Papal Jurisprudence, 385–1234: Social Origins and Medieval Reception of Canon Law [New ed.] 9781108473002, 9781108595292, 2021049608, 2021049609, 1108473008

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Papal Jurisprudence, 385–1234

Why did bishops turn to the papacy for advice in late Antiquity? And what does the reception of these decretals reveal about the legal and religious culture of the mid-thirteenth century? This interpretative volume seeks to explain the first decretal age of late antiquity, placing the increased demand for papal jurisprudence – long before it exerted its influence through religious fear – within its social broad context. D. L. d’Avray then traces the reception of this jurisprudence through to the mid-thirteenth century, and the post-Gratian decretal age. Along the way he explores the role of Charlemagne and ‘Pseudo-Isidore’, which included many genuine early decretals alongside forged ones. Similarities between the Latin world c. 400 and c. 1200 thus help explain parallels between the two decretal ages. This book also analyses decretals from both ages in chapters on pagan marriages, clerics in minor orders, and episcopal elections. For both ages the relation between canon law and other religious genres is elucidated, demonstrating many fascinating parallels and connections. D. L. d’Avray is Professor Emeritus of History at University College London. He has published widely on medieval preaching, death and kingship, marriage, rationalities, and the papacy. His previous publications include the companion volume of texts, Papal Jurisprudence c. 400: Sources of the Canon Law Tradition (Cambridge University Press, 2019); Papacy, Monarchy and Marriage, 860–1600 (Cambridge University Press, 2015); and Dissolving Royal Marriages: A Documentary History, 860–1600 (Cambridge University Press, 2014). He has been Fellow of the British Academy since 2005 and Corresponding Fellow of the Medieval Academy of America since 2016.

Papal Jurisprudence, 385–1234 Social Origins and Medieval Reception of Canon Law D. L. d’Avray University College London

University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 103 Penang Road, #05–06/07, Visioncrest Commercial, Singapore 238467 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108473002 DOI: 10.1017/9781108595292 © D. L. d’Avray 2022 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2022 A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data Names: D’Avray, D. L., author. Title: Papal jurisprudence, 385–1234 : social origins and Medieval reception of Canon Law / D. L. d’Avray, University College London. Description: Cambridge, United Kingdom ; New York, NY : Cambridge University Press, 2021. | Includes bibliographical references and index. Identifiers: LCCN 2021049608 (print) | LCCN 2021049609 (ebook) | ISBN 9781108473002 (hardback) | ISBN 9781108595292 (ebook) Subjects: LCSH: Canon law – History – Middle Ages, 600–1500. | Canon law – Reception. Classification: LCC KBR190.D38 A373 2021 (print) | LCC KBR190.D38 (ebook) | DDC 262.9/2–dc23/eng/20211223 LC record available at https://lccn.loc.gov/2021049608 LC ebook record available at https://lccn.loc.gov/2021049609 ISBN 978-1-108-47300-2 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

To J.C.W.

Contents

Acknowledgements List of Abbreviations Sigla

page ix x xi

Introduction 1 Transformations and Long-Term Explanations

1 3

2 The Christian Roman Empire, c. 400

21

3 c. 400: Practical Complexities and Uncertainties

35

4 c. 400: Uncertainty about Grace

47

5 Papal Rulings and Ritual

56

6 Hierarchies

65

7 Clerical Status and Monks

74

8 Returning Heretics

87

9 Pelagianism and the Papacy

96

10 Leo I

106

11 Post-Imperial Syntheses

120

12 Early Papal Laws in the Barbarian West

134

13 Carolingian Culture and Its Legacy

150

14 1050–1150

169

15 Theology and Law

189

16 c. 400 and c. 1200: Complexity, Conversion, and Bigamia

204

17 Clerics in Minor Orders

215

18 Choosing Bishops

228 vii

viii

Contents

Overall Conclusions

239

Appendix A Leo I Appendix B Gelasius I Appendix C Gloss II (Johannes Teutonicus and Bartholomaeus Brixiensis) on Gratian and the Liber Extra Appendix D Conceptual Sources Select Bibliography Index

242 267

273 300 302 313

Acknowledgements

I would like to thank the following who have helped me in various ways: Anonymous Cambridge University Press readers, Anna Abulafia, Julia Barrow, John Blair, Jane Burkowski, Gillian Clark, Simon Corcoran, Emily Corran, Wendy Davies, Anne Duggan, Geoff Dunn, Liz FriendSmith, Fiona Griffiths, Caroline Humfress, Wolfram Kinzig, Marcela Konanova, Conrad Leyser, Wolfgang Mueller, Ken Pennington (massive debt), Susan Reynolds, John Sabapathy, Benet Salway, Ben Savill, Julia Smith, Danica Summerlin, UCL students on the ‘Religions, Law and the Papacy’ and ‘Popes and Caliphs’ courses, Julia Walworth, Tessa Webber, Charles West, Chris Wickham, and Ian Wood.

ix

Abbreviations

Dionysiana

Friedberg, Corpus Gloss I Gloss II J3.

Justinian ODCC

PJc.400 PL

1

x

The second edition of the canon law collection by Dionysius Exiguus, and the only one with surviving papal decretals. E. [Aemilius] Friedberg, Corpus Iuris Canonici, 2 vols. (Leipzig, 1932). The ‘ordinary [i.e. standard] gloss’ on Gratian’s Decretum by Johannes Teutonicus. Bartholomaeus Brixiensis’s updated version of the ordinary gloss on Gratian’s Decretum. P. Jaffé, ed., Regesta Pontificum Romanorum, 3rd ed., i, ed. N. Herbers, M. Schütz, et al. (Göttingen, 2016). It will be followed by an = sign and the number of the second edition of Jaffé, as in J3.691=303. In the Appendices I give the numbers of all three Jaffé editions. Justinian, Corpus Iuris Civilis, Horace Cardon edition, 6 vols. (Lyons, 1604). F. L. Cross and E. A. Livingstone, eds., Oxford Dictionary of the Christian Church, 3rd ed., revised (Oxford, 2005). D. L. d’Avray, Papal Jurisprudence c. 400: Sources of the Canon Law Tradition (Cambridge, 2019).1 J. P. Migne, Patrologia Latina (using the online edition). (Note: when a Patrologia Latina volume’s reading is noted in the critical apparatus, the volume number follows immediately after PL to make a siglum, as in PL130.)

Generally I give references to both the English and the Latin, except when quoting verbatim from the English, when I only give a page reference to the Latin also when the reader might want to form an independent view.

Sigla

Db Edn R1478 S1471 V1 V2 VTeut

MS Vatican City, Biblioteca Apostolica Vaticana Vat. 5845 Rome, 1582 edition of Gratian with ordinary gloss Rome, 1478 edition of Gratian with ordinary gloss Strasbourg, 1471 edition of Gratian with ordinary gloss MS Vatican City, Biblioteca Apostolica Vaticana Lat. 626 MS Vatican City, Biblioteca Apostolica Vaticana Vat. 1369 MS Vatican City, Biblioteca Apostolica Vaticana Vat. 1367

Lat.

Pal. Lat. Lat.

xi

Introduction

The aim of this book is to link up the two ages of papal decretals, c. 400 and c. 1200, by looking at the causes and effects of the documents edited and translated in Papal Jurisprudence c. 400: Sources of the Canon Law Tradition (Cambridge, 2019) (henceforth PJc.400).1 First the causes: in late Antiquity, why were papal rulings requested in the first place? Then the effects: the continuation by later bishops of Rome, above all Leo I and Gelasius I, of the pattern set in the first fifty years of papal jurisprudence; the incorporation in canon law collections of those early rulings; and their subsequent reception up to the mid-thirteenth century. The book analyses the parallels and connections between the two decretal ages. The first volume was designed to give a secure text-critical base to interpretation. Textual criticism matters.2 The accompanying translations furthermore made the primary texts available even to (intellectually ambitious) undergraduates; given the difficulty of the language, which might flummox experienced medievalists and even classicists who haven’t worked on late Latin, the translation also enables a fuller understanding of the original Latin. The present volume too contains translated and critically edited material. Extracts from Leo I and Gelasius I are translated with reference to a key manuscript (because the editions are old), and thirteenth-century glosses on early papal jurisprudence are both translated and edited in critical transcriptions from manuscripts. 1

2

It is only just that the first footnote should be a list of errata (too many). Incipits 138, 156, 157, 184, 185, 281, 282, 283: for ‘successorem’ read ‘decessorem’; 161 line 17 and 188 line 6: for 407 [ce] read 417; 30 line 14: for ‘possible’, read ‘possible to’; 77 line 11 up: after ‘lector’ add ‘or acolyte’; 80 line 17: for ‘therefore’ read ‘, from that point’; 92 line 19: for ‘lord’ read ‘Lord’; 196 line 7: for ‘baptized’ read ‘re-baptized’; 200 line 13: for ‘laying’ read ‘laying on’; 200 line 16: for ‘priest’ read ‘bishop’ [sacerdotis]; 204 line 11: for ‘Peter’ read ‘Philip’; 254 note 354: ‘praedicti’ probably refers to Prosper and Hilary; 275 line 6: after ‘apostolic’ add ‘see’. One example: the interesting ritual called consignatio, half exorcism, half penance, ceased to be understood in the course of transmission, as the word becomes assignatio. See PJc.400, 63 note 52 and 64.

1

2

Papal Jurisprudence, 385–1234

The main task is interpretative, however, for the book attempts a kind of long-range history which is neither mainly about continuities (‘growth of an idea’) nor about disjunctions (‘context’ as methodological master-key), but about the expansion of meaning in the course of reception, and about a kind of social soil in which papal jurisprudence flourished in periods widely separated in time. Within the overall interpretation – twofold: origins and reception – the individual chapters also attempt to contribute to period-specific problems, such as the Pelagian controversy, the varieties of religious law in the Carolingian Renaissance, and the origins of the religious revolution of the eleventh century. Specialists may only be interested in parts of the landscape, but I hope some will be prepared to fly longhaul low to the ground, so that late Roman historians may appreciate the long-term outcomes of developments in their period, and medieval historians the relevance to their work of late Antiquity. I propose the following theses: • both the first (late Antique) and the second (twelfth–thirteenth century) decretal ages were demand-driven responses to social complexities and uncertainties; • in both ages, canon law came to be separated out from religious thought about morals or the divinity – with Dionysius Exiguus, c. 500, and Bernard of Pavia, c. 1200, demarcating the boundaries of the legal system; • the history of canon law collections, notably that of Dionysius, connects the two decretal ages: decretals from the first age were transmitted throughout the intermediate period; • in the eleventh century, the mismatch between the contents of ancient papal law and actual social practice ultimately resulting from the ruralization of the clergy was a cause of the ‘papal turn’; • the quantity of late Antique papal decretals in canon law collections contained tipped the balance in the twelfth century towards a papally dominated canon law, rather than one controlled by legal specialists alone, as in Islam; • and, finally, the meaning of papal responses from the first decretal age (fourth and fifth century) was still expanding in the second decretal age (twelfth and thirteenth century), as is evident in glosses that discuss the two in conjunction. Holding these theses together is the overarching argument that it pays to study the first and second decretal ages within a common frame.

1

Transformations and Long-Term Explanations

The Transformation of the Roman World: Gibbon Many historians are as comfortable on the borders between periods as within them.1 The transformation of the Roman world into the ‘Middle Ages’ is a natural paradigm for this way of thinking about history, and also the setting of the documents at the centre of this book. Edward Gibbon’s Decline and Fall of the Roman Empire was a model if a hard act to follow. His close narrative of events still stands up to scrutiny, but he could also take a big-picture view of both sides of the watershed. Between the reigns of the Roman emperor Decius (d. 251) and the younger Theodosius (d. 450), he writes, the seat of government had been transported from Rome to a new city on the banks of the Thracian Bosphorus; . . . The throne of the persecuting Decius was filled by a succession of Christian and orthodox princes, who had extirpated the fabulous gods of antiquity: and the public devotion of the age was impatient to exalt the saints and martyrs of the catholic church on the altars of Diana and Hercules. The union of the Roman empire was dissolved; its genius was humbled in the dust; and armies of unknown barbarians, issuing from the frozen regions of the North, had established their victorious reign over the fairest provinces of Europe and Africa.2

The Transformation of the Roman World: Peter Brown The character and causes of the transformation have been endlessly discussed since Gibbon, but in the later twentieth and early twentyfirst centuries the oeuvre of Peter Brown set a new tone. His focus has been more on culture and religion than on politics or on the economy as normally understood, though he sees forms of thought as part of social

1 2

A subsidiary purpose of this chapter is to give background on late Antiquity to readers more familiar with the Middle Ages (1000–1250), and vice versa. E. Gibbon, Decline and Fall of the Roman Empire, chapter xxxiii, 3 (London, 1993), 392.

3

4

Papal Jurisprudence, 385–1234

and economic change. Brown’s views on social and economic change in the older sense stayed within the previous conventional range: without the pump of taxation for the army and the cities, ‘the Roman-style economy collapsed . . . From a.d. 400 onwards, diversity, not unity, was the hallmark of an age without empire.’3 The keyword ‘diversity’ was however the cue for his more distinctive picture of the Western Christendom which emerged from late Antiquity as being ‘made up of interlocking modules . . . not like a great tent, upheld by a single tentpole fixed in Rome or, more widely, in a still “Roman” Mediterranean’.4 Brown also shifted attention towards a transformation of attitudes to death. This marked the medieval period off from the Roman world. In a late work Brown turns to ‘the relation between society and the religious imagination, as it played upon the theme of the afterlife’.5 He traces the transformation from an afterlife enjoyed by an elite in the stars, ‘the mystique of the ancient cosmos’, to ‘a Christian model of the universe dominated by the notion of sin, punishment and reward’.6 These developments are uncoupled from the external history of the empire and its decline and fall: ‘some of the most decisive changes in the Christian imagination cannot be linked in any direct way to the brisk pace of history as it is conventionally related in textbooks of the history of the fall of Rome and the beginning of the Middle Ages’.7 ‘No sense of growing insecurity in the Roman Empire of the late fourth and early fifth centuries can, of itself, explain the lucubrations of Augustine on the tenacity of sin. No shock of barbarian invasion can account for the emergence of a fear of hell and the demonic forces that lie in wait for the soul at the moment of death. These dark imaginings defy our attempts to link them to known political and social crises.’8 Again, ‘no brutal rupture between a Roman order and a new, “barbarian” age . . . can explain the differences between an Augustine and a Gregory of Tours’.9 By the mid-seventh century we see through Brown’s eyes a world where monasteries prayed for their founders’ souls, and prayers for the dead and donations to help them were normal, where purgation between death and heaven was envisaged, and the relation of the living and the dead was a deep preoccupation, and a source of visions. That new world was the true end of the ancient

3 4 5 6

P. Brown, The Rise of Western Christendom: Triumph and Diversity, 200–1000 a.d., 2nd ed. (Malden, MA, 2003), 12–13. Ibid., 16. P. Brown, The Ransom of the Soul: Afterlife and Wealth in Early Western Christianity (Cambridge, MA, 2015), xii. 7 8 9 Ibid., 205–6. Ibid., xiv. Ibid., xiv–xv. Ibid., xv.

Transformations and Long-Term Explanations

5

world.10 Attitudes to death are not so central in earlier works by Peter Brown, but forms of religious thought and practice in a broad cultural context have tended to dominate all his oeuvre. So sharp a turn away from conventional analyses of the end of empire inevitably elicited reactions. Two implicit reactions to a Brownian concentration on culture and religion represent two different kinds of interpretation: explanatory political narratives underpinned by a model of what one might call ‘empire theory’, and archaeology-based social and economic history. These two approaches (of course there are others) are compatible with each other and with Peter Brown’s, even complementary, but they are pictures from different angles in different colours. Military Assassination Peter Heather’s analytical narratives reasserted the ‘brisk pace of history’, and put the ‘shock of barbarian invasion’ back in the centre of the story, explaining its force by the influence on barbarian social, economic, and military culture of their neighbour, the Roman Empire. He suggests that there is an inbuilt tendency for the kind of dominance exercised by empires to generate an inverse reaction whereby the dominated, in the end, are able to throw off their chains. The Roman Empire had sown the seeds of its own destruction . . . not because of internal weaknesses that had evolved over the centuries, nor because of new ones evolved, but as a consequence of its relationship with the Germanic world . . . The west Roman state fell not because of the weight of its own ‘stupendous fabric’, but because its Germanic neighbours had responded to its power in ways that the Romans could never have foreseen . . . [B]y virtue of its unbounded aggression, Roman imperialism was ultimately responsible for its own destruction.11

How this happened is explained not only by this general model but also by a chronological narrative calculated to bring out the sequence of causation in detail. Standard of Living The effect of the empire’s destruction on standards of living is the focus of Brian Ward-Perkins’ The Fall of Rome and the End of Civilisation (New York, 2005), which looks like a conscious attempt to bring Brown’s ‘Late Antiquity’ down to earth – even in a literal sense by using 10 11

Ibid., 211 and passim. P. Heather, The Fall of the Roman Empire: A New History (London, 2005), 459.

6

Papal Jurisprudence, 385–1234

archaeological evidence to show the scale of the material catastrophe. Again: ‘the fifth century witnessed a profound military and political crisis, caused by the violent seizure of power and much wealth by the barbarian invaders . . . [T]he post-Roman centuries saw a dramatic decline in economic sophistication and prosperity, with an impact on the whole of society, from agricultural production to high culture, and from peasants to kings.’12 Christianity as a Social and Economic Fact Drawing together in a convincing short synthesis the interpretations of Ward-Perkins, Heather, Brown and others, Ian Wood has proposed that the fundamental change was Christianity as an economic, social, and demographic as well as a religious phenomenon.13 Note that his argument, if correct, dispenses the historian from any need to put ‘windows into people’s souls’ by speculating about the sincerity of conversion to Christianity in an age when it was evolving from a sect which most members chose to a Church into which they were born.14 The demographics of the clergy and the transfer of property are the facts on the ground, whatever was going on in people’s minds. For all their differences in emphasis and approach, all these historians are focussing on transformation: what made the early Middle Ages different from the Roman World or, in the historiographical wake of Peter Brown, from late Antiquity? Different historians give different answers, not necessarily incompatible. For Peter Brown, the Christianity of the early Middle Ages was different above all because it was a whole series of ‘micro-Christendoms’, each with its own characteristics. He has attempted ‘to delineate the very different forms which Christianity took in the regions in which it gained a foothold’.15 The social and economic contrasts between regions come out clearly from the systematic comparisons in Chris Wickham’s massive synthesis on the early Middle Ages.16 Famously, Henri Pirenne found the key to the character of the early Middle Ages in the breakdown of trade, towns, taxation, and lay education after the seventh century, as a consequence of Islamic 12 13 14

15 16

Ibid., 183. I. Wood, The Transformation of the Roman West (Leeds, 2018), 119–20. See the nuanced account in A. Louth, ‘Fiunt, non nascuntur Christiani: Conversion, Community and Christian Identity in Late Antiquity’, in C. Harrison, C. Humfress, and I. Sandwell, Being Christian in Late Antiquity: a Festschrift for Gillian Clark (Oxford, 2014), 109–19. Brown, Rise of Western Christendom, 488. C. J. Wickham, Framing the Early Middle Ages: Europe and the Mediterranean, 400–800 (Oxford, 2005).

Transformations and Long-Term Explanations

7

conquests.17 Julia Smith draws up a convincing shortlist of characteristic features of what we call the early Middle Ages: generally low population levels despite spasmodic growth; distinct but overlapping local economies combining low-output peasant agriculture and variable levels of urban activity with lavish conspicuous consumption by the elite; strongly gendered hierarchies of domination that commonly conflated the familial and official; the heavy presence of the past as a source of authenticity, legimization, and meaning; polities incapable of harnassing sufficient economic, political, and cultural resources to overcome their innate tendency to collapse under the weight of their own success . . .

She adds Christianity as a transmitter of much more of Roman culture than its own creed and the ‘critical diagnostic: a cluster of dominant ideologies in which Rome held a central inspirational place but no ascendant political role as it once had had in Antiquity and would again, differently conceived, under papal guidance’.18 So Smith too sees similarities between periods on either side of what we call the ‘early Middle Ages’. If we shift our sights to near the other end of the period covered by this study we find exactly the same historiographical tendency to focus on transformation as in the historiography of late Antiquity. This time the transformation is placed approximately in the eleventh century.19 As with the historiography of late Antiquity, there is a wide range of approaches. The ‘Making of the Middle Ages’ The nearest medieval counterpart to Peter Brown’s approach is Richard Southern’s; indeed, in the Oxford in which Peter Brown was trained, initially feeling himself to be a medievalist, Southern was the most famous 17

18 19

H. Pirenne, Mahomet et Charlemagne (Paris, 1937). Pirenne would probably be flattered to know that his thesis is still thought worth attacking in a premier journal: B. Effros, ‘The Enduring Attraction of the Pirenne Thesis’, Speculum 92 (2017), 184–208. Effros thinks he is colonialist and orientalist. Her own interpretation is that – it is complicated, the ‘transformation of the Roman world was far more variable and complex than Pirenne envisioned’ (188). J. M. Smith, Europe after Rome: a New Cultural History 500–1000 (Oxford, 2005), 296. Important exceptions are C. West, Reframing the Feudal Revolution: Political and Social Transformation between Marne and Moselle, c. 800–c. 1100 (Cambridge, 2013), which sees formalized twelfth-century structures as developing out of Carolingian reforms, and, on religious ‘reform’, S. Hamilton, Church and People in the Medieval West (Edinburgh, 2013), 105: ‘there is little new about the ideals taken up by the eleventh-century reformers . . . [T]he project had begun with the Carolingians, and their text and laws provided the foundation for the reforming aspirations of their tenth-, eleventh- and twelfth-century successors.’ The present study looks at even – much – earlier ‘texts and laws’, the relevance of which she is aware of (ibid., 64).

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medieval historian, and probably exercised an influence if only by osmosis, since Brown studied as an young student the central medieval period which Southern conveyed to captivated readers in his celebrated Making of the Middle Ages; it was published in 1953, the year when Brown started his undergraduate degree.20 In a later book Southern gave a succinct summary of the transformation he saw in the decades following c. 1050: The social and religious order . . . showed little sign of breaking up in the year 1050. Whether we look at western Europe’s general economic condition, its religious ideals, its forms of government, or its ritual processes, there is little to suggest that a great change was at hand. And yet within the next sixty or seventy years the outlook had changed in almost every respect. The secular ruler had been demoted from his position of quasi-sacerdotal splendour, the pope had assumed a new power of intervention and direction in both spiritual and secular affairs, the Benedictine Rule had lost its monopoly in the religious life, an entirely new impulse had been given to law and theology, and several important steps had been taken towards understanding and even controlling the physical world . . . That all this should have happened in so short a time is the most remarkable fact in medieval history . . . At present we understand very little of the causes of rapid change on this scale, but it is possible that the most important factor was a great acceleration in economic development in the late eleventh and early twelfth centuries.21

Economy and Religion The acceleration in economic development is part of the standard narrative of medieval history. Long ago, Henri Pirenne found seeds of what would become a capitalist economy in the enterprise of men like Godric of Finchale (before he gave it all up and became a hermit).22 A generation after Pirenne the formula of a ‘Commercial Revolution’ was coined by Robert Lopez.23 There were disagreements, notably about the importance in the process of population growth,24 but few doubted the scale of the economic change. 20 21 22 23 24

P. Brown, ‘SO Debate: The World of Late Antiquity Revisited’, Symbolae Osloenses: Norwegian Journal of Greek and Latin Studies 72 (1997), 5–30, at 10. R. Southern, Western Society and the Church in the Middle Ages (London, 1970), 34. See for example H. Pirenne, ‘The Stages in the Social History of Capitalism’, American Historical Review 19 (1914), 494–515; 503–4 for Godric of Finchale. R. S. Lopez, The Commercial Revolution of the Middle Ages, 950–1350 (Englewood Cliffs, 1971). G. Ohlin, ‘No Safety in Numbers: Some Pitfalls in Historical Statistics’, in H. Rosovsky (ed.), Industrialisation in Two Systems: Essays in Honor of Alexander Gershenkron (New York, 1966), 68–90, at 81–4 showed the flimsy evidential basis of the folk theory that population growth drove the expansion of the European economy. The folk theory remains intuitively plausible, given urbanization etc.

Transformations and Long-Term Explanations

9

Economic development and religious transformation were linked in a highly original way in Alexander Murray’s Reason and Society in the Middle Ages (Oxford, 1978). One of Murray’s key arguments turned on the speeding up of social mobility. To simplify his interpretation: the rise of a money economy led to an increase in the use of cash to purchase church offices – the sin of simony – from powerful secular rulers. That eventually provoked a reaction which opened an opportunity – for men with an education in the burgeoning ‘schools’ of higher education. Criteria for promotion were needed, and academic achievement was an obvious asset, especially if it went with recommendations from highly regarded ‘masters’ of theology, specialists in ‘scholastic’ learning. This in turn encouraged the development of the schools into what we call universities. Thus economic transformation, Church reform and an intellectual revolution, the birth of scholasticism and canon law, were all linked together. A darker image of transformation in the eleventh and twelfth centuries was presented a generation later by R. I. Moore, who interpreted it as a seizure of power by educated clerics, whose arsenal included stigmatization and persecution of minorities.25 This is not the place to debate Moore’s controversial thesis, but it is worth pointing out the convergence from a completely different starting point towards a common thesis: that the medieval West was transformed in the century around 1100. It is also notable that both Murray and Moore integrate religious history closely and causally into social and economic history. The Year 1000 Moore’s interpretation partly overlaps with one proposed by historians (Georges Duby, Guy Bois) less concerned with religious change. Here the argument is that it was around the year 1000 that ancient slavery finally disappeared, to be replaced, perhaps after a short golden age of freedom, by peasant subjection in the form of legal obligations to lords, who ran the territory around their castles, up to the boundaries of the next lord’s lands.26 Primogeniture and younger sons are important in this interpretation too, but the latter are envisaged as knights without land, seeking an heiress to give them a household or a lord to employ them.27 These retinues of ‘young men’ (as unmarried knights of any age were called) 25 26 27

R. I. Moore, The First European Revolution c. 970–1215 (Oxford, 2000). G. Duby, ed., L’an mil (Paris, 1967); G. Bois, La mutation de l’an mil: Lormand, village mâconais, de l’Antiquité au féodalisme (Paris, 1989). A principal critic of the ‘year 1000’ thesis has been D. Barthélemy: see e.g. La mutation de l’an mil, a-t-elle eu lieu?: servage et chevalerie dans la France des Xe et XIe siècles (Paris, 1997).

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ravaged the lands of the neighbouring lords. The ‘peace of God’ movement was a reaction against the violence.28 The year 1000 is the watershed for some social and economic historians; for religious history, c. 1100 would be the watershed according to John van Engen. The contrasts he delineates are different from the ‘year 1000’ theories just discussed, but his view shares with theirs a conviction that a threshold was crossed between the early and the central Middle Ages.29 His broad and humane essay covers many ‘before and after’ contrasts, of which one may single out the following. The Christianity before c. 1100 was dominated by bishops, whereas afterwards they tended to get squeezed out by the papacy above them and the parish clergy below them in the hierarchy;30 the focus on ‘conversion’ in the early Middle Ages gave way to an ideal of ‘reform’ from c. 1100; and the Eucharist replaced baptism as the primary sacrament in the later period.31 Van Engen’s task was to make bold claims, and naturally they provoke some dissent.32 He and the other historians of historical transformations perform a service, however, in combatting the overspecialization which is a bane of the historical profession. The schema of a general rupture, if presented as a simplification open to correction, is one of the best ways of rescuing history from myopic specificity; but it is, however, not the only way, and at best it brings only two adjacent periods within a common frame. 28

29

30

31 32

This too has been attacked by Barthélemy, ‘La paix de dieu dans son contexte (989– 1041)’, Cahiers de civilisation médiévale 40 (1997), 3–35, especially 9–10, 15, 16, 17– 25, 35. J. van Engen, ‘Conclusion: Christendom, c. 1100’, in F. X. Noble and J. Smith, eds., The Cambridge History of Christianity, iii, Early Medieval Christianities, c. 600–c. 1100 (Cambridge, 2008), 625–43. Ibid., 630; ‘after the year 1100 bishops ceased to play the shaping role in Latin Christendom they had regularly exercised in early medieval Christian societies. This book has evoked a world largely without papacy or parish’ (631). Whether bishops were sidelined is highly debatable: note the argument by I. Forrest, Trustworthy Men: How Inequality and Faith Made the Medieval Church (Princeton, 2018) that bishops exercised a tightening control, especially over parish priests, by working with local peasant elites. Van Engen, ‘Conclusion’, 633. One example is his belief in the conservatism of early medieval religious attitudes: ‘Even the Carolingian reforms, crucial as they were for European history, advanced in a spirit of “correction”, going back to basics and setting things straight (which, like all such moves, if successful, turn innovative)’ (ibid., 634); but contrast W. Hartmann, Kirche und Kirchenrecht um 900: die Bedeutung der spätkarolingischen Zeit für Tradition und Innovation im kirchlichen Recht. Monumenta Germaniae Historica, Schriften 58 (Hanover, 2008), 6: ‘Jedenfalls widerspricht schon die Tatsache, das es überhaupt Neuerungen gab and dass die Zeitgenossen dies auch durchaus wahrgenommen haben, der verbreiteten Auffassung vom Rechtsverständnis des (früheren) Mittelalters, wonach man immer bestrebt gewesen sei, das gute alte Recht wiederherzustellen’ – even here, though, the divergence is mainly about emphasis.

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Longue durée Patterns That cannot be said of ‘long duration’ history, which usually cuts through more than two periods. Two generations ago Fernand Braudel argued for attention to very long-term patterns, ‘la longue durée’.33 Averil Cameron makes a powerful case for its relevance to the periods that concern us: The sense of the broad sweep, or longue durée, of history also lies behind a somewhat different approach . . . Rather than emphasizing the divisions and the breaks both the eastern and the western empires can be seen as belonging to the longer history of Europe and the Mediterranean. This kind of approach also has the advantage of taking our minds away for a while from the over-debated question of the end of classical antiquity and enabling us instead to look at issues like settlement, climate, exchange and political organisation over a much longer period . . . Viewed from this much broader perspective, while there were certainly substantial political changes at certain points (the ‘third-century crisis’, followed by the reforms of Diocletian, the fragmentation of Roman government in the west, the Arab invasions in the east), none of these in itself fundamentally changed the status quo.34

Longue durée history has been more praised than practised (though Braudel’s paradigm of Mediterranean history has had distinguished successors35), and, when practised, this has been predominantly in the field of social and economic history. There is indeed a case for more work on continuities in religious history in the West from late Antiquity onwards.36 Certain obvious themes present themselves: the community of the living and the dead, enduring structures of monastic history such as the preponderance of psalms in collective prayer, the influence of the Old Testament, recitation of psalms (from monastic office to books of hours), centrality of the Mass, communion at the point of death, fasting – the list could continue. It might be objected that longue durée history in the realm of ideas tends to pay too little attention to contexts and the different meanings they impart to apparently unchanging thought and practices, but it is possible to combine the study of continuity and contexts.37 33 34 35

36 37

F. Braudel, La Méditerranée et le monde méditerranéen à l’époque de Philippe II (Paris, 1949). A. Cameron, The Later Roman Empire: ad 284–430 (London, 1993), 192. P. Horden and N. Purcell, The Corrupting Sea: a Study of Mediterranean History (Oxford, 2000). Even if they are writing a history different from Braudel’s, it is hard to imagine their book without his. Similarly, A. Abulafia’s The Great Sea: a Human History of the Mediterranean (London, 2012) focusses more on change, no doubt in reaction to Braudel, Horden, and Purcell. Paradoxically, J. Le Goff, La naissance du Purgatoire (Paris, 1981), turns out to be in part an investigation of continuity, though his paradigm remains ‘transformation’. D. Armitage and J. Guldi, The History Manifesto (Cambridge, 2014).

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Pocock’s Schema Longue durée patterns and transformations are not the only ways out of the prison of periodization. A different ideal-type for history and time underlies a modern classic, J. G. A. Pocock’s The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, 1975). Pocock argued that a particular set of political ideas, the ideal of free independent republics, tends to flourish in a particular kind of social environment which can reappear at widely different times: classical Athens, Renaissance Florence, seventeenth-century England, eighteenth-century America. The social environment includes an arms-bearing citizenry. Note that this is reoccurrence rather than continuity or even influence. A certain kind of thinking does well in a certain kind of environment. The system of thought may hibernate or semi-hibernate then awake when the climate is favourable again. The schema works quite well for the history of papal jurisprudence. It will be argued that in the decades around 400 there was a social climate favourable to papal decretal-making, and that there was a similarly favourable climate in the decades around 1200. In 1200 the quantity of papal jurisprudence was much greater, obviously, but it was by no means trivial in late Antiquity. Erich Caspar used the phrase ‘age of the decretals’ for the early fifth century,38 with justification. The still unsurpassed repertory of canon law sources by Friedrich Maassen lists over 330 papal letters between Siricius (384–98) and Hormisdas (514–23),39 and an individual letter could generate multiple canons with lives of their own. Nobody would deny the qualitative significance of the legislation of Henry II of England in the twelfth century, though it is quantitatively insignificant compared say with eighteenth-century legislation. The second half of the thirteenth century is regarded as a period of great legislative productivity in England, but the quantities are modest compared with later periods.40 In some ways these two worlds, late Antiquity and the central Middle Ages, were more similar than either was to the period in between. In both, there was international trade, money taxation, flourishing cities, Christian societies both north and south of the Mediterranean, and 38 39 40

E. Caspar, ‘Dekretalenzeitalters’, in Geschichte des Papsttums, i (Tübingen, 1930), 343; cf. PJc.400, 17. F. Maassen, Geschichte der Quellen und der Literatur des canonischen Rechts im Abendlande (Gratz, 1870), 240–96. The leading specialist on medieval English law, when asked how many royal statutes were made in the thirteenth century, replied that ‘it all depends on your definition of a statute. A reasonable guestimate would I think be around 50’ (Paul Brand, personal communication).

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a shaky Christian empire. Perhaps more to the point, in both periods the complexity of multiple and fast-evolving religious systems, together with uncertainty about what was or was not essential to Christianity, created demand for papal decisions. Complexity and uncertainty are key elements for analysis. I will try to show that the multiple religious systems of late Antiquity could not easily manage their mutual interactions: an excess of complexity. As for uncertainties, their content deserves more attention. Except for well-studied high theological disputes, notably about the Trinity and Christ, many of the difficulties felt by late Antique bishops have been treated as trivial or left aside as if in a black box. The black box needs to be unpacked. ‘Conversation Threads’ over Time A further schema is the idea of a sequence of communications by texts and actions which has definite boundaries as it continues over long periods of time. It is not easy to find an existing a word or phrase for chains of meaningful actions and texts which have a continuous life, and yet evolve in successive environments (unlike the themes of history à la longue durée). For want of a better word I will use the term ‘conversation’, or, sometimes, ‘discussion string’, or ‘communication string’, or ‘thread’ for more specific topics – each of these phrases used in a metaphorical sense. I have on the whole avoided the use of ‘tradition’ because that tends to imply an absence of change or evolution. I think these concepts help to capture what Peter Brown does in his Ransom of the Soul, which ‘sees the formation of Christian views of the afterlife in terms of a perpetual argument among Christians themselves’.41 The ‘arguments’ can surely include meaningful actions.42 The present study deals with a different, thematically less tightly focussed sort of discussion: the variety of topics about which bishops (above all) asked the apostolic see for answers. 41

42

Ransom, x. This is different from the study of ‘unit-ideas’, as in A. Lovejoy, The Great Chain of Being: a Study of the History of an Idea (Harvard, 1936), because arguments evolve. History’s sister disciplines of Anthropology, Sociology, and Philosophy converged on an acceptance that social action is as much infused with thought as are texts, and that communications over time are carried on by both. Max Weber’s idea of ‘Verstehen’, understanding, made exactly this point almost a century ago: see D. L. d’Avray, Rationalities in History: a Weberian Essay in Comparison (Cambridge, 2010), 25, with further references. Clifford Geertz’s anthropology is based on the premise that understanding social action and practice means understanding the meanings they embody: see The Interpretation of Cultures (London, 1975), passim. Cf. also P. Winch, The Idea of a Social Science and Its Relation to Philosophy (London, 1958), J. R. Searle, Making the Social World (Oxford, 2010), and, for Niklas Luhmann, below, Appendix D: Conceptual Sources.

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The First Papal Jurisprudence and Its Reception over the Centuries The themes are those we meet in the subset of the earliest papal jurisprudence which became standard elements of the canon law tradition. The aim is to explain the origins of this jurisprudence and trace its influence and transmission: the chain of social communication from the fourth to the mid-thirteenth century. The history of the first papal jurisprudence’s subsequent reception is a part standing for a wider whole, a synecdoche, or rather a synecdoche within a synecdoche. Just as papal history in general can serve as a synecdoche for medieval European religious history, the reception of the first papal jurisprudence can serve as a synecdoche for papal history. Medieval papal history tout court is much too large a subject to tackle except at the level of survey and synthesis. On this level there are (for instance) good recent overviews in English by John Moorhead and Brett Edward Whalen, and in German by Thomas Frenz and Klaus Herbers,43 not to mention earlier surveys. Below the survey surface the bulk of bibliography prohibits any combination of comprehensiveness with long-term in-depth analysis. A bibliography published in 2010 just on thirteenth-century papal history ran to 721 pages (not counting the index etc.).44 A burst of recent collective volumes is only the most recent symptom of the extent and depth of interest in papal history.45 One can nonetheless capture the general trajectory of its evolution by looking at one strand woven in with many others. The hope is to do this by tracing the reception history of the first decretals. The decretals for the most part directly affected the clergy rather than the laity, because a bishop had real power over the clergy, who depended on him, and usually it was the bishop who asked for papal responses in the first place. Thus, the bishop had the motive and the power to implement the answers. The laity would be affected too, however, insofar as the 43

44 45

J. Moorhead, The Popes and the Church of Rome in Late Antiquity (London, 2015); B. E. Whalen, The Medieval Papacy (Basingstoke, 2014); T. Frenz, Das Papsttum im Mittelalter (Cologne, 2010); K. Herbers, Geschichte des Papsttums im Mittelalter (Darmstadt, 2012). A. Paravicini-Bagliani, Il papato nel secolo XIII: cent’anni di bibliografia 1875–2009 (Florence, 2010). E.g.: W. Hartmann and K. Herbers, Die Faszination der Papstgeschichte: neue Zugänge zum frühen und hohen Mittelalter (Cologne, 2008); J. Johrendt and H. Müller, Römisches Zentrum und kirchliche Peripherie: das universale Papsttum als Bezugspunkt der Kirchen von den Reformpäpsten bis zu Innozenz III (Berlin, 2008); J. Johrendt and H. Müller, Rom und die Regionen: Studien zur Homogenisierung der lateinischen Kirche im Hochmittelalter (Berlin, 2012); K. Herbers, F. López Alsina, and F. Engel, Das begrenzte Papsttum: Spielräume päpstilichen Handelns. Legaten – ‘delegierte Richter’ – Grenzen (Berlin, 2013); T. W. Smith (ed.), Authority and Power in the Medieval Church, c. 1000–c. 1500 (Turnhout, 2020).

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questions related to the rituals which were indeed administered by the clergy but which structured the religious lives of the laity. For example: the clergy administered baptism, but they did not baptize clergy. Whether baptism could be administered at times other than Easter and Pentecost was a matter for the whole community. By the end of the period studied in this book the clergy category had become enormous, because of the attractions of becoming a cleric in minor orders, with the legal exemptions and tax breaks that it entailed. A later chapter deals with the application to clerics in minor orders c. 1200 of papal jurisprudence from late Antiquity. In late Antiquity the starting point of the system of papal jurisprudence can be traced back to the late fourth century,46 when a hiatus in imperially directed conciliar activity in the Western half of the empire left a need or demand for a ‘helpdesk’, as it were. There was a demand for resolution of a host of uncertainties arising from the evolution of late Antique Christianity and coordination of the multiplicity of Christian subsystems which continued to evolve, creating new complexities as they interacted. Bishops far from Rome turned to the apostolic see to get the kind of guidelines previously produced by councils. The Roman imperial rescript system provided a model. To understand the origins of papal law we need to look at the complex interactions of clerical, ritual, penitential, monastic, and Christian imperial systems which created demand for papal law. In the course of the fifth century, later bishops of Rome clearly were influenced by responses from the first half-century of papal jurisprudence (from Siricius I to Celestine I, d. 432) when replying to similar questions. From Leo I (440–61) to Gelasius (492–6) there is a lot of apparent repetition of those earlier rulings, because previous decretals were not necessarily easy to access, even if they were being passed around unsystematically from diocese to diocese, as seems likely. Leo and Gelasius, together with the bishops of Rome from Siricius to Celestine I, are especially prominent in the subsequent transmission of papal responses. By the sixth century, canon law collections containing papal decretals were being copied: two widely diffused collections, the Quesnelliana and Dionysiana, began to meet the demand for papal decretals. We have to examine the process with a textual critic’s eyes but need also to see it as social communication, a process. The transmission was not organized by 46

In addition to my Papal Jurisprudence, c. 400: Sources of the Canon Law Tradition (Cambridge, 2019) (PJc.400), and ‘Half a Century of Research on the First Papal Decretals (to c. 440)’, Bulletin of Medieval Canon Law n.s. 35 (2018), 331–74, see B. Neil, ‘Papal Letters and Letter Collections’, in C. Sogno, B. K. Storin, and E. J. Watts, eds., Late Antique Letter Collections: a Critical Introduction and Reference Guide (Oakland, 2017), 449–66.

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the papacy. We need to reflect on the reasons why people chose to copy canon law collections containing papal legal decisions. There was a diminishing need for new ones precisely because a body of papal jurisprudence was now increasingly easy to consult. Furthermore, in the sixth century there was also a certain froideur between Rome and many Western ecclesiastical intellectuals because of the patchy record of the papacy in defending what they regarded as orthodoxy (as it would indeed become) in the so-called ‘Three Chapters’ controversy.47 Furthermore, local synods became frequent and confident, meeting the need for rules, and expanding the remit of Church law to include more aspects of lay life. Meanwhile, the meaning of the first papal laws changed when arranged systematically rather than chronologically. Over time, moreover, their role became more symbolic as the gap between them and social practice widened. Their impact must also have diminished as they were overgrown within the evolving canon law genre by different kinds of texts, from patristic writers and penitential handbooks. One can, in fact, distinguish three canon law ‘conversations’: the inclusive one with patristic material; one that is confined to rulings by councils and popes, but includes topics like Christology; and a tighter genre, also consisting only of conciliar and papal canons, but without the Christology, focussing on what was lawful and unlawful. Papal decretals and the tight, less inclusive genre never lost their high profile. This was partly thanks to Charlemagne. He helped an updated version of the Dionysiana to become the dominant religious lawbook, and he also cited early papal decretals – naming their papal source – in one of his own most prominent pieces of legislation, the General Admonition. Probably without intending it, Charlemagne became a prime propagandist for the papacy as source of law, and an amplifier for the papal jurisprudence of late Antiquity. Then, before the Carolingian order ended, the first papal decretals were spread far and wide because they were included with the corpus of forgeries called ‘Pseudo-Isidore’, the role of which in transmitting genuine letters cannot be too strongly emphasized. Furthermore, the genuine papal letters from late Antiquity were models for the fake papal letters forged with some skill, probably at the abbey of Corbie. In the eleventh century, a revolutionary religious ‘reform’ movement gathered momentum. A provocation may have been the ready availability 47

For a recent collection of essays, see C. Chazelle and C. Cubitt (eds.), The Crisis of the Oikoumene: the Three Chapters and the Failed Quest for Unity in the Sixth Century Mediterranean (Turnhout, 2007).

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of an old law which patently contradicted social practice. The source of the contradiction was not so much moral recidivism – ‘abuses’. This was not simply a question of ‘corruption’ and of ‘reform’ as a response. The problem was the ruralization of dioceses over the previous early medieval centuries. The old canon law could not easily be fitted into the eleventhand twelfth-century ecclesiastical systems, dominated north of the Alps by huge country dioceses rather than tightly knit urban clerical communities. Early papal jurisprudence had evolved in a social setting alien to that of the period around 1000. The transmission of the first papal laws was a window into the very different and not easily understandable world of late Antiquity. Interestingly, reform compilations of law, though selective and propagandistic, did not airbrush out the ancient papal laws that posed problems. Instead those strange laws served as a stimulus to thought. In the mid-twelfth century, the Decretum of ‘Gratian’ (there were probably two main authors48), which became the standard canon law reference work, did indeed grapple with the contrast between the world reflected in the first papal laws and the laws and practices of its own time. So did commentators on Gratian. The new canon law professionals had plenty of other authoritative texts to think about, from councils, the Fathers, and penitential handbooks. Nonetheless, thanks to Charlemagne and Pseudo-Isidore, the papal element in tradition was quantitatively too important to be ignored. Instead, the old decretals offered a ‘software’, so to speak, that could be copied and which developed in a new and bigger wave of papal decretals, which flooded professional canon lawyers with new material. The second age of papal decretals was arguably a response to demands similar to those which had produced early papal jurisprudence, and they had the old decretals as a model. In the end, the new and the old decretals were drawn into the same conversation, as the standard gloss on Gratian discussed the old laws and the new ones in conjunction. It will be argued that the legacy of the first decretal age to the canon law tradition could have crucially affected the character of the second decretal age, or rather, that the latter need not have been a ‘decretal age’ at all, though it would surely have still seen a flowering of canon law and the emergence of a class of legal experts, as in Islam. The development of Islamic Shari’ah law makes a suggestive comparison and contrast here. Islamic law initially saw developments analogous to the first decretal age, but the shoots were too tender and sparse to survive. From about the 48

A. Winroth, The Making of Gratian’s Decretum (Cambridge, 2000). Nonetheless, for simplicity’s sake I use the name Gratian for the compiler of the Decretum in its final form.

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ninth century ce, Shari’ah law has been in the hands of a class of qualified experts, the muftis. After the early Islamic centuries, muftis were professionally trained and qualified, like canon lawyers from the thirteenth century, mutatis mutandis, and, as with canon lawyers, the academic training intersected with the world of legal practice: religiously qualified specialists could become qadis (judges), and qadis who were not themselves qualified could be expected to have a mufti as an adviser. Like canon lawyers (and Common Lawyers), they reasoned by analogy from case to case.49 They did and do not always agree,50 but neither did canon lawyers come to that, and muftis tended to achieve a fair degree of consensus behind the disagreements, as do modern academic scientists through their processes of peer review and reputation formation. The muftis did not acquire this collective authority immediately. First came the process of professionalization, leading to a network of madrasas and a system of qualification for legal experts. Once that stage had been reached, according to an interpretation which has met with widespread if not universal assent,51 the previous system was silently abandoned. It had been similar in some ways to the papal system, in that religious legal authority was vested in the caliph.52 The couple of centuries in which caliphs were the authoritative source of legal interpretation were, so it has been plausibly argued, airbrushed out of collective memory by the muftis, the ‘ulama as they are collectively called, when they took over the role. Even allowing for deliberate forgetting, however, there can be no question of quantitative comparability between the jurisprudential output of early caliphs and of fifth-century popes, if only because the caliphs were conquering much of the Mediterranean world and had their hands full. So far as we can tell, the caliphal rulings of the early Islamic centuries were a much less rich resource than the ancient papal jurisprudence which was still at hand, an attractive paradigm for a new decretal age. Without that first decretal age, one could well imagine a ‘classical canon law’ of the twelfth and thirteenth centuries without a living lawmaker, along the same lines as academic Roman law. The university training and the 49 50

51

52

W. Hallaq, The Origins and Evolution of Islamic Law (Cambridge, 1986), 115. There were several main schools of Sunni law: see ibid., 150–77, and C. Melchert, The Formation of the Sunni Schools of Law, 9th–10th Centuries c.e. (Leiden, 1997), but these were not like separate religious sects, and relations between them were on the whole eirenic. P. Crone and M. Hinds, God’s Caliph: Religious Authority in the First Centuries of Islam (Cambridge, 1986). Cf. Hallaq, Origins, 63: ‘caliphal law also acquired a religious sanctity by virtue of the fact that Caliphs were God’s and Muhammad’s deputies on Earth’, and J. A. Nawas, Al-Ma’mun, the Inquisition, and the Quest for Caliphal Authority (Atlanta, 2015), 53–5. For the foregoing, see D. L. d’Avray, ‘The Stages of Papal Law’, Journal of the British Academy 5 (2017), 37–59, at 47.

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professionalization of lower courts could have happened without the papacy. A price to pay might have been consistency over Latin Christendom. Medieval Roman law was a training, a mode of thought, and a mise of concepts and techniques, but in the secular sphere there were multiple real jurisdictions with their own traditions. Again, in cases where the line between human ‘positive’ law and divine law was not so clear, a system run by legal professionals alone had a legitimation problem when doctors of canon law disagreed. But they would no doubt have managed, as medieval medical doctors did. As it was, specialists in canon law found plenty of satisfaction – even, it has been suggested,53 an ‘aesthetic pleasure’ – in working with papal decretals, and not least in analysing together papal judgments from both decretal ages. Conclusion Periodization enables but constrains research. This chapter has looked at ways of transcending period boundaries. To position oneself on a boundary is one good way. Like a ridge-walker, one can survey two valleys at once – but only two. Another way is to look for deep continuities. Here, however, additional schemas have been proposed: the re-emergence of a halfsubmerged system with the recurrence of the conditions that gave rise to it originally, and, above all, the evolution of a sequence of communications (as opposed to a constant idea) like a conversation, from its origin through its twists and turns over many centuries. The history of the first papal jurisprudence’s reception over time can be a ‘part for the whole’, a synecdoche for the changes in history of Western Christianity. Evidently, early papal jurisprudence is not the only possible candidate for this method of bridging the gap between periods at a research level (rather than by a survey or synthesis). The key thing is to focus on a form of life which evolves through the centuries and well into the medieval period, while interacting in non-trivial ways with the world around it, to avoid tunnel history. Bishops in any one major region (say Southern France) would fit the bill. The episcopate in Europe as a whole would be too large and diffuse a theme. The form of life studied in this book has the advantage of combining manageability with precision. In new contexts, old systems evolved and changed. That might, but did not necessarily mean that they ended up quite different from their first state. Another general model is that the meanings of old social systems expand as their horizons merge together with the mental horizons of new social situations. These methods aim to subvert the apartheid of periodization. 53

By the Cambridge University Press clearance reader of this book.

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The next chapter will focus on those features of the late Roman world in the West which were the environment of early papal jurisprudence. These include: the sheer number of clerics and monks, the heterogeneity of these two Christian elites, their relation to existing secular legislation on status and occupations, inconsistency in ritual systems, contested meanings of baptism and its place in the religious year, the symbolic significance of time, the disruption to society of the barbarian invasions, the two Christian systems of marriage – episcopal and imperial, and the spatial structures of empire and church. Largely descriptive, the chapter attempts to elucidate two overlapping sources of tension which played a part in generating the first papal jurisprudence: the multiplicity of semiautonomous evolving systems, and uncertainty about where or whether to draw a line between non-negotiable principles and legitimate variation.

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The Christian Roman Empire, c. 400

This chapter explores some aspects of the Roman world c. 400 that help to explain the rise of papal jurisprudence in that period.1 In the background is the barbarian takeover of the Western empire and the disruption it caused, coupled with wars between rival emperors. The incipient system of governance by councils under the thumb of an emperor, or by imperial rescript alone, was no longer working properly, but the rescript system provided a model for papal responses. As suggested in the previous chapter, the demand for these is to be explained by problems of debatable ritual, and related, choices, and of imperfectly compatible evolving Christian systems. Uncertainty was aggravated by increasing awareness of different ways of doing things, in an age when more people were becoming Christians and many people were geographically mobile, so that far more Christians than before would have been confronted with contrasts in religious practice, and unsure what was best or even right. Perhaps we ought not think too holistically about ‘late Roman Christianity’. We need to foreground the multiplicity of Christian systems with independent histories, not easily coordinated with each other. We should think less about conflict, perhaps, and definitely more about uncertainty and complexity as explanations for recourse to authority. Political Disruption An index of the political disruption which is the backcloth to the first papal jurisprudence is the problem of people captured by barbarians inside the empire. The problem goes back before the process of disintegration had begun. A decree of 366 commands that people taken by the barbarians (‘force of a hostile invasion’) should have the right to get their property back on their return, so long as they had not gone voluntarily but 1

This period has been well served by scholars. Old but indispensable is A. H. M. Jones, The Later Roman Empire, 284–602, 3 vols. (with a maps volume) (Oxford, 1964). For a successful succinct modern survey with further bibliography, see G. Clark, Late Antiquity: A Very Short Introduction (Oxford, 2011).

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under compulsion.2 The Theodosian Code records decisions of 408 and 409 laying down what should be done with victims who are no longer in barbarian hands.3 They were not to be detained. If there was any expenditure for clothing or food for the use of such people, it was to be furnished for the sake of humanity, ‘and no right of recovery for any expenditure for food shall remain’; there was however to be recompense if the person had been bought from a barbarian vendor.4 These rulings are relevant to cases, discussed below, that Innocent I and Leo I would have to decide. Political disruption also helps explain how the apostolic see, rather than emperors, came to be deciding such questions.5 In the middle decades of the fourth century, a model of ecclesiastical governance had been developing which adumbrated the later Byzantine system of joint rule of the Church by leading bishops and emperor: control through imperially controlled councils and also by individual decisions by the emperor. The fairly recent development of problem-solving at general councils under the emperor’s control had started at the Council of Arles in 3146 and continued with éclat at Nicaea in 325, and it went on long enough to encourage a demand for authoritative solutions transcending local Churches. Political disruption made that emperor-cum-council system hard to work. Emperors had too much else to deal with – Vandals, Goths, and rival emperors. Thus, the emperor Gratian (d. 383) ‘was content to let the bishop of Rome dictate both law and truth to the Western provinces’ (aside from chairing the Council of Aquileia in 381).7 Until the year before Gratian’s death, the Goths who had defeated the Romans at Hadrianople were out of control, and the settlement reached in 382 was more of a stalemate than a Roman victory.8 From 383 to 388 a rival emperor, Maximus Magnus, controlled much of the Western half of the empire. Gratian’s successor in the West, Valentinian II (383–92), was 2

3 5

6

7

8

The Theodosian Code and Novels and the Sirmondian Constitutions, translated by C. Pharr, T. Sherrer Davidson, and M. Brown Pharr (reprint from Princeton, 1952 edition), 5.7.1, 108. On the Code see T. Honoré, Law in the Crisis of Empire, 379–455 a.d.: the Theodosian Code and Its Quaestors: with a Palingenesia of Laws of the Dynasty (Oxford, 1998). Theodosian Code, transl. Pharr et al., 5.7.2, 108–9. 4 Ibid., 108. Gillian Clark points out to me furthermore that matters for dispute among Christians might lie outside the areas on which emperors felt it was their job to legislate (personal communication). H. Hess, The Early Development of Canon Law and the Council of Serdica (Oxford, 2002), 43–4. Cf. E. Caspar, Geschichte des Papsttums, i (Tübingen, 1930), 114: ‘mit dem Augenblick, da der Staat selbst Kirchenpolitik zu treibenbegann, verlor die Kirche ihre bisherige Autonomie’. M. Edwards, ‘Synods and Councils’, in A. Casiday and F. W. Norris, eds., The Cambridge History of Christianity, ii, Constantine to c. 600 (Cambridge, 2007), 367–85, at 373 – though Gillian Clark points out (personal communication) that Gratian was a special case of deference to bishops. P. Heather, The Fall of the Roman Empire: A New History (London, 2005), 183–9.

The Christian Roman Empire, c. 400

23

a child emperor. From 392 to 394 there was another emperor not recognized by the Eastern emperor Theodosius I. In 395 Honorius, another child emperor, was nominally in charge of the Western half of the empire. From 405 barbarian groups were again prising imperial structures apart.9 None of this was conducive to imperial control of the Church in the West. Decisions made in Greek in the Eastern half of the empire were slow to reach the West in Latin translation.10 Yet there were decisions to be made, and not just about the high theological questions so prominent in the middle decades of the century: the loss of imperial control changed the political geography with knock-on effects for ecclesiastical geography, which became contentious. The political disruption had generated disputes about which episcopal sees should have ‘metropolitan’ authority over which lesser sees, and these disputes too were an indirect result of political disruption. There was an assumption that the ecclesiastical hierarchy should mirror the hierarchy of civil government.11 For civil government, the city of Trier had played a key role until the empire lost control of it,12 after which Arles took over its regional primacy. Following suit, though with a dubious historical justification, the bishop of Arles laid claim to extensive metropolitan jurisdiction,13 with consequent resistance by the bishops he tried to bring under his control. It was natural enough, at that point, for the bishop of Rome to be drawn into the disputes about metropolitan boundaries.14 The bishops of Rome were ready and willing to fill the vacuum left by the emperors. The bishops and clergy of the Roman Church itself were full of ideological confidence in succession from St Peter.15 As Erich 9 10

11 12

13 14 15

Ibid., 194–232 for a skilful narrative up to the sack of Rome by Alaric, and its aftermath. Thus, the canons of the 381 Council of Constantinople would probably not have been known in the West in a Latin translation before the mid-fifth century. ‘Zur Zeit des Concils von Chalcedon enthielten die lateinischen Sammlungen die Canonen von Constantinopel noch nicht . . . dies wird durch die in der 16. Sitzung des Concils von Chalcedon gemachte Aeusserung des römischen Legaten Lucentius bewiesen: in synodicis canonibus non habentur. Die Version der in einem Stück übersetzten Canonen kann daher nicht vor der Mitte des 5. Jahrhunderts entstanden sein . . .’. F. Maassen, Geschichte der Quellen und der Literatur des canonischen Rechts im Abendlande (Gratz, 1870), 85. Jones, Later Roman Empire, ii, 881. C. R. Davison, ‘Late Antique Cities in the Rhineland: a Comparative Study of Trier and Cologne in the Fourth and Fifth Centuries’ (University of Sheffield PhD dissertation, 2013), 11, 14–15, 41–2, 43, 47, 49. Davison argues, 50, that the relocation to Arles was not due to a military crisis in the Rhineland but to a ‘withdrawal of the emperors across the Alps to Northern Italy’ – but in the last analysis it was the growing barbarian threat that caused the withdrawal. Jones, Later Roman Empire, ii, 889; cf. Davison, ‘Late Antique Cities’, 47. PJc.400, 97–9. On this controversial topic the neutral summary by Jones, Later Roman Empire, ii, 887: is hard to beat: ‘from an early date the bishops of Rome claimed a pre-eminent

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Caspar pointed out long ago, the conversion of Constantine had stunted the development of the papacy: The new . . . idea of a Christian imperial authority which embraced the whole world and ruled the Church was an unsurmountable obstacle in the way of the rise of the Roman bishop to the highest place in the Church which had been prefigured as a seed in the actions of Victor I, Callistus, and Stephan I and in Cyprian’s idea of the chair of Peter and the primacy of Peter.16

In the troubled years after Hadrianople, Rome resumed that earlier trajectory. Its bishop had wealth and prestige even among powerful pagans. Agorius Praetextatus, one of the richest men in the world, joked to Pope Damasus in the later fourth century that if he could become bishop of Rome he would turn Christian the next day.17 A. H. M. Jones wrote that ‘The Roman church, richly endowed by the imperial munificence of Constantine and growing steadily wealthier generation by generation, supported many thousands of clergy, widows, virgins and paupers. Its shrines attracted hordes of pilgrims, and the growing authority of the popes drew to Rome an increasing stream of bishops and clergy, eager to expound their grievances or canvass their claims.’18 Even if bishops did not come to Rome in person, they could write and expect a response. The long tradition of imperial rescript government in the secular sphere was a natural structural model to imitate. Emperors traditionally responded to requests for justice from all over the empire. The method was there to be copied – a ready-made software of government, so to speak. In that sense, the dictum of Thomas Hobbes, that the papacy was ‘the ghost of the deceased Roman empire, sitting crowned upon the throne thereof’ is apposite. The imperial rescript system is an obvious influence on the first papal jurisprudence.

16

17

position in the church, and . . . they consistently claimed it as successors of Peter, the prince of the apostles. Their primacy in honour was generally admitted not only in the West but in the East, where, however, it was felt to be due to them as bishops of the capital of the empire. But the rest of the empire was less willing to admit the right which the Roman bishops claimed to legislate on doctrine and discipline, and to exercise an appellate jurisdiction throughout the empire. The defeated parties in a dispute naturally appealed to the bishop of Rome, as did Athanasius, if they thought that he could be persuaded to take up their cause, but the verdict of Rome was by no means always accepted.’ ‘Die neue . . . Idee eines christlichen, die Oikumene umfassenden und die Gesamtkirche beherrschenden Kaisertums stellte sich dem Aufstieg des römischen Bischofs zur obersten Stelle in der Kirche, der in Victors I., Kallists und Stephans I. Taten, in Cyprians Ideen von der cathedra Petri und dem primatus Petri keimhaft vorgebildet war, als unübersteigliches Hindernis in den Weg.’ Caspar, Geschichte des Papsttums, i, 123. Caspar (a Protestant expelled from his Berlin chair by the Nazis because of Jewish ancestry) remains unsurpassed as a historian of the papacy in this period. Jones, Later Roman Empire, ii, 904. 18 Ibid., ii, 688.

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An Inference But why and for what were papal rescripts wanted? In this early period their content does not relate to property disputes, or crime in the normal sense: their subject matter is for the most part different from that of Roman imperial law. Focussed analysis on the issues they addressed is the path to specific answers. Later, the joker in the pack will need close attention: Augustine of Hippo, whose campaign against Pelagianism left a deep mark on papal jurisprudence. Most papal responses are different in character, however, and to explain them some general background is required. Key background facts are (a) a rapid expansion in the number of Christians in the fourth century, and (b) a high degree of geographical mobility. From these two considerations, together with recent work highlighting the variety of local Christian ritual practice, it follows (c) that there would have been an acute awareness of the differences between the forms of Christianity in individual cities, and uncertainty about how much variation was legitimate or desirable. That there was a fast-growing Christian population can in turn be inferred from the conclusions presented in the next section about the number of clergy. In theory, one might imagine that there were almost as many clergy as laypeople – a multitude of holymen and of pastors with minute congregations – but it is not plausible! If we put what we know about the expansion of the Christian population (clerical, monastic, and lay) together with what we know about movement around the empire, it has to follow that more and more Christians were becoming aware of how things were done in different Churches: mobility involving more Christians implies increased awareness of contrasting religious practices. This inference is in tune with the direct evidence, presented below, of the historian Socrates of Constantinople, from whom we know that geographically mobile Christians would have found not uniformity but multiple versions of their religion. The Expansion of the Christian Population Ian Wood has made a serious attempt at quantification of the late Antique Christian population, though it is not a method often associated with the study of late Antiquity: Hundreds of thousands entered the Church either as secular clergy or as monks in the fourth, fifth, and sixth centuries – far more, one should note, than the number of barbarians who entered the Empire, under any assessment. Combining all the levels of clergy as well as the number of monks and nuns, despite the probable

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decline of the Church in the Balkans, there may have been as many religious in what had been the lands of the Roman Empire in 600 as there had been soldiers in 400, who, as we have already noted, are usually thought to have numbered between 400,000 and 600,000.19

Wood is implying that there were also more clerics in 600 than clerics in 400, but the thrust of his argument is that the big expansion began in the fourth century. Arguing along similar lines, Raymond van Dam thinks that a ‘century after Constantine the total of bishops and clerics in the empire was approximately one-third, perhaps even one-half, the size of the Roman army’.20 This is compatible with Wood’s conclusion, since their estimates are for different periods: Van Dam’s for the mid-fourth century, Wood’s for the start of the seventh century, by which time the number of clerics would no doubt have increased. Furthermore, Van Dam seems not to be including monks in his estimate. He is nonetheless sure that the number of clerics ‘surpassed the number of magistrates and bureaucrats in the imperial administration’.21 Wood makes clear his view that the number of bureaucrats would have been a fraction of the number of clerics.22 We may reasonably surmise, furthermore, that the number of clerics would, in turn, have been a fraction of the number of lay Christians. As Christianity became the official religion, there will have been more and more converts seeking baptism, though naturally some were far from fervent. The ritual of full entry into the Christian Church must have taken a lot of managing in the fourth and fifth centuries, because of the influx of converts. According to Augustine of Hippo, ‘“crowds of the heathen” wished to enter the church’ after the conversion of Constantine.23 Now, Peter Brown, who quotes the remark, rejects the idea that most people became Christians in the century after Constantine: the whole tendency of his argument is to minimize the extent of conversion: by 425 ce, ‘the Roman empire was by no means Christianized’.24 Even so, he writes that ‘The fourth century was an age of spectacular mass-baptisms. A thousand persons might be initiated every year at Easter in any large city.’25 So even an advocate of a minimalist estimate puts the numbers high. 19 20 21 22 23

24

I. Wood, The Transformation of the Roman West (Leeds, 2018), 79. R. van Dam, ‘Bishops and Society’, in Casiday and Norris, eds., Cambridge History of Christianity, ii, 343–66, at 352. Ibid. Wood, Transformation, 83 – comparing different centuries but still bringing out a striking contrast. P. Brown, ‘Christianisation and Religious Conflict’, in A. Cameron and P. Garnsey, eds., Cambridge Ancient History 13, The Late Empire, ad 337–425 (Cambridge, 1997), 632–64, at 662. Ibid., 664. 25 Ibid., 657.

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The point here is more or less unaffected by the debate about how often ‘Christianness’ mattered in the daily life of Christians. It has been argued by Eric Rébillard that ‘the sense of belonging was just as available and just as often – or infrequently – activated in Augustine’s time as in Tertullian’s [second century]’.26 Rébillard is challenging the idea that mass baptisms changed the nature of Christian identity – diluting it – and suggesting that church on Sunday was not necessarily a norm. He reminds us, however, Augustine’s church was unusually crowded on important feast days.27 This does matter for the argument: it will be suggested that uncertainty about what rituals should be done on what feast days was a reason for consulting the apostolic see. Furthermore, his reinterpretation of the implications for Christian identity of ‘mass Christianisation’28 takes the latter for granted. Christian identity would be most felt on big feasts and in key rituals. Large numbers of people were involved on these occasions. With regard to feasts, rituals, and to their interaction, there was much geographical variation. Geographical Mobility Next we need to factor geographical mobility into the argument that late Antique Christians must have been becoming increasingly conscious of varieties of religious ritual and practice. Mobility was relatively easy in the later Roman empire, because of the Mediterranean, the good roads, and (for the elite) the imperial postal service. The religious and secular elite tended to travel (with entourages). The senatorial system’s implications for social mobility have been drawn out by Werner Eck. He does not focus on the late empire but his conclusions can be extrapolated to apply to late Antiquity also.29 Eck states that at the end of the second century the majority of the Roman provinces were represented in the senate.30 This tendency to diversity had not diminished in the late empire: Senators were as mixed in their geographical . . . origins as in their social background. The senate drew its recruits from all the provinces of the empire without distinction. Men of Western origin naturally predominated at Rome, and those 26

27 29

30

E. Rébillard, Christians and Their Many Identities in Late Antiquity, North Africa, 200–450 ce (Ithaca, NY, 2012), 96. His general argument is that Christians ‘did not necessarily give salience to Christianness’ in their behaviour (ibid., 97). Ibid., 68. 28 Ibid., 96. W. Eck, ‘Ordo Senatorius und Mobilität: Auswirkungen und Konsequenzen im Imperium Romanum’, in E. Lo Cascio and L. E. Tacoma, with M. J. Groen-Vallinga, eds., The Impact of Mobility and Migration in the Roman Empire, c. 200 b.c.–a.d. 476 (Leiden, 2016), 100–15. ‘Am Ende . . . repräsentiert’ (ibid., 102).

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from the Eastern provinces at Constantinople, but there was some migration from East to West, and West to East, particularly in the fourth century. Westerners, especially Pannonians, came in the train of Valens to Constantinople, and were followed by Gauls and Spaniards under Theodosius I. Easterners followed Theodosius to Rome when he reconquered the West from the usurpers Maximus and Eugenius.31

Though ‘many senators had standing leave to reside in the provinces’ (as opposed to Rome or Constantinople), many ‘did in fact reside at Rome, or at least kept up a town house there’, and Rome ‘continued to attract newly ennobled senators’, though the court was a counter attraction in the West.32 Eck draws out the implications of a centralized senatorial aristocracy with continuing provincial connections. When a town wanted to put up a statue in honour of its local senator, a continuous traffic between Italy and the provinces resulted.33 Communities collected senatorial patrons, which must have led to constant journeys by representatives of the cities to Rome, first to establish the link with the patron and then to exploit the connection.34 Eck suggests that senators may have brought to the capital the cereals, wine, and oil that were required to maintain a huge household in Rome,35 which would obviously have involved movement of people as well. The geographical mobility of famous religious personalities is striking.36 Athanasius (d. 373) was at Alexandria, Trier, and Rome. John Chrysostom (d. 407) was at Antioch, Constantinople, and Pontus. Jerome (d. 420) moved around the whole empire: Rome, Gaul, Aquileia, Antioch, Syrian desert, Constantinople, Egypt, Bethlehem in Palestine. Pelagius (date of death unknown, contemporary of Augustine of Hippo) was from Britain, spent time in Rome, and travelled to Africa and Palestine. Augustine grew up in modern Algeria and ended up there, but after spending time at Rome and Milan. John Cassian (d. after 430) knew Scythia Minor (modern Dobruja), Bethlehem in Palestine, Egypt, Constantinople, and finally Marseilles. Less famous bishops went into exile and returned. This was how monasticism was brought to Vercelli by its bishop Eusebius, in the 340s.37 The Christian world around 400 was very international. These were exceptional men but mobility itself was normal, and the more 31 33 34 36 37

Jones, Later Roman Empire, ii, 552. 32 Ibid., 553. ‘ein kontinuierlicher Reiseverkehr zwischen Italien und den Provinzen’. Eck, ‘Ordo Senatorius und Mobilität’, 114. Ibid., 112. 35 Ibid., 106. The following details are common knowledge: I have checked them in the ODCC. M. Dunn, ‘Asceticism and Monasticism, II: Western’, in Casiday and Norris, eds., Cambridge History of Christianity, ii, 669–90, at 669.

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Christians there were, the more normal it would have been for Christians to experience cities other than their own. The normality of mobility is an emphatic argument of the big study of Mediterranean history by Horden and Purcell (though they are generalizing about a long period): we will find it theoretically impossible to talk of ‘the population of a city’ – such as Rome in Antiquity, for example. At any instant there will be within its built-up area hundreds who will not be there tomorrow, thousands who will have left by the end of the year, tens of thousands who will have moved away in the course of a decade. Some will have travelled only ten miles for casual manual or agricultural labour; others will have gone to the extremes of the Mediterranean world.38

Artisans are among the social types they single out as mobile. ‘The wandering artisan is a product of a koine [this normally means ‘a common language’, but Horden and Purcell seem to mean a common geographical sphere] . . . craftsmen . . . moved freely in this koine . . .’.39 A recent study of the mobility of Roman soldiers in peacetime speaks of ‘a multiplicity of possibilities’ for Roman soldiers and officers to crisscross the empire.40 Under Constantine, the clergy ‘were freely granted warrants to travel by the public post to the comitatus or to ecclesiastical assemblies’;41 one can imagine how willingly they took advantage of this. Pilgrims would have experienced different liturgical practices. The nun Egeria who went to Jerusalem in the early 380s gives liturgical details to her community back in Spain, presumably because the liturgy was different. Many Kinds of Christianity As Christians moved around the empire, they would have found a variety of contrasting practices. The Ecclesiastical History of Socrates of Constantinople42 devotes Book 5: 22 to the differences between Churches. The differences do not matter much to Socrates himself: his 38 39 40 41 42

P. Horden and N. Purcell, The Corrupting Sea: a Study of Mediterranean History (Oxford, 2000), 382. Ibid., 386. ‘vielfältigen Möglichkeiten’. P. Herz, ‘Die Mobilität Römischer Soldaten in Friedenszeiten’, in Lo Cascio et al., eds., Impact of Mobility, 80–99, at 81. Jones, Later Roman Empire, i, 90. Socrate de Constantinople, Histoire ecclésiastique, Livres IV–VI, texte grec de l’édition G. C. Hansen, traduction par Pierre Perichon et Pierre Maraval (Paris, 2006). (In what follows, the pagination may look odd. This is because there is a facing Greek text and French translation.) On Socrates, see B. Bäbler and H.-G. Nesselrath (eds.), Die Welt des Sokrates von Konstantinopel: Studien zu Politik, Religion und Kultur im späten 4. und frühen 5. Jh. n. Chr. zu Ehren von Christoph Schäublin (Munich, 2001).

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standpoint could be described as ‘adiaphorism’, the conviction that anything added to biblical basics was essentially indifferent, so that each church should be left to follow its own customs. In holding this view, Socrates was, of course, rejecting as essentially wrong all non-relativist attitudes to the practices in question – i.e. he was a player talking like an umpire, not as neutral as he sounds. His comments on the ‘Quartodecimans’ illustrates the two sides of his own attitude. Quartodecimans believed that Easter should be celebrated as a Christian Passover, on the fourteenth day of the Jewish month of Nisan, so not necessarily or even usually on a Sunday. On the one hand, Socrates thinks they are wrong to treat this as a generally binding religious rule. He starts the chapter in question by criticizing their rigidity and their belief that they should follow Jewish practice, and ends it by arguing that if they imitate Jewish practice in this they should follow it systematically. On the other hand, he appears to disapprove of bishop Victor of Rome’s excommunication of the Quartodecimans of Asia, and to commend St Irenaeus for rebuking Victor on that account;43 he seems pleased that Polycarp of Smyrna, who celebrated Easter on the fourteenth day, remained in communion with Anicetus bishop of Rome.44 Constantine asked for unanimity in the observance already followed by the majority.45 One has the impression that Socrates thinks this made sense, on pragmatic rather than dogmatic grounds. Both the Roman Church and the Quartodecimans claimed apostolic authority for their usage, according to Socrates, but neither could prove it; in his view it was just a matter of custom.46 But it was not a neutral view any more than the others. Socrates then surveys other differences between Churches from an equally relativistic standpoint. The fast before Lent differs in length and also in what people abstain from, while some fast to the ninth hour of the day, but when they do eat, they don’t abstain from any given food; but the apostles left no binding general rule about fasting.47 In Alexandria, catechumens can be readers and chanters, whereas elsewhere they are not allowed to perform this office.48 In Thessaly, he says a cleric (klerikos) who sleeps with his wife – a wife he married before becoming a cleric – is excommunicated, whereas in the East abstention from marital sex is voluntary even for bishops.49 The Novatians of Phrygia do not accept men who have married a second time 43 44 45 46 47 48

Socrate, Histoire, ed. Perichon et al., Livre V, paragraphs 15–16, pp. 220–1. Ibid., Livre V, paragraph 17, pp. 220–3. Ibid., Livre V, paragraphs 22–7, pp. 222–5; cf. Edwards, ‘Synods and Councils’, 370. Socrate, Histoire, ed. Perichon et al., Livre V, paragraphs 28–9, pp. 224–5. Ibid., Livre V, paragraphs 32–40, pp. 224–9. Ibid., Livre V, paragraph 49, pp. 230–1. 49 Ibid., Livre V, paragraph 50, pp. 230–1.

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(he means after the death of the first wife); at Constantinople, the attitude is neutral or ambiguous;50 in the West, they are received openly.51 (He must be talking of laymen.) In Thessalonica, baptism absolutely had to be celebrated at Easter, according to Socrates, to the point that many died without baptism in consequence.52 These divergences go back to the people who were in charge of the respective Churches in the past, Socrates suggests: they have simply been passed on down.53 On that he was very likely right. With regard to liturgy, a recent scholarly survey has concluded that in the early Christian centuries there is no ‘history of a single tradition of worship that undergirds the diversity of liturgical practices stemming from some pristine, unitive, or “apostolic” core; rather, it is itself the history of a plurality of liturgical practices from the very beginning. There is . . . a variety of traditions.’54 Now back to our inference (Christian geographical mobility + variety of ritual practice = religious uncertainty). If each Church had been a selfcontained island, differences about ritual time, liturgical practice, clerical sex, and second marriages might not have mattered. The implication of the preceding argument is, however, that at any given moment a large city community of Christians would have been a temporary spiritual home to many visitors from other cities, especially after Constantine opened the floodgates to Christian conversion. Eusebius of Caesarea writes of this time that ‘feasts of dedication in the cities and consecrations of the newly built houses of prayer took place, bishops assembled, foreigners came together from abroad, . . .’.55 The foreigners from abroad were likely to find different practices. Some of the differences would have seemed trivial to some of the people, but a certain proportion of visitors would surely have been surprised to find fasting or feasting at times that seemed to them quite inappropriate, or different rules about celibacy or second 50

51 52 53 54

55

On Novatius see P. Mattei and C. Mühlenkamp, ‘Novatianus’, in Reallexikon für Antike und Christentum 25 (2013), cols. 1145–9: denies penance to lapsi and adulterers, col. 1151; col. 1158 on reception; for the later history of Novatianianism see M. Wallrath, ‘Geschichte des Novatianismus seit dem vierten Jahrhundert im Osten’, Zeitschrift für Antikes Christentum 1 (1997), 251–79. Socrate, Histoire, ed. Perichon et al., Livre V, paragraph 60, pp. 232–3. Ibid., Livre V, paragraph 52, pp. 230–1: he says ‘apart from a small number’ (plèn oligon), which seems ambiguous. Ibid., Livre V, paragraph 61, pp. 232–5. M. E. Johnson, ‘The Apostolic Tradition’, in G. Wainwright and K. B. Westerfield Tucker, eds., The Oxford History of Christian Worship (New York, 2006), 32–75, at 67; cf. P. F. Bradshaw, The Search for the Origins of Christian Worship: Sources and Methods for the Study of Early Liturgy (London, 2002), passim, e.g. x: ‘what we do know about patterns of worship in that primitive period points towards considerable variety more often than towards rigid uniformity’. Ecclesiastical History, 10.3.1, cited by J. F. Baldovin, ‘The Empire Baptized’, in Wainwright and Tucker, eds., Oxford History of Christian Worship, 77–130, at 77.

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marriages. The expansion of the Christian population has to imply that such visitors from other Churches were an increasingly significant part of any large Christian community, once one has factored in the geographical mobility of the Roman Empire. The fact of geographical mobility must have tended to undermine what Socrates of Constantinople apparently regarded as a perfectly viable model, viz. a patchwork quilt of churches each with its own customs. Given the high degree of geographical movement, we cannot envisage a series of separate communities each complacently comfortable with its own traditions. It is true that there was a tendency in the fourth century towards mutual imitation and greater homogeneity of ritual practice.56 Inevitably, though, in the course of deciding how much to borrow from other Churches the question of how far one could go would arise. Since the creation of a sense of religious solidarity was surely a function of Christian rituals, a variety of dates for Easter and lengths of Lent was dysfunctional in cities containing Christians from many other places. If a good proportion of the Christians in a given city were fasting while the rest celebrated the Resurrection, that would not encourage community feeling. Durkheim, for whom religion was social cement, would not have approved. Indifference or Uncertainty? As already hinted, some of the differences went deeper than ‘local tradition’. The Novatian rejection of second marriages was obviously a matter of principle, not a custom. Even where absolute principles were not at stake, however, the differences in ritual and practice might, to many people, perhaps to most people, have seemed more important than they did to the historian Socrates. For him, the alternatives seem to have been: either apostolic, or indifferent. Rituals often express doctrinal attitudes, however, and adherence to a given ritual is not necessarily just a matter of habit or tradition. It has been suggested that when the African Tertullian foregrounds post-baptismal anointing, and Easter as the most appropriate time for baptism, his ritual preferences reflect a difference of doctrinal attitude from Syrian Christianity, where there was ‘no sign of Easter having been the preferred baptismal season’ and an absence of evidence for post-baptismal anointing.57 With the rituals we find in Tertullian, ‘the biblical model is not Christ’s baptism in the Jordan, but rather his passage 56 57

Johnson, ‘The Apostolic Tradition’, ibid., 35 and 67; Baldovin, ‘Empire Baptized’, ibid., 84. Bradshaw, Search, 154.

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from death to resurrection’,58 whereas in the Syrian tradition it is the baptism of Christ by John. Those particular differences may be reconcilable, but they certainly go below the surface – they are not ‘indifferent’. For many people, furthermore, practices not absolutely entailed by principles were nonetheless proximate to principles, and so did matter a lot. The theory that they were indifferent – that if it was not in the Bible it was up to each Church to do what it wanted, ‘adiaphorism’ – was, as suggested above, at most one point of view among many. To this day, Christians, Muslims, and Jews disagree within their own communities about where to draw the line between principle and preference. There is a spectrum of positions between the non-negotiable and the indifferent. Even when different sides might admit that no absolutely inalienable principle is at stake in this or that debate, the issue might seem so proximate to such a principle as to be really important, say because a given ritual practice has come to symbolize a particular doctrinal view; and of course, there are plenty of cases where at least one side in a dispute sees it as about a line not to be crossed even if the other thinks their opponents should be flexible. In late Antiquity there was a further problem and a major difference from modern experience: Christians in a given place were unlikely to be able to shop around different congregations to find one with which they felt in tune. In Rome and some other great cities there might be a choice between churches, but even in such places there would normally be only one bishop who would determine ritual and religious practice generally. Given the increasing awareness – thanks to geographical mobility – of other possibilities, it is unlikely that the members of a given Church were at all unanimous about the practices imposed on them by their bishop. As Socrates of Constantinople surmised, the practices of different Churches had no particular authority other than that of local tradition behind them. In short, in addition to the visible differences between Churches there were surely less visible disagreements within Churches. Since the issues involved collective action by communities, they could not – like private devotions – be left to the choice of the individual. Even for convinced Christians, late Antiquity must have been a world full of uncertainties, and not just about the Trinity and the nature of Christ, but also about a range of rituals and practices involving communities. The decisions called for were the more complex precisely because they were neither purely about principle, nor purely pragmatic, but about hybrid combinations of principle and practical rationality. Such matters tended to be brought to the attention of the bishop of Rome. 58

Ibid., 159.

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Conclusion A large and highly mobile Christian population must have had an enhanced awareness of difference between local Churches. Given that any urban Church would include Christians who had moved from other cities, there would have been division within, as well as between, large Church communities. The resultant uncertainty helps account for the rise of papal jurisprudence. The uncertainty is closely connected as a causal factor with another feature of late Antique Christianity: a different kind of complexity which arose from the intersection of a variety of Christian systems, each with dynamics of its own. As we shall see in the following sections, a range of ritual practices had been evolving in unharmonized ways over two or three centuries. There was a coordination problem. That too created a demand for clarification.

3

c. 400: Practical Complexities and Uncertainties

Ritual In late Antique Christianity there were many ritual systems, and they were not the product of a coherent blueprint. The absence of coordination between independent ritual developments caused compatibility problems, rather as the uncoordinated development of software systems so often does today. There was not one key ritual, but a series of them. They were all developing: we have seen that the idea that there was an ‘original or pristine apostolic unitive or ritual “core”’ is not widely held today.1 It has been suggested, for instance, that ‘among some early Johannine communities it was not baptism at all but a foot washing ceremony that constituted the “rite” of Christian initiation’.2 The early history of Christian initiation is more obscure than was formerly thought.3 By the beginning of the fourth century many of the rituals which survive at least in Orthodox and Catholic Christianity can be recognized, but they were the outcome of centuries of development, each ritual, or variant on a ritual, with a life of its own. For instance, infant baptism is not demonstrable until the second half of the second century.4 Caution about an argument from silence is always in order, but in this case the silence is deafening. Baptism was closely linked with other rituals which were potentially separable, so that questions might arise about who could do what in a ritual: how did its different elements map on to the gradations of clerical status? We know of anointing with oil in connection with baptism before 200:5 two rituals. We will see that the relation between them 1 2 3

4 5

M. E. Johnson, ‘The Apostolic Tradition’, in G. Wainwright and K. B. Westerfield Tucker, eds., The Oxford History of Christian Worship (New York, 2006), 32–75, at 35. Ibid., 37. P. F. Bradshaw, ‘Christian Initiation: a Study in Diversity’, in The Search for the Origins of Christian Worship: Sources and Methods for the Study of Early Liturgy (London, 2002), 144– 70. Cf. also A. B. McGowan, Ancient Christian Worship: Early Church Practices in Social, Historical and Theological Perspective (Grand Rapids, 2014), 147–57, 165–74. E. Ferguson, Baptism in the Early Church: History, Theology and Liturgy in the First Five Centuries (Grand Rapids, 2009), 856: also 362–79 for a sustained discussion. Ibid., 855.

35

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was problematic. Again: up until the fifth century – so, after the start of papal jurisprudence – the baptism of adults in the framework of a longdrawn-out initiation process was still usual.6 In general, baptism in water was not a simple self-contained ritual, and it was not self-evident how it should fit with other rituals and practices. Baptism was part of a collective process which ideally involved the whole community of the Church in question, so that integrating it with other ecclesiastical systems became an issue. We have detailed descriptions of baptismal practice in fourth-century Jerusalem from a lecture by its bishop Cyril and from the pilgrim diary of Egeria.7 There would have been variation around the empire, but there seems to be consensus about a general pattern. To quote a recent summary ‘based on evidence from around the Mediterranean’: there was enrolment as a learner and subsequent instruction, scrutiny, several exorcisms, the renunciation of Satan and swearing of allegiance to God, the baptism proper, vesting in white clothes, unction and communion. Throughout much of this period, baptism took place as an integral part of the Easter festivities as a matter of course (though . . . there were exceptions . . .). Enrolment would often take place [over] many months – perhaps even a year or more – before baptism to allow adequate time for instruction and training.8

So far so good, but how to integrate baptism with Easter, and with ritual anointing, was a major coordination problem. Unction, anointing, was closely associated with baptism by water but, as just noted, the relation between the two was not uniform or simple.9 How precisely did the water ritual and the oil ritual relate to each other? The relation must have had a history. There is, for instance, a theory that in the Syrian tradition ‘water baptism and anointing with oil may once have been two alternative ways in which different primitive Christian communities might have initiated new converts before they became combined in a single composite ritual’.10 Another question: what was the relation between baptism and handlaying11 (i.e. ‘the laying on of 6

7 8

9

10

Infant baptism ‘became the usual practice in the fifth and sixth centuries’ (ibid., 857), though it seems not to have been the norm in Augustine’s eyes: E. Rébillard, Christians and Their Many Identities in Late Antiquity, North Africa, 200–450 ce (Ithaca, NY, 2012), 65. J. F. Baldovin, ‘The Empire Baptized’, in Wainwright and Tucker, eds., Oxford History of Christian Worship, 77–130, at 86–7. A. Casiday, ‘Sin and Salvation: Experiences and Reflections’, in A. Casiday and F. W. Norris, eds., The Cambridge History of Christianity, ii, Constantine to c. 600 (Cambridge, 2007), 501–30, at 503–4; cf. also Baldovin, ‘The Empire Baptized’, 88. Bradshaw, Search, 61, 146–56, 158–9, 165–9, 227–8; cf. also McGowan, Ancient Christian Worship, 154–7, esp. 154: ‘there is no indication that oil was used in baptism at the earliest times’, and 174–5. Bradshaw, Search, 152. 11 Cf. McGowan, Ancient Christian Worship, 157–9.

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hands’ – but the singular ‘hand’ seems normal in the Latin)? How to fit rituals together was hardly self-evident. These rituals were the surface of layers of symbolism. Symbolism also underlay the whole structure of the year. The ‘Christianization of time’ was a gradual process but well advanced before the conversion of Constantine; as with initiation rituals, the starting point now seems to have been diversity rather than uniformity.12 By the end of the second century, at least, Easter already stood for the death and the Resurrection of Christ,13 and in the East the feast of the Epiphany commemorated the baptism of Christ by John the Baptist.14 How the meaning behind the feast should be coordinated with baptism was potentially problematic, and fraught with the non-trivial theological implications already noted. Not only baptism but also public penance was linked to the liturgical year, and also with parallel periods of preparation, wherever baptism was linked to Easter; penance too culminated in Holy Week, the days before Easter. The Church of the Roman Empire had developed a system for dealing with postbaptismal moral deviance, i.e. serious sins. It was not accepted by everyone. The prominent Roman theologian and claimant to the apostolic see Novatian questioned the very possibility of forgiveness of post-baptismal sins. Tertullian (d. c. 225), in his later more rigorous phase, apparently thought that adultery and fornication could not be forgiven by penance.15 He was opposing a bishop who took a different view, one which would seem to have become the more general view, for in the third century a regular system of public penance – admittedly only available once in a lifetime – to gain forgiveness for major sins was developed.16 This system had to be coordinated with the system of clerical orders, discussed above. A hierarchy of bishops, presbyters, and deacons is attested before we know anything much about public penance. There is evidence of it in the early second-century letters of Ignatius of Antioch,17 and it seems to be the norm generally by the end of the century.18 Presumably this hierarchy had the job of organizing public penance. To that degree the two systems were coordinated. How to coordinate them, though, if it was a member of the hierarchy who had committed the grave sin? 12 14 15

16

17

Bradshaw, Search, 178–91, esp. 191. 13 Johnson, ‘Apostolic Tradition’, 63–4. Ibid., 65; B. D. Spinks, ‘The Growth of Liturgy and the Church Year’, in Casiday and Norris, eds., Cambridge History of Christianity, ii, 601–17, at 615. S. G. Hall, ‘Institutions in the Pre-Constantinian Ecclesia’, in M. M. Mitchell and F. M. Young, eds., The Cambridge History of Christianity, i, Origins to Constantine (Cambridge, 2006), 415–33, at 427. R. A. Greer, ‘Pastoral Care and Discipline’, in Casiday and Norris, eds., Cambridge History of Christianity, ii, 567–84, at 580; R. Meens, Penance in Medieval Europe, 600–1200 (Cambridge, 2014), 15–25. Bradshaw, Search, 200. 18 Ibid., 200–1.

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It was also unclear how far some aspects of imperial military and civil service could be reconciled with an uncompromising Christianity, and specifically with the system of penance. Some jobs might not be intrinsically sinful, yet carry such a high risk of sin as to be inappropriate for a man who had used up his single opportunity to purge grave sins by penance. Where to draw the line? Hierarchy The religious hierarchy of late Roman Christianity was complex, in that there were three interlaced systems. We can distinguish a hierarchy of clerical status, a hierarchy of clerical command, and an imperial Christian hierarchy. How these hierarchies should be coordinated was not self-evident. The hierarchy of status was geared to ritual powers. Only priests and bishops could conduct the sacred mysteries (i.e. the Mass) and, normally at least, only a bishop could ordain a priest. How was this to be brought together with the hierarchy of command? Could a bishop ordain a cleric from a different diocese? More generally, could a cleric choose which bishop to serve, or was he bound to his original diocese?19 Some questions were answered by the Council of Nicaea of 325. Canons 15 and 16 ban members of the clergy from moving to another city (i.e. to another Church and bishop); canon 16 forbids a bishop to ordain who is under another bishop without the latter’s permission. But how well were these decisions known in the West? There were few Western bishops at the Council: the prominent bishop of Córdoba, Hosius, two representatives of the apostolic see, and four others, including Carthage20 and Milan.21 The canons do appear to have been translated into Latin at some point in the fourth century.22 That tells us little 19

20 21 22

For an important study of the evolution of the diocesan system see M. Lauwers, ‘Territorium non facere diocesim: conflits, limites et représentation territoriale du diocèse (Ve–XIIIe siècle)’, in F. Mazel, ed., L’espace du diocèse dans l’occident médiéval (Ve–XVIIIe siècle) (Rennes, 2008), 23–65. Gillian Clark (personal communication) suggests to me that Augustine may have obtained a copy of the canons from Carthage. ODCC, s.v. ‘Nicaea’. C. H. Turner, ed., Ecclesiae Occidentalis monumenta iuris antiquissima, fasciculi primi pars altera Nicaeni Concilii praefationes capitula symbolum canones (Oxford, 1904), 153: ‘Interpretatio quae dicitur Gallica. Saeculo ut videtur quarto confecta’; 178, notes to left-hand column: ‘Interpretationis quae Gallica uocatur auctorem hominem fuisse priscum (quarti scilicet saeculi) ex eo potissimum patet quod res proprie Christianas per uocabula singularia et ab iis quae communiter in usum uenerunt ualde discrepantia repraesentat . . .’. Cf. also H. Hess, The Early Development of Canon Law and the Council of Serdica (Oxford, 2002), 55–6, 205–6. We cannot assume that a Latin translation was made immediately. E. Schwartz, ‘Die Kanonessammlungen der alten Reichskirche’, in Zeitschrift der Savigny Stiftung für Rechtsgeschichte 56, kanonistische Abteilung 25 (1936), 1–114, at 44, comments that ‘Die

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about their diffusion. Recent work on a medieval general council has shown that awareness of the contents of its decrees spread slowly; even after more than a century of the medieval reformed papacy, there was no ‘recognisable mechanism for ensuring their promulgation’.23 It does indeed seem possible that the contents of canons of Nicaea were little known until the fifth century at least. This may help explain why questions apparently settled by Nicaea were put to the apostolic see. One of the Council of Nicaea’s canons ruled that the see of Jerusalem (‘Aelia’) should be subordinate to Caesarea.24 ‘By trying to maintain a correspondence with the secular administration the ecclesiastical hierarchy was out of synch with the new geography of sacred pilgrimage.’25 The clerical hierarchy had to deal with another Christian hierarchy in the century after Constantine: by the end of the century, the imperial government was a Christian system with autonomous dynamics. In fact, from Constantine on emperors showed a tendency to try to run the Church. It is true that, as stressed above, by c. 400 survival was a higher priority for the imperial government in the West. Nonetheless, a Christian emperor brought a previously foreign body within the existing hierarchy, complicating its life. Imperial law had become Christian law but it was not necessarily in tune with the ideas of all leading Christians. There was a notable divergence between imperial marriage law and a particular theological tradition represented most famously by Augustine of Hippo, a strong advocate of the indissolubility of marriage. (It should be said that there was also a softer-line view, softer for husbands anyway, represented by Ambrosiaster – second half of fourth century. He was for allowing a husband to divorce an adulterous wife and remarry.26) Was the imperial

23 24 25 26

römische Presbyter, die Papst Silvester auf der Synode vertraten, werden ein Exemplar der griechischen Kanones heimgebracht haben; . . . damit war nicht gegeben, daß gleichzeitig eine lateinische Übersetzung angefertigt und diese eine die allein maßgebende wurde.’ Schwartz argues plausibly (ibid., 45–7) that shortly after 402 Rufinus of Aquileia translated the Nicaean creed and an extract from the canons into Latin as an appendix to his translation of the Ecclesiastical History of Eusebius, that this was the Latin version read at the Carthaginian synod of 419, and that Innocent I may have been the channel of transmission, after he had had the creed and excerpt copied from Rufinus’s work. Schwartz is not saying that the African bishops needed this for their own understanding of Nicaea: he thought that knowledge of Greek was better in Africa than in Rome. D. Summerlin, The Canons of the Third Lateran Council of 1179: Their Origins and Reception (Cambridge, 2019), 245. P. L’Huillier, The Church of the Ancient Councils: the Disciplinary Work of the First Four Ecumenical Councils (New York, 1996), 53–6. R. van Dam, ‘Bishops and Society’, in Casiday and Norris, eds., Cambridge History of Christianity, ii, 343–66, at 351. P. L. Reynolds, Marriage in the Western Church: the Christianization of Marriage during the Patristic and Early Medieval Periods (Leiden, 1994), 183.

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version of Christian marriage compatible with the hard-line Christian intellectual tradition? The aim of the Christian emperors was ‘to make divorce more difficult, and to ensure that persons did not divorce without good cause’;27 ‘they aimed to bring the law of divorce into line with Christian teaching, but . . . what they knew as the Christian doctrine of marriage was less dogmatic and less theological than the doctrine of men like Tertullian, Ambrose, Jerome and Augustine’.28 In fact, it has been argued that the emperor Julian, reacting against Christianity, had reversed the tendency to make divorce harder and that the law was not toughened until 421.29 If so, the gap between secular law and hard-line religious thought on the indissolubility of marriage was all the greater. Still, after Julian’s death the empire was committed to Christianity, so we are seeing a conflict between two Christian systems. If Christian imperial legislation was soft on divorce, while obviously Christian in other respects, we should characterize the divorce laws as an alternative Christian view of marriage, and note the absence of Christian consensus. Could the hard-line Christian doctrine of marriage be translated into law at all, or did it amount to no more than a theoretical ideal? Practical enforcement of two kinds was possible. Couples might want their marriages to be blessed by a priest, though this ritual was only available for first marriages. Ecclesiastics could refuse to bless a first marriage if they believed that one of the couple had been married before. Second, the clergy would mostly be married, though continent as they approached the point of promotion to deacon, if they wanted that. Clergy really could be controlled by their bishops, because a cleric depended for legitimation on his bishop. Consequently, marriage law had teeth so far as it applied to the clergy. Clerics and Monks The clergy were the priests, deacons, subdeacons, and lesser orders who clustered around bishops in cities, the bishops being recruited from their number until monks began to get those key positions. The ordinary clergy 27 28 29

Ibid., 62, and D. L. d’Avray, Medieval Marriage: Symbolism and Society (Oxford, 2005), 77–8 note 8. Reynolds, Marriage, 64, cited by d’Avray, Medieval Marriage, 78 note 8 from 77. Reynolds, Marriage, 131–2; G. Nathan, The Family in Late Antiquity: the Rise of Christianity and the Endurance of Tradition (Abingdon, 2000), 111 and note 31, notes that ‘It is possible that further laws governing divorce were passed between the late fourth century and the law of 421, though none survive.’ See also R. Bof and C. Leyser, ‘Divorce and Remarriage between Late Antiquity and the Early Middle Ages: Canon Law and Conflict Resolution’, in K. Cooper and C. Leyser, eds., Making Early Medieval Societies: Conflict and Belonging in the Latin West, 300–1200 (Cambridge, 2016), 155–80, at160.

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were hierarchical. The hierarchy was orientated towards the bishops and priests, because of their ritual powers. The self-image of the clerical hierarchy was in some sense a continuation of the religious hierarchy of Israel as found in the Old Testament, in that the distinction between priests and Levites was maintained. A sign of this is that deacons were often called Levites (and the same word, sacerdos, was often used for both bishops and ordinary priests). But the hierarchy of the clergy had a second model, the hierarchy of imperial service with its cursus honorum. The promotion expectations of a cleric resembled promotion prospects in imperial service. In the army, promotion ‘was . . . more or less automatic by length or service, varied by merit or graft’, according to A. H. M. Jones.30 Similarly with the imperial civil service: he comments that as a rule ‘a clerk, once enrolled in an office . . . remained in it for life, and rose by strict seniority, until ultimately, if he stayed the course and survived, he reached the headship of his office or department’.31 As a contemporary of the system (Procopius) explained it: ‘those who serve the emperor or the ministers in Constantinople either under arms or as clerks or otherwise are originally placed at the bottom of the lists, and as time goes on advance into the places of those who die or retire in their several departments until eventually they gain the first place and reach the summit of honour’.32 In a similar way, clerics were meant to move up the ladder, rung by rung, at decent intervals, until they reached the top.33 What exactly those intervals should be was not so clear, but the hierarchical structure was taken for granted. The convergence of Roman and Jewish traditions can only have reinforced the hierarchical way of thinking. By the late empire, this clerical hierarchical system already had a long history of development behind it.34 The character of the Christian elite was complicated from the third century on, however, by the appearance of monks alongside the clergy and the subsequent partial interpenetration of the two systems. Monasticism began as an almost entirely unhierarchical social system.35 The monastic movement seems to have begun with hermits in the Egyptian desert. It rapidly spread and also began to take a community 30 31 34

35

A. H. M. Jones, The Later Roman Empire, 284–602: a Social Economic and Administrative Survey, 3 vols. (with a maps volume) (Oxford, 1964), ii, 633. Ibid., 602. 32 Ibid., 604. 33 PJc.400, 68–71. A. Faivre, Naissance d’une hiérarchie: les premières étapes du cursus clérical. Théologie historique 40 (Paris, 1977); R. E. Brown and J. P. Meier, Antioch and Rome: New Testament Cradles of Catholic Christianity (New York, 2004), 175, 179, 211–12. O.-G. Oexle, ‘Mönchtum und Hierarchie im Okzident’, in D. Iogna-Pratt, F. Bougard, and R. Le Jan, eds., Hiérarchie et stratification sociale dans l’Occident médiéval (400–1100), 185–294.

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form: cenobitic monasticism.36 It could be wild. As Peter Brown memorably put it, ‘Among such men, a life of harsh obedience and continuous effort to control one’s thoughts and body had created an atmosphere of explosive aggression . . . Bands of monastic vigilantes . . . patrolled the towns of Upper Egypt, ransacking the houses of pagan notables for idols.’37 This kind of violence probably explains a 390 decree of the emperors Valentinian, Theodosius, and Arcadius that ‘If any persons should be found in the profession of monks, they shall be ordered to seek out and inhabit desert places and desolate solitudes.’38 Presumably the emperors thought that violent monks would do less damage if kept away from towns. But monasticism was rapidly evolving, and monks clearly had powerful advocates. Only two years later the emperors write (this time from Constantinople) that ‘We direct that the monks to whom the municipalities had been forbidden, since they are strengthened by judicial injustices, shall be restored to their original status . . . We grant them free ingress into the towns.’39 Monasticism was in flux, and it was not easy for emperors to integrate it into their legal system.40 The first of the two rescripts just mentioned probably reflects a reaction against monastic violence. The second is a recognition that monks were there to stay as part of the social order. By the early fifth century monasticism was becoming part of the establishment, as the recruitment of monks as bishops, over the heads of local clergy, clearly shows. Now there were two elites, potentially in competition. Even aside from career competition, relations between the two elites would always be problematic. They had different legitimations. The status of the clergy was believed to derive ultimately from the apostles, who had handed on their authority to their successors, and ritual powers to priests generally. The status of monks derived from abnegation and asceticism. As Max Weber pointed out long ago, in a passage which should be compulsory reading for all historians of late Antiquity and the Middle Ages, it is hard to find a parallel elsewhere in history to 36

37 38

39 40

For an excellent summary of the development of monasticism in ancient society, see H. Chadwick, The Church in Ancient Society: from Galilee to Gregory the Great (Oxford, 2001), chapter 42, 394–410. P. Brown, The World of Late Antiquity (London, 1971), 103–4. The Theodosian Code and Novels and the Sirmondian Constitutions, translated by C. Pharr, T. Sherrer Davidson, and M. Brown Pharr (reprint from Princeton, 1952 edition), 16.4.3, 449. Theodosian Code, transl. Pharr et al., 16.4.4, 449. For their efforts to do so see S. Rubenson, ‘Asceticism and Monasticism, I: Eastern’, in Casiday and Norris, eds., Cambridge History of Christianity, ii, 637–68, at 664.

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this two-elite system.41 Matters were further complicated when some monks joined the clergy, so that the two elites were only imperfectly distinct. As with most of the interaction problems discussed above, the problem is not so much conflict as complexity. Quasi-autonomous systems each evolving independently are unlikely to be compatible in all respects. Friction is to be expected from a multitude of subsystems with lives of their own. The Ritual Status of Returning Heretics The systems of penance, baptism, and also ordination needed to be coordinated with what one may call the Church’s ‘heresy system’. ‘Heresy’ was a system of categorizing and dealing with those who held doctrinal views believed to be doctrinally wrong (so both sides of a debate could and did regard each other as heretics). This development was unusual in the ancient world, and difficult to find outside Christianity: the ‘tendency to try to shape a theological discourse of precision made the church a different kind of social organisation from most religious associations of the ancient world. Cultic practices did not normally carry “teachings”, the denial of which meant exclusion.’42 Early divisions centred on the relation between Christianity and Judaism. The conference described in the New Testament, Acts 15, decided that only a limited observance of Jewish Law should be required of Christians, but some Jewish Christians held to the Law.43 This is the kind of splintering over ritual and practice common in Judaism itself. At the other end of the spectrum from Jewish Christians, the rejection of the whole Jewish heritage was proposed in the mid-second century by Marcion, who 41

42 43

M. Weber, Hinduismus und Buddhismus, in Gesammelte Aufsätze zur Religionssoziologie, ii (Tübingen, 1988), 358: ‘Diese Entwicklung der Guru-Gewalt zur Menschenvergottung kann lehren: welche gewaltige Bedeutung im Occident die Entwicklung der Papstgewalt gehabt hat. Sie hat zunächst die Mönchskirchen des Missionsgebiets, die irische und ihre Ausläufer vor allem, unterworfen, indem sie zugleich legitimierte: sie nahm die Ordensgründungen der Mönche in ihre straffe amtliche Disziplin. Nicht der persönliche überweltliche Gott, den die Hindugläubigkeit gerade der Sekten ja auch kannte, sondern das Erbteil des antiken Rom: die bischöfliche Amtskirche, hat die in Indien eingetretene Entwicklung des Mönchtums zur Menschenanbetung verhindert. Nicht, wohlgemerkt, die starke hierarchische Macht des Papsttums also solche – denn auch der Dalai Lama ist und die großen Klostersuperioren der Sekten Indiens waren höchst machtvolle Hierarchen. Sondern der rationale Amts-Charakter der Verwaltung war das Entscheidende und gegenüber dem persönlichen oder Erbcharisma der Gurus Unterscheidende.’ F. M. Young, ‘Monotheism and Christology’, in Mitchell and Young, eds., Cambridge History of Christianity, i, 452–69, at 468. Chadwick, The Church in Ancient Society, 11; J. Marcus, ‘Jewish Christianity’, in Mitchell and Young, eds., Cambridge History of Christianity, i, 87–102.

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distinguished between the Old and the New Testament God, and produced a canon of biblical books that looked right to him. He left out the Old Testament and edited out as interpolations, or interpreted as criticisms, the references to the Old Testament in his canon.44 The widespread rejection of Marcion’s theory will have developed a sense among Christian intellectuals that theoretical differences mattered.45 Marcion’s synthesis of ‘popular philosophical theology’46 with a selection of sacred texts adumbrates the intellectual but accessible character of so many future theories condemned as heresies. A further stage is conciliar condemnation, communicated to the Church generally. The earliest real case seems to be the condemnation in 268 by a council at Antioch of its bishop, Paul of Samosata,47 for his views about the relation of Christ to the divinity. The letter of condemnation was addressed to the bishops of Rome and Alexandria but intended for all the provinces of the Church.48 This foreshadows the Council of Nicaea, especially since the emperor (though pagan) was asked to enforce the deposition of Paul.49 Paul of Samosata’s followers make an appearance in one of the practical canons that follow the dogmatic part of the Council of Nicaea. Canon 19 declares that ‘Paulianists who return to the Catholic Church . . . must absolutely be rebaptized.’50 The relation between baptism and heresy was not a given, however. The Council of Arles of 314 had ‘corrected the African view that baptism by heretics is invalid’51 – i.e. they accepted heretical baptism.52 Thus, the baptismal system needed to be harmonized with the – in themselves entirely separate – systems for handling repentant heretics. The condemnation of doctrinal deviance turned into a highly developed system in the first four Christian centuries, perhaps more so and on a higher theoretical level than in any other major religion.53 Whether returning 44 45 47 48 50 51 52

53

Chadwick, The Church in Ancient Society, 89–92; H. Y. Gamble, ‘Marcion and the “Canon”’, in Mitchell and Young, eds., Cambridge History of Christianity, i, 195–213. ODCC, s.v. ‘Marcion’. 46 Gamble, ‘Marcion’, i, 198. Young, ‘Monotheism and Christology’, i, 467–8; Chadwick, The Church in Ancient Society, 166–8. Young, ‘Monotheism and Christology’, 467. 49 Ibid., 467–8. L’Huillier, Church, 78, with commentary 79–83. K. Pennington, ‘The Growth of Church Law’, in Casiday and Norris, eds., Cambridge History of Christianity, ii, 386–402, at 391. Gillian Clark (personal communication) reminds me of the parallel with ‘Augustine’s later anti-Donatist line that the unworthiness of the minister hindereth not the effect of the sacrament’. J. R. Lyman, ‘Heresiology: The Invention of “Heresy” and “Schism”’, in Casiday and Norris, eds., Cambridge History of Christianity, ii, 296–313. For other religions see the good entry s.v. ‘Heresy’ in J. Bowker, ed., The Oxford Dictionary of World Religions (Oxford, 1997). Closest to the Christian system as developed in the Roman Empire

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heretics should do penance, and whether their priestly orders could be accepted, lined up alongside heretical baptism as sources of uncertainty. There was no easy and mechanical solution to the problem of heretical baptism. In 428 a letter was sent to Nestorius of Constantinople from Ephesus, giving a list of heresies whose baptism is accepted (Arians,54 Macedonians, Novatians, Quartodecimans, and Apollinarians) and another of heresies converts from which are received as pagans (Eunomians, Montanists, Sabellians); the letter was added to the canons of the Council of Constantinople (381) by the late sixth-century work of Byzantine canon law, the Syntagma in XIV Titles.55 This gives some indication of the complexity of the issue. A similar problem arose with heretical ordination. Nicaea had a ruling about that too, in connection with Novatians, who were, like the Donatists, on the rigorist wing of Christianity, sharing with them a hardline attitude to apostasy under persecution. Novatian went further than the Donatists in that he thought that God would not forgive apostasy or indeed any serious sin56 – so no penance, and no rebaptism either. As noted earlier, Novatians absolutely rejected second marriages, according to the historian Socrates of Constantinople.57 The exclusiveness of the sect tracing itself back to Novatian did not prevent acceptance by Nicaea of the orders of members of their clergy who returned to the fold: ‘having received the imposition of hands, [they] should then remain in the clergy’ (after renouncing their errors in writing); ‘when in the cities or villages there are only clerics ordained by these “pure ones”, let them keep their status’ – though if there is a Catholic bishop in the place he remains the bishop.58 So much for Novatians, but they were only one sect; the orders of heretical clergy would be a recurrent problem for a long time to come.

54

55

56 57

58

would seem to be the Third Council in early Buddhism (250 bce): see ibid., s.v. ‘Councils: . . . Buddhism’; the degree to which the Buddha’s nature was essentially human was at issue at one of the early Buddhist councils (details disputed). The Arians appear not to have accepted the baptism of those who joined them from outside the movement: K. Schäferdiek, ‘Germanic and Celtic Christianities’, in Casiday and Norris, eds., Cambridge History of Christianity, ii, 52–69, at 57. L’Huillier, Church, 111, 131. For the Syntagma in XIV Titles see H. Ohme, ‘Sources of the Greek Canon Law to the Quinisext Council (691/2): Councils and Church Fathers’, in W. Hartmann and K. Pennington, eds., The History of Byzantine and Eastern Canon Law to 1500 (Washington, DC, 2012), 24–114, at 25. H. J. Vogt, Coetus Sanctorum: der Kirchenbegriff des Novatian (Bonn, 1968), 146, 291. Socrate de Constantinople, Histoire ecclésiastique, Livres IV–VI, texte grec de l’édition G. C. Hansen, traduction par Pierre Perichon et Pierre Maraval (Paris, 2006), paragraph 60, Livre V, 232–3. Cf. M. Wallrath, ‘Geschichte des Novatianismus seit dem vierten Jahrhundert im Osten’, Zeitschrift für Antikes Christentum 1 (1997), 251–79, at 278. L’Huillier, Church, 57.

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Conclusion The complex interaction of different Christian systems created a series of uncertainties: about how to coordinate different ritual systems (e.g. baptism and the ritual year), about hierarchy (e.g. relation of the chain of command to status hierarchy), about the relation between the clerical elite and the monastic elite, and about the ritual status of heretics. These were practical problems, but there was also uncertainty, or rather, there were contradictory certainties, on a more theoretical level, about free will and grace.

4

c. 400: Uncertainty about Grace

Decisions about what to do, and value-directed instrumental calculation, were involved in the uncertainties analysed in the preceding chapter. A problem without immediate practical implications arguably tested the harmony of the Christian empire more than any of them. This was the argument about free will, grace, and predestination associated with the British layman Pelagius. Thanks to the polemic against him organized by Augustine of Hippo, it would leave an indelible mark on Christian history. A common interpretation of the Pelagian controversy runs something like this.1 Pelagius was a highly cultured British intellectual living in Rome. He got on well with devout aristocrats who practised an intense form of Christianity, and he was shocked by the laxity of many others who enjoyed life in a society where it was actually advantageous to be Christian. He thought that goodness was in principle within everyone’s reach, and did not think in terms of original sin. Christians needed to take responsibility for their actions and work with grace towards the ideal of a perfect life. ‘Like many reformers, the Pelagians placed the terrifying weight of complete freedom on the individual . . . [E]very sin . . . could only be a deliberate act of contempt for God.’2 They had a real choice. Pelagius set the moral bar very high. These views and those of his young fan Caelestius became well known to the African Church where Augustine was intellectually dominant. Pelagius spent some time in Africa (Rome being dangerous because of the Goths), before moving on to Palestine. He did not meet Augustine in person. Augustine reacted against his views. He believed that the average person could still make it to heaven3 – if baptized and one of the elect. Augustine had come to believe in a hard-line form of predestination. He campaigned against Pelagius or anyone who adopted the views attributed to him and lined up many African bishops against these individuals or 1 2

P. Brown, Augustine of Hippo: a Biography (Berkeley, 1969), 340–407, is an exceptionally evocative version. Ibid., 350. 3 Ibid.

47

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views. The result was three communications sent to Innocent I: letters from synods at Carthage and Mileve, and another from Augustine and a select group of bishops. Peter Brown comments that ‘These documents had all the marks of a “witch-hunt”’4 – one which was just beginning. It is to these three letters that the decretals of Innocent I written ‘in the shadow of Augustine’ reply5 (more on that below). A different picture emerges from a stimulating recent study by Ali Bonner.6 She argues that ‘Pelagianism’ was invented in order to bring into disrepute the two principles of the goodness of human nature and effective free will; and that this was achieved by making the name Pelagius toxic and tarring his teaching by association with selfevidently unacceptable propositions, thereby facilitating the establishment of alternative theses as orthodox dogma. The goodness of human nature and effective free will were longstanding principles of Christian belief that had to be displaced if the doctrines of original sin, an absolutist account of prevenient grace [divine grace anticipating any movement of human free will], and predestination interpreted as preordainment were to be installed as orthodoxy.7 ... The motive for the invention of ‘Pelagianism’ was to install as dogma the doctrines of original sin, an absolute account of prevenient grace, and predestination interpreted as preordainment. The means by which this was attempted included the official condemnation of Pelagius, which attached a label of heresy to him, destroying his reputation, and was achieved by political means.8

Pelagius didn’t start anything: he ‘did not suggest anything that was not already in wide circulation in Christian discourse’.9 Bonner invokes deviance theory, otherwise known as labelling or (her preferred term) interactionism.10 For a rule to be installed successfully, a necessary part of the process is that someone has to be found breaking the rule and be convicted for breaking it . . . [O]bservations made by interactionist theorists about the processes involved in the creation of rules and the behaviour of moral entrepreneurs are relevant to the study of the controversy about original sin, prevenient grace, and predestination interpreted as preordainment because they offer a disinterested analysis of the concept of deviance produced in a an entirely unrelated context which is of universal application, and which exactly describes the process visible in the condemnation of Pelagius . . .11 4 6

7 9 11

5 Ibid., 358. PJc.400, 221–52. A. Bonner, The Myth of Pelagianism. British Academy Monographs (Oxford, 2018). For an earlier study calling into question the existence of a coherent ‘Pelagianism’ see K. Cooper, The Fall of the Roman Household (Cambridge, 2007), 23, 169–70 (with further references). 8 Bonner, Myth, 260. Ibid., electronic version abstract at start of chapter 6, 260. Ibid., 28. 10 Ibid., 266–7. For a similar approach, see M. Kahlos, Religious Dissent in Late Antiquity, 350–450 (Oxford, 2020), 116–18, esp. 118: ‘For mainstream leaders, especially the fifth-century

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It was all about power, according to Bonner. ‘George Zito observed that the collective response invoked by the rule-creator was always proposed in the name of collective unity . . . According to Zito, beneath the accusation of heresy: “Lies that ‘will to power’ by which groups seek to appropriate the world for their own purposes and gratification.”’12 The ‘process can best be understood as a power struggle between adherents of different approaches to Christian anthropology and soteriology. Status and authority were at issue, and they drove the heresy accusation.’13 An interactionist analysis of the controversy might lead us to see it as an instance of the perennial conflict over the power to control, between ascetic Christians seeking imitation of Christ’s way of life as near perfect as they could achieve in a situation of autonomy, and bishops wanting to extend their control over all Christians. The controversy would therefore be viewed as another battle for authority. Rather than characterising it, as Peter Brown did, as a clash between a perfectionist exclusive brand of Christianity and a moderate inclusive brand, in fact the motivation of the two sides would be, respectively, an individualistic desire for autonomy based on a person’s own relationship with God, versus an episcopacy keen to maintain control over congregations through control of access to salvation, motivated by desire for authority and power.14

A distinction is drawn between ‘moral entrepreneurs’ who create new rules (in this case acceptance of Bonner’s trio of original sin, prevenient grace, and predestination) and those who merely enforce them, who have less of a personal stake in the rules and enforce them with less rigour. As the creator of the new rules, Augustine was more uncompromising than on other issues: [W]hat has been seen as the moderate inclusiveness of Augustine’s approach to Christianity might more accurately be seen as professional, as the attitude of a man dealing with congregations, who could not seek to impose all God’s commands on all Christians. However, when it came to rules which he had himself played a part in creating, he had the absolute ethic of the moral crusader as rule-creator.15

‘Pelagianism’ was invented in order to delegitimize consensus principles concerning the anthropology and soteriology of Christianity by bringing those ideas into disrepute, though they had been entirely normal and orthodox up to that point.16

12 16

bishops of Rome, condemning and disciplining Pelagians – or rather a variety of forms of private and domestic religiosity under the blanket term of Pelagians – offered the possibility to enhance their own positions; in the case of the bishops of Rome, this meant extending beyond their episcopal jurisdiction to other regions in Italy and the western provinces. Consequently, Pelagianism was useful indeed.’ Bonner, Myth, 276. 13 Ibid., 279. 14 Ibid., 286. 15 Ibid., 269. ‘The evidence presented . . . suggests that the only grouping that really existed was the ascetic movement, within which there were a multitude of different combinations of views’ (ibid., 215).

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Contra Bonner, one may question if this is really a conflict between specifically episcopal power and an unorganized but recognizable (and recognizably orthodox) ascetic tradition. That thesis would indeed have been an attractive addition to a recurrent argument of this book, about the difficulty of coordinating incompatible systems – but it does not stand up. Pelagius had strong episcopal support, above all from Julian of Eclanum but also from the many bishops who resigned with him when Zosimus condemned Pelagius, and earlier at the Council of Diospolis. Half buried by Bonner’s thesis about the ‘will to power’ is another, persuasive line of argument. She draws attention to the series of commentaries on St Paul written in the late fourth and early fifth centuries,17 also emphasized by Peter Brown (‘The last decades of the fourth century in the Latin church, could well be called the “generation of S. Paul”’18). It will be remembered that it was reading St Paul’s Epistle to the Romans that helped set Luther on the road to religious revolution. But interpreting St Paul is not straightforward: ‘at exactly the same time as Augustine was speaking on Paul in Carthage, his future opponent, Pelagius, was presenting a radically different Paul to the circle of his friends in one of the great palaces of Rome’.19 St Paul could be read in the light of two different theologies: on the one hand the idea that ‘no one was excluded from God’s salvific will and Christ’s redemption of humanity‘, and, on the other, ‘the exclusivity of predestinarianism’; ‘The bigger picture is important here; these tensions were inherent within Christian Scripture. This was a systemic clash, not a matter of individuals.’20 Romans 8:29–30 – ‘those whom he foreknew, and predestined . . . those he predestined he also called and those he called he also justified’ – can certainly be read in a deterministic way, to suggest that individuals cannot alter their eternal fate, but Pelagius read it quite differently: 29. For those he foreknew. The purpose according to which he planned to save by faith alone those whom he had foreknown would believe, and those whom he freely called to salvation he will all the more glorify as they work [towards 17

18 20

‘To understand the creation of the myth, the theological background is important, and in particular the flowering of Pauline exegesis in Latin in the second half of the 4th century . . . [commentaries by Marius Victorinus, Ambrosiaster, Jerome, Augustine, Pelagius] . . . The increased interest in and interpretation of Paul’s letters brought previously unexplored issues to the fore’ (ibid., 264). Brown, Augustine, 151. 19 Ibid. Bonner, Myth, 284; cf. H. Chadwick, The Church in Ancient Society: from Galilee to Gregory the Great (Oxford, 2001), 447, on the Pelagian conflict as manifesting issues that ‘are perennial in Christian history’. Note his comment, ibid., that the questions ‘were no reflection of the political and economic troubles of the empire’s citizens in that age, from which the theological and anthropological problems of the main protagonists were quite remote.’

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salvation]. He also predestined to be called to the image of his Son. To predestine is the same as to foreknow. Therefore, those he foresaw would be conformed in life he intended to be conformed in glory . . . 30. And those he predestined he also called, and those he called he also justified, and those he justified he also exalted. Those he foreknew would believe he called . . .21

The elect are chosen because God knew in advance (to put it in human terms, since God is not in time) that they would accept faith. Another core Pelagian idea is unambiguously expressed in the Romans commentary, on (5:12), the words ‘Therefore, just as through one person sin came into the world, and through sin death.’ Pelagius glosses it as ‘By example, or by pattern’.22 Pelagius explains that the death that followed was spiritual death. He glosses ‘death was passed on to all people’ accordingly: ‘But here he says all are dead because in a multitude of sinners no exception is made for a few righteous’,23 which seems to mean that the overwhelming majority of the human race followed Adam’s bad example, so that St Paul did not mention the few righteous exceptions. Bonner refuses to use Pelagius’s commentary on the Pauline epistles, claiming that it is too hard to eliminate interpolations.24 This is perhaps a little hard on the modern editor, who marked off possible interpolations by brackets. The general methodology can come close to a barrister’s. She rules as inadmissible any sources other than purely authentic works by Pelagius.25 This enables her to concentrate on his uncontroversial ascetic works.26 Her certainty that the ascetic writings give a complete picture of Pelagius’s views expressed orally or in lost writings seems overbold. She rejects out of hand even the possibility that the views condemned by Augustine and the African bishops could have been in circulation either in lost texts (though texts deemed heretical were less likely to be copied) or oral discussion. One might just as well assume that racist views in the modern West are just a construction of the politically correct, as they are seldom committed to writing. 21 22 25

26

T. de Bruyn, ed. and transl., Pelagius’s Commentary on St Paul’s Epistle to the Romans (Oxford, 1993), 112. De Bruyn, Pelagius’s Commentary, 92. 23 Ibid., 92–3. 24 Bonner, Myth, xvii–xviii. ‘I . . . consider hearsay concerning Pelagius’s teaching as reported by his opponents inadmissable as evidence’ (ibid., xviii); or: ‘Did any individual hold the assemblage of tenets that Augustine identified as comprising “Pelagianism”? The evidence for Pelagius is a clear “no”. For other known figures in the story, the answer is either also “no” or their writings do not survive for us to know. Hearsay evidence about what Pelagius taught as reported by his opponents is inadmissable’ (ibid., 212). This would be all very well in a court of law, but given so many texts have been lost, and when oral theological culture was so intense, one certainly cannot assume that nothing existed which we cannot now document. As a general rule, then as now, controversial ideas are more likely to be aired orally than committed to writing with the danger of consequences. Pointed out to me by Thomas Charles-Edwards in a personal communication.

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The clash of convictions between Pelagius and Augustine was real, and both could claim to derive their convictions from the Bible. It is fairly certain that Pelagius thought that grace was given in the first place from God’s foreknowledge of merit, and entirely possible if unprovable that other ideas attacked by the African Church were ‘in the air’. Bonner herself admits – even without taking into account Pelagius’s commentary on Romans, discussed above – that one of the Pelagian propositions attacked by Augustine was not an invention, namely that ‘God’s grace is given in accord with our merits, and for this reason grace itself is located in the human will, whether one becomes worthy or unworthy’: Pelagius did assert that ‘God’s grace was given in accord with merit.’27 Uncertainty about such matters is evident in the history of Augustine’s own views about grace and free will, which changed quite dramatically. Scholars disagree about his early views after conversion,28 but there is a consensus that in the mid-390s at least he allowed space for human merit and choice,29 before ending with a concept of grace diametrically opposed to the one articulated in Pelagius’s commentary on Romans 8.30 He turned away from free will as choice between alternatives while dealing with questions from an old friend from his Milan days, Simplicianus, who had helped with his conversion.31 His rejection of human merit was by no means the only way of interpreting the Bible on the ways of God to man, but (like Pelagius’s opposing view) it was certainly a possible and honest interpretation, not just a power play. The language of Augustine and subsequent predestinarians, like Calvin, can be elucidated by the concept of ‘compatibilism’, taken seriously by many philosophers: the idea that free will and determinism are compatible.32 On this view, free will means an absence of external compulsion. Before any given decision, there is always one choice that seems – from the perspective of the individual at the time – to be the best one, and the individual will freely make that choice. Augustine came to think that the elect, those whom God has chosen, will ultimately make the right choices, while the rest will ultimately make the wrong choices – voluntarily in both cases. 27 28

29 32

Bonner, Myth, 16. Brown, Augustine, passim, and many other scholars, think that in his first Christian phase he believed in the power of the will to choose between alternatives, but C. Harrison, Rethinking Augustine’s Early Theology: an Argument for Continuity (Oxford, 2006), 279–80 and passim, argues that his early views and late views matched. Ibid., 140–1, 280. 30 Cf. ibid., 287. 31 Brown, Augustine, 106. Bonner, Myth, 263 writes that sometimes Augustine ‘asserted that human free will did still exist without acknowledging the logical flaw in maintaining that effective free will existed alongside absolute prevenient grace and predestination interpreted as preordainment’ – which suggests that she isn’t aware of ‘compatibilism’.

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As we have seen, and leaving aside the argument about his early views, the later Augustine ‘was a compatibilist – even about pre-lapsarian wills . . .’.33 That is to say, he came to believe that even the choices of Adam and Eve were foreordained by God – probably meaning that their decision to do wrong was not forced on them by God, but, rather, the result of an absence of causation of good by God – a deficient cause rather than an efficient cause,34 so that Augustine can escape the label ‘determinist’. Nonetheless, a thorough study of the position Augustine reached, after discarding the possibility that humans could reject grace, concludes that in the end, for him, ‘man is a puppet, free in the sense only of being arranged to act in a way which is not subject to external pressures’.35 Converging with Augustine’s trajectory towards (or perhaps his helical return to) a merely compatibilist understanding of free will was a further current of thought, which may have contributed to the pessimistic view of human nature unaided by grace evident in the letters from the councils of Carthage and Mileve. It is intellectually distinct from the predestinarian teaching. The current in question was the early Christian ‘Encratite’ movement and its belief that procreation transmitted hereditary guilt.36 Recognition of the influence of Encratite thought on Augustine has been the work of the last generation. Grace and Free Will: Conclusion Influence of the Encratite tradition helps account for the pessimistic colouring of Augustine’s view of human nature, but we have seen that this is far from being the whole story, in which a turning point was his attempt to answer the questions of Simplicianus and explain what it could mean to say that God hated Esau. The sacred books which both he and Pelagius accepted without question could bear either of their probably honest interpretations of grace. Even modern scholars can react strongly in opposite directions to this fifth-century controversy: an Ali Bonner hardly conceals her dislike of Augustine’s idea of grace, whereas a Carol Harrison can write of it with a moving eloquence that shows either real admiration or a most impressive suspension of disbelief.37 While twenty-first-century society is comfortable with pluralism, fifth-century Christianity was not. 33 34 35 36 37

J. Couenhoven, ‘Augustine’s Rejection of the Free Will Defence: an Overview of Late Augustinian Theodicy’, Religious Studies 43 (2007), 279–98, at 286. Ibid., 288–9. J. Rist, ‘Augustine on Free Will and Predestination’, Journal of Theological Studies n.s. 20 (1969), 420–47, at 440. PJc.400, 219, with reference to the findings of P. F. Beatrice. Harrison, Rethinking, passim.

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Contradictory certainties must have generated both uncertainty and unease among those not committed to either side. Towards an Explanation of Origins Uncertainty about grace may be added to the other kind of uncertainty discussed in the previous chapter, deriving from incompatibilities between distinct religious subsystems evolving with separate logics. Monasticism, the ‘normal’ clergy, imperial Christianity, theological tradition, status hierarchy and hierarchy of command, the penitential system, the system for dealing with heretics, the various and imperfectly coordinated rituals – all this amounted to a high degree of social complication and uncertainty about how to make the different systems work together. There was uncertainty also about the lines separating non-negotiable principle – practices that fell short of absolute principle, but not by far – so that they were far from a matter of indifference, and genuine adiaphora. The problems of uncertainty and complexity arise in one form or another in most religious systems. Often it is the state that ends up resolving such problems. That tends to be the case in societies where the secular and the religious are not distinguished, which is to say, in most societies outside the Christian tradition, and some within it. The emperor working with the elite of the Church resolved uncertainties and incompatibilities in the Byzantine Empire (where a tendency to avoid disrupting change minimized difficulties, as did a willingness to be flexible in exceptional cases without making precedents out of the solutions). Early modern Protestant states in continental Europe were run by the ruler – in a less conservative spirit. In other societies we find a ‘congregational’ model, in which the concrete community is the unit. Its small size minimizes the need to coordinate subsystems, and uncertainties can be resolved by splitting into different congregations, or, at the individual level, by simply moving to a different congregation – not difficult in towns with a wide range of churches and denominations (or with motorized transport to overcome distance). Baptist Protestantism, Judaism, and also Islam where it is not the official religion, handle uncertainty and complexity in this way. With the cities of the late Roman Empire governed by ‘monarchical bishops’ this congregational model might arguably have been an option, but the geographical mobility of Christians made division within city Churches inevitable. Furthermore, the bishops themselves cannot always have been sure what to do – not to mention conflicts between bishops. In the absence of imperial assistance, therefore, in the Western part of empire it was natural to consult the apostolic see. The imperial governmental system

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might not have been offering answers at that time, but its modus operandi, well remembered from a still recent past, provided a model. Clerical habits of mind were structured by imperial patterns – the clerical cursus was a calque of imperial civil service structures – and the imperial rescript system at the apex of the Roman law was an obvious paradigm for papal rescripts. It is true that the content of the questions and answers was quite different from imperial rescripts, and that the bishops of the apostolic see looked to the New Testament Peter passages for legitimation. For all that, the form and the lofty tone were modelled on imperial legal replies. Like those imperial replies, they would later be incorporated into legal compilations. These were not on so grand a scale as with the Codex Theodosianus and Corpus Iuris Civilis of Justinian, but by the time they were in circulation the foundations of papal law had been laid.

5

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Did the bishops of Rome think they were making case law? Geoffrey D. Dunn, currently the leading authority on Innocent I and his immediate successors, argues that, outside the bishop of Rome’s metropolitan jurisdiction, papal letters of the late fourth and early fifth century offered advice rather than making law.1 On the other hand, Caroline Humfress has highlighted the legal mentality around the bishops of Rome and their imitation of imperial rescript technique: ‘the elaboration of a law specific to the church was achieved through the same mechanisms as the elaboration of late Roman law itself’.2 A passage from Innocent I’s letter to Exsuperius of Toulouse seems to let slip an assumption that letters were akin to law. For if it turns out that there are some men whom that form of ecclesiastical life and also discipline which came from bishop Siricius to the provinces cannot be proved to have reached,3 forgiveness shall be granted to them by a pardon on grounds of ignorance, on the understanding that from then on they start to abstain altogether, and so they may hold on to the ranks in which they were found in such a way as not to be allowed to rise higher: for it is a favour to them that the position which they hold on to is not taken away from them. But if men are revealed to have known about the form of living sent by Siricius, and to have failed to throw aside the urges of lust without delay, these are by all means to be dismissed, since, after knowing what they had been told to do, they decided that pleasure should come first.4

Innocent seems to assume that Siricius’s response to the bishop of Tarragona was binding, and also binding generally, though ignorance of it would count as an excuse. Relevant in this connection is a comment by Zosimus in 418, in a letter to the bishop of Salona in Dalmatia. He is talking about the rules of the cursus of slow promotion through a clerical career. He expresses surprise that ‘the laws laid down by the apostolic see 1 2 3

Cf. D. L. d’Avray, ‘Half a Century of Research on the First Papal Decretals (to c. 440)’, Bulletin of Medieval Canon Law n.s. 35 (2018), 331–74, at 346–8, with further references. C. Humfress, Orthodoxy and the Courts in Late Antiquity (Oxford, 2007), 212: and fuller quotation in PJc.400, 19 note 22. Note the implication that the ruling is new. 4 PJc.400, 145–6.

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[statuta apostolicae sedis] have not been communicated to your beloved self’.5 Leo I in 443 ordered that all the decretals of Innocent I and all his other predecessors be kept.6 These passages tempt one to drop inhibitions about the word decretal. In any case, whether or not the letters of Siricius, Innocent I, Zosimus, and Celestine that would become a staple of canon law collections were ‘legislation’ in the minds of those who issued them, their subsequent history shows that they certainly were laws at least potentially. Analogy with the Common Law System Later responses unpack the meaning of earlier ones, just as in the Common Law tradition judges decide cases and their decisions are then applied to other leading cases, so that the meaning of the original sentence is enhanced. This happens in the modern Common Law legal system too. We can watch this happening to the texts made available in PJc.400. Later fifth-century bishops of Rome, above all Leo I and Gelasius I, legislated in the light of the early decisions, making them available where they were not known (in the absence of widespread canon law collections) but also developing the principles they established. The bishops of Rome from Siricius to Celestine built on fourth-century conciliar legislation, and Leo I and Gelasius I built on earlier responses from the apostolic see as well. Then, from the time of Gelasius on, canon law compilations were increasingly available. Once incorporated in such collections, the letters of Siricius and his immediate successors had definitely become laws, whatever they were when issued. The Word ‘Decretal’ In the light of the foregoing, the word ‘decretal’ will be used for the first responsa of the apostolic see, on the grounds that, even supposing for the sake of argument that they were not originally decretals, they were received as decretals before long. Thus, one can agree with the mainstream of scholarship in dating the start of the papal decretal tradition to 385 and the letter of Siricius to Himerius of Tarragona. Some scholars trace the origins back one pontificate earlier, to Damasus, but the document in question was not incorporated into Western canon law collections and so falls outside the focus of the current investigation. 5 6

PJc.400, 79 and 81. D. Jasper, in D. Jasper and H. Fuhrmann, Papal Letters in the Early Middle Ages (Washington, DC, 2001), 21–2; also discussed below.

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Decretals and Episcopal Power Reception of a letter as law is a criterion of importance for this study but there is an additional sense in which these early decretals can be called law.7 A highly functional definition is that of Max Weber, who wrote that an order can be called ‘law when it is externally guaranteed through the possibility of (physical or mental) compulsion through action, directed to compelling obedience or punishing violation, taken by personnel specifically assigned to do this’.8 Clearly, the apostolic see in late Antiquity had no such power to enforce its rulings. Bishops were not their appointees except perhaps in Rome’s own metropolitan area. Bishops must, however, have been the principal consumers of papal law, and they wanted rules to help them govern and administer their clergy. Now, bishops did have real power to enforce rules on their own clergy. In any regional Church, the clergy depended for legitimation on their bishop, and if their bishop condemned a cleric, the cleric had no place to stand. Power over the clergy also meant some power over marriage in that the clerics would normally be married. Insofar as the clergy were involved with the marriages of the laity, say with regard to marriage blessings, lay marriages came within the range of papal/episcopal law too. Laypeople also came within the range of papal/and episcopal law as participants in the liturgy. The clergy controlled the liturgy and bishops controlled the clergy. In sum, papal laws were law insofar as bishops chose to make them law. Since most of the letters which were later incorporated in decretal collections were responses to bishops, and bishops wrote because they needed rules to help them unscramble the complexities and elucidate the uncertainties of the cases they had to deal with, one may reasonably assume that they used the papal letters in their administration of law. Otherwise, indeed, it is hard to explain why the collections of decretals compiled in the fifth century were for the most part not based on the records of the papacy itself, but taken from local episcopal archives. If we want to understand why bishops wanted these rulings, we need to relate their contents to the complexities and uncertainties of late Roman Christianity, as discussed in the previous three chapters. Baptism and the Ritual Year As argued above, the set of social subsystems we lump together as ‘rituals’ could intersect with each other in such a way as to create uncertainties 7 8

Here I slightly expand the argument in PJc.400, 293. ‘Ein Ordnung . . . Stabes von Menschen’. M. Weber, Wirtschaft und Gesellschaft, 5th ed. (Tübingen, 1976), 17.

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that the apostolic see might be asked to resolve. The system of ritual time needed to be integrated with baptism, for instance, since baptism was not a semi-private affair but involved the whole community, and the liturgical year was a large-scale representation of the key points in the life of Christ and of the religious system generally. There seems to have been some consensus that it was fitting to baptize on special days in the liturgical year, but uncertainty about how many special days. Siricius’s letter of 385 to Himerius the bishop of Tarragona replies to the latter’s report that ‘innumerable people’ get baptized at Christmas, Epiphany, or on feasts of apostles and martyrs.9 Presumably Himerius had his doubts about this practice – otherwise why bring it up? Was he the only one in Tarragona to have doubts? It seems unlikely. What seems likely is that the Church of Tarragona was divided about when one could be baptized; as well they might be: there was no uniform Christian tradition to give an answer. We saw above that there was a major cleavage between a tradition that favoured Epiphany, which celebrated among other things the baptism of Jesus himself by John the Baptist, and a tradition that Easter was the right time. Socrates of Constantinople, it will be remembered, implied that in Thessaly people died without baptism because Easter was the only time allowed for it. Consulted, Siricius seems to belong to the Easter tradition. Furthermore, baptism should be the culmination of a long process that looks rather like ‘Lent’. Forty days or more before Easter, people seeking baptism should give their names in, after which would follow ‘exorcisms and daily prayers and fasts’.10 Note, however, that Siricius takes a softer line than the one attributed by the historian Socrates to Thessaly. Firstly, he allows Pentecost, as a kind of extension of Easter (‘the Pentecost that goes with it’),11 and secondly, he allows baptism at any time when there is danger of death. He gives a list of the possible forms such a danger might take: shipwreck, attack by enemies, a siege, or illness.12 The same exception applies to Penance. Normally the penitent should be absolved on the Thursday before Easter – the parallelism with baptism is close – but if someone is in a terminal illness they can be released from penance so that they can receive communion before they die.13 The Ritual Year and the Ritual Week The Thursday before Easter stood for the Last Supper and the prelude to the Passion, represented by the Friday, and the Resurrection, represented 9

PJc.400, 54.

10

Ibid.

11

Ibid.

12

PJc.400, 55.

13

Ibid., 64.

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by Easter Sunday. These days were the high points of a liturgical year which symbolically stood for the life of Christ. Like the liturgical year though on a smaller scale, the religious week too mirrored the life of Christ, with Friday standing for Christ’s Passion, Sunday for the Resurrection; ‘by the middle of the second century, Sunday had become (at least in Rome) the Christian day for liturgical assembly’;14 it has been suggested that this was an earlier development than Easter itself: Sunday was not ‘a “little Easter” . . . Easter would become a “big Sunday”.’15 Sunday was a natural day for celebration of the risen Christ and Friday for commemoration of the crucifixion, but where did Saturday stand? Uncertainties in the Diocese of Gubbio An answer was offered in 416 by Innocent I, writing to the bishop of Gubbio.16 Gubbio was within Italy, and here the bishop of Rome ruled quite directly, consecrating all the bishops: ‘this state of affairs clearly goes back to the pre-Diocletianic period when there were no Italian provinces’.17 This could in practice have been a ruling just for Italy, though Innocent never says so. Once included in canon law collections,18 in any case, a distinction between Innocent’s answer and responses to more far-flung part would hardly have been noticed. Innocent adopts here as elsewhere a superior, almost patronizing tone,19 but he does not simply command: he also explains. In fact, a feature which is quite generally found in this kind of papal document is a tendency to give reasons rather than simply to lay down a decision. Saturday should continue the Friday fast because the apostles hid for fear of the Jews on both the Friday and the Saturday before the Resurrection; the Easter liturgy follows this pattern, so the week should follow it too. Here the ‘big Easter’ seems to be logically prior to the ‘little 14 15 17 18 19

M. E. Johnson, ‘The Apostolic Tradition’, in G. Wainwright and K. B. Westerfield Tucker, eds., The Oxford History of Christian Worship (New York, 2006), 32–75, at 62. Ibid. 16 PJc.400, 60–1. A. H. M. Jones, The Later Roman Empire, 284–602: a Social Economic and Administrative Survey, 3 vols. (with a maps volume) (Oxford, 1964), ii, 884. PJc.400, 62. ‘Quis enim nesciat aut non advertat id quod a principe apostolorum Petro Romanae ecclesiae traditum est, ac nunc usque custoditur ab omnibus debere servari nec superduci aut introduci aliquid quod aut auctoritatem non habeat, aut aliunde accipere videatur exemplum, praesertim cum sit manifestum in omnem Italiam, Gallias, Spanias, Africam atque Siciliam et insulas interiacentes nullum instituisse ecclesias, nisi eos quos venerabilis apostolus Petrus aut eius successores constituerint sacerdotes.’ R. Cabié, ed., La lettre du pape Innocent Ier à Décentius de Gubbio (19 Mars 416): texte critique, traduction et commentaire. Bibliothèque de la Revue d’Histoire Ecclésiastique 58 (Louvain, 1973), 18 and 20.

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Easter’ of Sunday. If the inference isn’t correct, implies Innocent, then one should stop observing Friday and Sunday in the microcosm of the week. It is a reductio ad absurdum. This tendency towards tight argument will become evident repeatedly. The ruling is one of a number that probably respond to differences of opinion among the clergy of the diocese of Gubbio. Had they been in agreement, inheritors perhaps of a unanimous tradition, or willing to do what the bishop said without question, then there would have been no need to consult the apostolic see. Innocent I writes that ‘You say . . . that there are those who tell the congregations to give the kiss of peace . . . before the completion of the mysteries’20 – the mysteries presumably being the central part of the Mass, around the consecration. That suggests that there were others who gave congregations different instructions. Perhaps the bishop of Gubbio was uncertain himself which was right. Or perhaps he lacked the authority to impose his view and wanted Innocent I to back him up. In replying to a question about the point in the service at which the names of those who had brought offerings were read out,21 Innocent I says that ‘you too yourself . . . know how out of place it is’ to read out the names before the eucharistic prayer.22 The alternative practice that Innocent I rejects was current in Gaul, however, and it may well be that some of the clergy at Gubbio were aware of this, given the geographical mobility and its implications discussed above. In short, what sounds like lordly assertion of papal authority may, in fact, be assistance to the bishop in handling divergences of theory and practice in his own diocese. It is inappropriate to read names prematurely, rather than after the donations have been offered.23 Giving the kiss of peace after the mysteries rather than before is a sign of assent to them and that they are concluded. Baptism and Consignatio In the same letter to the bishop of Gubbio, Innocent I analyses the relation between baptism and other systems: ritual anointing and status hierarchy.24 The composite character of Christian initiation has already been emphasized. Baptism with water was a key liminal moment but tended to be combined by anointing with the oil called chrism – a distinct layer of ritual. Whether this was an embryonic form of the sacrament of Confirmation is perhaps a theological rather than a historian’s question. Innocent assumes that priests can baptize without the bishop being there. If the bishop was there, baptism could be followed by what Innocent calls 20

PJc.400, 49, 58.

21

Ibid., 49–50.

22

Ibid., 59.

23

Ibid.

24

Ibid., 59–60.

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‘consigning’. The language is actually quite reminiscent of later sacramental terminology: Innocent I cites ‘that reading of the Acts of the Apostles which states that Peter and John were sent to hand on the Holy Spirit to those who were already baptized’, and infers ‘that it is the due of bishops alone to administer the ritual of “consignation” or hand on the Holy Spirit’.25 The ‘or’ is probably not an alternative, but an equation between handing on the Holy Spirit and ‘consignation’. Though only the bishop could do this, priests without the bishop could anoint, ‘but with the same oil that has been consecrated by the bishop’; and they are forbidden to ‘mark the forehead with the same oil, this being reserved for the bishops alone when they hand over the Holy Spirit’26 (i.e. anointing the forehead is for the bishop alone to do). Is Innocent I describing existing practice, practice at Rome, or is he making up ritual detail on the spot? His confident tone may conceal improvisation. One can only guess. We can at least note that what he prescribes is pragmatic: allowing for the initiation ceremony to go ahead when a bishop wasn’t available, yet attentive to clerical hierarchy by marking out the special connection between the anointing element and episcopal power. The assurance of his response should not lead us to assume that there was a generally accepted traditional answer to the question of how baptism, anointing, and the hierarchical system should be coordinated. Yet Innocent was probably right to think that a clear-cut answer was desired. Consignatio is a rare word,27 but this ritual element accompanying baptism (and often regarded as an embryonic confirmation ritual) seems to have been institutionalized to the extent that special rooms may have been constructed for it. An early fifth-century example has been identified with some probability in a church built in the fifth century in Salona in Dalmatia.28 The word ‘consigning’ used for anointing in the context of Christian initiation is also the word used for a strange ritual which did not in the end evolve into one of the Latin Church’s sacraments. This distinct consignatio ritual seems to have been halfway between exorcism and penance. Again the question was how high up the hierarchy a man must be to administer it. Innocent answers that 25 27

28

Ibid., 60. 26 Ibid. It is not in A. Souter, A Glossary of Later Latin to 600 a.d. (Oxford, 1949), or in Lewis and Short, A Latin Dictionary (Oxford, 1879) (otherwise helpful for the texts studied here) in an even remotely relevant sense, and the entry in the Thesaurus Linguae Latinae (consulted online) is thin. Reallexikon für Antike und Christentum, iii (Stuttgart, 1957), s.v. ‘Consignatorium’, cols. 303–6, at col. 306.

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As for those who have been baptised and who afterwards fall into the grip of a demon, or some vice or some subsequent sin, your beloved self has asked if they can or should be ‘con-signed’29 by a priest or a deacon: [we say] that30 this it not permitted for anyone but the bishop to order this: for the laying on of the hand on him is absolutely excluded unless the bishop gives authority to do it. For this to happen, it is for the bishop to order that the hand be laid on him either by a priest or by the other clerics. For how can it be managed without great labour that a demoniac who is far away be brought to the bishop, since, if he should have an attack when on his way, it would not be easy either to take him on to the bishop or back to his home.31

In short, the ritual requires the bishop’s authority behind it but can be conducted without him, and may have to be, for practical reasons. A ritual system was thus brought into conjunction with the hierarchical system. Again it seems likely that Innocent is improvising rather than representing an established tradition. This kind of ‘consignation’ may have been a temporary ritual experiment. I know of no earlier evidence for it, and it may have faded away with time. The two key manuscripts of the canon law collection of Dionysius Exiguus have ‘assigned’ instead of ‘consigned’,32 which suggests that the latter was no longer understood by the time when they were copied or even when Dionysius was writing, c. 400 ce. The ritual of consignatio did not survive its infancy. A Ritual for the Dying The bishop was also uncertain about the ritual for the dying implied by the Epistle of St James (5:14–15): ‘If any one among you is sick, let him summon the priests, and let them pray over him, anointing him with oil in the name of the Lord, and the prayer of faith will save the sick man, and the Lord will raise him up, and if he had committed sins, they shall be forgiven him.’33 (This passage would be a basis for the sacrament of extreme unction that developed later.34) In his response, Innocent dealt with two compatibility problems. The first was the relation of between a ritual based on this passage and ecclesiastical hierarchy. Again Innocent I chooses a path which takes account of practicalities without diminishing the place of the bishop. It is the bishop who prepares the ‘holy oil of chrism’ used to anoint the sick. (Chrism is a ‘mixture of olive oil and 29 30 31 34

‘consignari’. Probably rather than ‘because’, since the context indicates that this is part of the answer rather than of the question. PJc.400, 63–4. 32 Ibid., 64. 33 Quoted by Innocent, ibid., 56. F. S. Paxton, Christianising Death: the Creation of a Ritual Process in Early Medieval Europe (Ithaca, NY, 1990). The list of seven sacraments, including extreme unction, which became standard in Catholicism, was the work of twelfth-century theologians).

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balsam’.35) Not only bishops can carry out the anointing, however: ‘it is permitted not only to priests, but to all Christians’ to do so,36 though, obviously, the bishop also can. The second compatibility question is about the relation of the ritual to the penitential system. Innocent I rules that chrism ‘cannot be poured out on those doing penance, since it is a kind of sacrament. For how is it thought that one kind can be granted to those to whom the other sacraments are denied?’37 Marriage and the Eucharist We know that communion was denied to a person who committed adultery after the putative offender’s spouse denounced them to the clergy, and (presumably) carried conviction. Exsuperius bishop of Toulouse raised or passed on to Innocent I a query about the lack of gender symmetry with these cases: ‘a desire was expressed to know why men who are admitted to communion do not have conjugal relations with adulterous wives, when by contrast wives seem to remain partners of adulterous husbands’.38 Innocent replies that men and women should indeed be treated in the same way, but in practice women are much less likely to accuse their husbands than vice versa, and the latter cannot be denied communion simply because of a suspicion. In the same letter Innocent I stresses that even adultery by both parties does not open the door to remarriage, and that a man who remarries after his marriage has broken up (dissociatum videatur) is an adulterer.39 Conclusion As well as passing on or reaffirming decisions made at Nicaea, we have seen that the apostolic see around 400 ce was dealing with issues the council had not addressed about who was entitled to administer a ritual and when it was appropriate to do so. These were problems without obvious answers, and producing solutions might involve considerations both of principle and practicality. The plurality of hierarchies also posed problems, the subject of the following chapter.

35 39

ODCC, s.v. ‘Chrism’. Ibid., 172 and note 8.

36

PJc.400, 57.

37

Ibid.

38

Ibid., 175–6.

6

Hierarchies

Marriage, in between Imperial and Episcopal Systems Multiple hierarchies meant compatibility problems and demand for some way of resolving them. Marriage is an instance of a system placed between different overarching Christian systems, imperial and episcopal. A council at Carthage of 407 shows a desire for an overriding authority. After laying it down that a repudiated husband or wife cannot remarry, and must do penance if he or she disobeys, the canon adds that ‘In this cause the promulgation of an imperial law should be sought.’1 This reminds us that the secular hierarchy was also Christian and had started on the trajectory that would give the emperor a key role in running the Byzantine Church. Christian emperors had already changed the marriage law quite drastically, but it still allowed for divorce on various grounds.2 The imperial position also reflected a tolerance of divorce and remarriage quite common in Christian circles outside the imperial government, according to a recent study.3 Evidence about that is patchy but there seems no doubt that according to civil, secular law, captivity and the

1

2

3

C. Humfress, Orthodoxy and the Courts in Late Antiquity (Oxford, 2007), 208. R. Bof and C. Leyser, ‘Divorce and Remarriage between Late Antiquity and the Early Middle Ages: Canon Law and Conflict Resolution’, in K. Cooper and C. Leyser, eds., Making Early Medieval Societies: Conflict and Belonging in the Latin West, 300–1200 (Cambridge, 2016), 155–80, at 166, seem to argue that if the canon was disobeyed, the new couple could do penance then resume life together in accordance with canon law, but it seems more likely that they were to do penance then separate. For Constantine’s legislation, see G. Nathan, The Family in Late Antiquity: the Rise of Christianity and the Endurance of Tradition (Abingdon, 2000), 62–5. He plays down without definitely discounting Christian influence on it. On the Theodosian Code he writes that ‘additional strictures on marriage were introduced with a clear religious impetus, as well as new guidelines for divorce and widowhood. The divergence between the classical Roman family and the Christian one perhaps had its seeds in Constantine, but budded and blossomed more fully under his successors’ (84). See also P. L. Reynolds, Marriage in the Western Church: the Christianization of Marriage during the Patristic and Early Medieval Periods (Leiden, 1994), 62, 64, 131–2. Leyser and Bof, ‘Divorce and Remarriage’, 165 and 169.

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slavery that was assumed to go with it put an end to a marriage and legitimated remarriage.4 There was tension, if not an outright contradiction, between this Christian imperial position and the emphasis on indissolubility evident at the Council of Carthage of 407. Other councils took the same line as Carthage, perhaps with qualifications of one sort or another,5 and the theory if not the practice seems to have commanded a lot of Christian support.6 The massive influence of Augustine of Hippo favoured indissolubility, arguing that it rested on marriage’s representation of the unbreakable union of Christ and the Church.7 The apostolic see could be called upon to resolve such conflicts between systems. The indissolubility system apparently favoured by bishops and the softer line of imperial law (and much Christian practice) clashed in a concrete case, though the precise circumstances seem not to have been envisaged in known conciliar canons. For in 416 a situation calling to mind the narrative structure made famous by the story of the return of Martin Guerre (subject of a famous book by Natalie Zemon Davis8 and even of a popular film) was brought to Innocent I for a ruling. The case has been studied by Geoffrey Dunn.9 Innocent has been approached by a man named Probus, a member of an important aristocratic Christian family. Fortunius was married to Ursa, but in the ‘barbarian storm’ she was held in captivity, and he married Restituta. But Ursa returned and wanted her husband back.10 What should be done? Innocent’s answer was that the first marriage must stand, because it was indissoluble.11 This was in line with the Council of Carthage of 407, and contrary to imperial law, which had not been updated as the Council had optimistically suggested. There is a further layer of complexity. In making this call Innocent does note that there has been no divortium of the first marriage. What point was he 4

5

6

7 8 9

10

G. Dunn, ‘The Validity of Marriage in Cases of Captivity: the Letter of Innocent I to Probus’, Ephemerides Theologicae Lovanienses 83 (2007), 107–21, at 111–12, with references to sources, especially Digest 24.2.1 (quoted by Dunn, 112 note 31). Leyser and Bof, ‘Divorce and Remarriage’, 162–6. The conciliar canons seem to me to be more convergent than Leyser and Bof’s commentary suggests, if anything it would help the present argument if they diverged. Cf. D. L. d’Avray, Medieval Marriage: Symbolism and Society (Oxford, 2005), 76–7. Nathan, Family, 114: ‘If an individual was going to be divorced, they had to stay divorced [in context Nathan means that they must not remarry] or to be reconciled.’ Nathan does not think this principle can be shown to have influenced practice much: ibid., 125. d’Avray, Medieval Marriage, 76–7. N. Zemon Davis, The Return of Martin Guerre (Cambridge, MA, 1983). Dunn, ‘Validity of Marriage’. See my summary in ‘Half a Century of Research on the First Papal Decretals (to c. 440), Bulletin of Medieval Canon Law n.s. 35 (2018), 331–74, at 348–9. PJc.400, 176–7. 11 Ibid.

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making? Geoffrey Dunn understands this as a reference to divorce in the modern sense – with the possibility of remarriage – on grounds of adultery, but we should be cautious about the scope of the word divortium. One possibility might be that this was the kind of divorce that could follow on the conversion of one partner to Christianity when the pagan partner was recalcitrant (see Chapter 15 passim). This would later be known as the Pauline Privilege, from a passage of St Paul (1 Cor. 7:15) that appeared to legitimate it,12 even though the validity of the pagan marriage was recognized.13 There is a passage of the late fourth-century religious writer known as ‘Ambrosiaster’ that suggests that the idea was being mooted in late Roman Western Christianity.14 One passage from a possibly maverick theologian is not a proof, however, though we cannot assume either, in the state of the evidence, that he was out of line. It is also worth noting that in the Middle Ages the word divortium was used quite generally for any kind of legalized break-up of a marriage, including legal separation and what would now be called annulment, for instance on grounds of consanguinity, blood relationship. Incestuous marriages were against the law under the pre-Christian empire: they were outlawed by an edict of 295, which declared the offspring illegitimate.15 A few years earlier (291) Diocletian and Maximinian let off a couple who had married incestuously in ignorance – provided they got an immediate divorce.16 That would have been understood as an annulment in the Middle Ages (though it could have been called a divortium), and very probably by Christians in late Antiquity too. Late Roman Christian imperial law seems to have extended the range of the pagan imperial rejection of marriage to close relatives;17 as a rule of thumb, one may probably assume that elite theological Christian attitudes were not more lenient than Christian imperial legislation: i.e. if imperial laws banned marriage within forbidden degrees, high-minded Christians were unlikely to advocate a softer line. Consequently, what was an invalid marriage in imperial law was probably invalid also for them.18 12 14

15 16 17 18

See my discussion in PJc.400, 171–3. 13 Ibid., 154, 159–61, 164–9. ‘Non est enim frater aut soror servituti subjectus in hujusmodi. Hoc est, non debetur reverentia conjugii ei, qui horret auctorem conjugii; non enim ratum est matrimonium, quod sine Dei devotione est: ac per hoc non est peccatum ei, qui dimittitur propter Deum, si alii se junxerit.’ PL 17, col. 219; D. Hunter, ‘Ambrosiaster’, in P. L. Reynolds, ed., Great Christian Jurists and Legal Collections in the First Millennium (Cambridge, 2019), 252– 65, at 263. J. Harries, Imperial Rome ad 284 to 363: the New Empire (Edinburgh, 2012), 72. Harries, Imperial Rome, 73 note 76. G. H. Joyce, Christian Marriage: a Historical and Doctrinal Study (London, 1933), 506. Cf. M. Kuefler, ‘The Marriage Revolution in Late Antiquity: the Theodosian Code and Later Roman Marriage Law’, Journal of Family History 32 (2007), 343–70, 350 for imperial law on incest.

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In short, divortium did not necessarily mean only ‘dissolution on grounds of adultery’, as Geoffrey Dunn may assume. Significantly, in his letter of 405 to Exsuperius of Toulouse, Innocent stresses without any qualification that those who remarry after separation from their spouse are committing adultery.19 Whatever Innocent meant with the glancing reference to divortium in his letter to Probus, we can’t be sure that he had in mind divorce and remarriage on grounds of adultery. More important for present purposes is Dunn’s observation that Innocent I’s decision was in a different world from imperial marriage law, even though the latter had been Christianized. For Innocent I, to judge from his answer to Probus, which simply ignores imperial legislation about marriage, imperial marriage law had not been Christianized in the right way. Papal jurisprudence owed a lot to imperial law and copied its forms, but in this case not its content. Given the discrepancy, hard decisions had to be made. Ecclesiastical Hierarchy and Imperial Hierarchy In many other ways the imperial and ecclesiastical hierarchies, though distinct, were well integrated, and papal interventions tended to keep them compatible by reinforcing imperial policy, following the example of the Council of Nicaea. The Council of Nicaea had worked because of the influence of the emperor Constantine, and it represented a surface synthesis between secular and ecclesiastical authority. The same synthesis, and specifically between imperial and papal authority, was enhanced so far as the West was concerned at the Council of Serdica,20 probably to be dated to 343.21 This was an imperial council, summoned in fact by two emperors, of the West and of the East, though the bishops from the two halves of the empire ended up holding separate councils.22 It ruled that if some bishop shall have been judged in some matter and thinks that he has a good case and that the judgement should be reconsidered, if it please you, let us honour 19

20

21 22

PJc.400, 172 note 8. Cf. H. Crouzel, Divorziati ‘Risposati’: la prassi della Chiesa primitiva (Siena, 2014), esp. 60. He finds no clear evidence for remarriage after a divorce on grounds of adultery except in Ambrosiaster. H. Hess, The Early Development of Canon Law and the Council of Serdica (Oxford, 2002), 124–5, 186–99; for texts and translations of the Latin canons relating to the papacy, see ibid., 212–19. See also e.g. A. H. M. Jones, The Later Roman Empire, 284–602: a Social Economic and Administrative Survey, 3 vols. (with a maps volume) (Oxford, 1964), ii, 887–8. Hess, Early Development, vii. See Hess, Early Development, passim; for a quick summary, M. Edwards, ‘Synods and Councils’, in A. Casiday and F. W. Norris, eds., The Cambridge History of Christianity, ii, Constantine to c. 600 (Cambridge, 2007), 367–85, at 371–2.

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the memory of blessed Peter the apostle, and let [a letter] be written to the Roman bishop, either by those who heard the case or by bishops who reside in a neighbouring province. If he [the Roman bishop] shall decide that the trial is to be held again, let it be repeated and let him appoint judges.23

Innocent I echoed this decision of the Western half by noting that particularly important cases, maiores causae, can be taken on appeal to the apostolic see.24 Incidentally, at Rome the decisions of Serdica were mistakenly thought to be from the Council of Nicaea.25 Innocent I’s assertion would be picked up by influential canon law collections.26 Serdica shows the harmony that was possible between the Western ecclesiastical hierarchy and the emperor in the West. On the surface, the secular and ecclesiastical hierarchies continued to seem compatible in the late fourth27 and early fifth centuries. The remark by Siricius in 385 that ‘the laws both of State and of the Church’ (publicae leges et ecclesiastica iura) condemn monks and nuns who have broken their vows of chastity28 reinforce this impression of integration. ‘Imperial preference for Christians in high office was expressed in a law of 408 which prohibited those hostile to the Catholic sect from performing imperial service. This law, though directed primarily at heretical Christian groups, was apparently used also against pagans.’29 Innocent I agreed with the imperial policy of excluding members of the curial class from the clergy, because they might be recalled to service and also because they might have to act against their Christian conscience by organizing games30 (even though these would no longer have involved gladiatorial contests31 between men).32 Whatever his reasoning, Innocent I was in effect endorsing the imperial policy of keeping the curiales out of the clergy. Furthermore, Innocent I recognizes the ethical underpinning of the secular legal system. In 405 he addresses the question of whether it is legitimate for baptized people to set in motion a trial that will lead to the death penalty, and gives the green light.33 23 26 29

30 31 32

33

Hess, Early Development, Canon 3c, 213. 24 PJc.400, 104–5. 25 Ibid., 131. Ibid., 105. 27 Cf. Edwards, ‘Synods and Councils’, ii, 373. 28 PJc.400, 181, 184. M. R. Salzman, ‘The Evidence for the Conversion of the Roman Empire to Christianity in Book 16 of the “Theodosian Code”’, Historia: Zeitschrift für alte Geschichte 42 (1993), 362–78, at 368. PJc.400, 73–4, 76–7. Though H.-J. Sieben uses the word ‘Gladiatorenkämpfe’ in his translation: see PJc.400, 73 note 28. D. G. Van Slyke, ‘The Devil and His Pomps in Fifth Century Carthage: Renouncing Spectacula with Spectacular Imagery’, Dumbarton Oaks Papers 59 (2005), 53–72, at 54, especially 5, and 71. PJc.400, 14 (after E. Caspar, Geschichte des Papsttums, i (Tübingen, 1930), 305–6); J3.675 = Old Jaffé 293 (90); Dionysia text: PL 67, col. 247, XXV, BAV Vat Lat. 5845 (= Db in PJc.400), fo. 87ra.

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Imperial–papal symbiosis is explicit in a letter of Boniface I of 420 to the emperor Honorius, asking for the latter’s help against a rival claimant to the papal office.34 This is an unusual case for papal jurisprudence of this period in that the apostolic see initiated the exchange, and with an emperor, rather than responding to a bishop. It counts as papal jurisprudence at least so far as its reception is concerned, for it has a robust canon law transmission, as does the emperor’s reply.35 But tensions lay not far below the surface. Boniface I’s predecessor Zosimus wrote a letter ‘to the priests and deacons who are at Ravenna’ which has been described (by Geoffrey Dunn) as an attack on ‘the idea of state intervention in the running of ecclesiastical affairs in Rome’.36 A letter of Innocent I to the patriarch of Antioch says that, when the emperor splits a province, that should not mean the creation of a new ecclesiastical province.37 That principle could not be enforced,38 but Innocent’s statement of principle would have a wide early medieval diffusion.39 Hierarchy of Status and Hierarchy of Command To speak of an ecclesiastical hierarchical system is an oversimplification, for there were in reality two ecclesiastical hierarchical systems, with tensions between them and the usual problems of incompatibility that arise between semi-autonomous interpenetrating systems. The two kinds of hierarchy were so closely related that it is hard to disentangle them. On the one hand, there was the status hierarchy according to which the Church was composed of different, unequal but complementary orders, starting with the laity and working up through the various minor orders of clergy and then through the major orders of subdeacon, deacon, and priest, above whom came the bishop. Levels of ordination and of ritual power were of the essence in this kind of hierarchy. Unlike the hierarchy of the Hindu caste system, which it otherwise resembles (at a certain level of abstraction), it was possible and normal to move up between the levels within the same lifetime. 34 36 38

39

PJc.400, 100, 112–16. 35 Ibid., 116 (transmission) and 116–18 (emperor’s reply). Ibid., 100, 110–11. 37 Ibid., 101, 106–9. Jones, Later Roman Empire, ii, 881: ‘In practice the church had more good sense than the pope, and when provinces were divided or reunited it followed suit.’ It was not quite so simple, however: as noted above, ‘This correspondence between secular and religious hierarchies was not always smooth.’ R. van Dam, ‘Bishops and Society’, in Casiday and Norris, eds., Cambridge History of Christianity, ii, 343–66, at 350; see the whole section at 350–7, for an analysis of the ecclesiastical and secular hierarchies in relation to each other. PJc.400, 109–10.

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Status hierarchy was linked with, but distinct from the command hierarchy: the administrative responsibility of powerful deacons, bishops, metropolitans, and patriarchs. That hierarchy, too, allowed for promotion to higher levels, though bishops were not supposed to move up to more prestigious sees. Both kinds of hierarchy belonged to the same overarching holistic value system, in which unequal parts all mattered for the sake of a mystical whole. (This differentiates them from modern managerial hierarchies, which are primarily instrumental in character, and which have a paradoxical link with a strong doctrine of equality, in that they theoretically emphasize equality of opportunity.) The two clerical hierarchical systems of the late Antique Church were for the most part compatible, but difficulties could arise. Since the papal solutions to these difficulties tended to get embodied in canon law collections and remain the rule, our perspective on the problems can get distorted. It can seem as though the apostolic see was simply cracking down on abuses. But at the time when the letter was solicited it may not have been so clear what was an abuse and what was legitimate, because the systems in question had not stabilized. Arguably, the apostolic see was resolving uncertainties about the relation of the two hierarchies and the working of each of them. One of the uncertainties was whether the clergy could move between provinces. It takes an extra imaginative step to realize that the answer was not obvious or self-evident. The Scriptures would have given no help at all to anyone who asked if a cleric could move freely around the empire! We have seen how much mobility around the empire there was. Could a cleric move to look for a more interesting job elsewhere? Historians are used to the diocesan system and its constraints, and perhaps take it for granted, but it was not a priori obvious that a priest had to stay in one diocese. This is precisely the kind of open question that created demand for papal jurisprudence, and precisely the kind of question that could not be resolved by a local bishop or a regional council, since the whole question was whether clerics were bound for life to the diocese or province where they started their cursus. Innocent I’s answer in his letter of 404 to Victricius of Rouen was that hierarchy of command should encase ritual hierarchy: nobody should ‘betake himself to other provinces’.40 Here Innocent is in the spirit of canon 15 of the Council of Nicaea’s ruling that ‘it is forbidden for a bishop, priest or deacon to go from one city to another’.41 The wording seems to imply that this is a new rule, though one giving legal force to an old norm.42 Canon 16 of Nicaea reinforces the point: 40 41 42

Ibid., 104–5. P. L’Huillier, The Church of the Ancient Councils: the Disciplinary Work of the First Four Ecumenical Councils (New York, 1996), 70. See L’Huillier’s commentary, ibid.

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Priests and deacons or . . . any member of the clergy who have the audacity . . . to abandon their churches, must not under any circumstances be received in another church . . . In addition, if anyone dares to take someone who is under the authority of another bishop and to ordain him in his own church without the consent of the bishop in whose clergy he was enrolled, let the ordination be regarded as null.43

The direct source or inspiration of this last clause may be not Nicaea but the Council of Serdica,44 but Innocent was presumably aware of the Nicaean ban on free movement as well. Making Bishops The Council of Nicaea also ‘created or confirmed’ a system of metropolitans, bishops in charge of provinces of lesser bishops.45 In the system of status hierarchy, a bishop had the power to ordain another bishop. But the developing hierarchy of command had started to subordinate ordinary bishops to metropolitan bishops. ‘It is generally agreed that the office of the provincial metropolitan did not develop in the Latin Church until the late fourth and early fifth centuries.’46 Innocent I’s ruling for the bishop of Rouen presumably helped establish it. He laid it down that ‘without the knowledge of the metropolitan bishop [i.e. one ruling a province of lowerlevel bishops], no one should dare ordain a bishop, nor should a single bishop presume to confer orders’.47 Innocent adds that this was decided at the Council of Nicaea,48 specifying the ordination of a bishop. Some important manuscripts omit the word ‘bishop’,49 in which case the text would merely say ‘ordain’, and could apply to ordinations of priests and lower members of clerical hierarchy – but Innocent probably means the same as Nicaea, and the most important manuscript does have ‘bishop’. Did the bishop of Rouen have a copy of the decrees of the Council of Nicaea? Very possibly not.50 Innocent I did,51 and he could help. The bishop of Rouen could have been genuinely uncertain about the rules regarding episcopal appointments. Innocent also refers to Nicaea in ruling that disputes should be settled by gatherings of the bishops of the province in question.52 The role of early papal jurisprudence in spreading knowledge of the content of the canons of Nicaea should not be underestimated. 43 45 46 48 50 52

Ibid., 74. 44 Hess, Early Development, 125. Jones, Later Roman Empire, ii, 880. He adds, ibid., that the ‘metropolitan had now a certain authority over the other bishops of the province’ (my italics). Hess, Early Development, 206. 47 PJc.400, 99, 103. Ibid., 130, for the decision at Nicaea. 49 Ibid., 103. See above, Chapter 3, note 22. 51 Hess, Early Development, 56, 206. He may be thinking of canon 5: L’Huillier, Church, 41–5, though this seems to be primarily about consideration of excommunication cases.

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The Council of Nicaea had laid down some rules for the installation of bishops. Ideally all the bishops of a province should take part, but a minimum of three should meet, with the others sending their agreement by letter. Did this mean their agreement to elect a given candidate, or their willingness to delegate the choice to the three? The metropolitan bishop of the province had the right to supervise the process, and his agreement was a sine qua non for a valid election, though a small number of dissenters – ‘two or three’ – from among the other bishops could be overruled by a majority.53 Innocent I endorsed the role assigned to the metropolitan by Nicaea, though the ‘three bishops’ had become a ban on a single bishop conferring orders.54 Perhaps elections did not work so neatly as Nicaea had hoped. Before, Siricius had been vaguer: the bishop can be elected by ‘clergy and people’.55 That is not necessary incompatible with Nicaea. In an ideal scenario, the clergy and people would make a choice, and the three electors would install the man in question. Then and later, what exactly an election ‘by clergy and people’ should mean in practice was not clear. Celestine I clarifies it a little, specifying the ‘consensus and wishes of clergy, people and the “ordo”’.56 Ordo has been variously and perhaps not incompatibly interpreted as the elite and the curia, which could imply ‘by extension the great landowners of the region’ (Norton).57 Though popes tried to clarify the rules, many problems were left to the future by the imprecision of these conciliar and papal decisions, though they were workable in their way in the conditions of late Antique Christianity with its urban Christian islands. Conclusion In late Antiquity there were too many hierarchies for comfort. How to coordinate them was not self-evident. This chapter has looked at the apostolic see’s efforts to resolve a case where imperial law clashed with episcopal law, to regulate relations between the imperial and episcopal hierarchy (in which the bishop of Rome was included), and to coordinate hierarchy of command with status hierarchy. The next chapter looks at papal attempts to resolve complexities and uncertainties of the clerical system in itself and in its relation to the nascent monastic form of life.

53 54 57

P. Norton, Episcopal Elections 250–600: Hierarchy and Popular Will in Late Antiquity (Oxford, 2007), 21 and 22. PJc.400, 99 and 103–4. 55 Ibid., 99. 56 Ibid., 100, 129. Ibid., 100 and Norton, Episcopal Elections, 43.

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Clerical Status and Monks

In addition to the problems discussed in the previous chapter, there were further questions to be resolved about status hierarchy within the clergy. There was a strong sense of the clergy’s separateness, but ways to mark it off from the lay world were still being worked out, as were conditions of eligibility and the relation of the clerical and penitential systems. It was generally taken for granted by the late fourth century that there was a clerical cursus, a sequence of ritual stages attached to particular roles. The model of civil and military service of the state no doubt made that seem natural. What the different stages were exactly was, however, far from clear. Finally, a problem that would constantly recur in Catholic history had begun to exercise bishops: how to integrate the still relatively new elite of monks with the system of clerical status. The Line between Clerical and Lay Even the lowest of the clerical orders was marked off from the laity in the overarching hierarchy of the Church. Interestingly, clerics do not appear to have been distinguished by dress. In 428 Celestine I wrote to the bishops of the Viennensis and Narbonensis that ‘We should be separated from the laity . . . by our learned teaching, not by what we wear, by our behaviour, not by our attire, by purity of mind, not by our observance of a style of dress.’1 They were marked off in other, more precise ways also: at the pragmatic end of the scale, it was noted above that members of the ‘curial’ class were not supposed to join the clergy, according to Innocent I, because they might be recalled to their public duties, which could include the laying on of ‘spectacles which were undoubtedly invented by the devil’.2 Furthermore, they should not have a serious physical defect, if voluntarily inflicted.3 Men who had done public penance were barred from the clergy.4 1

PJc.400, 86–7.

74

2

Ibid., 73–4, 76–7.

3

Ibid., 74–5.

4

Ibid., 282–4, 286–7.

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Finally, and this was emphasized repeatedly, insistently, they must not be twice married, either by remarrying after being widowed or by marrying a widow. This is the curious bigamia rule, with its long and intriguing history. The rule can be traced back in the West to 374 and the Council of Valence (though this did not impose it retroactively, in that it allowed ‘bigamous’ clerics to keep their status).5 The rule took off and never looked back. Its logic and its long-term persistence take some explaining, attempted elsewhere,6 but for present purposes its rationale may be bracketed out of the analysis. Here the salient point is that it illustrates the dynamics at the origins of papal jurisprudence. Bigamia and the Pagan Convert Life being more complicated than the rules that try to govern it, and new rules seldom adequate to cover all eventualities, uncertainty soon arose about the eligibility for clerical status of a man who had been married before he was baptized, lost his wife, and married again after baptism. Leading Christian thinkers around 400 were divided on this issue. Notably, St Jerome argued that baptism was a fresh start and that a marriage before it did not count for the purpose of the ‘bigamy’ rule.7 Perhaps never before or since had there been so many adults seeking baptism in the heart of the Christian world. By c. 400 a tipping point had been passed and it was clearly advantageous to be a Christian, and, especially, to be a cleric. Conversely, this was a relatively recent state of affairs. The pagan emperor Julian had died in 363, not so long before. It would have taken a generation for it to sink in that Christianity was there to stay as the official religion. Consequently, the problem of the status of a man only one of whose marriages was after baptism must have been common – more than ever before or since. Could such a man join the clergy? Many must have wanted to, as it was becoming a good career. Implicitly, the status of pagan marriages tout court was also at issue. In a long paragraph of Innocent I’s letter of 414 ‘to the Macedonian bishops and deacons’ he rejected the view, advocated by Jerome, that the pagan marriage did not count for bigamia purposes, a view that implicitly left their whole status under a cloud. It is an excellent example of the approach adopted in this early papal jurisprudence. Innocent backs up his 5 6 7

Ibid., 152. Ibid., 152–70, with texts and commentary, and D. L. d’Avray, Medieval Marriage: Symbolism and Society (Oxford, 2005), chapter 3, 131–67. PJc.400, 154.

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decision with an elaborately argued justification, on the basis of the Bible and of the legal assumptions of his day. On the one hand, he points out that marriage was sanctioned by God before Christian marriage, and Jesus’s remark that ‘what God has joined together, let no man put asunder’ was addressed to Jews and not to baptized people. On the other hand he evokes the general assumption that children of a first marriage should have a share of an inheritance, irrespective of whether it was before or after baptism. The train of thought turns into a general and interesting argument for the goodness possible for the unbaptized.8 One can almost forget, reading this fascinating passage – surely important for medieval attitudes to marriage given its wide diffusion by canon law texts9 – that it is a clarification of the ‘bigamy’ law that drew a line between laity and clergy in the hierarchy of the Church. He had already made the point, more succinctly, in his letter of 404 to Victricius, bishop of Rouen.10 Uncertainty about the Clerical Cursus A series of further lines distinguished different levels of clergy in the hierarchy. Here the pattern of development is reminiscent of the liturgy. A growing scholarly consensus that there was a general tendency from variety to uniformity in the history of ritual was discussed earlier; the twin factors of geographical mobility and the expansion of the Christian population would explain this convergence, as imitation would be one result of awareness of difference. That awareness would, however, also inevitably lead to uncertainty, in the face of the variety of choices available, especially since the choices were not just about preferences but also to some degree about values or principles; and indeed there would also be uncertainty about exactly how far values or principles were at stake. Such uncertainties encouraged recourse to the papacy. The same pattern as with ritual is found in the history of status hierarchy. Though the principle of hierarchical differentiation and a clerical cursus of progress through different levels was taken for granted, there was a wide spectrum of views about the specifics of that cursus. According to the study of the clerical cursus by Faivre, local conceptions had originally been different from each other, though there was a movement towards convergence in the fourth century.11 Towards what? That was the question. 8 11

9 Ibid., 164–8. Ibid., 168–9. 10 Ibid., 159–62. A. Faivre, Naissance d’une hiérarchie: les premières étapes du cursus clérical. Théologie historique 40 (Paris, 1977), 295, trans. PJc.400, 69. There are important recent studies by J. St. H. Gibaut, The Cursus Honorum: a Study of the Origins and Evolution of Sequential Ordination. Patristic Studies 3 (New York, 2000), and by G. D. Dunn, ‘The Clerical Cursus Honorum in the Late Antique Roman Church’, Scrinium 9 (2013), 120–33.

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There was an awareness, even in the early fifth century, that ‘the growth of the Church’s hierarchy had been a gradual process’,12 but the question was how its structure should crystallize. Faivre draws attention to major differences still in the late fourth century, notably about the relative positions in the hierarchy of lectors and subdeacons.13 His observation was about the Eastern half of the empire, but, given the geographical mobility highlighted above, we cannot assume that this contradiction went unnoticed in the West. Again with reference to the East, but surely with relevance also to the West, Faivre argues that the privileges accorded by the state to the clergy after the Christianization of the empire led to a massive expansion of the numbers of the lower clergy; consequently, ‘since the lower ministers were in any case present in the clergy, it was necessary to fit them into ecclesiastical structures as well as possible and to define their status with precision’.14 This task was undertaken by a series of councils in various regions of the Mediterranean in the late fourth century.15 A need for clarification of the clerical cursus is also the context for Siricius’s elaborate account of it in his letter to Himerius of Tarragona of 385. Clarity is what Siricius provides.16 His norm is baptism ‘before the years of puberty’, which in turn assumes that clerics came predominantly from Christian families. He also envisages entry into the clergy as a lector before puberty. After puberty he will marry a virgin and rise to acolyte and subdeacon. That will take him to his thirtieth year of age. Note that this leaves plenty of time to have children. At the end of this phase, he may become a deacon. By that time his children might well be teenagers. If he wants to proceed to deacon, he must prove himself first by living for a time without sex. That will be a condition of promotion, though there is no indication that he will separate from his wife. After another five years, if he has been a good deacon, he is eligible to become a priest, and if he has been a good priest he might become a bishop after a further ten years. 12

13 14 15 16

Cf. R. E. Reynolds, ‘“At Sixes and Sevens” – and Eights and Nines: the Sacred Mathematics of Sacred Orders in the Early Middle Ages’, in Clerics in the Early Middle Ages: Hierarchy and Image (Aldershot, 1999), Essay III, 669–84, at669–70, especially note 4: ‘That the patristic writers were conscious of this growth, see Theodore of Mopsuestia’s commentary on 1 Tim. 3. 14 f.’ Cf. R. E. Reynolds, ‘The Subdiaconate as a Sacred and Superior Order’, in Clerics in the Early Middle Ages, Essay IV, 1–39 (followed by unpaginated tables), at 7. Theodore’s commentary became available in the West in the sixth century (ibid.). Faivre, Naissance, 293. Ibid., 294, ‘puisque les ministres . . . leur statut’, my translation. Ibid.; and Gibaut, Cursus, 67–71, 74–6. My summary of conciliar legislation on status hierarchy in PJc.400, 95, may not do adequate justice to this phenomenon. PJc.400, 71–2: it is worth reading this against the far from clear picture that emerges from Faivre, Naissance – a confusion that doubtless has more to do with the subject matter than the presenter of it. Cf. Gibaut, Cursus, 82–5.

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Interestingly, Siricius does not mention all the stages that seem to have been standard already in the Church at Rome; he makes no mention of the ostiarius (doorkeeper) or exorcist.17 His successor but one Innocent I simply refers to lector, acolyte,18 deacon, and priest,19 but in context Innocent seems not to be attempting a full list. In 418 Innocent’s successor Zosimus, writing to the bishop of Salona in Dalmatia, mentions lectors, exorcists, acolytes, subdeacons, deacons, and priests.20 He also extends the normal period as lector for several years longer than in Siricius’s scheme. These papal rulings did not bring about uniformity. There would be significant variations between schemas for clerical orders for centuries to come.21 The apostolic see had no way of enforcing such rules. It is clear, however, once one knows the context that Siricius and Zosimus were responding to a demand. Celibacy One of the areas of uncertainty was where to draw the line between the lower and higher orders of clergy (subdeacons being on the borderline). In practical terms, the line that really mattered was between clerics who were allowed to be sexually active in marriage, and those who were not. The latter were obliged to clerical chastity as understood in late Antiquity, that is, abstention from sex within a continuing marriage. Subdeacons might fall into either category:22 in Siricius’s scheme they can have sex until they reach the informal probation period for promotion to deacon, whereas Leo I would try, probably without success, to extend the celibacy line to below subdeacons, and to persuade them to stop having marital sex.23 Wherever the celibacy line was drawn within the clerical cursus, it may have been new in the West in the fourth century – as a law. This is controversial territory but there may be more underlying consensus than is apparent on the surface.24 All serious scholars agree that we are 17

18 19 21 22 23 24

The sequence of ostiarius, exorcist, lector, acolyte, subdeacon, deacon, and priest is found in the third century at Rome: see J. Barrow, The Clergy in the Medieval World: Secular Clerics, Their Families and Careers in North-Western Europe, c. 800–c. 1200 (Cambridge, 2015), 35–6 and 36 note 47. In my translation PJc.400, 77, I somehow omitted ‘or acolyte’, which is in the Latin text on 78. PJc.400, 77–8. Cf. Gibaut, Cursus, 86–7. 20 PJc.400, 84–5. Cf. Reynolds, ‘“At Sixes and Sevens”’; Barrow, Clergy, 36. Reynolds, ‘Subdiaconate’, Clerics in the Early Middle Ages, Essay IV; PJc.400, 133, 134. Appendix A(f). The following paragraphs summarize my analysis of the arguments in PJc.400, 135–7.

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talking about celibacy within marriage, not a celibacy of unmarried men – an important area of common ground. Probably most would also concede that there is no decisive evidence either way from the apostolic age itself. Beyond that, opinions divide, but perhaps not so much. A scholarly study by the Catholic Stefan Heid represents the view that the celibacy of the late fourth century is a culmination of a tradition going back a long way – by implication, to apostolic times.25 Paradoxically (since the Eastern Church would in time clearly endorse clerical marriage and sex within it), most of his early evidence is from the Eastern half of the empire. On the surface very different is the equally scholarly argument of David Hunter that the Church in the West adopted celibacy within marriage to keep up with monks, who were beginning to become a common sight in the West, without simply copying them.26 The underlying convergence is this: Hunter inclines to think that clerical celibacy (of this late Antique sort) was practised before it became law. Heid on the other hand thinks that there is hardly any direct evidence of celibacy in the West until the late fourth century: his inference depends on the late fourth-century efforts to establish it combined with the relatively plentiful early advocacy of it in the Eastern half of the empire. In the end, these positions are not so far apart. The early fourth-century Council of Elvira has a celibacy canon, which would seriously undermine Hunter’s argument (it is really too early for reaction to the monks to be a major factor) but it is uncertain whether the canon in question is genuine. Even if it is, one can agree with Hunter’s attractive thesis that the need to keep up with the monks instilled a new urgency into the question of celibacy. There is a parallel with the adoption of vegetarianism by Hindu Brahmans to keep up with the vegetarian ‘renouncers’ who were acquiring religious prestige independent of caste status.27 Acceptance of clerical celibacy in principle still left questions unresolved. Fifth-century conciliar legislation gives us an idea of their range. Must a man and his wife give up sex as soon as he became a subdeacon? Should all clerics, in fact, be included, and give up sex? Then: if the rule was broken, what should the consequences be?28 The apostolic see tried to resolve the uncertainties and in doing so showed an awareness that the rule was new to many clerics. Clearly Himerius of Tarragona had raised the question and explained that many clerics had not known that they were breaking any law: this 25 26 27

S. Heid, Zölibat in der frühen Kirche (Paderborn, 2003). D. Hunter, Marriage, Celibacy and Heresy in Ancient Christianity: the Jovinianist Controversy (Oxford, 2007). Cf. PJc.400, 135. 28 Ibid., 150–1.

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Siricius’s reply makes clear.29 The celibacy rule was clearly controversial within the Christian community at Tarragona. It looks as though the bishop is asking the apostolic see for backup in dealing with scriptural arguments against the whole principle. Apparently, opponents of celibacy ‘have defended their sin by the rule by which, we read, permission to procreate was accorded in the Old Testament to priests and ministers’.30 Since ‘Levites’ was a normal word for deacons, and sacerdos stood for priests in both the Old Testament and the fourth-century Church (where it could also mean ‘bishop’), it was a natural objection. Siricius tried to supply the bishop with answers. Service in the temple was hereditary before Christ,31 so marriage had to be allowed to ‘priests and ministers’, but during periods of temple service continence was required. These periods were temporary but in the Christian Church sacrifices are offered up daily, so the purity rule is continuous.32 Innocent I picks up this line of argument in his letter to Victricius of Rouen. Only descendants of Aaron could be priests, so they had to have offspring, but they did not have sex with their wives during the year of their Temple service.33 Writing to Exsuperius, bishop of Toulouse, he spells out the rationale of celibacy still more explicitly: For it is an extremely ancient rule of sacred law kept right from the beginning that priests were commanded to live in the temple in the year when it was their turn [cf. Lev. 21:12], so that the divine mysteries may have, as is right, men serving the sacred offerings who were pure and purged of all stain, and that it should not be right for men to be admitted to the sacrifices who have carnal intercourse even with a wife, for it is written [Lev. 11:44]: ‘Be holy, for I the Lord your God am holy.’ To these men indeed on account of succession by offspring intercourse with their wives was permitted for the reason that no one from another tribe had the command to join the priesthood: how much more ought those priests or deacons keep chastity from the day of their ordination whose priesthood or ministry is not inherited, and when not a day goes by without their being occupied with sacrifices to God or the duty of administering baptism. For if St Paul writes to the Corinthians saying: ‘Practice abstinence for a time, in order to devote yourselves to prayer’ [I Cor. 7:5], and commands this indeed to laymen, much greater will be the duty of priests, to whom belongs the office of praying and offering sacrifices continually, to abstain from this sexual union . . .’

More in this vein follows. The enforcement of celibacy-within-marriage must have been divisive in the clerical communities around bishops. Siricius and Innocent 29 30 32

Ibid., 140: ‘quite a number . . . grieve that they lapsed out of ignorance’. Ibid., 139. 31 The priestly caste was a branch of the Levite tribe. PJc.400, 139–40. 33 Ibid., 142–3.

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I supplied bishops with ideological weapons which would help them get celibacy (within marriage, for deacons and above) accepted. The Principle of Graduality versus the Clerical Career Open to Talent The cursus system discouraged fast-track promotion and laid the emphasis on experience. It is clear, however, that other more informal systems were in conflict with it. These had permitted the promotion to bishop of highly talented laymen, of monks, or of men from other provinces altogether. This clashed with the expectations of the local clerical community, and resulting tensions were brought to the attention of the apostolic see. In general, it backed cursus hierarchy. According to Zosimus, writing in 418, nobody who has not absorbed in successive stages the theory and practice of ecclesiastical life, and learned by passing the test of time how to serve in the ranks of the army of the Lord, should in any way aspire to the supreme priesthood of the Church [i.e. the episcopate] . . . For if secular offices award the top position not to those who have just entered the forecourt of action, but to a man tested successively in the course of a series of ranks, what man is so arrogant and so impudent as to desire to be a leader without delay in the heavenly army, which . . . resembles gold which needs to be repeatedly assayed by fire, when he hasn’t yet had basic training . . . Now however let the kind of man reach the peak that is the priesthood (praesbyterii) who is such that his reputation may be justified by the passage of time and the long service completed bears witness to what uprightness has earned. From there34 by rights a man should be able to hope for the post of the supreme priest.35

The same message is reinforced by analogies from the army and education in a letter of 428 by Celestine I to the bishops of the provinces of Southern Gaul (the ‘Viennensis and Narbonensis’): the appropriate path to the episcopate is through the orders for which regulations have very frequently made provision, so that after starting with the minor offices men are trained for the greater ones. For anyone who wants to be a teacher must first be a disciple, so that what he has learned he may be able to teach . . . If a man does not expend any effort on literature, he cannot be a teacher of literature; if he does not serve in the army campaign after campaign, he cannot achieve the status of a veteran. Is the episcopal office alone among these a more lowly thing, which is given out more easily, though it is harder to carry out?36

We need to reorientate our perspective to avoid seeing the question only through papal eyes. The apostolic see was asked for answers and gave 34 35

‘inde’, which I translate as ‘therefore’ ibid., 80, wrongly as I now think. Ibid., 78–82. 36 Ibid., 89–90.

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them with confident authority, but the reason they were asked at all was because things were far from simple. Ambrose of Milan had been just such a layman catapulted into episcopal office by popular demand. The Council of Nicaea had said nothing about the pace of promotion – no help there. Promotion by seniority had its merits, but so too, in dangerous times, did a system that opened careers to talent. What if the ordinary local clergy were a set of mediocrities? It was a choice between systems. Two heterogeneous elites and two systems of promotion were at odds. On the one hand, there was the graduality principle discussed in the previous section, and on the other a system of fast-track promotion. The opinion of the apostolic see was wanted, though not necessarily followed. It backed the principle of graduality, but it was often out-trumped by the attraction of high-flyers, monks, or elite laymen like Ambrose. In 429 Celestine I wrote to the bishops of Apulia and Calabria specifically about lay competition for Church jobs: We have heard that some cities who have nobody in charge of them wish to seek bishops from the laity . . . What will it profit clerics to have worked their way up through the ranks, and spending their lives in the army of the Lord, if men who are to be put in command of them are sought from among the laity, who, totally bound up with the world, and altogether ignorant of the ecclesiastical order, with a precipitate leap strive with unrestrained ambition to jump up to a distinction that does not belong to them . . .37

In 418 Zosimus had written to the bishop of Salona about queuejumping by both laymen and monks. The bishop had asked what to do. Presumably there was disharmony in his diocese between the products of the two systems of promotion. Zosimus (as we saw) throws his weight behind graduality: [Y]ou inform us that many rush to the sacerdotium [‘priesthood’ but also ‘episcopal office’] from the community of monks, whose ‘solitude’ amounts to more than any crowd of people,38 and that laymen have done the same. It is clear that this, in particular, both under our predecessors, and recently by ourselves, has been forbidden, in letters sent to Gaul and Spain, regions where this presumption is familiar, though Africa also has not been immune from an admonition on our part . . .

In short, the cursus system of promotion is the right one.39 Increasingly, monks seemed a threat to orderly clerical progression.40 This was the background, according to Peter Brown, to a response of 37 39 40

Ibid., 92–3. 38 See Ibid., 79 note 100, for textual and translation problems. Ibid., 78–82. Cf. P. Brown, Through the Eye of a Needle: Wealth, the Fall of Rome, and the Making of Christianity in the West, 350–550 ad (Princeton, 2012), 425–6.

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Celestine I clearly attempting to meet the concerns of the local clergy in Southern Gaul.41 In Celestine’s words: . . . we have learned that certain priests of God serve a superstitious observance, rather than purity of mind and faith. But it is no wonder if they act contrary to ecclesiastical custom when they did not grow up in the Church but, coming by another path,42 brought things which they had in another way of life: wrapped in a cloak and with loins girded, they believe that they are faithfully following the scripture – not in the spiritual but in the literal sense . . . Perhaps people who live in remoter places, and spend their lives far from the rest, have this observance [or: way of dressing] following custom rather than reason. Where does this attire come from in the Churches of Gaul, such that the custom of so many years and such great bishops should be changed into a different attire?43

The word I have translated as ‘priests’ is sacerdotes, which can mean either ‘priests’ or ‘bishops’, so it is possible that the latter are meant. The monastery of Lérins was indeed a great source of bishops: the ‘idea of the monastery as preparation for the ministry was a recurrent theme in the biographies of Lerinese monk-bishops’.44 The clothing in question would seem to be a pallium and a belt, such as lower-class workers wore.45 The pallium was some kind of coat or cloak. It has been suggested that this was the kind of overgarment worn by Cynic philosophers.46 That can’t be ruled out but we do not know enough about what kind of covering it was.47 It seems fairly clear at any rate that Celestine is talking about former monks rather than former philosophers.48 Naturally this harmed the promotion prospects of diocesan clergy. Unchaste Monks and Legal Systems The monastic form of life had come a long way to become a career threat to clerics in the West. Already in the late fourth century, when monks were relative newcomers in the West, a more banal problem had landed in Pope Siricius’s in tray. It was common to any age of monastic history: breach of 41 42

43 44 45 46 47

Brown’s reference to PL 50, Letter 4, 430A–431B corresponds to PJc.400, 86–7. Brown, Through the Eye of a Needle, 426 and 618 note 65, has ‘from another religious setting’. He is translating ‘alio . . . e ritu’ from PL 50, col. 430, whereas my edition has ‘alio . . . itinere’, PJc.400, 87. The former reading seems to be a brilliant emendation by the Ballerini brothers, and is very likely original, but the latter is the one that would have been principally transmitted. PJc.400, 86. R. Markus, The End of Ancient Christianity (Cambridge, 1990), 194. L. Trichet, Le costume du clergé: ses origines et son évolution en France d’après les règlements de l’église (Paris, 1986), 30. M. Miller, Clothing the Clergy: Virtue and Power in Medieval Europe, c. 800–1200 (Ithaca, NY, 2014), 17–18. Trichet, Le costume, 30. 48 Ibid., 29–35.

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chastity vows. What is less obvious, for this period, is that he regards monastic chastity as a requirement integrated into the legal system, both ecclesiastical and, apparently, civil. It was already a matter of concern in 385 and Siricius addresses it in his letter to Himerius.49 He gives the impression that monks and nuns who had illicit sex together were breaking secular as well as ecclesiastical law, though it must be said that no relevant secular laws are known for that period.50 There is also a question mark about the punishment of delinquents. Siricius says that they should be ‘thrust out of sight in their ergastulis’. This word has been taken to mean monastic prison cells,51 but a recent study suggests instead that it refers to ordinary monastic cells,52 which would imply milder treatment. Perhaps the punishment for backsliding was to be sent to a more ascetic monastery. Monasticism and Clerical Systems A less predictable issue facing Siricius was the integration of the monastic and clerical systems, at a much lower level than Celestine would deal with in the fifth century. Originally distinct and entirely heterogeneous though the two systems had originally been, by the later fourth century they were already entangled. Monks wanted to join the clergy, the start of a process which would end up with progression to the priesthood being normal for monks. Given that Siricius had laid down some quite complicated rules for the clerical cursus, some structural engineering would be required to integrate monks into the system.53 In 385 Siricius wrote: those who are under thirty should be promoted through the minor orders step by step . . . and so attain the distinctions of the diaconate or priesthood as the crowning achievement of their maturity. Nor[, at least,] should they rise to the heights of the bishop’s office at one go, unless with these men the same intervals of time that we fixed above for the individual offices have been kept.54

This takes some unpacking. A lot depends on the age of the monk who wants to join the clergy. In Siricius’s ordinary cursus schema a cleric would not be eligible to become an acolyte and subdeacon before his thirtieth year (i.e. until he is 29?). The implication is that he would have to wait some time more before promotion to deacon, proving towards the end of the period that he and his wife could live without sex. If so, a monk who started his progress through the minor orders young might make it to 49 51

52 53

PJc.400, 180–1, 184–5. 50 Ibid., 181, at note 21. C. Hornung, Directa ad decessorem: ein kirchenhistorisch-philologischer Kommentar zur ersten Dekretale des Siricius von Rom. Jahrbuch für Antike und Christentum, Ergänzungsband Kleine Reihe 8 (Münster, 2011), 142–3. J. Hillner, Prison, Punishment, and Penance in Late Antiquity (Cambridge, 2015). PJc.400, 182, 185–6. 54 Ibid., 185.

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deacon younger than an ordinary cleric. There would be a logic to this because a monk who kept to his calling would already have shown that he could live without sex. He would still have to go through the minor orders one by one, so if he started in his late twenties he might be slower than ordinary clerics in reaching the diaconate. The comment about ‘the heights of the bishop’s office’ is less than clear. If he had kept to the ‘intervals of time’ of the cursus, he would not be reaching the episcopal heights ‘at one go’. That phrase, saltim saltu, was the editor ZechielEckes’s choice, in fact his emendation, against saltim, but ‘Nor, at least, should they rise to the heights of the bishop’s office is the reading of the most important early canon law collection and other manuscripts.55 I don’t think this reading is impossible: Siricius may be qualifying the rule he has just given by indicating that monks may after all be allowed to cut some corners en route to the priesthood, but can only aspire to the episcopate if they follow the methodical cursus steps. Either way, it is clear that to make a monastic pathway compatible with the clerical cursus was not a simple matter. Even harder to interpret is a ruling by Innocent I in his letter of 404 to Victricius, bishop of Rouen. In this letter Innocent I addresses the problem of monks who became clerics. The contorted passage below is essentially saying that they could not abandon their commitment to celibacy and get married. As for monks who after remaining for a long time in monasteries afterwards come to the clerical order, [we rule that] they should not deviate from their first undertaking. For either just as he was in the monastery, and that which56 he had kept up for a long time: this he should not lose when placed in a better rank. Or if he had lost his virginity and been afterwards baptized, and, residing in a monastery, should want to be accepted into the clerical order, it will be altogether impossible for him to get married, for one who has already lost his virginity cannot receive the blessing with a bride either. This prescription is especially maintained for the clergy, since the old rule laid it down that anyone who had lost his virginity and been baptized and who wanted to be a cleric would promise that they would by no means get married.57

To understand this we must remember that (a) monks were typically laymen and (b) the lower ranks of the clergy were allowed to marry and procreate. What seems obvious in the light of centuries of Church history may not have been obvious in the late fourth century: viz., that a monk who became a cleric could not get married like a cleric in minor orders. 55 56 57

Ibid., 185 note 28. Taking ‘quod’ as relative, ‘that which’, rather than as a conjunction, ‘because’. Ibid., 183, 186–7.

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That still leaves the passages about virginity to be explained. They belong to the context of clerics in minor orders who could get married but not with a nuptial blessing if they had lost their virginity.58 The passage perhaps makes sense if we envisage men who lived in monasteries without committing themselves definitively to the life, and who could therefore get married if they joined the clergy.59 Conclusion Clerics and monks were originally chalk and cheese. The clergy were an increasingly complex system committed to highly structured hierarchy – but there were unresolved problems about the precise form it should take. The apostolic see was called in to clarify. The monks were an unstructured movement, sometimes out of control, at one point banned from towns by imperial law. The interpenetration of the two systems only intensified the challenge of integrating them. The problem would recur in different forms throughout the history of the Latin Church, and the difficulty of coordinating the two overlapping systems had the unintended consequence of strengthening the papacy, constantly called in to integrate monks within the religious legal system and adjust the differences between the two religious elites. The process is already in evidence with the earliest papal jurisprudence.

58

Ibid., 186 note 31.

59

Ibid., 183.

8

Returning Heretics

The explanations of the origins of papal jurisprudence advanced in the previous chapters work well for rulings relating to heresy. At the risk of repetition: they are responses to uncertainty and the attempts to manage the complexity involved in integrating loosely connected and still evolving systems, such as penance and heresy. ‘Heresy’ in the late Roman Empire was a system for defining and combatting religious belief judged to be erroneous. Perhaps most value systems have something like this system of control – even in the twenty-first-century West people lose their jobs for incorrect speech – but it was highly rationalized in the later Roman Empire, where a ‘Christian literary discourse to define and refute theological error’1 gave way to ‘ecumenical councils and increasingly sophisticated theological definitions’, the emperors working ‘with bishops increasingly polarised by local traditions and civic unrest in a highstakes game of imperial orthodoxy’.2 In the fourth century the focus of debate was on Jesus as second person of the Trinity: was he God in exactly the same sense as the Father, or was he just one link down in a great chain of being? The latter view was associated with Arius and ‘homoiousians’, who thought that Jesus was like God, the former with Athanasius and ‘homoousians’, for whom Jesus and the Father are the same being. Historians with a tin ear for religious discourse have made jokes about one letter (‘i’) dividing the empire, but an argument over the divinity of Christ was not trivial for believers. The battle between the views represented by Arius and Athanasius respectively swayed back and forth through the middle decades of the fourth century. In the fifth century the focus shifted to the relation between the divine and human natures of Christ. Early papal jurisprudence (before 440) has little to say about these debates or rather, 1

2

J. R. Lyman, ‘Heresiology: the Invention of “Heresy” and “Schism”’, in A. Casiday and F. W. Norris, eds., The Cambridge History of Christianity, Constantine to c. 600 (Cambridge, 2007), ii, 296–313, at 297. Ibid., 296.

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little that got into the canon law tradition as represented by its most important early medieval vehicle, the collection called the Dionysiana.3 Papal involvement in the conflict concerning free will and predestination – in which Augustine of Hippo and the African bishops went after Pelagius and his optimistic view of what human free will could manage – is discussed below. That aside, papal jurisprudence in this early period was principally in demand on the interface between heresy (or rather defectors from heresy) and ritual systems, with the actual content of heresy secondary. The defections from heretical sects (as understood by the papacy) are unsurprising, since they were returning to the type of Christianity that had won imperial backing c. 400. One of the sects which lost members to the Catholic mainstream was that of the Novatians. Novatian, their founder, had been a prominent churchman in mid-third-century Rome. On the Trinitarian and Christological issues that divided Christians in the Roman Empire the Novatians appear to have held entirely orthodox views, but in an era of mass conversions to Christianity they saw themselves as a select body of saints surrounded by sinners. Their founder had thought that no serious sin would be forgiven. Reconciliation Rituals for Returning Heretics The mainstream in the meantime was moving in the direction of reconciliation rituals even for the most serious sins. (How minor sins were forgiven is less easy for historians to discover.) An elaborate process of public penance had been developed, timed to run parallel with preparation for adult baptism, both processes culminating in Easter week with full acceptance by the community. The Council of Nicaea and papal jurisprudence also insisted that forgiveness should always be available to the dying. Innocent I ruled that for people who have lived sinful lives (he seems to have sexual sin especially in mind) not only penance but also communion should be available when they are dying.4 Communion had not always been allowed in such cases even at point of death. In his letter to Exsuperius of Toulouse, Innocent I argues that it had been denied to backsliders during the persecution to encourage Christians to hold out, by raising the stakes for failure to do so, but that a gentler policy was appropriate for a gentler age. He draws an explicit contrast with the rigorism of the Novatians: But after our Lord returned peace to his churches, with the terror now blown away, it was decided that communion should be given to the dying – and because of the mercy of the Lord, like a viaticum [= both ‘provision for journey’ and 3

PJc.400, 190–1.

4

Ibid., 282, 284–5.

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‘communion at death’], lest we seem to follow the example of the harshness and hardness of the Novatian heretic, who denies pardon.5

The heresy of the Novatians had consisted precisely in their rigorism. The Montanists (Montenses) were a similarly uncompromising sect. They too thought that the mainstream Church’s system of penance was too soft.6 How to receive converts from Montanism and Novatianism? In his 404 letter to Victricius of Rouen, Innocent I gives a ruling on the rituals required to receive them. Crucially, they do not need to be baptized: ‘those who come from the Novatians or the Montanists should be received through the laying on of the hand only, since, even if by heretics, they were none the less baptized in Christ’s name . . .’.7 Innocent does not say that they were baptized ‘in the name of Father, Son, and Holy Ghost’, but probably took that for granted, given that no unorthodox ideas about the Trinity were associated with either movement. The ritual of reception is to be handlaying.8 The historian of Novatianism, Hermann Vogt, compares this with handlaying in the Penance ritual.9 It appears, however, that Novatians are to be spared the whole elaborate process of public penance unless they have ‘left us for them and were baptized’.10 That would probably mean: unless the people now returning had denied their baptism and sought rebaptism from the heretics. The Council of Nicaea had accepted the orders of Novatian clergy.11 Innocent I’s acceptance of their baptism makes a fortiori sense. If their clerical orders were acceptable, why reject their baptism? He is drawing out a logical conclusion for the bishop of Rouen. We should also remember that the canons of Nicaea may not have been available in Rouen. Followers of Bonosus Harder to interpret are the letters of Innocent I regarding followers of a certain Bonosus. Nothing is said in them about Bonosus’s actual views. The letters are about the ritual status of returnees from the sect.12 The letters, sent in 409 to Martianus of Nis/Naissus,13 and in 414 to ‘the Macedonian bishops and deacons’,14 have been analysed with characteristic acuity by Geoffrey Dunn.15 5 9 14 15

6 7 8 Ibid., 279–80, 285. ODCC, s.v. ‘Montanism’. PJc.400, 196. Ibid. Ibid., 193. 10 Ibid., 196. 11 Ibid., 217. 12 Ibid., 196–210. 13 Ibid., 196. Ibid., 199: J3.691=303. G. Dunn, ‘Innocent I and the Illyrian Churches on the Question of Heretical Ordination’, Journal of the Australian Early Medieval Association 4 (2008), 65–81. See my discussion in ‘Half a Century of Research on the First Papal Decretals (to c. 440)’, Bulletin of Medieval Canon Law n.s. 35 (2018), 331–74, at 364–5.

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Dunn’s reconstruction is as follows. A first reply from Innocent I (to Martianus) had recommended that clerics who had been with Bonosus but ordained before his condemnation should be admitted as Catholic ministers if they repented. Subsequent letters dealt with clerics ordained after the condemnation. We don’t have the letters to Innocent, and the first of his replies has been lost, but Dunn infers that he had said ‘no’ to a question about reordaining such Bonosian clerics. (Note that there are two issues in play: whether the men should be allowed to serve as ministers after their return, and whether their ordination within the sect was valid, making reordination unnecessary.) The Macedonian clergy asked him to think again. Innocent’s reply is his letter of 414 (J3.691=303). As Dunn understands it, Innocent thinks (a) that it was a mistake to reinstate these clerics (and here Dunn is probably right), but also (b) that their orders were invalid. But (b) is far from clear. When one reads Innocent’s cloudy and complex Latin as closely as one must do to translate it, one is still left in doubt about Innocent’s attitude to the validity of Bonosian orders. Scholars who want to form an independent opinion may compare the translation with the Latin, which is even more obscure than my attempt to render it into English (for both see at PJc.400, 196–210). Those who persevere to the end may well feel confused. The obscurity may even have been deliberate on Innocent’s part, for he himself may have been uncertain about the validity of their orders. Some six centuries later, precisely such questions about heretical or putatively heretical orders would divide the leaders of the eleventhcentury reform, with Cardinal Humbert denying their validity and Peter Damian affirming it.16 The distinction between ‘order’ and ‘jurisdiction’ had not been formulated. That intellectual step was not taken until the twelfth century, the canonist Rufinus being apparently the first to articulate the difference clearly, in work which was finished in the 1150s.17 So 16

17

K. Herbers, Geschichte des Papsttums im Mittelalter (Darmstadt, 2012), 121–2; J. Laudage, Priesterbild und Reformpapsttum im 11. Jahrhundert. Beihefte zum Archiv für Kulturgeschichte 22 (Cologne, 1984), 177–8. R. L. Benson, The Bishop-Elect: a Study in Medieval Ecclesiastical Office (Princeton, 1968), 45–55. Benson argues (46) that ‘Till the mid-twelfth century, theorists of the Church’s constitution were hampered by the inadequacy of early medieval terminology . . . Occasionally, Gratian managed to mark a clear division between “orders” and “jurisdiction”; for instance, by justaposing the potestas gubernandi populum and the potestas spiritualia ministrandi, he indicated his awareness of the boundary between governing and sacramental powers. Usually, however, Gratian was neither so explicit nor so precise’; ‘With Rufinus’s theory of auctoritas and administratio, the Christian Church had at hand, for the first time in its history, a carefully elaborated idea of jurisdiction, as well as a doctine which distinguished incisively between the sacramental and jurisdictional spheres of action’, 89. Rufinus’s Summa appeared in the 1150s (ibid., 56). Cf. also 64–7.

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the impenetrability of the prose may be functional, an early and awkward example of a recurrent tendency in papal history – to avoid giving a definite decision when the way forward was not yet clear. An Argument about Principles Theological principle was involved with the practical problem of what to do about Bonosian clergy. On the way, Innocent I takes the time to demolish an argument from principle, viz., that the Council of Nicaea had accepted Novatian orders. (Incidentally, this appears to be the first known documented reference by a bishop of Rome to the Council of Nicaea.18) Innocent disposes of this with some swift logical blows.19 If one can extrapolate from the Novatian case, he argues, then one should be able also to extrapolate from the case of the Paulician heresy. But the baptism of the ‘Paulianists’ was not accepted, because they did not baptize in the name of the Father, Son, and Holy Spirit.20 The passage is another example of the kind of tight rational argument that one meets again and again in the subsequent history of papal law (in contrast with the other legal paradigm established by the canons of the Council of Nicaea, which give their rulings and leave it at that). This characteristic form of discourse deserves to be illustrated by direct quotation: But [it is argued] the canons established at Nicaea permitted it to be done: that canon laid down first by fathers should be set out, so that we might be able to see what they felt or commanded. Concerning those, it says, who call themselves Cathars [Novatians, no connection with medieval Cathars], that is the pure, and who sometimes come to the Catholic Church, it pleased the great and holy synod that after the laying on of the hand has taken place they should remain in the clergy. In truth, I can say that this was commanded of the Novatians alone, and that it does not pertain to clerics of other heresies; for if indeed this decision of theirs applied to all, they would have added: ‘those who were returning from the Novatians and other heresies should be received into their order’: also, and especially, what was said about the Paulianists, returnees from whom they also order to be baptized, will be able to confirm that this is so. For do you think that, when they command this with respect to the Paulianists, all who returned from heretics are to be baptized following this example? Since no-one would dare to do this, reason itself demonstrates that this command applied to them alone. Finally Peter and John brought to completion by the laying on of the hand those who had been properly baptized by the evangelist Philip [Acts 8:17], but when the apostle Paul found people baptized by the baptism of John [the Baptist: Acts 19:1–7],21 18 19 20 21

PJc.400, 203 note 95 with further references. Ibid., 203–4 and 206–7 for his rebuttal. Ibid., 204: cf. 216 for the Council of Nicaea. In my translation, 204, line 11, I inexcusably put ‘Peter’ for ‘Philip’.

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and asked if they had received the Holy Spirit, and when they admitted that they had not even heard that name, he ordered them to be baptized. Therefore you see that those who have been properly baptized are not able to receive that gift a second time; and otherwise that it is understood to be necessary for those cleansed with water alone to be baptized in the name of the Father and the Son and the Holy Spirit. Thus too it is an absolutely clear and evident reading that this order applied only to the Novatians, because manifest reason declares that a distinction was drawn between the same two heresies, because the Paulianists by no means baptized in the name of the Father and the Son and the Holy Spirit, and the Novatians baptize with the same awesome and venerable names, nor has the unity of divine power, that is of the Father, Son, and Holy Spirit, ever been called into question among them.22

Innocent is arguing that the method of extrapolation lacks probative force without details of the heresy, since extrapolation from the case of the Paulicians leads to the opposite conclusion from extrapolation from the Novatian case. Rituals and Reception of Returning Heretics It may have been noted that Innocent also crushes the argument that a fresh ordination purges the past sins of the returning clerics.23 Were that the case – Innocent argues – then ordination would wash away sins of sacrilege, adultery, etc. It would replace penance, which would be absurd. On the contrary, laypeople coming from a heretical sect cannot be ordained – they can only be brought into lay communion, by handlaying. A fortiori, men ordained by heretics cannot become orthodox ministers. He would use the same a fortiori argument a year later in a letter to Alexander, patriarch of Antioch, about Arian clerics coming back to Catholicism: ‘how can it be possible for us to judge those profane priests to be worthy of the honours of Christ [i.e. to take on clerical ministries], whose laity we receive . . . in the manner of penance, to receive the grace of the Holy Spirit, as being defective?’24 Implicitly, rules for the reception of different classes of repentant heretics are being laid out here, if one construes Innocent’s words strictly. Laypeople baptized by heretics can be accepted into the Catholic community through handlaying. Men ordained by heretics are also confined 22 23

24

Ibid., 203–4. See Ibid., 200–2 for his rebuttal. Here my translation, 200 line 16, of ‘sacerdotis benedictio’ as ‘blessing of a . . . priest’ should be emended to ‘episcopal blessing’ – as noted earlier, ‘sacerdos’ can mean either priest or bishop, but the latter makes better sense in the context of ordination. Ibid., 215; and cf. 194.

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to lay communion but they must do penance first. Innocent is attempting to fit together the heresy system with systems of ritual forgiveness. Hybrid Reasoning: Principle and Pragmaticism Innocent was not only faced with uncertainty about the validity of heretical orders but also with the complexity of a problem requiring a compound of principle and (principle-led) pragmatism.25 The practical question was: what to do about those who have already been reordained and are exercising the ministry? Here Innocent adopts the kind of instrumental reasoning that finds a space within the framework of his values. He recognized that the fait accompli should not now be reversed, so he developed a rationale that would have a long history ahead of it, as the great historian of the papacy Erich Caspar recognized: allowing them to continue was an emergency measure and not a precedent. ‘Emic’ and ‘Etic’ Concepts of Theology and Official Law ‘Instrumental reasoning’ and ‘values’ are modern academic semitechnical terms for which it would not be so easy to find precise fifthcentury equivalents. Historians use such terms without thinking too much about it: an economic historian uses the word ‘inflation’ for periods where the idea was not understood. The distinction between ‘status’ (collective estimation of a group by itself or others) and ‘class’ (shared economic interest), useful not least for analysing the causal interplay between the two, was not current in the societies to which historians apply it or even in the everyday language of modern society: the distinction was invented by Max Weber to enable analysis otherwise unavailable precisely because everyday language was too fuzzy for the purpose. Such concepts are called ‘etic’ (another modern academic concept), while the concepts of the people being studied are called ‘emic’. Now, when discussing fifth-century ‘theology’ we should remember that it was not at that time an ‘emic’ concept: there was no contemporary concept of ‘theology’ as such – for that one has to wait until the twelfth century – so no articulated distinction between ‘theology’ and ‘law’. Yet the historian senses that there was a real if unarticulated distinction between the kind of communication discussed in the previous chapters and, say, the character of Leo I’s attempts to get his views on the two natures of Christ 25

Here I have in mind the distinction between value and instrumental rationality, and the ways in which the former shapes the latter, which I discuss in Medieval Religious Rationalities: a Weberian Analysis (Cambridge, 2010), 21–3, 25, and passim.

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over to the patriarch of Constantinople26 and the Eastern Empress Pulcheria.27 In this latter case the pope is arguing and persuading, giving reasons for the truth of the Christology he advocates. It is tempting to call this ‘theology’ in an ‘etic’ sense, just as so much of what are called patristic writings can be called theology. To avoid semantic arguments, however, the word will be avoided for the period before Abelard (who invented it), in favour of ‘Christology’ and ‘patristic’ writers. What about the concepts ‘law’ and ‘legal’? The letters just mentioned (about the natures of Christ) were included in what modern scholars classify as a ‘canon law’ collection, the Quesnelliana,28 but nonetheless there is reason to draw an ‘etic’ distinction between them and the papal rulings studied in this volume and PJc.400. It may be noted too that Dionysius Exiguus did not include any papal material of this sort: I would suggest that he was instinctively developing a de facto distinction between theology and law. As incorporated in Dionysius Exiguus’s collection, the rulings studied in the present book and its elder sister volume PJc.400 had undoubtedly become law even if they should not be so described as originally issued. There is evidence furthermore that papal responses were regarded as law at the issuing end (relevant passages were discussed at the start of Chapter 5), even if they had no way of enforcing unless bishops chose to do so for them. Can one speak of ‘positive law’ (crudely defined as law promulgated by a human authority)? That religious law can be made and unmade by human authority seems to be assumed by Innocent I. In 405, he made it clear that the rules about communion for the lapsed at point of death could change, which sounds very much like positive law.29 Most if not all of the papal rulings studied in the present volume, and in PJc.400, relate to what is lawful or unlawful, on the authority of the writer’s official position, not in the first instance to what is true or false – which is what the letters of Leo I to the patriarch and to the empress are about. Truth and falsity may be involved in those rulings, but insofar as that affects decisions about what is lawful or unlawful. Similarly, patristic writings only claimed to command assent insofar as they were true, not because of the official position of the writer. The distinction between ‘lawful v. unlawful’ and ‘true v. false’ will inform my own ‘etic’ language throughout the rest of the book. Thus, it will be possible to speak of canon law collections as being more or less purely legal, by contrast with true/false discourse. The true/false distinction has the advantage of bringing together two different categories that both contrast with the ‘lawful/unlawful’ register. On the one hand, there were debates about 26

J3.934=423.

27

J3.936=425.

28

PJc.400, 191 and note 3.

29

Ibid., 279, 285.

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such matters as Christ’s humanity and divinity. A pope might claim the authority to declare the truth, but not to make Christ more or less divine! On the other hand, there are the views of theologians who did not hold office. We will see that some collections categorized as canon law made plentiful use of these, so it is significant when a collection does not. The rulings about heresy discussed in the current chapter are in the first instance about lawfulness, though there are some deeply rooted religious principles in the background. ‘True v. false’ religious questions are more to the fore in the responses to be considered in the next chapter, but it will be argued that these too are in the last analysis primarily about official lawfulness and unlawfulness. Conclusion The apostolic see was asked how ritual systems, especially the system of clerical ordination, should be coordinated with the rules for the reception of repentant heretics. The main ritual system in question was clerical ordination, but baptism was drawn into the discussion. The main heresies in question were the Novatians, the followers of Bonosus and (less prominent) some Arians. The actual content of these theological heresies was hardly discussed in the papal responses. In terms of modern analytical ‘etic’ concepts, the responses are legal rather than theological. The last part of the chapter explained this conceptual distinction as it will be used throughout the book. Medievalists sometimes assume that canon law and theology were indistinguishable before the late twelfth century. It is true that they had constituted a continuum in the eleventh and twelfth centuries. When we look further back to late Antiquity, however, we find that a de facto distinction had emerged, even if around 1100 it would be submerged.

9

Pelagianism and the Papacy

Uncertainty about Doctrine A subsidiary argument of this chapter is that even when much more is said about the truth or falsity of beliefs, in this case about grace and free will, the papal responses in question are most usefully classified as legal, even though this is not so immediately evident as with the rulings discussed in the previous chapter. The movements described as heretical in the decretals discussed so far were either of the rigorist sort (Novatians, Montanists) or about the Trinity and nature of Christ (Paulicians, Arians). Furthermore, there is not much in the papal documents about the contents of their beliefs. Questions about what status should be allowed to repentant heretics are to the fore. It was different with the Pelagian controversy, which would leave a deep mark on papal jurisprudence. The papal letters about the controversy constitute by far the largest chapter of Papal Jurisprudence c. 400, and the background to them was sketched out in some detail in chapter 4. It was argued there that Augustine’s relentless pursuit ‘Pelagianism’ cannot adequately be explained as the manifestation of the will to power of a ‘moral entrepreneur’, but evolved in the course of long years of reflection about parts of the Bible which would lead Luther and Calvin to similar conclusions, and conversely that there may indeed have been religiously minded people (Pelagius?) who emphasized, more than the subsequent mainstream Catholic as well as Protestant traditions would allow, the extent to which grace was consequent from foreseen merit and works. On the other hand, Augustine’s final position, with its emphasis on predestination as preordaining, its ‘compatibilist’ understanding of free will, and its negative view of human nature, was by no means so obvious an interpretation of the Bible as it seemed to him. The origins of the controversy lay in uncertainty of how to interpret the Bible. Different passages and parts of the Bible suggested different interpretations. Augustine himself had changed his views. By this final stage, however, there was no doubt left in Augustine’s mind – only passionate 96

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intensity. It was the earnest vehemence of a theological revolutionary, for nothing like his doctrine of predestination had been articulated before, unless by St Paul, whom his opponent Pelagius read quite differently. The situation was a recipe for religious uncertainty, and it is unsurprising that the apostolic see was drawn in – this chapter’s principal theme. Augustine’s intellectual power, in turn, propelled the letters from African councils and a select group of bishops which Innocent I was expected to answer. The letters from the two councils reported condemnation of views which it was easy to reject, whether or not Pelagius ever held them. In this respect Ali Bonner’s theory may fit the letters well enough, though we should note their willingness to accept that perhaps it is followers who are saying these things rather than Pelagius and Caelestius themselves. The letter from the Council of Carthage is the most substantial.1 It claims the following. Pelagius and Caelestius leave no place for the grace of God through which we are Christians and by which our free will is freed from the domination of carnal concupiscence.2 Pelagius and Caelestius neither want properly to recognize this grace nor dare to attack it openly, but what else are they doing when they say that human nature is enough for righteousness and to carry out God’s commandments?3 It is an implication of their views that we do not have to pray not to enter into temptation or that our faith may not fail (note the artful allusion to Christ’s prayer for St Peter, Luke 22:32).4 What would be the point of praying for what could be obtained by natural powers?5 They deny that infants need to be baptized for the sake of salvation, promising that they will have eternal life even if not baptized, and saying that they are not in the power of the devil.6 Then comes a qualification: Caelestius did accept that baptism was necessary for the redemption of infants, but many who are said to be or have been disciples of Pelagius and Caelestius continue to affirm these evil things. Even if Pelagius and Caelestius deny they said these things, or have corrected themselves, the idea that human nature is enough to conquer sin and obey the commandments of God, and denial that infants are freed from perdition and obtain eternal life, is to be condemned. The letter from the Council of Mileve is similar,7 though without the scrupulous qualification at the end of the document from Carthage. 1

2 3 4 5 6

A. Goldbacher (ed.), Corpus Scriptorum Ecclesiasticorum Latinorum, xxxxiv, S. Aureli Augustini operum sectio II. S. Augustini Epistulae. Pars III. Ep. CCXXIV–CLXXXIV A (Vienna, 1904), Letter CLXXV, 652–62. ‘nullum . . . liberatur’ (ibid., 655). ‘Illam vero gratiam . . . posse naturam . . .’ (ibid., 656–7). ‘consideret enim sanctitas tua . . . testatus est’ (ibid., 658–9). ‘si enim possibilitate . . . obtinentur . . .’ (ibid., 659). ‘Paruulos etiam . . . non perierant’ (ibid., 660–1). 7 Ibid., Letter CLXXVI, 663–8.

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Pelagius and Caelestius supposedly say that once man has learned the commandments of God, he can through free will alone and without the help of grace reach such a state of perfection that he does not need to say ‘Forgive us our trespasses’,8 and that infants can reach eternal life without the sacraments (sacramentis) of grace.9 There is nothing about predestination in these letters, but the idea makes an appearance in the letter from the five bishops, which we may assume to have been drafted by Augustine himself.10 This is the gist: the word is that there are many in Rome who favour Pelagius for various reasons. Many don’t think he said what was attributed to him. They misunderstood the way he uses the word ‘grace’, thinking he means the grace by which we were justified, not the grace by which we were created and which we share with the impious.11 Actually, though, they are not really writing about Pelagius, who has possibly corrected himself, it may be hoped, but about a host of troublemakers.12 A book, with key passages marked, is attached; Timasius and Iacobus, former fans of Pelagius but now monks, say it is by Pelagius.13 What if Pelagius denies that he wrote the book or that the passages are as Augustine says? No matter: let Pelagius condemn the views in question, and profess belief in the grace which is not nature but by which nature is saved and helped.14 Augustine’s thinking can definitely be perceived as a shadowy form behind the veil of condemnation of relatively easy targets. He is prepared to allow that the word ‘grace’ can be used for our created nature, since it was a gift of God not earned by any preceding merits on our part, but nonetheless it is different from the grace ‘by which we are called predestined, justified, glorified’.15 Read carefully, Innocent I’s response does not go all the way with Augustine. He criticizes sharply anyone who thinks ‘that there is nothing which he needs to receive from God, and there remains nothing for which he should supplicate in order to be healed’.16 (The obvious implication 8 9 10 12 13 14

15 16

‘isti dicunt posse . . . debita nostra . . .’ (ibid., 665). ‘pueros quoque paruulos . . . praesumptione contendunt . . .’ (ibid., 666). Ibid., Letter CLXXVII, 669–88. 11 ‘Audiuimus enim esse . . . spargere’ (ibid., 670–1). ‘Non agitur de uno Pelagio . . . plena sunt omnia’ (ibid., 671). ‘Misimus . . . condidit deus’ (ibid., 675). ‘Si autem hunc esse suum librum . . . incrementum, deus’ (ibid., 675–6). Note his caution also on 683, where he admits that Pelagius may not be contumacious or not even the author of the texts attributed to him: ‘anathemet ergo Pelagius scripta sua, ubi contra eam [grace] etsi non per contumaciam tamen per ignorantiam disputat possibilitatem defendendo naturae ad uincenda peccata et implenda mandata, aut, si ea esse sua negat aut scriptis suis ab inimicis suis dicit inmissa, quae sua esse negat, anathemet ea tamen et damnet . . .’. Ibid., 676: ‘qua praedestinati uocamur, iustificamur, glorificamur’. PJc.400, 245–6.

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would seem to be that God will heal those who supplicate and even that the option of doing so or not doing so is open. If so, Innocent has come to praise Augustine but, in reality, has buried the latter’s hard-line view of grace.) Innocent has yet to be convinced that Pelagius has been cleared by a council (this would be Diospolis), since what purport to be the acts of the council have not been sent to him officially, but passed on by certain laymen.17 He has no idea if there are Pelagians at Rome, because, if there were, they would be keeping their heads down.18 Pelagius should come to Rome to judgement, though someone nearer to where he is should summon him – Innocent indicates that he isn’t going to do so himself.19 He has had a look at the book purportedly by Pelagius which Augustine sent him, and disapproves of it. This is not the place to discuss the law as if a Pelagius were there putting his case – the bishops to whom Innocent is writing are well aware of the law already; mind you, there is still room for discussion about ‘free will, about the whole matter of the grace of God, and the grace given from day to day’.20 Therefore, let Pelagius ‘anathematize (Anathematizet) what he used to think, so that those who have been brought low by his sermons and precepts may finally know what the truth holds’.21 Since Pelagius and Innocent I had both for years been in the Roman Christian elite, Innocent may indeed have had an idea of what the British exile had been teaching. He seems less inclined than Augustine to suspend judgement about whether Pelagius really said all that is attributed to him. But there is no echo of what we know to have been Augustine’s own fierce and unrelenting convictions at the opposite end of the spectrum. The argument would continue over the ages. Even after the Reformation, the debate resurfaced within both Protestantism and Catholicism, with the Protestant Arminians reacting against strong predestinarianism and the Jansenists moving close to a Catholic version of Calvin’s position. Jansenism was eventually condemned but Dominican theologians continued the late Augustinian tradition and met Jesuit opposition. In 1607 Paul V ‘decreed that the Dominicans could not justly be accused of Calvinism nor the Jesuits of Pelagianism, and that neither side should pronounce the contrary teaching heretical’.22 Innocent I was at the origins of a long tradition of papal caution when he said there was plenty more to discuss. He doesn’t want to go there, and contents himself with condemnations that fall far short of affirmations of the late Augustinian theory at which even the letter of the five bishops (i.e. by 17 22

Ibid., 246–7. 18 Ibid. 19 Ibid., 248–9. ODCC, s.v. ‘de Auxiliis’, 462.

20

Ibid., 250–1.

21

Ibid.

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Augustine) had only hinted, but which Innocent probably understood well enough to skirt around. Less finesse was required in his replies to the Councils of Carthage and Mileve, since they had said nothing about predestination. Innocent I took the opportunity to make a strong statement about the authority of the apostolic see, praising the bishops for seeking a verdict (iudicium) from him and accepting that whatever might be done even in provinces that are far apart . . . should not be completed unless it is brought to the notice of this see; so that a pronouncement which was just may be strengthened by its full authority, and the other Churches make take from there – just as all waters derive from the fountain that gave rise to them, and flow without losing the purity of their source through the various regions of the whole world – what to command, whom they should purify, and whom a wave worthy of pure bodies should avoid as being soiled in filth beyond any hope of cleansing.23

The African Churches’ aim had presumably been to get a decision which would out-trump that of Diospolis, rather than to reinforce papal power, but Innocent I did miss the chance they doubtless unintentionally offered him. The rest of the letter would fall pleasantly on African ears without giving any hostages to preordainment. Pelagians take credit for their goodness and don’t give thought to the graces they receive on a daily basis.24 Grace comes from the Creator, and ‘people like this’ ‘are confident that without Him they can obtain as much as those who ask and receive from Him acquire with difficulty’. We need grace constantly – the free will with which we were born was only the beginning of our need for God: ‘unless grace for which we have implored with great prayers comes down on us, we can in no way attempt to overcome the errors of earthly ruin and our worldly body’.25 Even King David knew he could not do without prayer, to obtain grace, and the Psalms show Pelagius and Caelestius are wrong to think that we are not obliged to pray for grace; after baptism we still need subsequent grace;26 we achieve nothing by our daily prayers except insofar as we attain to God’s mercy.27 But if they (those who hold the doctrine, perhaps, rather than Pelagius and Caelestius specifically) should ask for the divine help they have hitherto denied, then they can return to the flock.28 Innocent I pretends to agree with his African interlocutors, or deliberately misunderstands, but really he is affirming choice. The response to the Mileve council is shorter. Papal authority gets a mention – ‘especially when the logic of the faith is under discussion . . . all our brothers and fellow bishops ought to refer only to Peter . . .’.29 The 23 28

PJc.400, 222. Ibid., 232–4.

24 29

Ibid., 224–5. 25 Ibid., 225–7. Ibid., 236 and 238.

26

Ibid., 228–30.

27

Ibid., 231.

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heretics deny the need for prayer and God’s help. After the Fall of Adam and Eve, the human race could be freed from sin only by Christ.30 It is absurd, he writes, to preach that small children can be given the rewards of eternal life without the grace of baptism. That would take the value out of baptism. But note that Innocent I refrains from saying anything whatsoever on what will happen to infants who die without baptism. As Pier Franco Beatrice remarked, ‘Innocent says nothing about the damnation of babies who have not received the life granted in baptism, and his silence speaks volumes’; he goes on to speculate, convincingly, that Innocent ‘certainly would not have maintained, with the stubbornness of Augustine, that they end up in the flames of hell’.31 The letter concludes apparently excommunicating Pelagius and Caelestius, while adding with some emphasis that they should be taken back if they return to their senses.32 Celestine I to the Bishops of Gaul None of Innocent I’s responses to Augustine and the importunate African bishops were included in the most important of the first substantial compilations of canon law to survive, the Dionysiana, but they are transmitted by the next most important collection, the Quesnelliana, and through this into the canon law traditions.33 There is one important response, however, which is transmitted not by the Quesnelliana but by the Dionysiana: a letter of Celestine I to the bishops of Gaul. This letter quotes some fragments of the condemnation of the heresy by Innocent I’s successor Zosimus, which has not survived as a whole.34 The back history behind this letter to Gaul seems to have been the continuation of the controversy there, far away from its African epicentre. John Cassian, a monk, theologian, and spiritual writer with a truly international reputation, had criticized the Augustinian doctrine of grace in his ‘Conference 13’.35 That provoked in its turn a reaction from Prosper of Aquitaine, also eminent,36 who went to Rome to complain. That two such highly respected religious contemporaries should have taken such different views of Augustine’s theory of grace should give us pause for thought. Confident though the protagonists on both sides of the 30 31 32 33 34 36

Ibid., 237–9. P. F. Beatrice, transl. A. Kamesar, The Transmission of Sin: Augustine and the PreAugustinian Sources (Oxford, 2013), 245 and note 9. PJc.400, 241–3. See the sections on ‘Reception’ after the editions and translations of each section or canon, ibid., 223–52. Ibid., 252–75. 35 See ODCC, s.v. ‘Cassian, John’. See ODCC, s.v. ‘Prosper of Aquitaine’.

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debate were of their position, it is hard to see either position as a selfevident interpretation of the Bible; indeed, if it were, the debate would not have gone on for a millennium more. The head-on clash between certitudes implies a high degree of uncertainty in the Western Church at large. To profess agnosticism was not an option for the apostolic see in the early fifth century. Instead, Celestine I’s response followed Innocent I’s example in saying less than it seemed to do in support of Augustine’s idea of grace, while heaping praise on the man himself: as Owen Chadwick commented, ‘There is no approval of the Augustinian doctrines . . . There is nothing in the approval of Augustine which Cassian would not have supported.’37 This was in 431. Augustine had died in the previous year. The letter pays a warm tribute to him personally.38 It sets out to sum up previous papal teachings on grace. The rest will seem familiar after reading Innocent’s letters; indeed a good deal of it is direct and acknowledged quotation from those letters, with a little also from Zosimus. Celestine I gives a nod of approval to the African bishops (‘we . . . append certain sentences of African councils, which indeed the apostolic rulers made their own’39). In the sin of Adam ‘all men lost their natural capacity and innocence, and nobody is able to rise up from the depths of that ruin through free will, if the grace of the merciful God does not raise him up’.40 This is a cue for a quotation from Innocent I.41 People are only good insofar as God grants participation in himself; Innocent I’s criticism of those who have no thought for the grace they receive every day is quoted.42 After baptism, we still need God’s help: Innocent says that even after redeeming man from past sins, God knew that man would sin again, and provided ‘daily remedies’.43 Next to be quoted from Innocent I is the passage which implicitly rules out ‘supralapsarian’ preordination – the idea that even Adam and Eve were never going to make different choices, in that their free will was preprogrammed, a late Augustinian doctrine. If Augustine’s late theory did indeed include strong predestination before the Fall of Adam and Eve, Innocent I, and Celestine I by quoting him, was contradicting the great man: ‘note at long last that freedom itself so deceived the first man that as he rode it on too loose a rein he fell into the sin of presumption, nor could he have been pulled free of it, if the coming of the Lord Christ had not restored by providential renewal the state of original liberty’.44 A fragment from Zosimus, who had initially rehabilitated Pelagius and Caelestius but then backtracked under imperial pressure, allegedly 37 39 42 44

O. Chadwick, John Cassian, 2nd ed. (Cambridge, 1968), 131–2. Ibid., 259. 40 Ibid., 260. 41 Cf. ibid., 260–1 with 228–30. Ibid., 462, and cf. 224–5. 43 Ibid., 262–3, and cf. 229–30. Ibid., 264, and cf. 237–9.

38

PJc.400, 257–8.

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stimulated by bribery emanating from Africa,45 introduces a passage from the approving reply of the African bishops. In referring the matter back to them, Zosimus had acted of his own free will, they said, yet at God’s instigation.46 This could bear a ‘compatibilist’ reading (i.e. Zosimus acted without compulsion but could not have acted otherwise), though that might be to over-interpret. Canons of a council held at Carthage after Zosimus’s first decision (so subsequent to the council at Carthage in Innocent’s day) are quoted by Celestine with approval.47 There is no ‘preordainment’ in the canons quoted, and nothing necessarily to imply that the free will is of a ‘compatibilist’ sort, though the idea that free will could just about manage without grace is rejected. The remainder of Celestine’s letter stresses that papal documents are implicitly reinforced by sacerdotal services, which have been handed down by the apostles and are celebrated throughout the world and in every Catholic church and in the same way, so that the law of prayer may establish the law of belief. For when the leaders of holy congregations carry out the office entrusted to them, they represent the whole human race in its case before divine mercy.48

One should also reflect on baptism, in which the evil spirit is driven out by the exorcisms of clerics; all human merits come from grace, which is at the origin of the desire to do good; by God’s gift free will is not removed but liberated; we become co-workers with the grace of God.49 Celestine I has avoided difficult questions, and he admits to doing so. ‘To the deeper and more difficult parts of the questions that arise . . . which those who combat heretics deal with at greater length, we do not need to contribute . . .’50 Like Socrates, he knew what he did not know. He had tried to provide enough certainty about grace to be going on with, and knew when to stop. Lawful/Unlawful v. True/False We may now return to the subsidiary question of how far the foregoing should be characterized as law, in the ‘etic’ sense defined in the preceding chapter, as involving official authority as well as a claim to speak the truth. 45

46 47 48

H. Chadwick, The Church in Ancient Society: from Galilee to Gregory the Great (Oxford, 2001), 456–7; J. Patout Burns, ‘Augustine’s Role in the Imperial Action against Pelagius’, Journal of Theological Studies 30 (1979), 67–83, at 68–9, 71–3, 81, and passim. Burns thinks that the African bishops swung into action before they had heard from Zosimus. PJc.400, 264–6. Burns, ‘Augustine’s Role’, 73 and note 6; PJc.400, 268–9 (the third, fourth, and fifth canons are quoted). PJc.400, 270. 49 Ibid., 272–4. 50 PJc.400, 275.

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There is certainly much more overlap with what would be discussed in a Theology faculty today, in ‘true v. false’ mode, than in the rulings discussed in the previous chapter. Innocent I and Celestine I do not just name heresies, but expatiate at length on the views attributed to Pelagius and Caelestius. Do they also pass judgments in the ‘lawful/unlawful’ mode? Particularly in the case of Innocent I this is not so easy to decide, because he had to be careful about the sensibilities of the African Church, which probably just wanted a ringing endorsement. Much depends on how one interprets subjunctives (remembering that the subjunctive was commonly used in the already well established ‘let him be an anathema’ formula). To the bishops of the Council of Carthage Innocent I says of those who hold the views under attack: ‘let the contaminated wound be separated from the healthy body’, but that if they repent ‘it will be in the power of bishops’ to take them back,51 which could be read as a ruling that it is lawful for them to do so. When Innocent I writes to the bishops of the Council of Mileve that ‘we judge with the authority of apostolic power that Pelagius and Coelestius . . . be deprived of ecclesiastical communion’ until they repent, it sounds like a legal sentence.52 The letter to the five bishops suggests that Pelagius should be judged by a tribunal closer at hand than Rome.53 All this suggests that we are in the legal domain, as defined at the end of the last chapter. This seems clearer still in the letter of Celestine I, especially if we detach it from the list of ‘authorities’ which are appended to it.54 Even at the end of the latter, which are indeed full of reflection on substantive problems of grace and free will, there is a final paragraph which brings it all back to the lawful/unlawful register.55 The letter itself is an instruction to the bishops of Gaul to rein in preachers in their diocese who have been ‘preaching things contrary to the truth’56 – about grace and free will, the context suggests. Celestine is not arguing with the bishops of Gaul, but telling them. In a bureaucratic Church, such as did not yet exist, one might call this ‘administration’, but in the absence of anything like that, one may call it an attempt to impose a judgment about what was lawful. Conclusion That even the responses about Pelagianism belong in the last analysis to the legal domain, as defined above, is a secondary conclusion of the 51 54 55 56

Ibid., 232–4. 52 Ibid., 241–3. 53 Ibid., 248–9. Ibid., 259–74 (I try to identify the papal and conciliar texts cited). ‘quicquid secundum praedictas regulas apostolicae sedis nos scripta docuerunt’ (ibid., 275, my italics). Ibid., 253, 255.

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chapter. The primary conclusion can be integrated with a central argument about the origins of the first papal jurisprudence, viz., that it was demand-driven, and that the demand was driven by uncertainty. We should not be surprised at uncertainty in late Antiquity about grace and free will when modern scholars write in such different terms about Augustine – from the lyrical tone of Carol Harrison57 to the evident antipathy of Ali Bonner.58 Many modern people may share Bonner’s preference for Pelagius, but we should remember that Augustine’s understanding of grace later won the assent of intellectuals like Gottschalk in the ninth century, Bradwardine in the fourteenth, not to mention again Luther and Calvin in the sixteenth century, and that it continued to have adherents within Catholicism, even after the Council of Trent. Selfevident the solution to the argument was not. Given the violently opposed views, in this apparently purely Western controversy, it is not surprising that the apostolic see was asked for a response. Understandably baffled by the paradox of divine omnipotence and human free will, it did what it would do in subsequent centuries: step back from acceptance of Augustine’s late views, without breathing a word of criticism against him.

57 58

C. Harrison, Rethinking Augustine’s Early Theology: an Argument for Continuity (Oxford, 2006), 286–7. See Chapter 4 above, passim.

10

Leo I

Papal Record-Keeping The letter of Celestine to the Gallic bishops quotes verbatim from previous papal documents, giving extracts from Zosimus and above all Innocent I. This indicates that the papacy kept records, and indeed there is no doubt that the papacy had a functioning archive in the period that concerns us.1 At Rome an administrative infrastructure continued through decades of political crisis and collapse. End of Empire: The Role of Attila In a recent account of the fall of the Roman Empire2 in the West, the Huns are pivotal at three points. Firstly, their destruction of all comers outside the boundary of the empire in the later fourth century led other ethnic groups, above all Goths, to beg to be allowed in; once admitted but badly treated, the Goths took up arms against their new masters and beat them at the battle of Hadrianople in 378. Roman forces recovered some control over the next few years but from then on there were too many blocks of unassimilated ethnic groups for easy management (a problem compounded by child emperors and usurpers). A symbolic culmination of this phase was the sack of Rome by Alaric at the head of an army of Goths in 410. Prospects of a return to Roman imperial normality brightened for a generation after that but the Vandal conquest of North Africa 1

2

C. Pietri, Roma Christiana: recherches sur l’église de Rome, son organisation, son politique, son idéologie de Miltiade à Sixte III, 311–440, 2 vols. Bibliothèque des Écoles françaises d’Athènes et de Rome 224 (Rome, 1976), i, 672–6, especially 673. Cf. PJc.400, 91: ‘In nostris . . . scriniis’; ibid., 121: ‘chartarum’. P. Heather, The Fall of the Roman Empire: a New History (London, 2005), outstandingly readable! The strength of Heather’s interpretation is the complementarity of the narrative and the analytical explanation. See also G. Halsall, ‘The Barbarian Invasions’, in P. Fouracre, ed., The New Cambridge Medieval History, i, c. 500–c. 700 (Cambridge, 2005), 35–55, at 45–51 (there is convergence too: on the disruption caused by usurpers and the growth of barbarian power near the borders of the Empire precisely because of its influence).

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cut off the most important taxation stream. Aetius and the Eastern Empire were ready to take it back when Attila’s assault on the Eastern empire aborted the expedition and prevented the reconquest of Africa. Paradoxically, the death of Attila and the collapse of his Hunnic Empire was the third deadly blow to the Western Empire: several quasi-ethnic groups ‘settled’ deep within the empire had worked with Aetius to check Attila’s advance. On Attila’s death, the deck was full of loose cannons, so to speak. Historically, it had been possible to work with barbarian settlers by offering formal military titles and/or buying them off with money or land, but now there were too many armed and dangerous groups to please. Above all, the loss of revenue from North Africa made it impossible to pay for a high-quality army and restore the empire. That in the midst of political crises the Church went from strength to strength is remarkable but not inexplicable. Imperial taxation to pay the army had been a huge burden, and its removal must have meant extra resources for the generous to dispose of. The trend towards a massive transfer of wealth to ecclesiastical institutions was already in motion, as Ian Wood has so convincingly argued, and without imperial taxation, there was more to give, so long as the economy did not collapse, which did not happen immediately. The big economic downturn would seem to have been the sixth rather than the fifth century.3 West and East in the 420s and 430s Before the fiscal crisis following on the Vandal conquests in North Africa, the successes of Constantius (d. 421) had created a breathing space before the next big crisis, the Vandal conquests in Africa. It was in the 420s that building of the magnificent basilica of Santa Maria Maggiore in Rome was begun; perhaps more than any other church, it still conveys the atmosphere of late Antique Roman Christianity.4 Even after the losses in Africa the momentum of building in Rome continued: ‘the classical and retrospective flavour of a true renaissance in Roman church building does not truly unfold before the late 420s; it reaches its climax from 432 to 461 in the pontificates of Sixtus III and Leo the Great . . .’.5 Leo I had a central civic role in addition to his religious office, and did his best for Rome by attempting to persuade Attila the Hun to leave it alone. Attila did indeed hold off and withdraw, though not necessarily because of Leo’s intervention.6 3 4 5

B. Ward-Perkins, The Fall of Rome and the End of Civilization (Oxford, 2005), passim. R. Krautheimer, Rome, Profile of a City, 312–1308 (Princeton, 1980), 46–9. Ibid., 51. 6 Heather, Fall, 340–1, playing down Leo’s influence.

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Furthermore, small collections of decretals were – so it has been plausibly argued – ‘available in the archives of many churches [and] . . . probably assembled into small collections’.7 There is textual evidence for this,8 and also a passage from Leo I, who when writing to Italian bishops in 443 referred to what looked like such a collection: We command that all the decretals laid down, both by Innocent of blessed memory and of all our predecessors, which were published concerning ecclesiastical orders and the instructions of the canons, should be kept in such a way by your beloved selves that if anyone should offend against them, he should know that from now on he will not be pardoned.9

It is possible that the impressive canon law collection of the African Church, at a time when it was implicitly challenging papal claims, may have planted the seed of the idea of a collection of papal decretals under Leo’s predecessors.10 Already in the second quarter of the fifth century such collections can be reconstructed.11 Naturally, the pope did not have the same standing in the East. It is true that there was a notable appeal to him as successor of St Peter by Theodoret, bishop of Cyrus, after the latter had been condemned by the Council of Ephesus.12 But Rome faced increasing competition in the East from Constantinople, and Eastern Christianity and a much stronger general theological culture than the West, Augustine of Hippo aside. Even the famous ‘Tome of Leo’ (449) had less influence at the Council of Chalcedon (451) than used to be thought, though there were some echoes of it and it was treated with respect: in its teaching that Jesus Christ was both fully God and also fully man and like us, and that his 7 8 9

10

11

12

D. Jasper and H. Fuhrmann, Papal Letters in the Early Middle Ages (Washington, DC, 2001), 21. Ibid., 22–6. ‘omnia decretalia constituta tam beatae recordationis Innocenti quam omnium decessorum nostrorum, quae de ecclesiasticis ordinibus et canonum promulgata sunt disciplinis, ita a vestra dilectione custodiri debere mandamus, ut si quis in illa commiserit, veniam sibi deinceps noverit denegari.’ Ibid., 22; J3.903 = Old Jaffé 402 (180). E. Caspar, Geschichte des Papsttums, i (Tübingen, 1930), 371 note 3 points out that the ‘Codex ecclesiae Africanae’ was sent to Rome in 419, and argues that it can hardly be chance that the first traces of collections of papal decretals are found immediately afterwards. Cf. ibid., 296–7. For a scholarly reconstruction with full references to early literature see D. Moreau, ‘Non impar conciliorum extat auctoritas: l’origine de l’introduction des lettres pontificales dans le droit canonique’, in J. Desmulliez, C. Hoët-van Cauwenberghe, and J.-C. Jolivet, eds., Etude des correspondances dans le monde romain. De l’antiquité classique à l’antiquité tardive: permanences et mutations (Lille, 2010), 487–506, at 498–506. G. E. Demacopoulos, The Invention of Peter: Apostolic Discourse and Papal Authority in Late Antiquity (Philadelphia, 2013), 67.

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mother Mary was mother of God, the influence of Cyril of Alexandria is greater than Leo’s.13 Reasons for Repetition Capillary action through small collections and perhaps some interchange between episcopal archives may have spread the influence of the first papal jurisprudence, but it must have been a hit-and-miss process. Similarly, archival practices vary widely (then as now), and we cannot assume that every letter sent to a bishop was easy to find in a well-kept diocesan archive, let alone in other dioceses; nor could bishops of Rome normally know what was kept where. Not every bishop can have been familiar with the main rulings of the apostolic see. Bishops of Rome hoped that their letters would be carefully kept and passed on from bishop to bishop, but they had no way of making it happen, and they certainly made no attempt at mailshots to bishops generally, even in the West. We can only guess at the scale of the circulation of the small early collections but there is no reason to think that it was particularly wide, and in any case they contained only five or six decretals.14 There is thus no reason to postulate ‘will to power’ as explanation of the repetition of answers to the same questions. An important study of the late Antique papacy comments, apropos of questions about clerical marriage, that ‘Rather than ignoring such questions or simply referring the petitioners to earlier decretals and imperial edicts, Roman bishops answered them repeatedly.’15 There are two questionable assumptions here: firstly, that Roman law (however Christian) agreed with papal law, and secondly, that access to earlier papal decretals was easy for everyone. It was no doubt to meet the need for such ready reference that the Dionysiana and Quesnelliana collections were compiled, around 500. 13

14

15

A. M. Ritter, ‘Kapitel IV: der christologische Streit und das Dogma von Chalkedon (451)’, in C. Andresen et al., revised by A. M. Ritter, Die christlichen Lehrentwicklungen bis zum Ende des Spätmittelalters (Göttingen, 1999), 225–88, at 268–71, 272. ODCC, s.v. ‘Leo I’, 972 for the older view. My thanks to Prof. Wolfram Kinzig for this reference and for correcting an assertion about the Tome of Leo in PJc.400. Cf. M. Hoskin, ‘Prolegomena to a Critical Edition of the Letters of Pope Leo the Great: a Study of the Manuscripts’ (University of Edinburgh PhD thesis, 2015), 12. ‘Three collections have been reconstructed which contain five or six decretals from Innocent I (JK 286 [J3. 665], 293 [J3.675], 303 [J3.691]), Zosimus (JK 339 [J3.745]) and Celestine I (JK 369 [J3.821], 371 [J3.823]).’ Jasper and Fuhrmann, Papal Letters, 23. K. Sessa, The Formation of Papal Authority in Late Antique Italy: Roman Bishops and the Domestic Sphere (Cambridge, 2012), 184. Cf. D. L. d’Avray, ‘Half a Century of Research on the First Papal Decretals (to c. 440)’, Bulletin of Medieval Canon Law n.s. 35 (2018), 331–74, at 371–2.

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A sharp contrast between before and after c. 500 needs to be drawn. Before 500, it would have been difficult for most bishops to know what the apostolic see (and councils) had laid down. After 500 it would have been increasingly easy, because those two substantial canon law collections came on stream. From then on, an existing collection could be a bishop’s first port of call, and he would only need to write to the apostolic see if he could not find an answer in it. Not so under Leo I. This explains why Leo I seems to cover much of the same ground as we have surveyed for the first fifty years of papal jurisprudence. We should not be surprised that he was asked questions which had been more or less answered by previous responses of the apostolic see, for the answers were quite probably unavailable to the questioner.16 In any case Leo I does not merely repeat the answers of his predecessors. He developed their thought and added clarification where there had been imprecision. Some of Leo I’s answers would be incorporated into those larger collections produced around 500. The following analysis will concentrate on the decretals included in the most influential collection, the Dionysiana, rather than attempting to survey the whole very substantial corpus of Leo’s letters.17 The Dionysiana would channel them into the mainstream of canon law tradition. Ritual and the Religious Year Ritual remains a central theme. A problem already tackled by Siricius and Innocent I was the relation of baptism to the religious year. In 385 Siricius had given a ruling in his letter to Himerius of Tarragona: baptism went with Easter or Pentecost, except in emergencies, when there was danger of death.18 In 447 Leo I addressed the same question in a letter to all the bishops of Sicily.19 Reliable sources had informed him that people had been receiving baptism at Epiphany. In the previous century Siricius had also mentioned this: also at Christmas and the feasts of apostles or martyrs. He tried to stop it, but we shouldn’t be surprised that the message had not got through from north-eastern Spain to Sicily. Leo I’s responses are in a (chronologically one-sided) conversation with this earlier papal jurisprudence as well as with the bishops of Sicily. Leo I writes a whole essay to explain the underlying rationale of the link between baptism and the ritual year – and also the reason why Epiphany is not normally appropriate. The logic is of what one might call ‘fittingness’. 16 17 19

Cf. my comments in ‘Half a Century’, 372. The best survey is now Hoskin, ‘Prolegomena’. See Appendix A(m).

18

PJc.400, 51–2, 54–5.

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Leo says baptism is inappropriate in normal circumstances at times other than Easter or Pentecost. The criteria are almost aesthetic. He takes us through the main events in the life of Jesus, emphasizing the time dimension of redemption, but then argues that ‘it is not possible for everything that is enumerated of the works of the Saviour to have reference to the time assigned for baptism’. The whole year should not be turned into an ‘unbroken sequence of festivals’, for ‘in Christian religious rites no disorder or confusion should be allowed’. The liturgical year has a rationale.20 There is a special symbolic connection between baptism and the death and resurrection of Christ. Baptism means the death of sin, so corresponds to the death of Christ (one may think that this parallel does not work too well); the threefold immersion corresponds to the three days in the tomb; the raising of the newly baptized person from the waters matches the resurrection of Christ. It is no accident that Christ did not give instructions to baptize until after his Passion.21 So why Pentecost too? It is a kind of pendant to Easter and, significantly, it always falls on a Sunday, unlike other feasts. This second chance is helpful for people who have unavoidably missed the opportunity to be baptized at Easter.22 Furthermore, it was at Pentecost that thousands of people were baptized by St Peter.23 In line with Siricius three quarters of a century before,24 Leo I makes an exception for people in danger, but otherwise he is firm about the rule. He emphasizes that the fittingness criterion does not apply to Epiphany. Even though this feast celebrates the baptism of Jesus by John the Baptist, it was a different kind of baptism. Christ wanted to be baptized by John the Baptist in the same way that he wanted to be circumcised. All this belonged to the Old Law, the Old Testament, while Christian baptism is to restore life and consume sin, and it is initiated by the Passion of Christ.25 So the Easter weekend is the perfect time for baptism. Penance and Careers Easter was also the moment marking the culmination of public penance and the readmission of penitents into full communion. Innocent I wrote in his letter of 416 to Decentius, bishop of Gubbio, that ‘As for those doing penance . . . whether they undergo the penance for graver sins or lighter ones, if no sickness should intervene, Roman custom makes it clear 20 24

Appendix A(n). PJc.400, 52–3.

21 25

Appendix A(o). Appendix A(r).

22

Appendix A(o).

23

Appendix A(p).

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that they should receive forgiveness on the Thursday before Easter.’26 The connection with baptism is obvious. Those who had completed their public penance would have been restored to full communion when the catechumens were baptized on Easter Sunday, but they would remain separate in that some walks of life (even if they were not illegitimate in themselves) would henceforth be ruled out for them. Siricius had condemned those who have, after penance, ‘sought out army service [militiae cingulum] and the pleasures of public entertainment and new marriages and forbidden sex’.27 The sentence requires elucidation. The militiae cingulum probably is actual army service: though militia included civil government service, the cingulum has military overtones; on the other hand, ‘pleasures of public entertainment’ probably does mean civil service, perhaps at municipal level, putting on games and the like. The ‘new marriages’ are probably second marriages. This would subject ‘graduates’ from public penance to the same limitation as the clergy. Though ‘forbidden sex’ has been understood to include marital sex, this is probably a misinterpretation, as I have argued.28 Fifth-century readers too could have been confused, however, and Leo I took the trouble to explain. In his letter of 458–9 to Rusticus of Narbonne, he rules that If a young man does penance under pressure either of fear of death or of the danger of captivity, and afterwards, fearing that he will lapse into the 29unchastity of youth, chooses to be united to a wife, lest he fall into the sin of fornication, he seems to have done something pardonable, if he does not have intercourse with anyone at all apart from his wife.

Chastity after penance is the ideal but it is not imposed.30 Presumably the same principle would be applied to a middle-aged man who feared temptation, and to people already married. In the same decretal Leo I says that after penance one should not undertake militiam saecularem – civil and military service.31 He seems to be echoing Siricius, of whose decretal he must have been aware. Leo adds another walk of life no longer open to penitents, commerce. It is 26

27

28 29 30

PJc.400, 64; cf. J. F. Baldovin, ‘The Empire Baptized’, in G. Wainwright and K. B. Westerfield Tucker, eds., The Oxford History of Christian Worship (New York, 2006), 77–130, at 120–1. PJc.400, 277, 281; K. Zechiel-Eckes, Die erste Dekretale: der Brief Papst Siricius’ an Bischof Himerius von Tarragona vom Jahr 385 (JK 255). MGH Studien und Texte (Hanover, 2013), 92–3: ‘Kriegsdienst’ is his translation. PJc.400, 278. incontinentiae juvenilis, copulam uxoris] PL54: incontinentiae venialis copulam uxoris Db so that conceivable venialis . . . uxoris could mean of a gracious wife. Appendix A(ff). 31 Appendix A(ee).

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legitimate in itself, but there are too many temptations to sin in the course of buying and selling.32 Another excluded career is the clerical cursus. Penitents cannot become clerics, according to Innocent I in his letter to Apulian bishops (between 401 and 417),33 and before him Siricius in his 385 decretal;34 and if a penitent had become a cleric without knowing that it was forbidden, he could not be promoted (so Siricius).35 No doubt well aware of this ban, Leo I insulates the clergy from the category of penitents on the other side also: clerics are not to be allowed to do public penance. If they do commit a serious sin, they must seek to atone for it in ‘private retirement’.36 Building on the first papal jurisprudence, Leo I is working out the relation of different status groups within the Church to each other, attempting to bring order to the complexity of multiple autonomous systems. Penitents and ex-penitents are a status group, and they are to be kept distinct from clerical status. Here the point is presumably to mark out how special the clerical status is. Clerical Status: Bigamia We have seen that another way of marking out the clergy was the bigamia rule which excluded men who had been widowed and remarried, or who had married a widow, from clerical status. We have seen that this was well established in early papal and conciliar jurisprudence.37 It may have been influenced by pagan Roman attitudes.38 In the early papal justifications some rather shaky scriptural arguments are proposed.39 Around the time that Innocent I became bishop of Rome (401) Augustine of Hippo wrote a treatise ‘On the Good of Marriage’40 which offered a symbolic rationale which was to have a great future: ideally, human marriage should mirror the marriage of Christ and the Church, which is a marriage of one to one; it is appropriate that a clerical marriage should follow this ideal.41 Was this work known at Rome? It seems likely. The argumentation about prebaptismal marriages is echoed by Innocent I.42 Leo I goes further by picking up the symbolic rationale, in his letter, possibly written in 446, to the bishops of Mauretania Caesariensis. He is talking about the election of bishops. To be considered, a man cannot 32 36 39 40 41 42

Appendix A(dd). 33 PJc.400, 286–7. 34 Ibid., 283. 35 Ibid., 283–4. Appendix A(x). 37 Chapter 7 above, and PJc.400, 152–70 passim. 38 Ibid., 154. Ibid., 153. P. Brown, Augustine of Hippo: a Biography (Berkeley, 1969), 184 for the date of composition. Quoted (from the translation by P. G. Walsh) with commentary in D. L. d’Avray, Medieval Marriage: Symbolism and Society (Oxford, 2005), 133. PJc.400, 154 with references to the texts.

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have been married more than once, and his wife may not be a widow. Even the law (of the Old Testament) required a priest to marry a virgin and not a widow, because already, at that time, the spiritual marriage of Christ and the Church was represented in priests . . . Therefore if even in the Old Testament this was the model followed for priestly marriages, how much more ought we, who live in the age of the grace of the Gospel, to comply with the commands of the Apostle?43 – so that, however much a man may be found to be endowed with good morals and adorned by holy works, nonetheless he should in no way rise to the rank of deacon, or the dignity of the priesthood,44 or to the summit of the episcopate, if it is clear either that he is not a husband of one wife, or that his wife was not one man’s only.45

The appeal of this symbolic rationale, the fact that the bigamia rule embodied it, may explain the extraordinary longevity of this line of thought (though we shall see that the new conception of celibacy that became accepted in the eleventh century would radically change the nature of the bigamia ban). Slave Recruits as Pollution of the Clergy It was only one of the prohibitions which marked out the clergy as a special social category. Slaves cannot become clerics, unless freed by their masters. To accept an un-manumitted slave undoes the rights of the masters and pollutes the sacred ministry.46 A classic of social anthropology argued that ‘some pollutions are used as analogies for expressing a general view of the social order’.47 In this case we are not even dealing with analogy. Slavery is the lowest status, the clerical status is at the opposite end of the spectrum, and interpenetration of the two is pollution. Pollution and Celibacy This line of argument works even better for the celibacy rule that the higher ranks of the clergy must give up marital sex. In the language of pollution and purity Innocent I had written to Exsuperius, bishop of Toulouse (405), that it is an extremely ancient rule of sacred law kept right from the beginning that priests were commanded to live in the temple in the year when it was their turn [cf. Lev. 21:12], so that the divine mysteries may have, as is right, men serving the 43 46 47

I.e. St Paul. 44 ‘presbyterii’. 45 Appendix A(e). Appendix A(b). For pollution/purity language note also Appendix A(a). M. Douglas, Purity and Danger: an Analysis of Concept of Pollution and Taboo (London, 2002 [1966]), 4.

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sacred offerings who were pure and purged of all stain, and that it should not be right for men to be admitted to the sacrifices who have carnal intercourse even with a wife, for it is written [Lev. 11:44]: ‘Be holy, for I the Lord your God am holy.’48

That only the higher ranks were committed to celibacy was logical. The rationale of this kind of clerical celibacy differs from the logic of the monastic celibacy attracting increasing attention in the fourth century. Monastic celibacy was about denying oneself what was legitimate, imitating Christ in the desert or John the Baptist, but in line with asceticism found also in other religions. With clerical celibacy, within marriage, the initial legitimation seems to have been to highlight the sacredness of the central ritual, the Mass.49 To show monks that the ordinary clergy too could live without sex, and even within marriage, so that they were not spiritually inferior, may well also have been a motivation, conscious or unconscious.50 Leo I must have been aware of all this and tried to enlarge the taboo by extending it one rung further down the clerical ladder – to subdeacons – in his letter to Anastasius, bishop of Thessalonica.51 That initiative seems to have come to nothing in the short and medium term. Hierarchy of Command and Succession to Episcopal Office In his rulings about celibacy and bigamy, Leo I was joining a discussion thread about status hierarchy. He also tried to clarify the tradition inherited from earlier jurisprudence about the hierarchy of command: the role of metropolitans, the election of bishops, and, implicitly, the autonomy of papal law from imperial marriage law. In each case he picks up a thread that goes back to the period of origins, and extends it with a view to the resolution of uncertainties. Much had been left unclear by the previous papal jurisprudence he presumably consulted in the papal archive. To recapitulate: the bishop should be elected by clergy and people (Siricius to Himerius of Tarragona).52 Writing to Victricius of Rouen, Innocent I follows the Council of Nicaea in ruling that the over-bishop of the province, the metropolitan, must approve the choice, and one bishop alone cannot 48 50

51

PJc.400, 144. 49 Ibid., 138. Ibid., 134–5, on this thesis of David Hunter, which is plausible. Implausible is the widespread idea that the hidden aim was to keep hold of Church property. This tenacious theory cannot work for origins, as it ignores the fact that clerics would have children and heirs by the time they made the decision to become celibate, prior to promotion. Appendix A(f). See also Appendix A(y). 52 PJc.400, 99.

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create another bishop (he does not specify whether such a consecration would be actually invalid).53 In his letter to the bishops of the Viennensis and Narbonensis, Celestine I gives the ordo a part in the choice of bishop, perhaps meaning the municipal council, perhaps the great landowners of the area; the clergy can veto an appointment they feel is unfair to them (presumably because a high-flying outsider has been brought in over their heads).54 The bishop of Narbonne – shortly to be incorporated into a barbarian (Visigothic) successor state – may have had this last letter in his archive, so when Leo I wrote to him in 458–9 the instructions about episcopal elections (only one of the topics covered) were not particularly new: Leo mentions the need for consent by clergy and ‘communities’ (plebibus), consecration by bishops of the province, and the approval of the metropolitan bishop of the province. Perhaps this was included mainly as a preface to an obscure passage about bishops consecrated by pseudobishops. This may relate to dioceses where there were two claimants to be bishop.55 About why that was a problem at this time one can only speculate. Much the same way of choosing and installing a bishop is set out in Leo I’s letter to the bishop of Thessalonica, tentatively dated to 446.56 Acceptance by the community is important: a bishop who is not wanted should not be imposed, and the metropolitan must make a judgement.57 These rules are found in the first papal jurisprudence, as Leo would have been aware, but they may not have been known in Thessalonica. The letter contains other themes familiar from earlier canon law: a bishop must not change sees,58 or poach clerics from other dioceses.59 There was more behind this letter than a desire to inform the bishop of old rulings sent to distant dioceses. The bishop was by this time a papal vicar, with metropolitan bishops under him.60 There had been complaints about his regime, which Leo dealt with in the first part of his letter.61 Near the end of the letter Leo says ‘though the subject of the complaints is not the same for all’62 – but the main reason for intervening was the treatment of a metropolitan, Atticus, bishop of Epirus. He had missed a vicarial synod on grounds of ill health. The papal vicar Anastasius had recourse to the imperial Illyrian prefecture to have him officially summoned and taken to Thessalonica over mountain paths in 53 57 60 61 62

Ibid., 99 and 103–4. 54 Ibid., 100. 55 Appendix A(w). 56 Appendix A(f). Appendix A(i). 58 Appendix A(j). 59 Appendix A(k). See d’Avray, ‘Half a Century’, 362–4, summarizing research by Geoffrey Dunn. See summary in J3.918=411, and, for a full analysis of the letter, Caspar, Geschichte, i, 454–7. Appendix A(l).

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winter – without consulting the apostolic see. Some of the companions of Atticus died on the way. Atticus with his suffragans appealed in person to the apostolic see. This explains the emphasis on the rights of metropolitans in general, not just with regard to elections: a metropolitan might also need defending by the pope from a still more senior bishop.63 The letter presupposes a hierarchy: apostolic see; bishop of Thessalonica; metropolitan bishops in Illyricum Orientale, his area; then ordinary bishops in the provinces of each metropolitan. There were in addition the many orders of clergy below the level of bishop, though these were in a hierarchy of status but not necessarily of command. In a lyrical disquisition, Leo I presents this hierarchy through bodily symbolism: an organic union of the whole is the source of health and beauty. Bishops (or, possibly, priests) share the same high status yet there are differences of power within the parity of honour. In the lines that follow, Leo seems to evoke bishops in charge of provinces (metropolitans?), and bishops in larger cities with a larger share of authority (like a papal vicar and perhaps also patriarchs?), as well as papal authority. There is a hint (the word ‘arose’, est orta) that this structure may have been a development, not in place in this form right from the beginning. It is not untypical of papal decretals, then and subsequently, to build up from practical troubleshooting to big-picture ecclesiology.64 The general picture will be familiar, in its broad lines, from earlier papal jurisprudence,65 but Leo expands it by making it a kind of aesthetic ecclesiology. He uses the word ‘beauty’ (pulchritudinem) for the hierarchical whole. This is reminiscent of his development of the bigamia concept by expanding on its symbolic rationale. Husbands Returning from Captivity Another discussion thread lengthened by Leo I is the question of spouses missing and believed killed by barbarians. Leo I and Innocent I lived in more violent times (relatively speaking, and for Italy) than the bishops of Rome in between. Rome was sacked by the Goths during Innocent I’s 63 64

65

Appendix A(g): to balance the pope’s defence of them, metropolitans too are told not to overstep the mark. For the system of metropolitans and ‘greater’ churches as it worked on the ground in the second half of the fifth century, see P. Norton, Episcopal Elections 250–600: Hierarchy and Popular Will in Late Antiquity (Oxford, 2007), 129–60; note his comment, 160, that ‘repeated insistence on the metropolitan’s rights [in canons and papal correspondence] suggests that the system was breaking down’. For a good selection of documents on late Antique episcopal elections, in French translation, see J. Gaudemet et al., Les élections dans l’église latine des origines au XVIe siècle (Paris, 1979), 22–48. E.g. PJc.400, 106–9, 222–3, 236, and 238.

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pontificate, and again by Geiseric under Leo; it was also in Leo’s pontificate that Attila the Hun swept through Italy, though not Rome. Innocent had dealt with the specific case of Fortunius and his wife Ursa, who had been captured as a result of the ‘barbarian storm’ and returned after he had got married again, to Restituta. Leo too was asked about such cases, more generically and with reference to husbands, rather than captured wives (so it is conceivable though unlikely that he would have modified his answer with respect to the latter). He answers at some length.66 Like Innocent I, Leo replies that the original marriage stands: But since we know that it is written [Prov. 19:14] that woman is joined to man by God, and, again, we know the commandment that [Matt. 19:6] what God has joined together man should not put asunder, we cannot but believe that the bonds of legitimate marriages should be joined together again, and, when the evils which the hostilities caused have been removed, what each person legitimately had should be restored, and every effort should be made to ensure that each person receives what belongs to him.67

This is an expansion of Innocent I’s rationale: ‘the marriage is the one that was first made firm by the grace of God’. Leo I says nothing about divortium. Given that Innocent’s earlier answer will have been available in the archive and that he had almost certainly consulted it, the silence can be taken as a commentary: Leo’s emphasis on indissolubility was unqualified.68 The man who married the woman whose husband was in captivity should not be blamed, says Leo.69 If the returning husbands are steadfast in their love for their wives and still want to live with them, they should overlook and judge guiltless what necessity drove their wives to do.70 Wives who are besotted with their new husbands and won’t take back their returning husbands are, however, to be excommunicated.71 As with Innocent I, we may note how far papal jurisprudence has moved from Roman law, according to which the abduction of a spouse invalidated a marriage. Apropos of the Ursa case and Innocent I, Geoffrey Dunn argued that ‘the bishop of Rome, in the light of the weakness of Honorius’ regime after Alaric’s invasion, felt confident enough in his own 66 68

69

Appendix A(s)(t)(u)(v). 67 Appendix A(s). Unless, as seems unlikely all things considered, he thinks that a marriage can be dissolved by a woman’s adultery but not by a man’s, and that the reference to divortium in Innocent’s discussion of the Ursa–Fortunius–Restituta triangle was about that; Innocent’s comments to Exsuperius of Toulouse (see PJc.400, 172 and note 8), which would also have been in the archive and available to Leo, speak against that hypothesis and interpretation of divortium. Appendix A(t). 70 Appendix A(u). 71 Appendix A(v).

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authority to challenge imperial legislation’ .72 By Leo’s time the empire was even weaker in the West, and it would have been all the easier for Leo simply to ignore the civil law. Conclusion The underlying argument of this chapter is that Leo I’s jurisprudence should be understood against the background of the earlier papal rulings available to him in the archive. He could not assume that these rulings would be generally known outside Rome, though they were being passed around. For that reason as well as for emphasis, repetition of earlier decisions was in order, but Leo I tended to draw out their logic and explain their rationale more fully than his predecessors had done. He worked within the already well-defined paradigm created by the first halfcentury of papal jurisprudence.

72

G. Dunn, ‘The Validity of Marriage in Cases of Captivity: the Letter of Innocent I to Probus’, Ephemerides Theologicae Lovanienses 83 (2007), 107–21, at 107.

11

Post-Imperial Syntheses

After Empire Between Leo I and Gelasius I the Roman Empire in the West finally collapsed. It was a social and economic as well as a political watershed, because the empire was a huge system of which the essence was taxation, especially of the countryside, to pay for a professional army and city life. We have already seen how the system was in a critical condition after the Vandal conquest of much of North Africa in the 430s, because that region was a key source of tax revenue,1 and after 468 the last chance of recovering Africa was frustrated by a pre-emptive Vandal attack; the last emperor (a boy) was lucky to be pensioned off to make way for a successor state.2 Implications for the Papacy During the imperial endgame, the apostolic see continued to grow stronger. Even the initial Vandal conquest of Africa in the 430s strengthened it by removing at a stroke the African Church’s stiffening sense of autonomy under the leadership of Carthage.3 The Vandal conquest of Africa enhanced papal prestige in another way, also indirect and, of course, unintended. With imperial tax revenue from Africa disappearing, the bishop of Rome found himself taking on the role of feeding the City, which had been a traditional imperial task. The papacy was able to pick up this burden because of the wealth heaped on it in late Antiquity. On the whole, the bishops of Rome were treated well within the new successor 1

2 3

‘Geiseric’s conquest of Carthage in 439 is arguably the turning-point in the “fall” of the western Empire . . . Africa lay at the heart of the grain and oil annona for Rome, and, without that permanent supply of food, the western capital (as Rome remained at least in symbolic terms) could scarcely function.’ C. J. Wickham, Framing the Early Middle Ages: Europe and the Mediterranean, 400–800 (Oxford, 2005), 87. P. Heather, The Fall of the Roman Empire: a New History (London, 2005), 396–407: the argument of the paragraph merely summarizes his convincing counterfactual analysis. ‘Die mächtige und blühende afrikanische Kirche . . . dem römischen den Weg frei.’ E. Caspar, Geschichte des Papsttums, i (Tübingen, 1930), 371–2.

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states, Odoacer’s and Theodoric’s.4 Furthermore, like bishops all over the former empire but probably on a much larger scale, the apostolic see found itself troubleshooting problems which, even in categories of the time, did not lie within the distinctly religious sphere. This is certainly true of Gelasius I (492–6), to judge from his correspondence. It has been admirably studied from this point of view, and the picture that emerges is of a ‘micro-manager’.5 We find him taking responsibility for the welfare of refugee immigrants,6 dealing with violent crimes by or against clergy,7 and intervening in an inheritance dispute.8 Gelasius I and the Canon Law Tradition Gelasius I also made a lasting contribution to the canon law tradition through his ‘letter 42’ (J3.1270=636, Necessaria rerum dispositione)¸ which synthesizes much of earlier papal jurisprudence, notably the clerical cursus, and monks, and fast-track lay candidates; rituals and the liturgical year; penance; and bigamia9 – all themes prominent in PJc.400. He is in (a one-sided) dialogue with rulings going back to the turn of the fourth and fifth century, but he adapts them where necessary to the needs of his own time. In his own time there seems to have been an urgent need for more priests. This may have been a side effect of the breakdown of Roman authority. Gelasius himself speaks of ‘churches whose ministries have through the damage done by wars been left non-existent or quite inadequate’.10 Probably there was a steady increase in the number of practising Christians. Obviously we have no statistics, but the fifth century may have been a phase of rapid ‘de-paganization’. This led Gelasius I to permit temporary relaxation of the rules of the clerical cursus, to allow monks to enter a fast stream through the stages of clerical ordination. Up to and including the pontificate of Celestine I, the emphasis had been all the other way. To recapitulate: we have seen that Siricius had laid down its stately and well-spaced stages.11 Innocent I had 4

5

6 9 10

For this period in a nutshell see J. Smith, Europe after Rome: a New Cultural History 500– 1000 (Oxford, 2005), 257–60; P. Heather, The Restoration of Rome: Barbarian Popes and Imperial Pretenders (London, 2013), 3–102 is a vivid analytical narrative. B. Neil and P. Allen, The Letters of Gelasius I (492–496): Pastor and Micro-Manager of the Church of Rome (Turnhout, 2014). See also B. Neil, ‘Gelasius I’, in P. L. Reynolds, ed., Great Christian Jurists and Legal Collections in the First Millennium (Cambridge, 2019), 297–314. 7 8 Neil and Allen, Letters of Gelasius, 21. Ibid., 23. Ibid., 25. Neil calls this a ‘convenient collection of all previous rulings’, ‘Gelasius I’, 306. Key extracts to which reference will be made in what follows are translated in Appendix B. Appendix B(b). 11 PJc.400, 69–72.

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sent a similar message in his letter to the bishop of Nocera.12 Then Zosimus criticized fast-track promotions of laymen and monks, apparently to strengthen the hand of the bishop of Salona.13 Celestine I tells the bishops of southern Gaul (the Viennensis and Narbonensis) that ‘the appropriate path to the episcopate is through the orders for which regulations have very frequently made provision, so that after starting with the minor offices men are trained for the greater ones’.14 We saw above that he was responding to the resentment of local clergy who felt sidelined by flashy high-flyers on a fast track. The manpower shortage persuades Gelasius to allow a monk to pass through the orders at high speed, so long as he meets the other requirements, some of which will be familiar by now: he must not have been married twice or to a widow, or be a graduate of public penance, or be disfigured by a physical defect, or be a slave or colonus, or a curialis – the usual rules. All of them apart from the ‘physical defect’ ban would have to relate to the man’s life before he became a monk, the bigamia rules most obviously. If he meets all the criteria and all goes well, he could reach the priesthood in a year.15 The rubric put above this in the canon law collection of Dionysius Exiguus is ‘That where no necessity creates insistent need, the institutions of the Fathers should be kept inviolate, or, if clerics are in short supply, they should be selected from monks.’ The Dionysiana was compiled not long after the decretal. The heading captures both Gelasius’s respect for cursus tradition and his recognition that it may have to be in abeyance for a time.16 These new rules are a good example of the intersection of old jurisprudence with new circumstances. The same circumstances – a shortage of priests – lie behind modification of the rules for laymen entering the clergy. They are more stringent than for monks, but still very lax compared with the system set up in the first half-century of papal jurisprudence. Gelasius says that ‘for the promotions of these men . . . we add six months beyond the limit of a year’, provided that all the other stringent conditions (much the same as for monks) can be met. He stresses that these are exceptional measures for an exceptional situation, that the traditional rules should remain the default setting, and that churches which have not ‘been devastated by a catastrophe of this kind’ should follow those traditional rules.17 Also echoing earlier jurisprudence are rulings to coordinate sacramental-type rituals with the liturgical year. We find ourselves on familiar territory with his reaffirmation of the special association between baptism 12 17

Ibid., 77–8. 13 Ibid., 79–85. Appendix B(b).

14

Ibid., 89.

15

Appendix B(a).

16

Ibid.

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and Easter and Pentecost, as with the exception made for the sick, who can be baptized at any time.18 The principle is extended, however, to other rituals. There is a list of days on which priests and deacons can be ordained. Interestingly, the beginning of Lent and mid-Lent are included. Gelasius adds a sentence which seems to mean that a principle of chronological seniority would operate for priests, such that the man ordained first would always be senior to those after him.19 The liturgical pigeonholing of ordinations is in the spirit of the early rulings on baptism, but extends the principle. It is also extended to the ritual veiling of virgins, for which Epiphany, Low Sunday, and ‘the feast of the Apostles’ (probably of all of them together) are listed as the right days. Interestingly and unobviously, the principle of allowing baptism when there is a possibly fatal illness is extended to the veiling of virgins also.20 Another familiar theme is bigamia, which also came up in the context of fast-stream promotion to the priesthood. It too has a section of its own, with a brief comment on its rationale. Gelasius makes a point of saying that second marriages (he means after the death of a spouse) are permitted for the secular people, as a concession to fragile humanity, but ‘a life dedicated to the service of the things of God should be something else’.21 Not everything in this long and rich decretal letter is an echo of earlier jurisprudence. There is, for instance, an interesting condemnation of ‘women serving at altars’,22 a ban on exacting payments for baptism and confirmation, a good deal about hierarchy within the clergy, and rules about the allocation of diocesan income, to name only a few of its provisions.23 It is almost a miniature canon law code. 18 20

21 22

23

Appendix B(c). 19 Appendix B(d). Appendix B(e). Men who have sex with sacred virgins are excommunicated unless they perform public penance, though they can receive the Eucharist if at the point of death: Appendix B(f). Appendix B(g). This is probably about deaconesses – see my italics: ‘Nihilominus impatienter audivimus, tantum divinarum rerum subiisse despectum, ut feminae sacris altaribus ministrare firmentur, cunctaque non nisi virorum famulatui deputata sexum, | 377 cui non competunt, exhibere. Nisi quod omnium delictorum, quae singillatim perstrinximus, noxiorum reatus omnis et crimen eos respicit sacerdotes, qui vel ista committunt, vel committentes minime publicando pravis excessibus se favere significant: si tamen sacerdotum jam sint vocabulo nuncupandi, qui delegatum sibi religionis officium sic prosternere moliuntur, ut in perversa quaeque profanaque declives, sine ullo respectu regulae Christianae praecipitia funesta sectentur.’ (Letter 14, para. 26: A. Thiel, Epistulae romanorum pontificum genuinae et quae ad eos scriptae sunt a S. Hilaro usque ad Pelagium II, i (Braunsberg, 1868), 376–7; Neil and Allen, Letters of Gelasius, 155, my italics). A. Souter, A Glossary of Later Latin to 600 a.d. (Oxford, 1949), 253, s.v. ‘minister’: ‘of any church official below the rank of presbyter, especially deacon’. Neil and Allen, Letters of Gelasius[/x], 143–57.

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This long decretal of Gelasius is Janus-headed from a historian’s point of view, in that it points both backwards and forwards. It picks up on a whole series of the themes of early papal jurisprudence, condensing much of it into the compass of a single letter for a small number of specified bishops, but from a reception point of view it looks forward to a period of canon law synthesis, the long series of collections stretching on up to Gratian. Like a microcosm within macrocosms, it is included in the major surviving canon law collections compiled around the turn of the fifth and sixth centuries.24 We have seen that there had been earlier collections, but they have not survived as units. A new period thus opens with the Quesnelliana and Dionysiana collections. Our primary concern remains with the early papal rulings they contain, but the character of these collections as wholes is relevant to the reception of those collections – their meaning and use within these larger textual contexts. The word ‘textual’ perhaps has the wrong overtones. We should think in terms of transmissions as a set of social processes. The Quesnelliana Collection The first major surviving canon law collections date from around this time. One of the two earliest, the more influential of the two, was the so-called Quesnelliana, which survives in eight known manuscripts, not counting a fragment and excerpts.25 It was probably compiled at Rome but it was not (as the scholar after whom it is named, Pasquier Quesnel, argued with what has been called ‘deceptive decisiveness’26) an official codex of canons. It dates from around 500, perhaps even from the lifetime of Gelasius I, so 496 or before.27 Its author is unknown. It is a ‘Chronologically arranged collection of conciliar canons and decretals’ and ‘served as a source for later collections; was used especially for the letters of Leo I’.28 Logical order is lacking: ‘The only maxim which [the compiler] seems to have followed was not to separate what went together in each of the sources he used.’29 24

25 26

27 28 29

See J3.1270=636 for the Quesnelliana and Dionysiana, and F. Maassen, Geschichte der Quellen und der Literatur des canonischen Rechts im Abendlande (Gratz, 1870), #617, 486 for the Frisingensis prima (Munich, Staatsbibliothek Clm. 6243, inc. fo. 143ra). L. Kéry, Canonical Collections of the Early Middle Ages (c. 400–1140): a Bibliographical Guide to the Manuscripts and Literature (Washington, DC, 1999), 27–8. H. Mordek, Kirchenrecht und Reform im Frankenreich: die Collectio vetus Gallica, die älteste systematische Kanonessammlung des Fränkischen Gallien. Studien und Edition, 2 vols. (Berlin, 1975), i, 238: ‘mit trügerischer Entschiedenheit’. Cf. Maassen, Geschichte, #620, 491: ‘Seine Beweisführung ist ein Gewebe von Scheingründen.’ M. D. Elliot, ‘Canon Law Collections in England ca 600–1066: the Manuscript Evidence’ (University of Toronto PhD thesis, 2013), 220. Kéry, Canonical Collections, 27. Maassen, Geschichte, #620, 491: ‘Die einzige . . . verbunden war.’

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That the collection was a weapon in the conflict over Christology with Constantinople has been plausibly suggested.30 Some understanding of the content of the issues is necessary here as they criss-cross the papal history of the sixth and seventh centuries. As the name ‘Christology’ suggests, Christ is central in the Christian religion, the sacred books of which present him in his own words sometimes as God and sometimes as man. The Christians of late Antiquity aimed to make sense of this, with the help of concepts from Greek philosophy. From the dispute between Arius and Athanasius in the fourth century emerged the formula of the Trinity as three persons in one. Christ is as much God as is the Father. Then the question of the humanity’s relation to the divinity of Christ came to the fore, with some tending to emphasize the distinction, others the absorption of the humanity into the divine nature. Against the latter tendency, Leo I had in 449 written to the patriarch of Constantinople, whose views ran along the same lines, with the formula: one person (or subject) with two natures (or sets of attributes). This was along the same lines as the formula adopted at the Council of Chalcedon in 451, though as we have seen the actual formula owed much more to Cyril, patriarch of Alexandria.31 That many on the losing side were not going to give up easily became apparent, and over the next two centuries emperors would try to restore religious unity (and the empire’s powers of resistance) through compromise solutions, which led to recurrent conflict with the papacy. After the reconquest of Italy by Justinian, emperors would be able to use physical force in these conflicts, but not when Gelasius was bishop of Rome and imperial power in the West was just a memory. The emperor Zeno produced a unifying document, the Henoticon, which seemed to distance itself from the Chalcedonian doctrine. The Henoticon in its turn aroused strong dissent, notably from the papacy. The document was associated with the patriarch of Constantinople, Acacius – hence ‘Acacian schism’. It was well under way when Gelasius became bishop of Rome but he maintained an uncompromising commitment to Chalcedon, one outcome of which was the famous ‘two powers’ letter to the emperor Anastasius, in which he outlined a theory of the distinct remits of Church and State, and the ultimate priority of the former’s objectives.32 30

31 32

‘The entire collection, with its focus on Chalcedon and the letters of Leo, is quite obviously meant as a manifesto against the Acacian schism . . .’ Elliot, ‘Canon Law Collections’, 219. See ODCC, s.v. ‘Christology’, 339; ‘Tome of Leo’, 1642; and ‘Henoticon’, 754, but also Chapter 10 note 13 above. Neil and Allen, Letters of Gelasius, 49 and 73–80. On Gelasius’s ideology in general, W. Ullmann, Gelasius I. (492–496): das Papsttum an der Wende der Spätantike zum Mittelalter (Stuttgart, 1981), is valuable.

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The immediate issue was whether it was for the emperor or the apostolic see to formulate doctrine. In this context, a plausible argument goes, the compiler of the Quesnelliana aimed to collect ‘any and all documents that support doctrinal unity in general and Leonine Christology in particular’.33 One may reformulate this interpretation to read ‘support unity in general’ rather than just ‘support doctrinal unity’, since the collection includes papal decretals that were not directly doctrinal in character, and which were from before Leo I’s pontificate.34 Thus reshaped, the argument would be that anything drawing attention to papal authority and/or to orthodox belief would reinforce the papal position regarding the specific Christological point on which the Acacian schism turned. In this schism the anchor of the papal position was the teaching of Leo I, and the Quesnelliana included much material from Leo I on the nature of Christ, which got into the mainstream of the canon law tradition; much of this was from the letters of Leo I (400–1),35 but even aside from that there is ‘a series of pieces which are predominantly dogmatic in content’.36 If the theory that the Quesnelliana was an arsenal of material for the papal side in the Acacian schism is correct, the inclusion of a lot of theological material is natural enough. This anticipates one of the main forms that the canon law tradition would take up to and including Gratian’s Decretum in the twelfth century, namely a mixture of mainly theological or dogmatic material with conciliar canons or decretals that mark the lawful off from the unlawful and consist at least in part of ‘positive’ or man-made law (i.e. law made by councils and the apostolic see). The Frisingensis prima Collection In this respect the near contemporary Frisingensis prima collection can be aligned with the Quesnelliana. In both cases the earliest papal jurisprudence 33 34

35 36

Elliot, ‘Canon Law Collections’, 220. As Maassen’s old but excellent analysis makes clear: Geschichte, #623, 496, ‘Cap. XXI– XXIIII’; 497, ‘Cap. XXVIIII–XXXVI’. See also PJc.400, passim: between translations and edited texts there is a list of manuscripts consulted. Wherever the siglum Qa is found, the Quesnelliana has the canon. Where it does not, this should be indicated by the words ‘Not found in . . . Quesnelliana’. PJc.400, 191 and note 3. Maassen, Geschichte, #623, 497–9: ‘Jetzt folgt eine Reihe von Stücken vorwiegend dogmatischen Inhalts. Zunächst Cap. XXXVII . . . LVII . . . Damit endigen die Stücke vorwiegend dogmatischen Inhalts’, after which follows the letter of Gelasius I discussed in the next section.

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as studied in the preceding chapters is absorbed into a wider discussion string more inclusive of purely theological and doctrinal themes. The Frisingensis prima collection was put together ‘soon after 495’, probably in Rome.37 It contains material relating to the Acacius affair,38 so perhaps it too was meant to be a source of ammunition for the apostolic see against the emperor. It is mostly composed of conciliar canons and papal letters,39 with a couple of ‘expositions of the faith’ slipped in.40 It does include some Christological material, under the heading ‘Letters of Pope St Celestine to the bishops of the East about the case for condemning Nestorius of Constantinople’.41 It is interesting that the compiler was able to lay his hands on them, but these theological interventions appear not to have entered the Western canon law tradition.42 The Frisingensis prima was not influential.43 The Dionysiana With the Frisingensis prima and the Quesnelliana, but above all with the collection called the Dionysiana,44 a new age began for the very early papal letters they incorporated and transmitted to subsequent generations. Reception into large collections enhanced their meaning. That did not happen in the same way in all three collections. The amount of doctrinal argument in the two collections just discussed should draw our attention to the comparative paucity of it in the third and most important collection of the turn of the fifth and sixth centuries, the Dionysiana (a point to which we will shortly return). 37 39 40 41 42 43

44

Kéry, Canonical Collections, 2. 38 Maassen, Geschichte, #617, 486. In PJc.400, whenever there is the siglum F between translation and edited text, the canon is in the Frisingensis prima. See description in PJc.400, 45–6 (following G. Glauche’s catalogue) and, still useful, Maassen, Geschichte, #616–17, 480–6. ‘Celestini papae ad orientales episcopos de causa damnationis Nestorii’. Clm 6243, fo. 90ra. PJc.400, 190–1 and note 2. That explains why there is almost nothing about Christology in PJc.400, as it is a study of the ‘Sources of the Canon Law Tradition’. For bibliography see Mordek, Kirchenrecht und Reform, 149 note 243 and Kéry, Canonical Collections, 2–3. The key manuscript is Munich, Staatsbibliothek Clm 6243. Kéry lists a copy of it, also in Munich (Clm 5508), and a Würzburg manuscript, Universitätsbibliothek M.p.th.f. 146 – but so far as I can see from the catalogue description this does not contain the collection, not the papal part of it at least. For up-to-date bibliography on the Dionysiana and its context see D. Heith-Stage, ‘Dionysius Exiguus’, in Reynolds, ed., Great Christian Jurists, 315–33 and C. Leyser, ‘Law, Memory and Priestly Office in Rome, c. 500’, Early Medieval Europe 27 (2019), 61–84. His stimulating and original interpretation will be discussed below. See https://ccl .rch.uky.edu/dionysiana-article for an excellent online introduction by Abigail Firey (accessed 13 July 2020).

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The Dionysia contains all the material edited and translated in PJc.400 (aside from Innocent I’s letters about Pelagius) and all the material edited and translated below in Appendices A and B. Its role in the transmission of early papal jurisprudence will be a leitmotif of the following chapters. We will also return to it in the final chapter, because it anticipates by some 700 years the differentiation of law and theology which medievalists date to the decades around 1200. The Dionysiana was compiled, probably, not long after the death of Gelasius I, in the early years of the sixth century,45 by a man who admired him,46 Dionysius Exiguus.47 He was a monk from Scythia (around the north coast of the Black Sea), who moved to Rome, where he was a prominent scholar: his second (lost) translation of Greek councils was commissioned by Pope Hormisdas.48 Dionysius is famous as the origin of year-dating before and after Christ, bc and ad (now transmuted into Before Common Era, bce, and Common Era, ce) but also for this canon law collection: the most influential of the three canon law collections compiled around 500. The Dionysiana earned its success by its coherence and logical organization. Its long-term influence will be a recurrent theme of later chapters, but even in the short term it had an immediate impact, especially in Italy; an authoritative study uses the word ‘boom’.49 The work was a notable achievement. I would argue that the Dionysiana set parameters from which canon law as a system would frequently diverge between the sixth and the twelfth centuries, but within which its history would ultimately be channelled from the late twelfth century on, a theme to which we must return. Nearly all the jurisprudence analysed in PJc.400, apart from Innocent I’s correspondence with African bishops, was transmitted by the Dionysiana. As noted,50 a high proportion was also transmitted by the other two collections from around 500, but the Dionysiana did the most to carry it to future centuries. What started this process? The various interpretations of the Dionysiana’s genesis have been summarized recently by Conrad Leyser. For Friedrich Maassen and other 45 47

48 49

50

Leyser, ‘Law’, 66 and note 22. 46 Maassen, Geschichte, 422 note 4. Kéry, Canonical Collections, 9–13 for manuscripts and bibliography. For the first version, councils without papal decretals, see A. Strewe (ed.), Die Canonessammlung des Dionysius Exiguus in der ersten Redaktion (Berlin, 1931). For Dionysius and Gelasius see Maassen, Geschichte, #562, 422 note 4. Maassen, Geschichte, #90, 107, and 964–5; cf. Kéry, Canonical Collections, 9: ‘A third recension . . .’. K. Zechiel-Eckes, Die Concordia canonum des Cresconius: Studien und Edition, 2 vols. Freiburger Beiträge zur mittelalterlichen Geschichte 5 (Frankfurt am Main, 1992). i, 75– 6 (word ‘Boom’ used 76 for the Italian reception). The sigla Qa, Qw, and F in PJc.400 make this evident.

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historians who followed him, it was ‘a progressive force for order in an otherwise messy and inchoate tradition’.51 Eduard Schwartz on the other hand situated it in the context of a power struggle between two claimants to the papal throne, Lawrence and Symmachus. Dionysius was ‘attempting to broker an end to the Acacian Schism, in the face of the aggressive and tendentious claims of the Symmachans’.52 Leyser says that we lack firm evidence of allegiance to either party in the schism. Abigail Firey suggests that rather than thinking in terms of an author and his intentions one should see the Dionysiana as ‘part of a collective effort of legal compilation’.53 Against this, Leyser points out the Dionysius Exiguus is strikingly self-aware of his own role as interpretative compiler. Leyser proposes his own account of the setting and purpose of the Dionysiana. ‘Dionysius’s achievement was not to advance a particular view, but to offer a series of containers for a tradition that was jagged and at odds with itself’; he ‘offered a multi-layered commentary on questions of authority, endlessly correcting for balance’, and addressing especially the question of whether or not priestly office was dependent on ‘or . . . impervious to the personal failings of those who held it’.54 ‘The point of aspiring to a universal canonical collection, and of translating Greek canons into Latin, was to remind all parties of the wider whole to which they belonged, and of their powerlessness in the face of divine grace.’55 ‘His Decretal Collection functioned as a lead casket for an almost impossibly volatile tradition.’56 This is broadly convincing, converging with but going well beyond Maassen’s straightforward interpretation. It is reinforced by a remarkable negative fact that was noted above and which has not perhaps received from historians as much attention as it deserves. The collection is silent on the Christological controversies which divided the two sides of the Acacian schism. As Leyser points out, Dionysius does include at the end of his collection an eirenic letter of Pope Anastasius to the emperor, reassuring him that the sacraments of those ordained by Acacius were valid.57 There is nothing in it, however, about the content of the dogmatic issue at the heart of the controversy. Acacius aside, furthermore, the great Christological and Trinitarian issues of the fourth and fifth centuries, which had so exercised theologians and bishops in councils, are conspicuous by their absence from the 51 54

55 57

Leyser, ‘Law’, 68. 52 Ibid., 68–70 (quotation at 70). 53 Ibid., 71. Ibid. Leyser, and Geoffrey Dunn before him, may (excusably) oversimplify Innocent I’s perhaps deliberately obscure discussion of orders administered by Bonosus: see PJc.400, 193–5, 196–210. Leyser, ‘Law’, 82. 56 Ibid., 83. PL 67, cols. 311–16; Leyser, ‘Law’, 80–1 (but see PJc.400, 193–5).

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Dionysiana.58 The dogmatic decisions of the council of Chalcedon – fundamental in the subsequent history of Christian theology and piety – do not find a place in it. There is little trace of the arguments about how to understand Christ in relation to God the Father and the Virgin Mary, and the relation between his humanity and his divinity. This is probably not because the material was unavailable to Dionysius Exiguus. The Frisingensis prima and Quesnelliana were both probably compiled in Italy, indeed in Rome, and both contain, as we have seen, a lot of theological material of the sort that the Dionysiana avoids.59 If the compilers of the two anonymous collections could obtain that material, it is likely that Dionysius could too; and it is indeed probable that he ‘had sight of both’.60 Even in the other half of the Dionysiana, the ‘councils’ collection of which two editions survive, Christological and Trinitarian dogma, speculative theology in the modern sense (which is close to the medieval understanding from around the mid-twelfth century) has little place. The Nicaean creed is quoted but not under Nicaea. It appears under the heading ‘Canons of the council of Carthage’ (‘Canones concilii Carthaginiensis’), in the context of Rome’s embarrassing failure to distinguish between the decrees of Nicaea and Serdica when responding to an appeal from a certain Apiarius.61 The conciliar canons preceding the papal decreta deal with exactly the sort of issues analysed in PJc.400,62 and they too can be characterized as predominantly ‘positive’ law, i.e. as something other than theology or fundamental dogma. The only major excursus into theology as understood today (see discussion at the end of Chapter 9, where I qualify its ‘theological’ character) in the Dionysiana is Celestine I’s 431 letter to the bishops of Gaul,63 which is mostly against Pelagianism. Since the Eastern Church had not been much involved in that particular debate, its inclusion could be an 58

59

60 61

62 63

Cf. perceptive comment by Heith-Stage, ‘Dionysius Exiguus’, 323, 329, and 350. In the same volume, C. Gantner and S. Schima, ‘The Papacy’, 128–54, is a most helpful introduction. Conrad Leyser points out to me that there is also a ‘Pelagian dossier’ in the Collectio Avellana, which falls outside the scope of this study because the fifth-century papal letters in it did not get into the canon law tradition. Exceptions are J3.710=323, Fraternitatis vestrae litteras (PJc.400, 244–51), and J3.1278=664, Valde miratis sumus. For contents see Maassen, Geschichte, 787–91. He points out (791) that the compiler was clearly aiming to collect material not in other collections known to him. Leyser, ‘Law’, 66 and note 26, with further references. Strewe, ed., Canonessammlung, 90 and cf. 75, lines 14–16 (‘Daniel notarius Nicaeni concilii professionem fidei uel eius statuta recitauit in concilio Africano, quae nos cum rescriptis episcoporum Alexandrini et Constantinopolitani conscribsimus’), which refer the reader forward to the quotation further on; PL 67, col. 186 (with a short section a little below ‘De Trinitate praedicanda’), col. 227. Strewe, ed., Canonessammlung, passim; PL 67, cols. 139–230. PJc.400, 252–75; J3.845=381 & 875.

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exception proving the rule that Dionysius steered clear of theology because he did not want to rock the boat. All that fits well with Leyser’s interpretation of Dionysius as a religious peacemaker. An eirenic attitude may not have been the only reason for his choices: namely to omit Trinitarian doctrine and Christology but to include a long letter about Pelagianism. It is possible that the latter was not regarded as heresy in quite the same sense, especially by a man from the Eastern half of the empire. At least at the early end of the century it may not have been so understood by everyone. Peter Brown remarked that ‘It was difficult for the average man to decide whether the language used by Pelagius was “heretical”. “Heresy” meant errors on the nature of the Trinity, such as had provoked the Arian controversy; and on this issue, the Pelagians were blameless.’64 An aristocratic fan of Pelagius ‘will put these fussy, provincial bishops firmly in their place: her family had never been touched by any heresy . . . A good Christian of the Later Empire, “heresy” to her had meant Greek errors on the Godhead, not African scruples on grace and freewill.’65 Perhaps traces of that attitude lingered on c. 500. Even if Pelagianism had been assimilated to theological heresies about Jesus Christ by the early sixth century, the Dionysiana letter about it is not so theological – in the ‘etic’ use of the term defined above – as it first appears. It was argued in Chapter 9 that it is in the last analysis more legal than theological. It appears to be heavy in theological content because of the mini-treatise on grace and nature which takes up such a large part of it.66 At a closer look, however, this mini-treatise turns out to be a set of documentary pièces justificatives consisting of earlier documents, mainly papal, suitably framed by rapid commentary. Celestine I made ‘available the constitutions of the holy Fathers in a summary list, from which anyone . . . may recognize that the key to all the points of debate hangs from this brief set of appended authorities’.67 The ‘holy Fathers’ seem to be previous incumbents of the apostolic see.68 If we subtract the dossier dominated by quotation of earlier interventions, we are left with something more like a disciplinary ruling. It will be recalled that it was triggered by a complaint by two senior Gallic churchmen, Prosper of Aquitaine and a Hilary (possibly the same as the monk of Lérins who became bishop of Arles).69 So this was a ‘response’ in the 64 66 68

69

P. Brown, Augustine of Hippo: a Biography (Berkeley, 1969), 355. 65 Ibid., 356. PJc.400, 259–74. 67 Ibid., 259. Celestine implies his documentary appendix includes ‘certain sentences of African councils’ but I have failed to find verbatim citations. He adds ‘which indeed the apostolic rulers made their own’, so perhaps they are subsumed into the papal citations, which I have tried to identify in the text edited in PJc.400. Contrary to my note in PJc.400, 254 note 354 (cf. 256, line 19 for Latin), I now incline to think that the ‘aforesaid men’, praedicti, more probably refers to Prosper and Hilary than

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Roman imperial tradition, which was by this time also a papal tradition. The Latin explaining the background is cloudy to the point of opacity,70 but the complaint addressed seems to have been that priests, perhaps especially priests who have been too rapidly promoted from the lay state, have been ‘raising impossible questions in public’. The letter appears to be reining in priests who have been preaching against Augustine and downplaying God’s grace. (This is suggested by the encomium of Augustine and dossier of texts that accompany the letter proper.) Celestine is writing to rebuke the bishops of Gaul for allowing their priests to get out of hand. He wants the bishops to keep them under control, set the tone, provide a firm lead, not to remain silent. The letter itself is perhaps best regarded as a legal gag, imposed via the bishops, Celestine hopes. In short, Celestine’s letter is only a partial exception to the Dionysiana’s avoidance of reflection on the rationale of doctrinal fundamentals. If one had to find a short formula to cover the collection’s contents as a whole, it would be ‘rules for the clergy and ritual’ – and given that the clergy were married, the rules for marriage too can be partly brought under that rubric. This applies not only to the papal part of the Dionysiana but also, as already noted, to the conciliar canons that travelled with it. The Dionysiana is in a different genre from creeds and the debates that led to and followed from them. The early responses of Siricius and Innocent I set the dominant tone in the decretals part of the collection. The small early collections compiled probably in the second quarter of the fifth century, which have not survived but which can be reconstituted, are also more or less theologyfree, so these may have been models for Dionysius.71 The decretals of Leo I and Gelasius I selected for inclusion in the Dionysiana on the whole keep within the same ‘positive law’ limits as the first papal jurisprudence. The result was a kind of canon law that medievalists think of as a late twelfthcentury invention. Conclusion In the last century of the Western Roman Empire, bishops had brought problems to the apostolic see, which replied by laying down what was lawful and unlawful (leaving the bishops to do what they wanted with these responses). Shortly after the end of the empire in the West, the first

70 71

to the sure-footed ones (254 line 17, 256 lines 17–18) of the past who had had recourse to the apostolic see. PJc.400, 255–7, with my translation on 253–5, on which the precis that follows is based. J3. 665, J3.675, J3.691, J3.745, J3.821, J3.823: see above Chapter 11 note 71.

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decretal age comes to an end and a new phase begins: one of synthesis and compilation. This meant deciding what to leave out and what to include. Two collections, the Frisingensis prima and the Quesnelliana, include true/ false (so not simply legal) debate on the humanity and divinity of Christ, alongside the papal responses with which the first half of this book has been concerned. The Dionysiana, however, leaves out these themes, which are in any case absent from the decretals of the popes who provided the first great tranche of his material, Siricius and Innocent I, and from the small mid-fifth-century collections. Christological themes are absent also from letters of Leo I selected by Dionysius and from the ‘hold-all’ decretal Necessaria rerum dispositione of Gelasius I, which draws together in a quasi-synthesis the principal issues addressed in the first century of papal jurisprudence. Gelasius’s summative decretal and the Dionysiana anticipate the boundary that would eventually separate canon law from theology, while the Frisingensis prima and Quesnelliana anticipate collections which recognize no such boundary. Only in the thirteenth century did the Dionysiana approach come out definitively on top.

12

Early Papal Laws in the Barbarian West

The Transmission of the Dionysiana Though the ‘pure’, late Antique, Dionysiana must be reconstructed from only two manuscripts,1 that should not lead us to underestimate its influence even before the Carolingian era. Precisely its runaway success in Carolingian times, in updated versions, will have ensured that few preCarolingian manuscripts survive (in fact, the two manuscripts just mentioned are both late, one in Carolingian minuscule and one in Beneventan script). Carolingian manuscripts in the beautifully clear Caroline minuscule were much easier to read than the scripts used before Charlemagne threw his weight behind a reform of script. As elegant and up-to-date copies became available, there was no reason to keep the old books. Overwhelming positive evidence for the success of the Dionysiana in the first part of the sixth century, in Italy above all but also in Gaul, has been laid out by Zechiel-Eckes.2 Its incorporation into the Spanish collection known as the Hispana shows that it had reached Spain by the seventh century if not before.3 Interestingly, there are strong arguments also for its influence in England. An important recent doctoral thesis by Michael Elliot argued that there were copies of the Dionysiana in the seventh century, that Archbishop Theodore of Canterbury, famously the first bishop whom all the English Church obeyed, relied on it ‘in matters of church administration and to educate the burgeoning Anglo-Saxon ecclesiastical class’, and that ‘there are indications of a particular fondness for 1

2

3

Paris, BNF lat. 3837 and above all Vatican City, BAV Vat. Lat. 5845 (respectively Da and Db in the sigla of PJc.400 and appendices to this volume; see F. Maassen, Geschichte der Quellen und der Literatur des canonischen Rechts im Abendlande (Gratz, 1870), #574, 431 and L. Kéry, Canonical Collections of the Early Middle Ages (c. 400–1140): a Bibliographical Guide to the Manuscripts and Literature (Washington, DC, 1999), 11; also PJc.400, 23–42, 44–5. K. Zechiel-Eckes, Die Concordia canonum des Cresconius: Studien und Edition, 2 vols. Freiburger Beiträge zur mittelalterlichen Geschichte 5 (Frankfurt am Main, 1992), i, 75–6. Kéry, Canonical Collections, 61; Maassen, Geschichte, pushes the date back earlier: #582, 438.

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Coll.Dion. within the Anglo-Saxon church’.4 This was only the beginning. It would enjoy extraordinary success in an updated version in the ninth century. From much earlier, probably the mid-sixth century, the reshaping of the chronologically arranged responses in the Dionysiana into a systematic or at least thematic shape ensured that it exercised an influence in another, complementary form. In the course of the last chapter the emphasis shifted from explanation of origins to the reception and the meaning of these early decretals in subsequent centuries – as part of a body of positive law in the Dionysiana, notably. What a collection of canons leaves out defines the character of what it includes. The ways its constituent parts are arranged, and rubrics are attached to them, also tell a story, as does the company a collection keeps in manuscripts. Individual canons are like chameleons in that their colour changes according to what is around them. In the following chapters the focus is on the collections that transmit the first papal jurisprudence. The Concordia canonum of Cresconius We are lucky enough to have a model edition and study of one of the first big collections after the Dionysiana, the Concordia (or Concordantia) canonum of Cresconius, which transmitted a high proportion of the material studied above (and in PJc.400).5 The Dionysiana was the main source behind this influential work. In consequence, the Concordia contains a high proportion of the decretals which are the subject of the present book and PJc.400. In the latter, it will be observed that there is a reference to the Concordia transmission after many of the translated rulings, so many, in fact, that it is easier to list here the items that are not in Cresconius’s work.6 In the list below I try to offer explanations for their omission. Thus, omitted from the Concordia are (with page references to PJc.400, Clavis canonum reference7): • When to give the Kiss of Peace at Mass – a late fourth-century ruling that may have been quite out of date by the sixth century: 58, Siricius, Pacem igitur. 4 5 6 7

M. D. Elliot, ‘Canon Law Collections in England ca 600–1066: the Manuscript Evidence’ (University of Toronto PhD thesis, 2013), 5. Zechiel-Eckes, Die Concordia canonum des Cresconius. The following lists substantial segments which are not in PJc.400; for a detailed list of omissions see Zechiel-Eckes, Die Concordia canonum des Cresconius, i, 53–4, 55 note 84. The Latin incipits enable one to tie the rulings to the online Clavis canonum, on which see L. Fowler-Magerl, Clavis canonum: Selected Canon Law Collections before 1150 (Hanover, 2005), and PJc.400, 6, for hints on the use of this invaluable but far from user-friendly tool.

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• When to recite the names of those who brought offerings at Mass: this early fifth-century decision may have lost relevance a century and a half later: 59, Innocent I, De nominibus. • Consigning, chrism, baptism, priest, bishop; it is likely that the concept of consignatio already left sixth-century readers puzzled (as it does modern scholars): 60, Siricius, De consignandis. • Saturday as fast day; while Saturday seems to have remained a fast day in Rome into the ninth century, it is unclear how generally this was the case (e.g. in Christian Africa before the Islamic invasions):8 62, Innocent I, Sabbato vero. • Taking blessed sacrament to priests of the city: this may have been of too local, Roman, relevance: 63, Innocent I, De fermento. • Against repeated offences; this is chiefly about penalties (vague: ‘a most severe punishment’) to be meted out to those who ignore the previous ruling (which is included in Cresconius): 84, Zosimus, Proinde nos. • On the ecclesiastical cursus of promotion; in fact, Cresconius does include this, though not the whole passage: 91, Celestine I, Ordinatos vero quosdam. • On not changing diocesan boundaries; in the fluid situation after the fall of the Western Empire, with political boundaries expanding and contracting, this may have seemed impossible to apply:9 103, Innocent I, Non semel. • Clerics can’t change bishops; no obvious reason why this wasn’t included: 105, Innocent, Si quis post remissionem and Si que autem cause. • To Alexander of Antioch, to say that when the emperor splits a province to create two, that does not mean that there have to be two metropolitan bishops; if the Concordia was finished when Italy was still under Byzantine rule following Justinian’s reconquest, this might have seemed overbold, and if later, after Lombard conquests, irrelevant: 108, Innocent I, Et onus. • Commonitorium to priests and deacons at Ravenna; this highly specific situation may have seemed to lack general relevance: 111, Zosimus, Ex relatione fratris. • To Emperor Honorius re disputed elections; see comments above about the aftermath of the Western Empire: 116, Boniface I, Ecclesie mee. • Emperor Honorius to pope re disputed elections; see comments above about the aftermath of the Western Empire: 118, [Emperor Honorius to] Boniface I, Scripta beatitudinis tue. 8 9

H. Chadwick, East and West. The Making of a Rift in the Church: from Apostolic Times to the Council of Constance (Oxford, 2003), 118 and note 10. M. Lauwers, ‘Territorium non facere diocesim: conflits, limites et représentation territoriale du diocèse (Ve–XIIIe siècle)’, in F. Mazel, ed., L’espace du diocèse dans l’occident médiéval (Ve–XVIIIe siècle) (Rennes, 2008), 23–65, at 50.

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• To bishops of Gaul about Maximus; perhaps deemed too case-specific to be generally applicable; furthermore, Cresconius shows no interest in problems relating to Gaul:10 124, Boniface I, Valentine. • Nobody to be ordained without consulting Metropolitan; it was perhaps thought hard to apply in a period when political boundaries were volatile so that metropolitan boundaries were likely to be fluid; furthermore, it is from a letter to the bishop of Narbonne, and Cresconius showed no interest in Gaul, as noted above: 127, Boniface I, Difficilem. • Monks can become clerics if they have not known a concubine or mistress before baptism; perhaps the clerical shortage, and the need evidenced by the letter of Gelasius discussed in the previous chapter to recruit from monks, made it inopportune to set the bar too high: 188, Innocent I, Laici vero qui habentes uxores. • All the letters of Innocent I about Pelagius are omitted from Cresconius, but probably because they are not in the Dionysiana: 221–52. (The Dionysiana does include the letter of Celestine I, which accordingly gets into Cresconius.) • The preface to ‘the authoritative utterances’ in Celestine’s letter to the bishops of Gaul about Pelagian preaching seems not to be in Cresconius, but the rest of the material that follows is included: 260, Celestine I, Quia nonnulli, qui catholico. These speculations about the possible reasons for the omissions are secondary to the salient fact that they are relatively few in relation to the corpus of material that concerns us – that the Concordia canonum was an effective channel of early papal jurisprudence. Though the date of composition and identity of Cresconius are unknown, his scholarly editor has made a case for the mid-sixth century or a little later. The seventh century is possible but much less likely a priori, because that was a period of minimal creativity in canon law culture,11 whereas the first half of the sixth century – the age of Cassiodorus and active canon law compilation – is a plausible context.12 It used to be believed that Cresconius put the collection together in Africa, but again the modern editor has arrayed convincing arguments to the contrary, and shown he was probably working in Italy,13 with Rome the most likely centre; the exemplar of the work is closely connected to a textual tradition that points unambiguously to Rome.14 10 12

13

Zechiel-Eckes, Die Concordia canonum des Cresconius, i, 76–7. 11 Ibid., i, 81. Ibid., i, 80, 82, 85. This was also the time when the first installment of the Liber pontificalis was compiled: see R. McKitterick, Rome and the Invention of the Papacy: The Liber pontificalis (Cambridge, 2020), 8, 26. McKitterick brings out well the creativity that went into this. Zechiel-Eckes, Die Concordia canonum des Cresconius, i, 67–77. 14 Ibid., i, 78.

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Systematic Arrangement In the Concordia, papal jurisprudence from its beginning is rearranged in a systematic form, as opposed to the chronological arrangement of the Dionysiana. The Dionysiana had nevertheless made thematic reading easy by splitting letters into sequential segments with subheadings. These segments nearly all became discrete canons, as is apparent in PJc.400, where an incipit for the Clavis canonum is provided after each section of edited text. Zechiel-Eckes expresses forcefully the view that the rearrangement was clumsily done. He has an explanation. Cresconius himself was no fool, and his preface suggests a real ability:15 the problem was that he was trying to square the circle by retaining as much as possible of the Dionysiana’s structure while reshaping the material into analytical order.16 Thematic order could put a new spin on old decretals. Section 27 of the Concordia has the mild and accommodating-sounding rubric: ‘If a bishop, priest, deacon be condemned, they should by no means be deprived of communion. Similarly too with other ministers of the Church.’17 The authorities that immediately follow are from the so called ‘apostolic canons’,18 and they say more or less what the rubric might lead one to expect, but then come five genuine papal decretals,19 the first two very long. These two are vehement and argumentative prohibitions of sexual activity on the part of priests and deacons.20 Both allow men who had been in honest ignorance of the celibacy law to remain in the clergy, which is presumably the reason for including them under this indulgentsounding heading, but the heading of the chapter as a whole (quoted above) drastically alters the emphasis, without actually falsifying the content. The next item under the same heading is simply about the cashiering of priests who beget children.21 There follows Leo I’s ban on public penance for priests; the clause about making satisfaction away from the public eye presumably justifies inclusion in this section of the Concordia.22 Then we have Gelasius I inveighing against clerics who have committed ‘horrendous crimes’ but who continue to exercise their ministry23 – at which Gelasius is shocked! The interpretation put on decretals by the rubrics under which they are arranged in thematic collections is revealing of their reception history. They tend to make the overall message much milder. 15 17 19 20 21 23

Ibid., i, 39. 16 Ibid., i, 61–2 (summarizing the preceding argumentation). Ibid., ii, 517: ‘UT EPISCOPUS . . . MINISTRI’. 18 Ibid., ii, cap. 27, 1–2, 517. Ibid., ii, cap. 27, 3–7, 517–24. Ibid., ii, cap. 27, 3–4, 517–22 (popes Siricius and Innocent I). Ibid., ii, cap. 27, 5, 522–3 (Innocent I). 22 Ibid., ii, cap. 27, 6, 523. Ibid., ii, cap. 27, 7, 523–4.

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The Concordia of Cresconius and the ‘Three Chapter’ Schism The significance of the Concordia cannot be appreciated without taking account of its reception. With a new lease of life well over a century after its composition (I follow the dating plausibly reconstructed by its scholarly editor Zechiel-Eckes) it would be employed as a weapon against a schism in north-east Italy. The papal decretals it contained sent a message about communion with Rome. The company kept in manuscripts by a work can tell us about its afterlife once it had left the hands of its author. A remarkable number of manuscripts of the Concordia, for the period, include as an appendix material with a definite theological agenda. ZechielEckes explains it as follows. ‘One thing is sure: the compiler of our appendix was concerned to defend the orthodox faith, as it had been established with great verbal precision at [the Council of] Chalcedon [in 451] and confirmed at later councils, viz. at the Council of Constantinople in 553, against heretical hostilities, or to get it accepted.’24 The compiler was working in the late seventh century, Zechiel-Eckes argues,25 at around the time when a pro-Roman Lombard monarchy was beginning to establish itself in Austria, in the metropolitan province of Aquileia,26 the bastion of the so-called ‘Three Chapters’ schismatics. There are good grounds for describing the ‘enlarged Concordia canonum of Cresconius as a proorthodox propaganda compilation in the final phase of the North Italian Three-Chapter Schism’.27 What was this ‘Three-Chapter Schism’? Answering the question calls for a quick sketch of the triangle of bishop of Rome, emperor, and Christology in the sixth century, after which excursus the implications for the reception of the first papal laws can be worked out. As already argued in connection with the Acacian schism, anyone aiming to understand late Antiquity had better take Christology seriously, however alien from religion they might be, just as future historians of the early twentyfirst century had better take gender theory seriously, even if they should personally find it strange. It was rational to wrestle with questions about what it actually meant to be the ‘son of God’. The Arians, who did not think Christ was quite so divine as God the Father, were almost out of the picture by this time, but questions about the relation between the human and the divine in Jesus Christ remained. By the middle decades of the sixth century three broad lines of interpretation had emerged. One tendency was towards separation of the human and divine in Christ, with the 24 25 27

Ibid., i, 96: ‘Eins ist sicher . . . Geltung zu verschaffen.’ Ibid., i, 86–113 passim, especially 97, 103, 112. 26 Ibid., i, 103. Ibid., i, 112: ‘gäbe es gute Gründe . . . zu sprechen’.

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practical devotional consequence that the Virgin Mary should not be called ‘mother of God’. This was called ‘Nestorianism’, a form of Christianity which would have immense long-term influence east of the Roman Empire. An opposite tendency was to understand Christ’s humanity as to be so absorbed into his divinity as to be unlike the humanity of ordinary mortals. This is called ‘Monophysitism’ (from Greek for ‘one nature’) or Eutychianism (after a putative proponent). The third was the ‘one person with two natures’ formula, proposed by Leo I in 449 and (closer to Cyril of Alexandria than to Leo) defined by the Council of Chalcedon in 451. That solution was thought by many within the Byzantine Empire to be mistaken – too close to Nestorianism. Theological dissent worried emperors who felt that it could easily metastasize into political instability. From the late fifth century and in the two following centuries emperors tried to find – and impose – compromises that should satisfy all parties. As so often with compromises, they tended to alienate both opposing sides. The ‘Acacian schism’, discussed in the previous chapter, was the first in this series of attempts at compromise. It alienated the papacy, and the schism continued until the pontificate of Pope Hormisdas, who won over the Eastern establishment in 519. At this time the Eastern Empire had relatively little power over the West and the papacy. All that changed with the emperor Justinian, under whom Africa was reconquered easily from the Vandals, and Italy – not easily! – from the Goths. It is indeed possible that the real economic collapse of the West was as a result not of the fourth-century barbarian conquests but of the destructive war after the empire struck back against the Ostrogoths in Italy. Papal revenues from one province (Picenum) dropped from 2,160 solidi in the late fifth century to 500 solidi under Pelagius I (d. 561).28 In the middle term this did not weaken the pope’s position in Rome. It has been argued that the Byzantine administration ‘updated Rome’s decaying urban centre’ by sponsoring new foundations like the wonderful church of Santa Maria Antiqua.29 By the end of the Byzantine period of influence the centre of Rome could again astonish visitors from far away, now not by pagan temples but by its churches.30 As the greatest property owner in Italy, the popes too could contribute to church-building which restored Rome’s architectural glory in a new register.31 Huge estates in Sicily, in particular, were a secure economic foundation. The exceptional survival of sources for the pontificate of Gregory I (d. 604) reveals the 28 29 30

P. Llewellyn, Rome in the Dark Ages (London, 1993), 80. M. Maskarinec, City of Saints: Rebuilding Rome in the Early Middle Ages (Philadelphia, 2018), 38–9. Ibid., 38–51. 31 E. Caspar, Geschichte des Papsttums, ii (Tübingen, 1933), 616–17.

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humane but economically rational basis of his estate management policy.32 The patrimonies and estates of the bishop of Rome enabled him to subsidize the city’s population on a major scale,33 in a manner reminiscent of Roman emperors though obviously on a much smaller scale. The pontificate of Gregory I followed on a low point of papal prestige, resulting from another imperial effort at Christological compromise. In 544 Justinian tried to win over those with one-nature views by condemning three theologians whose views they disagreed with. This was the condemnation of the ‘Three Chapters’ (i.e. three items).34 Given the brutal war going on in Italy it was important to get the West on side, but sentiment in the West was intensely sensitive to anything looking like an attack on the ‘one person with two natures’ formula of Chalcedon and Leo I. Justinian took no chances and had the bishop of Rome, Vigilius, taken without a choice to Constantinople, where he twisted and turned under intense pressure, and finally played into Justinian’s hands by making private promises in his own handwriting to cooperate. In 553 Justinian called a general council, mostly composed of complaisant Greekspeaking bishops, and in the end Vigilius submitted to its rejection of the Three Chapters, causing an uproar in the West. His successor Pelagius I had himself shared what seem to have been Vigilius’s true views, and seems to have drafted a document, against the view of the emperor and his tame bishops, which Vigilius put out before caving into pressure. Like Vigilius, Pelagius I accepted the council’s decision. If he had not, it is unlikely that he could have become bishop of Rome, given Justinian’s position.35 Was this volte-face just ambition for the papal throne, or deference to a general council? His efforts to draw a veil over 32 33 34

35

Ibid., ii, 411; R. A. Markus, Gregory the Great and His World (Cambridge, 1997), 112–24. Llewellyn, Rome, 95. For a sane modern account of the controversy see J. Moorhead, The Popes and the Church of Rome in Late Antiquity (New York, 2015), 87–92, 100–1, 104, 107, 110–11, 210. For a full and still valuable account of the tortured history of the Three Chapters and popes Vigilius and Pelagius I, see Caspar, Geschichte, ii, 243–98, 301–3. F. Battistella, Pelagius I. und der Primat Roms: ein Beitrag zum Drei-Kapitel-Streit und zur Papstgeschichte des 6. Jahrhunderts. Mainzer Althistorische Studien 7 (Hamburg, 2017) is an oeuvre de jeunesse (pre-doctoral), which focusses on Pelagius’s correspondence with Gaul and North Italy. The letters to Gaul cite Cyprian and Augustine and stress his orthodoxy, the correspondence with Italy urges intervention by the secular power to end schism, thus extending papal primacy to areas where it had not hitherto been accepted (rather than restoring a situation disrupted by war). Battistella dismisses (see 20, 22, 191) Erich Caspar’s findings about earlier papal authority as an ‘aus der päpstlichen Selbstdarstellung erwachsenen Fehlschluss’ (20). This does not take into account the responsive character of papal law as evidenced by PJc.400 and the earlier chapters of present volume, or do justice to Caspar’s unsurpassed chapters on the late fourth and fifth centuries. Caspar, Geschichte, ii, 287.

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the whole unhappy sequence of events were unsuccessful, since he had himself been all too skilful in helping to direct from Constantinople the propaganda campaign in the West against Justinian’s condemnation of the Three Chapters.36 He could not prevent the pro-Three Chapters schism, centred on Aquileia, which may be dated from 557. As we have seen, it lasted over a century, and the Concordia of Cresconius was probably part of the combination of forces that overcame it.37 Now there is a paradox here which should force us to reflect on the extra meaning which early papal jurisprudence seems to have acquired over time. The Concordia itself does not cover Christology. The Christological definition of the Council of Chalcedon of 451 is not included, though the disciplinary canons of the council figure prominently;38 nor is the ‘Tome of Leo’ (the breakthrough formula of Leo I that anticipated Chalcedon’s solution). The papal letters in Cresconius are all from the Dionysiana, without the additions that accrued to it after the original version of the decretal part.39 Virtually all the papal letters used by Cresconius are represented either in PJc.400 or in Appendices A and B of the present volume, with one exception,40 and Cresconius, like the letters analysed and edited in PJc.400, includes hardly any theology except for all the material relating to grace and free will generated by Augustine’s attack on Pelagius in Celestine I’s letter to the bishops of Gaul. So why was Cresconius’s Concordia a weapon in the end-game phase of the Christological Three Chapters controversy? No text will tell us in so many words, but the implication of Zechiel-Eckes’s analysis is presumably that the very prominence of papal law in the Concordia was an argument against the Three Chapters schismatics. The canons from fourth- and fifth-century papal decretals – there are none later than Gelasius – foregrounded papal authority and distracted attention from the papacy’s own inglorious role in the first phase of the controversy. Decline of Papal Status in Francia? That inglorious role had dimmed papal prestige in sixth-century Francia (thus well before the episode in north-east Italy analysed by Zechiel-Eckes to give context to Concordia reception). In Francia too there were 36 37 39 40

Ibid., ii, 265 note 3, 267 note 2, 301. Zechiel-Eckes, Die Concordia canonum des Cresconius, i, 107, 111–13. 38 Ibid., ii, 803. Ibid., i, 25–6, especially note 56: the version used by Cresconius has textual features that distinguish the enhanced versions, but not the additional texts they include. J3.718=318, Zechiel-Eckes, Die Concordia canonum des Cresconius, ii, #59, 1, 562–3. This is about disciplinary measures against followers of Fotinus ‘qui Christum dominum ex patris substantia ante saecula negant genitum’ (ibid., ii, 563).

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defenders of the Three Chapters. To them, it might well seem that Pelagius I had flipped over from supporting to opposing the Three Chapters in order to get imperial backing and become bishop of Rome: so, from Gaul, Pelagius did not look good.41 In the end, his clever packaging of the past failed to win conviction and he had to fall on his sword, or rather, throw his earlier self on to it. The line he took was that he had given up his previous opinion in deference to the council’s authority.42 From a publicity point of view it was a climbdown. Thus, it is unsurprising that the status of the papacy in Gaul was at a low ebb in the sixth century.43 As Caspar put it, the Frankish Church ‘was obeying laws other than those of papal primacy theory’; Pelagius complained in vain that the bishop whom he wanted to make his ‘vicar’ in Gaul had been summoned at the king’s command to answer a complaint before a bishop who should have been subordinate to him (in Pelagius’s view).44 In short, the Frankish king was taking over the papal role. The Frankish king Clovis gained control of Gaul while Theodoric was ruling Italy. At some point around 500 Clovis and the leading Franks had become Christian, though the level of elite violence remained spectacular. The dynasty of his descendants, the Merovingians, remained in control until replaced by the Carolingians in the eighth century, their history one of wars between successor kingdoms and family members, running through the century of Byzantine reconquest of Africa and Italy from the Ostrogoths and subsequent loss of most of the northern part of the peninsula to the Lombards. In these Frankish kingdoms the bishops were powerful45 and on the whole a stabilizing element. As Patrick Griffith has put it in his important recent thesis on the canon law of post-imperial Gaul, ‘The periods of disunity also elevated episcopal networks (and canon law) as a source of relative continuity and stability.’46 41 43

44

45 46

Caspar, Geschichte, ii, 298–9, 301–2. 42 Ibid., ii, 301; cf. 296. This is a matter of degree. In a personal communication, Ben Savill points out to me symptoms of continuing papal prestige: e.g. evidence in Gregory I’s register that Burgundian Merovingians had kept in touch with his predecessors, and Gregory of Tours’s accounts of appeals by Gallic clergy to Rome. Note too H. Mordek, Kirchenrecht und Reform im Frankenreich: die Collectio vetus Gallica, die älteste systematische Kanonessammlung des Fränkischen Gallien. Studien und Edition, 2 vols. (Berlin, 1975), i, 82: ‘Schon im frühesten Mittelalter gab es Kräfte, die das Bewußtsein einer besonderen Zuständigkeit Roms in kirchenrechtlichen Fragen wachhielten.’ ‘anderen Gesetzen gehorchte als denen der päpstlichen Primatstheorie’, Caspar, Geschichte, ii, 300; also R. McKitterick, Rome and the Invention of the Papacy: the Liber pontificalis (Cambridge, 2020), 153, on decretal manuscripts from sixth-century Frankish Gaul. R. van Dam, ‘Merovingian Gaul and the Frankish Conquests’, in P. Fouracre, ed., The New Cambridge Medieval History, i, c. 500–c. 700 (Cambridge, 2005), 193–231, at 215–17. P. Griffith, ‘Canon Law in Post-Imperial Gaul’ (Kings College London PhD thesis, 2018), 277.

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Papal law too was being sidelined by this burgeoning tradition of Frankish conciliar legislation. Griffith tracks the changes in the scope of legislation from the late empire on. ‘Whereas canones c. 400 primarily dealt [with] ecclesiastical ritual, discipline and hierarchy . . . by the final quarter of the sixth century they had become both tools of government and legal instruments capable of being applied for a range of practical purposes.’47 The process began with the incorporation into legislation of ‘legislative functions, which had previously been held by imperial law. Canons defined legal privileges (privilegium fori, legal asylum) and took a greater role in defining and regulating ecclesiastical property. The boundaries between imperial law and canons became porous . . .’48 Church property was brought within the remit of canon law, and the incest prohibition extended.49 In a subsequent phase the scope of canonical legislation expanded further: Wide areas of lay activity came to be regulated by canons including economic or fiscal obligations (the tithe), [and] the way in which lower social classes (servi and coloni) could interact with the administration of justice (ecclesiastical patrocinium). Participation in key elements of Christian ritual were made mandatory by canonical legislation. Canons were used to govern non-orthodox religious minorities (i.e. Jews). Similarly the ‘control mechanisms’ (i.e. excommunication) prescribed by canonical rules continued to become more explicitly coercive and sophisticated . . . [B]y the closing decades of the sixth century, clergy, kings, ascetics and laity perceived in ‘canon law’ sufficient latent authority to structure policy, transactions and dispute settlement around it . . . [T]his legislative ability was endorsed and reinforced by Merovingian kings.50

The foregoing themes are alien from the early papal jurisprudence discussed above and in PJc.400. The Vetus Gallica Given that, it is natural that the major canon law collection produced in the Frankish lands in this period does not give much prominence to papal decretals. This is the Vetus Gallica, dated to between 585 and 627,51 probably around the middle of that time span if the editor’s inferences about the author or initiator of the collection are correct.52 By this time Francia included at least hegemony over substantial parts of what would become Germany. In the Vetus Gallica only one papal letter is cited, Innocent I’s to Decentius of Gubbio,53 which appears twice in the course of this very substantial collection, a tiny proportion of the whole. It is true that one of the extracts 47 51 53

Ibid., 280. 48 Ibid., 175. 49 Ibid. 50 Ibid., 235. Mordek, Kirchenrecht und Reform, i, 69, 79. 52 Ibid., i, 82. J3.701=311: see PJc.400, 49–53, 56–65, passim.

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extends to several pages,54 and starts with a striking evocation of unity and Roman primacy.55 Its substantive rulings are about the kiss of peace at Mass,56 the recitation of names at Mass,57 and the ‘consigning’ of infants.58 The rubric of the section to which they belong is ‘On ecclesiastical order [ordinem – as in liturgical order?] and the office of the Mass’. The other extract repeats part of the passage about ‘consigning’,59 under a rubric which begins ‘Concerning confirmation with chrism . . .’.60 It is also true that the man who was probably behind the Vetus Gallica, Bishop Etherius of Lyons, had excellent relations with the papacy and respect for conciliar material which he believed had a secure Roman provenance.61 The relatively tiny quantity of papal material is nonetheless a significant negative fact. Spain: The Hispana Francia was vast but it was not the whole of Europe, and Spain developed quite differently. The sixth-century history of the post-imperial successor states is too complex for a summary of political events. Suffice to say that the rulers were Arian, so theoretically at odds with those – probably the majority – who accepted the creed of the Council of Nicaea, until the Visigothic dynasty converted to Catholicism in 589. Between this date and the Arab conquests in the early eighth century there was a renaissance of religious culture, associated above all with Isidore of Seville.62 This is the context of the canon law collection called the Hispana. In its definitive form it is from after 694, not long before the Arab conquest, but to judge from surviving manuscripts it circulated widely.63 It is important for this study because it contains the whole decretals section of Dionysiana,64 which means that all the texts analysed in PJc.400 were incorporated, except the letters of Innocent I about Pelagianism which the Dionysiana does not transmit. The Dionysiana’s decretals are in the Hispana, but the Hispana includes many papal letters not in the Dionysiana, notably a rich collection of Leo 54 55

56 58 60 62 63

Mordek, Kirchenrecht und Reform, ii, XVIII, 2, 424–9 (the apparatus takes up the greater part of each page). ‘Si instituta ecclesiastica, ut sunt a beatis apostolis tradita, integra vellent servare Domini sacerdotis, nulla diversitas, nulla varietas in ipsis ordinibus ac consecrationibus haberetur . . . Quis . . . nesciat . . . quod a principe apostulorum Petro Romani ecclsiae traditum est hac nunc usque custoditur, ab omnibus debere servare . . .’ (sic) (and so on) (ibid., ii, 424–5). Ibid., ii, 427–8; cf. PJc.400, 58. 57 Ibid., ii, 428; cf. PJc.400, 59. Ibid., ii, 428–9; cf. PJc.400, 59–60. 59 Ibid., ii, XXII, 2, 436–7. ‘De Confirmatione cum Crisma’, Ibid., ii, 435. 61 Ibid., i, 80–2. J. Fontaine, ‘Education and Learning’, in Fouracre, ed., New Cambridge Medieval History, i, 735–59, at 750–2. Kéry, Canonical Collections, 62–4. 64 Maassen, Geschichte, 702.

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I’s decretals dealing with Christology. It will be remembered that in 449 Leo I at least partly anticipated the Council of Chalcedon’s doctrine of Christ as one unified person with two natures, human and divine, against the theory known as Eutychianism, that the human nature was absorbed into the divine in such a way as to be rather different from the humanity of ordinary people. The inclusion of Christological material affects the meaning of the collection as a whole, or at least of its decretals section, and of the individual elements contained within the latter. Whereas the Dionysiana encapsulates a conversation about law with implicit limits marking that off from the topics covered in creeds, in the Hispana the boundaries of the system have been extended to include Christology. Opening Genre Boundaries: The Enhanced Vetus Gallica and the Hibernensis A further broadening of genre boundaries is observable if we return to the Vetus Gallica to look at its transmission life and the texts that were added to it. In its original form the Vetus Gallica was a ‘councils and papal decretals’ collection, but material was added as it was copied: notably monastic rules, a treatise by Augustine of Hippo, and material from the Hibernensis itself; also included were extracts from the so-called penitential of Theodore of Canterbury.65 In Ireland, not too long after the original Vetus Gallica, the boundaries of canon law as a genre were being extended still further, while early papal jurisprudence was pushed into the background. The Hibernensis The Hibernensis is an Irish canon law collection compiled between 669 and 748. There is an excellent modern edition to work from.66 The collection is a product of the flowering of a highly original Christian culture in early medieval Ireland, never part of the Roman Empire and converted in the fifth century, around the time when the empire was collapsing in the West. The collection ‘significantly expanded the pool of sources used by collections of canon law’, including ‘a myriad of biblical references, . . . Greek, Latin, Irish, and British church Fathers;67 Isidore; church historians; . . . saints’ Lives and a host of unidentified 65 66 67

Mordek, Kirchenrecht und Reform, i, 52. R. Flechner, The Hibernensis, 2 vols., Book i, A Study and Edition, Book ii, Translation, Commentary and Indices (Washington, DC, 2019), at i, 59*–61*. Patristic texts get into canon law earlier in the Greek East, with John Scholasticus, c. 550: see H. Hess, The Early Development of Canon Law and the Council of Serdica (Oxford, 2002), 54–5.

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authorities’,68 in addition to conciliar canons and papal decrees, the staple of the canon law collections considered so far. The range of material possible within the genre was now much greater, so that the boundary separating law from other kinds of religious writing almost disappeared. Two previously distinct communication strings were becoming entwined. The range of authorities is discussed in the Hibernensis itself. Papal authority is both respected in theory and relativized in practice. The theoretical hierarchy of authorities according to the Hibernensis is: first the Bible, next historiae catholicae written by doctores catholici, ‘a category which may include patristic writings’ (Flechner), then papal decretals, followed by hagiographical writings and seniores provinciae, which may mean provincial synods.69 The schema is not a key to the actual use of sources, which deviates from it,70 but it illustrates an attitude of mind: the Bible and theological writings fall within the field of religious law and outtrump papal decretals. Flechner’s admirable ‘Index of sources’ shows the range of writings used in addition to decretals and conciliar canons.71 The space allocated to papal decretals is relatively trivial. To give a crude quantitative sense of the contrast: there are over 150 page/line references for Isidore (not Pseudo-Isidore!), and over 65 for Jerome. Contrast that with 3 entries for Siricius, 8 for Innocent I, 1 for Zosimus, 2 for Celestine I, 6 for Leo, and 1 for Symmachus. (Gregory I gets a lot more but he is the exception that proves the rule because he is probably being quoted primarily as one of the doctores catholici; I also leave aside the apocryphal Pseudo-Clement.) This contrast is the more striking in that we know that a copy of the Dionysiana was at the disposition of the compilers of the Hibernensis.72 The limited role of genuine early papal jurisprudence, in stark contrast with say the Concordia of Cresconius’s reliance on it, is even more evident when we follow up Flechner’s scholarly index of sources. Even when decretals by the aforementioned popes are used, they are seldom credited fully. Early Papal Jurisprudence in the Hibernensis (Page Numbers Followed by Line Numbers) Siricius • 13 lines 2, 8, and 13: the rulings are attributed to ‘Sinodus Cartaginensis’. 68 71

Flechner, Hibernensis, i, 66*. 69 Ibid., i, 68*. Ibid., ii, 982–1000. 72 Ibid., i, 75*.

70

Ibid., i, 69*.

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Innocent I • 45 lines 10 and 14: not attributed. • 111 line 7: attributed (this is the schema for a hierarchy of authoritative sources). • 113 line 13: ‘Canones Romanorum’ (no mention of Innocent): but states the ruling that the maiores causae should go to the caput urbium. • 114 line 7: same (Roman canons, great cases, the chief of cities) followed by references to messengers being sent to Rome and messengers sent from Rome to Alexandria. • 379 lines 13 and 16: attributed to ‘Sinodus Romanus’. These are about adultery, from J3.675=293: cf. PJc.400, 175–6. The Hibernensis appears to twist a text which presupposed gender symmetry to mean that women can’t accuse their husbands of adultery but that husbands certainly can! • 388 line 13: again ‘Sinodus Romana’. Zosimus • 13 line 2 (cf. above under Siricius): attributed to ‘Sinodus Cartaginensis’. Celestine I • 14 lines 10 and 13: attributed to ‘Sinodus Alexandrina’. Leo I • 359 line 14: attributed to ‘Agustinus’ (Augustine of Hippo). • 360 line 2: ditto. • 369 lines 9, 11, and 14: attributed to ‘Sinodus Narbonensis’. • 388 line 18: ditto. In short, of even the few instances of the influence of early papal jurisprudence on the Hibernensis, most are misattributed, and the mass of biblical, patristic, and ‘modern’ insular synodal authorities drowns out what little could be detected. Conclusion Looking back on the period between the fall of the empire in the West and Charlemagne, the following typology is discernible: (1) The style of jurisprudence developed by Siricius and Innocent I, and in letters of Leo I and Gelasius I that echoed their themes, was carried

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on by the Dionysiana and (rearranged thematically) the Concordia or Concordantia of Cresconius. This tradition remained a major influence. One may call it the legal type. (2) A second type includes the first and also confines itself to conciliar canons and papal letters, but adds a good deal of Christology, through letters of Leo I about the ‘one nature’ theory; in this type, the Christological content, going to the centre of the whole belief system, makes the collection as a whole less like ‘positive’ law, more like a general collection of all kinds of papal letters, a hybrid of law and theology as later understood. It could be called the hybrid type. The Hispana is a prime example. (3) In the third type papal law is present but pushed into the background by much material that is neither obviously legal nor papal. The Hibernensis is a prime example. For want of a better formula it may be called the inclusive type, because it also includes patristic material and draws on penitentials. These categories are, it should be said, ‘ideal-types’, that is to say, simplifications – of a spectrum of collections in which one kind shades off into the next – which help us to see how the tradition under discussion was separating into different threads or chains of reception.

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Carolingian Culture and Its Legacy

Political and Cultural Context The Hibernensis was starting to have an impact in continental Europe in the second quarter of the eighth century,1 at roughly the same time as the rise to dominance in the vast Frankish kingdom of the Carolingian dynasty, with Charles Martel as de facto ruler, and then Pippin as king. It was also the time when the papacy’s orientation shifted from East to North, to the Carolingians from the Byzantine Empire, which had bullied popes over doctrine and failed to protect papal lands against the Lombards. Constantinople could hardly be blamed, for it was fighting for survival against an expanding Islam. Even so it was obvious that the new dynasty in the North offered a better prospect as protector. By the death of Charlemagne in 814 the Carolingian Empire included modern France, Germany, the lands in between, much of Northern Italy, and Catalonia. Charlemagne and clerical aides like Alcuin of York launched an extraordinary programme of religious and cultural renewal, notably of Latin and of handwriting, that beautifully legible Caroline minuscule. The canon law tradition was part of the revival2 and, unlike some aspects of Carolingian cultural life, it remained robust into the post-Carolingian period.3 1 2

3

R. Flechner, The Hibernensis, 2 vols., Book i, A Study and Edition, Book ii, Translation, Commentary and Indices (Washington, DC, 2019), i, 48*. For a survey of manuscript evidence which brings out (among other findings) the role of individual bishops, see R. McKitterick’s important ‘Knowledge of Canon Law in the Frankish Kingdoms before 789: the Manuscript Evidence’, Journal of Theological Studies 36 (1985), 97–117. An invaluable online resource is the Carolingian Law Project: https:// ccl.rch.uky.edu/ (accessed 18 September 2021); note the important essay by Abigail Firey on the Collectio Dionysiana, under the ‘Resources’ heading. It should be added that we do not know how much Carolingian copyists, on whom our knowledge of earlier canon law principally depends, omitted to transmit to future generations: ‘Our knowledge of the late Roman world is hopelessly at the mercy of Carolingian librarianship’ (as a Cambridge University Press reader pointed out to me). J. Wassenaar, ‘Bishops, Canon Law, and the Politics of Belonging in Post-Carolingian Italy, c. 930–960’, in S. Greer, A. Hicklin, and S. Esders, eds., Using and Not Using the Past after the Carolingian Empire, c. 900–c. 1050 (Abingdon, 2020), 221–40, at 223–4; J. A. Brundage, Medieval Canon Law (Harlow, 1995), 27–33; K. Rennie, Medieval

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Inclusive Canon Law A salient feature of Charlemagne’s revival of culture was openness to insular influences. A life of Charlemagne tells the story that, when he heard about two Irishmen who had come to the Continent with some merchants and were selling wisdom, he had them brought to his presence.4 The reception of the Hibernensis on the Continent did not so far as we know require any high-level intervention but it was certainly much in demand far from its country of origin, as is attested by ‘copies and derivatives made in Brittany, Tours, Cambrai, Freising, Salzburg, Reichenau, St. Gall, Würzburg, and Bobbio’.5 In fact, it survives ‘exclusively in continental manuscripts’.6 The tendency to incorporate genres other than council canons and papal letters was not just an imported insular phenomenon. It was noted in the previous chapter that an intermediate recension of the Vetus Gallica collection added monastic rules and material from Augustine of Hippo.7 The broadening of the boundaries no doubt occurred independently in different regions. Exactly the same development took place in Byzantine canon law. Patristic material is included in the canon law collection of John Scholastikos in the mid-sixth century.8 A prologue written perhaps in the early seventh century goes out of its way to justify the inclusion of individual patristic texts,9 but it became normal to do so.10 Given the early arrival of patristic material within Greek canonical collections it is conceivable that these somehow influenced the parallel development in

4

5 6

7

8

9 10

Canon Law (Leeds, 2018), 34–6. These last two books perform a great service by succinctly linking up the different periods of canon law history. J. J. Contreni, ‘the Carolingian Renaissance: Education and Literary Culture’, in ed. R. McKitterick, ed., New Cambridge Medieval History, ii, c. 700–c. 900 (Cambridge, 1995), 709–57, at 709, with further references. Flechner, Hibernensis, i, 48*. Ibid., i, 125*. Flechner uses the word ‘transmitted’, but of course insular manuscripts now lost could have transmitted it. For a list of manuscripts and excerpts see L. Kéry, Canonical Collections of the Early Middle Ages (c. 400–1140): a Bibliographical Guide to the Manuscripts and Literature (Washington, DC, 1999), 73–7. H. Mordek, Kirchenrecht und Reform im Frankenreich: die Collectio vetus Gallica, die älteste systematische Kanonessammlung des Fränkischen Gallien. Studien und Edition, 2 vols. (Berlin, 1975), i, 52. D. Wagschal, Law and Legality in the Greek East: the Byzantine Canonical Tradition, 381– 883 (Oxford, 2015), 39. Cf. H. Hess, The Early Development of Canon Law and the Council of Serdica (Oxford, 2002), 54–5, 87. Wagschal, Law, 105–6. Ibid., 59. Incidentally, anyone who has spent time with F. Maassen’s Geschichte der Quellen und der Literatur des canonischen Rechts im Abendlande (Gratz, 1870) or the other works that Wagschal naughtily cites, 59 note 166, will be surprised at his statement that ‘As a textual phenomenon, Christian canon law of the first millennium, in west [my italics] or east, is at core a Greek imperial phenomenon’!

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the West, but we do not have to postulate causal influence for a development that was in any case well within the range of options. The broadening of genre boundaries in the Hibernensis and enhanced Vetus Gallica makes the exclusion of anything but councils and papal decretals (forged and real) in other strands of Carolingian canon law all the more significant. The Dionysiana Again If a tradition of canon law as a system unblended with what became known as theology continued, that was due in great part to the revival of the Dionysiana in an updated form. The traditional story is that in 774 an expanded version of the Dionysiana was presented to Charlemagne by Pope Hadrian I. This enhanced version is normally known as the Dionysio-Hadriana. The narrative of a handover in 774 to Charlemagne of a new edition has been called into question,11 but the debate need not affect the argument, for the success of the collection in the ninth century and afterwards is not in doubt.12 It was one of the most important legacies of the Carolingian era. A relatively recent count lists 91 manuscripts, not counting fragments.13 As noted above, this must be the tip of an iceberg if not the tip of the tip of an iceberg, given what we know about the loss rate of medieval manuscripts. As Zechiel-Eckes put it: It has to be emphasized that the Dionysio-Hadriana . . . assumed in the course of the ninth century a clearly dominant position: although nobody attempted to prevent the spread of other canon law collections, although the Dacheriana, Vetus Gallica and Cresconius [the Concordia] had an impact, . . . the Dionysio-Hadriana collection of canons . . . was without doubt by far the most influential collection . . .14

The ‘pure’ Dionysiana used for PJc.400 was characterized above as being more or less unblended with theology, with the (only partial) exception of 11

12

13 14

A. Firey, ‘Mutating Monsters: Approaches to “Living Texts” of the Carolingian Era’, Digital Proceedings of the Lawrence J. Schoenberg Symposium on Manuscript Studies in the Digital Age 2 (2005), 1–14; she also emphasises the fluidity of the contents, though she is not suggesting that the texts of individual decretals are fluid. Ben Savill reminds me that Hadrian was also responsible for the selection and ‘publication’ of a big corpus of the letters of Gregory I, which did much for the image of papal authority. See C. Leyser, ‘The Memory of Gregory the Great and the Making of Latin Europe, 600–1000’, in C. Leyser and K. Cooper, eds., Making Early Medieval Societies: Conflict and Belonging in the Latin West, 300–1200 (Cambridge, 2016), 181–201, at 189–91. Kéry, Canonical Collections, 14–17. ‘Man muß aber doch betonen . . . Dionysio-Hadriana’. K. Zechiel-Eckes, Die Concordia canonum des Cresconius: Studien und Edition, 2 vols. Freiburger Beiträge zur mittelalterlichen Geschichte 5 (Frankfurt am Main, 1992), i, 163–4.

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Celestine’s letter to the bishops of Gaul about priests preaching Pelagianism. The Dionysio-Hadriana has a little more theology mixed in, but not very much.15 Creeds are added – short but definitely theological,16 and correspondence with Christological content in the context of the ending of the Acacian schism is also added: a letter from the emperor Justin with an attachment, and a reply from Pope Hormisdas.17 It is possible and indeed likely that a study of all the individual manuscripts18 would reveal theological insertions or at least that the Dionysio-Hadriana often travelled with theological texts. Nonetheless, after all caveats and qualifications, it represents a system of law differentiated from the analysis of speculative religious problems (and indeed from moral thought insofar as that is distinct from law made by popes and councils). Charlemagne’s Admonitio generalis The Dionysio-Hadriana lies behind the 789 Admonitio generalis of Charlemagne.19 Despite its royal origin it must have powerfully reinforced papal authority, because popes are cited as authorities – popes from late Antiquity, the familiar names of Siricius, Innocent I, Leo I, and Gelasius I.20 A recent scholarly edition has made the precise identifications – for the Admonitio gives popes as authorities but without precise references. It cites Siricius against taking the sponsa (wife? betrothed?) of another,21 and for the obligation of monks and virgines (nuns?) to keep to their commitment.22 Innocent I is quoted against bishops acting as such outside their own dioceses,23 and monks abandoning their monastic commitment if they become clerics,24 about when in 15

16 17 18

19

20 23

To reach this conclusion I started with the list of its contents by Maassen, Geschichte, #588, 444–8, and followed up his references via earlier parts of his great study, occasionally to A. Thiel, Epistulae romanorum pontificum genuinae et quae ad eos scriptae sunt a S. Hilaro usque ad Pelagium II, i (Braunsberg, 1868), but mostly to the summaries of content in P. Jaffé et al., Regesta Pontificum romanorum, 2nd ed. (Leipzig, 1885): the summaries in this second version of Jaffé are perfectly adequate for this particular purpose, and give the numbers of the first version, to which Maassen refers). Maassen, Geschichte, #588, no. 4, 445–6, Nicaean creed; no. 9, 446, creed of the Council of Constantinople; no. 10, 446, Definitio fidei of the Council of Chalcedon. Ibid., #588, no. 20, 448. This methodology has proved itself very fruitful over the last generation, the series Münchener Texte und Untersuchungen zur deutschen Literatur des Mittelalters, under the aegis of Prof. Kurt Ruh of Würzburg, providing pioneering examples. For an important and relevant recent application of it see R. McKitterick, Rome and the Invention of the Papacy: the Liber pontificalis (Cambridge, 2020), 171–223, especially 188–95. H. Mordek, K. Zechiel-Eckes, and M. Glatthaar, eds., Die Admonitio generalis Karls des Grossen. MGH Fontes Iuris Germanici Antiqui in usum scholarum separatim editi xvi (Wiesbaden, 2013), 31. Ibid., 33–4. 21 Ibid., 204, c. 51: J3.605=255. 22 Ibid., 206, c. 52: J3.605=255. Ibid., 190, c. 11: J3.665=286. 24 Ibid., 196, c. 27: J3.665=286.

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the course of the Mass the pax (kiss of peace) should be given, and when ‘the names’25 should be recited;26 also attributed to Innocent is a ruling that is really by Celestine I that priests need to know the canons.27 Leo I’s authority is invoked against usury,28 or more vaguely in another chapter of the Admonitio against monks and clerics getting involved in secular business, to which is added that nobody should try to attract anyone’s servus (by then understood as ‘serf’?) to the monastic or clerical life without the lord’s permission.29 Another chapter naming Leo bans bishops ordaining clerics from other dioceses,30 echoing Innocent I’s ruling. It is followed by a repetition of Leo’s rule against ordaining a servus without the master’s consent.31 The series of papal authorities is rounded up by Leo I on the removal of office of priests who violate the canons,32 and Gelasius I against bishops veiling widows.33 The Admonitio may have gone out under Charlemagne’s name, and may indeed be symptomatic of a drift towards Byzantine-style control of the Church, but it gave a tremendous amount of publicity to early papal law. The solid manuscript transmission – thirty-six complete and fragmentary manuscripts, and excerpts34 – is only the first reason for thinking so. It was meant to be carried by royal agents – missi – to the different parts of the immense kingdom, who were to work with churchmen to reform it. That meant that it was not primarily a text for libraries, but a text intended to be a basis for action, very probably carried as a single quire. That would reduce the chances of manuscript survival. On the other hand, the text had behind it the full force of the most powerful man in Europe: it embodied Charlemagne’s programme, so that it has even been called the ‘fundamental law’ (Grundgesetz) of the Carolingian Empire.35 A second point about the Admonitio. It is true that it was a very religious text, and the manuscript transmission shows it travelling not only with other Carolingian capitularies and canon law texts but also with patristic, exegetical, and homiletic material.36 Nonetheless, a structural break within the Admonitio itself marks out a distinct domain for canon law, separate from the wider range of Charlemagne’s reform. This wider reform was based on biblical authority, and consisted of principles for Christian living, some of them to be enforced by secular authority, and instructions on what should be preached. A clear line marks this off from 25 26 27 29 31 33 35

For the original meaning of this see PJc.400, 49–50: who knows how this was understood in Charlemagne’s day. Mordek et al., eds., Admonitio, 206, c. 53 and c. 54: J3.701=311. Ibid., 206, c. 55: J3.823=371. 28 Ibid., 186, c. 5: J3.903=402. Ibid., 194, c. 23: J3.903=402. 30 Ibid., 206, c. 56: J3.918 = Old Jaffé 411. Ibid., 206, c. 57: J3.903 = Old Jaffé 402. 32 Ibid., 208, c. 58: J3.903 = Old Jaffé 402. Ibid., 208, c. 59: J3.1270 = Old Jaffé 636. 34 Ibid., 86. Ibid., 86, 88–9, and 182–5. 36 Ibid., 87–8.

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the first part, which can be classified with the Dionysio-Hadriana on which it was based. Charlemagne and his advisers have a concept for it: canonica instituta.37 Within the Admonitio the ‘canonical institutes’ end with chapter 59, the Gelasius citation. Up to that point, it has been a collection of distilled rulings from papal decretals and, above all, conciliar canons, with none of the other miscellaneous material that the Hibernensis or the Decretum of Burchard contain. From chapter 60, we see the personal vision of a Christian society that animated Charlemagne and his clerical advisers. To give a few examples: there should be preaching against hatred and envy;38 judges should punish homicides within the kingdom, and nobody should be killed unless the law orders it;39 there should be schools for boys, grammar, chant, etc. should be taught in monasteries and cathedral schools (episcopia), and catholic books should be corrected;40 weights and measures should be fair;41 the Roman form of the chant should be taught;42 prominently, a whole programme of preaching is outlined.43 One may speculate that if Charlemagne had been followed by a line of successors with the capacity and inclination to continue his programme, decrees like these could have joined conciliar canons and papal decretals within a more homogeneous corpus, as they did in Greek canon law, but the Carolingian programme was not to last. In the short term, the division of the Admonitio into two parts reinforced the system of an unblended canon law: law unmixed with theology. The Dacheriana The same system of ‘unblended’ canon law is found in another important Carolingian collection, the systematically organized Dacheriana, dating from around 800. Its author was an ‘Intellectual personality who could well have been a member of the leading circles of the Carolingian reform clergy; perhaps Agobard of Lyon’, and Lyons may have been where it was compiled.44 It is prefaced by a treatise on penance,45 which ends with a justification of the importance of local councils,46 but the first canons 37 41 44 45

46

Ibid., 182, 208. 38 Ibid., 218, c. 65. 39 Ibid., 218, c. 66. 40 Ibid., 222–4, c. 70. Ibid., 226, c. 72. 42 Ibid., 230, c. 78. 43 Ibid., 234–8, c. 80. Kéry, Canonical Collections, 87. J.-L. d’Achéry, ed., Spicilegium (Paris, 1723), 510–12; MS BAV Reg. Lat. 848, fo. 2r–8r. The manuscript references are a minimal control on a decent early modern edition. The transmission would put up resistance to a modern critical editor, because of its fluidity; see A. Firey, ‘Ghostly Recensions in Early Medieval Canon Law: the Problem of the Collectio Dacheriana and Its Shades’, Tijdschrift voor Rechtsgeschiedenis 68:1–2 (2000), 63–82. d’Achéry, ed., Spicilegium, 512; MS BAV Reg. Lat. 848, fo. 8r.

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that meet the eye are papal decretals.47 The papal decretals it transmits are all from either the Dionysio-Hadriana (just described) or from the Hispana, and the decretals from the latter are legal rather than theological.48 The Dacheriana was popular: it survives in over fifty manuscripts.49 Its thematic organization complements the chronological order of decretals in the Dionysio-Hadriana. Together these two collections will have communicated from the classical world of the fourth and fifth centuries to the twelfth century ‘classical age’ of canon law not only many models of papal law, but its separation from other kinds of religious writing. The Relevance of Pseudo-Isidore The Pseudo-Isidorian decretals were produced in the ninth century, after Charlemagne’s death – precisely when is disputed. The historiography of the ‘false decretals’ has been so exciting, especially in the last few decades, that it is hard not to get distracted from what matters most for the current investigation, namely, that it hugely amplified the transmission of late Antique papal jurisprudence. The forged decretals were modelled on genuine ones which were also included in the corpus. Pseudo-Isidore not only hugely magnified the diffusion of the first papal jurisprudence, furthermore, but also, arguably, is a testament to its long-term causal influence.50 The first half-century of papal jurisprudence, especially the decretals of Siricius and Innocent I, established a paradigm followed by Leo I and Gelasius I. The Dionysiana incorporated their decretals and, with accretions, had a strong Carolingian transmission. In its DionysioHadriana form it was available at the monastery of Corbie, which recent research – discussed below – has shown to be the epicentre of PseudoIsidore production. Intellectuals at the abbey, like Paschasius Radbertus,

47 48

49 50

Ibid., 518; MS BAV Reg. Lat. 848, fo. 12r–13r. Maassen, Geschichte, #892, 851–2 lists the decretals from which the Dacheriana borrowed chapters via the Hispana; the papal material from decretals not from the first halfcentury of papal jurisprudence, and not studied in PJc.400, comes from Leo I (incipits Sollicitudinis, Gaudeamus in Domino (grazes theology but it doesn’t predominate), Quantum dilectioni); from Felix III (Qualiter in Africanis); from Gelasius I (Praesulum auctoritas); from Symmachus (Hortatur nos) and Hormisdas (Benedicta trinitas). He does not give Jaffé numbers but the incipits he provides can be matched with the summaries in J3. thanks to the latter’s index of incipits. Kéry, Canonical Collections, 87–90. In a personal communication, Ben Savill points out that Pseudo-Isidore could be ‘a symptom as well as a cause of papal authority. If papal decretals didn’t already carry a lot of weight, there wouldn’t have been much point . . . the fact that [the forgers] chose to risk going down the late-Antique decretal route at all seems to me striking in itself.’

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could see early papal jurisprudence in action and use it as a model for the false decretals forged and transmitted alongside it. As a secondary point, it should be added that this (genuine and forged) papal material was blended at collection level with papal contributions to Christological conflicts. This is in contrast with the Dionysiana, Concordia of Cresconius, and the Dacheriana, which are much more purely legal collections, in that they are about what is lawful or unlawful, and only indirectly about what is true or false. In terms of our earlier typology, Pseudo-Isidore is a ‘blended’ collection, between the inclusive type, such as the Hibernensis, and the legal type, of which the Dionysiana was the model. The genuine Dionysiana transmission is an identifiable current in the broader river of the Pseudo-Isidorian decretals. The current had flowed through the Hispana and thence, together with less ‘legal’ letters, into the Pseudo-Isidorian corpus. State of Research on Pseudo-Isidore Our understanding of Pseudo-Isidore has come a long way.51 Once the large volume of fabrication in the Pseudo-Isidorian corpus had been exposed,52 it was natural to see this as a tool of papal power. Subsequent research suggested that the collection originated in Francia and aimed to reduce the power of metropolitan bishops over the ordinary bishops of their province; the high papalism of Pseudo-Isidore was an accidental by-product, in that it helped bishops out-trump metropolitan authority by a still higher authority. That broad interpretation was retained by what became the standard study of Pseudo-Isidore by Horst Fuhrmann.53 Fuhrmann’s three-volume opus magnum demolished the theory that papal monarchy was based on Pseudo-Isidore. He argued that despite its wide diffusion it did not exercise much influence on 51

52 53

A good recent summary in C. Harder, Pseudo-Isidor und das Papsttum: Funktion und Bedeutung des apostolischen Stuhls in den pseudo-Isidorischen Fälschungen. Papsttum im mittelalterlichen Europa ii (Cologne, 2014), 14–15, and see now the scholarship surveyed in E. Knibbs, ‘Ebo of Reims, Pseudo-Isidore and the Date of the False Decretals’, Speculum 92 (2017), 144–83. Knibbs gives an admirable survey of the history of scholarship on Pseudo-Isidore, as well mounting, brilliantly, an argument of his own. For Knibbs (who is editing Pseudo-Isidore) the corpus of forgeries was the work of years and not of one hand, Paschasius Radbertus was not part of the team, and much of the corpus was produced later than Zechiel-Eckes thought. Knibbs discerns ‘unmistakeable attempts to influence affairs in the Reims province in the years between 845 and 851’ and ‘peace for Ebbo at Hildesheim and vexation for Hincmar at Reims’ as objectives of the forgers at a key stage in the process’ (181). From the sixteenth century on: see ODCC, s.v. ‘False Decretals’. H. Fuhrmann, Einfluß und Verbreitung des pseudoisidorischen Fälschungen: von ihrem Auftauchen bis in die neuere Zeit, 3 vols. Monumenta Germaniae Historica, Schriften 24 (Stuttgart, 1972–4).

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thinking about the papacy until the papal reform movement was under way and made use of it: so, its impact was a result rather than a cause of the rise of papal power. In a later English summary, Fuhrmann formulated this finding as ‘Many Manuscripts, Little Effect’.54 Pseudo-Isidore, Corbie, and the Dionysiana Tradition The copy of the Dionysio-Hadriana at the abbey of Corbie may be causally linked with Pseudo-Isidore. This follows from the astonishing ‘smoking gun’ demonstration by Klaus Zechiel-Eckes that ‘Pseudo-Isidore’ had used manuscripts from the Corbie. Whether or not that meant that the forging was done by a Corbie team led by Paschasius Radbertus, as argued by Zechiel-Eckes, but rejected by Eric Knibbs, Corbie is surely closely connected to Pseudo-Isidore; Zechiel-Eckes’s argument that this was propaganda against the emperor’s punishment of rebels, including bishops, with whom Paschasius Radbertus had been involved, has been much debated since, though this is less relevant to the current investigation.55 54

55

H. Fuhrmann in D. Jasper and H. Fuhrmann, Papal Letters in the Early Middle Ages (Washington, DC, 2001), at 184. An apparent throwback to the pre-Fuhrmann era is P. Heather, The Restoration of Rome: Barbarian Popes and Imperial Pretenders (London, 2013), 353–60, and, especially, 378. The genre in which Heather is writing, in his inimitably stimulating manner, makes it hard to tell how much of the recent PseudoIsidore scholarship he has taken into account. He refers to Fuhrmann’s English summary but doesn’t engage with the ‘Little Effect’. A big influence on Heather is clearly J. Fried’s ‘Donation of Constantine’ and ‘Constitutum Constantini’: the Misinterpretation of a Fiction and Its Original Meaning (Berlin, 2007), and Heather treats the ‘Donation’ as if it were part of the Pseudo-Isidorian complex (356), which seems mistaken to me, if only because the Latin of the Donation is too bad for a ninth-century Corbie provenance (this becomes clear when one tries to translate it and the syntax doesn’t work). For powerful arguments against Fried, and for a Roman origin c. 760–800, see C. Goodson and J. Nelson, ‘Review Article. The Roman Contexts of the Donation of Constantine’, Early Medieval Europe 18 (2020), 446–67, with clear conclusion on 467. For an attractive explanation see N. Huyghebaert, ‘Une légende de fondation: le Constitutum Constantini’, Le Moyen Age 85 (1979), 177–209. For the absence of impact of the Donation before the eleventh century see Harder, Pseudo-Isidor, 82 note 263. K. Zechiel-Eckes, Fälschung als Mittel politischer Auseinandersetzung: Ludwig der Fromme (814–840) und die Genese der pseudoisidorischen Dekretalen. Nordrhein-Westfälische Akademie der Wissenschaften und der Künste. Geisteswissenschaften. Vorträge G 428 (Paderborn, 2011) (10–13 for the manuscript breakthrough). Abigail Firey thinks the localization is too definite, invoking instead ‘the bibliographic needs of extensive networks of participants in ecclesiastical government’ which ‘greatly complicates the meaning of provenance’, ‘Canon Law Studies at Corbie’, in K. Ubl and D. Ziemann, eds., Fälschung als Mittel der Politik: Pseudoisidor im Licht der neuen Forschung. Gedenkschrift für Klaus Zechiel-Eckes. Monument Germaniae Historica Studien und Texte 57 (Wiesbaden, 2015), 19–79, at 54. Other contributions to this volume complicate the picture presented by Zechiel-Eckes: e.g. for a similar explanation applied to an earlier date see S. Patzold, ‘Überlegungen zum Anlass für die Fälschung früher Papstbriefe im Kloster Corbie’, in Ubl and Ziemann, eds., Fälschung, 153–72, at 166–70. Elsewhere Patzold argues that forgers at Corbie worked and reworked the corpus over almost a generation: Gefälschtes

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One particular contribution to the debate suggests that PseudoIsidore is propaganda for, but not by the papacy: from Corbie rather than from Rome. This is proposed by Zechiel-Eckes’s pupil Clara Harder, whose conclusions can be combined with an interpretation of forgery advanced by Mayke de Jong. Harder argued that the forger of the false decretals56 was personally a strong advocate of papal authority and used the forgeries to propagate that position. (She too thinks that Paschasius Radbertus was behind the false decretals and deploys some powerful arguments, but Eric Knibbs’s work has called the thesis into question, and for our particular purposes the debate need not matter too much, though it does matter that the forger had access to the Corbie library, as will become clear.) They were meant to project into the past his ideal of the Church. In Mayke de Jong’s view, such projections should not be understood as forgery in the modern sense: she criticizes ‘a conflation between modern conceptions of forgery and early medieval notions of inventio/discovery’;57 ‘borrowed authorial identities had nothing to do with what is now understood as forgery: they were a way of adding to one’s own authority and honouring one’s patristic models as well as one’s audience, who were of course fully aware of this elegant ruse’.58 Taking De Jong and Harder’s ideas together, one could see the forged decretals as a kind of ecclesiology presenting through a fusion of real history and fictional devices the norms which the Church should aspire to instantiate. In this ecclesiology, for Harder, the bolstering of papal authority was not just a means to enhance episcopal authority (against metropolitans and monarchy). The forger goes a lot further than would be necessary if that were the sole end; in fact they exalt papal authority at the expense of

56

57 58

Recht aus dem Frühmittelalter: Untersuchungen zur Herstellung und Überlieferung der pseudoisidorischen Dekretalen. Schriften der philosophisch-historischen Klasse der Heidelberger Akademie der Wissenschaften 55 (Heidelberg, 2015), 68. For a resumé of the varied proposals for dating, see M. de Jong, Epitaph for an Era: Politics and Rhetoric in the Carolingian World (Cambridge, 2019), 200–2; for her doubts about Paschasius Radbertus’s role as proposed by Zechiel-Eckes, 202–3 with further references. She links the forged decretals with the ‘Chalcedonian extracts’, which can be added to the Pseudo-Isidorian corpus thanks to Zechiel-Eckes’s research; she does not think Paschasius Radbertus was behind the whole corpus. Cf. De Jong, Epitaph, 201. De Jong, Epitaph, 203. Julia Smith also influenced my thinking on this point. De Jong, Epitaph, 204. Harder would not go so far. While she rejects personal advantage as a motive for the forgeries she attributes to Paschasius Radbertus, she does think of them as deception, to get the legal system back on track in the case of the PseudoIsidorian forgeries (Harder, Pseudoisidor, 83), and to advance a truth about the Virgin Mary in the case of forgery intended to be read to nuns (ibid., 90). Note though her comment, coming closer to Mayke de Jong’s point of view, that ‘The content of his text seems to have been more important to the monk than a truthful attribution’ (‘Der Inhalt . . . zum Verfasser’) (ibid., 90).

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bishops and synods.59 To bring out the centrality of the papacy, the forger moved passages from genuine papal documents into forged decretals but doctored them in subtle ways to send a still stronger message,60 and he put language used in a Western context into letters to Eastern bishops.61 On this view, the decretals were put together by a Frankish cleric who wanted to highlight the pope’s centrality in the Church, not just to use the papacy as a stick with which to beat metropolitan bishops. Then one can trace the chain of causation back further in time. Even supposing for the sake of argument that the wider Frankish environment of Paschasius Radbertus (and of the forger of the decretals, if different from Paschasius) was relatively indifferent to papal authority, as Harder proposes, this was a relatively recent state of affairs. ‘Pseudo-Isidore’ (almost certainly a team, perhaps changing leaders and viewpoints over time) was working the generation or two after Charlemagne, who had moved towards a Caesaro-papist model on Byzantine lines. That tended to relativize papal authority. One does not need to look back much further, however, to find a different picture. Much of the Eastern half of Germany was WynfrithBoniface’s field of pastoral operations. He was an Englishman working closely with the papacy, so the papal profile in some parts of Francia would not have been low. That chapter of Church history was not so distant as to have been forgotten. Boniface had obtained the honour of the pallium for a man who was almost certainly Abbot Grimo of Paschasius Radbertus’s monastery of Corbie as well as the bishop of Rouen (the see was being raised to metropolitan status).62 It was almost certainly at Corbie, in the eighth century, that there was a transfusion of papal law into the Vetus Gallica canon law collection.63 The Corbie library contained as least two eighth-century manuscripts of the Dionysiana (in the updated form usually called the Collectio Dionysio-Hadriana)64 which would have caught the attention of anyone drawn to canon law. In short, if Paschasius Radbertus or anyone else using the library at Corbie got interested in early papal law, that should not surprise us. Thus Zechiel-Eckes’s and Harder’s research is quite relevant to the conversation strand started by Siricius, Innocent I, and 59

60 62 63 64

C. Harder, ‘Der Papst als Mittel zum Zweck? Zur Bedeutung des rörischen Bischofs bei Pseudoisidor’, in Ubl and Ziemann, eds., Fälschung, 173–86, at 176; Pseudoisidor, 176 (sic). Harder, Pseudoisidor, 121–2. 61 Ibid., 111. Mordek, Kirchenrecht und Reform, i, 93–4. Ibid., i, 90–3 – classy research by Mordek. For the papal law added, ibid., 86. Firey, ‘Canon Law Studies at Corbie’, 27 and 28. She describes the version as the ‘Dionysio-Hadriana’.

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the fifth-century popes. They are a fountainhead of Pseudo-Isidore, through the Dionysiana tradition, and the Corbie library. Pseudo-Isidore as a Conduit for the First Papal Jurisprudence It cannot be emphasized enough that the collection called ‘PseudoIsidore’ for convenience contains not only false decretals but also the genuine decretal legacy of late Antiquity and after. That PseudoIsidore was a point of diffusion for real late Antique papal decretals is one of those facts that everyone ‘knows’ but too few think about much. It is striking that all the papal rulings edited and/or translated in PJc.400 were transmitted by Pseudo-Isidore, with its huge manuscript diffusion. Textual State of First Papal Decretals as Transmitted by Pseudo-Isidore Moreover, the late Antique decretals transmitted by Pseudo-Isidore are relatively unadulterated by interpolation. The overwhelming majority of the variants one finds in Pseudo-Isidore from the texts as edited in PJc.400 are of the minor textual sort:65 probably often more or less – perhaps usually less – successful attempts to emend the text. Even substantive changes do not serve an obvious agenda except in a tiny handful of cases. The rebarbative minutiae that follow are merely to illustrate the relative triviality of the changes: in Innocent I’s letter to Victricius, bishop of Rouen, Pseudo-Isidore adds to the phrase ‘Roman Church’ the clause ‘to which reverence is due in all cases’.66 However the phrase is also in the 65

66

A random example to give the flavour: PJc.400, 76: De laicis vero religio tua consuluit quod canones ordinare prohibeant: quod] quos Pseudo-Isidore; prohibeant] prohibeat PseudoIsidore. In PJc.400, I did not systematically collate the variants of Pseudo-Isidore for PJc.400, though I subsequently made a rapid comparison between the texts edited/translated there and PL 130, revealing many not particularly significant variants. For my reasons for working mainly from this text rather than the standard but very flawed ‘critical’ edition by P. Hinschius, Decretales Pseudo-Isidorianae et Capitula Angilrami (Leipzig, 1863), or the electronic edition by K.-G. Schon, on the website of the Monumenta Germaniae Historica – www.pseudoisidor.mgh.de (accessed 18 September 2021) – see PJc.400, 5 at note 13; cf. for Hinschius, Fuhrmann, Einfluß und Verbreitung, i, 174. A critical edition is being prepared by Eric Knibbs. For the few passages that seem to represent pro-papal changes, discussed below, I have checked Hinschius and Schon for safety’s sake. PJc.400, 105, J3.665=286, inc. Etsi tibi: sine praeiudicio tamen romanae ecclesiae: ecclesiae] ecclesiae, cui in omnibus causis debetur reverentia custodiri Pseudo-Isidore (PL 130, checked against Hinschius and Schon, which has reverentiam for reverentia]. Note that the extra words are added between the lines in the Quesnelliana manuscript Arras Bibliothèque municipale 572 (644).

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(genuine) Hispana,67 so unless a critical edition of Hispana or PseudoIsidore reveals otherwise this is not an addition by the latter. In the same letter the pure Dionysiana and the Quesnelliana say that ‘greater cases’ may go to the apostolic see after an episcopal judgment – so on appeal, ‘as the synod laid down’68 (the synod was thought to be Nicaea, though really the canon must come from the Council of Serdica). There are significant variants in both the less than perfect printed editions of Pseudo-Isidore. In one (Hinschius), for ‘as the synod laid down’ is substituted ‘as old custom lays down’.69 The PL edition on the other hand keeps the reference to the Council of Nicaea, but adds ‘as holy custom demands’.70 In Innocent’s letter to Rufus et al. the words ‘should know that we and all the Churches of East and West’ are changed to ‘we who rule all the Churches throughout the East and West’; however, this reading is in the PL edition but not in the Hinschius edition.71 Similarly, in the same letter a small omission in the PL 130 edition alters the meaning from Innocent’s changing the judgment of his predecessors to his changing the judgment of past authorities more generally.72 A small variant in the letter to the bishops of the Council of Mileve changes ‘which you sent from the Council of Mileve’ to ‘which by our authority you sent from the Council of Mileve’.73 The upshot of these tiresome details is that Pseudo-Isidore was a relatively honest transmitter and amplifier of the papal rulings at the centre of this study. Eric Knibbs’s edition, which is in progress, will give a more complete picture, almost certainly revealing significant variants that I have missed. Nonetheless, overall, it seems safe to conclude that manipulation of the text to promote papal authority by ‘Pseudo-Isidore’ is almost trivial where the corpus of texts studied in PJc.400 is concerned.

67 69 70 71

72 73

PL 84, col. 645. 68 PJc.400, 105. ‘sicut vetus consuetudo exigit’, Hinschius, 530. ‘et beata consuetudo exigit’, PL 130, col. 699; Schon’s online addition has the same reading. PJc.400, 163, J3.691=303, Innocent I to Rufus et al., inc. Magna me,: Nos autem, omnesque per orientem occidentemque ecclesias, noverit: Nos autem omnes qui per Orientem Occidentemque Ecclesias regimus, noverit PL 130, col. 716. The Schon online edition agrees with Hinschius in omitting regimus. PJc.400, 213: maiorum meorum revolvam sententias: meorum] om. PL 130, col. 619, and Schon. Hinschius retains meorum in his text. This is in the PL edition (and in Schon’s online edition, though not in Hinschius): PJc.400, 235, J3.709=322, inc. ‘Inter ceteras ecclesiae’: quas ex Milevitano concilio . . . misistis: concilio] nostra auctoritate concilio PL130, col. 730, Schon. Actually the reading seems almost meaningless: though the letters are being carried by the popes representative, they are letters from the council, so in what sense is he carrying them by the pope’s authority?

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Impact and Diffusion It is possible that Pseudo-Isidore (and so the genuine early papal jurisprudence within it) was more influential earlier than Fuhrmann argued. Though careful wording minimizes the difference, Harder is diverging as noted above from Fuhrmann’s ‘Little Effect’ thesis. True, as Fuhrmann pointed out, popes did not make a lot of Pseudo-Isidore in the ninth century. North of the Alps, however, there was change of wind around the mid-ninth century. It began to blow in a pro-papal direction.74 Harder is prepared to speak of a ‘pseudo-Isidorian turn’.75 As Harder herself admitted, we cannot know how far the forgeries were responsible for the change.76 However that may be, the sheer number of manuscripts of PseudoIsidore would in all probability have put early papal jurisprudence before more eyes than in any previous century. A recent list of surviving manuscripts gave a total of 108, not counting excerpts. If we factor in the huge loss rates of medieval manuscripts,77 a loss rate that one may reasonably suppose to increase the earlier the manuscripts were produced, it was like a loudspeaker for genuine early papal law. That it transmitted genuine law matters if the causal chain matters. This causal chain goes back to the fourth century. As a transmitter of genuine late Antique papal law, Pseudo-Isidore is far more important than Burchard of Worms.78 We need to think of this as a fact about the tenth as well as the ninth century. Ninth-century manuscripts were still at hand in the tenth century, during which new copies were made. If we take surviving manuscripts from both centuries together and add in manuscripts dated to the ninth to tenth century, nearly thirty manuscripts have been identified, not counting excepts,79 an impressive total given the loss rate. Pseudo-Isidore as a ‘Blended’ Collection If the prominence of papal material, genuine as well as forged, marks Pseudo-Isidore out from Burchard and the Hibernensis and Vetus 74 75 76

77

78 79

Harder, ‘Der Papst’, 185–6; Pseudoisidor, 220–6. ‘Eine pseudorisidorische Wende’. Harder, Pseudoisidor, 220. ‘Es kann nicht mehr ermittelt werden, ob es die Fälschungen selbst waren, die diese Veränderung auslösten’ (ibid., 226), but she is willing to say that ‘Es hat aber durchaus einen durch Pseudoisidor befördeten Wandel gegeben’. ‘Der Papst’, 186. For the loss rate of medieval manuscripts, see D. L. d’Avray, Medieval Marriage: Symbolism and Society (Oxford, 2005), 40–53. I feel that these findings have been missed by book historians who do not think to find anything relevant to them in a study of medieval marriage! Inspection of the ‘Reception’ sections in PJc.400 makes this abundantly clear. Kéry, Canonical Collections, 100–5.

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Gallica before it, another feature, to which we have already alluded, marks it off from the Dionysiana. In Pseudo-Isidore, by contrast to the Dionysiana, there is a generous admixture of argument about the Trinity and the nature of Christ (and religious topics generally).80 It is a blended collection – a blend of what would later be called theology and the mostly unalloyed law that one finds in the Dionysiana. This applies both to genuine and to forged decretals in Pseudo-Isidore – both are ‘blended’. The Pseudo-Isidorian collection of decretals contains a series of genuine letters from Leo I about the nature or natures of Christ; a lot of the material consists of ecclesiastical manoeuvring to get support for what Leo I saw as the truth, but there is notably solid doctrinal content and argument in J3.934=423, J3.936=425, J3.967=447, and J3.1035=500. It is unlikely that the compiler of Pseudo-Isidore thought very hard about whether to include this theological material. He seems to have been happy to be comprehensive. If one looks at the history of the collection from the reception end, however, this meant that in this chain of transmission a blended form of late Antique law, one with an admixture of themes that would later be the business of Theology faculties, in the tradition of the Quesnelliana and the Vetus Gallica, was being passed on from Carolingian Francia to subsequent generations. The similar elements blended into the forged decretals also deserve attention. The legitimate preoccupation of historians with the motivation behind the fabrication – to clip the wings of metropolitans or stop the king sacking bishops, etc. – may have distracted the attention of some of them from the theology in the collection.81 If the collection is conceived, à la Harder, as an idealized presentation of the Church under papal leadership, the discussion of the Godhead and nature of Christ in the forgeries makes sense as illustrating papal teaching authority. Historians should pay attention to the long passages about God and Christ in decretals assigned to popes Sother,82 Felix I,83 Euticianus,84 Gaius,85 and Julius.86 80 81

82 83 84 85 86

So far as I know, nobody has systematically investigated whether Paschasius’s personal theological views (especially on the Eucharist) appear in the forged decretals. See however P. Wehrlich, ‘Paschasius Radbertus, Theologe, Mönch – und Fälscher? Einige Hinweise zur Pseudoisidorthese’, Deutsches Archiv 72 (2016), 33–70, at 45–6, with further references. PL 130, cols. 117–18 (inc. ‘Gaudere vos oportet’). Ibid., cols. 195–200 (inc. ‘Suscipientes’). Ibid., cols. 199–204 (inc. ‘Hortatur nos aequitas postulationis’). Ibid., cols. 207–12 (inc. ‘Directas ad nos’). Ibid., cols. 615–17 (supposedly a Roman synod; inc. ‘In nomine Domini Dei et Salvatoris nostri’).

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Pseudo-Isidore’s Significance in the Reception of the First Papal Jurisprudence Nobody needs persuading of the importance of Pseudo-Isidore, but two aspects need to be stressed: firstly, Pseudo-Isidore was a medium for the large-scale diffusion of all the early jurisprudence edited and or translated in PJc.400. Secondly, that jurisprudence, which anticipated the differentiated canon law system of medieval universities and the wave of decretals from the mid-twelfth century, travelled in Pseudo-Isidore together with a good deal of Trinitarian and especially Christological material, relativizing and reducing the early genuine material’s potential to keep alive the expectation of canon law as a system distinct from other forms of religious writing. After the Carolingians In its weird way, Pseudo-Isidore is one of the most impressive products of the Carolingian world. After Charlemagne’s death his son Louis the Pious inherited. At his death the empire split up and the shape of modern Europe becomes visible, with an area roughly corresponding to modern France, another to Germany, a middle kingdom in the areas over which Germany and France have fought in recent times, and a northern Italian kingdom. Internal instability, together with Viking invasions of western Francia and Magyar invasions of Germany, left Europe looking a lot different from in Charlemagne’s heyday. Worth noting, though, is Charles West’s argument that ‘the Carolingian reforms worked to formalise social interaction across the entire social spectrum, and . . . the new social formations apparent from the later eleventh century, can be seen as in part the long-term consequence of this process’.87 The Magyars’ decisive defeat at the hands of Otto I created a new stable monarchy in Germany. This extended to Northern Italy and, when the king could get crowned by the pope, carried with it the title of Roman Emperor. Germany enjoyed a political and cultural revival in the tenth and eleventh centuries. In Rome itself, an unedifying period that has even been called ‘the Pornocracy’ stretches from the late ninth into the second half of the tenth century. Getting away from the point of view of papal historians, Chris Wickham has reconstructed the pope’s role as bishop of his diocese and secular ruler of the city and most of what is now Lazio.88 Seen from 87 88

C. West, Reframing the Feudal Revolution: Political and Social Transformation between Marne and Moselle, c. 800–c. 1100 (Cambridge, 2013), 8. C. Wickham, Medieval Rome: Stability and Crisis of a City, 900–1150 (Oxford, 2015), 15.

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this point of view, he can ‘downplay the crisis years around 900 as a break’.89 Culturally, however, it does not look as though much was going on in Rome before the papal turn of the mid-eleventh century: the intellectual action was North of the Alps, notably in the field of canon law. The Decretum of Burchard of Worms The strong monarchy in Germany was the context for the phenomenally successful canon law collection of Burchard of Worms.90 This collection belongs to the third of the categories analysed in the last chapter, the ‘inclusive’ one. On the one hand, papal decretals are quantitatively relativized – they are a smaller proportion of the whole. On the other, the range of sources and genres included goes far beyond popes and councils. There is a positive explosion of patristic material in Burchard. The scholarly alphabetical list of his sources compiled by Hartmut Hoffmann and Rudolf Pokorny includes the following among others, and in addition to conciliar and papal rulings: Ambrose, Augustine, Aurelianus of Arles (rule for monks), Basil the Great, Bede, Benedict of Nursia, the Bible (though the number of entries is small by comparison with the Hibernensis), Boethius, the Breviary of Alaric, Caesarius of Arles, Cyprian of Carthage, Fructuosus of Braga (monastic rule), Gennadius of Marseilles, Gregory the Great (Dialogues and Moralia as well as the register of letters), Halitgar of Cambrai, Hrabanus Maurus, Isidore of Seville, Jerome, John Cassian, John Chrysostom, Julian of Toledo, Pachomius, a whole series of penitentials, Ratramn of Corbie, Rufinus of Aquileia, and Walafrid Strabo.91 This is inclusivity! By contrast, in Burchard the early papal jurisprudence whose afterlife is under examination here is not particularly prominent. True, it is not 89 90

91

Ibid., 34. For date of production, a list of manuscripts, and bibliography, see Kéry, Canonical Collections, 133–55, and above all H. Hoffmann and R. Pokorny, Das Dekret des Bischofs Burchard von Worms: Textstufen – Frühe Verbreitung – Vorlagen. Monumenta Germaniae Historica Hilfsmittel 12 (Munich, 1991). A project based at the University of Erlangen-Nürnberg to study Burchard’s Decretum was awarded 6 million Euros (for six years from 2020) – an index of his importance. See www.fau.eu /2020/01/14/news/research/medieval-canon-law-under-the-digital-microscope/ (accessed 18 September 2021). Old but still useful is the detailed analysis in P. Fournier and G. Le Bras, Histoire des collections canoniques en Occident depuis les Fausses Décretales jusqu’au Décret de Gratien, 2 vols. (Paris, 1931, 1932), i, 364–421. Hoffmann and Pokorny, Das Dekret, 245–74. Cf. Fournier and Le Bras, Histoire, i, 376– 7, and the comment on 370 that ‘Ce qu’il importe encore de faire remarquer, c’est l’importance accordée dans le Décret de Burchard aux séries de textes théologiques. Le livre XX contient des textes dogmatiques sure les fins dernières . . .’

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ignored. Siricius (J3.605=255) turns up in 8 canons,92 Innocent I (J3.665=286; J3.675=293, J3.691=303, J3.701=311, J3.722=314) in 16,93 Boniface I (J3.783=349) in one,94 and Celestine I (J3.821=369, J3.823=371, J3.845=381 & 875) in 13.95 Even Leo gets only a little more than a column of entries96 and Gelasius about half a column.97 This is not negligible but it is a relatively poor showing in relative terms, given the size of the work and the range of authorities. The ‘Reception’ sections at the end of every canon-shaped entry in PJc.400 send the same message. More often than not, the passage was ‘not found’ in the Burchard. A reference in Burchard was noted 27 times in PJc.400, whereas ‘not found in Burchard’ was recorded 70 times.98 This is in sharp contrast with, above all, Pseudo-Isidore, which transmits all the content edited in PJc.400. Conclusion: Three Systems To recapitulate: the three systems identified at the end of the previous chapter are all represented in the Carolingian and post-Carolingian period. The ‘inclusive’ system was continued into the Carolingian period by the manuscript transmissions of the Vetus Gallica and the Hibernensis and renewed in the post-Carolingian period on a quantitatively impressive scale by the Decretum of Burchard. This left out a lot of the early papal jurisprudence studied in PJc.400. Secondly, produced well over a century before Burchard’s Decretum and surviving in a multitude of manuscripts, there was the PseudoIsidorian corpus. By contrast with the Hibernensis and Burchard’s Decretum, this reinforced the idea of canon law as a combination of conciliar canons and papal decretals, with boundaries closed against other genres of religious writings. It included all the papal material studied in PJc.400. Pseudo-Isidore, like the Hispana from which it took genuine decretals, was however also inclusive of material that would in a later period belong to the province of theology rather than canon law faculties: interventions in controversy about the Trinity and the nature or natures of Christ. More or less exclusive of such material, thirdly, were the Dacheriana, which included a non-trivial proportion of early papal jurisprudence, and the Dionysio-Hadriana, which was full of it. Charlemagne’s Admonitio generalis may be classified with them. It only includes a modest amount 92 95 98

Hoffmann and Pokorny, Das Dekret, 272. 93 Ibid., 257. 94 Ibid., 248. Ibid., 250. 96 Ibid., 268. 97 Ibid., 252–3. These figures are based on electronic ‘Find’ searches in the PDF file of the final proof of PJc.400.

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of early papal jurisprudence, but this is attributed explicitly to the popes in question, and marked off, together with the conciliar canons, from the rest of his reform programme. It remains to be seen how these three systems fared in the following period of papal reform and then of classical canon law. In the end, unblended canon law, law more or less unmixed with hard-core theology, won out. How and why must be explained, after a detour through the eleventh-century ‘papal turn’.99

99

Cf. R. Schieffer, ‘Die Reichweite päpstlicher Entscheidungen nach der papstgeschichtlicher Wende’, in K. Herbers, L. Alsina, and F. Engel, Das begrenzte Papsttum: Spielraüme päpstlichen Handels. Legaten – delegierte Richter – Grenzen (Berlin, 2013), 13–27. ‘Turn’ is more value-free than ‘reform’ and less dramatic than ‘revolution’.

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Background This period takes us to the cusp of the second decretal age, or just into it. It starts with what historians have variously called the ‘Gregorian Reform’, the ‘Investiture Contest’, or the ‘papal turn’. All of these names are problematic: the first because Gregory VII, Hildebrand, was not a lone leader, the second because the contest was about much more than ‘investiture’ of a bishop’s or abbot’s symbols of office, and the third because it implicitly tends to play down the papal role in periods before the immediately preceding one. Anyone can agree, however, that it involved a more combative relation between papacy and secular rulers than had been common since the periods of tension with Byzantine emperors, and that it led into the second decretal age. How it did so may be clearer if we strip away the detailed narrative to make the causal chain more evident, though the price is some oversimplification. One key cause of the upheaval (I will argue) was the mismatch between the late Antique canon law’s exaltation of the priesthood, which eleventh-century churchmen had before their eyes in canon law collections, on the one hand, and, on the other, the actual situation – though the social reasons for the discrepancy were not really understood. As with Islamic law and twentieth-century Westernization, a reaction was on the cards, and in fact ‘injunctions in favour of an unmarried (celibate) clergy, or at least a sexually inactive and continent one, were a constant of church councils from the early tenth’ century.1 Only decisive leaders were needed for an explosion, and these appeared at the helm of the papacy in the middle of the eleventh century: most notably Leo IX, Peter Damian, Cardinal Humbert, and Hildebrand – Gregory VII. An offensive against sexually active clerics in major orders and against purchase of bishoprics evolved into combat with the emperor and kings about lay control of appointments, as symbolized 1

S. Hamilton, Church and People in the Medieval West (Edinburgh, 2013), 64. Note also her reference, ibid., to ‘a long canonical tradition going back to the fourth and fifth centuries’.

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by investiture.2 Internal German politics helped the papal side, and the success of the first crusade, launched by Pope Urban II, raised the papal profile. The conflict was ended by a brilliant reconceptualization of inauguration symbolism to represent a distinction between royal granting of lands and secular authorities, and ecclesiastical conferral of spiritual authority. By this time, the papacy was so prominent that appeals and other business began to flow in its direction, eliciting responses – rescripts. This was part of a trend affecting secular authorities: the twelfth century was a litigious age. Weaker parties realized as they have ever since that they could beat stronger parties by taking them to court, and perhaps all parties welcomed the possibility of rational solutions to complex problems. Purveyors of rational solutions were academically trained lawyers. University training of lawyers had not quite yet begun (because universities had not quite begun), but the shape of things to come is unmistakeable in the Decretum – the ‘Concordance of Discordant Canons’, of Gratian, whoever he was. Even if he was two people (as is possible, since most scholars now think there was more than one authorial version of his work), one thing is not up for debate: the stories that preface the presentation of problems in the second part of the Decretum. Any good university teacher must recognize in narratives the work of an inspired member of the guild that did not quite yet exist. Gratian made up stories that illustrated not one legal point but a whole series of them, and then analysed the disputed points and ‘discordant canons’ in a series of questions, in a way closely analogous to the scholastic method being worked out by scholastic theologians in the same period. To this writer, it seems obvious that the Gratian method was the product of classroom practice, even if the teacher and the students remain in the shadows. In the next generation, academically trained canon lawyers are out in the open, teaching from and writing glosses on Gratian’s great textbook, and absorbing the case law of the new decretals that were pouring out from the papacy. 2

The bibliography is endless. Particularly thought-provoking are H. Keller, ‘Die Investitur: ein Beitrag zum Problem der “Staatssymbolik” im Hochmittelalter’, Frühmittelalterliche Studien 27 (1993), 51–86, and C. West, Reframing the Feudal Revolution: Political and Social Transformation between Marne and Moselle, c. 800–c. 1100 (Cambridge, 2013), 213– 21. There are many high-quality short textbooks: U. R. Blumenthal, The Investiture Controversy: Church and Monarchy from the Ninth to the Twelfth Century (Philadelphia, 1988); J. Laudage, Gregorianische Reform und Investiturstreit (Darmstadt, 1993); W. Goez, Kirchenreform und Investiturstreit, 910–1122 (Stuttgart, 2000); M. C. Miller, Power and the Holy in the Age of the Investiture Conflict: a Brief History with Documents (Boston, 2005); J. Laudage and M. Schrör, Der Investiturstreit: Quellen und Materialien (Lateinisch–Deutsch) (Cologne, 2006); W. Hartmann, Der Investiturstreit (Munich, 2007); R. Schieffer, Papst Gregor VII (Munich, 2010); and J. Johrendt, Investiturstreit (Darmstadt, 2018).

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New Sources By the end of the period covered by this chapter, then, canon law was on the verge of being professionalized. A century earlier, at the start of the papal revolution, the field was dominated by amateurs looking for legal weapons with which to fight for reform. In consequence, a key aspect of the Gregorian Reform was the search for and discovery of new sources, including letters from the papal archives. This has been relatively well studied.3 The reformers’ zeal in seeking out new papal texts was surely fuelled by the paradigm provided by ancient papal law. The ancient law showed the apostolic see speaking the language of authority in a distant era. It was relevant also in more indirect ways. Relevance of Late Antique Canon Law in the Eleventh Century? The first argument of this chapter is that the widening gap between late Antique papal law and social practice was a provocation to soi-disant reformers4 and a cause of the ‘papal turn’ of the eleventh century. The gap was created not so much by ‘corruption’ or indeed by those usual suspects, ‘towns and trade’. Paradoxically, it was in a sense not the ‘rise of the towns’ but the ruralization of pastoral structures that led to the contrasts with early papal jurisprudence. To explain what may seem a paradoxical claim: this will not be to deny the concomitant importance of the expanding money economy, which went with the growth of towns and a merchant class. It was an insight of Alexander Murray, briefly discussed in Chapter 1, that the new prominence of monetary transactions in the economy led to corresponding increase in the use of money to acquire church office: simony. The blatant culture of monetary purchase in turn provoked the ire of the highminded.5 But big historical changes tend to be overdetermined. The entirely compatible argument to be developed below is that the spread 3

4

5

E.g.: P. Fournier and G. Le Bras, Histoire des collections canoniques en Occident depuis les Fausses Décretales jusqu’au Décret de Gratien, 2 vols. (Paris, 1931, 1932), ii, 7–11; K. Cushing, Papacy and Law in the Gregorian Revolution: the Canonistic Work of Anselm of Lucca (Oxford, 1998), 71, 87–8, 98; for Pelagius I: C. Rolker, ‘Die Briefe Papst Pelagius I: Handschriften, Editionen und Regesten. Kritische Notiz zur dritten Auflage der Regesta Pontificum’, Deutsches Archiv für Erforschung des Mittelalters 75 (2019), 415–47, at 417– 22, 447. As with the Islamic revival of the twentieth century, whether one regards the reforms as ‘a good thing’ depends on the point of view, but those who led the movement certainly thought so. Here ‘reform’ is an emic concept – what was in the minds of the people studied. A. Murray, Reason and Society in the Middle Ages (Oxford, 1978), 63–7.

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of a parish system of single rural churches, served by one priest, was much less conducive to the observance of the ancient canon law, and especially to the ancient canon law of priestly celibacy within marriage, than the clerical communities of late Antiquity (and perhaps even the ‘teamministries’ of the intervening period) had been. The rural parish system in which every village had its small church and priest was firming up in the period before, and during, the eleventh-century religious revolution.6 As the previous chapter argued, early papal jurisprudence was much copied in the Carolingian era and afterwards, and probably became better known than ever before – but how relevant was it ‘on the ground’? A full answer is impossible but some indication of at least what was thought to be most relevant is provided by the Admonitio generalis and by Burchard, precisely because both used early papal decretals selectively. We saw in the previous chapter that the Admonitio picked papal rulings about marriage, about the obligations of male and female religious to remain faithful to what they promised, on details of the liturgy of the Mass, against usury and the involvement of religious in secular business, on the ordination of serfs (for by this time servus would probably have been so understood, rather than simply as ‘slave’), on the removal of priests who break Church law, and (quirkily) on bishops veiling widows.7 Most of this would have a meaning even in the Carolingian world, different though that was from late Antiquity. The same may be said of the late Antique papal rulings picked up by Burchard’s Decretum.8 He is interested in ritual (baptism at Easter or Pentecost, 56; baptism and anointing, 60); preventing hasty promotions towards episcopal office – the principle of graduality (91); popular deference to official teaching (95); the crimes and procedures against a bad if long-dead bishop, Maximus (124); the clergy and people’s agreement to the ordination of a bishop (130); clerical celibacy (144, 148; as will be discussed below, the meaning of this is likely to have changed since late Antiquity); voluntary mutilation as a bar to a clerical career (75); that hardy perennial, bigamia (168); marriage questions (174, 176); monks and virgins who have sex (185 – with modifications to the text); interestingly, grace and free will (261, 262, 263, 264, 267, 270, 274);9 and penance (65, 283, 286, 290). Though some of the regulations from the late Roman Empire still fitted tenth- and eleventh-century circumstances, others did not. Religious and secular society had been transformed in the intervening half-millennium, 6 7 8 9

Good discussion in C. Morris, The Papal Monarchy: the Western Church from 1050 to 1250 (Oxford, 1989), 294–5. See above, 153–4. Page references are to the Burchard references given in PJc.400: cf. ibid., 5–6. For Burchard’s interest in theology, see Fournier and Le Bras, Histoire, i, 370.

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and the mismatch between late Antique papal jurisprudence and the structures of the post-Carolingian world can help explain the campaign to get priests to live without wives or female partners, the attack on the purchase of episcopal office, and the effort to wrest ecclesiastical appointments away from lay rulers. Do we need this extra explanation of the eleventh-century reforms? Perhaps so: this revolution is less ‘over-explained’ than most big changes in history, such as the Industrial Revolution, the Protestant Reformation, or the Fall of the Roman Empire, for all of which there are all too many explanations on offer. In fact, over-explanation is an intellectually healthy state of affairs in that most transformations have multiple causes, a subset of which would have been enough to bring them about.10 Existing Explanations of the Papal Turn By contrast, the explanations offered by historians for the papal turn seem fragile in relation to the causal weight placed upon them, or, at least, to need some probing.11 The influence of Cluny and reformed monasticism tends to be invoked. We have seen that an analogous explanation is plausible for late Antiquity, when close-knit bodies of clerics in towns were made to look soft by monks arriving from the Eastern half of the empire, but in the eleventh century the life of a rural priest was so remote from that of a monk in a Cluniac house, the latter was not an obvious model for the former. The ‘folk theory’ that the papal turn enabled a clerical caste to seize political and economic power has its limitations too: are collective calculations for achieving group prosperity sufficient to explain suppression of the desire for legitimate offspring to inherit the property? The synod of Pavia in 1022 rejected clerical marriage precisely because it tended to siphon ecclesiastical property to children,12 but this – in its time probably ineffectual – ruling is also evidence for the counterforce of paternal love. A narrative explanation in terms of the influence of a passionate reforming group13 – Peter Damian, Deusdedit, Cardinal Humbert, and above 10

11 12 13

The paragraphs that follow borrow freely from D. L. d’Avray, ‘The Origins and Aftermath of the Eleventh Century Reform in the Light of Niklas Luhmann’s Systems Theory’, in F. Amerini and R. Saccenti, eds., ‘Vicarius Petri’, ‘Vicarius Christi’: la titolatura del Papa nell’ XI secolo. Dibattiti e prospettive (Pisa, 2017), 211–27. For a sane synthesis of existing explanations see B. Whalen, The Medieval Papacy (Basingstoke, 2014), 90–4. C. Mirbt, Quellen zur Geschichte des Papsttums und des römischen Katholizismus (Tübingen, 1934), no. 259, 134–5. For dissent from this by a historian whose interpretation seems convincing to me, and which will be discussed below, see J. Laudage, Priesterbild und Reformpapsttum im 11. Jahrhundert. Beihefte zum Archiv für Kulturgeschichte 22 (Cologne, 1984), 311.

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all Hildebrand14 – cannot be left out of any account of the revolution, but it does not explain the content of their programme, any more than does ‘a desire for a personal piety that did not begin and end in the execution of rituals, but sought to realise the ethical ideas at the basis of Christian teaching’.15 A similar desire animated the group at Oxford in the second quarter of the eighteenth century who founded Methodism, a very different form of fervour. A model in the minds of many historians inclined to look kindly on the medieval Church is of an oscillation between ‘abuses’ and ‘reform’: backsliding followed by renewal16 – but again this begs the question of why certain practices were categorized at the time as backsliding and how the content of ‘renewal’ was determined; the model assumes that ‘how things ought to be’ was unproblematic common knowledge. Simony Perhaps the rise of a money economy in the tenth and eleventh centuries meant that money was used more than before as a quid pro quo for ecclesiastical office. There was an epidemic of simony which provoked a reaction. This is Alexander Murray’s different and intriguing explanation, discussed in Chapter 1. But to move back a step: why was simony thought to be wrong? Even the most secular-minded historians seldom put that question. It will be remembered that the word comes from an incident in the New Testament Acts of the Apostles. Simon Magus is motivated to offer money by his amazement at the wonders performed by the apostle Philip and the power demonstrated by Peter and John in their handlaying ritual: he hopes to gain charismatic power. ‘There is quite a gap between this narrative and the routine acquisition of Church offices in the post-Carolingian period.’17 Historians need to fill the gap, and late Antique ecclesiastical law provides the materials which can give greater solidity to both this and the other explanations outlined above. Simony is the simplest case, because the context in the eleventh century was returning to conditions in some ways not too different from those of the fifth century. In both periods there was a thriving money economy, though in the earlier period it was heading towards a drastic decline whereas in the later period it was emerging from an age when much was 14

15 16

For a thorough recent bibliography on Hildebrand/Gregory VII, see G. Fornasari, ‘Gregorio VII e la riforma gregoriana: un ripensamento’, in Amerini and Saccenti, ‘Vicarius Petri’, 9–26, at 17–26 (‘Appendice: una breve bibliografia ragionata’). ‘der Wunsch . . . verwirklichen will’. T. Frenz, Das Papsttum im Mittelalter (Cologne, 2010), 26 (my translation). Cf. Miller, Power and the Holy, 12–14. 17 d’Avray, ‘Origins’, 220.

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managed without money. In both periods, to be a bishop meant power and wealth. In both periods, evidently, men were tempted to bribe bishops to get ordained, though in the earlier period it is less clear whose palms they were greasing. The 451 Council of Chalcedon condemns this, and Dionysius Exiguus publicized this for the West in a Latin version.18 Simon Magus is not mentioned there, but he is later in the century, in Gelasius I’s great late fifth-century synthesis decretal Necessaria.19 This is picked up in the eleventh century by Manegold of Lautenbach,20 but in fact there are plenty of condemnations of simony in the intervening period.21 On the whole, then, the reaction of the highminded against simony is straightforward to explain, provided one takes into account their legal sources; modern scholars have on the whole implicitly approved of this particular aspect of the reform, without thinking too much about its long-term legal roots. Less straightforward is the explanation of the reformers’ rejection of lay appointment of bishops and clerical marriage, though, again, most modern scholars have tended simply to assume that no explanation is required (other than corporate greed, for celibacy), even if they feel the zeal was misguided. When early papal jurisprudence is set side by side with eleventh-century conditions, we see that a straightforward ‘backsliding then reform’ model is misleading. Laxity, corruption, ‘law of spiritual gravity’, etc. are not sufficient explanations here. Historians may be excused for not understanding the situation because contemporaries did not either – neither the reformers nor those whom they wanted to reform. One cannot understand it without a long-term perspective impossible in the eleventh century and difficult for modern historians because of specialization. Celibacy To start with celibacy. The concept had undergone a transformation which few people in the eleventh century appear to have understood. 18 19

20 21

A. Strewe, ed., Die Canonessammlung des Dionysius Exiguus in der ersten Redaktion (Berlin, 1931), 98; PL 67, col. 171. B. Neil and P. Allen, The Letters of Gelasius I (492–496): Pastor and Micro-Manager of the Church of Rome (Turnhout, 2014), Letter 12, paragraph 24, 154–5; Dionysius: PL 67, col. 309, passage beginning ‘De monachis laicisque in prima copiosius’. Pseudo-Isidore includes it: PL 130, col. 945. K. Francke, ed., ‘Manegoldi ad Geberhardum Liber’, in Monumenta Germaniae Historica Libelli de Lite 3 vols., i. (Hanover, 1891), 300–430, at 344, lines 14–17. E.g. in Burchard’s Decretum, Book 1 chapters 21–3: see H. Hoffmann and R. Pokorny, Das Dekret des Bischofs Burchard von Worms: Textstufen – Frühe Verbreitung – Vorlagen. Monumenta Germaniae Historica Hilfsmittel 12 (Munich, 1991), 173, giving Burchard’s sources: the 845/6 Meaux–Paris Council and popes Gelasius and Hormisdas: with Regino of Prüm the mediator in all three cases.

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What celibacy meant in late Antiquity was examined above in Chapter 7 (and the relevant texts are set out in PJc.400, chapter 7, 133–51).22 The normative pattern was for a man to enter the clergy and get married, to have children in the normal course of things, then to rise through the ranks until the next stage was deacon. At that point he knew he had to give up sex if he wanted to continue his progress up the hierarchy. Crucially, however, it was understood that he would continue to live together with his wife.23

Nobody forced him and his wife to mount the higher rungs of the ladder, and presumably it was common to remain a subdeacon with a sexually active married life. What of those who committed to celibacy living together with their wives? Was the system viable? Counterintuitively, I would say: probably yes, if we remember that in the later Roman Empire the majority of clergy in a city were concentrated around the bishop in a tight-knit group: a mixed community of hubands and wives living in close proximity to the bishop’s church and each other. That women, wives, would have been almost as common as men in this community is a crucial fact to be held before the mind. If one of them got pregnant, she would face the disapproval not only of the bishop, priests and deacons but also of the other wives – a considerable deterrent so long as the social setting remained unchanged.24

It changed completely, however, with far-reaching implications for the celibacy system, implications perhaps insufficiently appreciated both then and now. As hinted above, A gradual but crucial factor was the Christianisation of the countryside. In the aftermath of the Roman Empire in the West, Christianity was de-urbanised. The chronology is disputed but the long term fact is not in doubt. Towns withered away, especially in northern Europe. At the same time, churches were being steadily established in the countryside, hitherto probably predominantly pagan. Bishops must have exercised some control over the establishment of baptismal churches, which covered larger areas than the parishes that developed later . . . In these churches, some communal life would have been maintained.25

The change which must have made the greatest difference to celibacy was the creation of the parish system, though one must rely on inference and common sense more than direct evidence. A new model gradually emerged, and was normal by the eleventh century: ‘one church, one priest, and a parish whose boundaries were set at about the maximum distance from which a family could reasonably be expected to walk to 22 23

See also the discussion in d’Avray, ‘Origins’ (from which I quote liberally below) with further references. Ibid., 216. 24 Ibid. 25 Ibid., 217.

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Sunday Mass. Insofar as churches were served only by one priest, rather than by a substantial community of them, celibacy within marriage was a less practicable proposition than in late Antiquity.’26 The old law must surely have become a dead letter long before the papal turn.27 It must have long been assumed that celibacy meant living singly. It is unlikely that the late Antique concept of clerical celibacy-in-marriage was even understood by many, if any. When a priest was on his own in a village with his wife or partner, sex and procreation were likely to follow, and would have seemed normal to the neighbours, who would not have been clerics as in the urban Christian communities around the bishops of the later Roman Empire, but peasants. Indeed the difference between a wife and a partner was probably unclear, given the absence of any clear obligation to get married in church (there was no such general obligation in Catholic Europe until the sixteenth century). ‘The social dynamics of a substantial clerical community would not be there to influence the couple. There would have been no social control exercised by the disapproval of “other wives”.’28 ‘Marriage’ and ‘celibacy’ will have become an either/or option. Which choice predominated seems to have varied between regions. Among noble clerics in some parts of northern Europe, celibacy seems to have been more prevalent than an earlier generation of research tended to assume. In England, Wales, and Ireland there was a lenient attitude towards the marriage of priests and deacons,29 and there is no likelihood that it was celibate. Where this was so, practice was in stark contrast to the canon law that educated clerics could easily consult. All the texts about celibacy edited and translated in PJc.400 were readily available at least in the DionysioHadriana and Pseudo-Isidore. So too was the decretal of Leo I spelling out the assumption that celibate deacons, priests, and bishops would continue to live with their wives,30 but anyone who noticed these few words would have been hard put to it to understand them, given the context of their reception, a world of rural parishes, utterly different from the original context. Someone who took canon law seriously 26 27

28 29

30

Ibid. How long before is unclear. A passage in a letter of Pope Zacharias in 743 seems to suggest that the late Antique notion of celibacy was still alive then: see M. Tangl, ed., Die Briefe des heiligen Bonifatius und Lullus. Monumenta Germaniae Historica Epistolae Selectae i (Berlin, 1916), Letter 51, 88, especially line 18, which sounds much like the late Antique system. It may have been going strong in eighth-century Rome. d’Avray, ‘Origins’, 218. J. Barrow, The Clergy in the Medieval World: Secular Clerics, Their Families and Careers in North-Western Europe, c. 800–c. 1200 (Cambridge, 2015), 135–6: stronger generalizations on p. 137, but they are about the clergy, so might include clerics in minor orders. Dionysiana: PL 67, col. 288; Pseudo-Isidore, PL 130, col. 891; Burchard, Decretum, 2.114, PL 140, cols. 645–6.

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would probably have seen only the gap between law and practice, without understanding why it had arisen. Given the gap, righteous indignation was to be expected at some point. To a reformer, the situation was clear: open violation of the religious law. What had really happened, however, was this: the system of religious law had been kept alive by assiduous copying, and even boosted by inclusion in Pseudo-Isidore. The copying did not much change its contents, some of which continued to be useful for practice. Where celibacy was concerned, however, the structures of the pastoral system had evolved to a point where they were so far from those of late Antiquity as to make the old system of celibacy in marriage unworkable. How to Choose a Bishop? Where lay appointments to ecclesiastical offices were concerned, a similar gap had opened up, but for even less obvious reasons. To understand them the starting point again has to be the social world of episcopal Churches in late Antiquity. Within that world, the fuzzy canon law for episcopal appointments31 made sense. Those vague rules could have worked when the Christian population was concentrated in cities around the local bishop, with lots of clerics and regular personal contact within the senior echelons. Among the clergy there would have been a pecking order shaped by status hierarchy. As for the laity, a group of pious and wealthy men and women of the town would have worked with the senior members of the clergy, as happens to this day in congregations of all kinds throughout the world, and in other close-knit elites. Until the mid-sixties, new leaders of the British Conservative party, prime ministers to be, simply ‘emerged’ from a group of political grandees! In many modern academic departments, heads of department are chosen by informal discussion and consensus formation. Regular face-to-face interaction is important for the working of such groups, and late Roman urban Christianity made that easy, despite the striking imprecision of the rules. Such a social setting was far removed from diocesan systems as they had evolved in northern Europe in the course of the early Middle Ages, and ill-adapted to episcopal elections in the spirit of the ancient canons. Dioceses were vast and rural. A network of one-priest village parishes had slowly been created. The lay elite did not live in the towns, and for any given episcopal see there would in most cases have been only one layman who really counted, namely the local ruler. Only if the bishop was himself 31

See above, Chapter 6, ‘Hierarchies’, and Chapter 10, ‘Leo I’. Relevant decretal passages from PJc.400 are: 99, 103–4, and 129–30; for Leo I see Appendix A(i) and (w).

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the local ruler might anything like the informal ancient system have worked. Where this was not the case – and prince-bishops were never the norm – bishops nonetheless often exercised considerable local government powers, backed up by extensive lands granted by the ruler. It made sense for a ruler to grant land and local government power to bishops, because bishops were not succeeded by legitimate heirs who took the property and power for granted as their own. Instead, the ruler appointed the new bishop, whenever he could.32 That would give him a grateful local agent with a lot of land and power. The resultant system was likely to conflict with Celestine I’s demand for the consensus of ‘the clergy, laity, and the ordo’.33 (Who knows how ordo was understood in the eleventh century?) This ruling had a sturdy transmission through canon law collections: Dionysiana, Pseudo-Isidore, and indeed Burchard.34 It would have been obvious to the reformers that this was quite different from the system of appointment by kings or emperor that had become quite common in their own day. The reform canon law collection called the Collection in 74 Titles, no. 113, quotes Celestine’s decretal.35 The foregoing is of course an oversimplification to facilitate investigation – an ideal-type – but few medievalists would quarrel with its broad lines as a sketch of the system obtaining c. 1000. That system did not mirror canon law – but it was not as though canon law provided a clear workable alternative. Law certainly did not prescribe election by the cathedral chapter, the rule that would rather slowly emerge in the course of the twelfth century and after.36 On the other hand it said nothing about the role of the ruler (except, interestingly, in the case of the papacy, a point to which we must return). 32

33 35 36

Which would be often but not always. For more detail cf. P. Christophe, L’élection des évêques dans l’Église latine au premier Millénaire (Paris, 2009), 127–48, 175–6; note that in general Christophe emphasizes the role of the laity; also J. Gaudemet et al., Les élections dans l’église latine des origines au XVIe siècle (Paris, 1979), 66–9 (imperial influence in the first half of the ninth century; 69–70 (formula making no mention of secular influence, instead claiming election by clergy, notables and people, and seeking approval of the metropolitan); 70–1 (mid-ninth-century document of Ludwig, king of Germany, giving liberty to choose but retaining a royal right to veto an unsuitable candidate and pick a suitable one); 79–80 (dispute between a royal candidate and a candidate of the clergy); 108 (Fulbert of Chartes’s disapproval of princely influence). With regard to Germany, Ben Savill points out that ‘German kings and emperors had a lot more trouble getting their preferred candidates in than has traditionally been made out’ (personal communication). PJc.400, 129. 34 Ibid., 130. J. Gilchrist, ed., Diuersorum patrum sententiae in LXXIV titulos digesta. Monumenta Iuris Canonici Series B: Corpus Collectionum i (Vatican City, 1973), no. 113, 75. G. Le Bras, Institutions ecclésiastiques de le Chrétienté médiévale, première partie, Livres II à VI. Histoire de l’église 12 (Paris, 1964), 372, and detailed discussion in Chapter 18.

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So, as with celibacy, the gap between the unchanging structures maintained by canon law and the diocesan system as it had evolved over the early medieval centuries would have been obvious, and shocking to anyone who knew the canon law collections (so to many educated clerics) but who lacked a kind of understanding of social evolution hardly possible at that time. Thus we have a supplementary explanation for the ecclesiastical revolution: an ancient canon law system which was alive but static in its structures, faced with pastoral and diocesan systems that evolved to a point far away from fifth-century conditions. We should shift the emphasis away from moral failure and religious decline, however much reformers saw the world around them in those terms. The social explanation proposed is about gradual changes which were unconnected with the commercial revival. Early Papal Jurisprudence and the Imperial Appointment of Leo IX We may now turn to other aspects of the reception in the eleventh century of the first papal law. Early papal jurisprudence may be relevant to the papal turn in a quite different kind of way. A ‘folk paradox’ of the reforms genesis is that a movement which would become so anti-imperial was started by a pope appointed by an emperor, after a messy period of election disputes. In Walter Ullmann’s words, ‘paradoxically enough, it was these new men [the emperor Henry III’s appointees] who were to usher in an age which vehemently impugned the very method by which they themselves had become popes’.37 The paradox dissolves against the background of early papal jurisprudence, which had a category into which such imperial intervention could fit. In a letter of 420, Pope Boniface I actually asked for imperial intervention in case of a disputed papal election.38 The emperor replied verbosely but positively.39 Both letters were transmitted through the Dionysiana, the Hispana, and Pseudo-Isidore. Gratian tries to explain the pope’s appeal away,40 but he was writing after the Investiture Contest which pitted pope and emperor against each other. Leo IX’s choice by the emperor Henry III would seem to have been in accordance with widely accessible canon law of the day – papal canon law in fact. 37

38

W. Ullmann, A Short History of the Papacy in the Middle Ages (London, 1972), 127–8. The more recent short history by Whalen, Medieval Papacy, 86, notes that after the emperor had arranged for Leo IX’s appointment, the latter ‘insisted upon having the Roman clergy and people confirm his election’. PJc.400, 100, 112–16. 39 Ibid., 116–18. 40 Ibid., 116.

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New Applications Canon law became one of the weapons of the revolutionary group that came to power around the pope through the election of Leo IX.41 Sometimes early papal law could be applied to the reformers’ programme in a way that drew out the meaning of the former while serving the purposes of the latter. Innocent I had ruled that secular justice and the death penalty were legitimate. He evidently had in mind lay Christians in Roman imperial service. The papal publicist Manegold of Lautenbach applies this to those who killed adherents of the emperor Henry IV in the wars that followed the breakdown of relations with Pope Gregory VII and the excommunication of the emperor. This justified the use of force in the direct service of the reformers’ programme.42 Support for the reform programme was hardly the only or even perhaps the main motive of the princes fighting Henry IV, but it legitimized their war against their lord. Now the zealous were actively thinking about the contents and relevance of early papal law to reform. Early Papal Jurisprudence in the Collection in 74 Titles At this point it is worth putting the spotlight on the Collection in 74 Titles, completed by 1067,43 one of the ‘most influential collections of the eleventh century’.44 It has been well edited,45 and indeed translated,46 by John Gilchrist. Its scholarly accessibility and its popularity in its day are claims to attention. It appears to be a monastic collection of northern French origin, and its agenda seems to have been distinct from that of the group around Leo IX, Peter Damian, Cardinal Humbert, and Hildebrand: thus, it was not ‘the first manual of the reform’. The central intention behind it was to strengthen the legal case, based on papal privileges, for monastic independence from bishops. These, at least, are the conclusions of recent research.47 41

42

43 44 45 46 47

The bibliography is vast but see, for instance, the lucid and sensible K. Cushing, Papacy and Law in the Gregorian Revolution: the Canonistic Work of Anselm of Lucca (Oxford, 1998) (and for a more general view her Reform and the Papacy in the Eleventh Century: Spirituality and Social Change (Manchester, 2005)). Francke, ed., ‘Manegoldi ad Gebehardum Liber’, c. XXXIX, i, 377 and notes 4 and 5; J3.675, in H. Wurm, ‘Decretales selectae ex antiquissimis romanorum Pontificum epistulis decretalibus, praemissa introductione et disquisitione critice editae’, Apollinaris 12 (1939), 40–93, at 68–9, and 72; as transmitted in Pseudo-Isidore: PL 130, col. 704. J. A. Brundage, Medieval Canon Law (Harlow, 1995), 37. C. Rolker, Canon Law and the Letters of Ivo of Chartres (Cambridge, 2010), 81. Gilchrist, Diuersorum. J. Gilchrist, The Collection in Seventy-Four Titles: a Canon Law Manual of the Gregorian Reform (Toronto, 1980). Rolker, Canon Law, 81–2.

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The Collection in 74 Titles (or 74T as it is sometimes called) is more relevant to the origins of the eleventh-century reform than the foregoing reinterpretation might at first suggest. Even if it was not a product of the circle around Leo IX and Hildebrand, it reflects the groundswell of opinion that propelled the reform movement forwards, namely, an intense sense of the intrinsic sanctity of the priestly office, as opposed to priestly persons. 74T is highly selective when it comes to early papal jurisprudence. Of the texts edited and/or translated in PJc.400, seventy-seven are omitted, and only eighteen are represented.48 This discrimination increases the interest of the selection, which tells one about priorities, far from Rome, that matched the values of the reformers there. At first sight, the selection of early papal jurisprudence looks like a rather random subset of early papal laws.49 We have rulings on bishop and chrism (60); public and deathbed penance (65); intentional amputation of fingers as a bar to becoming a cleric (75); other reasons for ineligibility – some of them looking problematic in an eleventh-century context, e.g. a prior military or legal career (77); the clerical cursus (78); laymen not to be promoted to bishop over the heads of the local clergy (94); no bishop to be ordained without his metropolitan’s knowledge (104); against soldiers – in the eleventh century that would have been understood to mean knights – joining the clergy, and against going to a bishop of another province (105); no bishop to be ordained against the will of the clergy or laity of the diocese (130); men who beget children when priests to be removed (150); against bigamia (156, 158, 159, 161, 170); married men can become clerics if they haven’t known a concubine (we should remember that clerics in minor orders could be married in canon law, then and throughout the Middle Ages) (189); about men ordained by heretics (201); penitents not to become clerics (283). Is there any common theme running through this apparently miscellaneous collection? Yes: a theme that applies to most of them is the special status of the clergy, marked out as sacred by a number of taboos. In fact, this makes sense in the light of the interpretation of the revolution proposed by Johannes Laudage, namely, that its origins lay in an enhanced appreciation of the sacramental priesthood which came before the initiatives of the reforming group, rather than following on them as their result, and which was a precondition for the success of the great reform synod of 1059.50 Laudage thus showed how the revaluation of the priesthood goes back a generation or two before Leo IX, and this helps explain the selection from ancient law that we find in 74T, but the ready availability 48 49

The shortcut to these numbers was an electronic search in the final proofs of PJc.400. Page references are to PJc.400. 50 Laudage, Priesterbild, 311, 317, and passim.

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of those texts in canon law collections widely copied from the late Carolingian period must have facilitated even if it did not cause the new appreciation of priesthood. Unsolved Problems in the Collection in 74 Titles 74T was more than just a propaganda tool, whether for the papal reform or for monastic independence, for if we look closely at the early papal jurisprudence selected with some discrimination for inclusion in the eleventh-century collection, another rather unexpected aspect emerges. The Collection in 74 Titles does not shy away from problems that confrontation with the older law presented, and to which it had no immediate solution to offer. Early papal law had, however, been produced by a world so different from the one inhabited by the reformers that simply enforcing it was hardly a practicable proposition. Though old law challenged the world of the eleventh-century Church, even the most intense reforming zeal could hardly translate it directly into practical policies. We have seen that early papal law was obviously at odds with the appointment of bishops by lay rulers. The trouble was that this late Roman papal jurisprudence did not offer any practical solutions. It is interesting that the reformers did not airbrush out the problematic papal utterances, on this or other issues. They reproduce ancient rules that may have seemed almost as odd to them as they do to students in the twenty-first century. The problem of episcopal nominations was too central to be sidelined, but the reformers could have chosen to ignore other laws whose rationale was no longer clear to them. Instead, some early laws, designed for the different world of late Antiquity, continued to make these earnest men think. We saw above that the 74T (numbers following this abbreviation will refer to chapters) includes a series of the earliest papal laws about bigamia, the rule making second marriages incompatible with a clerical career: 74T nos. 139, 143, 144, 145, and 150). The theme is surprisingly recurrent in early papal law, and the 74T reflects this, but the valency of the rule had been affected by changes in the world around it. The likelihood is that the bigamia ban had been ignored in the early medieval centuries, during which the whole question of clerical celibacy had been a murky area. During these centuries, in large parts of Europe at least, people seemed unconcerned or unclear whether a parish priest’s partner was a wife or mistress. Given that, would many worry whether she had been previously married and widowed? The eleventh-century reformers, for their part, could have put that issue on a back burner while they focussed on the creation of a celibate clergy. Given their new conception

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of celibacy as being altogether unmarried (rather than as abstaining from sex after becoming a deacon, while remaining with one’s wife) the issue would arise less often anyway. A priest would need to have been a widower twice over to count as a ‘bigamist’ in the sense of these early papal laws – whereas with the late Antique sort of celibacy he would only need to have lost one wife and remarried. Instead of shelving the question of bigamia, however, the underlying rationale of the rule was subjected to intense thought by at least one of the leading reformers, Peter Damian. In a fascinating and lengthy analysis, he asks why fornication, purged by penance, is compatible with the priestly ministry, whereas bigamia is not. His explanation is that the obstacle raised by bigamia is of the symbolic rather than the ethical order.51 In this context, the emphasis on bigamia in 74T makes more sense. Penance as found in the early papal legislation posed a different problem for the reformers. The main system of penance of late Antiquity was public and unrepeatable except at point of death. As examined above, the late Antique system interacted in complicated ways with other ecclesiastical systems. In the intervening centuries, a system of private penance which could be done at any time, not just at point of death, had developed, although there is uncertainty and controversy about the system’s evolution.52 By quoting Innocent I’s rules about penance, which mentioned only the public and deathbed forms (74T no. 251; PJc.400, 65), 74T was foregrounding a problem rather than proposing a clear message. On another issue, Innocent I had himself sent anything but a clear message in two letters about men returning from the heretical sect of Bonosus. His key but confusing ruling against the reordination of clerics involved in heresy is quoted in 74T no. 222 (PJc.400, 201). Even today there are different interpretations: was Innocent I saying that heretical orders were invalid, or did he leave that question open by deciding that men consecrated by the heretic Bonosus must do penance and could not act as clerics after that? Now, the validity of orders conferred by simoniac bishops was in dispute among the eleventh-century reformers themselves (there was a tendency to equate simony with heresy). Humbert of Silva Candida thought they were invalid, but Peter Damian disagreed.53 So, once again, 74T directed attention towards a problem without resolving it. 51 52

53

D. L. d’Avray, Medieval Marriage: Symbolism and Society (Oxford, 2005), 134–5. S. Hamilton, The Practice of Penance, 900–1050 (London, 2001) (maximalist on early medieval confession); B. Meens, Penance in Medieval Europe, 600–1200 (Cambridge, 2014); A. Murray, Conscience and Authority in the Medieval Church (Oxford, 2015), chapter 1 on ‘Confession before 1215’, 17–48 (minimalist on early medieval confession). Laudage, Priesterbild, 315. For the tendency to identify simoniacs with heretics, ibid., 177.

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Evolution of the Celibacy System To address problems highlighted by the reform, a burst of new legislation followed. In the case of celibacy new laws were made to resolve the contradiction between the ancient law and social facts, but (as usual) the latter turned out to be more complicated than expected. The law and its interpretation then evolved to get a better grip on the facts. Celibacy had been reconceived by the reformers as life without a wife. A brief unpublished chronicle said simply that Hildebrand the archdeacon, elected as pope, himself banned clerics, apart from the ones to whom the canons permitted it – clerics in minor orders, presumably – from living with women;54 the chronicler clearly regarded this as something new. But that would mean creating a new law of celibacy, even if the reformers were hazy about the nature of its novelty. It was not until 1139 that marriages in clerics in higher orders (now including subdeacons) were declared not just illegal but invalid by the Lateran Council of 1139.55 Legislation tried to address a widespread fact on the ground: sons of priests who wanted to follow in their fathers’ footsteps. In late Antiquity, clerical dynasties were absolutely legitimate because most clerics would have had children before they moved up to the celibacy level. Under the new regime, the occasional priest would have had legitimate sons before entering the clergy, but it would not be the norm. Conciliar law to stop sons of priests from taking up the baton from their fathers was passed,56 but this underestimated the complexity of individual cases. The evolution of the system to allow for individual circumstances would continue into the second half of the twelfth century, as discussed in the following chapter, and in the long run dispensations became routine.57 Ivo of Chartres and Gratian The evolution of law helped accommodate the complexities of the social environment, but the application of thought by canon lawyers was another 54 55 56

57

MS British Library Cotton Domitian A. XV, fos. 6va–b. Mirbt, Quellen, no. 307, 163. C. N. L. Brooke, ‘Gregorian Reform in Action: Clerical Marriage in England, 1050– 1200’, Cambridge Historical Journal 12 (1956), 1–21, at 3: Urban II bans ordination of sons of priests; L. Wertheimer, ‘Children of Disorder: Clerical Parentage, Illegitimacy and Reform in the Middle Ages’, Journal of the History of Sexuality 15 (2006), 382–407, at 399: legislation against sons of priests taking orders (at least as secular priests – an indication that the fear was of hereditary benefices, since monks would not be inheriting benefices). From Wertheimer and Brooke it is not fully clear whether the ban extended to sons of deacons and subdeacons, as one would assume. L. Schmugge, Kirche, Kinder, Karrieren: päpstliche Dispense von der unehelichen Geburt im Spätmittelalter (Zurich, 1995).

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way of resolving the tensions between social facts on the ground and the canon law inherited from late Antiquity. Thus, Gratian softened the law about the sons of priest with a sympathetic exegesis.58 As well as reconciling texts with facts, he tried to reconcile texts with texts. Gratian, and Ivo of Chartres before him, belong to the series of compilers who transmitted the papal law of late Antiquity into the period after the Gregorian Reform, but they differ from all previous compilers. Previous compilations piled authorities without the cement of intellectual commentary: the selection was the intellectual contribution. Ivo and Gratian applied their minds to the harmonization of discordant texts. Since they both belong to the ‘inclusive’ tradition, that meant texts of all kinds, not just decretals and conciliar canons. Ivo of Chartres59 is traditionally credited with developing a methodology for reconciling divergent authoritative texts in a way that adumbrated Gratian and the scholastic method.60 Gratian developed Ivo’s approach and turned the mass of discordant authorities into a coherent intellectual synthesis. As noted earlier, Anders Winroth showed that this was done in two stages, possibly even by two ‘Gratians’, the second heavily influenced by Roman law.61 Gratian’s Decretum became the basis of a tradition of glossing and commentary which was both practically orientated and sharply academic. The Decretum uses a high proportion of the late Antique papal decretals, and from time to time he comments on them interestingly. For instance, in the Decretum at PARS II C. 35 q. 9 c. 8 (7)62 a letter of Innocent I63 is quoted with the heading ‘The authority of the apostolic see can revise the judgment of anyone’. The extract from the letter is as follows: ‘To your pious minds it cannot seem burdensome for anyone’s verdict to be examined afresh, for truth, when repeatedly pursued, shines more splendidly in the light, and destructive behaviour, when summoned 58 59 60

61

62 63

For Gratian’s flexible understanding of the rule, see PARS I D. 56 c. 1; Friedberg, Corpus, i, col. 219. Brundage, Medieval Canon Law, 38–9. Rolker, Canon Law, 294–7, esp. 296, sets out to break the link between papal reform, law, and scholastic method, though in his zeal to correct the older view he may overstate the difference between Ivo of Chartres’s way of reconciling authorities (see e.g. 301: ‘plurality of tradition reflected different situations the ecclesiastical judge was facing’), and the approach to harmonization of Gratian and of the scholastic method. For a survey of the prolific recent bibliography see P. Lenz, ‘Die Glossierung und die Glossen in den frühesten Handschriften des Decretum Gratiani’, Bulletin of Medieval Canon Law 35 (2018), 41–184, at 41 note 1. Friedberg, Corpus, i, col. 1286. The original letter is J3.693. ‘De Bubalio et Tauriano, damnatis a provincialibus episcopis, quorum sententiam sedes apostolica retractatione curavit’ (PL 130, col. 707 = Pseudo-Isidore). Variants in Dionysiana, using PL 67, col. 250 and Db, fo. 90va: Tauriano] Arriano Db; sedes] sedis Db; retractare curavit PL67: recuravit Db.

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to judgement, is condemned with greater seriousness and without regret,64 for it is a gain for God when justice is reviewed frequently.’ In the original decretal Innocent I appears to review but then endorse a previous decision.65 Gratian’s comment expands the meaning in a nontrivial way: ‘Therefore just as a sentence of the Roman see can be altered for the better, so too the sentence of any Church, when it is found to have been obtained by deception, will be able reasonably to be revoked’, and the heading is ‘The authority of the apostolic see is able to overturn (retractare) the judgment of anyone’.66 This is not an illegitimate interpretation of the original decretal but yet takes it far from its original context. As interpreted by Gratian, the meaning is that canon law generally and papal law specifically is man-made law and consequently changeable. The commentaries by Gratian on the earliest papal decretals would repay systematic study. Conclusion The common theme of this chapter is that in the period from 1050–1150 we see law and life ricocheting off each other and rapid changes in both. Under that rubric there are a series of conclusions: (1) Early fifth-century canon law provided a basis for imperial intervention in doubtful papal elections, legitimating Leo IX, who initiated the papal turn. (2) In a number of areas the earliest papal jurisprudence provoked reform, though the historical reasons why were not fully understood at the time. Late Antique papal jurisprudence had been faithfully transmitted throughout the six centuries between its origin and the papal turn of the mid-eleventh century, and by the start of the eleventh century it was probably more widely available in manuscript books than ever before, but at many points it was an uneasy fit with social conditions. ‘Corruption’ or alternatively, urbanization, are not adequate explanations. The mismatch between law and life was a long-term result of the ruralization of Christianity. Ancient canon law was designed for city Christian communities concentrated around the bishop. It was ill-adapted to a world of isolated parish priests who were unlikely to maintain celibacy within marriage. Similarly, election of bishops by the ‘clergy and people’ was less 64 65

66

‘poenitentia’. For a discussion, see G. Dunn, ‘The Church of Rome as a Court of Appeal in the Early Fifth Century: the Evidence of Innocent I and the Illyrian Churches’, Journal of Ecclesiastical History 64 (2013), 679–99. PARS II C. 35 q. 9 c. 8; Friedberg, Corpus, i, col. 1286.

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practicable in a large rural diocese than in a concentrated urban community. Reformers could not be expected to understand the historical explanation of what they saw, which was a chasm between practice and the law. This helps explain their indignation. New legal collections were compiled to push new agendas, but the authorities collected included much early papal jurisprudence. The Collection in 74 Titles deserves special mention. It may not in fact have been a ‘reform’ collection, but the ancient papal jurisprudence it included transmitted a high ideal of a pure clergy, thus contributing to the widespread responsiveness throughout Christendom to the reform agenda coming from Rome. Though selective, the Collection in 74 Titles does not eliminate late Antique laws which were perplexing in an eleventh-century context: it left food for thought. The papal turn found expression in new legislation, notably about celibacy, which now meant something different from the celibacy required by late Antique papal law. To prevent inheritance of church posts, sons of priests were excluded from the priesthood. But the new rules proved too simplistic, and further legal evolution followed. The polemical canon law of the Hildebrandine generation was followed a new and intellectually creative phase, represented by Ivo of Chartres and the two editions of Gratian. They developed methodological tools for turning the texts of the past into synthesis. Gratian expanded by his own commentary the meaning of canons, including papal decretals from late Antiquity, for his own age.

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Contingency The transmission that goes back to the first decretal age arguably tipped the balance against what could have been a different, but functionally equivalent development: a system of autonomous responses provided by an academically trained professional legal class, as in Islam and Judaism. Such a class did indeed develop, but it worked within a decretal framework. The shape of that framework was set by Bernard of Pavia, whose role in the second decretal age parallels that of Dionysius Exiguus in the first decretal age. Thus, the chapter has two main theses, both about contingency. It argues against the inevitability of canon law’s divergence from theology. That was partly down to a change of direction in theology itself, one which will require a short excursus from the principal lines of argument. Also causally crucial, however, was the impulse that Bernard of Pavia gave to the development of canon law. The parallel with Dionysius Exiguus is that both marked canon law out as a genre distinct from other forms of religious writing, ‘theology’ in Bernard’s case, since it was an identifiable discipline by his time. Secondly, the chapter argues against the inevitability of the connection between professionalization and decretals. The suggestion is that professional academically trained lawyers could have run a canon law system without a second wave of decretals, but that the prominence of decretals inherited from late Antiquity made renewed recourse to papal responsa an obvious move in the Latin clerical world, and professional canon lawyers could work with that. Law and Theology in the Twelfth Century Twelfth-century scholars characterize canon law c. 1100 as part of theology – see below. By the early thirteenth century it had it broken away. The separation of law from a wider field of religious discourse will evoke a sense of déjà vu in readers who have not skipped the first half of this book, since something similar had already happened in late Antiquity. In 189

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Chapter 11 and subsequently it was emphasized that the Dionysiana consists only of conciliar and papal rulings, with no extracts from religious writers – however eminent – without official positions. Accordingly, it primarily answers ‘lawful/unlawful?’ questions, rather than ‘true/false?’ questions (about the nature or natures of Christ, for instance, or about intrinsic moral right or wrong). The same could be said of thirteenthcentury canon law. The choices of Dionysius had long-term consequences: his tradition was continued, notably, by Cresconius, by the Admonitio generalis of Charlemagne, and by the Dacheriana collection. Dionysius’s choice of topics needs explaining. There was the precedent of the early small collections of the mid-fifth century. He may also have wanted to steer clear of divisive Christological topics. He may also have had anticipated the later sense that there is a distinct domain of positive law. The differentiation of law and theology seven centuries later also needs explaining. The usual explanation, the attraction exercised by academic Roman law, is not the whole story behind the second divorce of canon law from theology. The evolution of theology is part of the story which cannot be ignored, but more directly relevant to the theme of the book is the role of Bernard of Pavia. Canon Law as ‘Applied Theology’ in the Eleventh and Twelfth Centuries Historians stress the absence of any clear differentiation between theology and law in the century or so after the Gregorian Reform. The canon law of the period around 1100 has in fact been characterized by Martin Brett as ‘applied theology’; he comments that if they had known of later developments ‘They might well have been surprised, and not necessarily delighted, to find that law had become a discipline in its own right.’1 Paul Fournier and Gabriel Le Bras noted long ago how hard it is to find the boundary between canon law and theology.2 Christof Rolker writes that in the time of Ivo of Chartres ‘there was no clear distinction between theology and law’.3 James Brundage wrote that ‘Canon law was to a great extent theology in practice. Even Gratian . . . seems to have been at least as much a theologian 1

2 3

M. Brett, ‘Finding the Law: the Sources of Canonical Authority before Gratian’, in P. Andersen, M. Münster, and H. Vogt, eds., Law before Gratian: Law in Western Europe c. 500–1100. Proceedings of the Carlsberg Academy Conferences on Medieval Legal History (Copenhagen, 2007), 51–72, at 72. P. Fournier and G. Le Bras, Histoire des collections canoniques en Occident depuis les Fausses Décretales jusqu’au Décret de Gratien, 2 vols. (Paris, 1931, 1932), i, 370–1. C. Rolker, Canon Law and the Letters of Ivo of Chartres (Cambridge, 2010), 163.

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as a lawyer.’4 (Indeed, as a glance at the list of sources in Friedberg’s edition of Gratian shows, the Decretum contains a huge quantity of patristic material,5 which by its nature tends to address ‘true/false?’ questions rather than determining on the author’s own authority what is lawful, given that the writers do not have official authority and do not claim charismatic authority.) Alain Boureau argues that canon law and theology belonged to the same ‘episteme’, in Foucault’s sense, sharing the quaestio technique and contributing together to a new idea of ‘the person’.6 Ennio Cortese also emphasizes the interpenetration of canon law and scholastic theology (which in turn is seen as an outcome of the Gregorian Reform).7 A recent monograph is entitled Gratian the Theologian.8 Frank Rexroth comments that ‘so far as the period of Pope Alexander III (1159–81) is concerned, one cannot yet distinguish theology and canon law’.9 The well-known process of differentiation into two disciplines then took place. G. H. M. Posthumus Meyjes writes that ‘Originally canon law was very closely related to theology, and was regarded as part of it. But from the mid-twelfth century onwards, and particularly under the influence of civil law, it developed into a separate science, and grew increasingly apart from theology.’10 Even in the early thirteenth century, 4

5 6 7

8

9

10

J. Brundage, ‘The Medieval Battle of the Faculties: Theologians v. Canon Law’, in U.-R. Blumenthal, A. Winroth, and P. Landau, eds., Canon Law, Religion, and Politics: ‘Liber Amicorum’ Robert Somerville (Washington, DC, 2012), 272–83, at 277. Friedberg, Corpus, i, cols. 31–7. A. Boureau, ‘Droit et théologie au XIIIe siècle’, Annales: Histoire, Sciences Sociales 47 (1992), 1113–25, at 1116. E. Cortese, ‘Théologie, droit canonique, et droit romain: aux origines du droit savant (XIe– XIIe s.)’, Comptes rendus des séances de l’Académie des Inscriptions et Belles-Lettres 146:1 (2002), 57–74. This is mainly about the influence of theology, as it emerged from the Gregorian Reform, on Roman law (see notably 57–8), but comments that ‘droit canonique . . . au XIIe siècle, est souvent un appendice de l’enseignement de la théologie’ (72); also that the Gregorian Church foresaw the ‘union nécessaire du droit civil et du droit canonique’ (73). H. Berman stressed a link between the Gregorian Reform and the development of ‘positive law’: for an assessment see J. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago, 2008), 78–9, with useful references to reviews. J. C. Wei, Gratian the Theologian (Washington, DC, 2016) argues that the Gratian of the first recension of the Decretum is a theologian of penance and marriage, but with the ‘De consecratione’, added in the second edition, the Decretum includes sacramental theology more generally. Cf. A. A. Larson, Master of Penance: Gratian and the Development of Penitential Thought and Law in the Twelfth Century. Studies in Medieval and Early Modern Canon Law 11 (Washington, 2014), 380. ‘Für die Zeit Papst Alexanders III. (1159–1181) sind Theologie und Kirchenrecht noch nicht zu unterscheiden.’ F. Rexroth, ‘Kodifizierung und Auslegen: symbolische Grenzziehungen zwischen päpstlich-gesetzgeberischer und gelehrter Praxis im späteren Mittelalter (1209/10–1317)’, Frühmittelalterliche Studien 41 (2008), 395–414, at 398. G. H. M. Posthumus Meyjes, ‘Exponents of Sovereignty: Canonists as Seen by Theologians in the Late Middle Ages’, in D. Wood, ed., The Church and Sovereignty, c. 590–1918: Essays in Honour of Michael Wilks. Studies in Church History Subsidia 9 (Oxford, 1991), 299–312, at 301.

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canonists ‘were beginning to align themselves intellectually more with Roman law than with theology. They borrowed ideas, insights, tools and techniques from their civilian counterparts with increasing frequency and enthusiasm . . .’11 So canon law changed partners, from theology to Roman law. One might have expected ideological tension between the sophisticated emperor-based system of Roman (or ‘civil’) and canon law, but, insofar as there was any, it did not last long. Frederick Barbarossa did forge a short-lived alliance with the professionalized Roman lawyers,12 but the latter seem to have dropped fairly soon any antagonism to the papacy, and to have worked contentedly alongside canon lawyers.13 Both kinds of lawyers were being professionalized – indeed, the ideal for an ambitious man was to be a ‘doctor of both laws’. Canon and civil law were grouped together in the incipient universities (except at Paris, where Roman law was not supposed to be studied). In both cases, the academic developments went hand in hand with the preparation of professionals for lucrative careers in the world, though in the case of the Roman lawyers it was their transferable skills rather than the actual letter of the law that was being applied. The academic canon law professors, however, were training their students to run the professionalized ecclesiastical courts that were developing fast around this time. As the rift widened, the theologians start to speak disparagingly of canonists.14 They may have envied the popularity with students of law courses and the remuneration of academic colleagues in law,15 though the theologians’ motives have been eloquently defended by Posthumus Meyjes (writing from a Theology department): ‘Their protest was primarily caused by the countless new legal regulations imposed on the Church, which were often characterized by arbitrariness, and therefore were hardly conducive to the edification of the Church. Many of the regulations derived their validity solely from the fact that they emanated from the hierarchical summit, and often lacked serious theological justification.’16 However that may be, it is clear that distinct disciplines were jockeying for status in the universities that became such a formidable force in the thirteenth century. The status of the canon lawyers would have been raised by their role as interpreters of the papal decretal collection of 1234, the Liber Extra. This is in the Dionysiana mould, though on a vastly larger scale. Insofar as one can put a concept to the immensely rich range of material in the Liber 11 13 14 16

Brundage, Medieval Origins, 125. 12 Ibid., 88–9. R. H. Helmholz, The Spirit of Classical Canon Law (Athens, GA, 1996), 19. Brundage, ‘Medieval Battle’, 275. 15 Ibid., 275–7. Posthumus Meyjes, ‘Exponents’, 312.

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Extra, it is definitely legal rather than theological – nor is it a hybrid of the two. It is true that ‘legal’ is not in contradistinction to ‘religious’ – that would be a false antithesis. It must again be stressed that religious convictions set the parameters and exercise a powerful field of force on the whole compilation.17 It is also true that the Liber Extra begins with the very theological creed of the Fourth Lateran Council, followed by a condemnation of Joachim of Fiore’s ideas about the Trinity.18 Reading on from that first page, however, what one mostly meets over the 928 folio columns of Friedberg’s edition could be described as positive law, however much orientated towards religious values and goals. The uniqueness of this was recognized by Max Weber in his survey of sacred laws: Western canon law was ‘oriented more than any other sacred law towards rigorously formal juristic technique’.19 The minor place for theology proper and the distinctively legal character of the Liber Extra is obvious when one looks through the list of sources identified by its editor. One finds only a handful of biblical citations – ten, a small fraction of a column.20 The crop of patristic authorities is meagre – only two from Augustine for instance – and the index tails off with a tiny miscellaneous group including four authorities from Burchard of Worms, three from a liturgical text, five from penitential works, and a few secular laws.21 The Liber Extra largely consists of conciliar canons and papal decretals, mostly the latter. The overwhelming majority of the texts listed were post-Gratian papal decretals: some sixteen folio columns of the index.22 Excursus: The Evolution of Theology The attractions of Roman law are not enough to explain the divorce, and we need to pay more attention to the other partner, theology. Though the main focus of this study is on the parallels and connections between the two decretal ages, a brief excursus into the history of high medieval theology is needed to avoid oversimplifying a complex nexus of causes. 17 18 19

20 22

Cf. (admittedly on classical canon law in general) Helmholz, Spirit, 394–9 (with the author’s value judgements). X.1.1.1, X.1.1.2; Friedberg, Corpus, ii, cols. 5–7. ‘so war es doch von allen heiligen Rechten am meisten an streng formaler juristischer Technik orientiert’. M. Weber, Wirtschaft und Gesellschaft, 5th ed. (Tübingen, 1976), 480; cf. 480–1 passim. Friedberg, Corpus, ii, col. 17. 21 Ibid., ii, cols. 17–18. Ibid., ii, cols. 12–17 (Friedberg fits three colums of papal decretals into each numbered column). There is also slightly more than half a column of references to Gregory I’s ‘Decretales Papales’ (Gregory also puts in a brief appearance under ‘SS. Patres et Scriptores Ecclesiastici’). Of older papal law, there is one decretal of Boniface I (d. 422 ce), four from Leo I (d. 461 ce), one from Hormisdas, and seven from Pseudo-Isidore.

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Though the evolution of theology away from law was independent of the strands of causation that mainly concern us, it tended towards the same outcome and should not be airbrushed out. Paris theologians are important at two stages. Firstly, their disputations provided an alternative venue for resolution of theological uncertainty, diminishing the demand for theological decisions by Rome. Secondly, a change of intellectual leadership in Paris theology in the first decades of the thirteenth century prevented the rapprochement with canon law that might otherwise have been on the cards. Theological Disputations as an Alternative to Decretals From the middle years of the twelfth century, the heat of theological controversy was largely contained within the boundaries of scholastic disputation, a safe space in which to fight out differences over big religious problems. The contrast with late Antiquity is striking. In the fifth century, the big issues – Christ’s divinity and humanity, predestination and free will – were contested for high stakes in the public sphere, with official condemnation of one’s opponents the desired outcome for most of those involved. Before the Paris schools became dominant, Western intellectuals seemed to be reverting to that pattern, with the condemnation of Abelard at the Council of Soissons in 1121 and at Sens in 1140, as well as the (unsuccessful) effort to get Gilbert de la Porrée condemned in 1148. As the proto-university schools of Paris were institutionalized, more of the aggressive odium theologicum was absorbed in academic debate conducted according to the intellectual equivalent of Marquis of Queensbury rules.23 Controversial theology was increasingly conducted through disputations internal to the schools that were turning into the University of Paris. It was no longer so necessary to win over public opinion: the minds that mattered were concentrated in Paris. There were a few condemnations – Amalric of Bene, David of Dinant, and Joachim of Fiore for his theory of the Trinity – but most of the intellectual energy went into disputation. Joachim of Fiore’s condemnation at the Lateran Council of 1215 is in a sense an exception proving the rule. From the point of view of the Paris schools he was an outsider.24 For the development of canon law there is an indirect implication. Without the Paris schools, disputations, and quaestiones, it is a reasonable 23 24

The rules governing the sport of boxing, keeping aggression within bounds. An outstanding treatment is the unpublished doctoral thesis of Fiona Robb, ‘Intellectual Tradition and Misunderstanding: the Development of Academic Theology on the Trinity in the Twelfth and Thirteenth Centuries’ (UCL PhD thesis, 1994).

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assumption that the popes would have been called in to resolve theological differences with a legally binding ruling much more often than, in fact, they were. In late Antiquity, warring religious writers tried to convince councils, patriarchs, the emperor, and the pope, through letters and treatises intended to be read by as many as possible, in a world still full of important laymen whose native language was Latin. In the twelfth and thirteenth centuries, intellectuals tried to beat (and impress) each other in rigorously controlled debating conditions. When the substantive works of Aristotle became available, and when the coming of the friars raised ecclesiological questions with big practical implications, the system would come under strain, but it was still stable in the last decades of the twelfth and into early thirteenth century. In this period, speculative theology could be largely left to academics. When it came to sacramental theology this division of labour between papacy and academics is less evident, for popes were often asked to intervene and did so, in areas that theologians were also discussing: how many sacraments there were, whether and in what sense marriage was a sacrament, etc. Here canon law was often driven by practical cases in which the human and existential stakes for the individuals involved might be high, and where fundamental principles might be involved. But the papal decisions about sacraments provided possibly quite welcome limits to the potentially endless field of theological speculation, and still left plenty of scope for debate. To return to the boxing metaphor, theologians could continue their conflicts within a clearly defined ring. This was a decisive period in the development of sacramental thought. Practical Ethics When it came to the broader field of practical ethics, however, an estrangement of theology from canon law would have been hard to foresee in the twelfth century. Moral theology was a Paris speciality around 1200, with the school of Peter the Chanter, whose massive intellectual influence was brought out a generation ago by John Baldwin.25 Even Baldwin missed one dimension of it, casuistry, the application of general principles to problematic individual cases, perhaps the most hands-on form of moral theology.26 The Chanter was 25 26

J. W. Baldwin, Masters, Princes and Merchants: the Social Views of Peter the Chanter and His Circle, 2 vols. (Princeton, 1970). E. Corran, Lying and Perjury in Medieval Practical Thought: a Study in the History of Casuistry (Oxford, 2018), 66–88 brings out the Chanter’s seminal role. Discussion with her brought home to me the significance of the turn away from the Chanter’s approach at Paris.

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a high-profile figure at Paris. His pupils included Cardinal Robert Courson27 and the future Innocent III himself. Baldwin demonstrated the Chanter’s influence, via Innocent III, on innovative legislation at the Fourth Lateran Council. Moral theology in Peter the Chanter’s hands was not so far from canon law.28 His teaching gave no reason to fear a divorce between canon law and theology, and indeed his tradition was continued by confessors’ manuals29 and the pastoral works for parish priests that seem to have been something of an English speciality in the thirteenth century.30 Towards the end of the twelfth century, an evolution towards an academic practical theology drawing on both decretals and non-legal sources would have looked on the cards, given the status of the Chanter. That would have been a force capable of counteracting the attraction of Roman law, or perhaps of ‘incorporating more of the ethical principles of Roman Law into the theological discussion’.31 In any case the dependence of canon on Roman law can be exaggerated. While it is true that Roman law offered interesting procedural techniques, the key procedural method of canon law, used in both local ecclesiastical courts and in high-profile papal cases, was a late twelfth-century medieval invention; one will look in vain for it in the Justinianic corpus; it was entirely independent of the Roman/civil law tradition.32 In short, there was nothing inevitable about

27

28 29

30

31 32

J. Sabapathy, ‘Some Difficulties in Forming Persecuting Societies before Lateran IV Canon 8: Robert of Courson Thinks about Communities and Inquisition’, in G. Melville and J. Helmrath, eds., The Fourth Lateran Council: Institutional Reform and Spiritual Renewal (Affalterbach, 2017), 175–200; J. Sabapathy, ‘Robert of Courson’s Systematic Thinking about Early Thirteenth-Century Institutions’, in A. Fitzpatrick and J. Sabapathy, eds., Individuals and Instititutions in Medieval Scholasticism (London, 2020), 199–216. More canon law than meets the eye may lie behind the Chanter’s text. See Corran, Lying, 82: but she tells me in a personal communication that such cases are not rare. Ibid., 116–17. J. Goering, ‘The Internal Forum and the Literature of Penance and Confession’, in W. Hartmann and K. Pennington, eds., The History of Medieval Canon Law in the Classical Period, 1140–1234: from Gratian to the Decretals of Pope Gregory IX (Washington, DC, 2008), 379–428, at 418–28. L. E. Boyle, ‘A Study of the Works Attributed to William of Pagula with Special Reference to the Oculus Sacerdotis and Summa Summarum’, 2 vols. (University of Oxford D.Phil. dissertation, 1956) – a work much broader in scope than its title suggests, and still not overtaken by published scholarship, though the tradition of research on pastoralia has been continued at Toronto by his pupil Joseph Goering and by intellectual grandchildren. Emily Corran, personal communication. In a nutshell, this was the compilation of a consolidated list of atomistic propositions from submissions by both parties, and a list of witnesses, followed by depositions from each witness on each item on which they could offer evidence. A powerful legal tool made in the Middle Ages! D. L. d’Avray, Papacy, Monarchy and Marriage, 860–1600 (Cambridge, 2015), 86–93; Brundage, Medieval Origins, 158 and note 117.

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the detachment of canon law from theology, and Paris fashions were partly responsible. Thirteenth-Century Theology Takes a Separate Path There is always something mysterious about changes of fashion. Why did the Chanter’s tradition die away, or rather, continue only outside academe? Why not Theology faculties with masters specializing in moral theology and canon law together, just the kind of mix one finds in the thirteenth century outside universities, in confessional handbooks? The development of a class of canonico-theological experts, giving authoritative opinions and running the courts, was an open road not taken. Perhaps the school of Peter the Chanter was a victim of its own success, in that the star pupils, most famously Pope Innocent III, left the nascent university of Paris for careers outside academe. Furthermore, theological interest moved from casuistry to speculative synthesis, and further from canon law, under the influence of a new generation of thinkers. By the second decade of the thirteenth century the centre of gravity in Paris intellectual life had shifted decisively towards speculative theology and synthesis.33 William of Auxerre is a prominent representative of this tendency.34 It is true that Robert of Courson continued the Chanter’s tradition at Paris until Innocent III called him away, but even before his departure he seems to have been intellectually isolated and without significant pupils that we know of. For a while the link with the Chanter was kept up by Innocent III. A number of his decretals echo Peter the Chanter’s discussions.35 After Innocent III, it would be hard to tell a similar story of moral theological influence on papal case law. The first two decades of the thirteenth century are like the first amicable phase of a divorce that would end up in estrangement. Casuistry continued to keep moral theology and canon law together, but outside the university mainstream. 33

34 35

On this phase, see S. E. Young, Scholarly Community at the Early University of Paris: Theologians, Education and Society, 1215–1248 (Cambridge, 2014). Biblical exegesis also attracted much of the intellectual creativity at Paris in this period: see M. Clark, ‘The Commentaries on Peter Comestor’s Historia Scholastica of Stephen Langton, PseudoLangton, and Hugh of St Cher’, Sacris Erudiri 44 (2005), 301–446. William of Auvergne is a special case, an original maverick: see P. Biller, The Measure of Multitude: Population in Medieval Thought (Oxford, 2003) 60–88. He could certainly be very concrete in his thinking but, to judge from Biller’s analysis of his demographic thought, the mode is closer to sociology than law. William incorporates some of the Chanter’s casuistry, though ‘the underlying motivation is for theological clarity rather than practical application of moral rules’ (Corran, Lying, 89–90). Lesley Smith has in hand a full intellectual portrait. ODCC, s.v. ‘William of Auxerre’; Young, Scholarly Community, 102–30. Emily Corran, personal communication.

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Canon Law’s Divergent Trajectory The chronology of estrangement is not so different on the canon law side. For the earlier of the two authors of the standard gloss on Gratian’s Decretum, Johannes Teutonicus, canon law did not obviously belong with either civil law or theology; if a man ‘had books on theology, canon law, and civil law’ – he asked as a thought experiment – and in his will left his theology books to one church and his law books to another, to which should the canon law books go?36 In the event canon law would be grouped with civil law as a faculty, but as a genre it had a life of its own, distinct from both the ‘Romanists’ and the theologians. Johannes Teutonicus’s gloss does cite a theologian, Peter Comestor,37 but he draws primarily on other canonists and Roman lawyers.38 The second author of the standard gloss, Bartholomaeus Brixiensis, follows him closely.39 If either glossator had had spent any time sitting at the feet of theologians, we do not know it.40 So, as theologians moved further from terrain comfortable for canon lawyers, canon law moved away from the patristic sources on which Gratian had drawn so heavily. By contrast with the Decretum and the collections of Ivo of Chartres and Burchard of Worms before him – those theologico-canonical melanges – thirteenth-century canon law contained relatively little except conciliar canons and papal decretals, with the latter predominating. Bernard of Pavia and Dionysius Exiguus One might say that the counterpart of William of Auxerre41 on the theology side of the widening divide was Bernard of Pavia on the canon law side.42 His compilation in 1189/90 of the collection called the Breviarium (known later as the Compilatio prima) was ‘a turning point for canonistic scholarship’.43 36 37

38 40

41 42 43

Brundage, ‘Medieval Battle’, 278. J. F. von Schulte, Die Glosse zum Decret Gratians von ihren Anfängen bis auf die jüngsten Ausgaben (Vienna, 1872), 38 note 4 and 72 suggest that Peter Comestor (or Manducator) got into the canon law tradition, but this would seem to be an exceptional case. von Schulte, Die Glosse, 70–3 on Johannes Teutonicus. 39 Ibid., 79–81. Short biographies in J. A. Brundage, Medieval Canon Law (Harlow, 1995), 219–20 (Johannes Teutonicus) and 207 (Bartholomaeus Brixiensis). I am grateful to Ken Pennington and Wolfgang Mueller for expert opinion about the engagement or lack of it of these canonists with theology. Though he ‘included chapters on scandal and perplexity including several of Peter the Chanter’s lying and perjury dilemmas in his Summa Aurea’. Corran, Lying, 89. See K. Pennington, ‘The Decretalists 1190–1234’, in Hartmann and Pennington, eds., History of Medieval Canon Law in the Classical Period, 211–45, at 211–16, and 218. Ibid., 212; cf. Brundage, Medieval Origins, 117: ‘a watershed’.

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Bernard of Pavia played a role quite like that of Dionysius Exiguus 700 years earlier. Just as the first generation of computers cannot be compared in quantitative power with subsequent generations, yet deserve a special place as the fount and origin of the rest, so too does Dionysius Exiguus deserve a special place in the history of canon law, because he devised a structure (the lost small early collections must have been much more basic) which made the first papal jurisprudence easily accessible to subsequent generations – and indeed his collection was still being copied in the twelfth century.44 The Dionysiana had a simple but elegant and functional structure, analysed earlier.45 Bernard of Pavia also created a model for his times. The structure of his Breviarium was a lot more complex than the Dionysiana’s, as the quantity and range of the decretals it incorporated demanded, but it clearly worked. The Roman-law-inspired divisions and subdivisions46 became standard in decretal collections after him.47 Crucially, Raymond of Peñafort followed in his footsteps in compiling the first official papal collection, the Liber Extra of 1234, with regard to both structure and content, though he left out a lot that he felt was legally irrelevant. The 1298 Liber Sextus (or Sext) of Boniface VIII follows the same structure. As when considering the evolution of theology at Paris, interpretation must allow a place for agency and individuals.48 Dionysius and Bernard each set the canon law system on a new course.49 Like the Dionysiana, the Breviarium of Bernard is a collection of conciliar canons and papal decretals, as a glance at the list of sources compiled by Friedberg shows.50 The overwhelming majority of canons are from papal decretals. It does have a small amount of other material. The proportions are roughly as follows: a small set of unidentified authorities, something over two columns of canons from councils, (including the ‘Canones apostolorum’ and the ‘Statuta ecclesiae antiqua’ probably 44 45 46 47 49

50

L. Kéry, Canonical Collections of the Early Middle Ages (c. 400–1140): a Bibliographical Guide to the Manuscripts and Literature (Washington, DC, 1999), 14–17. Chapter 11, ‘Post-Imperial Syntheses’. K. Pennington, ‘Decretal Collections 1190–1234’, in Hartmann and Pennington, eds., History of Medieval Canon Law in the Classical Period, 293–317, at 297. Ibid., 298. 48 Cf. Fitzpatrick and Sabapathy, eds., Individuals, 1–49. Though neither started from nothing: for predecessors of the Dionysiana, see PJc.400, 24, with further references; for systematic collections of decretals between Gratian and Bernard of Pavia, see C. Duggan, ‘Decretal Collections from Gratian’s Decretum to the Compilationes antiquae: the Making of the New Case Law’, in Hartmann and Pennington, eds., History of Medieval Canon Law in the Classical Period, 246–92, at 270–87. For the sources see the list by E. [Aemilius] Friedberg, Quinque compilationes antiquae (Leipzig, 1882), VII–XI.

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classified then as conciliar canons), a handful of biblical passages and glosses on the Bible, another handful of patristic authorities (e.g. only three from Augustine, six from Isidore), and a solitary column of miscellaneous authorities (Hincmar, Burchard of Worms, the Ordo Romanus, penitential books, Roman law and Frankish capitularies, etc.) – but nearly eight dense columns of papal decretals.51 The salient point is the insignificant representation of patristic theology. Religious values do indeed interpenetrate canon law even at its most legal, but nobody could describe Bernard’s Breviarium, or the Liber Extra, as applied theology. The boundaries into which Bernard helped channel canon law as a religious system distinct from theology are practically the same as those defined by the Dionysiana some seven centuries before, in that both stayed clear of what one might call high theology and focussed on conciliar canons and decretals. So, a thesis: just like Dionysius Exiguus in late Antiquity, Bernard of Pavia in the high Middle Ages ensured the identity of canon law as a distinct genre. Decretals and the Legal Profession It is tempting to look for a direct causal link between the outpouring of papal decretals and the professionalization of law. That there was a de facto connection is not in doubt – the question is whether it was necessary or contingent. Certainly, the increasingly professional and academically trained canon law class was perfectly capable of assimilating the stream of decretals, and incorporated them into the academic curriculum.52 They dealt with them, indeed, professionally, resolving uncertainties and contradictions (not all of them, of course). Frank Rexroth comments that ‘Here, at the start of the history of universities, from the pontificate of Innocent III, the new discipline of canon law had its beginning, with the aim of bringing into one system legislative, judicial, and academic activity.’53 For all that, and without denying strong secondary causal influences, it seems doubtful whether the profuse production of papal decretals per se was either a necessary or a sufficient cause of the professionalization of canon law. 51

52 53

This includes almost a column of canons from Gregory I, also well represented in the Liber Extra. These merit further study, as I suspect many were not originally ‘decretals’ in the same sense as those studied in PJc.400 and the present book, or as papal decretals of the twelfth and thirteenth centuries. Rexroth, ‘Kodifizierung’, 404, 406–8. F. Rexroth, Fröhliche Scholastik: die Wissenschaftsrevolution des Mittelalters (Munich, 2018), 298: (‘Hier setzte . . . abzustimmen’).

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Professionalization without a Papacy? There may have been an elective affinity between papal decretals and academic, professional law, but their marriage was not foreordained. The domination of the nascent canon law profession by papal decretals was no ineluctable process. It is true that decretals were grist to the mill of law teachers at the nascent universities and for the students they trained, who together with them constituted a new professional class. It need not, however, follow that the canonists would have retained their amateur status but for the decretals. There is no reason to regard papal case law as a sine qua non for professionalization. Papal decretals did indeed fill a gap and meet a demand, but there would have been functionally equivalent ways of meeting the same demand. The gap could have been filled by councils at kingdom level,54 or perhaps by ‘opinions’ provided by eminent professors, the system employed in the Roman/civil law world. It would probably not have worked so well, but it could certainly have worked. Authoritative opinions by experts and consensus formation among them are normal in other religious legal systems, notably Islam (as argued in the Introduction to this volume). So, another thesis: without the legacy of the first decretal age, there might not have been a second decretal age. At any rate, decretals might have played a subordinate role in the twelfth- and thirteenth-century system. The Relevance of the First Decretal Age Thus, the decretal tradition begun in late Antiquity has a causal role in the second decretal age. The quantitative weight of the papal jurisprudence in its formative period and subsequent centuries made it impossible to ignore or airbrush out. The papal responses of the late fourth and fifth centuries constituted a rich and sophisticated corpus of law, which was transmitted with accretions through the centuries and into the collections of Ivo of Chartres and Gratian. The rational complexity of the tradition started in the first decretal age should be evident from PJc.400 and from the first half of the present study. The decretals from late Antiquity and subsequent decretals modelled on them were an obvious pattern to follow in the twelfth century. Even alongside all the other material collected by Ivo and Gratian, they could not be overlooked. They were exemplars both 54

D. Summerlin, ‘Hubert Walter’s Council of Westminster in 1200 and Its Use of Alexander III’s 1179 Lateran Council’, in M. H. Eichbauer and D. Summerlin, eds., The Use of Canon Law in Ecclesiastical Administration, 1000–1234 (Leiden, 2019), 121–39 helps one envisage how it might have worked.

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for popes and for those who came to them for solutions, just as they had done in late Antiquity but on a larger scale. The new class of professional lawyers could have managed without papal decretals, but why would they? Conclusions With both the role of professionalization in the second decretal age, and the divergence between canon law and theology, contingency must be given its due. The symbiosis of papal decretal case law and legal professionalization was not inevitable. After all, in the fifth century there had been a decretal age without professional lawyers, and in the Islamic legal tradition after the ninth century ce professional lawyers ran their system without decretal-type rulings. Decretals and professionalization were integrated in Western Europe around 1200, and in a different intellectual sphere from university theology, but there was no necessity about it. Similarly, there was no necessity about the separation of canon law from theology. A change of theological fashion is part of the explanation, but so too is the direction in which the Breviarium of Bernard of Pavia pointed the system. What then emerges when we unpick the tangled knot of the second wave of decretals, the professionalization of canon law, and its separation from theology? The analysis was never going to be simple, but it has suggested some new emphases: more attention to the agency of theologians, and to Bernard of Pavia as a second Dionysius Exiguus; and to the legacy of the first decretal age, a factor in keeping decretals at the core of canon law in the twelfth and thirteenth centuries. The flood of decretal case law went with a decline of interest in the interpretation of Gratian’s Decretum,55 with its cargo of patristic material, though the new decretal material was integrated into commentary on the Decretum by the authors of the standard gloss.56 The first version of this was finished in 1217 at the latest, by Johannes Teutonicus,57 the second between 1234 and 1241 by Bartholomaeus Brixiensis.58 This standard gloss on Gratian enables us to watch ‘modern’ decretals from the Liber 55

56

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K. Pennington and W. P. Müller, ‘The Decretists: the Italian School’, in Hartmann and Pennington, eds., History of Medieval Canon Law in the Classical Period, 121–73. Cf. R. Weigand, ‘The Transmontane Decretists’, ibid., 174–210, at 210, dating the decline slightly later, 1210 – but it was sharper, and the tradition had been less important anyway. R. Weigand, ‘The Development of the Glossa Ordinaria to Gratian’s Decretum’, in Hartmann and Pennington, eds., History of Medieval Canon Law in the Classical Period, 55–97, especially 82–91. Ibid., 84. 58 Ibid., 91.

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Extra being deployed to elucidate late Roman papal laws. In the following three chapters, papal responses from the second decretal age will be juxtaposed with late Antique papal jurisprudence. These analyses will show, on the one hand, that decretals in both ages tried to manage the kaleidoscope of complexity and uncertainty in their respective religious worlds, and also, on the other, that canon lawyers could explicate decretals from the first age in conjunction with decretals from the second.

16

c. 400 and c. 1200: Complexity, Conversion, and Bigamia

The Fifth Century and the Twelfth Century It was argued in Chapter 1 that the fifth and twelfth centuries had much in common. At the risk of repetition: as in late Antiquity, so too in the twelfth century, there were communities ruled by Christians on both sides of the Mediterranean, thanks to the First Crusade and the establishment of the Latin Kingdom of Jerusalem in Palestine. The Mediterranean Sea was criss-crossed by the ships of Christian merchants. As in the fifth century, monasticism was on the increase and interacting awkwardly with the secular (i.e. non-monastic) clergy. In both centuries there were transregional councils, sources of official doctrine and law. In both, there was an emperor who controlled only part of the Christian West. Latin was the international language in both periods. The law made by classical Roman emperors was studied by professionals. Both the fifth (especially the early decades) and the twelfth centuries were periods of theological creativity. Complexity and Uncertainty In the early chapters of this book, an explanation was offered of the late Roman demand for rulings from the apostolic see: in a nutshell, the uncertainties and complexities arising from the rapid evolution of a whole range of quasi-autonomous religious systems, which led to mutual incompatibilities between them, and forced new choices. Something similar was happening in the twelfth century. New legislation created new uncertainties and widened the gap between religious law and complex social reality. In 1123, 1139, 1179, and 1215, ‘Lateran Councils’ under close papal direction legislated for reform, and, as always with legislation, reality was more complex than the new rules, creating uncertainty about their application. To pick up a theme from the previous chapter: the reformers’ drive to end the transmission of benefices from father to son, by banning sons of priests from clerical careers outside monasteries, obviously seemed an effective 204

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way of scotching tendencies towards a hereditary clergy. In practice, however, a rigorous application of this seemed harsh in individual cases. That led in the later twelfth century to papal case law which made the rule more flexible.1 Other developments in and outside the religious sphere also generated difficulties and new complexities. For instance: the reformers rejected ‘a Church in the power of the laity’, but what about lay patrons of churches built and funded by their ancestors – did they not have rights? Without the patronal families, no parishes, or far fewer. It might have been reform suicide to take on lay patrons at parish level, and in the end, the reformers were ready for compromise. A symbolic solution was reached. Lay patrons continued to nominate parish priests, but the diocesan bishop ‘instituted’ them. Right order was affirmed but the lay patrons retained the useful power to give away a job to family or friends, and also, by implication, to get economic support from the parish’s resources. This is the kind of compromise that fits the facts on the ground but which reforming legislation seldom provides for. It took a papal decretal to work out a way through.2 Examples could be multiplied. Lands were given to monasteries, some of which cultivated them directly with lay-brother labour. Did they have to pay tithes? Episcopal authority and cathedral chapters were gaining in confidence and authority at the same time, and clashed. Monasteries acquired exemption from bishops and also parishes as gifts: were the parishes exempt from the bishop too? Could exempt monasteries hold services during interdicts, when the clergy under the bishop were on strike? And so on. As in late Antiquity, the popes were called upon to resolve these uncertainties and tensions between autonomously evolving systems. In both the first and second decretal ages, we find bishops sending whole shopping lists of problems to the pope.3 The great code of papal case law called the Liber Extra, promulgated in 1234, is a monument to the second decretal age. The innumerable cases it contained can be read back to the uncertainties that led to them. Only someone unfamiliar with their 1

2 3

For a papal decretal tempering the rigour of the rule, see X.1.17.6; Friedberg, Corpus, ii, 136–7, Old Jaffé no. 14217 (9274) (Alexander III, undated); for the unpredictable complexity of the scenarios that could be presented to the pope, see X.1.17.13; Friedberg, Corpus, ii, col. 139, Old Jaffé no. 16616 (10249) (Clement III, undated). X.3.38.25; Friedberg, Corpus, ii, 617: an 1190 ruling of Clement III. See S. Wood, The Proprietary Church in the Medieval West (Oxford, 2006), 896–7. Compare with PJc.400, passim: F. W. Maitland, ‘William of Drogheda’, in Roman Canon Law in the Church of England (London, 1898), 124–6, and A. Duggan, ‘De consultationibus: the Role of Episcopal Consultation in the Shaping of Canon Law in the Twelfth Century’, in B. C. Brasington and K. G. Cushing, Bishops, Texts and the Use of Canon Law around 1100: Essays in Honour of Martin Brett (Aldershot, 2008), 191–214, especially at 201–11 – fine pages.

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contents could assume that these cases were just jostling for power and property. The Two Decretal Ages and the Standard Gloss on Gratian Not only did the first and second decretal ages have similar origins; the first wave of decretals also directly and indirectly influenced the second wave. This and the next two chapters will attempt to bring out the parallels and connections between them with the help of a source that brings them together, the standard gloss on Gratian’s Decretum. In commenting on some of the decretals from late Antiquity the gloss makes reference to relevant recent, post-Gratian decretals. This makes the gloss a privileged source for our purposes. Reference will be made frequently to passages edited and translated in Appendix C. They illustrate the reception of law from the first decretal age, the management of complexity by new decretals in the second decretal age, and the attempt of the standard gloss to integrate the two. The standard gloss on Gratian was written by Johannes Teutonicus then updated by Bartholomaeus Brixiensis.4 The latter had been trained at Bologna, the best university for Law, and probably studied with famous masters, Tancred and Hugolinus,5 whom he calls ‘his master’.6 Unlike Johannes Teutonicus, who had finished his oeuvre by c. 1218,7 Bartholomaeus wrote after the appearance of the ‘Decretals of Gregory IX’, Liber Extra of 1234. Extra is short of extravagantes – ‘wandering outside’. These were decretals which were wandering outside what had become the standard compilation, Gratian’s Decretum. ‘X.’,8 as the Liber Extra was known to canon lawyers and still is known to their modern historians, was in effect a code of the canon law made since Gratian, mostly case law made by papal decretals. In the preceding chapter I commented on the distinctly ‘legal’ as opposed to ‘theological’ character of these authorities, but the salient point for present purposes is that in commenting on texts in Gratian, Bartholomaeus makes frequent reference to papal case law subsequent to Gratian, citing the Liber Extra. 4

5 6 7 8

R. Weigand, ‘The Development of the Glossa Ordinaria to Gratian’s Decretum’, in W. Hartmann and K. Pennington, eds., The History of Medieval Canon Law in the Classical Period, 1140–1234: from Gratian to the Decretals of Pope Gregory IX (Washington, DC, 2008), 55–97, especially 82–91. J. A. Brundage, Medieval Canon Law (Harlow, 1995), 207. J. F. von Schulte, Die Glosse zum Decret Gratians von ihren Anfängen bis auf die jüngsten Ausgaben (Vienna, 1872), 80. Brundage, Medieval Canon Law, 220. References to the Liber Extra take the form of ‘X.’ followed by three numbers, standing for the book, the ‘titulus’, and the chapter.

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His choice of decretals to cite is largely derivative; in fact, his whole gloss is derivative (in a way common and legitimate in the Middle Ages). The gloss of Johannes Teutonicus – the original ‘ordinary gloss’ to Gratian – has much or most of what we find in Bartholomaeus’s gloss,9 which we may call Gloss II. Johannes Teutonicus had, however, cited papal decretals from the less than official compilations that precede the official code of 1234, which did not exist when he did his commentary. The achievement of Bartholomaeus Brixiensis was to make the gloss usable for future generations by translating the references into the forms that would be the citation system of post-Gratian papal law (with minor modifications) ever after. As we will see below in Chapter 17, he was also prepared to disagree with his forerunner Johannes Teutonicus, though on the other issues to be discussed he appears not to have done so. Where Bartholomaeus follows Johannes Teutonicus more or less verbatim, while changing the references to the Liber Extra form, it seems appropriate to indicate that the intellectual property is shared. Accordingly, I will use the phrase ‘Gloss II’ when discussing commentary essentially lifted from Johannes Teutonicus but with the references turned into Liber Extra form by Bartholomaeus. With the help of Johannes Teutonicus and Bartholomaeus Brixiensis – Gloss II – we can listen in to canon law conversations stretching from the fifth to the thirteenth century, and the attempt to make sense of the transformation of the religious world over those eight centuries, in the form in which subsequent canon lawyers would have heard them, into the twentieth century, when Corpus Iuris Canonici was finally pensioned off. Bartholomaeus’s gloss – Gloss II – has never been edited critically, and the sixteenth-century edition which is easily accessible online cannot be relied on for a text without later accretions, so the key passages analysed in this and the following two chapters have been edited from a manuscript which must have been written close to the date of composition, with the help of editions known to be free from the later additions.10 Three Case Studies It is illuminating to examine through case studies the ways in which the standard gloss brought late Antique decretals together with post-Gratian decretals. The latter are translated – within the translations of the gloss – in 9 10

Pennington, ‘Johannes Teutonicus’, in M. Schmoeckl et al., The Great Christian Jurists in German History (Tübingen, 2020), ch. 1. See Appendix C for details.

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Appendix C. The post-Gratian decretals are translated from Friedberg’s edition (the gloss just gives a Liber Extra reference). This appendix is a prism through which a determined reader can look at the complicated situations which decretals of both ages attempted to manage. It shows early papal jurisprudence being adapted to social changes and accompanying complexities, also how those complexities were addressed by new decretal law. These case studies aim to illustrate the kind of discussion thread which the first papal laws joined, in Gratian and after him up to the mid-thirteenth century. They are dense and difficult. We need to remember that they are actually simplifications of even more complex states of affairs! The case study for the current chapter is the intersection between old law on the validity of papal marriages and a much developed concept of the ‘Pauline Privilege’. Innocent I’s positive idea of pagan marriage had to be made compatible with the ‘Pauline Privilege’, a much more prominent system in Innocent III’s day than in late Antiquity. Then Chapter 17 will look at the unintended consequences of monarchical growth in the central Middle Ages for the status of clerics in minor orders. The implications of the de-urbanization of dioceses and the Gregorian Reform’s rejection of royal appointment of bishops for the episcopal electoral system are the theme of Chapter 18. Pagan Marriages, Bigamia, and the Pauline Privilege For the first case study the starting point is Innocent I’s letter of 414 to the Macedonian bishops and deacons, where he lays it down that pagan marriages are true marriages and of divine origin (see below). The context, it will be remembered, was the question whether a pagan marriage could make a candidate for the clergy ‘bigamous’ if this wife had died and he had remarried a Christian, and the answer was that it counted. In Innocent I’s decretal the man’s first wife had died. The decretal turns up in Gratian’s Decretum.11 To look at the reception of this ruling is to watch meaning expanding over time. First, we will see how its meaning is enlarged by juxtaposition with the ‘Pauline Privilege’ system, according to which non-Christian marriages were valid but dissoluble if one partner gets baptized and the other opposes the conversion. In late Antiquity, this doctrine is not much in evidence. Only Ambrosiaster mentions it. Perhaps unexpectedly, passages of Ambrosiaster (under other names) are used in early scholastic theology as arguments against the existence of true marriage among pagans, but they are pitted against passages of Augustine which accepted pagan marriages as 11

PARS II C. 28 q. 1 c. 1; Friedberg, Corpus, i, col. 1079.

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valid. The theological synthesis was that they were valid but not absolutely indissoluble, unlike Christian marriages. Hugh of St Victor threw his weight behind the distinction between Christian marriages, which were ratum, and pagan marriages, which were not.12 This gave a theological rationale to the idea already found earlier in some penitentials that pagan marriages could be dissolved.13 The view that pagan marriages were not marriages was still respectable among theologians in the twelfth century,14 but it was bound in the end to be out-trumped by canon law because of the key endorsement of pagan marriages by Innocent I, which was impossible to overlook once it had been included in Gratian’s Decretum. If we look at the commentary on the relevant parts of Gratian’s Decretum in Gloss II, we see the horizon of Innocent I merging into the horizon of Innocent III, whose decretal about the marriage of converted pagans is connected by the commentary with Innocent I’s original ruling. These fascinating passages and the other passages from Bartholomaeus Brixiensis discussed in the remainder of the chapter are edited and translated in Appendix C(b), which is the basis of the discussion that follows. The original ruling quoted by Gratian from Innocent I would seem tacitly to have assumed that the first pagan wife had died. Gratian enlarges its meaning by putting the Innocent I passage after an imaginary story which envisages a more complicated scenario. Incidentally, this is a good example of Gratian’s brilliant pedagogic technique in the second part of his Decretum – the ‘Cases’. This one is Causa 28: A certain infidel, who was married, was converted to the faith, but his wife left him out of hatred for the Christian faith. He took as his wife a certain woman who was one of the faithful, and after she had died he became a cleric. Finally, he was elected bishop, as his life and learning deserved. Here it is first asked, whether marriages exists among the infidels. Secondly, whether is it permitted to marry another woman when the first one is alive. Thirdly, whether a man is to be held to be a ‘bigamus’ when he had one wife before baptism, and another after baptism.15

Simply by placing Innocent I’s answer beside this story Gratian has complicated the original issue by asking in effect: ‘what if the pagan wife is still alive?’ Gloss II refers to the lengthy commentary on the same letter of Innocent I earlier in the Decretum, at Distinction 26 chapter 3;16 the same passage from the same letter17 is quoted together with its wider 12

13 16 17

For the foregoing, see J. C. Conde Cid, ‘L’origine del Privilegio Paolino’, Ius Ecclesiae 26:2 (2014), 335–8: 350–1, Glossa Ordinaria on the Bible includes key passages from Ambrosiaster; 354–5, Hugh of St Victor. Ibid., 349. 14 Ibid., 356. 15 PARS II C. 28; Friedberg, Corpus, i, col. 1078. PARS I D. 26 c. 3; Friedberg, Corpus, i, cols. 96–7. PJc.400, 164–8 (translation and text). Cf. the similar argument in Innocent I’s letter to Victricius of Rouen: Ibid., 159–61.

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context. Patience is required to track the train of thought in Gloss II as it brings Innocent I’s arguments into conjunction with those formulated some eight hundred years later by Innocent III, in a letter to the bishop of Tiberias.18 Bringing the letters of the two Innocents together, Gloss II shows how much discussion and analysis the words of the early fifth-century pope were still capable of generating. The concrete cases are related to highlevel abstract principles applying in different contexts, including secular Roman law. It is brought in to elucidate what might seem to be a purely Christian question, namely, what does baptism change and what continues to be relevant after baptism? Once one penetrates the meaning of the dense passage – both the original and a translation can be found at the start of Appendix C – the sheer intellectuality of the commentary is impressive, as legal thinking. In Gratian’s narrative, a married non-Christian converts. His wife hates the faith and leaves him. Thanks to the ‘Pauline Privilege’ this justifies the dissolution of his first, pagan marriage, and he marries a Christian woman. She dies and he becomes a cleric, then wins promotion to the point where he would be made bishop if the bigamia principle did not block it. A section from Innocent I’s letter fits this the narrative;19 it makes the point that a pagan marriage is real marriage and not a sin, so that it is not washed away by baptism, and thus continues to count towards bigamia: the marriage after baptism is a bar to clerical status precisely because the marriage before baptism was good (incidentally, this is a good example of a point of principle established in the course of considering a practical legal problem). Here Gloss II just refers the user to his full commentary on the earlier Innocent’s letter at Distinction 26 (where the relevant part is quoted in full by Gratian). We need to stay with what Gloss II has to say about Causa 28, however, for there follows a gloss on the next chapter (a fake decretal) which brings in the later Innocent, Innocent III, and then refers back to the earlier commentary on his late Antique namesake Innocent I. Gloss II refers to and summarizes Innocent III’s letter (the translation in Appendix C of the whole legally relevant part, which got into the Liber Extra, is in bold), but focusses on the discussion of monogamy and biblical polygamy. The convert to Christianity does not have to live with his pagan wife but cannot marry again ‘except in three cases’. To make sense of this last 18 19

X.4.19.8; Friedberg, Corpus, ii, cols. 723–4. PJc.400, 167–8, from ‘Numquid non erunt ammittendi’ to ‘et deus iungit’: in translation, 165, from ‘Should those from whom’ to ‘and God joined together?’ = Gratian PARS II C. 28 q. 1 c. 1; Friedberg, Corpus, i, col. 1079.

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remark the historian needs to absorb the decretal of Innocent III which Gloss II then cites (from the Liber Extra). From this, the ‘three cases’ would appear to be her refusal to live with him, her insistence on insulting the creator, or her intention to draw him into mortal sin. That is only one small part of Innocent III’s thoughtful decretal. In a sentence with a clear verbal echo of Innocent I, he reaffirms his fifthcentury namesake’s doctrine that baptism does not dissolve a marriage. He explains that pagan marriages can be valid even if within degrees of relationship that would justify annulment if the couple were Christian, since marriage within those degrees is valid so far as they are concerned and ‘they are not bound by canonical constitutions’. There follows a discussion of polygamy. He implies that only one pagan marriage can be regarded as valid, but faces up to the problem of evident cases of polygamy in the Old Testament, which he explains as allowed by God by way of exception. This takes one to the general rule that indissolubility continues after the baptism of one spouse, and the exceptions listed above. Purely academic law this is not. Like Innocent I, Innocent III lived in a world where large-scale conversion to Christianity was taking place, though not everywhere. He is answering a question from a bishop in Outremer, Palestine, where we know that Muslims converted to Christianity,20 though ‘baptism motivated by genuine interest or attraction appears to have been quite rare’.21 Whatever the motivation, problems such as those addressed in Innocent III’s letter really could have arisen, as they could also in the Spanish lands reconquered by Christians. The last part of the letter seems to go beyond the question which the bishop put to the pope. Innocent III asked himself what should be done if the pagan spouse converts to Christianity later on. Should her husband take her back? What if she had married another pagan after he had dissolved the marriage by using the Pauline Privilege? (Innocent III envisages the wife as the latecomer to Christianity, but his thinking on this kind of case is generally gender neutral: we may take it that he would say the same if the wife converted first.) His answer is vintage Innocent III and nuanced. If the wife had contracted another marriage, to another pagan, before converting, that should not be counted as adultery. On her conversion, if her now Christian husband has not remarried, he should take her back. If on the other hand she has committed fornication outside marriage before converting, he is not obliged to. 20 21

B. Kedar, Crusade and Mission: European Approaches toward the Muslims (Princeton, 1984), 74–85. Ibid., 83.

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By this point, Innocent III has surely moved on from the cases that had probably prompted the bishop to write to him. He is enjoying the intellectual exercise of working out non-obvious but conceivable scenarios. The capacity to process the possible complexities of the real world and work out rules to cover them is the mark of a sophisticated legal system. More often than not, legislation, and rules of any kind, fail to anticipate the real-world scenarios they are supposed to regulate. This is inevitable to some degree, but the most successful systems minimize the degree. Conspicuously successful systems in history have been Roman law and its derivatives, Common Law – and the canon law of the Western Church. The situations Innocent III anticipates were probably not common but they were perfectly possible, and when they arose the legal system had enough complexity in it to cope with them. This was not the end of the discussion thread. It is allusive and compressed, a discussion among experts, the kind of content one only begins to understand after both editing and translating it – and even then fears one could have misunderstood. We need to remember that we are listening in, so to speak, on a highly technical exchange between specialists, who are not going to spell out their meanings for our benefit.22 A canonist referred to as H. (probably Huguccio) addresses the question of whether it made a difference if the first of the two converts had given the spouse a bill of divorce under their non-Christian law. (Note that this could make a huge difference if the unconverted spouse was Jewish and a woman, because she could not remarry without such a bill of divorce.) H. says that if she converts, the husband must take her back whether or not there has been a divorce by non-Christian law, arguing that every sin is removed in baptism. Gloss II appears to dissent from H.’s opinion. He implies that the latter is disagreeing with or misunderstanding Innocent III. The latter ended his decretal letter by distinguishing between the still nonChristian woman having sex with a pagan man she had married under non-Christian law, and her having sex outside her new non-Christian marriage. In the latter case, says Innocent III, he does not have to take her back after she converts. Baptism does not erase the ‘exception competent’ against her, to borrow from Scottish law a phrase ultimately derived from the technical term used by Gloss II, exceptio competens. Gloss II says that the reasoning is explained fully in the long commentary on the decretal that started it all, the fifth-century letter of Innocent I. 22

Some modern scholarly readers will themselves be technical experts in thirteenth-century canon law: they will excuse my remarks, since many other medieval scholars lack that particular expertise.

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When we turn back to that gloss, we do indeed find the reasoning, which is shot through with technical Roman law and principles from other canon law issues. H. may have put his finger on a problem in Innocent III’s interpretation, namely that even if the pagan wife did commit fornication outside any kind of marriage after her husband had converted, baptism would have washed any sin away. Gloss II tries to solve this problem, bringing formidable legal expertise to bear. In the passage edited and translated at the end of Appendix C(b) Gloss II distinguishes between a pre-baptismal sin and the consequence of a pre-baptismal sin. The former is washed away by baptism, that can’t be questioned, but the consequence of sin is not. Here it gets subtle, as he feels around for other kinds of case that embody the same principle. If I understand him correctly, one is the situation of a woman who loses her virginity before baptism and is ineligible for the ritual of the consecration of a virgin because of the defectum sacramenti, which I would tentatively understand to mean that the representation of the Virgin’s marriage to Christ is spoiled. Next he argues that the sexual sin stains her (ex-) husband as well as herself, citing another Gratian authority to prove that. Now comes the Roman law, the section of the Digest on infamia. The key text seems to be ‘Pomponius says that one who while in servitude caused slaves belonging to his peculium to act as prostitutes is also blacklisted after being freed.’ The implication here is that the manumission of a slave wipes out his unfreedom, but he remains marked by infamy because of an offence that affected others, in this case the prostitutes whom he pimped. So the fornication of the pagan woman, preconversion, was an offence against her converted husband, and because it involved him as well as her, the infamia remained even after the sin had been washed away by baptism, so that he was not obliged to take her back. This only really makes sense on the assumption that she was still as it were provisionally married to him, pending his activating the Pauline Privilege. It is not for the historian to say that the argument works, but it is certainly clever, the brainchild of a very intellectual lawyer. Students and most historians will have struggled to follow – as they would with an opinion from a top-class lawyer on a technical topic today. Conclusion The first and second decretal waves, c. 400 and c. 1200, both responded to unresolved complexities arising from the evolution of separate social systems. In the standard gloss on Gratian, ‘Gloss II’, decretals from the two ages are brought into conjunction. Innocent I’s ruling about pagan marriages was generating thoughtful discussion eight centuries after his

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death. The standard gloss discusses it together with a decretal of Innocent III. Between Innocent I and Innocent III, the ‘Pauline Privilege’ system emerges clearly into view, taken for granted by Innocent III after an evolution which we can only patchily reconstruct. How to integrate Innocent I’s ruling with the ‘Pauline Privilege’ system? This is an example of how the horizon of reflection about a text can be enlarged over time, without losing contact with the original meaning, as it is applied in new contexts and to complex scenarios not originally envisaged. Other examples are the ancient papal law on clerics in minor orders and on episcopal elections, the subjects of the next two chapters.

17

Clerics in Minor Orders

Exemptions in the Roman Empire This chapter traces a discussion thread about clerics in minor orders which started with Pope Siricius’s ruling in the first decretal, 385, that a cleric who married a widow or who was widowed and remarried lost all clerical privileges.1 It had a robust transmission, being included in the Concordantia of Cresconius, the Collectio vetus Gallica, the Hispana, Pseudo-Isidore, the Collection in 74 Titles, and, most significantly for our purposes, Gratian’s Decretum.2 Gloss II (passage edited and translated in Appendix C(c)) leads us to the social history of the text. Interestingly, the gloss is vague about papal history. Siricius appears to be presented as the immediate predecessor of the Pope Innocent who was behind the decree requiring absolution from the pope for anyone who used violence against a cleric. In reality this is Innocent II, the pope of the Lateran Council of 1139, which passed the decree Si quis suadente.3 In Gratian, the decree is PARS II C. 17 q. 4 c. 29.4 There the heading is Item Innocentius Papa. One manuscript makes it clear that the pope was Innocent II, another shows how that information could have been lost.5 It seems more likely that Gloss II worked from the assumption that the decree was by the late Antique Innocent, than that its authors believed Siricius to be a twelfth-century pope. This intriguing confusion does not much affect the content of his commentary. 1 2 3

4 5

PJc.400, 156. Ibid., ‘Reception’ section. In Gratian, it is at PARS I D. 84 c. 5; Friedberg, Corpus, i, col. 296. For progressive papal refinements of the implications of Si quis suadente see A. Duggan, ‘“New” and “Old” Law in the Twelfth Century: a Contribution to the Current Debate’, Bulletin of Medieval Canon Law 36 (2019), 299–314, at 312 and note 57, and ‘Clerical Exemption in Canon Law from Gratian to the Decretals’, in C. West, ed., Religious Exemption in Pre-Modern Eurasia, c. 300–1300 ce, Medieval Worlds 6 (2017), 78–100, at 87, 96 (online publication, www.medievalworlds.net/8243-6inhalt?frames=yes, accessed 18 September 2021). Friedberg, Corpus, i, col. 822. In MS BAV Pal. Lat. 626, fo. 127ra at least, ‘iius’ is added to show which Innocent is in question, but in MS BAV Vat. Lat. 1369, fo. 211vb one reads ‘Innocentius papa cap. ii’. I have not checked further.

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What follows is not just about texts: it traces the evolution of a social system or communication thread in which the text of Siricius interacted with changing social practice, from late Antiquity through the early medieval centuries to the world of Gratian and Bartholomaeus Brixiensis. In late Antiquity, Siricius’s ruling, if observed, denied some valuable taxation and judicial privileges to ‘bigamous’ clerics in minor orders. In the early Middle Ages that became theoretical because the privileges in question can no longer have meant much. In the age of Gratian, thanks to the evolution of secular governmental systems, clerics again acquired fiscal and judicial privileges which they could lose by remarrying or marrying a widow. None of this was planned by the evolving secular governments. So, the pattern is familiar: the world of late Antiquity resembles the world of the central Middle Ages more than either do the intervening early Middle Ages. Yet the valency of the ruling was different in the later period because the social character of clerics in minor orders was so different. That is insufficiently understood because this major social category has not yet found a place proportionate to its importance in books on medieval history.6 From the start, Siricius’s ruling must have been primarily aimed at clerics in minor orders (that the subdiaconate was eventually promoted from the minor to the major category is a subplot for present purposes). The same decretal, Directa ad decessorem, imposes celibacy within marriage on deacons and priests, so it would be otiose to rule that they could not remarry if their wife died: that would be to commit to a marriage without intercourse even at the beginning, a different matter from relinquishing it at some later point as an ascetic practice, as deacons and priests were told to do. Siricius assumes that clerics in minor orders will be married and sleeping with their wives. The same decretal also assumes that they were on a trajectory towards higher orders. If a cleric’s wife died and he remarried, or if he married a widow, the clerical cursus ended there and he became a layman. That would be a big change in late Antiquity given that the clergy were (as the early chapters of this book argued, uncontroversially) a fairly tight-knit community of men – and their wives – around a city’s bishops. ‘Bigamy’ would change a man’s social circle. It would also have legal implications, though the sources send mixed signals about what precisely these would have been. The evidence of the Theodosian Code has been collected by Antonio Banfi: the privilegium fori ratione personae, which involved the removal of all clerics from the jurisdiction of the state in both civil and criminal matters, constituted 6

See, however, the good data in J. Barrow, The Clergy in the Medieval World: Secular Clerics, Their Families and Careers in North-Western Europe, c. 800–c. 1200 (Cambridge, 2015), index s. v. ‘orders, minor’. The important contribution of R.-H. Bautier will be discussed below.

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a severe limitation on the sovereignty of the state. For this reason Roman emperors were not always inclined to grant it to the church in anything approaching its full form. Indeed, the imperial legislation on this matter is not always consistent: especially the legislation of the western emperors on this matter [here he gives references to the Theodosian Code: CT 16.2.12, 23, 41, 47; 16.11.1] appears contradictory. The closer relationship between state and church in the east accounts for the greater consistency of the eastern imperial legislation on the privilegium of legal forum. Emperor Justinian intervened many times on this matter, and in the NOVELLAE (Nov. 123) he established a full privilegium fori for ecclesiastical persons, though limited to judgments of first instance.7

In the West, whatever immunity from secular justice that criminal clerics – in minor orders at least – had enjoyed would seem to have disappeared.8 We know more about fiscal exemptions. In the late Roman Empire considerable taxation concessions were granted to the clergy from Constantine on, though the number of clerics was so large that limits had to be set. Working directly from primary sources, the great historian of the later Roman Empire A. H. M. Jones has set out the fiscal privileges of the lower clergy. From Constantine, clerics were exempt from the tax called the collatio lustralis, ‘a quinquennial levy of gold and silver, evidently designed to cover the quinquennial donatives to the army, on merchants in the widest sense, including craftsmen who sold their own products’.9 This would have affected only those members of the clergy who had to earn a living as craftsmen or small shopkeepers, so the lowest level of the clergy.10 Clergy ‘were also exempted with their families and households from the capitatio’11 – a poll tax12 ‘assessed by units of population’.13 Eventually a quota of immune slots was fixed, ‘so that clergy in excess of the quota had to pay the poll tax’.14 ‘The clergy were also exempt from billeting and corvées.’15 At least some of these tax breaks were taken away in the years after the empire in the West had been holed below the waterline by the Vandal conquest of Africa,16 and in the aftermath of empire the sources 7

8 9 10 11 13 14 16

A. Banfi, ‘Privilegium, of Legal Forum’, in R. S. Bagnall et al., eds., The Encyclopedia of Ancient History, 1st ed. (2013), using Wiley online library version (26 October 2012), which gives print page as 5548; DOI: 10.1002/2F9781444338386. Ian Wood, personal communication re the period up to 800. A. H. M. Jones, The Later Roman Empire, 284–602: a Social Economic and Administrative Survey, 3 vols. (with a maps volume) (Oxford, 1964), i, 110. Ibid., ii, 871, 912; ‘laws of 356 and 360 . . . restrict the immunity to gravediggers’ (907). Ibid., ii, 912. 12 Ibid., i, 64. S. Hornblower and A. Spawforth, eds., Oxford Classical Dictionary, revised 3rd edition (Oxford, 2003), s.v. ‘finance, Roman’, 597. Jones, Later Roman Empire, ii, 912. 15 Ibid. C. J. Wickham, Framing the Early Middle Ages: Europe and the Mediterranean, 400–800 (Oxford, 2005), 87.

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do not give a clear picture.17 At the risk of oversimplification, in subsequent centuries one would expect the (declining) reliance of kingdoms on personal taxation to imply diminishing significance of clerical exemption from it. The Early Middle Ages Once the great superstructure of imperial taxation had collapsed in the West, these immunities from it must have become worthless. ‘The ending of imperial rule entailed the gradual unravelling . . . of its huge military and bureaucratic regime, and of the system of exactions, taxes, and coinage that had sustained it.’18 Eventually, the clergy would become beneficiaries of tithes,19 but that is an entirely different story. Similarly, the immunities from royal taxation allowed to churches as collectivities are essentially different from the personal immunities just discussed.20 Exemption from taxation by the state had no point when taxation in the normal sense had ceased to be a power of the state. The implications of Siricius’s ruling thus changed with the world around it. As with the fiscal implications, so with the legal implications. After the empire in the West collapsed, it seems unlikely that the legal exemptions, whatever they were, were of much use to clerics in minor orders. If they reappeared before the twelfth century, historians appear not to know it.21 In general, the legal evidence for Anglo-Saxon England is relatively rich 17

18 19 20

21

‘Roman legislation changed. A whole set of exemptions were removed in 441 (Valentinian Nov X) . . . [W]hat the law actually reimposed . . . depends how you translate munus publicum . . . but it certainly included tributum in gold. There were different views in the sixth century as to what could be demanded from clergy – it looks to me as if there were different concessions to the churches of different civitates (that is the logic of all the anecdotes in Gregory of Tours). In Spain there was disagreement . . . [S]ee Toledo IV, 47, on the freeing of all free clergy from all publica indictio [but] No exemption for clergy is listed in Leges Visigothorum, X, 15’ (personal communication from Ian Wood). J. Smith, Europe after Rome: a New Cultural History 500–1000 (Oxford, 2005), 187; Wickham, Framing, 58, 60 and 105–15 passim. Jones, Later Roman Empire, ii, 894–5. On taxation immunities for Churches in Merovingian Francia, see W. Goffart, ‘Old and New in Merovingian Taxation’, Past and Present 96 (1982), 3–21 passim. He does mention a Praeceptio of Chlothar II (584–628) ordering that ‘public officials are not to demand any public functio from any church or cleric who obtained an immunity from our grandfather and father’ (17–18), but this is different from the personal exemption of clerics as a class. For Carolingian taxation see e.g. J. L. Nelson, ‘Kingship and Royal Government’, in R. McKitterick, ed., The Cambridge Medieval History, ii, c. 700–c. 900, 383–430, at 395. I put the question to six early medieval historians, leaders in the field; none knew of any evidence that men at the low end of the clerical scale were exempt from secular justice, though they were duly cautious about categorically asserting a negative. C. West, ‘Pope Leo of Bourges, Clerical Immunity and the Early Medieval Secular’, Early Medieval Europe 29 (2021), 86–108, shows that popes lobbied for some kind of judicial immunity for clerics: see ibid., note 32. For instance, the following letters of Pelagius I are cited: J3.1902 (= Old Jaffé JK 948); J3.1986 (= Old Jaffé JK 964); J3.2004 (= Old Jaffé JK 965).

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but an authoritative historian comments that ‘What remains unclear is whether in practice clerics were brought before ecclesiastical tribunals for their offences. Case evidence is very limited, but suggests at least that clerics might encounter the ordinary mechanisms of justice and police and face secular punishments such as death.’22 In Anglo-Saxon laws, of course, the payment of a wergeld could be a way of avoiding death. According to Alfred’s laws the bishop should unfrock a priest who has committed homicide ‘when he is delivered up from the minster, unless his lord is willing to arrange for the wergeld [legally specified compensation] on his behalf’.23 We don’t know what happened if he was ‘delivered up’: probably he faced secular justice. If his wergeld were paid, he would presumably walk away, as a lay killer could. Judicial Exemption of the Clergy from the Twelfth Century In the twelfth century, the legal world was changing fast, and privilege for clerics in minor orders regained its significance and acquired new meaning. This has been especially well studied for England and France. By the reign of Henry II the wergeld system had been replaced by felony and execution (even for crimes that might not seem grave to us). Thomas Becket took up the cause of exempting criminal clerics from the secular courts. The rights and wrongs of this are of no concern here. One may point out that secular clerics were as likely to commit violent crimes as laymen;24 on the other hand one can sympathize with the desire to escape from a system under which the verdict was reached by ordeal and the penalty was death. In any case, after the murder of Becket, Henry II of England ‘promised the pope that clerics were not to be brought before a secular judge in persona sua concerning anything criminal or concerning any wrong, except wrong of his Forest and except lay fee whence lay service was owed to the king or another secular lord’.25 The immunity of the clergy, even the lowest clergy, from secular justice would appear to have been respected in France too.26 Oddly, the respect 22

23 24 25 26

J. Hudson, The Oxford History of the Laws of England, ii, 871–1216 (Oxford, 2012), 220; N. Marafioti, ‘Secular and Ecclesiastical Justice in Anglo-Saxon England’, Speculum 94 (2019), 774–805 is concerned not with the immunity from secular justice of clerics in minor orders but with ideas of how far and in what way bishops should be involved in secular justice. Hudson, Oxford History, 219. H. M. Thomas, The Secular Clergy in England, 1066–1216 (Oxford, 2014), 209. Hudson, Oxford History, 772. R. Génestal, Le Privilegium fori en France du décret de Gratien à la fin du XIVe siècle, 2 vols. Bibliothèque de l’École des hautes études, Sciences religieuses, 35, 39 (Paris, 1921–4);

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seems to have gone even further than Thomas Becket was fighting for, in that there is evidence for anxiety about arresting and punishing even clerics who had been deprived by the Church of their status for a previous offence – so were not being judged twice for the same offence, but for two different offences. As often, the best evidence is what a document simply takes for granted. In a letter of 1278 to the prelates of France, Nicolas III writes as follows: Nicholas, bishop, servant of the servants of God, to his venerable brothers the archbishops and bishops and his beloved sons the other prelates of Churches, greetings and apostolic blessings. It was put to us by our dearest son Philip the illustrious king of the French that not a few clerics who are bigami, and husbands of widows, and also other clerics in his kingdom do not fear to commit evil deeds, which offend the eyes of divine majesty, and scandalize men. Consequently we command you all through apostolic writings that you shall not prevent the same king, counts, and barons of the same kingdom, under whose jurisdiction the same malefactors are placed, from punishing them as justice recommends, that is, after they are caught committing dreadful crimes, which require the penalty of blood, when they have been deprived of their clerical status earlier for an antecedent reason [my italics], notwithstanding a contrary custom, which should not in reason exempt them from the penalty of blood . . .27

Without explicitly approving of the arrest of criminous clerks, this instructs the prelates not to prevent it. The letter is written at the request of the French king (Philip III) and no doubt reflects his views. What one can easily miss is the phrase ‘primitus . . . previa ratione’ – ‘earlier for an antecedent reason’. It is taken for granted that the criminals involved have already forfeited their clerical status for some previous wrongdoing. That should have already put them outside the protection of canon law, without the king needing to go cap in hand to the pope. In any case, the immunity of clerics in minor orders from secular justice is taken as a given.

27

cf. D. L. d’Avray, Medieval Marriage: Symbolism and Society (Oxford, 2005), 163–4, 168–9. ‘Nicolaus episcopus servus servorum dei, venerabilibus fratribus archiepiscopis et episcopis et dilectis filiis aliis/1// ecclesiarum prelatis per regnum Francie constitutis, salutem et apostolicam benedictionem. Ex parte carissimi . . . in Christo fi-/2//-lii nostri Philippi regis Francorum illustris fuit propositum coram nobis quod nonnulli clerici bigami et vi-/3//duarum mariti ac alii etiam clerici uxorati regni sui diversa maleficia committere non verentur, que oculos /4//divine maiestatis offendunt, et homines scandalizant. Quocirca universitati vestre per apostolica scripta manda-/5//-mus, quatinus non impediatis quominus idem rex, comites et barones ipsius regni sub quorum iuris-/6//-dictione malefactores ipsi consistunt, ipsos in enormibus dumtaxat criminibus deprehensos, que sanguinis pe-/7//-nam requirunt, eis primitus clericali gradu previa ratione privatis, puniant secundum quod iustitia suade-/8//-bit, consuetudine contraria que eos rationabiliter non eximat a pena sanguinis non obstante. Datum Viterbii /9// xiii Kal Octobris pontificatus nostri anno primo.’ Archives nationales de la France J.709.296.5; B. Barbiche, Les actes pontificaux originaux des archives nationales de Paris, ii, 1261–1304 (Vatican City, 1978), 227, no. 1599.

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Fiscal Privileges of the Clergy from the Twelfth Century As with judicial privilege, so with fiscal privilege: the state-building of the twelfth century brought back structures similar enough to those of the late Roman Empire for exemptions from taxation to return with them. As later medievalists know all too well, since it has been a grand narrative of the period for more than a century, the monarchies would revert in the last three or four medieval centuries to the ‘taxation and salary’ mode of government. They managed in one way or another – above all by claims of ‘necessity’ and by bargaining for the consent of their subjects – to overcome the quite general assumption that taxation was not a natural right of rulers. This process has been studied in considerable detail, the place in the picture of clerics in minor orders not so much, but it is the subject of a seminal article by R.-H. Bautier, whose principal theme is the successful effort by the French monarchy, with the help of canon law and indeed the papacy, to eliminate the valuable judicial and fiscal privileges of clerics in minor orders engaged in a range of secular occupations.28 (More on this below.) The push to limit exemption from taxation of clerics in minor orders is behind a significant fact noticed by Jean Dunbabin, writing about Charles of Anjou, the younger brother of Louis IX of France who acquired Provence by marriage and Southern Italy and Sicily by conquest, losing the latter after the celebrated revolt known as the Sicilian Vespers.29 She noted that in 1273 Charles ‘instructed his agent at Bari to limit tax concessions to those who wore the tonsure or clerical garb’.30 The implications could easily be missed. The reference to ‘tonsure or clerical garb’ suggests clerics who were not otherwise easily identifiable as such, though it could apply to priests or deacons who dressed like laymen. These were less likely to abandon the visible signs of their identity. In any case, the passage is proof of clerical tax exemption, the exceptions – clerics who didn’t look like clerics – proving the rule. In the same year, 1273, a similar scenario is the subject of a letter of Pope Gregory X to King Philip III of France, the nephew of Charles of Anjou.31 Philip has written to say that many married clerics of France have abandoned their habits and clerical tonsure and become mayors, échevins (scabini) and burgesses (pares) of towns and other places, baillis of princes, secular viscounts of prévôts, and in the course of their duties 28

29 30

R.-H. Bautier, ‘“Clercs mécaniques” et “clercs marchands” dans la France du XIIIe siècle’, Comptes rendus des séances de l’Académie des Inscriptions et Belles-Lettres 125 (1981), 209–42, at 210 for fiscal exemption: ‘Tout clerc . . . faible fraction de monde cléricale.’ J. Dunbabin, Charles of Anjou: Power, Kingship and State-Making in Thirteenth Century Europe (London, 1998). Ibid., 149–50. 31 d’Avray, Medieval Marriage, 254.

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punish criminals with execution (sanguinis vindictam exercent), though clerics are not allowed to do so. Nonetheless, they use their clerical status to avoid ‘justices and due services’ (iustitias et debita servitia). The iustitias is more likely to refer to legal exemption, to which we will return, than to fiscal exemption, but servitia probably mean the latter, exemption from taxes. That the clerics are married is not, NB, the subject of complaint, so they have to be clerics in minor orders only. The issue is that they are not living like clerics, yet have availed themself of clerical exemptions.32 The topic of taxation exemption for clerics, especially at the low end of the clerical scale, clearly deserves more scholarly attention, but we have enough already to see the homology with the Christian Roman Empire of the fourth and fifth centuries, and the contrast with the intervening period. To recapitulate: in both late Antiquity and the central Middle Ages clerics enjoyed important exemptions from secular taxation and secular justice, a privileged situation that did not obtain between the two periods, in the early Middle Ages. So, the first conclusion reverts to the point that Europe had circled round to structures similar to those around the first papal laws. The motion is better pictured as helical, however, since the purchase of papal law on social life was much more powerful in the later period, in that it no longer depended on what bishops chose to do with it, and because its scope was extended. ‘The Canon’: The Penalty for Violence against a Cleric One of the most remarkable extensions was the decree of the Second Lateran Council (in 1139) that violence against a cleric could only be absolved by the pope (unless in danger of death); this was incorporated into Gratian’s Decretum.33 That had major implications, as recent work on the registers in the archive of the Penitenzieria Apostolica has made clear.34 These only tell us about the fifteenth century onwards but they show how many people needed to get this absolution. The papal penitentiary seems, so far as one can judge, to have been more than willing to grant these absolutions: Si quis suadente was one of those pieces of 32

33 34

One of the meanings of servitium given by Ducange, Glossarium (consulted via the Logeion website, https://logeion.uchicago.edu/servitium, accessed 20 September 2021) is ‘Redditus, tributum, quævis præstatio, Gall. Redevance. Libertates hominum de Prisseyo ann. 1362. inter Ordinat. Reg. Franc. tom. 3. pag. 597’. PARS II C. 17 q. 4 c. 29; Friedberg, Corpus, i, col. 822. P. Clarke, ‘The Medieval Clergy and Violence: an Historiographical Introduction’, in G. Jaritz and A. Marinkovic, eds., Violence and the Medieval Clergy (Budapest, 2011), 3–16, at 8–9.

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legislation whose disruptive effects must have been far from the minds of the Council prelates who passed it.35 Gloss II, Siricius’s Ruling, and the Liber Extra Johannes Teutonicus and Bartholomaeus Brixiensis were well aware of the connection between Siricius’s ruling and Si quis suadente, though the commentary is so telegraphic as to require close interpretation. We read that ‘someone who struck’ a twice-married cleric ‘does not come within the scope of “the canon”’. What canon is this? The following sentence indicates that it is Si quis suadente. It is at this point that his confusion about chronology manifests itself: he says that this is true of the time of Siricius who preceded the Innocent who published Si quis suadente. The meaning is really unclear here: is he saying that the consequences of violence towards a cleric were different before Si quis suadente? I incline to think not. Rather, I think he is switching Innocent II with Innocent I, whom he regards as belonging to the same time, tempus, as Siricius, and that he was aware that this was a long time ago. That makes sense of his next question: ‘What about today?’ Here we meet ‘H.’ again. The compressed answer attributed to H. is that violence against even a ‘bigamous’ cleric incurs this massive excommunication, because even such a cleric is obliged to wear the tonsure, which would mark him out as a cleric. H. does not say what happens if the victim has nonetheless allowed his hair to grow out (or perhaps Gloss II is over-compressing H.’s view). The authority cited for this is in the 1234 Liber Extra, but it is unusually early for that post-Gratian compilation: a late Antique conciliar degree. Then we seem to get the opinion of Gloss II, which is that to marry a widow or a woman who is not a virgin is to forfeit all clerical privileges. That implies that if you did, and were then the victim of violence, your assailant did not need to get absolution from the pope. Specifying that the cleric’s wife must be a virgin is to take a hard line. The papal legislation of late Antiquity is ambiguous about this. There are allusions to rule that Old Testament priests had to marry virgins,36 and the letter of Innocent I to Felix of Nocera does specify that the wife must be a virgin – but in context this could be read as synonymous with ‘unmarried’,37 and anyway this text appears not to be in Gratian’s 35

36

Cf. Duggan, ‘“New” and “Old” Law’, 312 and note 57. (She has a paper in press with the Acta of the 2016 Medieval Canon Law Congress at Paris. See also D. Summerlin, The Canons of the Third Lateran Council of 1179: Their Origins and Reception (Cambridge, 2019), 187, and notes 19 and 20 with further references (to work by R. H. Helmholz and K. Christenson respectively).) PJc.400, 155, 158, 162, 169. 37 Ibid., 161.

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Decretum and may not have been widely known.38 Nonetheless, Gloss II classifies widows and non-virgins together; marriage to either disqualifies a man from clerical status. Then the gloss goes on to consider what happens if the wife is indeed a virgin. He is continuing his conversation with Siricius’s text beyond what its wording required, but he is thinking of the conditions of his own time. The cleric married to a virgin has a choice, he says. He can wear the tonsure, and live clericaliter, in a clerical way, which would mean that he avoids certain ways of making a living. More of that below. If he avoids them and stays tonsured, he enjoys the clerical privilege, including the dramatic protection from violence afforded by Si quis suadente. Otherwise he loses the clerical status and the privilege that goes with it, though some say the contrary. So far, Bartholomaeus Brixiensis has followed Johannes Teutonicus. At this point he goes further, and cites from the Liber Extra a papal decretal, a letter from Innocent III to the bishop of Poitiers, that should give us further food for thought. The translation is provided in Appendix C(c). Innocent is responding to a man who does not want to wear the tonsure. He is married with children, wearing the tonsure is a source of tension with his wife, and in his region it is not the custom to make clerics keep it if they don’t want to. He is engaged in secular business of a sort deemed inappropriate for clerics. But the bishop has tried to make him wear the tonsure. Innocent III raps the bishop of Poitiers’s knuckles and tells him to stop trying.39 The man being pressured will not enjoy clerical privilege and is ineligible for any benefice requiring the tonsure, but it would seem that he is not worried about the privilege and is making his living – probably a good living since he appealed to the pope – in a secular profession. Too Many Unclerical Clerics This passage in this context has interesting implications, which RobertHenri Bautier’s investigation helps us to draw out.40 Innocent III’s response illustrates the fluidity of the boundary between the lay and clerical states in the thirteenth century. Though evidence is much sparser 38 39

40

A negative fact which I failed to record in PJc.400, 162. Note too that on p. 161 the date span is given as 402–7 when it should be 402–17. Cf. Bautier, ‘“Clercs mécaniques” et “clercs marchands”’, 211: ‘Il était d’ailleurs admis que s’ils exerçaient des activités ne répondant pas exactement à l’idéal de la vie clérical, ils pouvaient, surtout s’ils étaient mariés, être dispensés de la tonsure pour ne point risquer de comprometre la dignité du caractère clérical.’ Bautier, ‘“Clercs mécaniques” et “clercs marchands”’.

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for late Antiquity, what we do know suggests that clerics in minor orders were firmly in the clerical cursus and quite sharply distinguished from laymen, by contrast with the situation Innocent III is addressing. He is backing up a complainant in a no man’s land between the lay and clerical states. There is plenty of evidence that there were men who, unlike the one Innocent III is supporting, saw clerical status as an advantage in their otherwise entirely secular way of life.41 The advantages are obvious: the fiscal and judicial immunities discussed above, and the shield against violence provided by Si quis suadente. That piece of legislation and the other twelfth-century measures to shore up clerical status apparently had the unintended consequences of attracting enormous numbers of men into the minor orders of the clergy. Using a rare piece of quantitative evidence, Bautier found that in one settlement, Montolio, of about 2,000 inhabitants, almost a third of the male population was considered part of the clergy and that there must have been at least one cleric in practically every family.42 Was this at all typical? Who knows! But there is some other evidence to suggest that it may not have been exceptional.43 In many cases, the work and lifestyle of clerics in minor orders were entirely secular. Prompted by French kings, thirteenth-century popes legislated against this repeatedly.44 What may at first seem odd is that – as in the case quoted by Bartholomaeus Brixiensis – bishops seem to have been part of the problem rather than the solution. In 1254, the pope moved against businessmen and usurers in Arras who were instrumentalizing their purely formal clerical status to avoid city taxes. These were men from the wealthy class of the city. They had the support of the bishop!45 Bautier correctly identifies the reason: exemption of a cleric from secular justice meant that he was subject to episcopal justice. The more clerics there were, the greater the bishop’s judicial power, and also his income.46 There was a well-known medieval saying that ‘justice is a great source of profit’, justitia est magnum emolumentum.47 41 43 44

45 46 47

Cf. Ibid., 212–14. 42 Ibid., 229. Ibid., 230; and the whole investigation of Bautier suggests that the number of clerics in minor orders was enormous: see e.g. 236–7. Ibid., 220–5. Cf. 214: ‘Alertée par les autorités laïques, la papauté a été progressivement sensibilisée au problèmes posés par l’extension considerable de la cléricature: . . . de jongleurs.’ Ibid., 222. Ibid., 212: ‘des prélats . . . à des ecclésiastiques’; ibid., 214: ‘L’épiscopat . . . l’importance de ses revenus.’ Cf. e.g. R. F. Hunnisett, ‘The Origins of the Office of Coroner’, Transactions of the Royal Historical Society 8 (1958), 85–104, at 104.

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This is where Bartholomaeus Brixiensis’s commentary on Gratian leaves us (though it took us further than his source Johannes Teutonicus). But the conversation about clerics in minor orders continued. Clearly, the Church felt that it should continue to protect its own status group, quite aside from the profit motive apparently animating some bishops, but on the other hand the papacy, and doubtless the more high-minded of other prelates, could appreciate the problem. The problem was limited if not solved by the top-level ruling of the Second Council of Lyons of 1274 that ‘bigamous’ clerics be stripped of their clerical status48 – which takes us back to Siricius’s ruling of 385. Gloss II began the commentary on Siricius’s ruling by saying that the 385 ruling had to apply to clerics in minor orders because otherwise it did not make sense.49 It would not make sense in the thirteenth century because subdeacons, deacons, and priests could not have even one living wife, let alone two, but for slightly different reasons it would not have made sense in Siricius’s world either: the celibacy rule that Siricius also laid down meant that it made little sense for a deacon or priest to remarry if his wife died, and as for marrying a widow, most clerics would have been married already. The secular occupations of so many clerics in minor orders might seem like a major difference, but even that might not have been so great: many of the lower clergy in the later Roman Empire probably had to do some secular work to support themselves.50 Plus ça change, plus c’est la même chose? Not exactly. In late Antiquity clerics in minor orders were much more ‘clerical’ than so many of their legally and fiscally entitled thirteenth-century counterparts. Even so, if you inflicted serious physical harm on one of the latter, you needed to get absolution from the pope – unless the victim of assault was on his second marriage or married to a widow! Conclusion The strange and interesting bigamia rule remained a constant from the fourth century on, but the social worlds to which it was applied were different. A high proportion of those thirteenth-century clerics in minor orders did not have much to do with the clerical world, whereas their late Antique counterparts were presumably more or less integrated into the tight community around the city’s bishop. In the thirteenth century, the bigamia rule enabled popes and kings to deny clerical privileges to phony 48 50

d’Avray, Medieval Marriage, 159–64. 49 See Appendix C(c). Personal communication from Ian Wood.

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clergymen who enjoyed fiscal and judicial immunities, even though those clerics were supported by bishops whose power and profits they enhanced. How bishops were elected and how the systems evolved over time will be the topic of the next chapter.

18

Choosing Bishops

The Complicated Life of a Papal Ruling This chapter traces the reception after the Gregorian Reform of the late Antique papal ruling about episcopal elections known as Nullus invitis. Following the standard gloss, I will analyse it together with Liber Extra rulings from the second decretal age. Nullus invitis was included by Celestine I in his letter of 428 to the bishops of the Viennensis and Narbonensis.1 He ruled that election should be by clergy, laity, and city council, and that internal candidates who had risen through the clerical cursus of the Church in question should not be sidelined in favour of highflyers from outside (we saw in Chapter 7 that he probably had in mind elite monks, especially from Lérins). This ruling was constantly copied in canon law collections but was more or less dormant so far as practical application was concerned in the early medieval period, to become relevant again after the Gregorian Reform. One may study the transmission and reception of the ruling as a conversation over time, reacting to changes around it, especially the spread of Christianity outside cities; the conflict between the papacy and secular rulers in the decades around 1100; and the new papal jurisprudence of the post-Gregorian Reform period. These changes generated new uncertainties. In particular, the diminution of secular rulers’ influence rebuilt the role of the clergy in elections, but that then raised the question of what consent of the clergy of a diocesan ‘Church’ meant, exactly. The answer that gradually gained traction was ‘the cathedral chapter’, and conciliar legislation cemented this answer, which prompted the further question of what – in the absence of mystical modern assumptions about 51 per cent majorities – precisely constituted its consent? There were many disputed elections which went on appeal to the papacy, creating a complicated case law. The relation of all these developments to Celestine’s original ruling on internal candidates required answers from interpreters of Nullus invitis. 1

PJc.400, 129–30.

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The following pages trace some efforts by influential thirteenth-century canon lawyers to deal with the complexities and resolve the uncertainties that had arisen in the aftermath of the Gregorian Reform.2 What became the official view was crystallized, probably before the middle of the thirteenth century, in Gloss II, where on this point Bartholomaeus Brixiensis parted company from Johannes Teutonicus. To interpret this ruling from the first decretal age, Gloss II cites others from the second decretal age. The System for Choosing Bishops: An Ideal-Type of Its Evolution The history of the episcopal election system that the Gregorian Reformers confronted was sketched in Chapter 14,3 where I argued that the Council of Nicaea and late Antique papal jurisprudence on episcopal elections had left a problematic legacy to the post-Roman world. The system of election by the consent of ‘the clergy and people’ was made for a world where Christian communities were urban islands in a pagan rural sea. After the Christianization of the countryside and creation of a parish system, what could the consensus of such ‘Churches’ mean? Things were different in the Christian East, where a functioning system appears to have evolved. In a nutshell, in the area under the patriarch of Constantinople, when a bishop died, the metropolitan summoned the suffragan bishops, who picked three candidates, from whom the metropolitan picked the new bishop.4 That could work because the patriarchate of Constantinople corresponded to a political unit, the Byzantine Empire. In the West it was not so easy, because there were many successor states to the Roman Empire, and the boundaries between them kept shifting. The rulers of these volatile kingdoms did not like the Churches within them to 2 3

4

This chapter owes a great deal to help from Ken Pennington and his article cited in the next note. In addition to works cited earlier, for the early period, see P. G. Caron, ‘Les élections episcopales dans la doctrine et la pratique de l’Église’, Cahiers de Civilisation Médiévale 11 (1968), 573–85; and, to the mid-twelfth century, A. Thier, Hierarchie und Autonomie: Regelungstraditionen der Bischofsbestellung in der Geschichte der kirchlichen Wahlrechts bis 1140. Recht im ersten Jahrtausend 1 (Frankfurt am Main, 2011); for a twelfth-century case study, see B.-M. Tock, ‘Les élections épiscopales à Arras de Lambert à Pierre Ier (1093–1203)’, Revue belge de philologie et d’histoire 65 (1987), 709–21; for the canon law of the ‘classical period’ (twelfth and thirteenth centuries), R. L. Benson, The Bishop-Elect: a Study in Medieval Ecclesiastical Office (Princeton, 1968); K. Pennington, ‘The Golden Age of Episcopal Elections, 1100–1300’, Bulletin of Medieval Canon Law 35 (2018), 243–53. P. L’Huillier, ‘Quelques remarques à propos des élections episcopales dans l’Orient byzantin’, Revue des études byzantines 25 (1967), 101–5, at 103.

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be subject to a metropolitan outside their boundaries.5 In any case, both metropolitans and other bishops had acquired too much land and power6 to be left outside the control of kings, and it became common for a king to pick his bishops. As is well known, the papal turn of the eleventh century and the Investiture Contest challenged this system with some success.7 Kings continued to influence elections but had to rely more on informal pressure, decisive in England in the twelfth century, less so in the thirteenth.8 (Royal control of episcopal elections, via a compliant papacy, would be back in the late Middle Ages, but that is a different story.) A new system was needed. Why not something like the Byzantine system? For one thing, there was a water table of resentment on the part of ordinary bishops against metropolitans.9 The propaganda against metropolitan power over the suffragan bishops subject to it in the forged decretals (Pseudo-Isidore) was both a symptom of this attitude and a barrier against extension of metropolitan authority. Furthermore, the question would arise: who appoints the metropolitans? Not the king, not formally at least, after the battles over investiture. King John tried hard, and lost. Perhaps a primate, a bishop over the overbishops? But who was the primate? In England the Archbishop of Canterbury battled to be primate with authority over the Archbishop of York, and a lot of documents were forged in the process of trying to prove it.10 In the end, Canterbury failed to win authority over York. The complex legacy of the early Middle Ages led to widespread (legal) conflict about which bishops ruled other bishops. Thus, the upper 5

6 7

8 9

10

For the geographical evolution of the diocesan system see M. Lauwers, ‘Territorium non facere diocesim: conflits, limites et représentation territoriale du diocèse (Ve–XIIIe siècle)’, in F. Mazel, ed., L’espace du diocèse dans l’occident médiéval (Ve–XVIIIe siècle) (Rennes, 2008), 23–65. I. Wood, ‘Entrusting Western Europe to the Church, 400–750’, Transactions of the Royal Historical Society 23 (2013), 37–73. There are many accounts but for good recent ones see J. Peltzer, Canon Law, Careers and Conquest: Episcopal Elections in Normandy and Greater Anjou, c. 1140–c. 1230 (Cambridge, 2007), 20–6; P. Christophe, L’élection des évêques dans l’Église latine au premier Millénaire (Paris, 2009), 154–67; Thier, Hierarchie und Autonomie, 308–34, 341–2, 411–17 (Thier is good for the connection between ancient and ‘papal turn’ canon law); J. Barrow, The Clergy in the Medieval World: Secular Clerics, Their Families and Careers in North-Western Europe, c. 800–c. 1200 (Cambridge, 2015), 273–4 with further references. See also the discussion above in Chapter 14. K. Harvey, Episcopal Appointments in England, c. 1214–1344: from Episcopal Election to Papal Provision (Farnham, 2014). ‘En fait, les rapports entre métropolitain et suffragants ont été très souvent tendus.’ G. Le Bras, Instititutions ecclésiastiques de la Chrétienté médiévale, première partie, livres II à VI. Histoire de l’église 12 (Paris, 1964), 532. R. W. Southern, ‘The Canterbury Forgeries’, English Historical Review 287 (1958), 193–226; H. E. J. Cowdrey, Lanfranc: Scholar, Monk, Archbishop (Oxford, 2003) 97–8.

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echelons of the episcopal hierarchy were too contested to be a solution to the problem of episcopal elections: one could not rely on a decision by the metropolitan if it was uncertain who the metropolitan was. Here we should listen to Maitland, quoting a top canon lawyer: ‘Well, I’ve been in some big affairs in my time. I was counsel for the archbishop of Bourges when he claimed a primacy over the archbishop of Bordeaux. I was counsel for Compostela when it resisted Toledo’s claim to a primacy over all Spain. I was counsel for the archbishop of Pisa when he claimed a primacy over Sardinia.’11 Given that the late Antique system had lost its grip on social realities, and that the Byzantine system of metropolitan and imperial elections was equally inapplicable, a fresh system of election had to be sought. It was found in the cathedral chapter, in an age when chapters were growing in economic independence12 and confidence – an assurance and collective self-awareness which their right to elect bishops would accelerate. The process took time. The Second Lateran Council of 1139 (c. 28) did not accept that the chapter had the exclusive right to elect.13 By the early thirteenth century, however, there was a consensus with papal approval that the cathedral chapter was the electing body.14 In some ways one can see the chapter as a sort of successor to the clerical community around a bishop in late Antiquity, though the similarity would not stand up to examination: the chapter was much more structured, was linked to service in the cathedral and sources of income, etc. In some parts of Europe at least cathedral canonries – nice jobs anywhere – were monopolized by the local secular elites,15 whereas the clergy around the late Roman Gallic bishops to whom Celestine I sent Nullus invitis ‘remained relatively little men, drawn from the town councillors and the rich plebeians’, social equals of ‘members of the lower ranks of the imperial bureaucracy’.16 11 12 13

14 15

16

F. W. Maitland, ‘William of Drogheda and the Universal Ordinary’, Roman Canon Law in the Church of England (London, 1898), 100–31, at 121. Cf. e.g. E. U. Crosby, Bishop and Chapter in Twelfth-Century England: a Study of the Mensa Episcopalis (Cambridge, 1994). T. Joubert, ‘L’élection épiscopale dans le Décret de Gratien: un exemple de tradition canonique’, Studia Canonica 49 (2015), 357–78, at 365 note 29, discussing the reservations by the 1139 Lateran Council about the chapter’s monopoly, and the treatment of the question by Gratian; cf. Peltzer, Canon Law, 27. It was more or less standard by Innocent III’s time: see X.1.6.31; Friedberg, Corpus, ii, cols. 76–7. A. Hauck, Kirchengeschichte Deutschlands, fünfte Teil, erste Hälfte (Berlin, 1958), 195; Barrow, Clergy, 274 notes that ‘in territories where royal control was weak, as in upper and lower Lotharingia in the twelfth century, the most prominent families of the region would pack the chapter with relatives and hangers-on and thus control elections’. P. Brown, Through the Eye of a Needle: Wealth, the Fall of Rome, and the Making of Christianity in the West, 350–550 ad (Princeton, 2012), 425.

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Making the cathedral chapter the electing body was not an ideal solution, but even if adopted, it left plenty of problems. Uncertainties: What Counts as ‘Election’? Even if the cathedral chapter was accepted as the electing body, many questions were still left unanswered.17 The idea of legitimation by a 51 per cent majority of individuals with equally weighted votes, which is accepted as an unchallenged axiom by Western and westernized people, was not an assumption in the Middle Ages.18 It is indeed a mysterious concept if viewed as a value, as it often is, but it has the overwhelming merit of being mechanically applicable, as indeed was the rule for papal elections adopted, after the bitter and repeated experience of disputed papal elections, at the Lateran Council of 1179. That rule laid down a two-thirds majority principle for election of pope by cardinals.19 Yet the two-thirds formula does not seem to have come naturally to twelfth-century ecclesiastics.20 For other elections, the power to elect lay with the ‘greater and sounder part’, maior et sanior pars, of the chapter.21 This is taken for granted in Innocent III’s day.22 But how should the greater and the sounder part be balanced against each other? A range of views can be found among canonists.23 The ‘greater and sounder part’ was a very ambiguous principle! In the long run, so many elections would be contested that the papacy unostentatiously took over, with tacit secular support so long as royal candidates were favoured; popes were already, earlier, beginning to move in that direction by creeping use of papal provision (i.e. appointment).24 In the meantime, though, new uncertainties, tensions and contradictions between evolving constituent parts of the larger canon law system were emerging, and both the parts and the whole had to deal with changes outside the formal legal system. Internal and External Candidates The electoral body aside, who was eligible to be chosen? Nullus invitis had come down on the side of the cursus of the clergy around the bishop who 17 18 19 20 22 23 24

Le Bras, Institutions, 372 note 16 for references to key decisions in the Liber Extra and subsequent papal collections. J. H. Burns, ‘Majorities: an Exploration’, History of Political Thought 24 (2003), 66–85. D. Summerlin, The Canons of the Third Lateran Council of 1179: Their Origins and Reception (Cambridge, 2019), 56. Ibid., 170. 21 Ibid., 56, 117; Peltzer, Canon Law, 29, 44–8. In the Liber Extra, X.1.6.22; Friedberg, Corpus, ii, 64–6. Good discussion in Peltzer, Canon Law, 39, 41–8. Harvey, Episcopal Appointments, 229–33.

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was to be replaced, and against leapfrogging into episcopal office by highflyers. (A high-flyer might have complained that they were backing the ‘Buggin’s turn’ principle.) Before the Investiture Contest, when kings often called the shots, these decretal decisions will have been dead letters, as noted above. In the twelfth and thirteenth centuries they were again the subject of debate. In a twelfth-century context, did a man from anywhere in the diocese count as an internal candidate? That seems to have been the assumption in the well-studied dioceses of Normandy and Anjou in the decades around 1200, though it was ‘a guideline to the ideal candidate’ rather than ‘a strict rule’ (so did not exclude candidates from further afield).25 Alternatively, however, Nullus invitis could be understood to mean that a canon of cathedral chapter should be elected. Celestine I’s ruling could bear either interpretation, in that the clergy around the bishop was perhaps the nearest late Roman equivalent to a twelfth-century cathedral chapter, but, on the other hand, only a tiny subset of the clergy of a twelfth- or thirteenth-century diocese belonged to the chapter, in sharp contrast with the clergy around the bishop in late Antiquity. Internal Candidates and the ‘Greater and Sounder Part’ The question of whether internal candidates had priority intersected with the question of what constituted the ‘greater and sounder part’. Given that the latter did not have to be a numerical majority, what happened if an internal candidate had minority support? As in the previous two chapters, the debate involved not only an early decretal but also Gratian, the Liber Extra, and Gloss II (Johannes Teutonicus as updated by Bartholomaeus Brixiensis). Appendix C(d) aims to make it easier to understand how Gloss II deployed recent papal case law, as incorporated into the still more recent papal code, to interpret ancient papal law transmitted by Gratian. To this end, the most important papal decretals cited are also translated in the appendix, as Gloss II gives the bare references only. Translating Gloss II together with the decretals it cites brings out the sheer complexity of papal law. That should not be regarded as a weakness of the law, for the realities with which it was getting to grips were far more complex still. The Liber Extra had in fact already eliminated much of the legally irrelevant complexity (which can still be studied by reading the long passages printed in italics in Friedberg’s edition). On the point at issue the two authors of Gloss II disagreed. Bartholomaeus Brixiensis drew it all together, taking most of his material 25

Peltzer, Canon Law, 212.

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from Johannes Teutonicus, who favoured an updated version of Nullus invitis’s principle of priority for the internal candidate, but dissented from Johannes at the end, coming down on what would be the winning side and implicitly setting Nullus invitis aside.26 Intriguingly, both Johannes and Bartholomaeus seem to think that the decretals cited by Johannes favour their own view, or are at least compatible with it. The sheer complexity of the cases the decretals from the Liber Extra dealt with created uncertainty about their applicability to the problem of internal v. external candidates, especially since that was not the main concern of the decretals in question. Bartholomaeus does, however, have two winning cards: the relevant decree of the Lateran Council of 1179, which was awkward if not deadly for Johannes’s case, and a papal decretal that Johannes Teutonicus appears – on the basis of the manuscripts I have surveyed – to have omitted. Before they part company, however, the two glossators cover some common ground – that is, Bartholomaeus copies Johannes without indicating dissent. Minorities, the Laity, and the Clergy of the Diocesan Church Gloss II does not go straight to the divergence between its two authors, Johannes and Bartholomaeus. Initial points are that a minority cannot block an election without just cause (we will see later that Johannes Teutonicus thought that choice of an external candidate by the majority could be a just cause), and, interestingly, that the laity could block an election – given a just cause. This is an incidental reminder of the largely cooperative ethos in clerical–lay relations after the end of the Investiture Contest. Then Gloss II moves on discuss what the priority of internal candidates meant. Do all the diocesan clergy count as internal candidates, and do they all have to be rejected as unsuitable before other candidates are considered? This is a problem that would hardly have arisen when Celestine I made the ruling under consideration, since the diocesan clergy could for the most part be equated with city clergy around the bishop. No doubt great landowners had house chaplains of some sort, no doubt there were a few other priests here and there, but these would not be major players in the election of a bishop. Within a city, it would probably have been fairly clear who the movers and shakers were, given the hierarchical character of the clergy. 26

A key finding of K. Pennington’s incisive ‘The Golden Age of Episcopal Elections, 1100– 1300’, Bulletin of Medieval Canon Law 35 (2018), 243–53.

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Gloss II runs fast through a series of authorities, including decretals from the Liber Extra. Cleverly, a decretal limiting the use of the pallium (ritual garment by this time normally indicating metropolitan status27) to churches in their diocese (as opposed to outside in processions) is turned into an argument for counting all the churches as part of the diocesan ‘Church’. This seems not to be Johannes Teutonicus’s final view but it is typical of his fair-minded approach to present the whole range of evidence, in a sic et non, for-and-against spirit. It is characteristic of this phase of canon law thinking that Roman law texts are cited. The commentary is so allusive that the bearing of other authorities is hard to work out. I found this especially true of the decretal Cum nobis olim (X.1.6.19), even after translating it. At least there is a clear conclusion to this part of the argument: it is enough to treat the canons of the cathedral chapter as internal candidates with a prior claim. After that, there can be an open competition. Something close to a knock-down argument comes from a decretal of Innocent III, Cum clerici (X.5.40.19). The cathedral canons of Piacenza had asked what their oath to be faithful and obedient to the Church of Piacenza implied. Innocent replies that it means not the whole diocese but the chapter of the cathedral church. This is another example of the technique of snatching an inference from an unobvious setting. The Internal Candidate with Minority Support Now we come to the point on which Johannes Teutonicus and Bartholomaeus Brixiensis disagreed. What should be done when the majority chooses an external candidate, and a minority the internal – choosing a bishop ‘from the womb’ of the Church (‘de gremio suo’). At this point it is worth remembering again that Johannes Teutonicus was, from 1212, a canon of the cathedral church of Halberstadt, and probably knew that this was in the offing earlier than that, so not long after he started teaching at Bologna.28 If he had a bias, it would be towards the claims of the cathedral chapter – actually, once a canon, he would have been a natural candidate for a bishopric himself, had the cards fallen the right way. Nonetheless, he is scrupulously fair in his presentation of the evidence, citing papal decretals against his view. One is Cum nobis olim (X.1.6.19), 27 28

S. Schoenig, Bonds of Wool: the Pallium and Papal Power in the Middle Ages (Washington, DC, 2006). K. Pennington, ‘The Decretalists 1190–1234’, in W. Hartmann and K. Pennington, eds., History of Medieval Canon Law in the Classical Period, 1140–1234: from Gratian to the Decretals of Pope Gregory IX (Washington, DC, 2008), 211–45, at 233; J. A. Brundage, Medieval Canon Law (Harlow, 1995), 220. Pennington’s short life of Johannes Teutonicus should appear shortly.

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which seemed puzzling as deployed earlier in the gloss but is certainly relevant here, where Innocent III opts for the external candidate, his own subdeacon who has what looks like majority support in the cathedral chapter. Then comes Cum inter R. seniorem (X.1.6.16), which is about a disputed election in a monastery, and thus less directly relevant – indeed it is not so clear why it is relevant at all, except that the majority of the community seems to have come out on top after an unedifying conflict. Despite this, Johannes Teutonicus states firmly his view that ‘the election made by the minority holds, so long as they elect, in accordance with canon law, from their community’. The member of the local Church should be considered first. What about the decretals that he had conscientiously cited as apparently contrary to his view? Appearances are deceptive, Johannes argues, because in those there was no rival minority candidate. The argument is not over. Johannes refers to another decretal that seems to contradict his view. This reference is hard to trace,29 though the canonist’s response is not: there had been a formal agreement to take the man supported by the majority. There follows an arabesque about an imaginary case in which the minority candidate has a party of one behind him, namely himself. Not on, says Johannes! Johannes is also prepared to accept an external candidate if the chapter has delegated the choice to a committee which picks the outsider. The long decretal to which he first alludes, Post translationem, X.1.9.11, is mainly about another issue (if someone has given up a bishopric, can he be elected to another one?); however, it does indeed mention in passing delegation to a committee (of only one person, in this particular case) and his choice of an external candidate; the next decretal cited also mentions delegation to a committee (In causis, X.1.6.30). A final decretal (Bone, X.1.5.4) is about external candidates but not delegation, so far as I can see. Perhaps the eyes of Johannes glazed over as he read it in the form unabridged by the later editor of the Liber Extra (i.e. including the passages printed in italics in Friedberg’s edition). However that may be, Johannes is willing to concede that an outside candidate can get the job when the delegates do not stray very far from their instructions. He ends with a learned citation of a relevant Roman law text. The second author of Gloss II, Bartholomaeus Brixiensis, favoured instead the majority principle. On the basis of a preliminary examination, 29

See translation at ‘But there is still one obstacle’, edition at ‘Sed adhuc obstat’. If one reads ‘in causis’ rather than ‘in casis’ (see apparatus criticus) this would be a reference to X.1.6.30, which he comes to a little later on, and which is translated in Appendix C(d). The trouble is that here both candidates are external and that the majority is of an electing committee, not of the chapter as a whole.

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admittedly of only a handful of manuscripts,30 it looks as though Bartholomaeus had inserted a few lines earlier, into the exposition borrowed from Johannes, a reference to a decretal which was an uncomfortable fit to say the least with Johannes’s position. This was Cum inter canonicos (X.1.6.21). It looks like a real problem for Johannes Teutonicus. In it Innocent III backs the canons of Saona, who had elected the provost of Asti, against one of their own number who had argued that they should not ‘go to another Church as long as a suitable man could be found in the Church of Saona’. Innocent III was unimpressed by the plea for a local man. Then, after Johannes’s passage about delegated elections, Bartholomaeus states his pro-majority view in no uncertain terms, as Ken Pennington has already highlighted.31 His star witness was the Lateran Council of 1179 and its ‘greater and sounder part’ rule. Pennington goes on to show that this was the view that won out. Conclusion: One Text in Two Worlds Episcopal elections furnish another example of the enlargement of legal meaning in the course of its application to new states of affairs. By the time Bartholomaeus Brixiensis was updating the gloss of Teutonicus on Gratian, the conversation started by Celestine I in 428 when he sent Nullus invitis to Southern Gaul had become complex and convoluted, but not arbitrarily so. It was being applied to situations and conditions quite different from those of the Roman Empire. Not in all respects. Just as monks from late Roman Lérins were leapfrogging over local clerics to bishoprics in Gaul, friars were being appointed as bishops in the thirteenth century.32 But clerical communities around late Roman bishops resembled neither the gamut of clergy spread over large thirteenthcentury dioceses, nor the canons of thirteenth-century cathedrals. The slow transformation of the Western diocese and the Investiture Contest left a legacy of uncertainty about how to elect a bishop. In the face-to-face clerical world of late Antiquity, successful candidates might float to the surface. In the thirteenth century, the efforts to create a transparently rational system for larger and more impersonal units were complicated: both by uncertainties of the ‘greater and sounder part’ rule, and by the multiple complexities of the kinds of concrete situations revealed by the ‘second age’ decretals which Teutonicus and 30 31 32

See apparatus criticus, where I have marked the probable insertion in bold. Pennington, ‘Golden Age’, 252. W. R. Thomson, Friars in the Cathedral: the First Franciscan Bishops, 1226–1261 (Toronto, 1975).

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Brixiensis cite. In the end these decretals pointed to the abandonment of the internal candidate’s privileged status, but Johannes Teutonicus had made a formidable and fair-minded effort to apply the fifth-century Nullus invitis to his own era. Chapters 16–18 have all dealt with decretals that address problems arising from the evolution of subsystems: the emergence of the system of the election of bishops by the ‘greater and saner part’ of the chapter, the massive fiscal and legal privileges acquired by huge numbers clerics in minor orders in the twelfth century, and the ‘Pauline Privilege’ system. In each of these three cases the developments were related to, but went well beyond, problems addressed by papal rulings in late Antiquity.

Overall Conclusions

The foregoing chapters have attempted to answer the two questions posed at the start of the book: why was there demand for papal rulings in the decades around 400, and how were those rulings received subsequently? To the question about origins, two main answers emerged. On the one hand, papal rulings were wanted to enable fast evolving and not obviously compatible Christian systems to work together (monasticism and the normal clergy, reintegration of repentant heretics, ritual and status, hierarchy of command and status hierarchy, etc.). On the other, responses were required to resolve uncertainties about Christian life and thought (about grace and free will, about indissolubility of marriage, about clerics plausibly claiming not to know about celibacy, etc.). There was uncertainty, furthermore, about the limits of non-negotiable principle. Practices that fell short of absolute principle, but not by far, shaded off into the range of inessential things. Where to draw the line? Then: uncertainty and complexity intersect, in that one source of uncertainty was the incompatibility between systems in a world of many Christian subsystems. Together, they account for the rise of a demand-driven papal jurisprudence. To the second question, about reception, several overlapping answers were offered. In the fifth century, Leo I reiterated, reinforced, and developed the first papal jurisprudence, which was a model for responses to recurrent questions that kept on coming to Rome. (For texts and translations see Appendix A.) At the end of the century Gelasius’s Si necessaria was almost a miniature code of the contents of a long century of papal legal rulings, Christology and suchlike true/false questions being conspicuously absent. (For texts and translations see Appendix B). From the start of the sixth century, we see the initiation and continuation of a tradition of ‘pure’ canon law, dealing with what was lawful or unlawful according to papal and counciliar rulings, rather than, directly, with what was true or false. Circa 500, real codes appear. The most successful was the Dionysiana, which transmitted so much early papal jurisprudence. In 239

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omitting texts about the Trinity or Christology, and focussing on documents laying down what was lawful, it differs from the other two major contemporary collections. Only Celestine I’s letter about Pelagianism in Gaul contains a lot of what would later be classified as theology, and even this is as much disciplinary as dogmatic. The Dionysiana was at the origins of a tradition of collections consisting of conciliar canons and papal decretals which was carried forward by the Concordia of Cresconius, by the updated version of the Dionysiana that circulated so successfully in the ninth century, and by the collection called the Dacheriana. Charlemagne’s Admonitio generalis advertised this early papal ‘positive’ law to his empire. The boundaries of this tradition, excluding the religious writings of the Fathers as well as Christology etc., mark it off from other early medieval canon law traditions with much more open genre borders. Genuine decretals from the first decretal age were included alongside forged decretals in the collection known as ‘Pseudo-Isidore’. It was very widely copied. In the late Carolingian age and afterwards it ensured that papal decretals from late Antiquity were widely available, perhaps more so than in the fifth century. The meaning of the first papal laws expanded as they interacted with or reacted against changing social systems. In the eleventh century the contrast between the lost urban world represented by the early decretals, and actual eleventh-century conditions, a world of country priests, may have helped provoke the reform. Then we see the first papal laws taking on new meanings as they were brought to bear, in polemical collections on the world around the reform. The compilers of these eleventh-century collections were not afraid to leave questions unresolved. A new epoch opens with Gratian in the mid-twelfth. He tried to resolve problems by offering tight targeted elucidations. Gratian was also the basis of a commentary tradition, and a particularly good point from which to view the tradition and the place in it of early papal law is the thirteenth-century gloss on Gratian’s Decretum, completed after the 1234 papal code called the Liber Extra. In this gloss, ancient and recent papal decretals are brought into conjunction. Here again we see the meaning of the early texts expanding as applied in the thirteenth century. Case studies based on Appendix C focus on the status of the marriages of converts from paganism, the privileges of clerics in minor orders, and episcopal elections. These case studies have more than one function. Through the standard gloss, they show how the papal law from the first decretal age was applied in the second decretal age, and how decretals from the second dealt with complex situations. It is the gloss itself which brings these decretals from the two ages within a common frame.

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From the twelfth century one can use the word ‘theology’ without being embroiled in semantic arguments. But theology had roots, so the history of canon law and theology in the decades around 1200 is examined from the perspective of the tradition that began c. 400. That tradition helps account for a syndrome undeniable from the thirteenth century on but more assumed than explained: the differentiation of theology and canon law, the professionalization of the latter, and its focus on papal decretals. I argue that the syndrome was more accidental than it appears. The arguments against inevitability are explored, as is the affinity between the relatively theology-free compilation of Bernard of Pavia, the Dionysiana, and the earliest papal jurisprudence. In the late Roman Empire, complexity and uncertainty created demand for responsa from the apostolic see. After the eleventh-century papal turn, new legislation and a different society generated new complexities and uncertainties. Decretals were not the only way to resolve them, but given the prominence of the tradition launched by Siricius and Innocent I, they were an obvious way. An unbroken chain of communication links the first and second decretal ages. Late Antiquity and the central Middle Ages need not be kept in separate compartments.

Appendix A Leo I

The translations are based on the good Patrologia Latina editions of the Ballerini brothers, collated against MS Db = BAV Vat. Lat. 5845, the key manuscript of the Dionysiana collection, with any divergent readings judged on their merits. This combination is a good substitute for a modern critical edition as the basis for translation. I give references to the nineteenth-century translation of C. L. Feltoe, The Letters and Sermons of Leo the Great Bishop of Rome, Translated with Introduction, Notes, and Indices, in H. Wace and P. Schaff, A Select Library of Nicene and PostNicene Fathers, xii (Peabody, MA, 1999 [1895]), 1–114. Given the easy availability of the Ballerinis’ text through the Patrologia Latina there is no need to give a Latin text, but I have put the Latin in a note whenever there might be debate about the translation, and have shown where that edition and the Db text diverge. A most valuable doctoral thesis has laid the foundations for a future modern edition: Matthew Hoskin, ‘Prolegomena to a Critical Edition of the Letters of Pope Leo the Great: a Study of the Manuscripts’ (Edinburgh University PhD Thesis, 2015). A(a)~ 10 October 443, Leo I to all the bishops based in Campania . . . and all the provinces, Ut nobis gratulationem. J3.903 = Old Jaffé 402 (180). Hoskin, ‘Prolegomena’, Letter 4, 360. *Status hierarchy: slaves and coloni not to be ordained (note references to ‘pollution’ and to the rights of masters). PL54, col. 610, collated against Db, fo. 112vb, with rubric from Db. Feltoe, 2–3. ‘Start of the decretals of pope Leo’ [‘Incipiunt decreta papae Leonis’ Db, fo. 112vb]. ‘Leo, bishop of the City of Rome, to 1all the bishops based in Campania, Picenum, Tuscany and all the provinces, greetings. As the state of the churches gives us pleasure when 2it is ordered in a salutary manner, so too does it sadden us with no small degree of grief whenever we learn that anything has been presumptuously committed3 contrary to 1 3

omnibus] PL54: universis Db ‘praesumpta vel commissa’.

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2

compositus] PL54: compositis Db

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canonical ordinances and ecclesiastical discipline which we cannot excuse to Him who wished us to be a watchful bishop,4 if we do not check it with the vigilance that is our duty, and allow the 5pure body of the Church, which we ought to keep unpolluted by any stigma, to be defiled by the vile contagion of those around it,6 when the very structure of its members, through negligence, is dislocated from it.’7 A(b)*Status hierarchy. PL54, col. 611, collated against Db, fo. 112vb– 113rb, with rubric from Db. Feltoe, 3. ‘That no bishop should presume to promote the slave of another to the clerical office’ [‘I. Ut nullus episcoporum servum alterius ad clericatus officium promovere praesumat’ Db, fo. 112vb]. ‘Men who have nothing in the way of good birth or character are indiscriminately admitted to holy orders, and those who have in no way been able to obtain their freedom from their lords are raised to the exalted rank of the priesthood, as if the wretched status of a slave were capable of receiving this honour and a person could be judged worthy by God when he could not be judged worthy even by his master. In this matter the crime is twofold, because the sacred ministry is polluted by this wretched association, and the rights of masters are undone 8with regard to the 9 illicit audacity of the usurpation. Therefore, dearest brethren, all the bishops10 of your province should steer clear of these men, and we wish a ban to be observed not only with regard to them but also to others who are bound because of the condition of their birth or in some other way,11 unless perchance there should be a request or wish from those who have some kind of power over them. For a man who is to be enrolled in the service of God ought to be free from other kinds: so that he should not be taken away by 12any ties that bind him from the army of the Lord in which he is enlisted.’ A(c)*Hierarchy of status; bigamia. PL54, cols. 612–13. Db, fo. 113rb–va. Feltoe, Letter IV, para. III, 3. ‘That anyone who is married to a widow, or with a plurality of marriages, who has been promoted to the priesthood should be banned from all ecclesiastical 4 6 8 9 10 11

12

5 ‘illi qui nos speculatores esse voluit’. sincerum] PL54: sincere Db 7 Feltoe’s ‘schemers’ may be better. ‘sibi non congruat’. ‘quantum ad . . . pertinet’. illicitae usurpationis temeritatem] PL54: inlicitam usurpationis temeritatem Db ‘sacerdotes’, which can mean either ‘bishop’ or ‘priest’. Cf. the convincing commentary in Feltoe, 3 note 8: ‘The class of people here alluded to were the coloni (serfs): such of them as were so by birth were called originarii: and there were other classes of them also (alicui condicioni obligati).’ nullis necessitatis vinculis] PL54: nulla necessitate saeculi (‘no worldly necessity’) Db.

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offices’ [‘I. Ut quicumque ad 13sacerdotium vel viduarum mariti vel habentes numerosa coniugia promoti fuerint ab omnibus ecclesiasticis officiis arceantur’ Db, fo. 113rb]. ‘When for each man his propriety in respect of origins14 and character has been established, we learn what sort of man should be linked to the service of the sacred altar both from the teaching of St Paul (1 Tim. 3:2– 4; Tit. 1:6) and by God’s injunction, and from the rules of the canons – from which we find that a large number of brothers has fallen away and altogether departed.15 For it has been established that husbands of widows have reached the priesthood, and also certain men who have had multiple marriages, and a life very open to every kind of licence, had been allowed into the sacred order with all roads heedlessly left open, contrary to the saying of the Apostle, who cried out to such men with the words (1 Tim. 3:2) “a husband of one wife,” and contrary to 16the commandment of the Old Law in which it is said and warned (Lev. 21:13–14): “A priest should take a virgin as a wife, not a widow, not a repudiated woman.” We command therefore by the authority of the apostolic see that, whoever those were who were accepted, they be stripped of ecclesiastical functions and the name of priest,17 for they could not claim for themselves something which was beyond their grasp because of what made it impossible; and we assume personal responsibility for this investigation, so that if perchance in any way, with regard to such, culpable mistakes have been made, they should be corrected, nor should it be allowed to happen again,18 and let no excuse on grounds of ignorance be put forward in any way: although it has never been permitted for a priest to remain in ignorance of 19what has been defined by the rules of the canons.’ A(d)~ 30 December 447, Leo I to Januarius, bishop of Aquileia, Lectis fraternitatis tuae. J3.924 = Old Jaffé 416 (194). Hoskin, ‘Prolegomena’, Letter 18, 367–8. Ex-heretic clerics stay clerics but can’t be promoted. *Heresy, status hierarchy. PL54, cols. 707–8. Feltoe, Letter XVIII, 30–1. The first part of this letter is missing in Db (physical lacuna), so I have 13 15

16 17 18 19

sacerdotium] sacerdotum Db 14 ‘natalium honestas’. Feltoe’s translation, ‘Again, when each man’s respectability of birth and conduct has been established, what sort of person should be associated with the ministry of the Sacred Altar we have learnt both from the teaching of the Apostle and the Divine precepts and the regulation of the canons’, corrected my first, erroneous one. illud . . . praeceptum] PL54: illum . . . praeceptum Db ‘sacerdotali’ – but ‘bishop’ seems less likely in context. Feltoe takes this and the following clause to be purpose clauses, ‘lest’, which is possible. quod] PL54: qui Db

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used the other witness to the first Dionysiana ‘edition’ of papal decretals, Paris BnF lat. 3837, siglum Da, fo. 147ra–va, though it is on the whole much inferior to Db, with meaningless errors mostly not worth recording. I have noted a sprinkling to give an idea of the poor quality. Rubric is taken from Da. ‘That if a cleric of any order, who deserts the Catholic communion and mingles in that of the heretics, should return to the Church, he should remain in the rank in which he was without any promotion’ [‘XIIII. Quod omnes cuiuslibet ordinis clericus qui catholicam [communionem] deserens heretice [fidei] se 20communioni miscuerit, si ad ecclesiam reversus fuerit, in eo gradu co [= quo] erat sine promotione permaneat’ Da, fo. 147ra]. ‘After reading your letter, Brother, the vigorous faith familiar to us from former times 21came back to us, and we congratulate you for watchfully executing the office of pastoral care in 22looking after the 23flock of Christ, lest wolves who have entered by stealth in sheep’s clothing tear apart with bestial 24savagery 25all those who can easily be taken in,26 and not only run riot27 themselves, 28in the absence of correction, but also corrupt what is healthy, and lest their 29viper-like cunning be able to prevail, we 30thought it good to warn your beloved self and indicate to you that danger to the soul is involved if anyone of those who fell away from us into a sect of heretics and schismatics, and soiled themselves in some way or another by the contagion of heretical communion, should come to his or her senses and be received back into Catholic communion without making a 31public recantation as the rules require.32 For it is a most salutary thing, and one most full of the 33benefit of 34spiritual medicine of the utmost efficacy, that priests or deacons or subdeacons or clerics of any order, who want to be seen to have given up error, and desire to return again to the Catholic faith which they had long since lost, should first straightforwardly state that their errors and those 35who led them into error are condemned by them, so that when evil sentiments too36 have been extinguished, no opportunity for hope [for the heresy] survives, nor can any member be soiled by association with such men, since their very own admission has begun to totally to oppose those people.37 With respect to these 20 22 24 27 29 31 33 35 37

communioni] PL54: communione Da 21 agnovimus] PL54: om. Da ad custodiam] PL54: a custodiam Da 23 gregis] PL54: gregum Da saevitia] PL54: sevitiae Da 25 quosque] PL54: quoque Da 26 ‘simplices’. Borrowed from Feltoe. 28 nulla correctione] correctionem Da ne viperea] PL54: neque per ea Da 30 duximus] PL54: diximus Da professione] PL54: promotione Da 32 ‘sine professione legitimae satisfactionis’. utilitate] PL54: utilitatis Da 34 spiritalis] PL54: spiritali Da auctores] acturos Da 36 ‘etiam’. ‘illis’: the heretics; but Feltoe interprets the clause as ‘every point having been met with its proper recantation’.

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men38 we also order that the rule of canon law39 be observed, that they should be extremely thankful40 if, with all hope of promotion removed, they may stay permanently in the order in which they are found: if, however, they have not been stained by double baptism. He who judges that 41anyone one of such people should be 42promoted to holy orders43 does no small 44wrong in the 45eyes of the Lord,46 because, if promotion is granted to the blameless only by a formidable examination, much more should it be barred to those who are 47mistrusted. Therefore, your beloved self, whose devotion is a cause of joy to us, should unite your efforts48 to our arrangements and try to ensure that praiseworthy proposals and salutary plans for the safety of the whole 49Church should be implemented meticulously and expeditiously. For your beloved self should be in no doubt that we would be deeply upset if (which we do not expect) these things that we have decreed for the maintenance of the canons and the integrity of the faith were to be neglected, since the shortcomings50 of the minor51 orders are due to nothing so much as to idle and negligent prelates, who 52often encourage the spread of much disease while they delay to administer the necessary medicine.’ A(e)~ 10/11 August 446?, Leo I to the bishops of Mauritania Caesariensis. J3.916 = Old Jaffé 410 (188). Hoskin, ‘Prolegomena’, Letter 12, 364–5. The letter had a wide influence through the canon law collections (see J3.163–4 Dionysius Exiguus), and is very interesting because of its contents, but its textual history is complicated: see Matthew Hoskin’s discussion. This is not the place to try to untangle it. See further references in J3.916=410; also PL 54, cols. 645–56, and (those textual complications!) cols. 1298–1300; Feltoe, 12–16; and Susan Wessel, Leo the Great and the Spiritual Rebuilding of a Universal Rome. Supplements to Vigiliae Christianae (Leiden, 2008), 99– 101, 162–3 at note 123. The following passage is, however, too interesting to pass over. It is equally relevant to the bigamia dossier. *Status hierarchy; bigamia. PL54, cols. 647–8, collated against Db, fos. 155va–156ra [no separate rubric for the section that follows in Db].53 Feltoe, Letter XII, 13. 38 40 42 43 45 46 47 50 53

‘quos’: the men who have recanted, not the heretics. 39 ‘canonum constitutionem’. ‘in magno habeant beneficio’. 41 aliquem] PL54: om. Da promovendum] PL54: promovendos Da ‘qui de talibus ad sacros promovendos ordines’. 44 noxam] PL54: noxiam Da ut] PL54: om. Da Leo must be referring to anyone who promotes ex-heretics after their return. suspectis] PL54: susceptis Da 48 ‘curam’. 49 ecclesiae] PL54: om. Da ‘culpae’. 51 ‘inferiorum’. 52 saepe nutriunt] PL54: se nutriunt Da Db, fos. 155ra–157va for the letter as a whole.

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‘For one should not fail to observe in the case of every single 54person what is 55contained in the laws that apply to all,56 nor should an office be deemed to be legitimately held if it was conferred contrary to the commands of the divine law. For given the Apostle’s57 saying 58that, among the other 59rules for elections, the man 60who is known to have been or to be the husband of one wife (1 Tim. 3:2) should be ordained bishop, this injunction has always been held so sacred that the same condition has been understood to apply also to the wife61 of the priest62 to be selected: lest perchance she, 63before entering into a marriage with a man who had not had any other wife, should have experienced a marriage with another man. Therefore, who would dare to tolerate what is 64done to the detriment of so great a mystery,65 since even the statutes of the law of God withhold 66no support from this this great and revered mystery, for by them it is clearly specified (Lev. 21:13–14; Ezech. 44:22) that a priest67 should take 68as his wife a virgin, and that she who is going to be the wife of a priest should not know the marriage bed of any other spouse? 69For already, at that time, the spiritual marriage of Christ and the Church was represented in priests, so that, since the husband is the head of the woman, the spouse of the Word might learn not to know any husband other than Christ (Eph. 5:23; 1 Cor. 11:3), who fittingly chooses one, loves one, and does not add another woman beside her to his partnership. Therefore, if even in the Old Testament this was the model followed for priestly marriages, how much more ought we, who live in the age of the grace of the Gospel, to comply with the 70commands of the Apostle?71 – so that, however much a man may be found to be endowed with good morals and adorned by holy works, nonetheless he should in no way rise 54 56 59 61 63 64

65

66 69

70 71

persona] PL54: personam Db 55 continetur] PL54: continentur Db ‘in institutis generalibus’. 57 I.e. ‘St Paul’s’. 58 ut] PL54: om. Db regulas is] PL54: regularis Db 60 quem . . . constiterit] PL54: quae . . . constiterit Db ‘muliere’. 62 Or: ‘bishop’. priusquam in matrimonium ejus] quae in societatem eius Db ‘perpetratur’ is indicative, though one might expect a subjunctive, with the translation ‘be done’. Feltoe, 13 has ‘Who then would dare to allow this injury to be perpetrated upon so great a sacrament’. ‘sacramentum’, which is translated as ‘sacrament’ since the word ‘mystery’ is used immediately afterwards. The ‘sacramentum’ is more likely to mean holy orders than marriage, if it has to be one or the other, but it may be the symbolism of the priest’s marriage. nec] PL54: ne Db 67 Or: ‘bishop’. 68 uxorem] PL54: om. Db Jam tum enim in sacerdotibus figurabatur Christi et Ecclesiae spiritale conjugium, ut quoniam vir caput est mulieris (Eph. V, 23; I Cor. XI, 3), discat Sponsa Verbi non alium virum nosse quam Christum, qui merito unam eligit, unam diligit et aliam praeter ipsam suo consortio non adjungit.] PL54: om. Db constituti, apostolicis debemus servire praeceptis] PL54: constitutis apostolicis debemus servare preceptis Db I.e. St Paul.

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to the rank of deacon, or the dignity of the priesthood,72 or to the summit of the episcopate, if it is clear 73either that he is not a husband of one wife, or that his wife was not one man’s only.’ A(f)~ 446? Leo I to Anastasius, bishop of Thessalonica, Quanta fraternitati tuae. J3.918 = Old Jaffé 411 (189). Hoskin, ‘Prolegomena’, Letter 14, 365–6. Celibacy – for subdeacons! PL54, cols. 672–3, collated against Db, fo. 123vb. Feltoe, Letter XIV, para. V, 18. ‘That carnal marriage should be denied to subdeacons’ [‘XIIII. Quod subdiaconis carnale conubium [sic] denegetur’ Db, fo. 123vb]. ‘For although for those outside the clerical order it74 is a free choice to devote themselves to the companionship of marriage and the procreation of children, nonetheless, to make manifest the purity of perfect continence, carnal marriage is not allowed, not even for subdeacons, so that those who have shall be as if they did not have (1 Cor. 7:29), and those who do not have, should stay single. If it is fitting for that to be observed in this rank, which is the fourth from the head, how much more should it be kept in the first, or the second, or the third, so that nobody should be judged 75unworthy of the honour of being a deacon or a priest, or of the excellent episcopal rank, who is discovered not to be able yet to restrain himself from uxorious pleasure.’ A(g)*Metropolitans. From PL54 col. 672, collated against Db, 123va. Feltoe, Letter XIV, para. III, 18. ‘That the rights of metropolitans should be preserved’ [‘XXXII. Ut metropolitanis sua iura serventur’ Db, fo. 123va]. ‘Therefore, in accordance with the canons of the holy Fathers, established through the spirit of God and made sacred by the reverence of the whole world, we decree that the metropolitan bishops of each province, for whom by delegation from ourselves your responsibility,76 brother, has been extended, should have undiminished77 the rights that go with the high position handed down to them from ancient times,78 in such a way that they do not depart from the 79rules prescribed either through negligence or presumption.’ A(h)*Bigamia, metropolitan, episcopal appointments. PL54, col. 672, collated against Db, fo. 123va–vb. Feltoe, Letter XIV, para. 4, 18. 72 75 78

79

‘presbyterii’. 73 aut] PL54: ad Db 74 sit liberum arbitrium] Db: sit liberum PL54 minus idoneus] Db: idoneus PL54 76 ‘cura’. 77 ‘intemeratum’. ‘ius traditae sibi antiquitus dignitatis’: on my reading the ‘traditae’ is an allusion to episcopal succession. In Feltoe’s version the rights are handed down, but this is further from the Latin in Dionysius Exiguus. regulis] PL54: reguli Db

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‘That metropolitans should not ordain as bishops laymen, men who have been married twice, husbands of widows, but men without reproach’ [‘XXXIII. Ut a metropolitanis non laici, non bigami, non viduarum mariti, sed inreprehensibiles ordinentur 80episcopis’]. ‘In cities whose rulers81 have died, the following procedure should be followed in replacing the bishops: that the man who is to be ordained, even if he is 82supported by the testimony of a good life, should not be . . . nor the husband of a second spouse, or a man who indeed has or had one spouse only, but who married her when she was a widow. For the selection of bishops83 is of such an elite group that 84things are held to be illicit in them which in other members of the Church are not treated as wrong.’ A(i)*Hierarchy: election of bishop. PL54, col. 673, collated against Db, fos. 123vb–124ra, with rubric from Db. Feltoe, Letter XIV, para. VI, 18. ‘That nobody should be ordained bishop for85 those who do not want him’ [‘XXXV. Ut nullus invitis ordinetur antistes’ Db, fo. 123vb]. ‘When the election of the supreme priest is to be conducted,86 the man whom the consent of the clergy and people request in unison should be the first choice,87 in such a way that if it should happen that some of those involved want a different person, following the judgment of the metropolitan let the man be 88preferred to the other who has the advantage in terms of both learning89 and merits, in such a way that no one should be ordained to rule90 those who do not want him and ask for him, lest a city which was not allowed to have the man it wanted should either despise or hate a bishop it has not chosen, and become less devout.’ A(j)*Bishops to stay in one see. PL54, col. 674, collated against Db, fo. 124rb–124va, with rubric from Db. Feltoe, Letter XIV, para. IX, 19. ‘That if any bishop abandoning his city, seeks a greater see out of ambition, not only will he be unable to obtain it, but also have to lose his own’ [‘XXXVIII. Ut si quis episcopus suam deserens civitatem, maiorem sedem ambitus causa petierit | non solum eam obtinere non poterit sed et suam91 carere debebit’ Db, fo. 124rb–124va]. 80 82 84 87 89 90 91

read ‘episcopi’. 81 ‘rectores’. testimonio [after correction] fulciatur] Db: testimonium habeat PL54 83 ‘sacerdotum’. que] Db: haec quae PL54 85 Or: ‘set as bishop over’. 86 ‘tractabitur’. ‘omnibus praeponitur’. 88 praeferatur] PL54: praeponatur Db ‘majoribus . . . studiis’: Feltoe translates as ‘the preponderance of votes’, which certainly makes good sense. ‘ordinetur’ – which could be translated simply as ‘set over’. ‘careo’ can take the accusative in late Latin.

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‘But if any bishop, contemptuous of the ordinariness of his see, strives to obtain the governance of a more famous place, and for any reason transfers himself to a greater diocese,93 he 94should indeed be driven from the see95 that does not belong to him, but will also be deprived of his own, so that he may not be set over 96those whom he coveted through avarice, nor those whom he spurned out of pride. Let each man be content with his limits, nor should he desire to be magnified beyond what he is entitled to.’97 92

A(k)*Against poaching clerics from other dioceses. PL54, col. 674, collated against Db, fo. 124va, with rubric from Db. Feltoe, Letter XIV, para. X, 18. ‘That nobody should presume simply to want to tempt away 98or retain a cleric who does not belong [to the diocese] when his bishop does not give consent’ [‘XXXVIIII. Ut nullus alienum clericum sollicitare 99velle mere praesumat, suo episcopo non 100praevente consensum’ Db, fo. 124va]. ‘Let nobody receive and let nobody tempt away a cleric who does not belong with them against his bishop’s will, unless perhaps this is decided in an amicable agreement between the donor and the receiver. For a man who 101dares 102lure away or keep something from the church of a brother which is very useful or very precious is guilty of grave wrongdoing. Therefore, if the thing is done within a province, the metropolitan 103should compell the clerical deserter to return to his church. If however the deserter goes further away, he shall be recalled by the authority of your command, so that no opportunity be left for greed or ambition.’ A(l)*Hierarchy up to the pope. PL54, cols. 674–7, collated against Db, fos. 124vb–125rb.104 Feltoe, Letter XIV, para. XII, 19. ‘That bishops should not delay longer than fifteen days after the time for a council has been summoned’ [‘XLI. Ut non amplius ab statuto concilii tempore quam dies quindecim remorentur episcopi’ Db, fo. 124vb]. ‘In such a way that those who meet do not remain there longer than the fifteen days which are agreed105 after the time determined in 92 95 98 99 101 103 104 105

93 94 autem] Db: om. PL54 ‘plebem’. pelletur] PL54: pellatur Db 96 97 ‘cathedra’. quos] PL54: quibus Db Feltoe has ‘his present post’. sive tenere] PL67, col. 294 PL54 has different rubrics from Db passim: velle mere Db (which could be rendered (though awkwardly) as ‘to want simply to tempt away’) velle mere] Db recte vel tenere 100 praevente] sic Db for praebente audet] PL54: apparently erased in Db 102 allicere] PL54: illicere Db compellat] Db: compellet PL54 Note that the chapter breaks are in different places in PL54 and Db (with PL67). ‘qui convenerint’.

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advance.106 If, however, in the matter which you thought was to be discussed and decided with your brothers, their judgement should differ from what you want, let everything be brought to us together with a record of the acts,107 so that, with all uncertainties disposed of, it may be decided what may please God. For our overriding wish and concern is to ensure that what affects unity and harmony and the maintenance of discipline should not be damaged by dissension or suffer from neglect. Therefore, we urge and admonish you, dearest brother, and those brothers of ours who are offended by your excesses – though the subject of the complaints is not the same for all108 – that what has been regulated rightly109 and settled in a salutary way should not be thrown into confusion by conflict. 110“Nobody should pursue personal interest, but other people’s” (1 Cor. 10:24). And, as St Paul says, “let every one of you please his neighbour 111unto good, for edification” (Rom. 15:2). For the structure of our unity will be unable to stand firm, unless a chain of charity draws us together into inseparable solidarity; since, “just as we have 112many members in one body, but not all the members have the same function, so too are we one body in Christ, but all the individuals are members of each other” (Rom. 12:5); (1 Cor. 12:12). The organic union of the whole body together is the source of an integral health and beauty. And indeed, this organic union of the whole body needs unanimity, but it especially requires harmony among bishops;113 114though they all have the same high status, they are not however all of one species, since even among the most holy apostles there was a certain difference in power within the parity of honour, and although they were all equally chosen, to one, however, it was given to be pre-eminent over the rest. From which structure the distinction between bishops also arose,115 and provision was made by a great ordinance that not everyone claim everything for himself, but that there should be individuals in each province, whose judgement would be held among their brothers to have primacy,116 and again, certain men in larger cities should receive a larger share of 117 [his] responsibility,118 through whom pastoral care119 for the universal Church should flow to the one see of Peter, and nothing should in any 106 107 108 110 111 114 115 116 117 118

The previous paragraph in the letter had been about summoning a council, and this sentence follows on from that. ‘gestorum testificatione’. ‘cum tamen non similis sit omnibus materia querelarum’. 109 ‘pie’. Nemo quod suum est quaerat, sed quod alterius, sicut Apostolus ait] PL54: om. Db bonum ad] bonam Db 112 multa] above line in Db 113 ‘sacerdotum’. cum dignitas sit communis, non est tamen ordo generalis] PL54: et si dignitas communis non est, tamen ordo generalis est Db ‘episcoporum . . . est orta distinctio’. ‘quorum inter fratres haberetur prima sententia’. eius] Db (referring back to the ‘uni’ who ‘caeteris praemineret’, i.e. the pope?): om. PL54 ‘sollicitudinem’. 119 ‘cura’.

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way be at variance with its120 head. Therefore, a man who knows that 121he 122is set in authority over certain people should not object to somebody being put over himself, but the obedience which he demands, he should himself give, and just as he does not want to be burdened by a heavy load, so too he should not impose a burden too heavy to carry on another (cf. Matt. 23:4). For we are the disciples of a humble and gentle master, who says (Matt. 11:29–30) “Learn from me, because I am gentle and humble of heart, and you will find rest for your souls, for my yoke is easy and my burden light.” How can we come to take this in, unless by observance123 of the Lord’s sayings (Matt. 23:11–12; Luke 14:11) that “He who is greatest among you will be your servant”; “But he who exalts himself shall be humbled, and he who humbles himself shall be exalted.” A(m)~ 21 October 447, Leo I to all the bishops of Sicily: Divinis praeceptis. J3.922 = Old Jaffé 414 (192). Hoskin, ‘Prolegomena’, Letter 16, 366–7. Baptism not to be administered at Epiphany; theory of the structure of the liturgical year in relation to the life of Christ; St Peter and baptism at Pentecost.124 *Ritual. PL54, cols. 696–7, collated against Db, fo. 115ra–va, with rubric from Db. Feltoe, Letter XVI, 27. ‘That baptism may not be celebrated on the day of the epiphanies’ [‘VII. Quod prohibeatur in die epi-|-phaniorum baptismus celeb[rari]’ Db, fo. 115ra–va]. ‘Therefore when, from absolutely reliable sources, it became known to me, concerned with fraternal affection about what your beloved self had been doing, that you, with regard to what is the chief among the sacraments of the Church, are departing from custom of apostolic origin in such a way that the sacrament of baptism 125is celebrated for larger numbers of people126 at Epiphany than at Easter, I am astonished that you, or your predecessors, could have adopted so irrational a novelty, as if,127 with the mystery of each time mixed up, you believed there to be no difference between the day on which Christ was adored by the Magi, and the day on which Christ rose from the 120 123 124 125 127

‘suo’. 121 se] PL54: si Db 122 esse] PL54: om. Db ‘nisi illud in observantiam venit’: Feltoe has ‘unless this too comes to our remembrance’. Where the rubrics use ‘quod’ with the subjunctive – presumably a form of ‘subordinate clause in indirect speech’ with the main clause implicit – I translate with the indicative. celebretur] Db: celebretis PL54 126 ‘numerosius’. ‘ut’: but from context this has more the sense of ‘sicut’: if we take it as governing a consecutive clause it would mean that Innocent thinks the Sicilian bishops really could not tell the difference between Epiphany and Easter.

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dead. You would never have transgressed in this way had you taken the rules governing all religious rites128 from the 129source of the consecration that conferred your office, and if the see of the blessed apostle Peter, which is for you the mother of priestly dignity, were the teacher of your ecclesiastical procedure:130 your departure from the rules of which131 could be tolerated with less equanimity if it had been preceded by any admonitory rebuke on our part: now, however, since hope remains that things may be put right, mildness is still called for. And although with bishops132 one can hardly accept a plea of ignorance, we prefer nonetheless both to make the inevitable censure mild and to instruct you in 133the clearest terms 134through an orderly exposition of the truth.’ A(n)*Ritual. PL54, cols. 697–8, collated against Db, fos. 115va–116rb, with rubric from Db. Feltoe, 27–8. ‘That all the sacraments of salvation are arranged for us in the order of things [done] through the incarnation of the Lord’ [‘VIII. Quod cuncta nobis rerum 135 ordinem per incarnationem Domini nostri salutis sacramenta digesta sint’ Db, fo. 115va]. ‘The reparation of the human race did indeed always remain unchangeably preordained in the eternal counsel of God, but the order of the things to be done in time by Jesus Christ our Lord began with the Incarnation of the Word: and so the time when after the annunciation by the angel the blessed Virgin Mary had faith that she would become pregnant by the Holy Spirit, and conceived, is one thing; the time when – with her virginal integrity intact – the boy who had been born is revealed to the shepherds by the exultant joy of the servants of heaven is another thing; the time 136when the infant is circumcised, another; 137when the sacrificial animal required by the law is offered, another; when the three wise men, led on by the brightness of a new star, reach Bethlehem from the East and give veneration to the 138adored little boy, with the mystically significant 139offering of gifts, another (Matt. 2). Nor are the days the same on which he was 128 130 131 132 133 134 135 137 139

‘legem totius observantiae’. 129 unde . . . accepistis] Db: unde . . . accipitis PL54 ‘rationis’. ‘cujus’, which I take with ‘rationis’ but which might refer back to ‘matris’, in which case the translation should be ‘whose’. ‘sacerdotibus’. apertissime] Db: apertissimae PL54, so not an adverb but an adjective qualifying veritatis – also possible ratione . . . veritatis] PL54: rationem . . . veritatis Db Read ordine or secundum ordinem? 136 quo] PL54: quod Db quo] PL54: quod Db 138 adoratum] participle rather than supine, in context oblatione] PL54: oblato Db

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taken out of impious Herod’s reach after withdrawal to Egypt had been ordered by God, or on which he was called back from Egypt to Galilee after his persecutor had died. In the midst of these different divinely arranged happenings140 bodily development takes place: the Lord grows, as the Evangelist bears witness (Luke 2:32), increasing in age and grace, at Passover he comes to the temple of Jerusalem with his parents, and, when he was not among the convoy of people on their way home, he is found sitting with his elders and disputing among admiring masters, and, justifying the fact that he had stayed, he says: “Why were you looking for me? Did you not know that I had to be about my Father’s business?” (Luke 2:49) – signifying that he was the son of Him whose temple it was. Now however, when, being older, as it was necessary to make him more openly known, he sought baptism from his precursor John, did any of his Godhead remain undeclared when, after the Lord Jesus had been baptized, the Holy Spirit descended upon him in the form of a dove and remained there, while the voice of the Father was heard saying from heaven (Matt. 3:17): “you are my beloved son, in whom I am well pleased”? We have therefore summarized all this as succinctly as we could to help your beloved selves to realize that all the days of Christ had been made holy by innumerable virtues, and that in all his actions the mysteries of the sacraments shone brightly; but it is one thing for 141anything whatever to be 142announced with signs, another for it to be fulfilled by deeds – and 143that it is not possible for everything that is enumerated of the works of the Saviour to have reference to the time assigned for baptism. For if we are also to commemorate, with indiscriminate honour, those things too which we know to have been done by the Lord after baptism by John, all times of year would be given over to an unbroken sequence of festivals, since all are full of miracles. In truth, since the spirit of wisdom and understanding taught the apostles and the masters of the whole Church in such a way that in Christian religious rites no disorder or confusion should be allowed, the rationale of feast days should be discerned, and in all the dispositions of the Fathers and of the founders of our traditions144 a rational 145discrimination must be maintained, since we cannot be one flock and one shepherd, unless, as St Paul teaches (1 Cor. 1:10) we all speak with one voice: let us then be perfect in the same mind and the same 146way of thinking.’ 140 142 143 144 146

‘dispensationum’. 141 quidque] PL54: quoque Db denuntiari] PL: corr. from denuntiare in Db? nec . . . posse] PL54, grammatical if governed by ‘realize’ (notum sit): potest Db ‘principum’: Feltoe has ‘rulers’. 145 distinctio] PL54: districtio Db sententia] PL54: scientia Db

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A(o)*Ritual. PL54, cols. 698–700, collated against Db, fos. 116rb–117rb, with rubric from Db. Feltoe, 28. ‘That in baptism death comes from putting sin to death, and the threefold immersion imitates the three days of burial, and the raising up from the waters is like the resurrection from the tomb’ [‘VIIII. Quod in baptismo mors proveniat interfectione peccati et sepulturam 147triduanam imitetur trina demersio et ab aquis elevatio sit velud resurrectio de sepulcro’ Db, fo. 116rb]. ‘Therefore, although things that pertain to Christ’s humility and those that pertain to his glory 148meet in one and the same person, and the 149entirety of what in him is both of divine power, and of human weakness, tends to bring about our redemption,150 strictly speaking, however, it is in the death of the crucified one and in the resurrection of the dead man that the power of baptism makes a new creature from the old, so that in those who are reborn both the death of Christ is at work, and his life, for as the blessed apostle Paul says (Rom. 6: 3–5): “Do you not know that all we who are baptized in Christ Jesus, are baptized into his death. For we are buried together with him through baptism into death151 so that just as Christ rose from the dead through the glory of the Father, so too we may walk in the newness of life. For if we have been planted together in the likeness of his death, we shall be also in the likeness of his resurrection”, etc.152 The Teacher of the Peoples [i.e. St Paul] discusses these things at greater length to give praise to the sacrament of baptism, so that, from the spirit of this doctrine, it may be apparent that, for regenerating the sons of men and adopting them as sons of God, this is the day, and this is the appropriate153 time: in which, through the likeness and the structure of the mystery, the things that are done in the members correspond to the things that are done in the head itself, in that in the ritual154 of baptism death is involved through the slaying of sin, the threefold immersion imitates the three days in the tomb, and the raising from the waters corresponds to His rising from the tomb. The very nature of the set of actions155 teaches that the right day for a general celebration of grace is the one on which both the power of the gift [of grace]156 and 157the form of the ceremony had their origin;158 in support of which it carries great 147 148

149 152 153 156 157 158

triduana Db in unam concurrant eandemque personam] so PL54 and Db: if one emends unam to unum, which is the reading in the Patrologia edition of the Dionysiana (PL67, col. 283) one has a stock legal tag and should translate as ‘converge, and meet in the same person’ quidquid] PL54: quod Db 150 ‘reparationis’. 151 ‘in mortem’. Taking ‘etc.’ with the preceding context rather than: ‘ex cetera quae . . .’. ‘electum’ could also qualify ‘diem’. 154 ‘regula’. 155 ‘operis’. ‘virtus muneris’. the form of the ceremony] species actionis PL54: specie sanctionis Db My translation of this clause was corrected from Feltoe.

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weight that Jesus Christ himself, after he had risen from the dead, gave to his disciples, through whom all the leaders159 of the churches were being taught, both the form of baptism and the power to baptize, saying (Matt. 28:19): “Go forth and teach all nations, baptizing them in the name of the Father, the Son, and the Holy Spirit.” He could of course have given them these instructions even before his passion, had he not specifically wished it to be understood that the grace of regeneration had begun from his resurrection. It is true indeed that to this ritual practice160 the feast of Pentecost, made sacred by the coming of the Holy Spirit, is added, a feast which is a pendant to161 the feast of Easter; and although other feasts may fall on other days162 [of the week], this feast always falls163 on the day that is given a special character by the resurrection of the Lord,164 in a way stretching out the hand of helping grace, and offering an invitation to those who could not make Easter Day because of serious illness, or the distance to be travelled, or the difficulty of a sea voyage, that whatever the unavoidable circumstances by which they had been hindered, they might obtain by the gift of the Holy Spirit what they desired. For the only begotten Son of God himself wanted there to be no separation between himself and the Holy Spirit either in the faith of believers or in the power of the actions performed, since there is no difference in nature: saying (John 14:16–17): “I will ask the Father, and he will give to you another Paraclete, that he may abide with you forever, 165the spirit of truth.” And again (John 14:26): “The Paraclete, the Holy Spirit, whom 166my Father will send in my name, he will teach you all things, and 167bring all things to your mind, whatsoever I have said to you.” And again (John 16:13), “When that Spirit of truth has come, he will direct you to all truth.” Therefore, since the truth is Christ, and the Holy Spirit the spirit of truth and the name “Paraclete” belongs 168to both, the feast is not dissimilar where there is one sacrament.’ A(p)*Ritual and liturgical year. PL54, col. 700, collated against Db, fo. 117rb–va, with rubric from Db. Feltoe, 29. 159 162 163 164 165 166 168

‘praesules’: i.e. bishops. 160 ‘observantiae’. 161 ‘pendet articulo’. ‘ad alios dies alia festa pertineant’. ‘haec . . . occurrit’ must refer back to ‘solemnitas’ in the previous sentence, since the immediately preceding ‘festa’ is plural. I.e. Sunday. spiritum Db: spiritus PL54 (with which one would need to translate ‘so that the Spirit of truth may be with you forever’) meus] Db: om. PL54 167 suggeret] Db adds above line sumministrat utrique] PL54: utrisque Db

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‘That the blessed apostle Peter baptized three thousand men on the day of Pentecost’ [‘X. Quod beatus apostolus Petrus in die pentecosten virorum tria milia baptizarit’ Db, fo. 117rb]. ‘We prove by an appropriate enough example that we hold to this not as a matter of personal opinion, but by apostolic authority: following the example of the blessed apostle Peter, who on the same day when the promised arrival of the Holy Spirit 169brought up to strength the whole number of believers, hallowed through the water of baptism the 170multitude of three thousand people converted by his preaching; this sacred scripture, which contains the Acts of the Apostles, teaches in a faithful narrative, saying (Acts 2:37–41): “When they heard these things, they had compunction in their hearts and said to Peter and the rest of the apostles: ‘What shall we do, men and brothers?’ But Peter said to them: ‘Do penance, and let everyone of you be baptized in the name of Jesus Christ, for the 171remission of your sins, and you will receive the gift of the Holy Spirit. For the 172promise is to you, and to your children, and to all that are far off, whomsoever the Lord our God shall call.’ And with many other words did he testify and exhort them, saying: ‘Save yourself from this perverse generation.’ They therefore that received his word were baptized, and there were added in that day about three thousand souls.”’ A(q)*Ritual and liturgical year. PL54, col. 700, collated against Db, fo. 117va, with rubric from Db. Feltoe, 29. ‘That these two times, that is, Easter and Pentecost, are fixed as legally binding173 by the Roman Pontiff’ [‘XI. Quod haec duo tempora, id est pascha et pentecostes, ad baptizandum a Romano pontifice legitima sunt praefixa’ Db, fo. 117va]. ‘Therefore, since it is most abundantly clear that the two times about which we have been talking are laid down by law for people chosen for baptism in church, we admonish your beloved selves that you should not let any other days get mixed up with this ritual.’ A(r)*Ritual and liturgical year. PL54, cols. 700–2, collated against Db, fos. 117va–118va, with rubric from Db. Feltoe, 29–30. ‘That, at any time, those who are in danger of death, that is through sickness, a siege situation, persecution, and shipwreck, ought to be baptized’ [‘XII. Quod omni tempore hi qui | necessitate mortis 174urgentur, id est egritudinis, obsidionis, persecutionis, et naufragii, debeant baptizari’ Db, fos. 117va– 118va]. 169 171 172 174

replevit] replebit Db 170 populum] PL54: populorum Db remissionem] PL54: remissione Db repromissio] PL54, with Vulgate: remissio Db 173 ‘legitima sunt praefixa’. urquentur Db?

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‘Since, 175even if there are also other feasts, to176 which much reverence for the honour of God may be due, nonetheless the mystical and rational privilege of the principal and greatest mystery177 needs to be preserved by us, without taking away the freedom by which relief is brought at any time to those in danger by the 178administration of baptism. For we hold over the free choices179 of those who are 180safe and living securely in peace181 to those two festivals which are connected and related to one another, in such a way as not at any time to deny this unique bulwark of true salvation to anyone in danger of death, at a dangerous moment in a siege, pressed in by persecution or in fear of shipwreck. If, however, anyone judges that the festival of Epiphany – which in its proper register182 should be shown the reverence of due honour – has the privilege of baptism, on the basis of the belief of some that on this same day the Lord went to get the baptism of the holy John, they should know that the grace of that183 184was of another kind, as was its underlying principle,185 nor did it relate to the same power 186by which the people of whom it is said (John 1:13): “Who are born, not of blood, nor of the will of the flesh, nor of the will of man, but of God”, are reborn through the Holy Spirit. For the Lord, without needing the remission of any sin, nor seeking the remedy of being reborn, wanted to be baptized in the same kind of way as he also wanted to be circumcised, and for an animal sacrifice of purification to be offered up for himself, so that he who 187had been made from a woman should thus, as St Paul says (Gal. 4:4), be also made under the law, which he did not come to break down, but to fulfil, 188and in fulfilling it, to end it, 189just as the blessed apostle preaches, saying (Rom. 10:4) “For the end of the Law is Christ, unto justice to everyone that believes.” But he founded the mystery190 of his baptism in himself, for, keeping the 191primacy in all things (cf. Col. 1:18), he taught that he was the original principle, and he gave solemn sanction to the power of regeneration at the moment when the blood of redemption and the water of baptism flowed from his side. For just as the Old Testament bore witness to the New, and the law was given by Moses, but grace and truth were made by Jesus Christ (cf. John 1:17), so too the 175 177 178 179 180 181 182 184 185 188 190

etsi] PL54: si Db 176 Probably rather than ‘on’. ‘sacramentum’: but ‘sacrament’ is an entirely possible translation, if one takes the word in a less precise sense than it acquired in the mid-twelfth century. tribuendo] PL54: tribuenda Db, perhaps attracted by the preceding licentia, qua ‘vota’. Feltoe’s ‘vows’ may be preferable. incolumium [sic] with sanorum written above in Db I.e. people living in peace and safety enjoy the luxury of choosing the time of their baptism. ‘suo ordine’. 183 ‘illius’: so it could also be ‘his [baptism]’. aliam gratiam, aliam fuisse rationem] aliam gratiae fuisse rationem Db ‘rationem’. 186 qua] PL54: quia Db 187 fuerat] PL54: erat Db et implendo finire] PL54: om. Db 189 sicut] PL54: et sicut Db ‘sacramentum’: here again close to ‘sacrament’. 191 primatum] Db: primatus PL54

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various sacrifices 192prepared one sacrificial offering,193 and the slaying of many lambs was brought to an end by the sacrifice of him of whom it is said (John 1:29): “Behold the lamb of God, behold him who takes away the sin of the world.” In the same way John – not Christ, but the 194precursor of Christ, not the bridegroom but the best man195 – was so faithful, and so focussed not on his affairs but on everything to do with Jesus Christ, that he professed himself unworthy to untie the shoelaces of Jesus (cf. John 3, Matt. 3; Luke 3): since he, indeed, was baptizing in water, for the purpose of 196penance (Matt. 3: 11), but He, who with a twofold power would both restore life and consume sin, was going to baptize in the Holy Spirit and in fire;197 therefore, dearest brethren, since there is so much and such powerful evidence,198 through which, with all uncertainty laid to rest, you can clearly see that for those chosen to be baptized, who are, in accordance with the apostolic rule, to be probed by exorcisms, sanctified by fasts, and instructed by frequent sermons, two times only are to be kept, that is, Easter and Pentecost. We enjoin it on your charitable selves that you should not by any further deviation depart from the apostolic system,199 for after this it could not again remain unpunished if somebody thinks apostolic rules can be ignored in any respect.’ A(s)21 March 458. Leo I to the bishop of Aquileia, Regressus ad nos. J3.1086 = Old Jaffé 536 (312). Hoskin, ‘Prolegomena’, Letter 159, 430. *Indissolubility of marriage. PL54, col. 1136, collated against Db, fo. 125va–vb. When husbands missing believed killed return, they are the true husbands, though the second man, married in error, is not blameworthy. ‘That women who, after their husbands have been captured, marry other men, should be united to their first husbands after they have returned from captivity’ [‘XLII. Quod debeant feminae quae captis viris nupserant aliis 200regressis de captivitate viris prioribus 201copulari’ Db, fo. 125va]. ‘Therefore since, through the scourge of war and most brutal hostile invasions, you say that marriages have been split up in such a way that wives are left abandoned after their husbands have been taken off into captivity, the wives, 202since they believed that their own husbands are either dead, or that they will never be freed from servitude, 203and, under 192 193 194 196 197 198 201

praeformarunt] PL54: reformarunt Db ‘sic diversa sacrificia unam hostiam praeformarunt’. praevius] PL54: antecedens praecibus Db 195 ‘sponsi amicus’. poenitentiam] PL54: poenitentia Db My translation was corrected by Feltoe’s here. ‘tot ac tantis existentibus documentis’. 199 ‘institutis’. 200 regressi Db copulati Db 202 quae cum] quaecum PL54: quae Db 203 et] Db: om. PL54

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the compulsion of deprivation,204 have entered into marriage with other men, and since, now, the situation has with God’s help improved, men who were thought to be killed have returned: your charitable self seems, understandably, to be uncertain what rule should be laid down by us with regard to the women who have joined themselves to other men. But since we know that it is written (cf. Prov. 19:14) 205that woman is joined to man by God, and, again, we know the commandment that (Matt. 19:6) “what God has joined together man should not put asunder”, we cannot but believe that the bonds of legitimate marriages should be joined together again, and, when the evils which the hostilities caused have been removed, 206what each person legitimately had should be restored, and every effort should be made to ensure that each person receives what belongs to him.’ A(t)*Indissolubility of marriage, continued. PL54, cols. 1136–7, collated against Db, fo. 125vb. ‘That a man who seems to have obtained the wife of a man in captivity should not be deemed to be guilty’ [‘XLIII. Quod non provetur esse culpabilis qui uxorem capti in matrimonio videtur esse sortitus’ Db, fo. 125vb]. ‘A man who has taken over the role of her husband, however, when the latter was no longer believed to be alive, should not be judged guilty and a trespasser on another’s rights. In the same way many things that belonged to those who were taken away into captivity could become 207possessions of others, and yet it is 208full of injustice that when the same people have returned their property should not be restored to them. If this is the proper practice when it comes to slaves or fields, or even houses and possessions, how much more 209should it be done when it is a matter of making marriages whole again, 210so that war unavoidably overturned may be put back in place thanks to peace!’ A(u)*Indissolubility continued. PL54, col. 1137, collated against Db, fos. 125vb–126ra. ‘That if husbands, back from captivity, are not offended by the inability of their wives to do without, and should wish to receive them in marriage, they 204 205 207 208

209

Or: ‘loneliness’ (Feltoe): but the ‘destitutae’ above suggests that their economic situation might be relevant. quod] PL54: om. Db 206 id] Db: hoc PL54 in ius alienum] PL54: in uius alienum Db plenum iniustitiae est ut hisdem reversis non propria reformentur] Db: plenum justitiae est ut eisdem reversis propria reformentur PL54 (equally possible – ‘it is absolutely fair that their property be restored to them on their return’ – but Db’s is the difficilior lectio and cannot be ruled out) sit] Db: est PL54 210 ut] PL54: om. Db

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should be freely allowed to do so’ [‘XLIIII. Ut si viri de captivitate regressi, intemperantia uxorum offensi non fuerint, et 211voluerint eas in coniugium recipere, liberam habeant facultatem’ Db, fos. 125vb–126ra]. ‘And therefore, if husbands, back from long captivity, are steadfast in their love for their wives to such an extent as to want to go back to live with them, then what necessity drove them to do should be overlooked and judged guiltless, and what faith demands should be restored.’ A(v)*Indissolubility continued. PL54, col. 1137, collated against Db, fo. 126ra–rb. Feltoe, Letter CLIX, paras. II–V, 102–3. ‘That, if the women, like unrighteous persons, are unwilling to return to their previous husbands, they should, as being impious, be deprived of ecclesiastical communion’ [‘XLV. Ut si mulieres ad proprios maritos redire noluerint, velut impiae, ecclesiastica communione priventur’ Db, fo. 126ra]. ‘If, however, some women are so besotted with their subsequent husbands that they prefer cleave to them rather than returning to their rightful partnership, it is right that they should be censured in such a way as 212even to be deprived of ecclesiastical communion, as being women who deliberately turned something excusable into sinful contamination, showing that a matter which could justly have been made good by a pardon was a source of pleasure to them because of their lack of restraint. Therefore, let marriages return to their proper condition by being 213voluntarily made whole again, nor should the disruption caused by unavoidable circumstances be 214in any way attributed to reprehensible ill will: since, just as those women who 215do not want to return to their husbands should be held to be unrighteous, so too those should be rightly praised who return to the love which had its origin in God.’216 A(w)~ 458–9? Leo I to Rusticus, bishop of Narbonne, Epistolas fraternitatis tuae. J3.1098 = Old Jaffé 544 (320). Hoskin, ‘Prolegomena’, Letter 167, 434–5, with his edition and translation 337–58. *Election of bishops. PL54, col. 1203, collated against Db, fos. 119vb– 120ra; Feltoe, Letter CXVIII, Question I, 110. ‘That those men should not be held to be bishops whom neither the clergy has elected, nor the people requested, nor the bishops of the province consecrated: if, however, clerics be ordained by these pseudo-bishops, that ordination can be confirmed’ [‘XV. Quod non habeantur episcopi, quos nec clerus elegit, nec populus exquisivit nec provinciales episcopi consecrarunt. Si qui tamen 211 213 215

volueri Db 212 etiam] PL54: om. Db voluntaria] PL54: voluntarie Db (with added letter?) nolunt] PL54: noluerint Db 216 ‘ex Deo initum’.

214

ullo modo] nullo modo Db

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clerici ab his pseudoepiscopis ordinantur, rata potest ordinatio talis existere’ Db, fo, 119vb]. ‘There is no justification for including among the bishops217 men who are neither chosen by the clergy nor requested by the communities,218 nor consecrated by the fellow bishops of the province with approval of the metropolitan. Therefore, since the question of an honour wrongly accepted often arises, who can doubt, that what 219may not have been shown to have been conferred should in no way be attributed to them. If, however, clerics have been ordained by pseudo-bishops in those churches 220that pertain to their own bishops, and their ordination was done with the consent and by the judgment of those presiding, it can be held to be ratified,221 in such a way that they may continue in the same churches. Otherwise, however, the appointment to the office is to be regarded as void,222 as having no basis either in location or 223authority.’224 A(x)*Penance and the clergy. PL54, cols. 1203–4, collated against Db, fo. 120ra–rb. Feltoe, Letter CLXVII, Question II, 110. ‘That priests, or deacons, if they fall into some major sin,225 may not obtain the relief afforded by penance through the imposition of the hand. It is alien to ecclesiastical custom’ [‘XVI. Quod presbyteris aut diaconis si in aliquo crimine prolapsi fuerint, non possint per manus impositionem poenitendi remedium consequi’ Db, fo. 120ra]. 226 ‘It is no part of ecclesiastical custom, that those who have been consecrated to the dignity of the priesthood or the rank of deacon should for some major sin receive, through the laying on of the hand, the remedy of penance;227 this228 without a doubt comes down from apostolic tradition, according to which it is written (1 Kings 2:25229): “If a priest should sin, who 230will pray for him”. And hence such men, when they have lapsed, in order to obtain God’s mercy must seek 231private retirement, where their atonement, 232if it is worthy, may be fruitful as well.’ A(y)*Celibacy and deacons (and subdeacons?). PL54, col. 1204, collated against Db, fo. 120rb. Feltoe, Letter CLXVII, Question III, 110. 217 219 222 224

225 227 228 229 231

‘ut inter episcopos habeantur’. 218 ‘plebibus’. non doceatur] Db: non docetur PL54 220 quae] PL54: qui Db 221 ‘rata’. ‘vana’. 223 auctoritate] Db: auctore PL54 The situation envisaged may be one where the bishop judged orthodox for a time lost control of his church to a bishop judged to be heretical, during which time ordinations were conducted. ‘crimine’. 226 Alienum est a consuetudine ecclesiastica] part of the rubric in Db ‘poenitendi’. ‘quod’, which could refer back to ‘remedium’, but which in context presumably means the rule laid down in the decree. The Vulgate has ‘vir’ instead of ‘sacerdos’. 230 orabit] PL54: oravit Db privata] PL54: primata Db 232 si] PL54: om. Db

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‘That deacons,233 like the bishop and priest, ought to give up marital sex, but not, however, repudiate their marriages’ [‘XVII. Quod diaconi sicut episcopus et presbiter cessare debent ab 234opere coniugali, non tamen repudiare coniugia’ Db, fo. 120rb]. ‘The law of continence is the same for ministers of the altar as for bishops and priests: who, while they were laymen, or lectors, could licitly both marry and beget children: but, when they 235reached the aforesaid ranks, that which had been allowed began to be forbidden to them. And 236 so that from a carnal marriage a 237spiritual marriage might be made, they must both keep their wives with them, and have them as if they did not have them, by which means the charity of marriages may be kept safe, and 238marital sex cease.’ A(z)*Marriage as symbol of Christ’s union with the Church, and concubinage. PL54, cols. 1204–5, collated against Db, fo. 120rb–va. ‘That a wife is one thing, a concubine another, nor is it wrong for someone to give his daughter in marriage to a man with a concubine’ [‘XVIII. Quod aliud sit uxor, aliud concubina, nec erret quisquis filiam suam in matrimonio concubinam habenti tradiderit’ Db, fo. 120rb]. ‘Not every woman joined to a man is the man’s wife, for not every son is his father’s heir. The bonds of marriage between free men and women follow the rule of law and are between equals, 239with the Lord establishing this long before the beginning of Roman law. Therefore, a wife is one thing, a concubine another, just as a slave girl is one thing, and a free woman another. Because of this the Apostle too (Gal. 4:30), to make manifest this distinction between persons, cited the testimony of Genesis (21:10), where it is said to Abraham: “Cast out the slave girl and her son, for the son of the slave girl will not be an heir together with my son Isaac.” Therefore, since the society of marriage was established from the beginning in such a way that it should have in it, beyond the 240union of sexes, the symbol241 of Christ and the Church (cf. Eph. 5:32), there is no doubt that a woman of whom we learn that the 242nuptial mystery243 has been lacking has nothing to do with marriage. Therefore, if a cleric anywhere has given his daughter in marriage to a man who has a concubine, it should not be taken as if he had given her to a married man, unless perchance that woman has been 233 234 237 238 239 240 242

Deacons? Feltoe, 110 note 1, cites Quesnel’s view that this is about subdeacons. The contrast with ‘lectors’, rather than subdeacons, gives this a degree of plausibility. PL54: ore Db 235 pervenerint] Db: pervenerunt PL54 236 ut] PL54: ud Db spirituale] PL54: spiritale Db operatio nuptarum (sic)] Db: opera nuptiarum PL54 et] Db (so ‘and with’): om. PL54 sexuum conjunctionem] PL54: sexum coniunctionemque Db 241 ‘sacramentum’. nuptiale . . . mysterium] PL54: nuptiarum . . . mysterium Db 243 ‘mysterium’.

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freed, and given a dowry in accordance with the law and accorded the honour of a public wedding. 244For women who have been joined at their father’s wish to husbands are without guilt, if the women, who used to belong [habebantur] to their husbands, were not within marriage: since a married woman is one thing, a concubine another.’ A(aa)*Indissolubility, marriage, concubinage, continued. PL54, col. 1205, collated against Db, fo. 120va. ‘That it is not a duplication of marriage, when a slave girl is set aside and a wife is taken’ [‘XVIIII. Quod non sit coniugii duplicatio quando ancilla reiecta uxor adsumitur’ Db, fo. 120va]. ‘To eject a slave girl from one’s 245bed and to take a wife whose free status is beyond question is not a duplication of marriage but a progress in probity.’ A(bb)*Penance delayed. PL54, col. 1206, collated against Db, fo. 120vb. Feltoe, Letter CLXVII, 111. ‘Concerning those who put off doing penance’ [‘XXI. De his qui penitentiam agere 246differunt’ Db, fo. 120vb]. ‘This neglect can be not out of contempt for the remedy, but from fear of even greater wrongdoing. Therefore, when penance has been delayed it should not be denied, when it has been very earnestly sought: in order that the wounded soul may reach the medicine of mercy in one way or another.’ A(cc)*After penance. PL54, col. 1206, collated against Db, fos. 120vb– 121ra. ‘That a man who asks pardon for transgressions ought to abstain even from many things that are allowed’ [‘XXII. Quod oporteat eum qui pro inlicitis veniam poscit etiam a multis licitis abstinere’ Db, fo. 120vb]. ‘It is one thing to seek to get back lawful things that are one’s due, and another to despise out of love of perfection what belongs to one, but someone seeking pardon for transgressions ought to abstain 247even from what is allowed, for as St Paul says (1 Cor. 6:12): “Everything 248 is allowed, but not everything is expedient.” Therefore, if a penitent has a case which he perhaps ought not to neglect, 249it is better to seek an ecclesiastical judgment than that of the secular court.’250 A(dd)*After penance: trade. PL54, col. 1206, collated against Db, fo. 121rb. Feltoe, Letter XLXVII, 111. 244 245 247 249

In margin in Db: De puellis quae concubinas habentibus nubserint (sic) toro] lecto written above line in Db 246 differt MS. etiam a licitis] Db: a multis etiam licitis PL54 248 licent] Db: mihi licent PL54 melius expetit] PL54: et melius expetit quis Db 250 ‘forense judicium’.

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‘That it is inappropriate for a penitent to engage in profitable business’ [‘XXIII. Quod paenitenti nulla lucra negationis exercere conveniat’ Db, fo. 121rb]. ‘The character of profit either excuses or inculpates the businessman, in that there is 251both honest gain and the dishonourable sort. Nonetheless, it is more useful for the penitent to suffer losses, than to get tangled up in risky business, for it is hard for sin to be avoided in the course of commercial buying and selling.’ A(ee)*After penance: civil or military service. PL54, cols. 1206–7, collated against Db, fo. 121ra. Feltoe, Letter CLXVII, 111. ‘That after penance one should not return to civil or military service in the world’ [‘XXIIII. Quod ad militiam saecularem post paenitentiam redire non debeat’ Db, fo. 121ra]. ‘It is absolutely against the ecclesiastical law to return to civil or military252 service in the world after doing penance, since St Paul says (2 Tim. 2:4): “Nobody fighting with God should involve himself in secular business.” Therefore, he who wants to enrol in 253secular service is not free from the entanglements of the Devil.’ A(ff)*Sex and marriage after penance. PL54, col. 1207, collated against Db, fo. 121ra–rb. Feltoe, Letter XLXVII, 111. ‘That if a young man does penance under pressure of any kind of peril, and is not able to remain chaste, he can be held upright by the medicine of marriage’254 [‘XXV. Quod adolescens si 255urgente quocumque periculo paenitentiam gessit, et non se continet, uxoris potest remedio 256sustineri’ Db, fo. 121ra]. ‘If a young man does penance under pressure either of fear of death or of the danger of captivity, and afterwards, fearing that he will lapse into the 257unchastity of youth, chooses to be united to a wife, 258lest he fall into the sin of fornication, he seems to have done something pardonable, if he does not have intercourse with anyone at all apart from his wife. In this we are not, however, establishing a rule, but we are passing a judgment on what may be more supportable:259 for it is a true insight that nothing is more fitting for a person who has done penance than lasting chastity of both mind and body.’

251 253 255 257 258

et] PL54: om. Db 252 ‘militiam saecularem’ can mean either civil or military service. militia mundana] PL54: militiae mundanae Db 254 ‘uxoris . . . remedio’. urguente Db 256 sustinere Db incontinentiae juvenilis, copulam uxoris] PL54: incontinentiae venialis copulam uxoris Db so that conceivably venialis . . . uxoris could mean ‘of a gracious wife’ ne] PL54: nec Db 259 ‘tolerabilius’.

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A(gg)*Penance and monks. PL54, cols. 1207–8, collated against Db, fo. 121rb. Feltoe, Letter CL XVII, 111.260 ‘That if a man abandons his commitment to the monastic life, he is to be purified by making amends through public penance’ [‘XXVI. Quod siquis propositum monachi 261deseruerit publicae sit paenitentiae 262satisfactione 263purgandus’ Db, fo. 121rb]. ‘A commitment to the monastic life, undertaken through personal choice or voluntarily, cannot be forsaken without sin. For what somebody has promised to God, he should also deliver (cf. Deut. 23:21). Therefore, someone who has broken a promise to life a monastic life264 and turned away to military service or marriage must be purified by making amends through public penance, for even if military service is not sinful,265 and marriage can be honourable, it is wrong to abandon a better choice once one has made it.’ A(hh)*Penance and pagan sacrifices. PL54, col. 1209, collated against Db, fo. 121vb. Feltoe, Letter CLXVII, 112. ‘On those who have partaken of a pagan banquet and of food that has been offered up to the gods’ [‘XXX. De his qui convivio gentilium et escis immolaticiis usi sunt’ Db, fo. 121vb]. ‘If they have only partaken of a banquet of pagans and food that has been offered up to the gods, they can be purified by fasts and the imposition of hands, so that from then on, abstaining from what belongs to sacrifices to idols, they may participate in the sacraments266 of Christ. If, however, they have either adored idols or been contaminated by homicides or acts of fornication, they should not be admitted to communion except through public penance.’

260 261 264 266

Note that Feltoe’s numbering of the questions does not map precisely on to the division into chapters by Dionysius. deseruiret Db 262 corrected from factione in Db 263 purgandos Db ‘professione singularitatis’. 265 ‘innocens’. ‘sacramentorum’, which should not be taken in the developed sense that evolved in the twelfth century.

Appendix B Gelasius I

This appendix shows how Gelasius I continued the discussion string started by early papal jurisprudence and drew some of its main rulings together into a short synthesis of his own, in decretal form. I use the edition by A. Thiel, Epistulae romanorum pontificum genuinae et quae ad eos scriptae sunt a S. Hilaro usque ad Pelagium II, i (Braunsberg, 1868), corrected against the best manuscript of the Dionysiana, Db. Thiel’s edition looks like a modern critical edition but the appearance is deceptive: see PJc.400, 24–5. After making my own translation, I consulted the scholarly translation by Bronwen Neil and Pauline Allen, The Letters of Gelasius I (492–496). Adnotationes: Commentaries on Early Christian and Patristic Texts (Turnhout, 2014), 143–57, and give references to the relevant pages. With two independent translations, a reader has a good ‘fix’ on the original, with which even Latinists, if more familiar with golden age classical or high medieval Latin, may struggle. B(a)~ 11 March 494. Gelasius I to bishops in Lucania, and the Bruttium, and Sicily, Necessaria rerum dispositione. J3.1270 = Old Jaffé 636 (391). General decretal. Thiel, Epistulae romanorum pontificum genuinae et quae ad eos scriptae sunt a S. Hilaro usque ad Pelagium II (Braunsberg, 1868), 362–79, collated against Db. *Monks and the clerical cursus. Thiel, 362–3, collated against Db, fo. 127rb–va. Neil and Allen, 146–7. ‘That where no necessity creates insistent need, the institutions1 of the Fathers should be kept inviolate, or, if clerics are in short supply, they should be selected from monks’ [‘II. Ut ubi nulla 2perurvet necessitas, constituta patrum inviolata serventur, vel cum defuerint clerici de monachis eligantur’ Db, fo. 127rb]. ‘Therefore – ancient ordinances remaining in force, which, out of the respect that they command, it is appropriate to be kept as the rule where 1

‘constituta’.

2

Sic for perurget

267

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Appendix B

there is no pressure from an emergency situation or period of difficulty3 – in order that churches which are altogether without ministers,4 or so destitute of adequate services5 as to be unable to make the divine offices6 available to the congregations that belong to them, we allow the intervals for the initiation of and promotion within a clerical career7 to be regulated in such a way that if someone 8should come to the clerical office who is also committed to a life of religion9 and well trained in the disciplines that go with monasticism, let enquiry first be made about his previous life, whether he proves not to be stained by any serious wrongdoing, if he had not, as it may be, had a second wife, and is shown not to have taken a woman widowed by her husband, if he has not, as it may be, done public penance, and does not have some obvious physical defect,10 if he is not bound to the status of slave or colonus,11 if he is already demonstrably without the obligations of a curialis,12 if he has the education without which he could hardly take on the role of, as it may be, a sexton13 – that if he meets all the requirements listed above, after he has been made, without delay,14 a lector, or a notary, or, certainly, a defensor, let him become an acolyte after three more months, especially if his age is on his side in this, in the sixth month he may take the title of subdeacon, and, if his behaviour is moral and his disposition virtuous, in the ninth month let him be a deacon, and at the end of a year let him be a priest, as one to whom15 the voluntarily accepted consecration to a holy way of life 16is shown to have made good what had been due to be conferred by intervals of years.’17 B(b)*Hierarchy and the clerical cursus. Thiel, 363–4, collated against Db, fo. 127va–128ra. Neil and Allen, 147–8. ‘That if members of the laity are chosen for the clergy, they should be investigated with much more care with regard to the things that were said in connection with monks’ [‘III. Ut si qui de laicis eliguntur ad clerum, multo sollicitius hec que superius dicta sunt inquirantur’ Db, fo. 127va]. 3 6 8 10 11 12 13 14 15 16

4 5 ‘nulla vel rerum, vel temporum . . . angustia’. ‘ministris’. ‘servitiis’. 7 ‘divina munera’. ‘tam instituendi, quam promovendi clericalis officii’. 9 accedat] Db: accedit Thiel ‘etiam de religioso proposito’. ‘nec ulla corporis parte vitiatus apparet’. ‘si servilis aut originariae non est conditionis obnoxius’. ‘si curiae jam probatur nexibus absolutus’: probably, the obligations of the town councillor class, a compulsory hereditary profession. ‘ostiarium . . . implere’. ‘without delay’: I changed the position of this phrase after consulting the translation of Neil and Allen. ‘cui’ – which could also mean ‘for which’ and refer to the fast-stream promotion process just described. docetur Db: doceatur Thiel 17 ‘annorum interstitia’.

Gelasius I

269

‘If, however, any member of the laity is to be added to those who carry out ecclesiastical offices, it is right that such a person should 18be examined more carefully with respect to each and every one of the points contained above, in proportion to the magnitude of the difference well known to separate life in the world and monastic19 life, since, indeed, 20the appropriate ministries of the Church should be restored to their appropriate state, 21not pressed upon [men whose] merits are not appropriate; and that which could be suitable for the performance of sacred duties should be more assiduously sought in their training,22 the shorter the time 23available for pursuing it:24 so that probity of character may be shown to have what a more extended period of practice has not imparted; lest, in the process of making good the shortage of clergy, we may be judged rather to have introduced vices into the world of divine worship – not reckoned to have procured reinforcements for the well-regulated family of the Church:25 for the promotions of these men, nonethless, we add six months beyond the limit of a year: since, as it is said, it is appropriate for there to be a distance between a person devoted to divine worship, and someone coming from the way of life of the laity. These things, however, we have judged to be conceded in order that in those churches whose ministries have through the damage done by wars been left nonexistent or quite inadequate, they26 may be renewed, so that after, God willing, they have been restored, the old procedure of the canons of the Fathers may be maintained in filling the ranks of the clergy,27 nor should they for any reason be overridden by a provision which has been 18 20 21

22 24 25

26

examinari] examinare Db 19 ‘religiosam’. convenientia Ecclesiae ministeria reparanda sunt] convenientiae . . . separanda sunt Db (so: the ministries should be repaired for the overall harmony of the Church) non inconvenientibus meritis ingerenda] Db: non inconvenientibus meritis ingerendi Thiel (which makes the preceding sunt do double duty as the verb for both reparanda and ingerendi; Neil and Allen have ‘not that people should be rushed into unsuitable offices’. Textual problems complicate the translation problem but the sense is clear. ‘institutis’. 23 quo fuerant haec adsequenda Db: quo fuerant assequenda Thiel Taking ‘haec’ (in Db but not in Thiel) to refer to ‘institutis’, their training. ‘legitimae familiae . . . compendia’. My colleague Benet Salway has a different reading of the clause which he would translate as follows: ‘lest, in the process of making good the shortage of clergy, we may be judged rather to have introduced vices into the world of divine worship, and not to have procured shortcuts to the regular ranks of the clergy’ – ‘regular . . . clergy’ is certainly an attractive possibility, though note the Thesaurus Linguae Latinae, s.v. ‘familia’, F, which lists ‘ecclesia’ as a meaning; Simon Corcoran suggests ‘fast tracks’ instead of ‘shortcuts’. The question is whether the more common meaning of ‘compendium’, ‘saving’, dilutes too much the antithesis with ‘vices’, which the less common sense of ‘gain’, which I have freely rendered as ‘reinforcements’, brings out nicely. Cf. ‘pro alicujus utilitatis fortasse compendio’ below. Neil and Allen, 147, have ‘ we are reckoned to have gained the profits of an illegitimate family’. I doubt if it is possible to be certain exactly what Gelasius meant, but the core message is evidently that he wants to ensure that accelerated training does not create inadequate clergy. I.e. the ministries. 27 ‘in ecclesiasticis gradibus subrogandis’.

270

Appendix B

made as a remedy for a temporary shortage,28 not proposed as a new law contrary to things known by the great men of the past; with the other churches (which, since they have not been devasted by a catastrophe of this kind, it behoves to hold to the traditional view when conducting ordinations) being unaffected by this special situation.29 With an earnestness all the greater in proportion to how much we have been alarmed by the present state of affairs do we impose the observance of the venerable canons,30 admonishing the consciences of the clergy of each and every rank not to attempt to rush into illicit excesses. Nor should any bishop confidently imagine that he has the right to apply to involve in the service of the divine mysteries twice-married men, or men who have chosen to take the place in a marriage left by another,31 or anyone at all after penance, or lacking in learning, or with a major physical defect,32 or of legally bound status,33 or men bound inextricably to curial34 or governmental duties,35 or, in general, men who have been examined without waiting for a suitable time,36 nor should they be eager to break at will laws not made by themselves,37 without the apostolic see commanding it by a just, official decision.’ B(c)*Ritual: baptism and the liturgical year. Thiel, 368, collated against Db, fo. 129va. Neil and Allen, 150. ‘That nobody should presume to baptize except at Easter or Pentecost, except only those people for whom a terminal illness makes it indispensable’ [‘X. Ut praeter paschale tempus vel pentecosten nemo baptizare praesumat nisi eos tantum quos aegritudo extrema compulerit’ Db, 124va]. ‘Nobody should feel they are entitled to baptize indiscriminately at any time38 whatsoever other than at Easter and the venerable mystery 28 30 31

32 33 34 35 36

37 38

‘accidentis defectus’. 29 ‘ab hac occasione’. ‘Quo magis hac opportunitate commoniti, observantiam venerandorum canonum propensius delegamus’. ‘conjugia sortientes ab aliis derelicta’: i.e. marrying widows; Neil and Allen have ‘abandoned by others’, but in context, and given the rules against marrying widows, it seems unlikely that a living first spouse is envisaged. ‘corpore vitiatos’. ‘conditionarius’: translation suggested by my colleagues Benet Salway and Simon Corcoran. I.e. city government duties, which became an onerous hereditary obligation in the late empire, though the system may have been breaking down by Gelasius’s time. ‘curiae publicarumque rerum’. ‘nulla temporis congruentis expectatione discussos’ – my translation is a guess at an obscure phrase. My understanding depends on A. Souter, A Glossary of Later Latin to 600 a.d. (Oxford, 1949), s.v. ‘discutio’: ‘examine, review, test, investigate’. Neil and Allen’s ‘banned far and wide with no expectation of a suitable time to return’ is also possible. ‘aliena’. ‘Baptizandi sibi quisquam [quispiam Db] passim quocunque tempore nullam credat inesse fiduciam’.

Gelasius I

271

of Pentecost, the only exception being when the person is suffering from a very grave illness in the course of which it is to be feared that as the disease becomes ever more life-threatening the sick person might perchance be cut off by death and pass away without this saving remedy.’ B(d)*Ritual: ordinations and the calendar. Thiel, 368–9, collated against Db, fo. 129va. Neil and Allen, 150. ‘The ordinations of priests and deacons to be celebrated at specific times’ [‘XI. Presbyterorum et diaconorum ordinationes certis celebrare temporibus’ Db, fo. 129va]. ‘In addition, they 39should not carry out ordinations of priests and deacons except at certain times and days, that is, they should know that they should be celebrated on the fast days of the fourth, seventh, and tenth month, but also on the fast of the start of Lent, and of the middle of Lent, on the fast of Saturday around evening. Nor, for the sake of any practical advantage whatsoever, should a priest or deacon have precedence over those who were ordained before him.’40 B(e)*Ritual: veiling of virgins. Thiel, 369, collated against Db, fo. 129vb. Neil and Allen, 150–1. ‘That virgins should receive the veil on specified days’ [‘XII. Ut praefixis diebus virgines sacrae velentur’ Db, fo. 129vb]. ‘Also let them not on any account confer the sacred veil on 41religious virgins except at Epiphany, or Low Sunday,42 or on the 43feast of the apostles,44 unless perhaps that – as was said in respect of baptism – it should not be denied them if they have been stricken by a grave illness and supplicate for it, lest they 45pass away without this gift.’ B(f)*Penance. Thiel, 373–4, collated against Db, fo. 131rb. Neil and Allen, 153. ‘That those who enter into relationships with sacred virgins and are guilty of impure unions should not be able to receive communion, unless perchance they have performed public penance’ [‘XX. Quod hi qui se sacris virginibus 39 40

41 42 43 44 45

debeant] Db: audeant Thiel Neil and Allen, 150, have: ‘It is of no use at all to promote either a priest or a deacon ahead of those who have been appointed before them.’ Perhaps it comes to almost the same thing. devotis] Db: Devotis . . . deo Thiel ‘in albis Paschalibus’. My thanks to Bonnie Blackburn for the translation. natale] Db (so Peter and Paul): natalitiis Thiel, followed by Neil and Allen, ‘feast-days’ ‘natalibus Apostolorum’: probably all the apostles, not just Peter and Paul – but in that case one would translate ‘feast’, in the singular. de saeculo transeant] Thiel: deculo(!) exeant Db

272

Appendix B

sociant, et federa incesta committunt, communicare non possint, nisi forte publicam paenitentiam gesserint’ Db, fo. 131rb]. ‘We have learned that certain men heedlessly enter into relationships with sacred virgins, and that, after a commitment has been consecrated to God, they have 46impure and sacrilegious intercourse; it is right that these men should forthwith be excluded from holy communion, and altogether refused acceptance unless they perform public and approved penance; with the proviso, of course, that the viaticum should not be denied to those who are at the point of death, on conditions however that they have repented.’ B(g)*Bigamia. Thiel, 375, collated against Db, fo. 131va–vb. Neil and Allen, 154. ‘That second marriages are not forbidden for secular persons, but on this account they cannot, however, by any means enter the clergy’ [‘XXII. Quod secunda coniugia secularibus non negentur, quibus tamen ad clerum pro hoc facto minime venire conceditur’ Db, fo. 131va]. 47 ‘It is permitted for secular people to enter into second marriages in such a way that it is 48forbidden for any man after such a marriage to enter the body49 of the clergy. For a permission granted to fragile humanity in general is one thing, but a life 50dedicated to the service of the things of God should be something else.’

46 47 48

sacrilegàque miscère] I am unsure of the significance of the minims above the line, which I have marked by grave accents: for pronunciation? sic . . . ita ut] Db: sicut . . . ita Thiel; Neil and Allen’s translation follows Thiel sinatur] Db: sinitur Thiel 49 ‘collegium’. 50 dedicata] Db: dicandorum Thiel

Appendix C Gloss II (Johannes Teutonicus and Bartholomaeus Brixiensis) on Gratian and the Liber Extra

C(a)

Textual Criticism

This appendix focusses on early papal jurisprudence which was incorporated into Gratian and on which Bartholomaeus Brixiensis commented, for the most part copying Johannes Teutonicus, but dissenting from him at times, and providing up-to-date references to decretals from the 1234 Liber Extra. These passages thus link up the first papal law with the two monuments that constitute the Corpus Iuris Canonici and which remained the Catholic Church’s law until 1917. Bartholomaeus Brixiensis (d. 1258)1 produced what became the standard gloss on Gratian’s Decretum. The work was finished before the middle of the thirteenth century, possibly around 1234–412 – perhaps a few years after 1234 to give him time to incorporate the references to it. As we have seen, Bartholomaeus is heavily dependent on the previous standard gloss of Johannes Teutonicus, and much of the content is the latter’s, but whenever the Liber Extra of 1234 is cited we know for sure that, whether or not he is following Johannes Teutonicus, he has in a sense ‘taken ownership’ of the content. Bartholomaeus is of course particularly interesting when he indicates disagreement with Johannes. The fact that he does so at times is also evidence of his assent to Johannes when he does not disagree. Bartholomaeus Brixiensis’s principal borrowings from Johannes Teutonicus are indicated in the apparatus criticus: siglum VTeut, normally in the form = VTeut with a folio number to MS BAV Vat. Lat. 1367. I do not record minor verbal variations, or the references which Teutonicus gives to the forerunners of the Liber Extra instead of to the 1 2

J. A. Brundage, Medieval Canon Law (Harlow, 1995), 207. ‘Die Glossa ordinaria des Bartholomäus ist 1246 als abgeschlossen anzunehmen,’ J. F. von Schulte, Die Glosse zum Decret Gratians von ihren Anfängen bis auf die jüngsten Ausgaben (Vienna, 1972), 89; ‘His revision of the Glossa should be placed around 1234–41, since no solid evidence points to the years after 1241’, R. Weigand, ‘The Development of the Glossa Ordinaria’, in W. Hartmann and K. Pennington, eds., The History of Medieval Canon Law in the Classical Period: from Gratian to the Decretals of Pope Gregory IX (Washington, DC, 2008), 55–97, at 91.

273

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Appendix C

latter. Furthermore, if the manuscript used is early enough we can be fairly sure that not much has been added to his text. I have used manuscripts and carefully chosen early printed editions, rather than the edition conveniently made available online via the Canon Law Virtual Library, at http://web.colby.edu/canonlaw/2009/09/24/decre tum-decretists/ because in the latter, it is impossible to separate out the original Bartholomaeus Brixiensis from later additions. Sigla V1 = BAV Pal. Lat. 626: Base manuscript, selected for its early date, probably quite near to the date when the commentary was completed.3 In apparatus, entries without a siglum refer to this manuscript. This manuscript has been chosen because it is too early to include the accretions which were added to the text of Bartholomaeus in the later Middle Ages and which one cannot, in the early modern printed editions, separate out from his original text.4 V2 = BAV Vat. Lat. 1369: a relatively early manuscript, though not so early as V1. It is nonetheless useful for correcting possible errors in V1. VTeut = BAV Vat. Lat. 1367. Edn = Rome, 1582 edition: this edition is conveniently available online through the Canon Law Virtual Library website, but it is not useful for present purposes because accretions cannot be distinguished from the original version written by Bartholomaeus. 3

4

Prof. Tessa Webber kindly gave me her assessment of the date: ‘the principal glossing hand writes in a tradition of handwriting with which I am not very familiar, so my view should be accepted with all due caution. I think there may be a different hand who supplies the glosses in the lower margin within the jeux de plume flourished embroidered baseline compartments. This second hand is of a kind that I am a bit more familiar [with] and which I would have no difficultly dating to the earlier thirteenth century (which is how I would also date the north European (presumably French?) hand of the text itself. The descriptive metadata on the Vatican website gives 12th-century, but given the character of the pen-flourishing, which seems to be all of a piece with the text, and the consistency with which the scribe of the text uses a diacritical stroke over i, would lead me to find a twelfthcentury date as being too early. The rubrication of the main gloss looks, at least superficially, also to be part of the original production of the book, and certainly the ruling of text and gloss is all of a piece. The main glossing hand is southern European. It lacks any characteristics that come in at the end of the thirteenth century, and my best guess, judging by the extent to which the letters (other than fusions) are still fairly generously spaced within words, would be somewhere in the first half of the thirteenth century, and not implausibly the first quarter, though I don’t have immediately to hand any dated or datable analogues to support this . . . I should say that I haven’t been through every leaf of the manuscript, and I note that a different text scribe takes over on fol. 180r.’ Cf. von Schulte, Die Glosse, 89–90.

Gloss II on Gratian and the Liber Extra

275

R1478 = Rome, 1478 edition (using BL IC.17353). S1471 = Strasbourg, 1471 edition. These two printed editions seem to give Bartholomaeus’s original version without accretions: see von Schulte, Die Glosse, 90. These passages from the gloss on Gratian’s Decretum by Bartholomaeus Brixiensis are discussed in Chapter 16. As discussed there, they show how discussion of an argument by Innocent I, edited and translated in PJc.400, is extended by bringing in also a letter of Innocent III. The original letter is cited in full in Gratian PARS I D. 26 c. 3; Friedberg, Corpus, i, cols. 96–7, corresponding to PJc.400, 164–9, and a passage from it is cited in PARS II C. 28 q. 1 c. 1; Friedberg, Corpus, i, col. 1079. This is the passage beginning ‘Numquid non erunt’ and ending ‘deus iungit [coniunxit in Friedberg’s Gratian edition]’. C(b)

Pagan Marriages

The starting point is a long section of Innocent I’s letter to Macedonian bishops, 414, J3.691 = Old Jaffé 303 (100), edited and translated in PJc.400, 164–9, the passage beginning ‘Should those from whom’ in the translation, 165, and ‘Numquid’ in the edition, and ending ‘joined together’ in the translation, 165, and ‘deus iungit’ in the edition, quoted in Part II of the Decretum (the Causae part). Bartholomaeus Brixiensis refers the reader to his longer commentary on the whole section in Part I of the Decretum, but in the gloss on the following chapter in the Causae part he stays with the problem and in the end refers the reader again to his gloss on the full version of Innocent I’s ruling earlier on in his commentary. Commentary by Bartholomaeus Brixiensis: PARS II C. 28 q. 1 c. 1 ‘Numquid [Do you really]. This chapter is word for word in D. 26 c. 3 Deinde [Then], and is expounded there. [After this cross reference, Bartholomaeus moves on to the next chapter, a fake decretal dealing with the same issue. He follows Johannes Teutonicus.] Si quis dimiserit [If anyone sent away/lost5]: because of fornication. Post baptismum [After baptism], if you should say, of the other partner: however, it is clear that the believer is not compelled in any case to have the unbeliever with him or her, but should not

5

The lemma of text commented.

276

Appendix C

contract marriage with another woman except in three cases,6 Extra, “De divortiis”, Gaudemus. “X.4.19.8. {[Innocent III, 1201[Innocent] to the bishop7 of Tiberias. [The omission marks stand for the passages in italics in Friedberg’s edition; these were not included in the Liber Extra.] We rejoice in the Lord [. . .] You asked to be informed by an apostolic document whether men taking pagan wives related to them in the second or third or more remote degree, should, when thus joined, remain together after their conversion, or be separated from one another. On this matter we reply [. . .] in this way: that – since the sacrament of marriage exists with the faithful and with unbelievers, just as St Paul shows when he says: ‘If any brother has an unbelieving wife, and she consents to live with him, he should not send her away’, and marriage has been contracted in the aforesaid degrees by pagans licitly so far as they are concerned, as they are not bound by canonical constitutions (‘For what business is it of ours’, according to the same St Paul, ‘to judge concerning those who are outside’) – for the benefit especially of the Christian religion and faith, from the acceptance of which the husbands – fearing that they will be deserted – can easily be brought to withdraw by the wives, the faithful in this situation who are joined in marriage can freely and licitly remain united, since through the sacrament of baptism sins are forgiven, marriages are not dissolved.8 Since, however, pagans split their conjugal affection among several women at the same time, there is good reason to doubt whether they are able to keep all of them, or which one out of all of them? [. . .] In truth, this seems repugnant to reason and inimical to the Christian faith, since from the beginning one rib was changed into one woman, and sacred scripture testifies that ‘because of this let a man leave father and mother, and he will cleave to a wife, and they will be two in one flesh’; it did not say, ‘three or several’, but ‘two’, nor did it say ‘he will cleave to wives’; but ‘to a wife’. [. . .] Nor was anyone ever allowed to have several wives at the same time, except someone to whom it was granted through a divine revelation, which custom is regarded as even a godly duty at various times in the past, one through which the patriarchs and other just men who we read had several wives at the same time are excused from adultery, just as Jacob was from lying, the Israelites from theft, and Samson from murder. Indeed, this opinion is also proved to be valid by the testimony of the Truth, bearing witness in the Gospel that ‘Whoever abandons his wife [. . .] because of fornication, and marries another, commits adultery.’9 If, therefore, after a wife has been abandoned, another cannot legally be married, a fortiori when the wife has been retained; through which it is clearly apparent, that a plurality in either sex – since they should not be 6

7

These must be: ‘unless after his conversion she refuses to live together with him, or, even if she does consent to do so, yet not without insulting the creator, or in order to draw him into mortal sin’ in the translated passage. ‘episcopis’ Friedberg. 8 Cf. PJc.400, 159 and 160. 9 ‘moechatur’.

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judged asymmetrically – is to be condemned with respect to marriage. [. . .] When, however, a man has repudiated [repudiavit] his legitimate wife according to his religion, since the Truth in the Gospel has condemned a repudiation of this sort, he will not, as long as she is alive, be able licitly to have another one even if he has converted to the faith of Christ, unless after his conversion she refuses to live together with him, or, even if she does consent to do so, yet not without insulting the creator, or in order to draw him into mortal sin. In that case, reinstatement10 should be denied to her if she asks for reinstatement, even if it is demonstrably a case of unjust deprivation,11 since, according to St Paul, a brother or sister is not subject to servitude in this matter. But if she too is converted, following him after he has been converted to the faith before he marries a legitimate wife on the aforesaid grounds, he should be compelled to take her back. Although also, according to the truth of the Gospel, he who marries a wife who has been set aside12 commits adultery, nonetheless the one who set her aside cannot charge the one set aside with fornication on the grounds that she married another man after the repudiation, unless she committed fornication in another way.” }13

But if both of them should become believers, H.14 says that however he set her aside, whether because he gave her a bill or divorce or in another way, he is always compelled to take her back after the baptism of both. For he says that every sin is removed in baptism, even the exception15 [= legal objection] which pertains to the husband on account of the woman’s sin. But it is safer to distinguish, with Innocent, so that it may be said that according the custom of the Gentiles, and not because of her fornication, he gave her the bill of divorce, and now both are converted, he is compelled to take her back. He cannot now hold it against her if she has married another man, as if rejecting her on grounds of fornication. For though she has in truth committed fornication, since that fornication is nonetheless licit according to them, he cannot reject her. If, however, she should have committed fornication otherwise, and if he had sent her away because of that fornication, he should not be compelled to take her back. 10 13 14

15

‘restitutio’. 11 ‘iniusta spoliatio’. 12 ‘dimissam’. X.4.19.8; Friedberg; Corpus, ii, cols 723–4; [. . .] marks passages that were in the original but omitted from the Liber Extra. Passages in bold echo Innocent I’s letter. This is probably Huguccio rather than the Hugolinus whom Bartholomaeus often calls ‘his master’, for here Bartholomaeus seems to be quoting Johannes Teutonicus. Cf. von Schulte, Die Glosse, 80, and Weigand, ‘Development of the Glossa Ordinaria’, 88–9, especially 89 note 157, and 96. Hostiensis may be just too late to fit. In margin in V1: ‘It is not true, as follows’.

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All of this you have in the Decretals of Gregory IX, “On Separations and Dissolutions” [De divortiis] Gaudemus [the decretal translated above], last section. Nor are the following contrary to this: “De consecratione” D. III, Sine penitentia, and “De penitentia”, Final Distinction, Nullus. For I do not say that through baptism an “exception competent” pertaining to him can be taken away. And I have noted the rationale of this fully at Distinction 26, at the end.’ V1 = BAV Pal. Lat. 626, fo. 170va ‘Numquid. 16Hoc capitulum est de verbo de verbum XXVI D. Deinde, et ibi exponitur. [After referring the user to his fuller commentary on the passage of Innocent I at PARS I D. 26 c. 3, Bartholomaeus moves to the next chapter in Causa 28: PARS II C. 28 q. 1 c. 2: ‘In fidelis potestate sit post baptismum uxorem recipere, quam ante dimiserat. Item ex Decreto Euticiani Papae [not a genuine papal decretal]. II Pars. Si quis gentilis gentilem uxorem dimiserit ante baptismum, post baptismum in potestate eius erit eam habere, vel non habere.’17] Si quis dimiserit: 18propter fornicationem quam fecit. Post 19baptismum, 20si dicas alterius tantum, planum est quia fidelis non compellitur aliquo casu infidelem eam habere, sed non 21contraheret cum alia nisi in tribus casibus, Extra “De divortiis” Gaudemus.22 Sed si uterque fuerit factus fidelis dicit H.23 quod quocumque modo eam dimiserit, sive quia dedit libellum repudii sive alio modo, semper compellitur eam recipere post utriusque baptismum. Nam dicit omne peccatum deletum esse in baptismo, etiam 24 exceptionem que viro competebat 25propter peccatum mulieris. Sed tutius 26distinguendum est cum 27Innocentio ut si dicatur quod 28 secundum morem gentilium et non propter fornicationem illius ante

16 18 20 21 23 24 25 26 27 28

Hoc . . . exponitur] = VTeut, fo. 234ra 17 Friedberg, Corpus, i, col. 1080. propter . . . fecit] = VTeut, fo. 234ra 19 baptismum. In potestate S1471 si dicas . . . Deinde in fine] =VTeut, fo. 234r, with minor variants contrahere R1478, S1471 22 X.4.19.8. Probably Huguccio rather than Hugolinus. Non est verum ut sequitur] added in margin propter peccatum mulieris] om. R1478, S1471 distinguendum est] V1 after correction from distinguere: est distinguere V2, R1478, S1471 iii added above line in another hand secundum morem gentilium et non propter fornicationem illius] om. R1478, S1471

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dedit ei 29libellum repudii, 30et modo uterque conversus est, compellitur eam recipere. Nec potest modo ei 31obicere si cum alio contraxit, quasi obiectu fornicationis eam 32repellit. Nam licet in veritate fornicata sit, quia tamen 33illa fornicatio licita est secundum eos, non potest eam repellere. Si vero alias fornicata fuisset, et propter illam fornicationem eam dimississet, non 34compelleretur eam recipere. Hoc totum 35habes Extra “De divortiis”, Gaudemus, # ult. Nec est contra “De consecratione”, Di. IIII, Sine penitentia,36 et “De penitentia”, Di. ult., Nullus.37 Non enim dico per baptismum alterius exceptionem sibi competentem auferri posse. Et rationem istius plene notavi XXVI D. Deinde in fine’ Gloss II does indeed comment extensively on the full version of Innocent I’s text, Gratian, D. 26 c. 3; Friedberg, Corpus, i, cols. 96–7. His commentary can be found in MS BAV Pal. Lat. 626 on fo. 15r, above and beside the right-hand column and at the foot of the page. It need not be quoted in its entirety but at one point he again mentions Innocent III X.4.19.8 Gaudemus: ‘It seems therefore that infamia contracted before baptism is not removed through baptism, and therefore someone who was infamous [infamis] before baptism, cannot be promoted afterwards . . . # I do not believe this, but say that infamia and irregularity which derive from one’s own offence are removed in baptism, because the gifts of baptism are without any penance or satisfaction . . . For if sin were not wiped away so far as infamia is concerned, it would still be an obstacle after baptism, which Ambrose denies, below, same place, [chapter beginning] Una. Therefore, if someone kills a thousand men before baptism, all infamia and irregularity is removed. This is evident too in [Saint] Paul, who was a killer before baptism and yet was made an apostle afterwards. On the other side, if you object: according to this a woman who has lost her virginity before baptism, is not “irregular” after baptism, and ought therefore to be consecrated, I do indeed grant that she is not irregular, 29 30 31 33 36

37

libellum repudii] supplied in margin et modo uterque . . . eam recipere. Nec potest modo V2, R1478, S1471: om. V1 ‘corrected’ to libellum repudii obicere non potest in V1 32 repellat R1478, S1471 V2, R1478, S1471: om. V1 34 compellitur R1478, S1471 35 habeo R1478 ‘gratia Dei in baptismate non requirit gemitum, non requirit planctum, vel opus aliquod, sed solam fidem, et omnia gratis condonat’ [‘the grace of God in baptism does not need lamentation, requires no breast-beating, but only faith, and it forgives everything freely’]. PARS III D. 4 de cons. c. 99; Friedberg, Corpus, i, col. 1393. PARS II D. 7 de pen. c. 6; Friedberg, Corpus, i, cols. 1246–7.

280

Appendix C

but she is nonetheless prevented from being consecrated because the symbolism of the sacrament is defective.38 # But why is a woman rejected on grounds of fornication committed before baptism, as in X [4.19.8], “On dissolutions”, Gaudemus, at the end, as is seen in promotion? But that is because the offence stains not only the wife but also the husband, as in Decretum XXXII q. 1 in coniugio. In this you see that by free status an offence or disgrace is removed, even though a man committed it in his own person, but that offence which he committed in another person is not removed, as in ff. “Persons incurring infamia”, second-last law,39 and the law Athletes, # Pomponius.40 Besides, through baptism a prior crime is removed, the “exception competent” on grounds of crime is not, however, removed, as crime is removed through penance, not, however, an “exception competent”, however, on grounds of crime, as above, adjoining distinction, final chapter, and [Causa] 33 q. 2 Admonere. That of which we are speaking here, however, is not sin but a consequence of sin, namely, infamia contracted from sin . . .’ V1 = MS BAV Pal. Lat., fo. 15rb, lines 3ff. The corrections are in a lighter ink and probably a different hand. The whole passage is more or less copied from Johannes Teutonicus. 41 ‘Videtur ergo quod infamia contracta ante baptismum non tollitur per baptismum, et ita qui ante baptismum fuit infamis, postea non potest promoveri . . . # Hoc non credo, sed dico infamiam et irregularitatem ex proprio delicto provenientem tolli in baptismo quia dona baptismi sunt sine omni penitentia et satisfactione . . . Si enim peccatum non deleretur quantum ad infamiam, adhuc post baptismum obesset, quod negat Ambrosius infra, eodem Una.42 Unde si aliquis occiderit mille homines ante baptismum, omnis infamia et irregularitas tollitur . . . 43Hoc etiam patet in Paulo, qui ante baptismum fuit homicida et tamen postea factus est apostolus . . . # E contra, si obicis: secundum hoc, illa que corrupta est ante baptismum, post baptismum non sit irregularis, et ideo debeat consecrari, bene 38 39

40

41 42

‘symbolism . . . defective’: a free translation of ‘defectus sacramenti’. ‘Ulpian, Edict book 6: The Emperor Severus said in a rescript that a woman’s standing was not harmed by the occupation she had followed in servitude.’ Corpus Iuris Civilis, Dig. 1.3.2, para. 24, A. Watson, The Digest of Justinian, i (Philadelphia, 1985), 86. ‘Pomponius says that one who while in servitude caused slaves belonging to his peculium to act as prostitutes is also blacklisted after being freed.’ Corpus Iuris Civilis, Dig. 1.3.2, para. 4; Watson, Digest, i, 83; Corpus Iustiniani Digestum Vetus (Lyons, 1604), col. 343. Videtur ergo quod . . . infamia ex peccato contracta] = VTeut, fo. 19va Gratian, PARS I D. 26 c. 4; Friedberg, Corpus, i, col. 97. 43 Ut VTeut

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concedo quod non est irregularis, sed tamen impeditur a consecratione propter defectum sacramenti. # Sed quare repellitur mulier pretextu fornicationis quam ante baptismum commisit, ut Extra “De divortiis” Gaudemus, in fine, 44sic videtur in promovendo. 45Sed illud est quia illud delictum non 46tantum uxorem sed etiam virum maculat, ut XXXII q. 1 In coniugio.47 Sic vides quod per libertatem tollitur delictum vel infamia 48quamvis in seipso commisit, sed illud delictum quod commisit in alio non tollitur, ut ff. “De hiis qui notantur infamia” l. penult.49 et l. Atletas # Pomponius.50 Preterea per baptismum tollitur crimen precedens, non tamen tollitur exceptio competens ex crimine sicut per penitentiam tollitur crimen, non tamen exceptio competens ex crimine, ut supra, Di. proxima, c. ult.51 et 52 XXXIII q. ii 53Admonere.54 55Quod autem hic dicitur non est peccatum sed sequela peccati, scilicet infamia ex peccato contracta . . .’ C(c)

Bigamia and Clerics in Minor Orders

The starting point is a passage from Siricius’s letter to Himerius of Tarragona, 385, J3.605 = Old Jaffé 255 (65): ‘XI. That a cleric who has married a second wife should be deposed. Any cleric, indeed, who either marries a widow or, for sure, a second wife, should rapidly be stripped of any privilege going with an ecclesiastical office, with lay communion only being allowed to him: which he can, obviously, keep on condition that he does not make himself guilty of anything on account of which he should lose this.’ PJc.400, 156. As quoted by Gratian in PARS I D. 84 c. 5, it receives the following gloss from Bartholomaeus: ‘If any. In minor orders, because it could not make sense in relation to other. 44 46 47

48 49

50

51 53 55

sic videtur in promovendo] om. VTeut 45 Sed illud] Sed hoc ideo VTeut tamen MS. ‘In coniugio quis positus quecumque peccata fecerit, non propriam infuscant coniugem; sed fornicatio etiam uxorem coinquinat, ut iam non sit uiro suo licita, sed adultera.’ Gratian, PARS II C. 32 q. 3; Friedberg, Corpus, i, 1116. quam quis] VTeut, probably correctly ‘The same [= Ulpian] in libro sexto ad Edictum. Imperator Seuerus rescripsit, non obfuisse mulieris famae eius questum in servitute factum.’ Corpus Iuris Civilis, Dig. 1.3.2, para. 24; Watson, Digest, 86; Corpus Iustiniani Digestum Vetus (Lyons, 1604), col. 355. ‘Pomponius & eum qui in seruitute peculiaria mancipia prostituta habuit, notari post libertatem ait.’ Corpus Iuris Civilis, Dig. 1.3.2, para. 4; Watson, Digest, 83; Corpus Iustiniani Digestum Vetus (Lyons, 1604), col. 343. PARS I D. 25 c. 6; Friedberg, Corpus, i, cols. 94–5. 52 corr. from XXII corr. from amovere 54 PARS II C. 33 c. 8; Friedberg, Corpus, i, 1142–54. Io. Quod] VTeut, indicating the end of the passage from Johannes Teutonicus

282

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Should have married. Also, in this way someone who struck him [the ‘bigamous’ cleric] does not come within the scope of the canon [i.e. of the excommunication of anyone who strikes a cleric]. This is true of the time of Siricius, who preceded Innocent, who published [PARS II C. 17 q. 4,] Si quis suadente.56 {“Again, Innocent [II in Lateran Council c. 15]: If anyone, at the Devil’s instigation, should commit the sacrilegious sin of laying violent hands on a cleric or a monk, he shall be subjected to the bond of an anathema and no bishop should presume to absolve him, unless in urgent danger of death, until he has presented himself to the pope in person, and received his command.”}

But what about today? H.57 says that he [the ‘bigamous’ victim of violence] does come within its scope, since he is bound to wear the tonsure: X.3.1.5, Clericus.58 You say that where he contracts marriage with a woman who is not a virgin or who is a widow, he is immediately deprived of every privilege, as in this chapter, Dicit [He says].59 If, however, with a virgin, then it is up to him whether he wants to keep the privilege, or not. If he wishes to keep it, he will wear the tonsure, and live in accordance with the clerical state. If not, he shall be stripped of all clerical dignity and honour, although there are some who say the contrary.60 [End of passage taken from Johannes Teutonicus.] But today it [i.e. this opinion] is corrected by a decretal in the Liber Extra, “De clericis coniugatis” Iohannes (X.3.3.7) . . . {“[Innocent III] to the Bishop of Poitiers. John [. . .] complained to us and showed that you are trying to compel him, on the grounds that he had formerly been ordained acolyte, although he married a legitimate wife long ago [. . .] to wear a clerical tonsure, through which scandal 56

57 58 59

60

As discussed above, there seems to be confusion between Innocent I and the twelfthcentury Innocent II, under whom excommunication for striking a cleric was introduced: the reference is to Gratian, PARS II C. 17 q. 4 c. 29; Friedberg, Corpus, i, 822. Probably Huguccio rather than Hugolinus. ‘From the Council of Carthage. A cleric should not grow out his hair, nor a beard.’ Friedberg, Corpus, i, col. 1229: ‘Again, Augustine in Homily 50: “The Lord says, Forgive and you will receive forgiveness.” But I first foregave, and you forgive afterwards. For if you do not forgive, I will call you back, and whatever I forgave I will demand back from you (replicabo).’ In the base manuscript V1 this is cued to the following marginal note: ‘But today this is corrected by the decree in X.3.3.7, Ioannes’, duplicating the passage just below. It is followed by ‘b’. Von Schulte, Die Glosse, 82, is sure that ‘B.’ does not mean ‘Bartholomaeus’, though this instance seems in tension with his justification that ‘ich in keiner alten Handschrift diese und andere Glossen als spätere Zusätze gefunden habe’.

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could be created between him and his wife, since, according to the custom of your land, married clerics are not compelled to wear the tonsure if they do not want to. Since, therefore, [. . .]61 this man, even when tonsured, cannot enjoy clerical privilege, we command [. . .] that [. . .] you should not trouble him with regard to this tonsure, so long as he does not receive any ecclesiastical benefice by reason of which he should be bound to wear the clerical tonsure, because, since it is necessary for him to get involved in secular business, the tonsure of the same man doing secular things would seem actually to redound to the discredit of our ministry.”}62 B.63

Bartholomaeus Brixiensis base manuscript BAV MS Pal. Lat. 626 = V1, fo. 45vb ‘Si quis. 65In minoribus 66ordinibus, quia de aliis non posset intelligi. Duxerit. 68Etiam ita non incidit in canonem qui 69eum 70verberavit. 71 Verum est hoc tempore Syricii qui precessit Innocentium, qui edidit illud: XVII q. IIII Si quis suadente. Sed quid hodie? 72H. dicit quod incidit, quia iste coronam tenetur portare: Extra “De vita et honestate clericorum” Clericus.73 Tu dic quod ubi 74contraxit cum corrupta vel vidua, statim 75privatur omni 76privilegio, prout hoc capitulum 77Dicit.78 64 67

61 62 63 64 65 66 67 68 71 72 73

74 76 77 78

In the passage omitted from the Liber Extra Innocent III quotes, ‘a husband ought to think how he should please his wife’, 1 Cor. 7:33. Friedberg, Corpus, ii, col. 459. The omitted passages in square brackets were in the original letter but not included in the slimmed-down version put into the Liber Extra. Von Schulte, Die Glosse, 82, argues that ‘B.’ does not mean ‘Bartholomaeus’. He thinks they mean ‘Bazianus’. Si quis] Quisquis S1471: Quisquis clericus R1478 In minoribus . . . contradicant] VTeut, fo. 56va ordinibus constitutus R1478, S1471 After intelligi in margin in V1: Verum est de iure, sed de facto contraxit cum vidua. Iuris interpretatione censebitur bigamus. et R1478, S1471, VTeut 69 clericum written above 70 verberabit S1471 Verum est hoc] Hoc verum erat R1478, S1471, VTeut, in which hoc teneo is added in the margin, probably in a different hand, cued to hoc in the gloss Hosti[ensis] R1478, but see note to translation X.3.1.5; Friedberg, Corpus, ii, col. 449. Unusually, X.3.1.5 is not a papal decretal but a late Antique conciliar decree: ‘A cleric should neither grow a head of hair, nor a beard’, for which Friedberg gives the reference c. 24 Statt. eccl. antiq. Bruns I, 146. contraxerit R1478, S1471: contrahunt VTeut 75 privantur VTeut In margin in VTeut: non credo sed hoc (h’c) intelligo secundum suum tempus S1471 adds et c. altercationis (altricationis edn.) consti. Greg. X, which must be an addition to Gloss II’s text. R1478 (BL IC.17353) does not have the reference to Altercationis. PARS II D. 4 De pen. c. 3; Friedberg, Corpus, i, col. 1229, ‘Item Augustinus in omelia L. “Dicit Dominus: ‘Dimitte et dimittetur tibi’: sed ego prius dimisi, dimitte uel postea. Nam si non dimiseris, reuocabo te, et quicquid dimiseram replicabo tibi.”’

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Si vero 79cum virgine, tunc est in eius optione, an velit retinere privilegium, an non. Si vult retinere, portabit coronam, et vivet clericaliter. Si non, exuitur omni dignitate et honore clericali, licet quidam 80 contradicant. [End of passage in Johannes Teutonicus] 81 Sed hodie corrigitur per decretum 82in Extra “De clericis coniugatis”, Iohannes (X.3.3.7) B. . . .’ C(d)

Episcopal Elections

428, Celestine I to all the bishops of the provinces of the Viennensis and the Narbonensis, Cuperemus. J3.821 = Old Jaffé 369 (152). PJ.c.400, 129–30. ‘XVIII. That nobody should be ordained bishop against the will of the clergy or laity of the diocese. No bishop should be imposed on the unwilling: the consensus and wishes of clergy, laity, and the city council is required. 83 Another man may be chosen from another church only when nobody suitable can be found from among the clerics of the city84 itself for which a bishop is to be ordained – which we hardly think will happen; for the latter would first have to be rejected for others from other churches to deserve to be given preference. Let each man have the reward for service in the Church in which he has passed 85his life, taking on each office in turn. Let nobody even think of snatching away what is owed to others for their service, nor let any man dare to claim for himself the recompense due to another. The clergy should be able to exercise a veto if they see that they are being badly treated, and they should not be afraid to reject men whom they know to have been imposed on them through an unexpected sideways promotion.86 If they are not going to get the reward due to them, they should certainly have the right to judge freely who is going to rule over them.’

79 80

81 82 83 84 86

cum virgine] corr. from in vidue Cued to marginal gloss: est hodie determinatum per decretum Extra ‘De clericis coniugatis’, c. uno Ti. VI. [probably X.3.3.1; Friedberg, Corpus, ii, col. 457]: R1478 adds Io. Hoc hodie . . . Johannes. B.] added in margin in a different hand in VTeut: Sed] Hoc R1478, S1471 om. R1478, S1471 ‘ordinis’: see P. Norton, Episcopal Elections 250–600: Hierarchy and Popular Will in Late Antiquity (Oxford, 2007), 42 and note 51. ‘civitatis’. 85 suam: sua PL67 The phrase tries to capture the two relevant senses of ‘ex transverso’.

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This was incorporated87 into Gratian at PARS I D. 61 c. 13 (Friedberg, Corpus, i, col. 231). Gloss II comments as follows: ‘No-one on the unwilling.88 Initially. But if, because of negligence, they were to elect nobody, someone could well be given to them against their will, as Gratian, LXXXIX D Volumus.89 Similarly, where the smaller party is against it, and does not have a just reason for being against it, a bishop may well be given to them when they are unwilling. Again, it may be said90 of the laity that a bishop is not to be given to them when they are unwilling, if they have a just reason for being against him, as in LXIII D. Si forte.91 I commented on this at XXIII D. c. Illud.92 Civitatis [of the city]. Surely you do not mean that first the clerics of the whole city or diocese have to be rejected? It would seem so: as below, LXIII D. Sacrorum,93 and c. Plebs94 and c. Nosse,95 and Decretals of Gregory IX “On the Use of the Pallium”, Cum super,96 {“. . . You have asked . . . how one should understand the passage in the formula for conferring the pallium which says: ‘We confer on you the pallium, so that you may use it inside your church’. It should be understood thus, namely, within every church of the province entrusted to you. But if you should happen to go outside clothed in liturgical garments in a procession or some other way, then you should by no means use the pallium”}

For they do not seem to be part of a different church, since the whole is not something other than the part, as in Decretals of Gregory IX, “On Election”, Cum nobis olim.97 {“[Innocent III] to the Archdeacon and Chapter of Capua . . . Since however it is established, that there has been appeal [. . .] against holding any election which is not canonical, it could seem, that after it [the appeal] nothing new should be done in the 87

88 89 90 91 92 93 94 95 96 97

With one piece moved to a different canon: see K. Pennington, ‘The Golden Age of Episcopal Elections, 1100–1300’, Bulletin of Medieval Canon Law 35 (2018), 243–53, at 244. Gratian, PARS I D. 61 c. 13; Friedberg, Corpus, i, col. 231. Gratian, PARS I D. 89 c. 2; Friedberg, Corpus, i, col. 311. Or: ‘the same may be said’, if the reading ‘Idem’ is preferred to ‘Item’. PARS I D. 63 c. 36; Friedberg, Corpus, i, col. 247. PARS I D. 23 c. 5; Friedberg, Corpus, i, col. 81. PARS I D. 63 c. 34; Friedberg, Corpus, i, col. 246. PARS I D. 63 c. 11; Friedberg, Corpus, i, col. 238. PARS I D. 63 c. 12; Friedberg, Corpus, i, col. 238. X.1.8.1; Friedberg, Corpus, ii, col. 100. X.1.6.19; Friedberg, Corpus, ii, cols. 58–61. Why is this relevant? Difficult to say! Perhaps because Innocent III lists the qualities a bishop needs to have but says nothing about the priority accorded to locals?

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meantime, and so such an election was to be judged null and void, as being essayed after an appeal which has been made in accordance with canon law. Against this, however, since the appeal was made not in order that no election should be held, but in order that it should be a canonical one, if the act of making an election were to have been carried out subsequently, this seemed to have been carried out not against the legal force of the appeal,98 but, rather, in accordance with it, and therefore, although the election was carried out after the appeal, it was, however, not carried out contrary to it, and, because of this, it should by no means be declared null. [. . .] Again, since, after the appeal had been made, the archdeacon with his supporters had left the choir, and you took care assiduously to call them back so that they could take part in holding the election together with you, since they did not want to come to carry out the election, they seem to have dissociated themselves, because of which they did not appear to be able legally to reject the election held by you in harmony in accordance with the wording of the papal command [. . .]. After these and other things had been asserted, though nothing had been said or objected against the person of the man whom you have elected – since, however, in accordance with the passage of St Paul that says (1 Tim. 5:22) ‘impose hands not lightly upon any man’, we ought to pay diligent attention to the things about which one needs to find out about a person – we thought good to proceed, as was fitting, by virtue of our office [. . .] also the one elected also has a level of learning,99 which may not be outstanding but which is appropriate, such that he should not be excluded from being elected for lack of knowledge, as we have been quite fully informed by those who know him better. With respect to whether he is of the age required by law we have not been able to get full information, since, when we took the trouble to enquire for many people what age he is, we did not at any point hear from anyone that he had reached the age of thirty. [. . .] We, wishing to make provision both for the church and the person, and to act in accordance with both rational considerations and the canons, [. . .] since we have judged that what you propose is sensible, and therefore we wish it firmly to endure, on account of both the urgent necessity and the evident utility of the Church of Capua, to which we give our particular approval in this matter, we grant to you our aforesaid subdeacon [. . .] as a proctor, delegating to him a free hand in administering both temporal and spiritual matters.”}

And those “who dwell in neighbouring buildings”100 seem to dwell in Rome, as in ff. “De verborum significatione”, as l. Edificia,101 and l. Pupillus # incola.102 Just as with guardianship, everyone who is from the city has to be rejected before one goes to neighbouring cities, as ff. “De tutoribus et curatoribus”, Divus.103 98 100 101 102 103

99 ‘formam appellationis’. ‘Illius quoque literaturae’. ‘in continentibus . . . aedificiis’ is in the following reference. Justinian, Dig. 50.16.139, Digestum Novum, Pandectarum (Lyons, 1604 ed.), iii, col. 1837. Justinian, Dig. 50.16.239, Digestum Novum, Pandectarum (Lyons, 1604 ed.), iii, col. 1860. Justinian, Dig. 26.5.12, Infortiatum seu Pandectarum (Lyons, 1604 ed.), ii, col. 149.

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And the one presiding104 should be from the diocese, as in c. “De incolis”, l. X. l, Verum.105 And H.106 concedes this. But I believe it is enough that everyone from the greater chapter107 is rejected. Argument: Decretals of Gregory IX, “On the meaning of words”, Cum clerici.108 {“[Innocent III] to the provost and chapter of Piacenza. Since the clergy of Piacenza swear an oath worded as follows: ‘I, N., from this hour henceforth will be faithful and obedient to the [. . .] Church of Piacenza and to my lord the bishop of Piacenza’, you have [. . .] wished [. . .] to consult us whether the clergy of the whole diocese should be understood, or only the chapter of the cathedral church. We therefore reply as follows [. . .]: that the clergy of the whole diocese should not be understood by the word ‘the Church of Piacenza’ in the wording of the oath prescribed; and, if the chapter of the cathedral church be understood, anyway he who swears this oath is principally bound to the bishop, as to the head. [1203].”}

But what if the minority elects from the community? It seems that here the election of the few will prevail, as in VII q. 1 Denique.109 For in electing,110 all will be in agreement, as D. LXIII, Litteras.111 Again, the minority has just grounds for objecting. Therefore, although they may be fewer, their objection should be heard, as in Decretals of Gregory IX, “Of those things that are done by the greater part of the chapter”, Cum in cunctis,112 {“Since in all Churches what seems good to many113 and the sounder part of brothers should be observed without delay, it is a very grave matter and most worthy of condemnation that in certain churches a small number of men sometimes, not so much on rational grounds but, rather, wilfully [. . .] obstruct the governance of the church.114 For this reason we lay it down by the present decree that, unless the objection by the minority and less senior is based on rational grounds and demonstrated, that which has been ordained by the greater and sounder part of the chapter shall always prevail and be executed, with no right of appeal. Nor should it be an 104 105 107 109 110 112

113 114

‘preses’ can mean bishop, but in context probably not in this case, as that would seem to beg the whole question. Probably Justinian, CJ 10.40.3 (Lyons, 1604 ed.), ii, col. 78. 106 ‘H.’ I.e. not just the canons in residence. 108 X.5.40.19; Friedberg, Corpus, ii, col. 917. Gratian, PARS II C. 7 q. 1 c. 9; Friedberg, Corpus, i, cols. 569–70. ‘postulatione’. 111 Gratian, PARS I D. 63 c. 14; Friedberg, Corpus, i, col. 239. X.3.11.1; Friedberg, Corpus, ii, col. 506: Third Lateran Council of 1179, canon 16: cf. D. Summerlin, The Canons of the Third Lateran Council of 1179: Their Origins and Reception (Cambridge, 2019), 117–19. ‘pluribus’. ‘ad ordinationem ecclesiasticam procedere non permittunt’. On balance, I do not think that ‘ordinatio’ here refers explicitly to the ordination of bishops.

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obstacle to our statute if someone were perchance to say he is bound by oath to maintain the custom of his church; for those things that go against the utility of a church and the decrees115 of the holy Fathers should not be called oaths, but, rather, perjuries. But if anyone should presume to bind himself on oath to customs of this kind, which are neither supported by reason, nor conform to the sacred decrees, he should be banned from receiving the body of the Lord until he has carried out an appropriate penance.”}

and [Gratian] D. XXXI, Nicaena.116 An argument to the contrary in Decretals of Gregory IX, “On Election”, Cum nobis olim,117 and c. Cum inter [R. seniorem].118 {“Since, between [. . .] R. senior and R. junior, a dispute had arisen concerning the abbey of Schaffhausen [. . .] Celestine our predecessor compelled the aforesaid R. senior, who was insistently demanding a sentence, to come to a compromise, which was not what he wanted; and thus, renouncing the office of abbot, he received from his hand the custody119 and [. . .] the office of prior, to be possessed by him so long as he lived [. . .]. Although he unwillingly consented to this ordinance, when, however, he returned he was unable to obtain what had been granted [. . .], as his adversaries were unwilling to observe this compromise. [. . .] We, bearing in mind that from his consent to the compromise handed down to him [. . .] R. senior had lost his legal due, if such it was, and through this, he could in no way appeal legally to prevent the monks proceeding to make an election, since those who appeal are not as a rule heard, unless it makes a difference to them120 – we say [. . .] that this appeal was not valid in law.121 Consequently, the election could not be prevented by it. [. . .] Indeed, although [. . .] the provost and chapter of Constance included in their letter a passage about the interdict the cardinal had imposed, since, however, by the fact that the diocesan bishop bestowed a blessing on R. junior, it seems to neutralize that which we set out above,122 therefore either documentary evidence impairs the validity of the deed, or the deed impairs the validity of the document,123 nor was it proved, though the objection was made, that the election was conducted by men under interdict, we have not been able to nullify it [. . .]. Therefore, we have thought fit to delegate the same case [. . .] to you, so that if it should be established that the election was conducted by men who were suspended, after it has been altogether quashed, a decision should be reached about a suitable person124 for 115 117 118 120 121 122

123 124

‘instituta’. 116 PARS I D. 31 c. 12; Friedberg, Corpus, i, col. 114. X.1.6.19; Friedberg, Corpus, ii, cols. 58–61: translated above at note 97. X.1.6.16; Friedberg, Corpus, ii, cols. 55–7. 119 ‘custodiam’. ‘nisi quorum interest, audiri non soleant appellantes’: cf. Dictionary of Medieval Latin from British Sources, s.v. ‘interesse’, 6a. ‘legitimam’. ‘ei videtur quod praesimus obviare’: taking ‘ei videtur’ as correlating with ‘quod’, rather than as ‘it seems to him’, since ‘seems to the diocesan bishop’ or ‘seems to R. Junior’ both make weak sense in context. ‘vel scriptura facto, vel factum scripturae praeiudicat’. ‘de persona idonea consulatur’.

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the monastery, once the sentence of suspension and interdict has been relaxed after a suitable penance.”}

I say that the election made by the minority holds, so long as they elect, in accordance with canon law, from their community. Therefore, if there is more than one cleric, a man who is from the local church should be examined before a man who is from a different church, in accordance with [Gratian] D. LXXXV, Archidiaconum.125 Nor do the decretals set out above refute this. The election of the majority is valid there because nobody had been elected in competition. But there is still the obstacle of the decretal in the same Titulus [of the Decretals of Gregory IX]126 in the case where the nomination by three of a different church prevails over the election by two of the local church.127 But this was because of the form of the mandate, because they had made an agreement such that the person, whomever the greater part agreed on, that128 he would win. And, on this, note Decretals of Gregory IX, “On Election”, Cum inter canonicos,129 {“[Innocent III] to the Archbishop of Genoa and to the bishops of Piacenza and Bobbio. Since a dispute had arisen among [. . .] the canons of Saona concerning the election of a bishop [. . .], [. . . S.] the subdeacon of Saona and I. the proctor of the chapter came to the apostolic see. The aforesaid proctor, however, put it that, when everyone had been asked, they agreed by common assent – except for the aforesaid subdeacon – on the provost of Asti, and when he could not be shifted from his hard line, the agreement of the others was set down in a public document as a consequence. For the rest, however, it was put forward on behalf of the other party on the other side,130 that, since there were seven canons of Saona, they had gone to the chapter to discuss the future election of the bishop [. . .]. But when the archdeacon, the archpriest, and the provost nominated the said man from Asti, it was [. . .] strongly countered by the aforesaid S., who said that this man suffered from epilepsy; on account of which 125 126

127

128 129 130

PARS I D. 85 c. 1; Friedberg, Corpus, i, col. 297. Perhaps X.1.6.21; Friedberg, Corpus, ii, cols. 63–4, which he discusses below, rather than X.1.6.30; Friedberg, Corpus, ii, cols. 74–6, which begins In causis, a possible reading in the Latin: see below. Here both candidates are external and the majority is of a delegated electoral committee rather than the whole chapter. Relevant also is X.1.6.29; Friedberg, Corpus, ii, col. 74. This seems to be a reference to Damasus Hungarus referring to a ‘disputation’ held by Innocent III ‘on whether a minority of two could elect a candidate from the cathedral chapter against the votes of the majority who wanted to elect a person from another church’ (Pennington, ‘Golden Age’, 251). The Latin too has both ‘ut’ and ‘quod’. X.1.6.21; Friedberg, Corpus, ii, cols. 63–4. This seems to be an addition to Johannes Teutonicus by Bartholomaeus Brixiensis. ‘pro parte altera . . . ex adverso’.

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he had on another occasion been turned down as unsuitable; nor ought they to go to another church as long as a suitable man could be found in the church of Saona. [. . .] After this [. . .] the archpriest, on behalf of the other side, furnished, as he said, with a letter from the elected man,131 and in fact S. himself for his part, made the effort to submit to the arbitration of the archbishop of Milan, who gave them, and also confirmed as bishop, master G., canon of Monza. [. . .] We command [. . .] your discreet self that, since it is established that the election of the aforementioned provost was conducted and also attested by the greater and sounder part of the chapter, if the aforesaid provost consented132 to the same election, so that through mutual consent of the electors and the elect an almost conjugal bond has been spiritually contracted, unless it should be sufficiently demonstrated that the same man suffers from epilepsy, with respect to which it is said that an appeal was lodged against him [. . .], you, notwithstanding the interposition of an appeal, if one has in any way [. . .] been stated to have been lodged133 for other reasons than those mentioned above, [. . .] since we judge those to be frivolous, you should [. . .] confirm his election, notwithstanding that which it is stated was done by the aforementioned archbishop after this election, even if the parties agreed on the man through arbitration, since the electors did not have the power to draw back in this way from such an election. And if those who elected him did not submit to the arbitration of the aforementioned archbishop, even if the said provost has not yet consented to the election of him which has been made, but nonetheless wishes to consent, you should nonetheless confirm his election, so long as he is free from the disease which has been put forward as an objection.”}

But what if everyone chooses someone from a different Church, apart from one man who chooses someone from the local Church? Here I say that the election by one man is invalid, since he cannot elect anyone from his local Church, since every one of them consents to another. And so he cannot consent to himself. Again, what if the power to elect is given to a set of men and they nominate someone from a different Church? The nomination stands: see Decretals of Gregory IX, “On Renunciation”, Post translationem,134 {[1208] “Innocent III to the bishop of Faenza, elected archbishop of Ravenna. After your translation to the church of Ravenna, since [. . .] the provost and canons [. . .] of Faenza [. . .] unanimously conferred on I. [. . .] their fellow canon the unlimited authority to elect, he [. . .] chose I., a canon of San Frediano in Lucca, formerly bishop of ‘Sarnatensem/Serzenatem’ [. . .] to be nominated as the bishop of Faenza. Afterwards, after the consent of [. . .] of the prior of San Frediano had been asked about this matter and his consent had been obtained, the provost and 131 132 133

‘de rato’. Taking ‘consenserit’ as a perfect subjunctive rather than a future perfect (the forms being the same). ‘proponitur interposita’. 134 X.1.9.11; Friedberg, Corpus, ii, cols. 112–13.

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the others [. . .] humbly asked for the same nomination to be approved by ourselves. Against this nomination however seemed [. . .] to be the canon135 of the Council of Constantinople in which it is laid down that whoever comes down from the rank of a bishop to the life of monks and a place of penance can in no way be promoted again to the episcopal office. Therefore, it seemed that their nomination could in no way be admitted contrary to the said council, since it is one of the four principal ones, which the Catholic Church venerates like the four evangelists. #1. Yet certain special cases are found in which, notwithstanding the aforesaid council, a man who has chosen the monastic life may be licitly raised up again to the episcopal office. For if somebody with the permission of his superior comes down to the monastic life when a fierce persecution is raging or when ill health is hindering him, since he is unable to be of use in exercising pastoral authority, he will be able to be promoted to the episcopal rank when the impediment of persecution or ill health has been removed. #2. Again, if somebody, for lack of learning, lest he be like the blind leading the blind, leaves by apostolic authority the place of his authority and betakes himself to the tranquillity of monastic life, and through disciplined study finds the pearl of knowledge, without a doubt he will be able to ascend again to occupy an episcopal see as a pastor after being called anew to it by the Lord. #3. Again, if somebody should have acquired a bishopric through the greed of his relatives, without, however, his knowing anything about it, and, after, finding out about it, gave up the same bishopric with the permission of his superior and chose the observance of the religious life, even if according to canon law he might not be able afterwards to return to the same bishopric, he will however be able to be raised up again to a different one. #4. Although, however, in these and similar cases he who gives up the episcopate and chooses monastic life is able to rise up again to the pastoral office, nonetheless, nothing in them is understood to be done contrary to the aforementioned council, which speaks with regard to a case when because of some crime someone abandons the episcopate and goes down to the monastic life for the sake of penance. Therefore, certain men say that the aforesaid canon speaks with regard to a case when someone, for a crime of which he had been convicted or which he had confessed, after being deposed from his episcopal rank, was shut up in a monastery to do penance, or when somebody for some grave crime for which he was unable to do an appropriate penance while retaining the bishopric, obtained permission to give it up and chose monastic life; with others saying that the aforesaid canon is to be understood to mean that he is unable to promote himself, that is, to claim again as if it were his due what he gave up in this way, although he could be elected, especially if he resigned the position only, and not the order. #5. Therefore, since it has not be possible for us to establish [. . .] the reason why the aforesaid I. resigned the episcopal office, [. . .] we command that [. . .] if you should establish that the same I. resigned the aforementioned episcopate for one of the reasons set out above or similar ones, you may [. . .] by our authority [. . .] give him permission to ascend to the governance of the church of Faenza, as long as necessity or utility demands this, especially if it turns out to be true that [. . .] the said I. only gave up the position mentioned, 135

‘capitulum’.

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and not his [episcopal] order, or even his rank. For then it would be most strongly to be presumed that it was not on account of some crime committed by him, but for the sake of [. . .] penance, that he had made the transition to the religious life, especially since the apostolic see would after the resignation have much less than before permitted him if involved in such a sin to perform services 136 as a bishop; otherwise, since it would be too hard to accept this nomination contrary to so great a council, enjoin on the aforementioned provost and canons that they should choose for themselves as a pastor another suitable person.”}

and Decretals of Gregory IX “On Election”, In causis,137 {“The same [Innocent III] to the abbots of Grandselve and Belleperche. In the cases [. . .] When the chapter of the church of Toulouse had come together to settle the election of the bishop, they chose two men [. . .] to choose five electors from the same chapter, who, after swearing an oath, would settle the election of a new bishop, and by each member of the chapter it was ordained and granted that the man whom those [five] men unanimously chose, or whom three of them chose, to choose from them, should, if the person was suitable, be held without any contradiction to be the bishop. [. . .] Afterwards, however, when five electors had been chosen by the aforesaid two, and they had withdrawn to one side to settle the election, and were unable to reach unanimous agreement on one person, three of them agreed on [. . .] the bishop of Comminges [. . .], and then revealed to the chapter the choice they had made with regard to nominating a bishop; and the remaining two afterwards on the third day, with a few members of the chapter, the rest being absent, chose the [. . .] archdeacon of Agen. [. . .] But the messengers of the aforesaid archdeacon [. . .] replied on the contrary that, since the aforesaid five electors [. . .], dealing with the election away from the others, disagreed among themselves, in such a way that voices raised in contention had been heard by the brothers who remained in the chapter, the chapter, distrusting them on account of these contentions, sent to them two of the canons, through whom they prohibited them on our behalf138 [. . .] from continuing any further with the matter. And in this way they revoked the power to elect which they had delegated, commanding them to return to the chapter and to discuss the election with the other brothers, and with two of the electors giving their consent to this rescindment, and the remaining three not objecting [. . .] they returned to the chapter. But the other three, who had followed them to the door of the chapter, afterwards left them. But the chapter [. . .] when they had waited all day for them to turn up, on the following day had the bell rung, as is customary, to summon the chapter, and the aforesaid three, with a small number who were complicit with them, contumaciously absenting themselves, the prior [. . .] with the greater and sounder part of the chapter [. . .] elected the archdeacon mentioned above. [. . .] Since therefore the nomination of the bishop of Comminges, which came first, [. . .] was done by men to 136 138

‘ministrare’. 137 X.1.6.30; Friedberg, Corpus, ii, cols. 74–6. ‘ex parte nostra’: a papal legate was involved, though the details were cut out in the version included in the Liber Extra, whose editor Raymond of Peñafort tried to excise all legally irrelevant material.

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whom the whole chapter had transferred the whole power to elect, because of which it is understood to have been done with the consent of the whole chapter, and this [power] since the matter was not complete, since the electors were already in the process of trying to settle it, could in no way be revoked by the chapter, [. . .] we declare that the election of the same archdeacon [. . .] is to be [. . .] annulled.139 Consequently [. . .] we command [. . .] that, if you find the person of the same bishop to be useful and necessary for the governance of the church of Toulouse, and suitable both with respect to knowledge and learning and to the example set by his way of life for the task of extirpating from the diocese of Toulouse the faithlessness of the heretics, which has up until now wretchedly and damnably bred freely there through the negligence of the prelates, you should grant him permission to transfer to the church of Toulouse, because of the urgent necessity and the utility of the same people.”}

and Decretals of Gregory IX, Bone,140 {“Innocent III to the provost and chapter of Esztergom. After your bishop William of good memory had gone the way of all flesh, when you had given your votes unanimously to the [. . .] the Archbishop of Kalocsa to be nominated by you,141 the suffragans of the church of Esztergom, namely the bishop of Pécs and certain others, took steps to oppose your nomination, asserting that, as contempt had been shown to those who had the right to elect together with you, the same nomination had been called into question; although against this your messengers put it, on the other side, that the assent of the suffragans had been requested again and again with regard to appointing a bishop over you as a courtesy, but they refused to give you counsel [. . .]. After the messengers had been assembled in our presence, therefore, and with the opponents proposing certain other objections against the procedure followed for your nomination, [. . .] since we could not reach any certainty about what had been put forward, we decided to adopt the following procedure: that if you should wish to stand by your nomination, with the suffragans persisting in their objection, [. . .] you should come to the apostolic see [. . .] through suitable proctors [. . .]; if, however, they were to desist from their objection, and you were to stand by what you have proposed, you should send to our presence suitable persons [. . .] to inform us about what might be opportune. If, with the bishops who have been mentioned maintaining their objection, it should happen that you are uncertain about your legal position [. . .], you should make provision according to canon law for another suitable person to be your pastor. For the rest [. . .], some of you, rashly withdrawing from the nomination which you had in common presented to us, while others held to it [. . .] asked for the said bishop of Pécs as archbishop. [. . .] We, therefore, did not think fit to accept the same nomination, which we found [. . .] to be the centre of much disagreement, not only of the suffragans but also of the canons of the church of 139 141

‘irritandum’. 140 X.1.5.4; Friedberg, Corpus, ii, cols. 45–7. ‘postulandum a nobis’ in Friedberg’s edition, but ‘vobis’ makes better sense and fits with ‘postulationi’ just below. If ‘nobis’, the translation would be ‘requested from us’.

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Esztergom, and conducted rashly [. . .], against the procedure laid down by our instruction;142 but we commanded you to take steps [. . .] to make provision for a suitable pastor for yourselves through canonical election or a unanimous nomination, with the assent of the suffragans being required, if it should be required by ancient and established custom; otherwise [. . .] we might ourselves make provision for the widowed church. [. . .] However, before our letter reached you, you, on the basis of the previous instruction, brought the suffragans, apart from the bishop of Pécs, back to consensus [. . .]. After that [. . .], when our instruction had been received, those who had agreed upon the [archbishop of] Kalocsa did not want to withdraw from their nomination of him [. . .], but renewed it, with some of the canons who had gone over to the other side rejoining them [. . .]. Others, however, who had nominated the bishop of Pécs [. . .], assembling together, summoned the rest of the canons to the chapter, desiring to proceed to a unanimous nomination or a canonical election in accordance with the instruction of the apostolic see [. . .]. But they, when those men were unwilling to come to the assembly, understanding that in their hands alone rested the free power of making an election, because the rest had neglected to avail themselves of their right, again nominated the aforesaid [bishop of] Pécs. [. . . – ending with arguments put by the other side for the archbishop of Kalocsa. The text in the Liber Extra picks up from this.] Nor should the dissent stand in the way of the men who had nominated someone else, since you had first together unanimously agreed on the nomination of the aforesaid archbishop, and asked for your consent, set down in a letter, and confirmed by your individual signatures, to be confirmed by ourselves, through common messengers,143 and we had received your nomination, for a judgment to be made, if perchance the suffragans were to persist in their objection, or, if they were to consent, or even to yield, to be approved. For if, after a nomination is confirmed by the signatures of those who are making it, and is presented to the Roman pontiff for approval, those who made the nomination could withdraw it, they would frequently take us in144 and our judgment would seem to depend on their will. [. . .] Therefore, we have understood that even if neither nomination were to be approved, nonetheless, in accordance with the tenor of the later rescript the provision to the church of Esztergom should from now on pertain to us. Since, however, we have not had full knowledge of the persons of that kingdom, and therefore we could not in good conscience [. . .] appropriately appoint to this Church another person who is originally from the kingdom of Hungary, nor do we wish to put in charge of it somebody who is not local,145 although it would seem [. . .] more appropriate if a suffragan were to move up to the metropolitan see, than that an archbishop [. . .] be transferred to a metropolitan see, we have nonetheless chosen the better part, and, absolving the same archbishop, on whom everyone whose consent in the election or nomination of a pastor is required had agreed, albeit at different times, from the bond by which he is bound to the church of Kalocsa, we transfer 142 143 144

‘contra formam mandati nostri’. It is unclear if the canons sent ‘common messengers’, or asked for the consent to be sent by common messengers. The word order favours the latter, common sense the former. Or: ‘make sport with us’. 145 ‘alienum’.

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him to the metropolitan see of Esztergom, and we give him permission to move to it, and will transmit the pallium to him designating it for use146 in the same Church.”}

For although they have partially gone beyond the limits of their instructions, they have nonetheless done what borders on their instructions, as ff. “Iudicatum solvi”, Iam tamen # ult., Io.147 Whatever Johannes may say, his opinion about a minority election from the same church is not to be accepted. Therefore, since the whole chapter would seem to do what is done by the greater part of the chapter, as in Decretals of Gregory IX, Cum in cunctis,148 the election of the man from outside will hold, as Tancred says149 through the decretals cited above, since many things ought not to be so, yet the facts on the ground don’t match the theory.150 For the best man should be elected, as in VIII q. I, Licet,151 yet it is enough if a good man is elected, as in Decretals of Gregory IX, Cum nobis, etc.,152 and c. Cum dilecti,153 and c. De statuis et ymaginibus l. ult.154 B.155 Non credimus.156 Note the presumption is to take the generous view, because it is always assumed that someone is worthy in a church, as further on [in Gratian], Obitum . . .’157 Base MS V1 = BAV Pal. Lat. 626, fo. 35va–vb foot Sigla as above. The apparatus criticus will indicate differences between Johannes Teutonicus and Bartholomaeus Brixiensis. For Johannes, I used VTeut = VTeut, fo. 45ra–rb. Since Bartholomaeus disagreed with his forerunner, the passages he has added are in bold type in the text.158 146 148 149 150 151 152 153

154 155 156 157 158

‘ad nomen et usum’. 147 Justinian, Dig. 46.7.5 (Lyons, 1604 ed.), iii, col. 1233. X.3.11.1; Friedberg, Corpus, ii, col. 506: translated above, note 112. Cf. Pennington, ‘Golden Age’, 252 and note 31 (quoting Tancred in MS BAV Vat. Lat. 1377, fo. 159v) and note 32 (Bartholomaeus Brixiensis’s endorsement of Tancred). ‘aliter facta tenent’. Gratian, PARS II C. 8. q. 1 c. 15; Friedberg, Corpus, i, cols. 594–5. X.1.6.19; Friedberg, Corpus, ii, cols. 58–61. Translated above at note 97. This is presumably X.2.14.6; Friedberg, Corpus, ii, cols. 293–4. Its relevance seems too tangential for a translation to be useful: it is about a man elected to the church of Liège who was accused of crimes and who failed to turn up or send a proctor to answer for them, an occasion for Innocent III to clarify what contumacy meant. Justinian, CJ 1.24.4 (Lyons, 1604 ed.), iv, col. 249. ‘B’ may be Bazianus: see von Schulte, Die Glosse, 82. This is a lemma from the text in Gratian: PARS I D. 61 c. 13; Friedberg, Corpus, i, col. 231. PARS I D. 61 c. 16; Friedberg, Corpus, i, col. 232. My thanks to Ken Pennington for drawing my attention to the high degree of overlap and for sending in a personal communication a collation showing the points where Bartholomaeus Brixiensis added to what he took from Johannes Teutonicus, using his

296

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‘Nullus invitis.159 160A principio. Sed si per negligentiam neminem elegissent, bene daretur eis invitis, ut LXXXIX D. Volumus.161 162 Similiter, ubi minor pars contradicit, nec habet iustam causam contradictionis, 163bene datur episcopus eis invitis. 164 Item potest dici de laicis: quod eis invitis non est dandus episcopus, si habent iustam causam contradictionis, ut LXIII D. Si forte.165 De hoc notavi XXIII D. c. Illud.166 167 Civitatis. Nunquid per hoc intelliges 168prius clericos totius civitatis vel diocesis esse reprobandos? Videtur quod sic, ut infra, LXIII D. Sacrorum,169 et c. Plebs,170 et c. 171 Nosse,172 et Extra “De usu pallii” Cum super.173 Illi enim non videntur esse de aliena 174ecclesia, cum totum non sit aliud a parte, ut Extra “De elect.”, Cum nobis olim.175 176 Et qui in continentibus edificiis morantur, Rome morari videntur, ut ff. “De verborum 177significatione”, Qui incontinentibus,178 179ut l. Edificia,180 et l. Pupillus # incola.181 182 Sicut in tutela reprobandi sunt omnes de civitate 183priusquam eatur ad vicinas civitates, ut ff. “De tutoribus et curatoribus”, 184Divus.185 Et preses debet esse de diocesi, ut C. “De incolis”, l. X. l. Verum.186 Et hoc concedit H.187

159 160 161 162 163 165 166 167 168 169 170 172 173 175 176 177 178 180 181 183 185 186 187

own unpublished edition. The edition of the text that follows is thus more his work than mine, though my collation is based only on one manuscript of Johannes, VTeut = BAV Vat. Lat. 1367. Gratian, PARS I D. 61 c. 13; Friedberg, Corpus, i, col. 231. Nullus . . . Volumus] =VTeut, fo. 45ra Gratian, PARS I D. 89 c. 2; Friedberg, Corpus, i, col. 311. Similiter, ubi minor pars . . . contradictionis] =VTeut, fo. 45ra bene . . . invitis] om. VTeut 164 Item] Idem R1478, S1471, VTeut PARS I D. 63 c. 36; Friedberg, Corpus, i, col. 247. PARS I D. 23 c. 5; Friedberg, Corpus, i, col. 81. Civitatis . . . Iudicatum solvi. Iam tamen, ult.] in VTeut the gloss from here on is to be found further down the page, displaced presumably for reasons of space: fo. 45ra, 24 up hic VTeut, after erasure and correction PARS I D. 63 c. 34; Friedberg, Corpus, i, col. 246. PARS I D. 63 c. 11; Friedberg, Corpus, i, col. 238. 171 R1478, S1471: Nosce V1 PARS I D. 63 c. 12; Friedberg, Corpus, i, col. 238. X.1.8.1; Friedberg, Corpus, ii, col. 100. 174 Om. VTeut X.1.6.19; Friedberg, Corpus, ii, cols. 58–61. Et qui] illegible words written above: ? in p?arte divisa (?) VTeut adds Qui in continentibus Corpus Iuris Civilis, Qui in continentibus, Dig. 50.16.139pr. 179 et R1478, S1471 Justinian, Dig. 50.16.147 (Lyons, 1604 ed.), iii, col. 1837. Justinian, Dig. 50.16.239 (Lyons, 1604 ed.), iii, col. 1860. 182 et S1471 antequam R1478, S1471 184 l. divus R1478 Justinian, Dig. 26.5, Infortiatum seu Pandectarum (Lyons, 1604 ed.), ii, col. 149. Justinian, CJ 10.40.3 (Lyons, 1604 ed.), ii, col. 78. Probably Huguccio rather than Hugolinus.

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297

Sed credo sufficere quod 188reprobati sunt omnes de maiori capitulo: Argumentum: Extra “De verborum significatione”, Cum 189clerici.190 Sed quid si 191maior pars eligit extraneum, sed minor 192pars eligit de gremio suo? Videtur quod hic prevalebit electio paucorum, ut VII q. 1 Denique.193 Nam in postulatione omnes erunt concordes, ut D. LXIII, Litteras.194 Item minor pars iustam habet 195causam contradicendi. Unde, licet 196sint pauciores, auditur eorum contradictio, ut Extra “De hiis que fiunt a maiori parte capituli”, 197Cum in cunctis,198 D. XXXI, Nicena.199 Argumentum contra Extra “De elect.”, Cum nobis olim,200 et c. Cum inter [R. seniorem].201 Dico tenere electionem minoris partis, 202cum eligunt secundum formam canonicam de suo gremio. Unde, si diversi sunt clerici, prius examinatur ille qui est de 203propria quam qui est de aliena ecclesia, ut D. LXXXV, 204Archdiaconum.205 Nec obstant 206premisse decretales. Ideo enim ibi tenuit electio 207 maioris partis 208quia nullus fuit ibi ex adverso 209electus. Sed adhuc obstat Extra 210eodem titulo211 in 212casu ubi prevalet postulatio trium de aliena ecclesia 213electioni duorum de propria. Sed hoc fuit propter formam mandati 214quia ita 215conve-(col. b)nerant, ut in quem maior pars conveniret quod ille esset potior. 188 190 191 193 194 195 197

198 199 200 201 203 205 207 209 211 212 215

reprobandi S1471 189 R1478, S1471 add: et “De rescr.” Radulphus X.5.40.19; Friedberg, Corpus, ii, col. 917. maior pars eligit extraneum, sed] V2: om. V1 minor pars eligit] 192 om. VTeut Gratian, PARS II C. 7 q. 1 c. 9; Friedberg, Corpus, i, cols. 569–70. Gratian, PARS I D. 63 c. 14; Friedberg, Corpus, i, col. 239. V2, R1478, S1471: om. V1 196 Followed by sint deleted Added in margin, probably in different hand, in Johannes Teutonicus, MS BAV Vat. Lat. 1367, fo. 45ra. But it is included, without the incipit, in another good manuscript of Johannes Teutonicus, thus: Extra De his que fiunt a maiori parte c. i BAV Pal. Lat. 624, fo. 46va, foot, 4–3 lines up. MS BAV Vat. Lat. 625, fo. 42r, foot, has, after capituli, i. Di. XXXI in the same hand and, in a different hand, cum in cunctis above the line. X.3.11.1; Friedberg, Corpus, ii, col. 506; Third Lateran Council of 1179, canon 16. PARS I D. 31 c. 12; Friedberg, Corpus, i, col. 114. X.1.6.19; Friedberg, Corpus, ii, cols. 58–61. X.1.6.16; Friedberg, Corpus, ii, cols. 55–7. 202 qui R1478, S1471, VTeut propria quam qui est de] om. R1478, S1471 204 Florentinum archidiaconum R1478 PARS I D. 85 c. 1; Friedberg, Corpus, i, col. 297. 206 premissi S1471 In margin: minor pars 208 Unclear in V1, quod also possible V2, R1478, S1471: om. V1 210 eodem titulo] V2, R1478, S1471: eodem V1 Perhaps X.1.6.21; Friedberg, Corpus, ii, cols. 63–4, rather than X.1.6.30; Friedberg, Corpus, ii, cols. 74–6. causis VTeut 213 R1478, S1471: electionem V1 214 Illegible, supplied from V2 Dotted line leads to continuation in col. b.

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Et de hoc nota Extra “De electione”, Cum inter canonicos.217 Sed quid si omnes eligunt de aliena ecclesia, preter unum qui eligit de propria? Hic dico non valere electionem unius, quia nullum de propria 218 ecclesia potest eligere, cum quilibet eorum 219consentiat in alium. Unde in se ipsum non potest consentire. Item quid si data est aliquibus potestas ut eligant et ipsi postulant extraneum? 220 Tenet postulatio, ut Extra “De renunci”. Post translationem,221 et Extra “De elec.”, In 222causis,223 224et Extra “De postul.”, Bone.225 Licet autem ex parte sint egressi fines mandati, tamen fecerunt id quod est vicinum mandato, ut ff. “Iudicatum solvi”, Iam tamen # ult.226 Io. 227 Quidquid dicat Io., eius opinio 228non servatur de electione minoris partis de eadem ecclesia. Unde cum totum capitulum facere videatur quod fit a maiori parte c. ut Extra “De hiis que fiunt a maiori parte capituli”, Cum in cunctis,229 tenebit electio extranei, ut 230dicit T. per decretales superius allegatas, quia multa fieri 231non debent tamen aliter facta tenent. 232 Nam melior eligi debet, ut VIII q. I, Licet,233 tamen sufficit si bonus eligatur, ut 234Extra “De elect.”, Cum nobis,235 216

216

217 219 220 221 223 225 226 227 228 229 231 232 233 234

Et de hoc nota Extra “De elec”, Cum inter canonicos] V2, R1478: om. V1, S1471, MS BAV Pal. Lat. 624, fo. 46vb foot (a good manuscript of Johannes Teutonicus), MS BAV Pal. Lat. 625, fo. 42rb, which adds above the line in a different ink and hand: Extra De e. Cum inter canonicos; the base MS I have otherwise used for Johannes Teutonicus, VTeut = MS BAV Vat. Lat. 1367, 45rb foot, adds the lemma in the margin (with c. before Cum inter in the margin, probably in the hand which is updating the gloss: it looks as if the whole lemma is an addition of Bartholomaeus Brixiensis to Johannes Teutonicus, to undermine the latter’s argument. X.1.6.21; Friedberg, Corpus, ii, cols. 63–4. 218 V2: om. V1, R1478, S1471, VTeut consensit R1478, S1471, VTeut Dico quod added in marg. in different hand before tenet in VTeut, fo. 45rb foot X.1.9.11; Friedberg, Corpus, ii, cols. 112–13. 222 Corr. from casis in VTeut X.1.6.30; Friedberg, Corpus, ii, cols. 74–6. 224 Et extra om. R1478, S1471, VTeut X.1.5.4; Friedberg, Corpus, ii, cols. 45–7. Justinian, Dig. 46.7, Digestum Novum, Pandectarum (Lyons, 1604 ed.), iii, col. 1233. Quidquid dicat Io. . . . ymaginibus l. ult. b.] om. VTeut, where it is, however, added in a lighter ink Cue to semi-legible marginal addition: ___ seu tit. 8 aut Extra “De Elect.” c. In causis (X.1.6.30) X.3.11.1; Friedberg, Corpus, ii, col. 506. 230 dicit T.] dicit (corr. to dicunt) c. V1 R1478, S1471: om. V1, VTeut Probably cued to gloss in lower margin: Dic quod hic compulsio refertur ad eligentes et sic bene arguit glo. Archdiaconus Gratian, PARS II C. 8. q. 1 c. 15; Friedberg, Corpus, i, cols. 594–5. In Extra S1471 235 X.1.6.19; Friedberg, Corpus, ii, cols. 58–61.

Gloss II on Gratian and the Liber Extra

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etc. Cum dilecti236 et c. De 237statuis et ymaginibus l. ult.238 239 240 b. Non credimus.241 242Nota benignam presumptionem quod semper presumitur quod aliquis sit dignus in ecclesia, ut infra eodem, Obitum.243 [fo. 35vb, head] . . .’ 236 238 239 241 242 243

X.2.14.6; Friedberg, Corpus, ii, cols. 293–4. 237 testamentis S1471 Justinian, Dig. 48.4.6, Digestum Novum, Pandectarum (Lyons, 1604 ed.), iv, cols. 1349–1440. Bar. R1478 240 ‘B’ may be Bazianus: see von Schulte, Die Glosse, 82. Lemma from the text in Gratian: PARS I D. 61 c. 13; Friedberg, Corpus, i, col. 231. Nota benignam . . . Obitum] also in VTeut, fo. 45ra PARS I D. 61 c. 16; Friedberg, Corpus, i, col. 232.

Appendix D Conceptual Sources

A completed empirical structure should be able to stand without theoretical support, and I hope this one does, but I could not have constructed it without some conceptual scaffolding,1 which deserves a mention, which I will keep brief. The concept of hierarchy was sharpened for me by the anthropologist Louis Dumont.2 Mary Douglas’s notion of condensed symbolism3 helped me find language to talk about the liturgical and ritual systems of the late Antique Church. Niklas Luhmann’s social theory helped me think of multiple social systems rather than ‘the’ social system, and to understand them as sequences of communication with boundaries, evolving over time, their structures being expectations, sometimes confounded, that the same responses will recur.4 He is also the source of my ideas about the new incompatibilities created by the evolution of subsystems: my metaphor of softwares is an expression of this. The emphasis on the absorption of uncertainty by authority is another debt to Luhmann.5 Weber’s core distinction between value and instrumental rationality is also relevant to uncertainty, in that the apostolic see might have to disentangle the two with complex issues. The Weberian contrast between the strong formal legal character of canon law and theocratic hybrids has helped.6 The concept of texts’ meaning expanding through time, above all through application, came from H.-G. Gadamer.7 The rejection of inevitability in Chapter 15 was influenced by G. Hawthorn, Plausible Worlds: Possibility 1 2 3

4

5 6 7

Social theory as conceptual engineering: H.-P. Müller, Max Weber: eine Spurensuche (Berlin, 2020), 314; N. Luhmann, Einführung in die Systemtheorie (Heidelberg, 2011), 186. L. Dumont, Homo Hierarchicus: the Caste System and Its Implications (Chicago, 1980), esp. 258–60. M. Douglas, ‘Rightness of Categories’, in M. Douglas and D. Hull, eds., How Classification Works: Nelson Goodman among the Social Scientists (Edinburgh, 1992), 239–71, at 262–3. Luhmann, Einführung, and Soziale Systeme: Grundriß einer allgemeinen Theorie (Frankfurt am Main, 1984); also ‘Soziologie as Theorie sozialer Systeme’, in Soziologische Aufklärung, i, Aufsätze zur Theorie sozialer Systeme, 8th ed. (Wiesbaden, 2009), 143–72. Luhmann, Einführung, 292–3. M. Weber, Wirtschaft und Gesellschaft, 5th ed. (Tübingen, 1976), 480. H.-G. Gadamer, Wahrheit und Methode (Tübingen, 1975), esp. 312–15.

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301

and Understanding in History and the Social Sciences (Cambridge, 1991), and the schema of a set of ideas flourishing in particular kinds of environment at widely different times by J. G. A. Pocock, The Machiavellian Moment (Princeton, 1975). In principle, my interpretations could have been developed, by a cleverer historian, without all this help, but as a matter of fact they were not.

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Brett, M., ‘Finding the Law: the Sources of Canonical Authority before Gratian’, in P. Andersen, M. Münster, and H. Vogt, eds., Law before Gratian: Law in Western Europe c. 500–1100. Proceedings of the Carlsberg Academy Conferences on Medieval Legal History (Copenhagen, 2007), 51–72. Brooke, C. N. L., ‘Gregorian Reform in Action: Clerical Marriage in England, 1050–1200’, Cambridge Historical Journal 12 (1956), 1–21. Brown, P., ‘Christianisation and Religious Conflict’, in A. Cameron and P. Garnsey, eds., Cambridge Ancient History 13, The Late Empire, ad 337–425 (Cambridge, 1997), 632–64. Brown, P., The Ransom of the Soul: Afterlife and Wealth in Early Western Christianity (Cambridge, MA, 2015). Brown, P., The Rise of Western Christendom: Triumph and Diversity, 200–1000 a.d., 2nd ed. (Malden, MA, 2003). Brown, P., ‘SO Debate: The World of Late Antiquity Revisited’, Symbolae Osloenses: Norwegian Journal of Greek and Latin Studies 72 (1997), 5–30. Brundage, J., ‘The Medieval Battle of the Faculties: Theologians v. Canon Law’, in U.-R. Blumenthal, A. Winroth, and P. Landau, eds., Canon Law, Religion, and Politics: ‘Liber Amicorum’ Robert Somerville (Washington, DC, 2012), 272–83. Brundage, J., Medieval Canon Law (Harlow, 1995). Brundage, J., The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago, 2008). Burns, J. H., ‘Majorities: an Exploration’, History of Political Thought 24 (2003), 66–85. Burns, J. P., ‘Augustine’s Role in the Imperial Action against Pelagius’, Journal of Theological Studies 30 (1979), 67–83. Cabié, R., ed., La lettre du pape Innocent Ier à Décentius de Gubbio (19 Mars 416): texte critique, traduction et commentaire. Bibliothèque de la Revue d’Histoire Ecclésiastique 58 (Louvain, 1973). Cameron, A., The Later Roman Empire: ad 284–430 (London, 1993). Cameron, A., and Garnsey, P., Cambridge Ancient History, 13, The Late Empire, ad 337–425 (Cambridge, 1997). Caron, P. G., ‘Les élections episcopales dans la doctrine et la pratique de l’Église’, Cahiers de Civilisation Médiévale 11 (1968), 573–85. Casiday, A., and Norris, F. W., eds., The Cambridge History of Christianity, ii, Constantine to c. 600 (Cambridge, 2007). Caspar, E., Geschichte des Papsttums, 2 vols. (Tübingen, 1930, 1933). Chadwick, H., The Church in Ancient Society: from Galilee to Gregory the Great (Oxford, 2001). Chadwick, H., East and West. The Making of a Rift in the Church: from Apostolic Times to the Council of Constance (Oxford, 2003). Chadwick, O., John Cassian, 2nd ed. (Cambridge, 1968). Chazelle, C., and Cubitt C., eds., The Crisis of the Oikoumene: the Three Chapters and the Failed Quest for Unity in the Sixth Century Mediterranean (Turnhout, 2007). Christophe, P., L’élection des évêques dans l’Église latine au premier Millénaire (Paris, 2009). Clark, G., Late Antiquity: a Very Short Introduction (Oxford, 2011).

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Clark, M., ‘The Commentaries on Peter Comestor’s Historia Scholastica of Stephen Langton, Pseudo-Langton, and Hugh of St Cher’, Sacris Erudiri 44 (2005), 301–446. Clarke, P., ‘The Medieval Clergy and Violence: an Historiographical Introduction’, in G. Jaritz and A. Marinkovic, eds., Violence and the Medieval Clergy (Budapest, 2011), 3–16. Cooper, K., The Fall of the Roman Household (Cambridge, 2007). Corran, E., Lying and Perjury in Medieval Practical Thought: a Study in the History of Casuistry (Oxford, 2018). Cortese, E., ‘Théologie, droit canonique, et droit romain: aux origines du droit savant (XIe–XIIe s.)’, Comptes rendus des séances de l’Académie des Inscriptions et Belles-Lettres 146:1 (2002), 57–74. Couenhoven, J., ‘Augustine’s Rejection of the Free Will Defence: an Overview of Late Augustinian Theodicy’, Religious Studies 43 (2007), 279–98. Crone, P., and Hinds, M., God’s Caliph: Religious Authority in the First Centuries of Islam (Cambridge, 1986). Crosby, E. U., Bishop and Chapter in Twelfth-Century England: a Study of the Mensa Episcopalis (Cambridge, 1994). Crouzel, H., Divorziati ‘Risposati’: la prassi della Chiesa primitiva (Siena, 2014). Cushing, C., Papacy and Law in the Gregorian Revolution: the Canonistic Work of Anselm of Lucca (Oxford, 1998). Cushing, C., Reform and the Papacy in the Eleventh Century: Spirituality and Social Change (Manchester, 2005). d’Achéry, J.-L., ed., Spicilegium (Paris, 1723). d’Avray, D. L., ‘Half a Century of Research on the First Papal Decretals (to c. 440)’, Bulletin of Medieval Canon Law n.s. 35 (2018). d’Avray, D. L., Medieval Marriage: Symbolism and Society (Oxford, 2005). d’Avray, D. L., ‘The Origins and Aftermath of the Eleventh Century Reform in the Light of Niklas Luhmann’s Systems Theory’, in F. Amerini and R. Saccenti, eds., ‘Vicarius Petri’, ‘Vicarius Christi’: la titolatura del Papa nell’XI secolo. Dibattiti e prospettive (Pisa, 2017), 211–27. d’Avray, D. L., Papal Jurisprudence, c. 400: Sources of the Canon Law Tradition (Cambridge, 2019). d’Avray, D. L., ‘The Stages of Papal Law’, Journal of the British Academy 5 (2017), 37–59. Davison, C. R., ‘Late Antique Cities in the Rhineland: a Comparative Study of Trier and Cologne in the Fourth and Fifth Centuries’ (University of Sheffield PhD dissertation, 2013). de Bruyn, T., ed. and transl., Pelagius’s Commentary on St Paul’s Epistle to the Romans (Oxford, 1993). de Jong, M., Epitaph for an Era: Politics and Rhetoric in the Carolingian World (Cambridge, 2019). Demacopoulos, G. E., The Invention of Peter: Apostolic Discourse and Papal Authority in Late Antiquity (Philadelphia, 2013). Desmulliez, J., Hoët-van Cauwenberghe, C., and Jolivet, J.-C., eds., Etude des correspondances dans le monde romain. De l’antiquité classique à l’antiquité tardive: permanences et mutations (Lille, 2010).

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Index Manuscripts are indexed under MS

1000, the year, 9, 10 Abelard, 94, 194 Abraham, 263 Acacian schism, 125, 126, 129, 139, 140, 153 acolytes, 84 adiaphorism, 33, 54 Admonitio generalis, 16, 155, 167, 172, 190 aesthetic theology, 111, 117 African Church, 88, 128 African Church and the problem of grace, 96–105 African Church’s canon law collection, 108 Agobard of Lyons, 155 Alaric, 23, 106, 118, 166 Alcuin of York, 150 Alexander III, 191, 201, 205, 311 Allen, Pauline, 121, 123, 175, 267 Amalric of Bene, 194 Ambrose of Milan, 82 Ambrosiaster, 39, 50, 67, 68, 208, 209 Anastasius, bishop of Thessalonica, 115 Anglo-Saxon laws, 219 anointing, 32, 35, 36, 61, 62, 63, 172 Antioch, patriarch of, 70 Apiarius, 130 appeals, 143, 170 Aquileia, 22, 28, 139, 142, 244, 259 Arab conquests, 145, 150 archives, episcopal, in late Antiquity, 109 Arianism, 87, 95, 139 Aristotle, 195 Arles, 22, 23, 131, 166 Arles, Council of (314), 22, 44 Athanasius, 24, 28, 87, 125 Atticus, bishop of Epirus, 116 Attila, 106–7, 118 Augustine of Hippo, 25, 26, 28, 39, 47–53, 66, 88, 96–105, 108, 113, 132, 146, 148, 151 autopoiesis, 19, 20, 42, 43, 54, 124, 239

Baldovin, J. F., 31 Baldwin, John, 195 Ballerini brothers, 242 baptism, 10, 15, 20, 26, 31, 32, 35–7, 43, 44–6, 59, 61–2, 75, 76, 77, 80, 88, 89, 91, 95, 97, 100, 101, 102, 103, 110–11, 122–3, 211, 212, 213, 246, 252–9, 270–1, 275, 276, 277–81 Barbiche, Bernard, 220 Barrow, Julia, 78, 177, 216, 230 Barthélemy, Dominique, 9 Bartholomaeus Brixiensis, vi, viii, 198, 202, 206–7, 209, 216, 223, 224, 225, 226, 229, 233, 234, 235, 236, 237, 273–99 basilica of Santa Maria Maggiore, 107 Battistella, F., 141 Bautier, Robert-Henri, 221, 224, 225 Becket, Thomas, 219, 220 Beneventan script, 134 Benson, Robert, 229 Berman, Harold, 191 Bernard of Pavia, 2, 189, 190, 198, 199–200, 202, 241 bigamia, 75–6, 112, 113–14, 123, 172, 182–4, 216, 226–7, 243–4, 246–9, 272, 275–84 Biller, Peter, 197 bishops, 58 bishops to stay in one see, 479.1 bishops, selection of, 72–3, 115–16, 178–80, 182, 187, 208, 228–38, 248–9, 261–2, 284–99 body, as image of Church, 250–2 Bois, Guy, 9 Boniface I, 70, 136, 137, 167, 180, 193 Boniface VIII, 199 Boniface/Wynfrid, 160 Bonner, Ali, 48–52, 53, 105 Bonosus, 89–91, 95, 129, 184 boundaries, diocesan, 136 Boureau, Alain, 191 Boyle, Leonard, 196

313

314

Index

Bradshaw, P. F., 35 Brahmans, 79 Brand, Paul, 12 Braudel, Fernand, 11 Brett, Martin, 190 Breviarium, 198, 199, 200, 202 Brooke, C. N. L., 185 Brown, Peter, 7, 13, 26, 42, 47–8, 49, 50, 52, 82, 113, 131, 231 Brundage, James, 150, 190, 196, 198, 206, 273 Burchard of Worms, 155, 163, 166–7, 172, 175, 177, 193, 198, 200 Burns, J. H., 232 Byzantine canon law, 45, 151 Byzantine Empire, 22, 54, 65 Cabié, Robert, 60 Caelestius, 47, 97, 98, 100, 101, 102, 104 Calvinism, 96, 99, 105 Cameron, Averil, 11 Canterbury and York, dispute over primacy, 230 Cardinal Humbert, 169 Carolingian minuscule, 134, 150 Carolingian period and canon law, 150–63 Caron, P. G., 229 Carthage, Council of (407), 66 Casiday, A., 68 Caspar, Erich, 12, 22, 23, 24, 69, 93, 108, 120, 141, 143 Cassian, John, 101 Cassiodorus, 137 casuistry, 195, 197 cathedral chapters, 228, 232, 233, 235, 284–99 Causa 28, of Gratian’s Decretum, 209, 210 Celestine I, 15, 57, 73, 74, 81–3, 101–6, 109, 116, 121, 122, 130, 131, 137, 142, 147, 148, 154, 167, 179, 228, 231, 233, 234, 237, 240, 284 celibacy, 78–81, 114–15, 138, 169, 172, 175–8, 185, 188, 216, 226, 248, 262–3 Chadwick, Henry, 42, 43, 136 Chalcedon, Council of (451), 108, 125, 139, 175 Chalcedonian extracts, 159 Charlemagne, 16–17, 134, 150, 151, 152, 153–5, 167, 190 Charles Martel, 150 chastity vows, breach of, 83 chrism, 61, 63, 136, 145, 182 Christianization, 26, 27, 37, 77, 176, 229

Christology, 16, 43, 44, 87, 94, 108, 125–6, 127, 129, 130, 131, 133, 139, 142, 146, 149, 164, 190, 194, 239, 240, 255 Christophe, P., 230 Clark, Gillian, 21, 22, 44 Clark, Mark, 197 Clarke, Peter, 222 Clement III, 205 clerical dynasties, 185 clerical marriage, 30 clerical orders, major, 70 clerical orders, minor, 15, 70, 208, 214, 215–27, 281–4 clerical promotion, fast-track, 81–3 clothing, clerical, 74 Clovis, 143 Cluny, 173 collatio lustralis, 217 Collectio Avellana, 130 Collection in 74 Titles, 181–4, 188 commerce, 112 Commercial Revolution, 8 Common Law, English, 57 Commonitorium, 136 communion at point of death, 88, 94, 123, 184, 272 compatibilism, 52, 53 Compilatio prima, 198 complexity, v, 13, 21, 34, 43, 45, 54, 66, 75, 87, 93, 113, 185, 204–6, 212, 233, 234, 239, 241 Concordia or Concordantia canonum, 128, 142, 149, 157, 190, 215, 240 concubinage, 263–4 Conde Cid, J. C., 209 confessors’ manuals, 196 confirmation, 61 congregational model of religious governance, 54 consanguinity, 67 consignatio, 1, 62–3, 145 consigning, 62–3, 145 Constantine, 22, 24, 26, 28, 29, 30, 31, 37, 39, 43, 65, 68, 158, 217, 303, 306 Constantinople, 23, 25, 28, 29, 31, 32, 41, 42, 45, 59, 94, 108, 125, 127, 141, 150, 153, 229, 291, 311 Constantinople, Council of (381), 23, 45 Constantinople, Council of (553), 139 Constantius, emperor, 107 Contreni, J. J., 151 Corbie, 16, 156, 158, 159, 160, 161, 166, 305 Corran, Emily, 195, 196, 197 Cortese, Ennio, 191

Index Couenhoven, J., 53 councils, 17, 21, 22, 38–9 Councils, Lateran, 204 Cresconius, 128, 135–42, 149, 190, 215, 240 criminous clerks, 220 Crosby, E. U., 231 Crouzel, H., 68 Cum inter canonicos, 237, 289, 298 Cum nobis olim, 235, 285, 288, 296, 297 curiales, 69, 74, 122 cursus, 41, 55, 56, 71, 74, 76, 77–8, 81, 82, 84, 85, 113, 121, 122, 136, 182, 216, 225, 228, 232, 267, 268–70, 305 Cushing, Kathleen, 171, 181 Cyprian, 24, 141 Cyril of Alexandria, 109, 140 Dacheriana, 155–6, 157, 167, 190, 240 Damasus I, 57 David of Dinant, 194 David, Natalie Zemon, 66 Davison, C. R., 23 de Jong, Mayke, 159 deaconesses?, 123 deacons, 78, 84, 123, 216, 262–3 in the Roman world, 70 Decentius of Gubbio, letter to, 60–1 decretals, mid-fifth-century, 132 decretals, mid-fifth-century collections, 108, 109, 124, 133, 190 defensor, 268 Demacopoulos, G. E., 108 Deusdedit, 173 deviance theory, 48 Digest, the, 213 diocesan structure, 250 Diocletian, 11, 67 Dionysiana, viii, 15, 16, 88, 94, 101, 109, 110, 122, 124, 128, 129–35, 137–8, 142, 145, 147, 149, 152–3, 156, 157, 158, 160, 161, 162, 164, 177, 179, 180, 186, 190, 192, 199, 239, 241, 242, 245, 255, 267 Dionysio-Hadriana, 153, 156, 167, 177 Dionysius Exiguus, viii, 2, 63, 94, 122, 127, 128, 129, 130, 175, 189, 190, 202, 244, 246, 248, 263 divorce, 40, 117–19, 275–81 divortium, 66, 67, 118 Donation of Constantine, 158 Douglas, Mary, 114, 300 dowry, 264 Duby, Georges, 9 Duggan, Anne, 205, 215, 223

315 Dumont, Louis, 300 Dunbabin, Jean, 221 Dunn, Geoffrey, 56, 66, 67, 68, 70, 76, 116, 118, 129, 187 dying, ritual for the, 63 Easter, 15, 26, 30, 31, 32, 36, 37, 59–61, 88, 110–12, 123, 172, 252, 256, 257, 259, 270 ecclesiastical courts, 192, 196 ecclesiology, 117, 159 Eck, Werner, 27 Edwards, Thomas Charles, 51 Egeria, 29 Eichbauer, Melanie, 201 elections, 284–99 Elliot, Michael, 124, 126, 134 Elvira, Council of, 79 emic and etic concepts, 93–5 Encratite movement, 53 Epiphany, 37, 59, 110, 111, 123, 252, 258, 271 Esztergom, 293 Etherius of Lyons, 145 Eusebius, historian, 39 exceptio competens, 212, 281 excommunication, 30, 72, 144, 181, 282 for violence against a cleric, 222–6 exemption, monastic, 205 exorcism, 1, 62 Exsuperius of Toulouse, 56, 68, 80, 88, 118 extreme unction, 63 Faivre, Alexandre, 41, 76 feasts of apostles and martyrs, 110 Firey, Abigail, 127, 129, 152, 160 first decretal age, 171, 172, 201, 213, 240, 241 fiscal privileges of the clergy, 221–2 Fitzpatrick, Antonia, 196, 199 Flechner, Roy, 150, 151 Fornasari, G., 174 Forrest, Ian, 10 Fournier, Paul, 166, 190 Fowler-Magerl, Linda, 135 Francia, 142, 144, 145, 157, 160, 164, 165, 218 Frederick Barbarossa, 192 free will and predestination, 96–105 Frenz, Thomas, 14, 174 friars, 195, 237 Fried, Johannes, 158 Friedberg, Emil, 193, 199 Frisingensis prima, 124, 126, 127, 130, 133 Fuhrmann, Horst, 157, 163

316

Index

Gadamer, Hans-Georg, 300 Gaudemet, Jean, 117 Gaul, 28, 61, 81–3, 101, 104, 122, 130, 132, 134, 137, 141, 142–5, 153, 231, 237, 240 Geertz, Clifford, 13 Geiseric, 118, 120 Gelasius, vi, 1, 15, 57, 120, 121–4, 125, 126, 128, 132, 133, 137, 138, 142, 148, 153, 155, 156, 167, 175, 239, 267–72, 309, 311 gender symmetry, 64 Génestal, Robert, 219 geographical mobility, 61 ghost of the deceased Roman Empire, 24 Gibbon, Edward, 3 Gilbert de la Porrée, 194 Gilchrist, John, 181 Godric of Finchale, 8 Goering, Joseph, 196 Goodson, Caroline, 158 Goths, 22, 47, 106, 117, 140 Gottschalk, 105 grace and free will, 47–54, 96–105, 172, 194, 239 Gratian, viii, 17, 126, 170, 186–7, 188, 190, 201, 202, 206, 208, 209, 210, 213, 216, 273 Gratian, Roman emperor, 22 Greek canon law, 146, 151 Gregorian Reform, 16, 17, 169–85, 190, 228, 229 Gregory I, 140, 141, 143, 147, 152, 193, 200 Gregory VII, 169, 174, 181 Gregory X, 221 Gregory of Tours, 4, 143, 218 Griffith, Patrick, 143 Grimo, abbot, 160 Hadrian I, pope, 152 Hadrianople, 106 battle of, 22 Halsall, Guy, 106 Hamilton, Sarah, 7 handlaying, 36, 45, 89, 92, 174, 266 Harder, Clara, 52, 158, 159–60, 163 Harrison, Carol, 53, 105 Hartmann, Wilfried, 10, 170 Harvey, Katherine, 230, 232 Hauck, Albert, 231 Hawthorn, Geoffrey, 300 Heather, Peter, 5, 22, 106, 120, 121, 158 Heid, Stefan, 79 Helmholz, R. H., 192, 193

Helmrath, Johannes, 196 Henoticon, 125 Henry II of England, 219 Henry III, emperor, 180 Henry IV, emperor, 181 Herbers, Klaus, 14 heresy, idea of in the late Roman Empire, 87 heretics, v, 43–5, 54, 88, 89–93, 95, 96, 101, 103, 182, 239, 244–6, 293 returning, 87–93, 95, 96, 239 Hess, Hamilton, 22, 38, 68, 72, 146, 151 Hibernensis, 146–9, 150, 151, 152, 155, 157, 163, 167 hierarchy, 10, 23, 37, 38, 39, 46, 54, 61–4, 65, 68–72, 73, 74, 76, 81, 86, 115, 117, 123, 144, 147, 148, 176, 178, 231, 239, 242, 243–8, 249, 250–2, 268–70 managerial, 71, 300 Hildebrand, 169, 174, 181, 182, 185 Hillner, Julia, 84 Himerius of Tarragona, 57, 59, 77, 79, 84, 110, 115, 281 Hincmar, 157, 200 Hindu caste system, 70 Hinduism, 79 Hinschius, Paul, 161 Hispana, 134, 145–6, 149, 156, 157, 162, 167, 180, 215 History Manifesto, The, 11 Hobbes, Thomas, 24 Hoffman, Hartmut, 166 Honoré, Tony, 22 Honorius, emperor, 23, 70, 136 Horden, Peregrine, 29 Hormisdas, 12, 128, 140, 153, 156, 175, 193 Hornung, C., 84 Hoskin, Matthew, 109, 242 Hudson, John, 219 Hugh of St Victor, 209 Hugolinus, 206, 277, 278, 282, 296 Huguccio, 277 Humfress, Caroline, 56, 65 Huns, 106–7, 118 Hunter, David, 79, 115 Huyghebaert, N., 158 imperial taxation, 107, 218 incest, 67 indissolubility, 117–19, 239 of marriage, 66, 261, 264 infamia, 213, 279, 280 Innocent I, 22, 39, 48, 56, 57, 60–4, 66, 68, 69–70, 71, 72, 73, 74, 75, 78, 80, 81, 85, 88–93, 94, 97, 98, 99, 100–2, 104,

Index 106, 109, 110, 111, 113, 114, 115, 117, 118, 121, 128, 129, 132, 133, 136–7, 138, 144, 145, 147–8, 153, 156, 160, 161, 162, 167, 181, 184, 186, 187, 208–11, 212, 213, 223, 241, 275, 277, 278, 279, 282, 305 Innocent II, 215 Innocent III, 196, 197, 200, 208, 209–14, 224, 225, 231, 232, 235, 236, 237, 275, 276, 279, 282, 283, 285, 287, 289, 290, 292, 293, 295 interactionism, 48 internal candidates, 228, 233, 234, 235–7, 284–99 Investiture Contest, 230, 233, 237 Isidore of Seville, 147 Islamic law, 2, 17–18, 169, 189 Ivo of Chartres, 185–6, 188, 190, 198, 201 Jansenism, 99 Jasper, Detlev, 57, 108 Jerome, 28, 40, 50, 75, 147, 166 Jewish Law, 189 Joachim of Fiore, 193, 194 Johannes Teutonicus, viii, 198, 206–7, 223, 224, 229, 234, 235, 236, 238, 273–99 John Chrysostom, 28, 166 John Scholasticus, 146, 151 John the Baptist, 111, 115 Johnson, M. E., 31 Johrendt, Jochen, 14, 170 Jolivet, J.-C., 108 Jones, A. H. M., 21, 23, 24, 41, 68, 70, 72, 217 Joubert, T., 231 judicial immunity of the clergy, 219–20 Julian of Eclanum, 50 Julian, emperor, 40, 75 Justinian, 55, 125, 136, 140, 141, 217, 280, 281 Kahlos, M., 48 Kalocsa, 293 Kedar, Benjamin, 211 Keller, Hagen, 170 Kéry, Lotte, 124, 127, 134, 151, 152, 166, 199 Kinzig, Wolfram, 109 kiss of peace, 61, 135, 145, 154 Knibbs, Eric, 157, 158, 159, 161, 162 Krautheimer, R., 107 Kuefler, M., 67 labelling, 48 laity, 14, 15

317 Larson, Atria, 191 Lateran Council (1139), 185, 215, 231 Lateran Council (1179), 232 Lateran Council (1215), 194 Laudage, Johannes, 170, 173, 182 Lauwers, Michel, 38, 136, 230 lay patrons, 205 Le Bras, Gabriel, 166, 190, 230, 232 Lent, 30, 32, 59, 123, 271 Lenz, P., 186 Leo I, vi, 1, 15, 22, 57, 78, 93, 94, 106–19, 120, 124–6, 132, 133, 138, 140, 141, 142, 146, 148, 149, 153, 156, 164, 167, 177, 178, 193, 239, 242–66 Leo IX, 169, 180, 181, 182, 187 Lérins, monastery, 83 Levite as synonym for deacon, 80 Leyser, Conrad, 65, 127, 128, 130, 152 L’Huillier, P., 39, 44, 45, 71, 72, 229 Liber Extra, vi, 106–19, 192, 193, 199, 200, 203, 205, 206–8, 210, 223–4, 228, 232, 235, 236, 240, 273, 276, 277, 282, 283, 292, 294 Liber pontificalis, 137, 143 Liber Sextus, 199 liturgical year, 58–9, 110–11, 122, 256–9, 270–1 liturgy, 29, 31, 37, 58, 60, 76, 172 Lombards, 139 longue durée, 11, 12 Louis the Pious, 165 Lovejoy, Arthur, 13 Luhmann, Niklas, 13, 173, 300 Luther, 50, 96, 105 Lyons, Council of (1274), 226 Maassen, Friedrich, 12, 23, 124, 126–8, 134, 151, 153 Macedonian bishops and deacons, 75, 208 Machiavellian Moment, The, 12 Magyar invasions, 165 maior et sanior pars, 232 maiores causae, 69 Maitland, F. W., 205, 231 majority principle, mystical character of, 232 Manegold of Lautenbach, 175, 181 manuscripts, loss rate of, 163 Marcion, 43, 44 Markus, Robert, 83 marriage, 64, 65–8, 112, 259–61, 263–4 after penance, 265 indissolubility of, 39 Martin Guerre, 119 return of, 66

318

Index

Mary, mother of God, 109, 140 Maskarinec, M., 140 Mauretania Caesariensis, 113 Maximinian, 67 Maximus Magnus, 22 McGowan, A. B., 36 McKitterick, Rosamond, 137, 143, 150, 151 meaning, expansion of, over time, 142 Melville, Gert, 196 metropolitans, 71, 72–3, 115, 117, 137, 159, 164, 230–1, 248–9, 250 Miller, Maureen, 83, 170, 174 mobility, geographical, 27–9 monks, 41–3, 82–6, 137, 267–8 Monophysitism, 140 Montenses, 89 Moore, R. I., 9 Moorhead, John, 14 moral theology, 195 Mordek, Hubert, 127, 144–5, 151, 160 Moreau, Dominique, 108 Morris, Colin, 172 MS Arras Bibliothèque municipale 572 (644), 161 MS British Library Cotton Domitian A. XV, 185 MS Paris, Bibliothèque nationale de la France, lat. 3837, 134, 245 MS Vatican City, Biblioteca Apostolica Vaticana Pal. Lat. 624, 297, 298 MS Vatican City, Biblioteca Apostolica Vaticana Pal. Lat. 625, 297 MS Vatican City, Biblioteca Apostolica Vaticana Pal. Lat. 626, ix, 274, 278–9, 280, 283, 295 MS Vatican City, Biblioteca Apostolica Vaticana Vat. Lat. 1367, ix, 274, 296, 297, 298 MS Vatican City, Biblioteca Apostolica Vaticana Vat. Lat. 1369, ix, 215, 274 MS Vatican City, Biblioteca Apostolica Vaticana Vat. Lat. 5845, ix, 69, 134, 242–66 Müller, Harald, 14 Murray, Alexander, 9, 171, 174 Necessaria rerum dispositione, 121, 133, 267 Neil, Bronwen, 15, 121, 123, 175, 267 Nelson, Janet, 158 Nestorianism, 140 Nestorius, 45 Nicaea, Council of (325), 38, 39, 44, 64, 68, 69, 72–3, 82, 88, 89, 91, 115 Nicolas III, 220

Norton, P., 117 Novatianism, 32, 37, 88–9, 91, 92, 95 Nullus invitis, 228, 231, 232–4, 237, 238, 296 Odoacer, 121 Oexle, Otto-Gerhard, 41 ordination, 70, 72, 95, 123, 271 Ostrogoths, 140 pagan marriages, 75–6, 208, 275–81 pagan sacrifices, and penance, 266 pallium, 83, 160, 235, 285, 295 papal elections, role of emperor in, 180 papal turn, 2, 16, 169–85 Paravicini-Bagliani, Agostino, 14 Paris university, 194 Paschasius Radbertus, 156, 157, 158–60, 164, 312 patristic authorities, 146, 147 patristic texts in Greek canon law, 146, 151 Patzold, Steffen, 158 Paul of Samosata, 44 Paulianists, 44, 91–2 Pauline Privilege, 67, 208, 275–81 Pavia, synod of (1022), 173 Pécs, 293 Pelagianism, 25, 47–54, 96–105, 130, 131, 240 Pelagius, 28, 47–52, 53, 88, 103, 128, 131, 137, 140, 142, 218, 303, 304 Pelagius I, pope, 141, 143, 171 Pelzer, Jörg, 230, 231, 232 penance, 1, 31, 37, 38, 43, 45, 59, 62, 64, 65, 74, 87, 88, 89, 92, 93, 111–13, 121, 122, 123, 138, 155, 172, 182, 184, 191, 257, 259, 261, 262, 264–6, 268, 270, 271–2, 279, 288, 289, 291 Pennington, Kenneth, 44, 198, 199, 202, 229, 234, 235, 237, 295 Pentecost, 15, 59, 110, 111, 123, 172, 252, 256–7, 259, 270, 271 periodization, 19 Peter Comestor, 198 Peter Damian, 90, 169, 173, 181, 184 Peter the Chanter, 195, 197 Philip III of France, 220, 221 physical defects, 74 Pietri, C., 106 pilgrims, 29 Pirenne, Henri, 6, 8 Pocock, J. G. A., 12, 301 Pokorny, Rudolf, 166 pollution, 114–15, 243 polygamy, 211

Index positive law, 94, 126, 130, 132, 190 Posthumus Meyjes, C. H. M., 191 predestination, 88, 96–105, 194 priesthood, in the eleventh century, 182–3 priests, shortage of, 122 priests’ sons, 204 privileges of clerics, 215–27 privilegium fori, 144, 216 procedure, legal, 196 professionalization of law, 17, 19, 192, 200, 202 proprietary church, 205 Prosper of Aquitaine, 101, 131 Pseudo-Isidore, 16, 17, 156–65, 177, 178, 180, 230 Pulcheria, empress, 94 Purcell, Nicholas, 29 quaestiones, 194 Quartodecimans, 30, 45 Quesnelliana, 15, 94, 101, 109, 124, 126, 127, 130, 133, 161, 162, 164 rationalities, value and instrumental, 93 Rébillard, Eric, 27 reception, 19, 58, 124 Rennie, Kriston, 150 rescript system, 15, 21, 24, 55, 56 Rexroth, Frank, 191, 200 Reynolds, Philip Lyndon, 40 Reynolds, Roger, 77, 78 Ritter, A. M., 109 ritual, 21, 35–8, 110–11, 253–4, 256–9, 270–1 and the calendar, 58–60 Robb, Fiona, 194 Robert of Courson, 196, 197 Rolker, Christof, 171, 181, 186, 190 Roman imperial postal service, 27 Roman law, 18, 25, 65, 67, 68, 115, 118, 190–2, 196, 199, 210, 213, 263 Rome, the city, 120, 140 Rufinus of Aquileia, 39, 166 ruralization, 2, 17, 171, 172, 175–8, 187, 208, 229 Rusticus of Narbonne, 112 Sabapathy, John, 196, 199 Saccenti, Riccardo, 173 sacramental theology, 195 sacramentum, 247 Salzman, M. R., 69 Saturday, 136 as fast day, 60

319 Savill, Ben, 143, 152, 156 Schieffer, Rudolf, 168, 170 Schmugge, Ludwig, 185 Schoenig, S., 235 scholasticism, 9, 194 Schon, K.-G., 161 Schwartz, Eduard, 38 Searle, J. R., 13 second decretal age, 169, 201, 202, 205, 213, 240, 241 secular, the, and the religious, 54 Sens, Council of (1140), 194 Serdica, Council of, 68, 162 Sext, 199 shipwreck, 59 Si necessaria, 239 Si quis suadente, 215, 222–6 simony, 174–5 Siricius, 12, 15, 56, 57, 59, 69, 73, 77–8, 80, 83–5, 110, 111, 112–13, 115, 121, 132, 133, 135, 136, 138, 147–8, 153, 156, 160, 167, 215, 216, 218, 223, 224, 226, 241, 281, 282, 307, 312 slavery, 122, 243, 268 Smith, Julia, 7, 121 Smith, Lesley, 197 Smith, Tom, 14 social mobility, 9 social systems, multiplicity of Christian, 21 Socrates, historian, 29–31, 33, 45 Soissons, Council of (1121), 194 Southern, Richard, 7–8 stand, 74–83, 113 standard of living, in late Antiquity, 5–6 status, 74–83, 113 Statuta ecclesiae antiqua, 199 subdeacons, 40, 70, 77–9, 84, 115, 176, 185, 226, 236, 245, 248, 262–3, 268, 286, 289 Summerlin, Danica, 39, 201, 232 symbolism, 113, 117, 250–2, 263–4 Symmachus, pope, 147 Tancred, 206, 295 Tertullian, 27, 32, 37, 40 Theoderic, 121 Theodore of Canterbury, 134, 146 Theodoret, bishop of Cyrus, 108 Theodosian Code, 22, 42, 55, 65, 67, 69, 216, 217, 307, 310 Theodosius I, 23, 28, 42 theology, 94, 95, 190–7, 202 Thessaly, 30, 59 Thier, Andreas, 229, 230 Thomas, Hugh, 219

320

Index

Three Chapters, 16, 139–42 tithes, 205, 218 Tome of Leo, 108, 109, 125, 142 tonsure, 221, 223–4, 282 Trichet, Louis, 83 Trier, 23, 28, 304 Trinity, 13, 33, 87, 89, 96, 125, 131, 164, 167, 193, 194, 240, 310 true/false v. lawful/unlawful, 94–5, 103–4, 190 two elites, 74, 82–3, 86, 137, 267–8 Ubl, Karl, 158 Ullmann, Walter, 125, 180 uncertainty, v, 13, 20, 21, 25, 27, 31, 32, 33, 34, 45, 46, 54, 59, 63, 71, 75, 76, 78, 87, 93, 96–103, 105, 184, 194, 203–5, 232, 234, 237, 239, 241, 259, 300 universities, 18, 170, 192 Urban II, 170, 185 Ursa, 66, 118 Valentinian II, 22, 42 Van Dam, Raymond, 26, 70, 143 Van Engen, John, 10 Van Slyke, D. G., 69 Vandals, 106, 107, 120, 217 Verstehen, 13 Vetus Gallica, 144–5, 146, 151, 152, 164, 167, 215 viaticum, 88, 272 Victricius of Rouen, 71, 72, 76, 80, 85, 89, 115, 209

virgins, 123, 271 Vogt, Hermann, 45, 89 von Schulte, J. F., 198, 273 Wagschal, D., 151 Ward-Perkins, Bryan, 5, 107 Wassenaar, J., 150 Webber, Teresa, 274 Weber, Max, 13, 43, 58, 93, 193, 300 week, the, and ritual, 60 Wehrlich, P., 164 Wei, John C., 191 Weigand, Rudolf, 202 wergeld, 219 Wertheimer, L., 185 West, Charles, 7, 170, 215, 218 Whalen, Brett, 14, 173 Wickham, Chris, 6, 120, 165 William of Auxerre, 197, 198 William of Pagula, 196 Winch, Peter, 13 Winroth, Anders, 17, 186 women serving at altars, 123 Wood, Ian, 25–6, 217, 218, 226, 230 Wood, Susan, 205 Young, Frances, 43, 44 Young, Spencer, 197 Zechiel-Eckes, Klaus, 128, 134, 138, 139, 142, 152, 158 Ziemann, D., 158 Zosimus, pope, 50, 57, 70, 78, 81, 82, 103, 122, 148