in papal politics following the death of

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Pope Nicholas IV in 1292 left the papal throne vacant for 27 months. Although the cardinals finally agreed upon a compromise candidate, Peter Morrone, who became Pope Celestine V in July 1294, the new pope abruptly resigned his office on 13 December of that same year. Another extended vacancy in the papacy would have been disastrous and accordingly, eleven days after Celestine V’s resignation, the cardinals chose Benedetto Gaetani to succeed to St. Peter’s throne under the title of Boniface VIII. Boniface’s pontificate was stormy and frequently dramatic. He was not only embroiled in internal dissension within the ranks of the clergy—such as the bitter strife between the spiritual and conventual wings of the Franciscan order—but also with rivalries between his own family and another powerful Roman house, the Colonnas. During his forty-year career as a practicing canonist, the new pope had ample experience with canonists’ chronic difficulties in discovering the most recent law on the problems they had to deal with. Early in his pontificate Boniface VIII appointed a commission of prominent canonists to prepare a new official collection of the decretal law that had accumulated since the publication of the Liber extra by Pope Gregory IX in 1234. On 3 March 1298 Boniface formally promulgated the new decretal collection that his commissioners had prepared. He entitled it the Sixth Book of Decretals (Liber sextus decretalium), which signalled that the new work was a continuation of and supplement to the five books of the Liber extra. Thereafter, other problems monopolized the pope’s attention. The greatest of the many crises in Boniface’s pontificate centred on the relationship between papal and monarchical powers. Boniface’s leading antagonist in this struggle was King Philip IV of France (1285–1314). This conflict entered a crucial phase in 1301 and the pope’s situation deteriorated rapidly thereafter. In 1303 King Philip dispatched Guillaume de Nogaret to Italy to capture and imprison the pope, which Guillaume did briefly after storming the papal castle at Anagni on 7 September 1303. The French forces released Boniface after holding him prisoner for only two days, but the pope returned to Rome a broken man and died on 11 October 1303. Bernard of Parma (d. 1266). Bernard was born close to the beginning of the thirteenth century at Parma and was a member of the locally prominent de Botone family. He studied canon law at Bologna under Tancred and by 1247 had become a canon of the cathedral of Bologna, where he taught throughout his career. The best-known of his students at Bologna was William Durand. Bernard was also a papal chaplain and, in addition to his teaching, conducted a great deal of important business at the papal court. Bernard compiled the Glossa ordinaria and the Casus longi to the Liber extra, as well as a Summa super titulis decretalium, which reproduces much of the gloss apparatus of Tancred on Compilatio prima. When Bernard died, he was buried next to Tancred in the cathedral of Bologna. Bernard of Pavia (d. 1213). The early life of Bernard of Pavia, sometimes called Bernard Balbi, is extremely obscure. He was a native of Pavia and first appeared as a student of canon law and theology at Bologna, where he studied canon law with Huguccio. When he had finished his legal studies, Bernard taught for a time at Bologna, then joined the papal curia in Rome, and in 1178 was named provost of Pavia. In 1191 he succeeded another canonist, Johannes Faventinus, as

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bishop of Faenza. In 1198 Bernard returned to Pavia, this time as its bishop; a position he retained until his death in 1213. Bernard contributed significantly to the intellectual development of canon law as a systematic discipline. He was responsible for assembling and organizing Compilatio prima, whose structure became the model for all subsequent decretal collections. He also wrote an influential textbook, the Summa decretalium, as well as two specialized treatises, the Summa de matrimonio and the Summa de electione, on particularly complex areas of canon law. In addition, he produced glosses on the Decretum and on his own decretal collection, as well as several lesser works. Burchard of Worms (d. 1025). Burchard was born of a noble family. He was a canon at the cathedral of Koblenz and studied at Koblenz and Mainz. Willigis, the archbishop of Mainz, appointed him deacon, then head of the archdiocese’s treasury. Burchard would also serve as provost of the monastery of Saint-Victor in Mainz. Emperor Otto III would appoint him bishop of Worms in 1000 and he would serve as a member of Henry II’s imperial court. As an imperial bishop, he also served as the secular administrator of Worms. In addition to compiling the canonical collection the Decretum, he also compiled a secular legal code, known as the Lex familiae (ca. 1024–1025), for the familia of Worms. This familia included the both clergy and the members of his household as well as those who had belonged to the Salian dukes from whom Burchard had taken over Worms. Ivo of Chartres (ca. 1040–1115). Ivo was born near Chartres, probably of a lower status. He may have studied at the famous monastery at Bec, possibly under Lanfranc. In 1067 Ivo was made the first abbot of the monastery of St. Quentin by Guy, bishop of Beauvais. Ivo would become bishop of Chartres in 1090, a position he held until his death. During that time he would have conflicts with the local nobility, Archbishop Richer of Sens, who sought to reinstate Ivo’s predecessor, King Philip I, over the repudiation of his wife Berta and his adulterous affair with his vassal’s wife Bertrada of Montfort, and the papal legate Hugh of Lyon, over ecclesiastical politics. Ivo wrote a Prologue to his great canonical collection, the Decretum. This Prologue would accompany the canonical collections the Panormia and the Tripartita, though Ivo’s authorship of these collections is in doubt. Ivo’s authorship notwithstanding, the Decretum, Panormia, and Tripartita would be known as the “Ivonian collections”. Gérard Pucelle (1115~20–1184). Gérard Pucelle was a fellow student of John of Salisbury (1115~25–1180) at Paris and by 1156 was teaching philosophy there. He also lectured at times on theology, civil law, and canon law. Ordained by Thomas Becket (1118–1170), Gérard became a member of Becket’s household during his exile on the Continent. Late in 1165 or early in 1166 Becket sent Gérard on a mission to the court of the German ruler, Frederick Barbarossa (1152–1190), to try to solicit the emperor’s support in Becket’s dispute with King Henry II (1154–1189) of England. Gérard returned to England in 1168 and, to Becket’s chagrin, swore allegiance to Henry II. Becket and Gérard were soon reconciled, however, after Gérard’s return to France, where he resumed teaching for several years. He subsequently returned to England as a member of the household of Becket’s successor at

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Canterbury, Archbishop Richard of Dover. Not long before his death Gérard was named bishop of Coventry. Gérard seems to have been one of the links between the Paris canon law schools and the canonists who made Cologne the principal centre of the Rhineland school of Decretists. Geoffrey of Trani (d. 1245). Geoffrey, a native of Apulia, studied law in Bologna at the same time as Sinibaldo dei Feischi, who later became Pope Innocent IV. After teaching civil law at Naples and canon law at Bologna, Geoffrey entered the papal curia. Honorius III (1216–1227) made him a papal chaplain and he also became an auditor, or judge, of the Audientia litterarum contradictarum, a position that he apparently retained until his death. He is best known as the author of an early treatise on the Liber extra, the Summa super titulis decretalium, which Bernard of Parma drew upon heavily when he compiled the Glossa ordinaria on the Gregorian decretals. Geoffrey also wrote glosses on the Liber extra, as well as some quaestiones. Innocent IV named him a cardinal in 1244 and Geoffrey died in the following year while attending the First Council of Lyon. Gratian (fl. ca. 1130–1140). The life and career of Master Gratian left few traces in contemporary documents. He apparently taught canon law, probably at Bologna, and he was once thought to have been a monk but now thought to have ended his career as a bishop. Nothing is reliably known (although a great deal has been surmised) about Gratian’s biography. Even the date at which he completed his Decretum can be established only approximately from circumstantial evidence. Hostiensis (Henricus de Segusio; 1190~1200–1271). Hostiensis was born at Susa, in the diocese of Turin, shortly before 1200. He became a law student at Bologna at the same time as Sinibaldo dei Fieschi (Pope Innocent IV). Hostiensis’s teachers in civil law included Jacobus Balduinus and Homobono, while he studied canon law under Jacobus de Albegna. After completing his legal training, Hostiensis taught canon law in Paris in the early 1230s. In 1234~1235 he received an appointment as prior of Antibes. In 1236 he went to England as a member of the household of Eleanor of Provence, spouse of King Henry III (1216–1272). He remained in England until 1244, when he became bishop of Sisteron. In 1250 he was named archbishop of Embrun and in 1261 he became cardinal-bishop of Ostia, whence the title ‘Hostiensis’ by which he is usually known. His reputation as an eminent canonist rests chiefly on his Summa, which later came to be known as the Summa aurea (“Golden Summa”) Hostiensis’s Summa survives in two versions, the earlier of which he completed in 1250~1251. He commenced writing a Lectura on the Liber extra at the request of his students in Paris, but did not finish it until shortly before his death in 1271. Hostiensis was so highly regarded a canonistic authority that he warranted an appearance in Dante’s Divina commedia (Paradiso, 12.82–97). Hugolinus (Pope Gregory IX; ca. 1170–1241). Hugolinus was born about 1170 at Anagni. He was a relative of Pope Innocent III (1198–1216), although probably not his nephew as was formerly believed. Hugolinus studied at Paris, where he was a classmate of the theologian Peter of Capua. He subsequently studied canon law, probably at Bologna. After completing his legal studies, Hugolinus received numerous appointments as a papal legate and soon after was named a papal chaplain.

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Innocent III named him a cardinal in 1198 and employed him as an auditor causarum in papal judicial business. Hugolinus was keenly interested in the Franciscan life and contemplated becoming a Franciscan himself, until St. Francis advised him not to do so. Hugolinus became instead the first cardinal-protector of the Franciscan order. In 1227 he was elected pope and took the title of Gregory IX. His own experience as a canonist made Gregory IX keenly aware that students, teachers, and practitioners would benefit from a more convenient and systematic collection of decretals. In 1230, therefore, the new pope commissioned Raymond of Penyafort to compile the decretal collection that came to be known as the Decretals of Gregory IX (Liber extra). As pope, Hugolinus also continued to interest himself in the Franciscans and sought to improve the order’s organizational structure. During much of his pontificate Gregory IX was, of course, deeply involved as well in the papacy’s power struggle with the Hohenstaufen emperor Frederick II (1212–1250). Gregory IX died, after a turbulent pontificate, in 1241. Huguccio (d. 1210). Huguccio came originally from Pisa, where he was born at some unknown date during the first half of the twelfth century. After studying the liberal arts and theology (perhaps in his native city), Huguccio received his training in canon law at Bologna and subsequently taught there until Pope Clement III (1187–1191) named him bishop of Ferrara in 1190. At Ferrara, Huguccio not only engaged in routine diocesan administration, but also received numerous appointments as a papal judge-delegate. Huguccio was particularly busy with these and other missions during the pontificate of Pope Innocent III (1198–1216), who had studied canon law at Bologna while Huguccio was teaching there and who clearly esteemed his abilities. Huguccio was an acute and original thinker, qualities that emerge clearly in the Summa super corpore decretorum, which he wrote at the urging of his students at Bologna. It is ironic that Huguccio’s Summa, which has generally been acknowledged from the twelfth century to the present as one of the most important monuments of canonical jurisprudence, remains unpublished to this day and must be consulted in manuscript versions of markedly uneven reliability. Johannes Andreae (Giovanni d’Andrea, ca. 1270–1348). Johannes Andreae was illegitimate, the offspring of an informal union between his father, Andreas, and a concubine named Novella. When Johannes was about ten years old, his father moved from the boy’s birthplace at Rifredo, near Florence, to Bologna and entered the priesthood. Andreas supervised his son’s elementary education and prepared him for university studies at Bologna, first in theology, then later in civil and canon law. In 1301 Johannes became Professor of Decretals at Bologna and in 1303 took the canon law faculty’s chair in the Decretum. In 1307 he briefly took a teaching position at Padua, then after two years he returned to Bologna, where he taught until 1319, when he went back to teach at Padua for a year. In 1320, he returned once more to a professorship at Bologna, where he at last formally became a citizen. He remained teaching in the city for the remainder of his life, but punctuated his teaching career by conducting a number of diplomatic missions on behalf of the city government. The best-known of these was his embassy in 1328 to Pope John XXII (1316–1334), during which he was robbed by highwaymen;

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he later received reimbursement from the pope, after the city fathers of Bologna refused to indemnify his losses. Johannes Andreae was the second-known married layman to become a professor of canon law (the first was apparently Aegidius Fuscarariis, one of his teachers). He had three sons as well as four daughters and several bastard children. One of his sons, Bonincontro, became a law teacher, while his second and third daughters married canonists. Johannes’s youngest daughter (named Novella after Johannes’s own mother) was said by Christine de Pizan to have lectured as a substitute for her father when he was ill. One of his bastard sons was legitimized by a papal rescript and became a papal chaplain, while a second bastard son became cantor of the cathedral in Ravenna. In addition to all his other occupations, Johannes Andreae was a prolific author. He wrote, among numerous other things, gloss apparatuses on the Liber sextus and the Constitutiones Clementinae, and the canonistic schools soon adopted these as the glossa ordinaria on those two collections. Beyond that, he also produced a lengthy commentary, which he entitled the Novella, on the Liber extra, a Summa on marriage problems and another on consanguinity, another commentary (also called the Novella) on the Liber sextus, a set of canonistic quaestiones, as well as numerous shorter works. Johannes prospered both from his teaching salary and from the considerable fees he earned from practising law. He nevertheless lived an industrious, studious life. On his death from the plague in 1348, he stipulated that his substantial wealth be divided between his numerous offspring and various pious and charitable works. Johannes Teutonicus (Johannes Zemeke; ca. 1170–1245). A Saxon by birth, Johannes settled in Bologna, first as a law student, later as a teacher. By far the most influential of his works was the massive Glossa ordinaria on the Decretum, a commentary that subsequent teachers and judges relied upon as their basic guide to Gratian’s work. John made a collection of the later decretals of Innocent III, but the pope, for reasons that are unclear, refused to promulgate it officially, although the schools accepted it as a useful textbook. Johannes also wrote gloss apparatuses on the decrees of the Fourth Lateran Council, as well as on Compilatio tertia and his own decretal collection, which is known as Compilatio quarta. He completed all of this between about 1210 and 1218, when he went back to Germany. There he was apparently content to settle into the comfortable life of a beneficed ecclesiastic of middling rank at the cathedral of Halberstadt. Raymond of Penyafort, Saint (Raymond of Peñafort; 1180~85–1275). Born in Catalunya, Raymond of Penyafort appeared in Bologna in 1210, first as a law student, then as a teacher. He returned to Barcelona in 1219 as a canon and provost of the cathedral chapter, positions that he resigned at some point between 1223 and 1229, when he entered the Dominican order. In 1230 Pope Gregory IX summoned Raymond to Rome, appointed him a papal chaplain, and commissioned him to compile an official collection of the decretals that had appeared since the time of Gratian, nearly a century before. The pope gave him broad leeway to edit existing decretals and even encouraged him to fill gaps in the law by composing new decretals, which Gregory promulgated under his own name. The pope formally published this collection, known as the Decretals of Gregory IX, or the Liber extra,

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on 5 September 1232. It immediately became a core element in the curriculum of the schools of canon law and remained in force among Roman Catholics until 1917. Raymond returned to Catalunya in 1236 and two years later was elected master-general of the Dominican order, a post that he accepted with considerable reluctance. Once installed in this new position, Raymond proceeded to edit and revise his order’s constitutions. He did this so expeditiously and successfully that the order’s general congregation approved his revised constitutions in 1239 and they remained in force until 1924. In 1240 Raymond resigned as master-general, and returned once more to Spain, where he actively encouraged missionary work among Jews and Muslims. In furtherance of these projects, Raymond asked his Dominican confrère Thomas Aquinas to compose a basic handbook of Christian doctrine for prospective converts. The result was Aquinas’s Summa contra Gentiles. Throughout his career Raymond continued to write. The most widely influential of his works (aside from the Liber extra) was his Summa de penitentia, together with a separate Summa de matrimonio. He also produced a brief Summa iuris canonici, a Summa pastoralis, glosses on the Decretum, a few consilia, and numerous minor works. When he died in 1275, the presence at his funeral of the kings of Aragón and Castile testified to the high regard in which contemporaries held this extraordinary figure. He was canonized in 1601. Regino of Prüm (d. 915). Regino served as the abbot of the monastery of Prüm near Aachen, which was located in Lotharingia (the middle section of the German kingdom). He first appears in the records of Prüm in 892, when he was elected abbot. As abbot he cared for King Lother II’s illegitimate son Hugh, who settled at Prüm after having been blinded as punishment for revolting against Charles the Fat. Political instabilities in the Carolingian empire would lead to Regino losing his office in 889. He would spend the last fifteen years of his life at the monastery in Trier. He wrote the Libri duo de synodalibus causis et disciplinis ecclesiasticis, a handbook to assist bishops in conducting their visitors to the parishes in their diocese, as well as a work on music, and a work chronicling the history of the world to his day. Rolandus, Master (fl. late 1150s). Virtually nothing is known about the career of this intriguing canonist, save that he was teaching canon law, probably at Bologna, during the latter part of the 1150s. He was thus lecturing on Gratian’s Decretum shortly after its completion and is one of the earliest teachers who is known to have used it as a textbook. Internal evidence in his commentary on Gratian, known as the Stroma, hints that Rolandus may have had some connection with Modena. Further internal evidence in a theological tract entitled the Sententiae, also ascribed to Master Rolandus, makes it reasonably clear that he was an admirer, perhaps even a student, of Peter Abelard (ca. 1079–ca. 1142). Master Rolandus was evidently not popular among other canonists of his generation. Stephen of Tournai dismissed his views as of little account, while Rufinus described him far more unkindly as a pompous, lazy drunk. Despite such unflattering references, it was long thought that Master Rolandus was no less a figure than Rolando Bandinelli, who in 1159 was elected Pope Alexander III. Recent scholarship, however, has made it clear that this identification is untenable.

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Rufinus (d. 1192). Born in central Italy, probably near Assisi, Rufinus studied at Bologna, where he was styled magister and named a canon of the cathedral. He taught canon law at Bologna. Among his pupils he numbered Stephen of Tournai, who modelled his own work on that of his master. Rufinus became bishop of Assisi in 1179, then archbishop of Sorrento between 1180 and 1186. His Summa exercised wide influence among later Decretists, particularly those who belonged to the French school. Sinibaldo dei Fieschi (Pope Innocent IV; d. 1254). Sinibaldo dei Fieschi was born at Genoa late in the twelfth century, son of Count Hugo of Lavania, a member of the Fieschi family. He studied both civil and canon law at Bologna: his teachers in civil law included Azo (ca. 1150–1230), Accursius (1185–1263), and Jacobus Balduinus (d. 1235), while he attended the canon law lectures of Laurentius Hispanus, Vincentius Hispanus, and Johannes Teutonicus, among others. After completing his legal studies, Sinibaldo taught for a time at Bologna, then became a canon of the cathedral of Parma and in 1226 went to Rome as an auditor (or judge) of the Audientia litterarum contradictarum at the curia. Sinibaldo served as an assistant and counsellor to Cardinal Hugolino of Ostia, who later became Pope Gregory IX (1227–1241). Further curial assignments followed: Sinibaldo was named papal legate in the Marches, then bishop of Albegna, and vice-chancellor of the Roman church. Gregory IX made him a cardinal during the first consistory of his pontificate. Not long after Gregory’s death, following the brief pontificate of Celestine IV (25 October–10 November 1241), Sinibaldo was elected pope in the cathedral of Anagni and was crowned there as Pope Innocent IV in June 1243. The major political and diplomatic focus of his pontificate centred on the struggle with the emperor Frederick II (1212–1250), whom he excommunicated and deposed at the First Council of Lyon (1245). As pope, Sinibaldo was also much involved with the crusading projects to the Holy Land and worked hard, but unsuccessfully, to persuade Eastern Christians to reunite with the Latin church in the West. He was, in addition, hopeful that it might prove possible to convert the Tartars to Christianity and to that end sought to establish diplomatic relations with the Mongol Khan. It is astonishing, but apparently true, that in the midst of all of these activities Sinibaldo found the time and energy to write a massive and incisive Apparatus on the Liber extra. In addition, as pope he promulgated three important decretal collections and established a law school in his Lateran palace. Sinibaldo died at Naples on 7 December 1254 and is buried in the cathedral there. Stephen of Tournai (1135–1203). Stephen was born at Orléans on 19 March 1135. He received his early education from one Master A. and later studied at Ste-Croix in Orléans. He received his legal education at Bologna, where he studied civil law with Bulgarus (d. 1166) and canon law with Rufinus. Among his classmates were the canonist known as Cardinalis, Heraclius, who later became patriarch of Jerusalem, and the future Pope Urban III (1185–1187). About 1155 Stephen became a member of the regular chapter of St. Euverte in Orléans and later became the abbot of the chapter. He completed his Summa during this

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period at Orléans. In 1176 he became abbot of Ste-Geneviève in Paris. He also served as a counsellor to King Philip Augustus (1179–1223), who made him a godfather to his eldest son, later King Louis VIII (1223–1226). Late in 1191 Stephen became bishop of Tournai, in part at least because the French crown needed a loyalist in that position to support its Flemish policy. Stephen’s writings include a collection of 240 letters and approximately 30 sermons (only one of which seems to be published), as well as his Summa to Gratian’s Decretum, which shows evidence of the strong influence of Rufinus. Tancred (ca. 1185–ca. 1236). Tancred’s career was a study in constancy. Born in Bologna, he remained there, save for brief periods when professional commitments took him elsewhere, throughout his life. He studied canon law with Laurentius Hispanus and John of Wales and Roman law with Azo. By 1214 Tancred was styled Master of Decrees (magister decretorum) and was teaching canon law at Bologna; he apparently continued to teach, at least intermittently, until his death. In later years, Tancred secured a few modest ecclesiastical appointments, which no doubt required him to curtail the time devoted to teaching: he became a canon of the cathedral in his native city and in 1226 was named its archdeacon. In addition, three successive popes—Innocent III, Honorius III, and Gregory IX—­commissioned Tancred to undertake diplomatic and judicial missions for the Holy See. Tancred also appeared occasionally as an advocate in the papal consistory and other ecclesiastical courts. In the midst of all his other activities, Tancred found time to produce a steady and consistent stream of writings. The most widely influential (and widely imitated) of his works was his procedural manual, the Ordo iudiciarius, which he wrote between 1214 and 1216 in response, as he said in its preface, to repeated requests from friends and colleagues. He had earlier produced gloss apparatuses on the first two of the Quinque compilationes antiquae and by the time he commenced work on the Ordo iudiciarius Bolognese law teachers had already adopted these as the ordinary glosses on the decretal collections. In 1220 he revised his earlier gloss collections and composed a further apparatus on Compilatio tertia; Bolognese law teachers adopted that apparatus, too, as the ordinary gloss that they taught in the schools. Bernard of Parma subsequently incorporated a substantial part of Tancred’s glosses into the ordinary gloss on the Liber extra, thereby assuring that Tancred’s name and his ideas would retain a central place in canonistic doctrine throughout the Middle Ages. In addition, Tancred produced a Summa de sponsalibus et matrimonio, and here again later authors drew freely upon his work for their own purposes. Raymond de Penyafort’s Summa de matrimonio, to name just one notable example, reproduced verbatim large portions of Tancred’s Summa.

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INDEX

Note: Dates listed after a proper name indicate lifespan. Dates listed after a title indicate length of term. For example, Alexander III, Pope (1159–1181) indicates that Alexander was pope from 1159 to 1181. Accusatio (accusatory), 108–109 Ad abolendam, Pope Lucius III, 128 Ad extirpanda, Pope Innocent IV, 133 Admonitio generalis, 27 Advocate, 101, 109–111 Alexander III, Pope (1159–1181), 60–61, 68–71, 80–81, 135, 138–139, 180 Alger of Liège (1055–1131), 55 Allegationes, 60, 102, 111 Ambrose, Bishop of Milan (d. 397), 9 Anglican Church, 154–155 Anglo-Norman, School of, 61–62, 71, 77, 118–119, 125 Anselm of Lucca (d. 1086), Bishop, 44–45 Apparatus in quinque libros Decretalium, Pope Innocent IV, 78 Apostolic Penitentiary, 104–105, 124, 139–142 Apostolic tradition, 8–9 Audientia episcopalis, 10 Audientia litterarum contradictarum, 104 Audientia sacri palatii (Sacra Romana Rota), 105–106 Augustine, Bishop of Hippo (d. 430), 9–10, 17, 86, 106; City of God, 9 Baldus de Ubaldis (d. 1400), 91–93 Bartholomew of Exeter (d. 1184), 71 Bartolo da Sassoferrato (d. 1357), 91–93 Basil of Caesarea (d. 379), 9 St. Benedict (d. 547), 17, 24, 27 Benedict of Aniane (d. 821), 27; Code of the Regulars, 27

Bernard of Clairvaux, Abbot (1090–1115), 103 Bernard of Pavia (d. 1213), Canonist and Bishop, 72, 74, 80–81, 125 Bologna, School of, 54, 56, 60–61, 72–74, 79, 83 St. Bonaventure (d. 1274), Theologian, 88–89 Boniface VIII, Pope (1294–1303), 74–75, 107, 127, 132 Bruno of Toul / Leo IX, Pope (1049–1054), 36, 42–43, 87 Burchard of Worms (d. 1025), Bishop, 32–33, 36, 70, 85 Bulgarus, Four Doctors, 54, 58, 79–80, 118 Calixtus II, Pope (1119–1124), 37–38, 43, 69, 76 Canonical Collections: Concordia discordantium canonum / Decretum, Gratian, 56–63, 69–70, 81–83, 125–126; Constitutiones Clementinae, 75–76, 115– 116; Collectio canonum, Anselm of Lucca, 44–45; Collectio canonum, Deusdedit, 44; Collectio canonum, William of Champeaux, 46–47; Collectio Dacheriana, 29; Collectio decem partium, Walter of Thèrrouane, 48–49; Collectio DionysioHadriana, 29, 73; Collectio Hispana, 29; Decretum, Burchard of Worms, 33, 34, 69; Decretum, Ivo of Chartres, 44–45, 47–48, 56; Didascalia apostolorum, 9; Diversorum patrum sententiae (Collectio

206  Index

LXXIV titulorum / Collection in 74 Titles), 45–46, 158; Extravagantes communes, 75; Extravagantes of John XXII, 75; Libri duo de synodalibus causis et disciplinis ecclesiasticis, Regino of Prüm, 25, 33–34; Liber extravagantium / Liber extra / Decretales, Pope Gregory IX, 74–78, 80, 91, 98; Panormia, 44, 48, 87–88; PseudoIsidorian Decretals, 31–32, 41, 46, 47, 68, 158; Traditio apostolica, 9; Tripartita, 44 Capitularies, 27–28 Cardinal Zabarella (d. 1417), 152 Cessavit per biennium, 94 Charlemagne (d. 814), Emperor of the Franks, 26–28 Clandestine marriage, 138, 141–142 Clerical celibacy, 42–43, 69, 87 Codex, Corpus iuris civilis, 52–53, 83, 86, 93–94, 96, 106 Codex Theodosianus / Theodosian Code, 13–14, 48, 52 College of Cardinals, 37, 67, 104, 152 Concordat of London (1107), 37 Concordat of Worms (1122), 37, 69 Conrad of Marburg (d. 1233), 130 Constantine I, Roman Emperor, 7, 10–11, 13, 16 Constitutum Constantini / Donation of Constantine, 31–32 Corporation / corporate body, 151–156 Corpus iuris canonici, 75 Corpus iuris civilis, Justinian, 48, 51–52, 75, 80, 94, 96 Councils: Auxerre (c. 561–c. 605), 23; Braga (561), 23; Chalcedon (451), 11, 31; Clermont (535), 22; Clermont (1095), 37, 69, 76; Compiègne (757), 28; Ephesus (431), 11, 12; First Constantinople (381), 11; First Lateran (1123), 43, 69, 76; First Lyon (1245), 76; Fourth Lateran (1215), 73, 75–77, 108, 114, 125, 128, 129, 134, 138, 142; Frankfurt (794), 27; Mâcon (581/583), 22; Mâcon (585), 21; Nicaea (325), 11, 22, 31, 39, 148; Orléans (511), 21; Second Lateran (1139), 69, 76, 86; Second Lyon (1274), 76; Serdica (343), 22; Third Lateran (1179), 70, 75–77, 87; Vienne (1311–1312), 76, 115 Coutumiers: Coutumes de Beauvaisis, Philippe de Beaumanoir, 97–99, 146, 150; Livre de Jostice et de Plet, 96; Lo Codi, 96 Curia Romana (Roman curia), 44, 67–68, 72, 78, 104–105

Decretal collections: Anglo-Norman group, 61, 71, 77, 118, 125; Appendix group, 71; Appendix Concilii Lateranensis, 77; Bamberg group, 71–72; Bambergensis secunda, 73; Breviarium extravagantium / Compilatio prima, Bernard of Pavia, 72, 74, 80–81, 126; Bruges group, 71, 72; Collectio Abrincensis II, 74; Collectio Belverensis, 70; Collectio Fontanensis, 70; Collectio Pragensis, 73; Collectio Palatina I, 73; Collectio Parisiensis II, 71; Collectio Wigorniensis Altera, 70; Compilatio quarta, Johannes Teutonicus, 73, 76; Compilatio secunda, Gerard of Wales, 73; Compilatio tertia, Petrus Beneventanus, 73; Compilationes antiquae, 72–74; Frankfurt group, 71–72; Worcester Tradition, 71 Denuncio (denunciation), 112, 114 Dictatus papae, 38–40 Digest, Corpus iuris civilis, 51–53, 57, 81–82, 93, 96 Diocletian, Roman Emperor, 8; Diflumetorim Danicum, 93 Dispensation, 47–48, 105, 124, 138–141, 144 Divine law, 9, 57, 88, 90, 139 Divortium a mensa et thoro (separation from table and bed), 142 Divortium quoad vinculum (separation from the bond), 142 Eigenkirchentum, 31 English Common law, 94, 155 Episcopal handbooks, 32, 34, 158 Evangelical Protestants, 155 Fama, 108, 114–115, 129, 132, 134 Forum conscientiae (Court of conscience), 105 Forum gratiae (Court of grace), 105 Frederick Barbarossa, Holy Roman Emperor (d. 1190), 54, 94 Frederick of Lorraine (d. 1206), Duke, 36 Gerard of Wales (d. 1223), Canonist, Royal clerk, 159 Germanic / ‘barbarian’ law, 20–21, 72 Giovanni d’Andrea / Johannes Andreae (d. 1348), Canonist, 78, 83–83 Glossa ordinaria, 62, 74, 90, 125, 127 Gratian, Canonist, 56–65, 69–70, 80–83, 87, 90, 119, 125–127, 136, 150 Gregory I, Pope (590–604), 40, 87 Gregory IX, Pope (1127–1241), 74, 130

Index  207

Gregory VII, Pope (1073–1085), 36–43 Gregory of Nazianzus (d. 389), 9 Gregory of Nyssa (d. ca. 395), 9 Henry IV (d. 1106), Holy Roman Emperor, 37, 40 Henry V (d. 1125), Holy Roman Emperor, 37, 52 Heresy, 9–10, 13, 45, 58, 63, 89, 118, 128–135 Hildebrand see Gregory VII, Pope Henry of Susa / Hostiensis (d. 1271): Canonist, 78, 81–82, 90, 114, 127, 151–152 Hugo da Porta Ravennate, Four Doctors, 54, 79 Huguccio (d. 1210), Canonist, 61–63, 125 Humbert of Moyenmoutier (d. 1061), Cardinal of Silva Candida, 36, 41 Impediments to marriage, 124, 136–138, 140–143 In facie ecclesie, 141 Infamia, 108, 148 Innocent I, Pope (401–417), 23 Innocent II, Pope (1130–1143), 69, 76 Innocent III, Pope (1198–1216), 73, 111, 114, 128, 138, 152 Innocent IV, Pope (1243–1254), 74–78, 82, 94, 107, 108, 111, 112, 127, 133, 135, 151 Inquisitio, 108, 114–116, 129–130 Inquisitio hereticae pravitatis (heresy trials), 131–132 Institutes, Corpus iuris civilis, 52–53, 57, 96 Investiture Controversy, 36–37, 69 Irnerius (d. ca. 1125), 52–54, 79 Isidore of Seville (d. 636), 31, 90, 106 Iudicia Theodori, 85 Iurisperitus, 61, 101–102 Ius commune, 91–96, 149, 154–155 Ius gentium, 57, 155 Ivo of Chartres (d. 1115), Bishop, 44–45, 47–48, 56, 86–87, 146–147 Jacobus de Porta Ravennate, Four Doctors, 54, 79 Jacques Fournier (d. 1342), Bishop of Pamiers / Pope Benedict XII (1334–1342), 133 Jerome, 9, 58 Jews, 8, 16, 22, 124–128, 131 Johannes Teutonicus (d. 1245), Canonist, 62, 73, 76

John of Paris (d. 1306), Theologian, 152 John of Tynemouth (fl. mid-14th century), 125 Justinian (527–565), Byzantine Emperor, 14, 48, 51–53, 79, 80, 82, 96, 97, 106, 118 Lectura sive apparatus super quinque libris decretalium, Hostiensis, 78 Leges Henrici Primi, 95 Libelli de lite, 41–42 Libellus inscriptionis, 108, 109 Louis the Pious (d. 840), Emperor of the Franks, 27, 30 Lucius III, Pope (1181–1185), 71, 112, 128 Martinus Gosia, Four Doctors, 54, 79 Modestinus, 124 Monastic Rules, 18, 27, 83, 85 Muslims, 30, 124, 126–128, 131 Natural Law, 9, 57, 63, 88–90, 107, 116, 127, 155 Novellae, Corpus iuris civilis, 14, 52–53, 74 Novissimae, 74 Nicholas Eymerich (d. 1339), Dominican inquisitor, 131 Nicolaitism, 36, 42 Nicholas II, Pope (1059–1061), 37 Notary, 73, 102, 110, 132, 134 Officialis (Officiality, Official), 101–103 ordo iuris (principle of due process) / ordo iudiciarius / ordo iudiciorum, 106–117, 135 Palea / Paleae, 57, 69 Papal legate, 68, 78, 132 Paris, schools of, 54–56, 60–62, 118–119 Paschal II, Pope (1099–1118), 37, 68 Pastor, Hermas, 8–9 Paul, Apostle, 8, 10 Penance, 9, 12, 24–26, 29, 32–34, 41–43, 84–87 Penitential handbooks / manuals, 24–26, 34, 84–87 Per notorium, 112–116 Peter Abelard (d. 1142), 55, 87–88, 128 Peter the Chanter (d. 1197), Theologian, 86–87 Peter Lombard (d. 1160), Theologian, 89, 136 Philip of Beaumanoir (d. 1296), French jurist, 97–99, 146, 150 Poena talionis, 108

208  Index

Poor relief, 145, 150–151 Prescription, 64–65, 94, 120 Private ownership of property, 149–150 Privilege of Mammolo, 37 Procedural manuals: Directorium inquisitiorum, Nicholas Eymerich, 131; De inquisitione hereticorum, 131; Ordo Bambergensis, 118–119; Ordo iudiciarius, Tancred of Bologna, 96–98; Ordo processus narbonensis, 131; Practica inquistionis heretice pravitatis, Bernard Gui, 131; ‘Tractaturi’, 118–119; Ulpianus De Edendo, 118–119 Procurator (proctor), 81, 102, 104, 110–111, 120, 146–147, 153–154 Quod omnes tangit (“What touches all should be approved by all”), 153–154 Raptus, 143–144 Raymond of Penyafort (d. 1275), Friar, 62, 74; Summa de matrimonio, 136–138, 142–143 Referendarii signaturae / Signatura iustitiae, 104 Regino of Prüm (d. 915), Abbot, 25, 33–34 Responsa / responsiones (papal responses), 66, 72, 83 Rhineland, School of, 60, 62 Rolandus, Canonist (fl. mid-12th century), 60, 62–64 Rescripta / rescriptae, 66, 72, 74, 83 Rufinus, Canonist (fl. mid-12th century), 61, 63–64, 90 Simon of Bisignano, Canonist (fl. late-12th century), 63–64 Simon of Southwell, Canonists (fl. early-13th century), 125 Simony, 36–37, 40–41, 45–46, 58, 63, 69, 80, 89, 105, 128 Siricius, Pope (384–399), 12, 23 Speculum iudiciale, William Durand, 78–79, 94, 113–115, 118 Stephen IX, Pope (1057–1058), 36 Stephen of Tournai (d. 1203), Canonist, 61, 64–65, 107 Summa: Summa Animal est substantia / Summa Bambergensis, 61; Summa aurea, Hostiensis, 78; Summa Decretorum, Simon of Bisignano, 63–64; Summa Decretorum, Huguccio, 61–63, 125; Summa

Decretorum, Rolandus, 60, 63–64, 90; Summa Decretorum, Rufinus, 61, 63–64; Summa Decretorum, Stephen of Tournai, 61, 64–65, 107; Summa de matrimonio, Raymond of Penyafort, 136–138; Summa Monacensis / ‘Imperatorie maiestati’, 61; Summa Parisiensis, 61, 63–64; Summa ‘Permissio quaedam’, 127; Summa super titulis Decretalium, Geoffrey of Trani, 77–78, 81; Summa ‘Tractaturus magister Gratianus’, 61 Tancred of Bologna (d. ca. 1230/1236), Canonist, 74, 80, 96–98, 108, 114, 118 Tempus gratiae sive indulgentiae / Grace period, 132 Ten Commandments, 88–89 Theodosius II (d. 450), Byzantine Emperor, 13 Theological Works: Collationes de decem praeceptis / Collations on the Ten Commandments, St. Bonaventure, 88–89; De Reductione Artium ad Theologiam / On the Reduction of the Arts to Theology, St. Bonaventure, 88–89; Sententiae, Peter Lombard, 89, 136; Sic et Non, Peter Abelard, 55, 87–88; Summa de sacramentis et animae conciliis, Peter the Chanter, 86–87; Summa Theologiae, St. Thomas Aquinas, 89 St. Thomas Aquinas (d. 1274), Theologian, 89 Thomas Becket (d. 1170), Archbishop of Canterbury, 61, 95 Tractatus de legibus et consuetudinibus regni Anglie / “The Treatise on the Laws and Customs of the Kingdom of England”, Ranulf de Glanville, 95, 150 Unam sanctam, Pope Boniface VIII, 127 Urban II, Pope (1088–1099), 37, 67–69, 76 Usury, 29, 89, 116, 123, 125–126, 148, 151, 163 Utrumque ius, 14 Vergentis in senium, Pope Innocent III, 128–129 Völkerrecht, 20–21 Walter of Coutances (d. 1207), Archbishop, 76–77 Walter of Thérouanne (fl. early-12th century), Archdeacon, 48–49

TABLE OF CITATIONS IN SCRIPTURE

Gen. 3:9–12  107 18:20–21 108n19

Galatians 4:1–3  55 5:16–21 15n26

Lev. 19:17  112n36

Matt 7:12  90 18:15–17 112n36 18:16 110n26

Deut. 19:15  107, 110n26 I Corinthians 7:1–9  15n26 7:26–36 15n26 II Corinthians 13:1  110n26 Ephesians 5:3–4  15n26

Acts 8:9–24  36 Revelation 2:6  42 2:14–15 42

TABLE OF CITATIONS IN SELECTED LEGAL COLLECTIONS

Burchard of Worms, Decretum 7.28 138n68 Anselm of Lucca, Collectio canonum 13.12–29 45n17 13.2–3, 9–10, 12, 21  45n18 Ivo of Chartres, Decretum 6.134 88n16 10.73–74, 80  45n20 Panormia 3.49 88n16 3.50 88n16 3.59 88n16 3.84 87n13 3.85–92 88n17 3.101  88n16, 88n17 3.102 88n16 3.104 88n16 3.105 88n17 3.107  88n16, 87n14 3.133 88n17 3.135 88n17 3.142 87n15 8.2, 26  45n20

Corpus iuris canonici Gratian, Decretum D.1 d.a.c.1  57n20, 90n26 D.1 c.1  57n20, 82, 90n26 D.1 d.p.c.1  57n20 D.1 c.5  91n31 D.3 d.p.c.3  124n4 D.4 d.p.c.3  57n21, 63n47 D.8 d.p.c.1  90n27 D.8 c.2  90n27 D.19 c.1  81 D.45 c.3–c.5  125n8 D.50 c.25  63n45, 63n46 D.50 c.38  126n13 D.54 c.13–c.15  125n9 D.56 c.10  126n13 C.1 q.3 c.8  82 C.2 q.1 d.p.c14, d.p.c.17 112n37 C.2 q.2 c.2  82 C.2 q.6 c.40  115n48 C.2 q.7 c.24–c.25  125n9 C.3 q.6 c.10  115n48 C.11 q.3  97n55 C.11 q.3 c.24  127n16 C.12 q.1 c.2  81

Table of Citations in Selected Legal collections  211

C.12 q.2 c.23, c.26–c.31 150n14 C.16 q.3 c.6  65n50, 169 C.17 q.4 d.p.c.30, c.31, d.p.c.31 125n9 C.20 q.1 c.1  137n61 C.22 q.5 c.15  137n61 C.23 q.4 d.p.c.31  87, 87n12 C.23 q.5 c.19  82 C.23 q.8 125,   126n13 C.23 q.8 c.11  125, 127, 127n16 C.27 q.2 d.p.c.34, c.35–c.38 136n59 C.27 q.2 d.p.c.45  136n59 C.28 q.1 c.10–c.14  125n9 C.28 q.1 c.13  127n16 C.28 q.1. c.14  127n16 C.29 q.1 d.a.c.1  58n23 C.30 q.2 d.a.c.1  137n61 C.31 q.1 c.12  82 C.32 q.5 c.17  81 De pen. C.33 q.5 c.2  81 De cons. D.3 c.1  149n7 Gregory IX, Liber extra (X) 1.2.2 124n5 1.2.8  151n16, 152n17 1.2.13 124n6 1.3.21 152n18 1.4.11 91n30 2.9.1 98n58 2.20.37 111n28 2.22 111n29 2.22.10 111n31 2.22.15 111n32 3.2.8 113n38 3.18.4 94n41 3.30.19 (I Comp. 3.26.23) 87n12 3.49.5–6 98n59 3.50.5 98n59 3.50.9 98n59

4.1.29 140n76 4.4.3 135n55 4.8.1 (1 Comp. 4.8.1)  81n45, 81n50, 81n52, 82n54, 82n58, 82n59, 83n60 4.8.2 (1 Comp. 4.8.2)  81n46, 81n51, 82n53, 82n55, 82n56 4.13 137n64 4.13.2 140n76 5.1.15 115n48 5.1.24  114n45, 129n28, 134n50 5.6 (I Comp. 5.5)  126n14 5.6.15 126n11 5.6.16 126n11 5.7.9 (I Comp. 5.6.5)  129n25 5.7.10 (III Comp. 3.4.1) 129n26 5.9.4 126n11 5.19.18 126n11 5.37.6 98n61 5.33.27 98n62 Boniface VIII, Liber sextus (VI) 5.1.1 132n41 5.1.2 132n41 5.2.8 135n51 5.5.1 126n12 5.2.16–17 130n34 Constitutiones Clementinae (Clem.) 2.1.2 115 2.11.2 116 5.3.1–2 130n34 5.11.2 116 Extravagantes communes (Extrav. comm.) 1.8.1. 127n19 Codex Theodosianus 1.27.1–2 10n5 16.1.2.1 14n19

212  Table of Citations in Selected Legal collections

16.1.4 14n20 16.2.2 13n14 16.2.4 13n16 16.2.7 13n14 16.2.10 13n14 16.2.12 13n15 16.2.14 13n14 16.2.23 13n15 16.2.41 13n15 16.5 13n17 16.6 13n13 16.7 13n13 16.10 13n18 16.11 13n15 Corpus iuris civilis Institutes (Inst.) 1.9.1 58n23 Digest (Dig.) 1.1.10.pr.  63n44, 63n46 1.3.7 124n4 2.14.1.2 58n23 3.3.1 81 9.2.45.pr 82 9.2.45.4 82 20.1.6 82 41.2.22 153n21 46.4.6 82 Codex (Cod.) 1.14.1 82 1.14.7 124n5

2.4.3 82 4.66.2 94n41 5.9.6 93 Novellae (Nov.) 7.3.2 94n41 120.8 94n41 Beaumanoir Ch. 2 §91 97n55 §93 98n57 §96 98n58 Ch.11 §317 150n11 §333 150n11 §340 98n59 §347 98n63 §350 98n60 §352 98n60 §353 98n61 §354 98n61 §355 98n61 §357 97n56 §359 97n56 Ch. 12 §427–428 150n11