CHAPTER X
The Court of the Pope
This brief analysis of Gregory VII's thought will have shown the basic conception underlying hierocratic doctrine, namely, the conception that the societas christiana was an autonomous, juristic entity: conceptually, it was an organic unit, and as such embraced the whole of Latin Christendom of which the individual kingdoms and the empire formed constituent parts. This unit transcends all biological or linguistic or racial frontiers, and for this reason is stronger and more resilient than the incidental bonds of birth, language, race or geography. This societas is the corporate body of all the "Romans."
I
This autonomous, corporate entity made adequate government necessary, necessitated, in other words, the establishment of certain institutions and governmental organs, in short necessitated a machinery of government. Government means orientating and directing this corporate unit according to the principles of justitia. On the basis of the Petrine commission this government was monarchic in form. The transmitters of justitia were the members of the sacerdotal hierarchy. And by the decrees, orders, and instructions emanating from the seat of justitia social life within this body corporate became effectively permeated with the idea of Papal monarchy and the idea of central authority.
The form of government was monarchical. But it was not sufficient to state this monarchic form of government in ideological terms: it was necessary that the monarch also appears as a monarch to the world. The way in which this was achieved was by making the Pope a monarch in form as well as in idea: he was the sole Ruler of the societas christiana. The crisp expression of Gregory VII merits its quotation:
He alone may use the imperial insignia. 1
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1. DP. 8: "Quod solus uti possit imperialibus insigniis." About the source of this statement see supra p. 81.
And of these imperial insignia none was more important or more symbolic than the crown. It is entirely in line with the development of the hierocratic theme for the monarch of the societas christiana to personify in a symbolic manner the unique concentration of power. In order to show this in the most concrete and visible manner, he alone was entitled to wear imperial insignia. That he was thus entitled did not mean that he could not allow the imperial crown to be used by a king: the entitlement meant that the Pope alone might use the imperial insignia, if he so wished. According to hierocratic tenets the use of the imperial insignia was a concession, symbolically expressed in the ceremony of the imperial coronation.
The crown -- the corona or the regnum 1 -- worn by the Pope was of no liturgical significance: liturgical significance was reserved to the mitre alone. This was in fact the stage of development in the second half of the eleventh century. We read that Gregory VII in 1075 went in procession "coronatus et cum omni laude episcoporum atque cardinalium" to the Lateran palace. 2 By the end of the same century we are informed by Bishop Bruno of Segni that in solemn processions the Pope wears the regnum as well as the purpura, and that in his external appearance there was no difference between him and the former emperors.
Unde in magnis processionibus omnis ille apparatus pontifici exhibetur, qui quondam imperatoribus fieri solebat. 3
In order to understand this development we must recall that, according to the Donation of Constantine, the emperor had wished to put the
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1. The name tiara was adopted at the very end of the eleventh century, see "Vita Paschalis" in Lib. Pont., ii. 296, lines 21-22: immediately after his election ( 1099) Paschal II "clamide coccinea (on this see the passage from the Donation infra 318) induitur a patribus et thyara capite eius imposita . . ." Cf. also p. 297: "Domnus Paschalis II coronatus in urbem rediit convaluitque ecciesia." See also Duchesne's note 6, p. 307. Later the tiara was adorned with the orb on its top and a cross. The papal tiara is still the extraliturgical head gear of the Pope when he is carried through the Vatican. We should note, however, that the tiara was also worn by Sicilian kings, especially Roger II and Tancred, in imitation of Byzantine practices, see J. Deér, Der Kaiserornat Friedrichs II, Bern, 1952, p. 22, note 82.
2. See Lib. Pont., ii. 282, lines 20-21.
3. PL. clxv. 1108. The whole passage runs: "Summus autem pontifex propter haec et regnum portat (sic enim vocatur) et purpura utitur non pro significatione, ut puto, sed quia Constantinus imperator olim beato Silvestro omnia Romani imperii insignia tradidit. Unde et. . ." as text. Cardinal Deusdedit echoes the same view when he says "quod Constantinus imperialem coronam eidem contulerit et definierit terrenum imperium Romae potestatem non habere," Deusdedit, Collectio canonurn, iv. I (ed. Wolf von Glanvell, Paderborn, 1905, pp. 24 f.)
imperial crown on Silvester's head, but that the latter refused to wear it over his clerical tonsure: the Emperor Constantine in the place of the imperial crown had then put the phrygium upon Silvester's head. This head gear was "candido nitore" and designated, according to the forger, "splendidam resurrectionern dominicam."
Now, we know that the forger gave certain existing practices some political twist and historicity. This becomes quite clear in the case of the phrygium. We know that Pope Constantine when entering Constantinople had worn the camelaucum 1 which was a white silk cap of high conical shape and identical with the forger's phrygium. 2 Moreover, in view of the terminology adopted by the eighth-century Roman Ordo, 3 the entry in the Liber Pontificalis which informs us about the Pope's camelaucum deserves particular mention: the emperor meets the Pope and performs the proskynesis "cum regno in capite." 4
From the account in the Donation of Constantine it is evident firstly that Silvester did not use the imperial crown, and secondly that the Pope did wear the camelaucum = phrygium. We must therefore distinguish between a latently papal head gear -- the imperial crown -and the patently worn papal head gear, the? phrygium. This head cover was in liturgical and extraliturgical use down to the mid-eleventh century. It seems that there was only this one head cover, in this period, and that the only change which occurred was that of name: the phrygium came to be called the mitre. 5
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1. See Lib. Pont., i. 390, line 15.
2. See especially E. Sachsse, "Tiara und Mitra der Päpste" in Z. f. Kirchengeschichte, xxxv ( 1914), p. 489, and F. Wasner, "De consecratione. . . . pontificis" in Apollinaris, viii ( 1935), pp. 430-1.
3. See the quotation from OR. IX infra p. 314 n. 2.
4. Lib. Pont., i. 391: "Augustus christianissimus cum regno in capite sese prostravit." Cf. E. Kantorowicz, Laudes regiae, p. 136: the camelaucum was the insigne of the Byzantine emperor and other Eastern rulers. According to J. Deér, op. cit., p. 21, the camelaucum ranked as an imperial crown immediately below the diadem since the end of the sixth century.
5. For all this see E. Wüscher-Becchi, "Ursprung der päpstlichen Tiara und der bischöflichen Mitra" in Römische Quartaischrift, xiii ( 1899), pp. 96 ff., and Table VII, nos. 3, 4, 6, 9; the classic work of J. Braun, Die liturgische Gewandung, Freiburg, 1914, pp. 458 f., 499, where the changes in the forms of the mitre from a bonnet to the characteristic mitral shape are depicted, p. 459. H. W. Klewitz, "Die Krönung des Papstes" in Say. Z., kan. Abt., xxxi ( 1941), pp. 108-9; Sachsse, art. cit., pp. 487-9. According to Braun (pp. 455 - 6 ) the camelaucum: was not taken off by the Pope whilst functioning liturgically and this camelaucum: was also worn by cardinals, i.e., the priests of the titular Roman churches, cf. also Klewitz, art. cit., p. 113. In his post-humously published work, Die Weihe & Krönung des Papstes im Mittelalter, 1951, pp. 29-30, Eichmann does not accept the view of Klewitz (which we have adopted) that there was only one head gear
Leo IX in a number of privileges gave permission to individual bishops to wear the mitra Romana on certain feast days. 1 That these permissions pursued definite aims is clear, the foremost being to establish stronger hierarchical ties. 2 But there was no visible difference between the episcopal and papal mitre, and this lack of differentiation made it imperative that the head gear of the Pope and a bishop should be distinguished. The distinguishing feature was found in the papal tiara, or as it came to be called the regnum or the corona. The liturgical head gear of the Pope remained the mitre: the extraliturgical head cover appropriate to him alone, was the regnum or corona. 3 About the "coronation" of Nicholas II we are informed by Benzo of Alba. Despite his tendentious report, the concrete details which he gives about the head cover of the Pope cannot have been the fruit of his rather fertile imagination. Gregory as Hildebrand, Benzo says, in the Lenten synod of 1059 "regali corona suum coronavit hydolum ( Nicholas II)" 4 and Nicholas II "quasi rex in synodo
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of the Pope before the mid-eleventh century. Eichmann maintained that, as a direct result of the Donation of Constantine, two kinds of papal head gear became necessary and that the Pope certainly before 1000 wore "eine liturgische, pro sacerdotio, und eine weltliche, pro regno." But the evidence which the late savant on medieval coronations adduces, seems too tenuous to support his view.
1. To the archbishop of Trier in 1049: "Romana mitra caput vestrum insignivimus, qua et vos et successores vestri in ecclesiis officiis Romano more utamini," PL. cxliii. 595; for further examples see Braun, op. cit., pp. 452 ff. The mitre was also conferred on abbots, the first abbot being Aethelsig of Canterbury in 1063, see D. Knowles, Monastic Order in England, p. 579. There is some resemblance between the grant of the pallium and that of the mitre, see Sachsse, art. cit., p. 490. The mitre was later also granted to secular princes, so, for instance, by Nicholas II to Duke Spitignew of Bohemia (ca. 1060), see Deusdedit, Coll. can. iii. 150, p. 385; by Alexander II to Duke Wratislaw of Bohemia ( 1072) and confirmed by Gregory VII (Reg. i. 38, p. 60: "Ad signum intimae dilectionis, quod laicae personae tribui non consuevit"); by Lucius III to Roger II of Sicily ( Otto of Freising, Gesta, MGH. SS. RR. GG., ed. G. Waitz, cap. 29, p. 46: "Papa concessit Siculo virgam, et anulum, dalmaticam et mitram atque sandalia"; see also Deér, op. cit., p. 12, and cf. his Table XXXIII); by Innocent III to King Peter of Aragon (Reg. vii. 229: "papa . . . largiens ei (scil. Petro) regalia insignia universa, mantum videlicet, et colobium, sceptrum et pomum, coronam et mitram"). Cf. about this also Eichmann, Kaiserkrönung, ii. 145; and about the emperor's mitra see supra p. 259.
2 See especially Klewitz, art. cit., p. 113, and Eichmann, Weihe des Papstes, p. 27.
3 Cf. E. Kantorowicz, op. cit., p. 137, who says that the adoption of the tiara was "to provide the Pope with a badge which he did not share with any bishop and which clearly distinguished him amongst the members of the hierarchy."
4 Benzo of Alba, Ad Heinricum IV, MGH. SS. xi. 672: "Corrumpens igitur Prandellus (Hildebrand) Romanos multisque perjuriis induxit synodum, ubi regali corona suum coronavit hydolum. Quod cernentes episcopi facti sunt velut
coronatur." 1 From the description of Benzo it is clear that the head cover of Nicholas II had undergone some change: it was no longer the simple mitre which covered his head, since the mitre was enlarged by two circuli, that is, two rings. In order to understand this, we recall that an early Roman Ordo 2 had termed the phrygium of the Pope regnum. 3 At the time of the composition of this ordo, phrygium and regnum were the same and symbolized the kingship of the Pope. 4 But in the succeeding period this symbolic meaning seems to have been forgotten. When however the papal mitre became the mitra Romana and when this mitre was also worn by other prelates and princes, the necessity of devising a distinguishing feature for the Papal mitre led -- as a result of the general raking up of pertinent sources in precisely this decade -to a recollection of the Donation of Constantine, and its phrygium 5 was now considered to be the appropriate and distinguishing head gear of the Pope. What in actual fact was done was to surround the gold lace at the bottom of the mitre with a circle, above and below. The regnum, according to the description of Benzo of Alba, was a modified mitre, modified by the addition of the two rings which in fact were no more than the upper and lower trimmings of the gold lace. The mitre thus modified was the corona or regnum (phrygium). 6 It was an extraliturgical head cover. 7 When we now juxtapose the relevant passages in the
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mortui. Legebatur autem in inferiori circulo eiusdem serti ita: corona regni de manu Dei; in altero vero sic: diadema imperii de manu Petri."
1. Almost the same words he uses for Alexander II: "Talis super christianum populum exaltatur et quod auditu nedum visu horribile est, quasi rex in synodo coronatur," p. 692.
2. See OR. IX, PL. lxxviii, cap. 6, col. 1007: "Accedit prior stabuli et imponit ei (scil. papae) in capite regnum quod ad similitudinem cassidis ex albo fit indumento." F. Wasner, art. cit., p. 431, is of the same opinion, namely, that the phrygium, camelaucum and regnum are one and the same thing; cf. also G. Ladner, "Die Statue Bonifaz's VIII und die Entstehung der dreifach gekrönten Tiara" in Römische Quartaischrift, xlii ( 1934), p. 52, note 66, p. 56, and Schramm, in Hist. Z., clii ( 1935), pp. 308 and 309. Against this identification was Eichmann, Weihe des Papstes, p. 30, although he did not seem to have read Wasner's important articles.
3. Cf. also supra p. 312.
4. In consonance with the Donation of Constantine and with the head gear of the Eastern emperor.
5. Which had already been identified with the regnum in OR. IX.
6. We should not omit to mention that Isidore of Seville defined the mitre thus: "Mitra est pilleum phrygium, caput protegens, quale est ornamentum capitis devotarum. Sed pilleum virorum est, mitrae autem feminarum," Etymologies, XIX. xxxi. 4, ed. W. M. Lindsay in Scriptorum classicorum Bibl. Oxoniensis, 1911. This definition is under the rubric: "De ornamentis capitis feminarum."
7. See H. W. Klewitz, art. cit., pp. 114-15, who also observes that the mitre began to change its form from the end of the eleventh century, for which change
Donation, in the Dictatus of Avranches, and the Dictatus of Gregory VII, the development seems to have been thus:
Donation
Statuentes eundem phrygium omnes eius successores pontifices singulariter uti in processionibus.
Soli papae licet in processionibus insigne quod vocatur regnum portare cum reliquo apparatu imperiali. DA.10 1
Solus (papa) uti possit imperialibus insigniis. DP.8
The confirmation of all this is in the statement of Bruno of Segni that the Pope wears the regnum, "quia Constantinus imperator olim beato Silvestro omnia Romani imperii insignia tradidit." Indeed, the Pope is a sacerdos regalis as well as an imperialis episcopus: he was the apostolicus on earth. 2 The Pope is sacerdos and rex. 3
The monarch of the societas Christiana therefore appears as a true emperor clad with all the imperial garments. One more such symbolic manifestation of his supreme Rulership was the kissing of the feet 4 which was the Western counterpart of the Eastern proskynesis, the actual (and humiliating) prostration before the emperor as divinity on earth. 5 Into this category of public demonstrations signifying the
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there would have been no occasion, had not the phrygium been revived. For the different shapes of the mitre see Braun, op. cit., p. 459. About the mitre of the emperor in the Libellus de ceremoniis aule imperatoriae, see supra p. 259.
1. Cf. also DA. 11: "Solus utitur rubra cappa in signum imperii vel martirii." We think that the DA. should be dated earlier than the beginning of Gregory's pontificate, cf. Studi Gregoriani, iv. 118.
2. See the eleventh-century description of the Lateran services, where the Pope is characterized thus: "Qui sacerdos est regalis et imperialis episcopus, immo patriarcha et apostolicus" quoted by Klewitz, "Die Entstehung des Kardinalkollegiums" in Sav. Z., kan. Abt., xxvi ( 1936), p. 123, note 1.
3. Cf. E. Kantorowicz, op. cit., p. 138, speaking of an "imperialization of the Church as one of the outstanding features of the Reform Papacy." Biblical models might have been Eccl.us, xliv. 14: "Corona aurea super mitram eius expressa signo sanctitatis, et gloria honoris; opus virtutis et desideria oculorum ornata."
4. DP. 9: "Solius pedes omnes principes deosculentur." The OR. IX mentioned kissing of the feet in cap. 4 (PL. lxxviii. 1006). The Lib. Pont. (ii. 107) also knew of the kissing of the feet of the Pope in the ninth century. About the adoration of the Norman kings in Sicily and the kissing of their feet (heels) see J. Deér, op. cit., p. 14, note 20.
5. E. Eichmann, Kaiserkrönung, i. 189; here also further literature. Cf. also Eisenhofer, Liturgik, p. 57: indubitably adoption of the Roman-Byzantine imperial ceremonial. On the origins of the proskynesis in the ancient empire, cf. M. P. Charlesworth, "Some observations on Ruler Cult" in Harvard Theol. Rev., xxviii ( 1935), pp. 16 ff., and especially A. Alföldi in Mitt. d. deutschen archaeolog. Instituts, Rom. Abt., xlix ( 1934), pp. 59ff. (directly derived from the divine position attributed to the emperor, but strenuously opposed by the Christians, pp. 74-9). Kissing of the feet was not, however, unknown in ancient Rome, see
unique monarchic position of the Pope belong also the laudes which were sung to the Pope on the model of the imperial laudes. 1 Papal coronations and papal festive coronations ("crown-wearings") -- on certain feast days 2 -- were also to bring into clear relief the monarchic appearance of the Pope: kings and emperors since the tenth century had attached great significance to these festive coronations. 3 And the Byzantine festive coronations were the direct model of the papal festive coronations. 4
The Papal coronation and its ideological significance make a few observations necessary. It is proved that the ceremony of Papal coronations -- as distinct from the consecrations -- was performed in the case of most twelfth-century Popes. 5 Nevertheless, Papal coronation, consisting of the imposition of the corona and the enthronement accom-
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Alföldi, pp. 54-5, nor kissing of the emperor's cheeks and hands, pp. 40 - 2. Sometimes the proskynesis was combined with the kissing of the hem of the emperor's garment, ibid., pp. 62-3 ( Persian origin). Kissing of the Pope's hands is mentioned in OR. I, cap. 8, PL. cit. col. 941 (late eighth century). Washing of the feet by the Pope is mentioned in OR. X, c. 12; OR. XI, c. 41 and OR. XII, c.25.
1. See especially E. Kantorowicz, op. cit., pp. 129-32; Schramm in Studi Gregoriani, ii. 443; and R. Elze, "Das Sacrum Palatium Lateranense", ibid., iv. 49-50.
2. See H. W. Klewitz, "Krönung des Papstes" Sav. Z. cit., pp. 99-100, quoting from Albinus's entry in the Liber censuum. On the eighteen specifically mentioned feast days the Pope "debet coronari": 8 November, 11 November and 23 November; the first three Sundays of Advent; Christmas Day; St Stephen's day, Epiphany; Sunday Laetare; Easter Sunday and Monday; second Sunday after Easter; Ascension; Whitsun; 29 June; 31 December, and finally the anniversary of the Pope's election. Cf. also OR. XI, Additio, PL. cit. col. 1053. The officers who assisted the Pope in this ceremony were the "addrextatores."
3. See E. Eichmann, op. cit., i. 189. How much during Gregory's pontificate the Pope was considered as holding the Roman empire may be gleaned from the dating of some Burgundian documents: "Domno nostro papa Gregorio Romanum imperiurn tenente," quoted by E. Kantorowicz, op. cit., p. 140, note 93, from the Cartulaire de l'abbaye de S. Bernard de Romans.
4. E. Eichmann, Weihe des Papstes, p. 40. At the same time the liturgical ordines, beginning with OR. I, inherited a good deal of ancient Roman emperor ceremonial, e.g. thuribles, torches, etc. Cf. also P. Batiffol, "Études de liturgie et d'archéologie chrétienne", Paris, 1919, pp. 193 ff.; also Alföldi, op. cit. (supra, 315 n. 5), pp. 114 f. About the imperial sella (the chair) see idem, ibid., pp. 104-6, 100; the papal sella figures prominently in the ORi. On the genuflexion before the Roman emperor see Alföldi, ibid., pp. 46 ff., and Batiffol, op. cit., pp. 137 ff.
5. For detailed evidence see H. W. Klewitz, art. cit., p. 98, note 7. Whether Gregory VII himself was crowned, is not certain, except that he appeared at the Christmas procession of 1075 "coronatus" (see supra p. 311), but this can have been only a festive coronation, and not an original one.
panied by the laudes, never displayed the same effects as their counterpart, the imperial coronations. For the latter was constitutive: before the imperial coronation the king was a mere candidate for emperorship. It was different with the Pope: his coronation was merely declaratory, not constitutive. For the regnum was the symbol of imperialroyal power. As we have tried to show, royal power in hierocratic thought was merely the "temporal" personified: it was the personal expression of the lifeless "temporal" or "secular." And pontifical authority by virtue of the character of this authority and the society over which it was exercised, entitled the Pope to dispose of the "temporal" or royal power. Hence the solemn imposition of the corona could not and did not add anything as regards authority which the Pope had not already possessed. 1 Just as it was necessary at times to remind contemporaries of the full meaning of Papal authority, so it was necessary to emphasize this authority by the solemn act of papal coronation. Papal coronation was a mere symbolic act demonstrating the Pope's supreme monarchical position by contemporary and acknowledged means. 2 The wearing of the Papal crown at festive coronations had solely symbolic meaning. 3
Although the crown was a monarch's most pronounced outward
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1. We do not think it is right to say that the "immantation" of the Pope after his election with the cappa rubea, the imperial purple, had constitutive effects: in this sense H. W. Klewitz, art. cit., p. 120, and E. Kantorowicz, op. cit., pp. 138-9. It too had merely declaratory effects: this seems also the opinion of Eichmann, Weihe des Papstes, p. 34 (a sign of the "rechtmässige Antritt"); cf. also infra 318. n. 2. F. Wasner, art. cit., pp. 118-21, also seems to be of this opinion. The same may be said of the Pope's solemn induction into the palace: this too had no constitutive effects, see Wasner, ibid. The constitutive act was the election, see the decree of Nicholas II (MGH. "Const". i. 538, cap. 8) and later Innocent III, Sermo in consecratione, iii (PL. ccxvii. 663). About the inthronization of the Pope, i.e. his elevation into the "sedes beati Petri" by the two cardinal bishops, see Wasner, art. cit., pp. 255-6, 258, esp. pp. 269, 271; Eichmann, op. cit., pp. 13-17; the juristic nature and the consequences of this elevation are dealt with by Wasner, loc. cit. Cf. also A. Menzer, "Die Jahresmerkmale etc." in Römische Quartalschrifit, xl ( 1932), pp. 68-70.
2. Little more than a century afterwards Innocent III exquisitely expressed these ideas thus: Sermo cit. (preceding note): "Solus autem Petrus assumptus est in plenitudinem potestatis. In signum spiritualium contulit milli mitram, in signum temporalium dedit milhi coronam; mitram pro sacerdotio, coronam pro regno, illius me constituens, vicarium, qui habet in vestimento et in femore suo scriptum 'Rex regum et dominus dominantium, sacerdos in aeternum secundum ordinem Melchisedech" (col. 665). Cf. also Sermo VII in festo beati Silvestri: "Romanus itaque pontifex in signum imperii utitur regno et in signum pontificii utitur mitra: sed mitra semper utitur et ubique, regno vero nec ubique nec semper" (PL. cit., col. 481). Cf. also G. Ladner, art. cit., p. 57.
3. See especially H. W. Klewitz, art. cit., pp. 118 ff.
symbol of his position, it was only one of several symbols. The author of the Donation of Constantine had taken great care to say that the Pope was to be given all imperial garments, so as to leave no doubt about the papal function as an emperor-monarch. 1 Imperial garments were scarlet red, so had those of the Pope to be: the cappa rubea which is the "chlamys purpurea" of the Donation, is a scarlet mantle, which the Pope puts on immediately after his election. 2 Of the other pieces of papal attire we mention the rubia calciamenta papalia, the Papal scarlet shoes, the caligae de rubeo panno, the stockings, and the infula rubea. 3 The Dictatus of Avranches merely echoes the Donation when its author declares: "Solus utitur rubea cappa in signum imperii vel
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1. "De praesenti contradimus . . . diadema . . . phrygium, necnon et superhumerale, videlicet lorum, qui imperiale circumdare adsolet collum, verurn etiam et chlamydem purpuream atque tunicam coccineam et omnia imperialia indumenta . . . etiam et imperialia sceptra simulque et cuncta signa atque banta etiam et diversa ornamenta imperialia et omnem processionum imperialis culminis at gloriam potestatis nostrae." The Libellus de ceremoniis aule imperatoris (ca. 1030) gives the monokrator (the emperor) most of these garments, including the "tunica coccinea," the "chlamys" and the "phrygium" as well as the dalmatic, cap. 5 and 6 (ed. P. E. Schramm, Kaiser, ii. 95-7). It seems that the author of the Libellus wished to recover from the Constantinean grant as much as possible for the emperor.
2. By the mid-twelfth century this mantle was considered as symbolizing the "investiture" of the Pope. Cf. the vivid description of the scene in which the anti-Pope Victor IV took the "mantum" away from Alexander III in the view of all ("a collo nostro propriis manibus violenter excussit et secum . . . asportavit ") in Alexander III's Ep. i, PL. cc. 70-1; see also Klewitz, art. cit., p. 120, referring to Victor's decision to renounce the Papacy by laying down the cappa rubea. The terms used for this mantle were not always consistent: it was also called "pluviale," "mantum," or "clamis," see Eichmann, Weihe, p. 34. Eichmann thought that the scarlet mantle originated at about the time of the fabrication of the Donation of Constantine, "well das Bedürfnis, es dem Kaiser gleich zu tun, in Rome lebhaft gewesen ist, und gerade dieses Kleidungstück durch seine Farbe und Bezeichnung den kaisergleichen erkennen liess." The OR. XIII ( Gregory X) in the thirteenth century and OR. XIV gave, however, great prominence to the "immantation" which was to symbolize the "investiture" of the Pope with the Papacy. See OR. XIII, cap. 2 (PL. lxxviii. 1105): immediately after the election the prior of the deacons puts the purple mantle on the Pope and says: "Investio te de papatu Romano, ut praesis urbi et orbi." The same procedure was followed in OR. XIV, cap. 10 (PL. cit., col. 1126). According to the Caeremoniale Romanum of 1486 the essential features of this investiture were still kept, but the words were not spoken, "so as not to provoke the secular rulers," Eichmann, Weihe, p. 56. Nevertheless, in 1090, the Irish Bishop Gilbert knew of a "chlamys coccinea" as part of the episcopal attire, see J. Usserius (Ussher), Vet. Epist. Hib. Syll., Dublin, 1632, p. 87. For the alleged gift of a "cappa valde pretiosa aurifrigio ex omni parte ornata" by Aegelnoth, cf. Eadmer, Hist. nov., PL. clix. 416-18.
3. Cf. Eichmann, Kaiserkrönung, ii. 49 ff., 131 f. P. E. Schramm in Studi Gregoriani, ii. 444, considers that the red sandals of the Eastern patriarch may possibly have been the model for Roman adoption.
martirii," 1 whilst the Dictatus of Gregory VII has indubitably the better and more concise diction:
Solus uti possit imperialibus insigniis. 2
II
The form of the government of this societas christiana was monarchic. But the scope and manifold nature of this government exercised over that vast society made a consultative body necessary: the universality of this government necessitated the establishment of a permanent council around the monarch. In the terminology of contemporary kings this body surrounding them was called the curia regis, but the papal curia was infinitely better organized and had more ramifications than its royal counterparts. The most important section of this papal curia was the permanent senate around the Pope, which by the end of the eleventh century had become a constitutionally defined body -- the college of cardinals or the sacred college. This corporate body, consisting by the end of this century, of the three orders, the cardinal bishops, the cardinal priests, and the cardinal deacons, and headed by the Pope, had become the corporate epitome of the universal Church. This body was in fact the Roman Church which was no longer the epitome of Christendom plain and simple, but its corporate epitome. The corporate nature of the Roman Church corresponded to the corporate nature of the societas christiana.
The formation of this corporate body proceeded by utilizing the existing organization of the Roman clergy. Although their original functions -- liturgical, pastoral, parochial, alternating in weekly turns, hence called hebdomadal functions -- were not at first abolished, they were bound to take second place when once a constitutional corporate entity was created for the specific purpose of functioning as the senate of the Pope. The nucleus of this organized body was formed by the
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1. See DA. 11, and Klewitz, art. cit., p. 120, note 77.
2. The sceptre was one more of the papal insignia derived from the Donation of Constantine, see the quotation supra 318. It was used as early as Leo VIII's pontificate, see Liutprand, Historia Ottonis, ed. cit., cap. 22, p. 175: Benedict V "pallium sibi abstulit, quod simul cum pontificali ferula, quam manu gestabat, domno Leoni papae reddidit." The sceptre was the sign of the Pope's "weltlichen, nicht der geistlichen oberhirdichen Gewalt, die beim Papst schon durch das Pallium symbolisiert war," Eichmann, ii. 82-5; Weihe, p. 33. The monarchic position of the Pope (in conjunction with his imperial insignia) is well brought out by the late twelfth-century author of the Summa Reginensis: "Omnes autem reges christiani subsunt domino apostolico, qui etiam imperialia signa habet," ed. by A. M. Stickler in Salesianum, xiv, 1952, p. 491.
cardinal bishops, those seven "episcopi cardinales ebdomadarii" of whom first mention is made during the pontificate of Stephen III: the cardinal bishops were to be joined by the cardinal priests and then by the cardinal deacons. 1 Very significantly Leo IX called ecclesiastics from beyond the Alps to Rome 2 where they joined the ranks of the cardinal bishops and cardinal priests after the dismissal of a number of simoniacal cardinals. 3 The cardinals began to function as the Pope's counsellors and senators. The avocation of non-Roman elements to the cardinalate sufficiently demonstrated the epitomizing character of this body. 4 This marked not only the beginning of the corporate establishment of the senate, but also the essential change in the functions of this body: the previous liturgical functions of an unorganized body became the senatorial functions of the corporate epitome.
It is to the need of a senatorial body that St Peter Damian refers in a well-known passage: the Roman Church must imitate the ancient curia of the Romans -- "Romana ecclesia, quae sedes est apostolorum, antiquam debet imitari curiam Romanorum" 5 -- for just as at that time the senate directed the multitude of the nations, so that they should be subjected to the Roman empire, in the same way St Peter Damian holds that the senators of the universal Church should subject mankind to the laws of the true emperor Christ. 6 In programmatic assertions of
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1. For all this see J. B. Sägmüller, Die Tätigkeit und Stellung der Kardinäle, Freiburg, 1896; idem, in Theol. Quartaischrift, lxxx ( 1898), pp. 596-614, and lxxxiii ( 1901), pp. 45-93; J. Lestocquoy, "Administration de Rome et des diaconies du VII au IX siécle" in Rivista d'archaeologia cristiana, vii ( 1930), pp. 261 ff.; M. Andrieu, "L'origine du titre de cardinal dans l'église romaine" in Miscellanea G. Mercati, 1945, v. 113 ff.; H. W. Klewitz, "Die Entstehung des Kardinalkollegiums" in Sav. Z., kan. Abt., xxv ( 1936) pp. 115-221 (cardinal bishops: pp. 127-47; priests: pp. 147-76; and deacons: pp. 176-92); St. Kuttner, "Cardinalis" in Traditio, iii ( 1945), pp. 129 ff., at pp. 146-52, 172-98. For the early history of the "diaconiae" and their contribution to the making of "un organismo romano" see the important work of O. Bertolini, "Per la storia delle diaconiae romane" in Archivio della Societa Romana di storia patria, lxx ( 1947), pp. 1-145.
2. For instance, the abbots of Monte Cassino, Vendôme, St Victor-Marseilles, see Kuttner, art. cit., p. 175, note 102.
3. See Sägmaüler, op. cit., pp. 25, 38; H. W. Klewitz, art. cit., p. 117; Kuttner, art. cit., pp. 173, 175, note 103.
4. It is from Leo IX onwards that the college of cardinals begins to take concrete shape, Klewitz, p. 118, who has worked out this most intricate process. Cf. also A. Dumas in E. Amann and A. Dumas, L'église au pouvoir des laiques, Paris, 1951, pp. 155-9.
5. Peter Damian, Opusc., no. 31: Contra phylargyriam, cap. 7 (PL. cxlv. 540).
6. Peter Damian, Opusc., no. 31: Contra phylargyriam, cap. 7 (PL. cxlv. 540): "Sicut enim tunc terrenus ille senatus ad hoc communicabant omne consilium, in hoc dirigebant et subtiliter exercebant communis industriae studium, ut cunctarum gentium multitudo Romano subderetur imperio, ita nunc apostolicae sedis
this kind we recognize the concrete realization of the societas christiana as an autonomous body politic which is in need of a proper governmental machinery. The same ideas underlie the statement of Cardinal Deusdedit who declares that the place of the old patricians is now taken by the Roman clergy: "Inde Romani clerici locum antiquorum habent patriciorum." 1 What the term cardinal came to mean was a very intimate connexion with the Pope and papal government, so intimate in fact that Cardinal Humbert could speak of the cardinals as participants in the papal plenitude of power, that is, as co-bearers of the primacy of the Roman Church. The term "Romana ecclesia" as a result of the initiation of this corporate body, acquired a corporate complexion: it became, as we have said, the corporate epitome of the societas christiana. When formerly the senators were called the "pars corporis imperatoris," the new senators, the cardinals, became the "pars corporis papae." 2 Consequently, the Roman Church was the "caput et cardo" of contemporary Christian society: it was its corporate head. Cardinal Humbert as the draftsman of Leo IX's letters, writes to the patriarch of Constantinople:
Like the immovable hinge that sends the door forth and back thus Peter and his successors have the free judgment over the entire Church . . . therefore his clerics are named cardinals, for they belong more closely to the hinge by which everything else is moved. 3
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aeditui, qui spirituales sunt universalis ecclesiae senatores, huic soli studio debent solerter insistere, ut humanum genus veri imperatoris Christi valeant legibus subjugate. Et sicut tunc Romanorum consules ex diversis mundi partibus reportabant . . . sic isti nunc animas hominum de manu diaboli, debent liberare captivas . . . et regi suo Christo signa gaudeant victricia reportare." Cf. also Peter Damian's Disceptatio synodalis (MGH. LdL. i. 83, lines 17-18) where he says that SS Peter and Paul had possessed the principate of the apostolic senate; the "defensor Romanae ecclesiae" declares: "Non ignoras, quod inter omnes sanctos martyros Petrus et Paulus in apostolici senatus culmine possident principatum."
1 Deusdedit, Collectio canonum, iv. 1 (ed. Wolf von Glanvell, p. 17). According to Peter of Blois the cardinals are the Patres conscripti, PL. ccvii. 377, Ep. 126.
2 On this see Sägmüller, op. cit., pp. 225-6.
3 Cornelius Will, Acta et Scripta, cap. xxxii, pp. 81-2. It is the same idea that emerges from the statement of Cardinal Deusdedit when he declares that the cardinals are the bases and hinges by which the "plebs Dei" is ruled: etymologically the basilei are derived from basis: "Sicut a basibus, quae sunt fulturae columnarum a fundamento surgentes basilei, id est reges dicuntur, quia populum regunt, its et cardinales derivative dicuntur a cardinibus januae, qui tam regunt et movent, quod plebem Dei . . . ad amorem Dei moveant," op. cit., ii. 160, p. 268. For the difference between Peter Damian and Deusdedit, see Kuttner, art. cit., p. 176, note 109. In his Carmen, no. LXXII, Peter Damian makes St Peter "basim aedificii" (PL. cxlv. 941).
Nevertheless, the initiation of this corporate body brought about what we have called the problem of the cardinalate, that is, of the precise constitutional standing of the cardinals. Can they exercise authority over the Pope, participating as they do in his primacy? Is the Pope bound by the cardinals' advice or can he legitimately disregard it? We can only mention this problem in passing, since it is outside the scope of this essay, and we confine ourselves to the statement that when once the theory of corporations was fully worked out, it was sure to be applied to this body too, with the inevitable consequence of restricting the Pope's functions. 1
But the function of the cardinals was not merely senatorial. The manner in which Popes were made and unmade in the fourth and fifth decades of the eleventh century, extraordinarily resembled the Eastern spectacle of the creation of the imperial domestic prelate, the patriarch. The regime of Henry III had shown the unadulterated application of the idea of protection in the purest royal sense. This interpretation of the idea meant control by the emperor of the Papacy; the papal conception of protection meant control by the Papacy of the emperor. But the Henrician government had plainly manifested the exercise of imperial control over the Papacy, thus cutting right across the fundamental axioms of hierocratic doctrine: this making and unmaking of Popes was the most palpable negation of the Pope as the supreme monarch in the societas christiana. It was the concrete denial of the Pope's being the sacerdos regalis.
The pattern for "canonical and just elections" was provided by the old Roman decree of 769 passed in the synod under Stephen III. 2 Although the synodists excluded the laity, they could do little more than say that the election of the pontiff lay in the hands of the (Roman) clergy. It was nevertheless significant that the account of this decree of 769 referred to cardinal presbyters and deacons. 3 In the intervening years between 769 and 1059 the local Roman clergy had crystallized into distinct and very prominent offices, the seven cardinal bishops, the twenty-five cardinal priests, and the cardinal deacons. They alone had performed the hebdomadal services in the Lateran: the conferment upon these prominent ecclesiastical officers of the exclusive right of electing the Pope was therefore understandable. The utilization of these
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1. Cf. Studi Gregoriani, iv. 111 ff.
2 See supra p. 87. On the importance of this decree see F. Wasner in Apollinaris, viii ( 1935), pp. 251 ff.; cf. also M. Andrieu, "La carrière ecclésiastique des papes" in Revue des sciences religieuxes, xxi ( 1947), pp. 90 ff.
3 Cf. Lib. Pont., i. 478; 484.
(Roman) cardinals for non-liturgical functions was a measure that suggested itself. 1 In short, the "cunctus clerus" of 769 had shrunk to the "cardinales clerici" and in a specific sense to the cardinal bishops who functioned as metropolitans in designating and raising the elected candidate to the pontifical office. 2 In a way, the cardinals took the place of the cathedral chapter.
The acclamation laid down in the decree of 769 re-appeared in 1059 in a somewhat different shape. The remaining clergy and the people "should accede to consent to the new election." 3 Considering the tenor and the ideas underlying the decree there can be no doubt that the passage did not have in mind a ratifying, legal consent by clergy and people, but merely the acclamation in the form of the popular laudes. 4 Lastly, Henry IV was given in this decree the personal right of "consenting," that is, of acclaiming; his successors also should have this right, provided that they submitted a specific request to the Roman Church and that this request was granted. 5 The old Liber Diurnus regulation had indeed undergone some drastic changes. From a notification to the emperor (or exarch) requesting him to confirm the papal election through the intermediate stages of the Carolingian and postCarolingian period, when the Liber Diurnus was utilized, not in order to obtain confirmation, but protection by the emperor, to the decree of
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1. See the decree of 13 April 1059, MGH. Const. i, no. 382, pp. 539-40, cap. 3:
"Ut, obeunte huius Romanae universalis ecclesiae pontifice, in primis cardinales episcopi diligentissima simul consideratione tractantes, mox sibi clericos cardinales adhibeant: sicque reliquus clerus et populus ad consensum novae electionis accedant." The procedure, therefore, was that the cardinal bishops designated the candidate to the other cardinals, and all cardinals then elected the candidate formally. About the theological importance of this synod see A. J. Macdonald, Berengar and the reform of sacramental doctrine, London, 1930, pp. 108 ff.; also G. Schreiber, "Studien über Anselm von Havelberg" in Analecta Praemonstratensia, xviii ( 1942), pp. 68-70. About the probable author of the decree concerning the election, i.e. Humbert, see now also A. Michel, "Humbert und Hildebrand bei Nikolaus II" in Festschrift f. G. Schreiber (Hist. Jb., lxxii, 1953), pp. 143-50 (offprint).
2 Cap. 4, p. 539: ". . . cardinales episcopi procul dubio metropolitani vice funguntur, qui videlicet electum antistitem ad apostolici culminis apicem provehunt."
3. See the passage quoted supra, note 1.
4. Of which we read in subsequent election accounts. If ratification had been intended, the diction would have been different, but tile employment of the term "accedere" militates against interpreting the passage in the sense of legal ratification.
5. Cap. 6, p. 540: "Salvo debito honore et reverentia dilecti filii nostri Henrici, qui in ptaesentiarum rex habetur et futurus imperator Deo concedente speratur, sicut jam sibi concessimus, et successores illius, qui ab hac apostolica sede personaliter hoc jus impetraverint."
1059, when the "right of acclaiming" the new Pope was made the issue of a specific Papal concession, was a long and tortuous way; and a way, as we have seen, which was not without grave dangers to the Papacy. The sixth chapter of this decree of 1059 was the last remnant of the old Liber Diurnus rule: it was hardly recognizable any more. The reason is clear. The preceding ninety-seven years had all too clearly shown to what excesses the erstwhile invocation of protection had led: it was this invocation in fact which enabled the emperors to exercise their control over the Papacy. On the other hand, this decree in its eighth chapter excludes any intervention by the emperor between election and inthronization of the newly elected Pope. The Pope once elected assumes full pontifical powers. Moreover, the act which made the future emperor a special protector of the Roman Church was the imperial coronation. And since in 1059 there was little prospect of Henry IV becoming emperor in the near future, the "protector of the Roman Church" was to be found in the Normans who became in the summer of this year the vassals of the Roman Church. 1 In this function they were to safeguard papal elections as laid down in the decree. 2
The senatorial and electoral functions of the cardinals led to the fixation of a number of specific privileges to be enjoyed by them. 3 We can but indicate some of these privileges here. The development of these privileges began at the time at which the cardinals became the senators and electors of the Pope, although it was not concluded until well into the following century. The importance of the cardinals is perhaps best seen in the strenuousness of the efforts which Wibert (the anti-Pope Clement III) made in order to win their adherence to his cause: in so doing he considerably hastened the development of the specific privileges appertaining to the cardinals 4 who, even after the schism had ended, would not renounce any of the rights won in
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1. The oath of vassalage is in the Liber Censum, ed. P. Fabre and L. Duchesne, i. 421, no. clxii, and clxiii: "Adjutor ero ad tenendum et ad acquirendum regalia sancti Petri contra omnes homines. . ."
2. "Etsi tu vel tui successores ante me ex hac vita migraveritis, secundum quod monitus fuero a melioribus cardinalibus clericis Romanis et laicis, adjuvabo ut papa eligatur et ordinetur ad honorem sancti Petri." It is indeed a long way from the Ludovicianum and the Lotharianum to this oath taken by the Normans.
3. Membership of the college of cardinals was not a presupposition for papal candidature, see cap. 5: "Eligant autem de ipsius gremio, si reperitur idoneus, vel si de ipsa non invenitur, ex alia assumatur." A great number of Popes in the twelfth and thirteenth centuries were not cardinals.
4. St. Kuttner, art. cit., p. 174; cf. also SägmÜller, op. cit., pp. 235-6 and H. W. Klewitz, art. cit., p. 173.
"schismatic" times. 1 Not only did the cardinals claim precedence over any bishop; not only were the requirements of the Symmachan forgeries -- the testimony of three dozen witnesses -- applied to the trial of a cardinal; but also the cardinals obtained the right which in fact was the logical application of the hierarchic principle, to judge any bishop in the Roman Empire 2 as well as the right to subscribe to papal acts. 3 Lastly, the meetings of this senatorial body supplanted the former synod: the meeting of the cardinals became the consistory, 4 the cabinet of the Pope. 5
III
The Pope was not only a sacerdos regalis, but he also appeared as such. And this made it advisable for him to live in a place which suitably brought into relief his monarchic function. We recall that the residence of the Popes had changed its name during the ninth century: from a mere episcopium the residence became the sacrum palatium Lateranense. This nomenclature symbolically projected on to the residence of the Popes their sacerdotal (sacrum) and their regalimperial functions (palatium). It was in this palatium that the Pope resided with his entourage and his officials. The papal residence was also the seat of the curia of the Pope -- the curia Romana -- which shows such great affinities with a royal or imperial curia. In both curiae the monarch is surrounded by his dignitaries, officers, title bearers; in each case all the administrative appurtenances appertaining to a court will be found. 6
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1. Klewitz, art. cit., pp. 166, 175; and K. Jordan, "Die päpstliche Verwaltung im Zeitalter Gregors VII" in Studi Gregoriani, i. 127.
2. Descriptio sanctuarii Lateranensis ecclesiae: "qui potestatem obtinent judicium faciendi super omnes episcopos totius Romani imperii in omnibus conciliis vel synodis quibuscumque accersiti vel praesentes fuerint," quoted by Klewitz, art. cit., p. 123, note 1.
3. J. B. Sägmüller, op. cit., pp. 62, 184, 216, 246; Klewitz, art. cit., p. 201; St. Kuttner, art. cit., p. 177. For cardinals' signatures see J. B. Sägmüller, op. cit., p. 74, notes 6 and 8; and Bresslau, Handbuch der Urkundenlehre, 2nd ed., ii. 52, note 2, and the further development, ibid., pp. 55-61 ( Gregory IX: Potthast 9368; Nicholas IV: Potthast 23010). Since the Pope is merely the mouthpiece of the Roman Church, Cardinal Hugh asserts that without the cardinals' signatures, the Pope's declarations are invalid: Ad Mathildam, MGH. LdL. ii. 419.
4. See H. W. Klewitz, art. cit., pp. 133, 203; and J. B. Sägmüller, op. cit., pp. 48-58, 97-8. "Le consistoire est une transposition du synode romano-byzantin," J. Rousset de Pina in Hist. de l'église, Paris, 1953, ix. 236. Constantine's council was the "sacrum consistorium," see G. Ostrogorsky, Gesch. d. byz. Staates, p. 20.
5. The conferment of specific garments on the cardinals began in the time of Innocent IV, see P. Hinschius, Kirchenrecht, i. 357.
6. See K. Jordan, art. cit., p. 134; E. Eichmann, Kaiserkrönung, ii. 212; P. E. Schramm
In the case of the sacrum palatium the basis was the Donation of Constantine, in which the emperor had handed over to Silvester lipalatium nostrum" which the emperor himself had built. Consequently, in the ninth century the term palatium Lateranese was adopted and the former episcopium (or patriarchium) disappears from papal documents altogether. 1 It was not only the official residence of the Pope; it became also in the course of time the place in which regular payments have had to be made -- in a way corresponding to a royal exchequer -- as John XIII in 970 had laid down. 2 It also housed the papal chancery, the archives, and was the seat of the highest tribunal in the societas christiana. In a word, the sacrum palatium was the physical centre of the government exercised by the Pope over the societas christiana: here converged all the multifarious and diverse channels from the whole of Christendom. 3
A few observations on the organization of the palatium appear pertinent. It must not be supposed that the old organization was suddenly thrown overboard in the second half of the eleventh century. Within the purview of papal organization we find in fact the same gradual growth over a long period as we witnessed in other fields. New offices come slowly into their own, whilst old offices either merge with new ones, or vanish altogether. This latter was the case with the old palatine judges -- the Seven Palatine Judges ("septem judices palatini ") -- who were not removed, but their importance was so diminished that in the second half of the eleventh century they vanished from sight altogether. The reason for this evanescence was clearly because these seven judges were not only not necessary members of the higher
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Schramm, in Studi Gregoriani, ii. 438; K. Jordan, "Die Entstehung der römischen Kurie" in Sav. Z., Kan. Abt., xxviii ( 1939), pp. 97 ff.
1. Only during the time of Otto III's Roman sojourn the title sacrum palatium vanishes for a little while, see R. Elze, "Das Sacrum Palatium Lateranense" in Studi Gregoriani, iv. 40, who considers it possible that this suppression was due to Otto's view on the Donation.
2. See K. Jordan, "Entstehung," p. 101 and "Verwaltung," p. 112; R. Elze, art. cit., p. 36. Cf. J. 3742. The payment concerned annual dues to be made "in palatio nostro" by the senatrix Stephania of ten gold solidi for the town of Preneste.
3. Later under Innocent III it was found necessary to erect a number of new buildings at St Peter's, see Gesta, c. cxlvi (PL. ccxiv. ccxi): "Quia veto non tantum honorabile, sed utile censuit, ut summus pontifex apud s. Petrum palatium dignum haberet, fecit ibi fieri domos istas de novo: capellaniam (the residence of the "capellani"), cameram et capellam, pannatariam (baking house?), buccellariam, coquinam et marescalciam; domos cancellarii, camerarii et eleemosynarii . . . totumque palatium claudi muris et super portas erigi turres."
ecclesiastical hierarchy, but also, since Ottonian times, had been styled and had functioned as "judices Romani imperii." This fusion of functions prevented an important office from being developed or from being merged into new offices; the consequence was that it petered out and the judges for a time became purely local justices. 1 The development of the palace organization freely adopted features provided by Western patterns, 2 but it should be pointed out that these Western models were by no means slavishly copied.
For obvious reasons the Papal chancery was a department that was most directly concerned with the actual administration of the societas christiana. This department provided the means transmitting justitia. As a consequence of the adoption of the name palatium new styles were created which had so far only appeared in an imperial palatium. The style and office of a chancellor -- cancellarius -- is found for the first time under John XVIII. 3 In the early eleventh century we find papal documents written as well as dated by "Petrus abbas et cancellarius sacri Lateranensis palatii." 4 For a while the office of librarianthe old head of the Papal chancery -- and that of chancellor were united, but by the mid-eleventh century the chancellor became the head of this department. Next to the chancellor's office there was the office of the "notarii et scriniarii sacri Lateranensis palatii." 5 It was the chancellor together with the notaries who formed, so to speak, the personal secretariat of the Pope and who wrote the important correspondence. 6 The influence of this department became particularly marked when Clement II introduced non-Roman notaries and joined them to his personal " secretariat." 7 A further consequence of this organization
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1. P. E. Schramm, art. cit., p. 213ff. But see also A. Dumas in E. Amann and A. Dumas, L'église au pouvoir des laiques, pp. 159-60.
2. R. Elze, art. cit., attractively draws attention to the imperial palace at Pavia as the prototype of the papal palace and its organization from the tenth century onwards.
3. See J. 3947, of December 1005, and R. L. Poole, Lectures on the papal chancery, Cambridge, 1917, p. 59; idem, "Imperial influences on papal documents" in Proc. Brit. Acad., viii ( 1917), pp. 244, 248; K. Jordan, "Verwaltung," p. 112.
4. Cf. R. L. Poole, op. cit. and loc. cit. See also A. Dumas, op. cit., p. 164: "Brusquement en 1005, pour mieux assurer l'unité de direction, le pape Jean XVIII inaugura un nouveau système. Il mit ses scribes sous l'autorité dun chef specialisé, qui reçut le titre de chancelier."
5. R. L. Poole, op. cit., p. 62; K. Jordan, "Verwaltung," p. 112. Under Benedict VIII the new title is "scriniarius et notarius sacri nostri palatii sanctaeque nostrae Romanae ecclesiae," Jordan, loc. cit., note 9.
6. See K. Jordan, art. cit., p. 113; Poole, op. cit., p. 63.
7. The separation of the scrinium from the palatium (the residence of the Popes) is not directly concerned with the papal chancery, as P. Kehr once thought, see
was that the connexions between papal administration and city administration became more and more tenuous. 1 Moreover, the old curial script 2 which was a corruption of the old Roman cursive and somewhat akin to the Beneventan script, was replaced by the non-Roman minuscule "which acquired in the Papal chancery a delicacy and refinement unmatched elsewhere." 3 This replacement was in fact a necessity since the old curial script -- the Littera Romana -- was illegible to those outside Rome; the effective exercise of governmental functions made a change imperative. 4
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his "Scrinium und Palatium: ein Beitrag zur Geschichte des päpstlichen Kanzleiwesens" in MIOG., suppl. vol. vi, pp. 70 ff., especially pp. 73 - 4 ; cf. also R. L. Poole, op. cit., p. 14 and 64-5, but see now R. Elze, art. cit., p. 39; idem, "Die päpstliche Kapelle" in Sav. Z., kan. Abt., xxxvii ( 1950), p. 157, note 72, and P. E. Schramm in Göttinger Gel. Ant., 1953, p. 117. It should be pointed out that the chancery as an independent organ -- the cancellaria -- probably did not come into being before Innocent III, see H. W. Klewitz, "Cancellaria" in Deutsches Archiv, i ( 1937), p. 78, and the references to "cancellaria" in the Epp. Cantuarienses and in the Liber censuum, quoted by R. Elze, in the last mentioned article, p. 175, note 173. The term "cancellaria nostra" is used by Lucius III, see Lib. Extra, I. iii. 10.
1. See Kehr, loc. cit.
2. It was called the "scripta notaria," Wattenbach, Anleitung zur lateinischen Paleographie, Leipzig, 4th ed., 1886, p. 2.
3. R. L. Poole, op. cit., p. 58. This became the Curia! minuscule, see H. Bresslau, op. cit., ii/2, p. 533, or half-curial: C. Paoli, Grundriss zu Vorlesungen über lateinische Paleographie, transl. K. Lohmeyer, Innsbruck, 1902, p. 297 (this section is omitted in the new edition of C. Paoli's Diplomatica, by G. C. Bascapè, Florence, 1942). Cf. also H. Foerster, Abriss der lateinischen Paleographie, Bern, 1949, pp. 146-7.
4. Cf. the example of Archbishop Ralph of Tours, quoted by A. Lowe, "Handwriting" in The Legacy of the Middle Ages, Oxford, repr. 1948, p. 220. The first occasion on which the minuscule appears on a papal document, though in the dating line only, was in a privilege of John XIII, of 15 April 967 (J. 3714): R. L. Poole, art. cit., p. 245, note 2. This is also the first document of the Papal Chancery written on parchment (instead of on papyrus), see H. Schmidinger, "Die Palliumverleihung Benedict VIII für Ragusa" in Festschrift f. Leo Santifaller, 1950, p. 32, and supra 263. It was from the late tenth century onwards that the unRoman minuscule at first juxtaposed to the Littera Romana, gradually ousted the latter altogether, see R. L. Poole, art. cit., p. 245, H. Schmidinger, art. cit., pp. 32-3, with many examples of the co-existence of the two scripts. Two other effects of imperial influences should be noted: under Leo IX the Rota appears: the cross is separated from the Bone Valete, placed in the left hand corner under the scriptum line and surrounded by two circles with an appropriate motto written between them; under the same Pope the monogramme appears as a derivative of the Bene Valete: it is placed in the right hand corner and shaped in rectangular form. "The monogramme is unquestionably derived from that which reproduced the emperor's name in his diplomas . . . ( Leo) took the whole idea from the imperial diploma," Poole, art. Cit., p. 247. See furthermore, C. Paoli, Diplomatica, ed. cit., 1942, p. 148. For the history of the Rota and its possible prototypes (coins), see H. Hartmann, "Arch. f. Urkundforsch", xvi ( 1939), pp. 388-410. For the gratia formula see infra p. 332 n. 1.
As a department and office of the palatium from which emanated the laws governing the societas christiana, the papal chancery had to issue documents which reflected the great care which was taken in their composition; hence the great value attached to the cursus or prose rhythm of papal documents. To have drawn attention to this important point was the merit of John of Gaeta, the chancellor under Urban II, the later Gelasius II. 1 It is however more than doubtful whether the Liber Diurnus came to be "replaced" as a consequence of John's chancellorship. 2 But no doubt is permissible about the dating of Papal documents. Whilst previously the chancery conservatively followed the traditional pattern of dating Papal documents according to imperial years, this practice ceases altogether under Leo IX. Hence forward Papal documents are dated exclusively according to the pontifical years. Papal documents can no longer take imperial years as the measure of time and date: in the societas christiana the regnal years of the papal monarch alone count. 3
For understandable reasons the financial side of the curia begins to assume an importance proportionate to the exercise of the universale regimen over the Christian world. 4 The chamberlain, or camerarius,
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1. See the entry in the Lib. Pont., ii. 311, lines 26 ff.: "Tunc papa (Urbanus) . . . fratrem Johannem . . . ordinavit, admovit suumque cancellarium, ex intima deliberatione constituit, ut per eloquentiam sibi a Domino traditam antiqui leporis et elegantiae stilum, in sede apostolica jam pene omnem deperditam . . . ac leoninum cursum lucida velocitate reduceret." Cf. also R. L. Poole, op. cit., pp. 74-5, 84-4, and the cursus itself, ibid., ch. iv, with numerous examples of various kinds of a cursus ("velox," "tardus," "planus").
2. So the general opinion, cf. Poole, op. cit., p. 84. But L. Santifaller has cast serious doubt on the validity of this view, cf. his "Die Verwendung des LD in den Pivilegien der Päpste" in MIOG., xlix ( 1936), pp. 225-366; idem, "Neue Forschungen zur älteren Papstdiplomatik" in Hist. Z., clxi ( 1940), pp. 532-8; idem, in Th. Sickel, Römische Erinnerungen, Vienna, 1947, pp. 174-80 (here also an outline of the problems which still need examination); idem, Beschreibstoffe im Mittelalter (MIOG., suppl. vol. xvi/1), 1953, pp. 93-4 ("niemals im praktischen Gebrauch der Papstkanzlei gestanden"). See furthermore C. L. Mohlberg, "Neue Erörterungen zum LD" in Theolog. Revue., xxxviii ( 1939), pp. 297 ff.; R. Ritzler, "Intorno al LD" in Misc. Franciscana, xlii ( 1942), pp. 77-82. But see especially W. Peitz against Santifaller, Liber Diurnus: Methodisches tur Diurnusforschung (Misc. Hist. Pont., ii. 1940).
3. R. L. Poole, art. cit., p. 242, and A. Menzer in Römische Quartaischrift, xl ( 1932), pp. 75 ff.
4. It is well known that Gregory VII attached great value to an orderly financial administration, but it seems an exaggeration to say that money alone played a decisive part in his "policy," cf. J. Haller, Papsttum, ii/i, p. 346; cf. also C. Erdmann, op. cit., pp. 142-4: church money used for military purposes. About the alleged Jewish origin of Gregory see G. Picotti, "Della supposta parentela ebraica di Gregorio VII" in Archivio storico Italiano, c ( 1942), pp. 3 ff. (denying
appears to have developed partly from the earlier papal chamberlains, and partly from the cubicularii and vestararii. 1 By the time of Urban II the "camerarius domini papae" becomes the curia! officer responsible for the administration of Papal finances, whilst under Urban's successor, Paschal II, a new financial official in the person of the "camerarius curiae Romanae" makes his appearance. 2 The "camera apostolica" as the financial department of the palatium comes into being 3 and seems to take the place of the ancient "vice-dominium." 4
Of the other officials constituting the curia in the widest sense we can but mention in passing the "vice-dominus" whose office seems to have been absorbed by that of the archdeacon 5 who in the case of a Papal vacancy, functioned as the "vicarius" together with the arch-presbyter and the "primicerius," before the college of cardinals assumed this role. 6 Urban II, probably on the model of the French court, introduced the "dapifer" or lord high steward, and later in the twelfth century we witness the Papal cup bearer -- "pincerna domini papae" -as well as the marshals of the Papal court, as palatine officers. 7
Lastly, mention must be made of a "department" which, though
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it); and R. Morghen, "Questioni Gregoriani" in Archivio della R. societa di storia patria, lxv ( 1942), pp. 1 ff., and ibid., lxix ( 1946), pp. 119-30. See also G. Marchetti-Longhi, "Richerche sulla famiglia di Gregorio VII" in Studi Gregoriani, ii. 287 ff., 312 ff., who refers (p. 313 ) to William of Malmesbury's characterization of Gregory as coming from "despicabilis parentela." The argument centres in the problem whether there was only one family of the Pierleone or two. But cf. also O. Lehmann-Brockhaus, Schriftquellen zur Kunstgeschichte des 11 und 12. Jahrhunderts, Berlin, 1938, i. 720, no. 3035, who refers to the report of the Saxon Annalist according to which Gregory's father was a carpenter. Cf. also Annales Palidenses, MGH. SS. xvi. 69, lines 9-10.
1. See E. Eichmann, "Die Krönungsservitien etc". in Sav. Z., kan. Abt., xxix ( 1939), pp. 10 ff.; Kaiserkrönung, ii. 249 f., 259 ff.; but cf. K. Jordan, "Zur päpstlichen Finanzverwaltung" in Quellen und Forschungen aus italien. Archiven, xxv ( 1934), pp. 91 ff.; idem, in Studi Gregoriani, i. 128 (origins in Cluny?), and R. Elze, art. cit., p. 194, at note 314.
2. See K. Jordan, loc. cit.
3. Schramm, Studi Gregoriani, ii. 439.
4. E. Eichmann, op. cit., ii. 249-50. The development of the system of papal taxation does not belong to this period. But as every body politic must have properly organized revenues, so also were taxes prescribed by the government of the societas christiana: "church taxes" fell on both clerics and laymen, but, for understandable reasons, the former were exempted from provincial laical taxes.
5. See K. Jordan, in Studi Gregoriani, i. 120.
6. About this see G. B. Borino, "L'arcidiaconato di Ildebrando" in Studi Gregoriani, iii. 463-5 16; see also R. Elze, ibid., iv. 41.
7. Schramm, loc. cit., p. 440. Cf. also Boso's "Vita Hadriani IV" where he also speaks of the "pincerna domni papae" in Watterich, Pontificum Romanorum Vitae, ii. 336.
borrowed from the royal courts, came in time to assume great importance. This is the Papal capella, whose members were the capellani or chaplains. The beginnings of this curial department can again be found in the second half of the eleventh century. But the Papal chaplains assumed functions different from their models in the royal courts, for they were subdeacons and "scriptores." First mentioned in their plurality by Urban II, 1 it seems however that a "capellanus" was found as early as 1026 in the Papal administration. 2 By the end of this century the importance of the capellani showed itself in the promotion of nine of them to the cardinalate. 3 Throughout the following century the administrative and constitutional importance of the capellani increased, so that by the time of Innocent III the capella of the Pope formed, so to speak, a reservoir on which the Pope could and did draw for specific tasks. 4
IV
Every royal or imperial court had its feudal vassals -- and so had the Papal Curia. 5 It is no doubt true that as time went on, the papal curia counted the greatest number of feudal vassals in medieval Europe. Nevertheless the harnessing of feudal principles to the hierocratic
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1. For all this see the study of R. Elze, "Die päpstliche Kapelle" in Sav. Z., kan. Abt., xxxviii ( 1950), pp. 145-204; idem, in Studi Gregoriani, iv. 46-7. It is the great merit of Elze to have drawn attention to the importance and development of the papal capella.
2. K. Jordan, Studi Gregoriani, i. 114, drew attention to this. For the threefold meaning of capella see H. W. Klewitz in Arch. f. Urkundenforsch., xvi ( 1939), p. 119, note 1.
3. See the entry in Lib. Pont., ii. 311 - 12.
4. Particularly connected with legations, liturgical reforms, chancery organization; judicial business in the curia came more and more into the hands of the capellani, so that when the Rota was established, it was entirely staffed by the capellani. Under Innocent III there were about fifty of them, who also belonged to the Pope's familia, see his Gesta, cap. cxlvi, and they were fed from the papal kitchens. Most of these capellani seem to have come from Bologna. For all details concerning them see R. Elze, art. cit. For the Rota Romana and its further development, see N. del Re, La Curia Romana, Rome, 1952, pp. 217-19. And for the development of all curial officers in the thirteenth century including the papal tribunals and welfare offices (papal alms house, hospital, etc.) see the excellent work of B. Rusch, Die Behörden und Hofbeamten der päpstlichen Kurie des 13. Jahrhunderts, Königsberg, 1936. Reviewing the process of imitation by the curia, G. Le Bras, "Le droit romain au service de la domination pontificale" in Rev. hist. de droit français et étranger, xxvii ( 1949), pp. 377-98, says (p. 393): "Pouvoirs, services, offices: le Saint-Siège imite toute la structure de l'empire (romain). Au terme de cette longue accomodation, la papauté domine non seulement l'église mais le siècle. Elle a soumis tous les, fidèes, tous les princes et finalement tom les hommes".
5. P. E. Schramm, in Studi Gregoriani, ii. 404.
theme, it seems to us, was merely one more symptom of its implementation, a feature that has caused considerable misunderstanding and many oblique judgments on the working and the government of the medieval Papacy. This feature which becomes very pronounced from the mideleventh century onwards, can be explained, however, only by contemporary criteria, principles and views. It is admitted on all sides, firstly, that a most personal relationship exists between lord and vassal; secondly, that the feudal lord affords a protection to the vassal which forms the essence of the feudal contract; and thirdly that a feudal nexus provided the contemporary means in public law to obtain specific services.
If we keep these principles in mind, it will be easier to understand the entry of feudal principles into the Roman curia. To begin with, the very idea of the Pope -- or, if we wish to be painstakingly correct, St Peter -- becoming a feudal lord, strikingly illustrates his function as a monarch: for it was precisely the feature of a powerful monarch to give protection to the weaker. Hence, by assuming this very same character the Pope, through admitting a ruler into the "patrocinium beati Petri," as plainly and palpably as it was possible by contemporary means, demonstrates himself as a protector in the same sense in which the king or emperor had previously understood the term. 1 The assumption of feudal lordship therefore means that the Pope is in a position to give effective protection: the feudal lordship of the Pope must not, however, be thought of in terms identical to those relating to a king or emperor whose protection lay in a field different from that which could be provided by the Pope. The protection offered, accepted and given, by the Pope was that which flowed from his function as the supreme sacerdos regalis. The Vicariate of St Peter manifested itself in a feudal lordship of the Pope which, by contemporary standards, meant the personal protection of St Peter through the medium of the Pope. By accepting a ruler into the "patrocinium beati Petri" the authority of the Pope was by no means increased: what was achieved was that St. Peter through the Pope afforded special protection to a king who had become a feudal vassal of the Roman Church.
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1. It is also from Gregory's time onwards that the royal grace formula -- hitherto exclusively employed by kings and emperors in their documents (" si gratiam nostram habere vultis") -- makes its appearance in papal letters. Cf. his Reg. i. 66, p. 96 : "Sicut gratiam sancti Petri et nostram habere vultis"; Reg. iv. 4, p. 301 : "Sicut beati Petri apostoli nostrique . . . gratiam obtatis." For this see C. Erdmann, "Untersuchungen zu den Briefen Heinrichs IV" in Arch. f. Urkundenf., xvi ( 1939), pp. 196 ff., 198, note 5.
On the other hand, the entry of a king or prince into this feudal nexus presupposes that the Pope was in fact held to be an effective protector, for otherwise not a single enfeoffment carried out by the Papacy would be accessible to understanding. In order to enjoy St Peter's protection, the king or prince had to surrender his land into full papal ownership -- "jus et proprietatem beati Petri" -- and received it back as a fief, so that he became legally an usufructuary. In recognition of his usufrucr and of the Petrine protection the king or prince undertook to render certain services, be they in the form of an annual money payment -- census or tribute 1 -- or in the form of military duties. We hold therefore that the feudalism as practised by the Papacy brings into clearest possible relief the function of the sacerdos regalis who is now held to be strong enough to protect. The wheel has come full circle.
The motives for seeking the papal monarch's protection were varied. In general, it was the weak rulers who sought protection from a stronger one, in this case from the Pope. The legitimization of an illegitimate rulership was one such motive, as is evidenced in the case of the Normans. 2 A disputed succession to the throne prompted the occupant of the throne to seek papal protection, as is evidenced in the cases of Croatia and Dalmatia 3 and Russia, 4 to mention only the obvious instances of our period. In other cases the Pope himself could suggest to the king to enter into the "patrocinium beati Petri"; this suggestion was made when the country itself was considered to belong by right
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1. On the terminology, whether census or tribute, cf. W. E. Lunt, Papal revenues, New York, 1934, i. 63, and idem, Financial relations of the Papacy with England, New York, 1939, i. 130.
2. This is also admitted by A. Fliche, La réforme Grégorienne et la reconquête chrétienne, Paris, 1947, p. 115; cf. also Lunt, Financial relations, i. 131. The obvious example of the following century is Portugal, see K. Jordan, "Das Eindringen des Lehenswesen in das Rechtsleben der römischen Kurie" in Archiv f. Urkundenforschung, xii ( 1932), pp. 72, 89. Innocent III in accepting the Portuguese king as a feudal vassal writes to him: "Personam tuam et regnum Portugalense . . . sub b. Petri et nostra protectione suscipimus et praesentis scripti pagina communimus," Reg. i. 441.
3. In 1076. The oath of King Zvonimir is printed in Deusdedit's Coll. can., iii. 278, ed. cit., p. 383, and in Liber Censuum, ed. P. Fabre and L. Duchesne, i. 356, no. lxxii. The king was invested with his kingdom by the papal legate "per ensem, vexillum, sceptrum et coronam."
4. Gregory VII, Reg. ii. 74, p. 236, to the Russian king, Isjaslaw: ". . . asseverans (filius vester: Iaropolk) illam suam petitionem vestro consensu ratam fore ac stabilem, si apostolicae auctoritatis gratia ac munimine donaretur." This feudal passage is now quoted at length by Pius XII in his letter to the Russian peoples of 7 July 1952, see Acta Ap. Sedis, xliv ( 1952), pp. 506-7
to the Roman Church, such as the islands on the basis of the Donation of Constantine. 1 This approach is made by Gregory to Spain, 2 Besalù, 3 Provence, 4 Poland, 5 Brittany, 6 and probably also England. In close proximity stand the intimations of the Pope in those cases in which certain promises had been made by a king and which the Pope interpreted in the sense in which he wished them to be interpreted, as, for instance, in the case of Denmark. 7 As regards Hungary, Gregory based himself, rightly or wrongly, on the fact that the country had been "olim beato Petro cure omni jure et potestate sua oblatum et devote traditum." 8
The important point in all these cases is that the protection of the Pope was an effluence of the strength of his position: the feudal lordship of the Pope was nothing less than the transmutation of his vicariate into a contemporary mould and frame, into that of a feudal lord protector. Considering the multitude of feudal vassals which the Papacy counted, it is clear that the Pope was in theory at least the strongest European feudal monarch. This arrangement gave the Pope the possibility of obtaining troops 9 or regular money payments: the feodum censuale must be clearly distinguished from Peterspence. 10 The afford-
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1. On this thesis see L. Weckmann, Las Bullas Alexandrinas, Mexico, 1949, pp. 25 ff., 69 ff., 156ff. See also supra p. 80. The oath of Robert Guiscard should also be considered in this context. Sicily had not yet been conquered in 1059, but Robert's oath included the island. Sardinia and Corsica were the other two islands of immediate concern whose property was deduced from the Donation of Constantine.
2. Gregory's Reg. iv. 28, pp. 345-6 to the Spanish princes: "Notum vobis fieri volumus, quod nobis quidem tacere non est liberum . . . videlicet regnum Hyspaniae, ex antiquis constitutionibus beato Petro et sanctae Romanae ecclesiae in jus et propietatem esse traditum." Cf. also Reg. i. 7. The obvious basis (the Donation of Constantine) is denied by L. de la Calzado, "La proyeccion del pensimiento del Gregorio VII" in Studi Gregoriani, iii. 41-2, who would prefer to take the general hierarchical tendencies of Gregory as a firmer basis.
3. K. Jordan, art. cit., p. 78.
4. Idem, ibid., p. 78.
5. On the basis of the donation of Miseko ( Meiscko I), the first Christian ruler of Poland, see E. Maschke, Der Peterspfennig in Polen und dem deutschen Osten, Koenigsberg, 1933, pp. 20 ff. and 304 ff. About this see also Weckmann, op. cit., pp. 148-50.
6. Cf. B. A. Pocquet du Hout-Jusse, "La Bretagne a-t-elle été vassalle du saintsiège?" in Studi Gregoriani, i. 189-96.
7. Reg. ii. 75.
8. Reg. ii. 13.
9. Cf. the observation of C. Erdmann, Kreuzzugsgedanke, p. 206: "Die Lehenshoheit über weltliche Fürsten sollte unter anderem dazu dienen, ein päpstliches Heer zustande zu bringen. Es ist keine Uebertreibung: Gregor VII strebte darnach, das Papsttum zu einer Militärmacht zu machen . . . alle denkbaren Wege zur Erreichung dieses Zieles hat er versucht."
10. Nevertheless we should note that later the Liber Censuum maintained that those
ing of St Peter's protection by the Pope was naturally a highly welcome means of increasing his power. Yet, the exercise of papal authority did by no means depend upon any sort of feudalism. The cases of Henry IV and of Philip I, to mention only two clear instances, need no comment: neither was a feudal vassal. 1 The rulership of the societas christiana was not of course conditioned by the creation of a feudal nexus, whilst the authority and exercise of this rulership was the basis upon which papal feudalism could proceed, proceed to such an extent that by the end of the twelfth century the Roman curia was the most powerful feudal curia in Europe. 2
The effect of becoming a feudal vassal of the Pope was that the king and his country enjoyed the special protection of the Pope: king and country came into the "patrocinium beati Petri"; 3 that the country
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countries which paid the census, could be rightly considered "in jus et proprietatem. b. Petri et sanctae Romanae ecclesiae persistentes," see Lib. cens., ed. cit., i. p. 2, and editorial note 3. Cf. also P. Fabre, Étude sur le Liber censuum, Paris, 1892, pp. 129 ff., especially 146-7. The important countries paying the "denarius b. Petri" were: England, Denmark, Sweden, Norway, Orkney Islands, Hungary, Croatia and Dalmatia, Poland, and probably also some parts of Russia. On the origins and development of Peterspence in England see Fabre, op. cit., pp. 129 ff.; E. Maschke, op. cit., pp. 33-5, and the exhaustive treatment by W. E. Lunt, Financial relations, i. 3-129. Peterspence could also be conceived of as a ground rent. For details of sums, etc., see Liber censuum, i. 223 ff. ( England); 226 ( Wales); 230 ( Scotland); 232 ( Ireland). Cf. also the entry for Sweden, p. 229 : "Notandum quod singulae domus Suetiae singulos dant denarios monetae ipsius terrae." For further details, see the translated documents in Lunt, Papal revenues, ii. nos. 238-65.
1. Innocent III's exercise of jurisdiction over Philip Augustus in Novit ille was based entirely on the "ratio peccati."
2. In a far too sweeping manner St Thomas Aquinas states: "Reges sunt ergo vassales ecclesiae," Quodlib. XII, qu. xiii, a. 19, ad sec. Only when the term "vassal" is used in an untechnical sense, Thomas's statement is correct.
3. Reg. ii. 75, p. 238, to the Danish king, Sven II: ". . . nobile patrocinium eius (Petri) acquireres."Reg. ix. 17, p. 597, to Robert Guiscard: "Quapropter b. Petrum, cuius tibi adesse patrocinium grandia facta testantur, prae oculis habere semper memineris." Innocent III's enfeoffment of Peter of Aragon offers a good example: "Ego Petrus . . . cupiens principaliter, post Deum, b. Petri et apostolicae sedis protectione muniri . . . spero et confido, quod tu et successores tui, me ac successores meos et regnum praedictum auctoritate apostolica defendetis,"Reg. vii. 229 (= Gesta, cap. cxxi). Of course, papal protection without a feudal nexus was still possible. A simple priest could be taken into protection, e.g. Alexander III, Ep. 549; or a dean of a chapter, Innocent III (Reg. ii. 67, dean of Toledo; Reg. iii. 21, dean of Magdeburg); or a count (idem, Reg. ii. 297, Count of Montpellier); or a queen, by Gregory IX (Queen of Bohemia, Constance, MGH. Epp. sel. XIII s., i. 351, no. 436: "Personam tuam cum omnibus bonis . . . sub protectione suscipimus apostolicae sedis et nostra specialiter") or a landgrave (idem, ibid., no. 557, p. 451 ). The protection enjoyed by the crusaders was merely a specific application of affording papal protection without feudal nexus;
could not be legitimately offered to some other ruler; 1 that any injury inflicted upon the king or the country was considered to be an injury inflicted upon the Roman Church itself; 2 that this feudal arrangement was to redound to the "glory and honour 'utriusque vitae' of the vassal "himself." 3
It would be quite misleading to think that all this was the result of a sudden inspiration. On the contrary, this process was in some ways only a specific extension of the principles which had been followed in the monastic sphere, namely the institution of the so-called papal proprietary monasteries. 4 They had come under papal protection and tutelage -- "tuitio," "protectio," "libertas," "tutela" are the technical terms in the papal privileges which take monasteries into the "patrocinium beati Petri." 5 By virtue of having been given "in proprium beati Petri" these monasteries were papal monasteries; on the other hand, they came "sub patrocinio et defensione sanctae Romanae ecclesiae." 6 "La donation est le moyen, la protection le but." 7 It was St Peter who protected the monastery. And this privileged position of the monastery was epitomized in the pregnant formula of Hildebrandine coinage that the monastery enjoyed the Libertas Romana. 8
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having taken the cross, they enjoyed the Libertas Romana. The main privileges which a crusader enjoyed were: automatic excommunication of those who attacked person or property of the crusader; plenary indulgence; exemption from ordinary tribunals and from paying certain taxes; immunity from prosecutions arising out of debts contracted before the crusade, and so forth. The crusader became, so to speak, a member of the Pope's familia.
1. This becomes clear in the case of Hungary, Reg. ii. 63, p. 218. In France a vassal could be a vassal of several lords from the late ninth century onwards, see F. L. Ganshof, "Depuis quand a-t-on pu, en France, être vassal de plusieurs seigneurs?" in Mélanges Fournier, Paris, 1929, pp. 261. ff.
2. Cf. e.g., Gregory's letter to the knight Wezelin, Reg. vii. 4, p. 363 : "Quicquid in illum (regem) ausus fueris, procul dubio te in apostolicam sedem facturum."
3. E.g., Reg. ii. 63, p. 219, line 3; Reg. ii. 75, p. 238, line 19; etc.
4. For this institution see P. Fabre, op. cit., pp. 27 ff.; G. Schreiber, Kurie und Kloster, Stuttgart, 1910, ii. 6 ff.; H. Leclercq, in DAC. vii. 338 ff.; D. Knowles, Monastic Order, pp. 570 ff.; H. Hirsch, "Untersuchungen zur Geschichten des päpsdichen Schutzes" in MIOG. liv ( 1942), pp. 392 ff.; A. Amann in Amann and A. Dumas, op. cit., pp. 343 ff.
5. See now especially W. Szaivert, "Die Entstehung und Entwicklung der Klosterimmunität" in MIOG, lix ( 1951), pp. 286 ff.; and the numerous examples cited by P. Fabre, op. cit., pp. 37-68; also Amann and Dumas, op. cit., pp. 347 ff.
6. So in J. 3777 of Benedict VII, April 974; cf. W. Szaivert, art. cit., p. 288, note 148; also the foundation charter ( 979) of St Peter Besalù: "Tradimus . . . ut sub eius (beati Petri) defensione atque munimine consistat ad perpetuum," Fabre, op. cit., p. 63; cf. also Leo IX taking a monastery upon request "sub nostri regiminis tuitione" and "sub nostra defensione," Ep. xcix, PL. cxliii. 744.
7. Fabre, op. cit., p. 44.
8. See Fabre, op. cit., pp. 71 ff., 76 ff.
The enfeoffments carried out by the Papacy, in a modified form expand this principle appertaining to the monasteries. Instead of the monastery entering the "patrocinium beati Petri," it is now the king or prince and his country that assume this relationship. The ruler personally enters into this close relationship with the Pope and as a consequence he and his country are protected by St Peter. 1 "The form in which protection of St Peterwas promised to a monastery, namely the solemn privilegium was kept: the Pope issued to the feudal vassal personally also a privilegium of protection (Schut?rivileg). The actual manner of making the king or the prince a feudal vassal of the Roman Church naturally followed the established pattern of investing him "er vexillum" and so forth, whilst on the other hand, he had to swear fealty to the Pope, in return for which he enjoys St Peter's protection. 2
These considerations will enable us to understand why the oath of the bishops 3 can on no account be taken as a feudal oath, although this has in fact been maintained. But the bishop never became a vassal of the Pope; he never entered into the "patrocinium beati Petri"; he was never invested with anything. 4 His oath was nothing but an oath of obedience, stringent indeed, but by no means a feudal oath. For one of the constituent elements of the twosided feudal contract was absent: the special protection by the Pope. Indeed the bishop swore to defend the Roman Papacy and St Peter's regalia -- "papatum Romanum et regalia sancti Petri adjutor ero ad tenendum et defendendum salvo meo ordine" 5 -- but this reflects his function as a direct subordinate of the Pope.
These considerations will also enable us to understand the difference
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1. What has been said about the effects of papal protection in the sphere of monasteries, can mut. mut. be applied to the effects of protection in the sphere of feudal vassals: P. Fabre, op. cit., p. 73:"Le but de la protection apostolique est d'assurer l'integrité de l'objet sur lequel elle s'exerce. Aussi tous les priviléges donnas aux censiers de l'apôtre garantissent contre les convoitises l'objet protégé. Deux sortes de dangers sont à craindre pour l'ôtre organisé les atteintes du monde exérieur et la diminution de l'énergie vitale. Les monastéres protégés par l'apôtre sont assurts contre ce double péril.
2. Robert Guiscard's oath is in Liber censuum, i. 422, no. clxiii, which formed the model for later feudal oaths, including that of John.
3. Cf. Gregory's Reg. vi. 17a, p. 428 - 9.
4. The same applies to the oath of the Roman senator, see OR. XII (PL. lxxviii. 1100), cap. 86. This oath is directly modelled on the episcopal oath, as also is that taken by the later vice-chancellor, notaries, correctors, auditors, secretaries, etc., see Tangl, KanU+1F0lBAeiordnungen, "Juramenta" nos. I, III, IV, X, XIII, pp. 33, 35, 36, 45, 47.
5. Cf. again the senator's oath and that of the chancery personnel; cf. also the modern episcopal oath, in Pont. Roman., ed. 1891, pp. 38 - 9.
between the position of the emperor and that of the king who had become a Papal vassal. Again, the same constitutive element is missing: the emperor does not enter into the "patrocinium beati Petri." 1 The emperor never sought the special protection of the Pope; what he did seek was the imperial crown from the hands of the Pope. What distinguished the emperor from any other king, be he feudal vassal of the Pope or no, was that he was created a "specialis" or "unicus filius" of the Roman Church, whose duty it was to obey the orders of his father, the Pope. 2 Episcopal oath and imperial oath show much more kinship with each other than does either with the feudal oath. 3 The emperor, in other words, is the king specially selected -- "designated" we recall John VIII and may now add Paschal II 4 -- for the protection of the Roman Church and hence of the whole of Christendom. The emperor alone stands in a unique relationship to the Pope, for he is made -- and sometimes also unmade -- by the Pope.
Nos igitur imperatoriae dignitatis plenitudinem tibi concedimus. 5
There is no imperial crown without the emperor's special sonship of, and filial nexus to, the Pope. 6 The difference between the emperor and the king who is a vassal of the Roman curia, is obvious.
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1. The oath suggested by Gregory VII for Hermann of Salm ( Reg. ix. 3, p. 576) cannot be adduced, since this text appears to be suspect. Book ix of the Register does not seem to be free from doubt,cf. A. Fliche, La réforme Grégorienne, ii. 12, esp. 23: the texts "ressemblent singulièrement a des interpolations." It may be that the whole ninth book was inserted afterwards (between 1081 and 1083), see E. Caspar, "Studien zum Register Gregors VII" in Neues Archiv, xxxviii, 1913, pp. 190, 202.; cf. also W. Peitz, in SB. Vienna, 1911, fasc. 5, p. 48, who does not maintain that there were the usual signs of original registration in the ninth book. See now also L. Santifaller, Beschreibstoffe im Mittelalter, 1953, p. 7100.
2. See also supra p.257 f.
3. Cf. in the late twelfth century Huguccio: "Nam et qui accipiunt pallium a domino papa, juramentum praestant. Dicimus etiam episcopi et archiepiscopi et imperator jurant fidelitatem papae," ad Dist. xxiii, c. 6, MS. Pembroke College, Cambridge, No. 72, fol. 133 va.
4. In the Relatio Registri Paschalis II we read that Henry V "a pontifice imperator designatus est", MGH. Const. i. 147, no. 99, lines 40-1. Concerning the (abortive) coronation of Henry V on 12 February 1111, the "Vita Paschalis II" by Cardinal Peter of Pisa relates: "Proceres, judices, advocati . . . venerunt . . . atque dicentes: 'Henricum regem sanctus Petrus elegit,'" Watterich, Vitae, ii. 8. It is all in the fashion of John VIII. In the following century there is the example of nominating the king of the Romans, Rudolf of Habsburg: "Te regem Romanorum nominamus": MGH. Const. iii, no. 66, p. 55 ( Gregory X). About Innocent III see infra p. 343 n. 2.
5. Innocent II to Lothar: MGH. Const. i. 168, no. 116.
6. See Innocent II again., ibid, no. 117, p. 169 ( Lothar as the "specialissimus ecclesiae defensor") and no. 116, p. 68 : "Te christianissimum principem et
The emperor takes a "juramentum subditi," an oath which characterizes the subordinate position of the subject to his superior: he takes an Untertaneneid which creates a "vinculum subjectionis." 1 The king who has become a vassal of the Pope, takes a "juramentum fidelitatis," an oath of fealty. 2 On the basis of the emperor's oath the claim can be raised that he is the "officialis papae" and that he has to draw his sword "ad nutum Pontificis Romani." 3
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inter speciales beati Petri filios unicum ac praecipuum defensorem ad imperii fastigium . . . sublimavimus."
1. We cannot agree with M. David, Le serment du sacre, Strasbourg, 1950) p. 232, who repeats the old theme in cautious terms when he says: "L'empereur jure fidelitatem au pape. Par là ce dernier cherche probablement i accréditer l'idée d'une dépendance féodale de l'empereur à son égard et une telle prétension provoquera bien des remous un peu plus tard." The origin of the "oath of allegiance" (as it may somewhat incorrectly be called) was Roman-imperial, see Th. Mommsen, Römisehes Staatsrecht, ii/2, pp. 792-3; it was developed from the oath taken to the princeps as the supreme military commander, and in imperial times "senatus milesque et populus" swear this oath, see the passage of Tacitus, quoted by Mommsen: all officials, all citizens, and all subjects take it. Cf. also A. Alföldi in Mitt. d. deutschen archaeolog. Inst., Rom. Abt., 1935, p. 78. For the development in Frankish and post-Frankish times see R. Schröder, "Lehrbuch der deutschen Rechtsgeschichte", pp. 109, 481. About the differences between this oath and the oath of fidelity see H. Brunner, "Deutsche Rechtsgeschichte", ii. 58 f.; cf. also H. Planitz, "Deutsche Rechtsgeschichte", pp. 44 f., and P. E. Schramm, Hist. of the Engl. Coronation, pp. 183-4. The "crimen laesae majestatis" was the violation of this oath, see Schröder, op. cit., p. 117, note 65 and G. Waitz, Deutsche Verfassungsgeschichte, iii. 307 f.
2. The distinction between the two kinds of oaths is in the Libri Feudorum, ii. 5, and the gloss on this chapter; cf. also cap. 7 with the details of the feudal oath. For the need to distinguish between these two kinds of oaths, see especially the late F. Lot, "Le serment de fidét a l'époque franque" in Revue beige de philogie et d'histoire, xii ( 1933), pp. 569-82 ("serment de fidélité du vassal" and "serment d'alltgeance du sujet"); F. L. Ganshof, "Benefice and vassalage" in Cambridge Historical Journal, vi. ( 1939), p. 171, note 113; also C. E. Odegaard, "Carolingian oaths of fidelity" in Speculum, xvi ( 1941), pp. 294 ff., especially pp. 292-6.
3. Cf. St Bernard infra 431; Hostiensis, Summa aurea, ad I. vi. 34; Eichmann, Kaiserkrönung, ii. 178-9; Medieval Papalism, p. 140. None saw the need to eliminate a possible ambiguity clearer than Innocent III. In his coronation Ordo D (ed. Eichmann, i. 259 ) he excised the formula of the oath as used in Ordo C ("Juro . . . fidelitatern tuisque successoribus . . .") and substituted this: "Ego enim N., Rex Romanorum, annuente domino futurus imperator, promitto, spondeo polliceor atque juro Deo et b. Petro, me de cetero protectorern et defensorem fore summi pontificis et S.R.E. in omnibus necessitatibus et utilitatibus suis . . . secundurn scire et posse meum, recta et pura fide." But the oath of Peter of Aragon, a real feudal oath taken to Innocent III, runs: "Ego, Petrus rex Aragonum, profiteor et polliceor, quod semper ero fidelis et obediens domino meo papae Innocentio. . . ."Reg. vii. 229, PL. ccxv. 550 (= Gesta, c. cxx). John's oath as a vassal omits "obediens," see Reg. xvi. 77 (PL. ccxvi. 880). Only once Innocent III used the term "investire" in connexion with imperial affairs: RNI. 29. But here the term has not the technical feudal meaning. And in RNI. 62
It is indubitably true that feudal language and Roman-Papal language are exasperatingly identical. This linguistic phenomenon has been the cause of a good deal of confusion and exacerbation in medieval and modern times. The terms "fidelis," "fides," "fidelitas" and so forth may have a thorough feudal meaning, but they may also bear a Romanpapal meaning. The bishop, the emperor, the anti-Pope, 1 the Romans 2 and the feudal vassal of the Pope -- they all swear and make promises in terms hardly distinguishable from each other. And Popes and emperors address their encyclicals "omnibus Christi fidelibus." In the one sense "fidelitas" means faithfulness, 3 in the other it denotes fealty. Other such terms are "defensor," "miles," "servitium," "beneficium." The latter term particularly is susceptible to most contradictory interpretations. Beneficium may be a Roman term, in which sense Gelasius I had used it; but it may also be a feudal term. This identity of language and divergence of meaning of daily occurring and important terms accounts for much misunderstanding and resultant ill-feeling. The alleged "demand" of Gregory VII for fealty to the Conqueror appears to have had all the makings of such misunderstanding on the part of the latter, who may well have misinterpreted Gregory's (Roman) terminology. But no definite conclusion can be advanced in this case, because the actual words used by the Pope are of crucial importance, and Gregory's letter is lost. 4 But we have the classic example in the following century when the misreading and misunderstanding had serious repercussions. Even at the risk of a digression a few observations are called for.
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which is so largely based on RNI. 29, the term is dropped altogether. He refers the "juramentum fidelitatis" to vassals only, Reg. iii. 29. A comparison between the two kinds of oaths will be found in his Reg. i. 577 and 578 (the oath of the city prefect and the oath of Count Hildebrand). The same clear distinction is to be found in Innocent IV's deposition of Frederick II. In the manifesto after the deposition Innocent declares that Frederick "nobis fidefitatis et subjectionis vinculo sese astringit"( E. Winkelmann, Acta imperil inedita, ii. 699, no. 1035). In the bull itself the Pope refers Frederick's "juramentum fidelitatis" explicitly to Sicily only (MGH. Const. ii. 510, no, 400 = Epp. sel. XIII s., ii. 124, p. 90 ) whilst as an emperor "juravit honores, jura et possessiones Romanae ecclesiae pro posse suo servare ac protegere bona fide."
1. Cf. Silvester IV's renunciation, MGH. Const. i. 147, no. 98: "Promitto fidem et obedientiam Deo digno et catholico papae Paschali."
2. See Sacramentum Romanorum, MGH. Capit., i. 324:"Promitto ego . . . in futurum fidelis ero dominis nostris . . ."
3. In this sense the modern canon law speaks of the oath which the bishops have to take: "jusjurandum fidelitatis," see CIC. can. 332 §
4. Only the Conqueror's reply is extant, see Lanfranc's Opera, ed. Giles, Ep. x, p. 32.
We refer to the incident at Besançon. Adrian IV used the term beneficium in its original Roman sense, and not in the feudal sense in which Frederick I had understood it. 1 Adrian's explanatory letter retracts not one syllable from the first letter: he had conferred -"contulimus" -- the distinction of imperial dignity 2 as a "bonum facturn." 3 It is a beneficium which the Pope confers when making the king an emperor. There is no duty upon the Pope to confer imperial dignity -- and the emperor has no right to it. 4 That is the meaning of bonum factum (= beneficium): nobody has a right to expect a good deed. "We have placed the crown upon your head, so that it may be judged a good deed by everyone." This "good deed" is a beneficium
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1. The situation was aggravated by the imperial curia recollecting the picture in the Lateran palace which showed Lothar doing liege homage to Innocent II and which had this caption:"Rex venit ante fores, jurans prius Urbis honores, post homo fit papae sumit quo dante coronam", Rahewin, Gesta Friderici, ed. G. Waitz, p. 177, and also Gerhoh of Reichersberg, De quarts vigifia noctis, LdL. iii. 512. There can be no doubt about the mischievous ambiguity of picture and caption, but neither is proof that Lothar became a papal vassal in his function as an emperor: he was a papal vassal as regards the Mathildine estates with which he was enfeoffed by the Pope, MGH. Const. i. 169, no. 117. Cf. also Frederick's complaint in Const. i. 234, no. 167: "It began with a picture, from a picture it went on to a letter, from a letter it tries to go on to authority." The picture was destroyed some time in the fourteenth century, cf. the "reconstituted" engraving ( sixteenth century) in P. E. Schramm, Kaiserbilder, Table 129, text pp. 148-9 and 219-20.
2. MGH. Const. i. 235, no. 168 = Rahewin, Gesta, iii. 23, p. 196: ". . . nos . . . honorifice imperialis dignitatis insigne tuo capiti imposuimus ut bonurn facturn valeat ab omnibus judicari". It is not quite correct to head this letter "Litterae excusatoriae."
3. There is absolutely no warrant for saying that Roland, at Besançon, suggested that in all probability 'fief' was the meaning intended by the Pope in using the term beneficium," as Abbot Hicks maintains, "Adrian IV" in Downside Review, Ixiv ( 1946), p. 149 (here also other questionable statements). Rahewin, op. cit., p. 177, reporting the scene at Besançon says this: "His omnibus in unurn collatis, cure strepitus et turba inter optimates regni de tam insolita legatione magis ac magis invalesceret, quasi gladiurn igni adderet, dixisse ferunt unurn de legatis: 'A quo ergo habet, si a domino papa non habet imperium?' Ob hoc dictum eo processit iracundia, ut unus eorum . . . exerto gladio cervici illius mortern intentaret." From the traditional hierocratic point of view the legate's question was perfectly justifiable; the question itself reveals a certain naïve astonishment which, in the circumstances, is understandable.
4. Per hoc enim vocabulum 'contulimus' nil aliud intelligimus nisi quod superius dictum est 'imposuimus.'" Cf. the first letter, Const. i. 23, no. 164: Consider, Adrian says, "quam gratanter et quarn jocunde alio anno mater tua, sancta Romana ecclesia, te susceperit, quantarn tibi dignitatis plenitudinem contulerit et honoris, et qualiter imperialis insigne coronae libentissime conferens . . . si majors beneficia excellentia tua de manu nostra suscepisset . . . non immerito gauderemus." Cf. with this Innocent II's declaration, supra, p. 338.
divinely conferred, 1 conferred by God through the Pope. Adrian, far from sending a letter of appeasement in which an enraged emperor was to be pacified and in which terms were to be explained away, moves entirely within the framework of traditional ideology. 2 Gelasius had provided the pattern. He had said that the emperor had the "privilegia potestatis suac as a divine beneficiurna 3 and, we recall furthermore, Gelasius had seen the imperial Christian power as a beneficium divinely conferred by Christ. 4 In Adrian's communication the claim is implicit that he acts as "vicarius Christi" and that in this function he confers the beneficium of imperial power. What he pronounces here -- though still in somewhat veiled terms -- is his vicariate of Christ, his vicariate of the "mediator between God and man": imperial power, dignity and crown are conferred by Christ through him. And did not his predecessor and the pupil of St Bernard, Pope Eugenius III, designate himself as "vicarius Christi"? 5 As the vicar of Christ, the "true king and priest," the Pope consequently combines both royal and sacerdotal powers vicariously and in this function he confers imperial dignity as a beneficium in the Gelasian sense. 6
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1. See the explanation of Adrian: "Hoc enim nomen ex 'bono' et 'facto' est editurn et dicitur beneficium apud nos, non feudum, sed bonum facturn. In qua significatione in universo sacrae scripturae corpore invenitur, ubi ex beneficio Dei, non tamquam ex feudo, sed velut ex benedictione et bono facto gubernari dicimur et nutriri. Et tua quidern magnificentia liquido recognoscit, quod nos ita bene et honorifice imperialis dignitatis insigne tuo capiti imposuimus, ut bonum facturn valeat ab hominibus judicari". Cf. also ibid.: "Licet enim hoc nomen, quod est beneficium, apud quosdarn in alia significatione, quarn ex inpositione habeat, assumatur, tunc tamen in ea significatione accipiendurn fuerat, quam nos ipsi posuimus, et quam ex institutione sua noscitur retinere." Cf. already John VIII, supra, p. 222.
2. We would be inclined to think that the very similar conflict between Henry VII and Clement V about the emperor's "juramenturn fidelitatis" arose out of the same duplicity of meaning attributable to "fidelitas"; cf. Clem. II. xix. un.
3. Ep. i, cap. 10, Thiel, p. 293 : ""Habet privilegia potestatis suae quae administrandis publicis rebus divinitus consecutus est et eius beneficiis non ingratus . . . nil usurpet . . . ne contra illius beneficia pugnare videatur, a quo propriam consecutus est potestatem".
4. Cf. also Ep. 17, cap. 4, p. 353 : "Itane verum est, princeps egregie, qui non solurn praesentia Christi beneficia, sed desideras et futura. . . ."
5. See the curial officer's report in MGH. SS. xx. 543, and especially the realistic re-enactment of the Last Supper at Easter in which the Pope played the part of Christ, the cardinals that of the apostles and a curial official that of Judas, in OR. XI, cap. 48 (composed 1140-1 and repeated in OR. XII, cap. 35 (late twelfth century). For details see my contribution to Misc. Hist. Pont., 1954.
6. On Innocent III's vicariate of Christ see infra 443 n. 5. Our interpretation is entirely born out by Gervase of Tilbury. In his Otia imperialia (MGH. SS. xxvii), a work which he sent to Otto IV in about 1209-10, he says that it was by the "gratia" of Innocent that Otto obtained his imperial title (p. 379 ) and he
On the other hand, Frederick no doubt also had Gelasius in mind when, in obvious opposition to the famous Gelasian passage, he declares:
Duo sunt, quibus nostrum regi oportet imperium, leges sanctae imperatorum et usus bonus predecessorum et patrum nostrorum. Istos limites excedere nec volumus nec possumus. 1
The significance of this passage is that pontifical authority as a means of government is excised, and its place is taken by the sacred laws of the emperor. The role of the Pope as a "mediator Dei et hominis" is denied -- "uliberam imperii nostri coronam divino TANTUM beneficio ascribimus --" and in disregard of history, ideology and fact, Frederick depicts himself as the christus to whom the empire has come directly from God. This is the classic expression of the lay standpoint concerning the government of the empire, a pronouncement, however, that blatantly disregards the genesis of the medieval empire as well as the function of the emperor himself. 2 And from here it is only a short step to the imperatura later in the same century. 3
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goes on to say (p. 382 ): "Imperium mum non est, sed Christi, non tuum, sed Petri. Non a te tibi obvenit, sed a vicario Christi et successore Petri . . . Petro Constantinus imperium occidentis dedit, cui servierat regnum Francorum, regnum.
Teutonum, regnum Brittonum, quin imo totus occidens et totus circumfusus orbis. Hic Petro voluit sub Christo totum servire occidentem. Beneficio pape, non suo, Roma tempore Karoli nomen recepit imperii; beneficio pape Francorum regi confertur imperium; beneficio pape regi nunc Teutonum et non Francorum debetur imperium. Nec dedit imperium cui vult Teutonia, sed cui cedendum decrevit papa."
1. MGH. Const. i. 233, no. 167.
2. As is well known, Innocent III shordy afterwards expressed in unsurpassable conciseness genesis and function of the emperor by the two terms principaliter and finaliter (RNI. 18, 29, 31, 33, 47). Therefrom arose his right to nominate the imperial candidate (RNI. 62: "Ottonem reputamus et nominamus regem justitia exigente" and ibid.: "(Ottonem) nos ad coronam imperii disponimus evocare"; also RNI. 65 and 32: ""Regiam magnificentiam ad suscipiendam imperii Romani coronam vocabimus."). This nomination is based upon the principle of suitability ("persona idonea"), cf. RNI. 29, p.t., and RNI. 21: the princes should consider him who "ad regendum imperium est idoneus," for the Roman Church "nec debet idoneo defensore carere" (RNI. 48, also RNI. 62, 98). From this functionalist point of view Innocent's repeated complaints (e.g. RNI. 25, 33, 85, 92) that malicious people impute to him the desire to destroy the empire are, of course, justified.
3. For this see RNI. 14, and especially H. Mitteis, Die deutsche Königswahl, pp. 99-110. Consequently, according to Staufen ideology, the imperial coronation is a mere formality, whilst papal-hierocratic ideology held it to be constitutive: the emperor received his "plenitudo potestatis" from the Pope, see Innocent II supra, 338, and Innocent III in RNI. 33: "A nobis imperator imperil recipit diadema in plenitudinem potestatis." With this should be compared Frederick I's manifesto, Const. i. 23 1, no. 165, which also exemplifies the royal idea of protection: the papal-hierocratic view is "inaudita novitas." A little later he claimed the Vicariate of Christ for himself, Const. i. 335, no. 240: "Imperatoria majestas
EXCURSUS
Royal Reaction and Episcopal Resistance
I
I T might not appear unprofitable to give a very brief survey of the reaction which the first application of the hierocratic theme entailed. A study of the official documents on the royal side, particularly those of Henry IV, justifies the statements, firstly, that the royal party had nothing at its disposal with which effectively to counteract hierocratic tenets, let alone their translation into practice; secondly, that the reaction itself showed all the features of a rearguard action; and thirdly, that the underlying ideas of the hierocratic programme were insufficiently understood. No wonder, therefore, that the reaction lacked consistency, fibre and, so necessary in these matters, the enthusiasm based upon the force of conviction. The reaction was, on the whole, ill-tempered, vulgar and not free from contradiction.
The adequate understanding of this reaction presupposed a clear perception of the hierocratic theme, above all the nature of the society, of that autonomous unit which Gregory VII had called the societas christiana. Substantially a spiritual body, it was nevertheless also earthy. As such this society was to be governed by those functionally qualified. The functional qualification depended upon the nature of this society and its constitutive element, the Christian faith as expounded by the Church of Rome. Under the presupposition of the primatial function of the Roman Church, its principatus, the Pope is the sacerdos regalis, the monarch: monarchy in this context is the political term for the concrete exercise of primatial jurisdictional and legislative authority. The consideration of the nature of this societas as a spiritual and yet earthy society, the consideration, in other words, of the idea upon which
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quae regis regum et domini dominantium vicem gerit in terris." A dualism must necessarily lead to a dual vicariate of Christ, one in the Pope (so Frederick in his letter to King Henry II: Const., i. 254, no. 183) and one in the emperor: the kingship of Christ is vicariously in the emperor; the priesthood of Christ vicariously in the Pope.
this society is erected, and of the purpose for which it exists, naturally militates against ascribing autonomous character to what is called the temporal and its human personification: it can, consistently enough, have a mere auxiliary function. Whatever exists and whatever activity is displayed in this societas, must be judged according to its underlying ideas and purpose. This means that the government and the working of this society can be understood only from the teleological angle. This means, furthermore, that those not so functionally qualified -- the lay individuals -- and with them inert matter, must be directed by the functionally qualified members of this corporate societas christiana. In brief, then, this society was a body politic and corporate, in which the monarchic principle was realized to its fullest possible extent: monarchical rule of persons and things existing within the societas christiana. The Pope alone is qualified to function as the monarch and consequently to direct and govern the societas christiana, the universal Church become corporate.
Henry IV had no adequate answer to these tenets of hierocratic doctrine. One may well wonder whether in fact this would have been possible at all in the existing circumstances. What he held to be an answer was a partial withdrawal from his father's ideological position as Rex-Sacerdos, and the concession he made was -- a dualism of government. A dualism which he argued existed by reason of God's ordinance in appointing him as a king; a dualism which was to signify a separation of powers in the spiritual and temporal spheres; a dualism which is allegorically represented by two swords. But this dualism propagated by an excommunicate and deposed king is, as can readily be seen, the result of a misconception of the nature, idea and purpose of the societas christiana as a corporate body. This dualism -- and we note that Henry IV was not only the first to use the two-swords doctrine in a purely allegorical-political sense, but also to use the very term 'dualitas' 1 -- denies the fullness of power contained in the Petrine
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1. The deep significance of this Henrician statement seems not sufficiently stressed by J. Lecler, "L'argument des deux glaives" in Recherches de science religieuse, xxi ( 1931), pp. 307-8; about Edgar's address to St Dunstan, in 969, see ibid., p. 306, and also St Peter Damian's quite unpolitical reference, ibid. In their profound investigation, C. Erdmann and D. v. Gladiss, "Gottschalk von Aachen im Dienste Heinrichs IV" in Deutsches Archiv, iii ( 1939), pp. 135 ff., have proved that Gottschalk was the author of these important letters and manifestos of early 1076, including the letter under discussion and the famous one ending "Come down, come down, to be damned throughout the ages" addressed to the "false monk," see pp. 149, 154, 159, 169 - 70. The dualism propagated here was the conceptual offspring of Gottschalk, "an eccentric theologian, who was no prac-
commission, denies, therefore, the mediatory role of the Pope which is the (already incipient) idea of the Pope's Vicariate of Christ, and consequently charges the Pope with "usurping both kingship and priesthood." According to Henry IV, the universal Church has one head, that is Christ, Who (according to Henry's view) had appointed him king, but not Gregory Pope. It is clear that Henry denies the societas christiana its corporate character and the true monarchic function of the Pope as a sacerdos regalis, who because he is priest, is also king. 1 This denial is indeed indispensable to a dualitas of government.
He (i.e. Pope Gregory) usurped for himself the kingdom and the priesthood without God's sanction, despising God's holy ordinance which willed essentially that they -- namely the kingdom and the priesthood -- should remain not in the hands of one, but, as two, in the hands of two. For the Saviour Himself, during His passion, intimated that this was the meaning of the typical sufficiency of the two swords. For when it was said to Him "Behold, Lord, here are two swords" He answered "It is enough" meaning thereby that a duality is sufficient, that a spiritual and a carnal sword were to be wielded in the Church, and by them every evil will be cut off. 2
The significance of this passage is that Henry IV refuses to accept the conception of a societas christiana as a corporate universal body that transcends linguistic and biological frontiers and that is governable by the papal monarch. It is true that the "temporal sword" is to be wielded within the "ecclesia," but this "ecclesia " can be no more than a vaguely conceived spiritual-mystical brotherhood of Christian believers: it certainly can be no corporate, juristic and organic entity. The tenor of this passage -- and of the whole letter -- is the assertion of Henry's kingship: he is a king and as such he considers himself autonomous: his power came to him directly from God without any inter-
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tical politician"(p. 157 : "Es verstelit sich, dass dieser verstiegene Theologe kein praktischer Politiker war"). Gottschalk later retired into more suitable surroundings, into a monastery, after he had risen to the position under Henry IV of chief royal chaplain and provost at Aachen. The tract De unitate ecclesiae conservanda, written in the nineties of the eleventh century and ascribed to a monk at Hersfeld, shows some remarkable affinity with Gottschalk's views and expressions.
1. Henry's opposition was directed against the incipient idea that the Pope was vicar of Christ, that is vicar of the "Rex et sacerdos secundum ordinem Melchisedek."
2. MGH. Const. i, no. 63, pp. 112 - 13 = C. Erdmann, Die Briefe Heinrichs IV, Berlin, 1939, no. 13, p. 19. Cf. also ibid.:
"Me also whom God called to the kingdom -- not, however, having called him to the priesthood -- he strove to deprive of my royal power, threatening to take away my kingdom and my soul, neither of which he had granted, because he saw me wishing to hold my rule from God and not from him."
mediary. The dualitas of government means that, as a king in his sphere of action, he stands next to the Pope, that he is on an equal footing with the Pope, in those matters which he as king considers exclusively appertaining to him. Now, the logical pursuit of this Henrician dualist theme -- and we must always keep in mind that this dualist theme was propounded by an excommunicate and deposed king -- must lead to an ascription to other European kings of the same function which he claimed for himself in other words, the Pope is not only no universal monarch, but he is also confronted by as many European kings as there are who are all the Pope's equals: what the Pope is supposed to be in spiritual matters, these kings would then be in all those matters which they regard as their exclusive scope of rulership. This tenet, logically pursued, leads back to the conception of royal monarchy in which the king functioning as monarch autonomously determines the scope of his rulership.
But whilst Henry IV misconceived the nature of the society he was living in, his axiom nevertheless merits due attention, because it bears very great significance as regards the future. His dualitas is based on the conception that the temporal ruler, the king, who on his own showing deals only with, and confines himself to, temporal inert matter, is autonomous. Because he deals with the temporal, he demands his independence from the Pope in temporal matters. And this temporal, according to Henry's ways of reasoning, is so important that God Himself had instituted him directly to deal with it. We do not wish to argue on the soundness or unsoundness of this axiom, but confine ourselves to the statement that, in pursuit of this dualist theory, the necessity became paramount to distinguish between the temporal and the spiritual: where was the line of demarcation? And who laid this line of demarcation down? What, in a Christo-centric world, are the criteria by which the temporal can be marked off from the spiritual? If the temporal and hence the king enjoys autonomy, then it and he must have closely defined autonomous and independent spheres. Hence, from the time when the dualist programme became official policy of the emperors, we witness the strenuous and hapless attempts to find that sphere of autonomous action allegedly reserved to the king. But more important than these futile efforts is that once the king, on account of his function as an independent ruler over the "temporalia," claimed autonomy, there was, logically enough, only a short step to the theoretical creation of the modern entity, the State, which can very well exist without the addition of a spiritual element.
Henry IV's manifesto of April 1076, by virtue of a dualitas of Papal and regal power, marks the faint beginnings of the autonomous modern State. It was, moreover, as a result of the opposition to the hierocratic thesis that the very significant conception of the Regalia came to be worked out: as Regalia were considered those temporalities which were "regal," that is, the king's property over which he alone exercised jurisdiction; and here a concrete basis of the temporal entity, the State, could be detected. We will return to this topic.
It must not be supposed that Henry IV faithfully adhered to his own axioms. In March 1076 he, "Heinricus Dei gratia rex" -- "licet indignus inter christos ad regnum sum unctus" 1 -- proclaimed that only for aberrations from the faith he could be deposed. Ten months later we find him supplicating the Pope at Canossa for release from excommunication which by no manner of reasoning could be construed as having been inflicted for Henry's aberration from faith. Moreover, Henry who had so defiantly proclaimed a dual form of government now takes an oath to the effect that he would, within a term prescribed by the Pope, either implement justitia according to Papal judgment -and about the meaning of this there should be no doubt -- or make peace, concordia, according to the Pope's council, with his opponents.
Infra terminum, quem domnus papa Gregorius constituerit aut justitiam secundum judicium eius, aut concordiam secundum consilium eius faciam. 2
Nor would Henry put any obstacles into the path of the Pope who was to come into Henry's kingdom to decide the dispute between him and the princes, to end, in other words, the vacancy on the royal throne. 3 The oath taken at Canossa is the execution of the surrender which Henry made at Oppenheim in the preceding October. 4 The king who
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1. MGH. Const. i. 111 = ed. Erdmann, p. 16.
2. Reg. iv. 12a, p. 315.
3. On this see Lambert of Hersfeld, Annales, MGH. SS. v. 254f.
4. MGH. Const. i, no. 64, p. 114 = ed. Erdmann, appendix B, p. 69. The change of front effected by the German episcopacy and above all by the princes at Tribur, is outside the scope of this enquiry. It would seem, however, that one cannot refute Haller's argument out of hand, namely, that it was Humbert's Sententiae which effected the change: "Pseudo-Isidor's erstes Auftreten im Investiturstreit" in "Studi Gregoriani", ii. 91 ff.; idem, "Der Weg nach Canossa" in Ahhandlungen ?ur Geschichte des Mittelalters, Stuttgart, 1944, pp. 130 f., 143 ff., 157 ff., 262-8; against Haller's thesis C. Erdmann, "Tribur etc." in Deutsches Archiv, iv ( 1940), pp. 486-95; A. Michel, "Pseudo-Isidor etc." in Studi Gregoriani, iii. 154 ff.; cf. also idem, "Die Senten?en des Kardinal Humbert", pp. 139 ff. That Henry was a cunning diplomat and that especially the promissio at Oppenheim was a clever diplomatic trick, was the theme of A. Brackmann, "Heinrich IV als Politiker beim Ausbruch des Investiturstreits" in SB. Berlin, 1927, pp. 410 ff. We do not think
in April had held himself autonomous and independent of Papal power, promises in October "to observe in all things the obedience due to the apostolic see and to you, Pope Gregory." The kingdom which, so he alleged, was conferred on him by God directly, was now to be the subject of a papal verdict. Henry's kingdom had become the negotium of the Pope. 1
Constructive criticism was not the strength of the episcopal resistance. The bishops' resistance was entirely focused on the practical exercise of Roman jurisdictional and legislative primacy. They revolted because their freedom, as they understood it, was threatened by the recent Papal measures. But we will look in vain for constructive ideas in their vehement denunciations of Gregory VII, characterized as they were by an appeal to the lowest vulgar emotions: their references to Gregory's "cohabitation with a strange woman," their statement that "all the decrees of the Apostolic See have been set in motion by women," their allegation that "this new senate of women administers the church" 2 are singularly devoid of reasoning. The material point in their manifesto was that the hierarchical ordering within the sacerdotium was not based upon divine law, and hence Gregory's actions presented themselves as usurpations. They were particularly aggrieved by Gregory's insistence that all ecclesiastical matters and appointments were to be eventually decided by him himself. The subjection to Papal commands, the unquestioned obedience postulated by Gregory in the interests of a centralized government, were the demands which aroused the episcopal wrath. Gregory's battle-cry of the "libertas ecclesiae" had not apparently been understood by those who were to benefit from this freedom: what they understood was the liberty which they enjoyed as firm adherents of episcopalism. "We renounce the obedience which we never promised to you, nor shall we in future observe it at
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that Henry was privy to the last sentence of the Promissio (where it is said that the Pope would disavow all the ugly assertions which were current about him) because this amounts to a virtual nullification of the preceding clauses. We think that despite the Swabian Annalist's explicit statement (MGH. SS. v. 284 ff.) Henry himself had perpetrated the forgery (p. 286 : "litteras . . . sigillatas, quas tamen deinceps ipse clam alteravit et ad libitum suum mutavit"), it was the royal chancery which added the sentence: possibly it was one of the five councillors who had been excommunicated; on this see B. Schmeidler, Heinrich IV und seine Helfer, Leipzig, 1927, pp. 304-10.
1. Thus Gregory VII in his report about Canossa, Reg. iv. 12, p. 312. On the term itself, see H. X. Arquillière, "Gregoire VII à Canossa a-t-il réintegré Henri IV"in Studi Gregoriani, iv. 12, note 31. 2. MGH. Const. i, no. 58, p. 108 = ed. Erdmann, appendix A, p. 68.
all." The purely constitutional question as to whether this council at Worms -- of which the episcopal manifesto was the product -- was entitled to proceed to such an important decision as the deposition of the Pope, need not be investigated: the council was only a provincial council -- two Italian bishops were present: Bruno of Verona and Eppo of Naples -- and it was against all tradition that an accused should not be heard, that in his absence he should be condemned, and that he should not even be informed of the charges brought against him.
Whilst episcopal resistance and royal reaction could not, from the autumn months of 1076 onwards, present a united front, the two opposition camps, from the spring months of 1080 onwards, co-operated and showed a considerable vigour in pressing home their attack on the hierocratic theme. What is important to notice here is that the leadership of this united front was in the hands of the episcopacy, greatly assisted by the two enemies of Gregory, Archbishop Wibert of Ravenna and Cardinal Hugh the White. Moreover, Henry IV himself seems to have dropped all his former dualist mollifications and to have returned to the more virile and certainly more promising monistic Rex-Sacerdos conception of his father. But the stimulus, we must keep in mind, came from the episcopacy.
It was the Lenten synod of 1080 which brought matters to a head: apart from the second excommunication of Henry the synod once again prohibited lay investiture, but went considerably further than the respective condemnations of the synod of 1078, 1 by decreeing that no one who had received a bishopric from a layman was a bishop and by extending this to the lower churches; excommunication was also decreed for those laymen who conferred ecclesiastical benefices upon clerics who in turn were forbidden to enter the churches thus conferred. And the fifth chapter is directed to the lay population: they should dissociate themselves from those "false pastors" who are not sufficiently equipped and who have not the "via religiosa nec consulendi scientia." This chapter was a formidable challenge to the pastoral office of those clerics who had received their churches from laymen. It is clear therefore that these synodal decrees were directed against the bishops particularly who were to be cut off from the masses of the people: it was the legalization and sanctioning of the lay strike.
The first outspoken reaction against the synod came quite naturally from the bishops: it was they who provided, again for understandable reasons, the leadership, and not the excommunicate and deposed Henry.
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1. Reg. v. 14a, pp. 370 ff., and Reg. vii, 14a, pp. 480 - 1
It was at Bamberg, where at Easter 1080 a number of bishops assembled, that the first condemnation of the Lenten synod was made public. Henry IV was far away, at Liège, where he was spending Easter. 1 It was from Bamberg that the bishops attempted to inflame public opinion against Gregory. 2 That they also began to show a lively interest in the position and function of the king, is understandable, for it was only by a recourse to the old and familiar Rex-Sacerdos that they could hope to keep their "liberty." The forces which brought forth the Roman synodal decrees -- the recalcitrant episcopacy and the recalcitrantly disobedient king -- coalesced and were welded together.
At Whitsun 1080 we witness Henry IV joining the nineteen bishops at Mainz. There fortified and stimulated by the episcopal rebels Henry seems to have reverted to his father's functions. It was here at Mainz that the bishops showed their concern primarily "super regni perturbatione regiaeque potestatis derogatione" and only secondarily "super vacillante statu ecclesiae," as we read in Bishop Huzmann's letter to the Lombard archbishops, bishops, dukes and counts. 3 Henry's kingdom was thus made the chief episcopal concern: and Henry himself was put up as a protective wall behind which the bishops could safely shelter. He and the bishops were agreed upon the cause of all the evils -Hildebrand, "that head of a serpent which spread poison," and through whose "venomous breath all the evil sores had burst." The remedy proposed was to disown Hildebrand 4 and to proceed to the election of a worthier man, a "good pastor" who would bring peace. Again, peace would redound to the advantage of royal power and the kingdom itself. 5 The means of achieving this was the synod at Brixen -- presided over by King Henry and held on 25 June 1080. Outwardly Henry no doubt appeared as the pivotal point, 6 but considering the genesis of this synod appearances should not deceive anyone into thinking that
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1. This is proved by the Annales s. Jacobi Leodiensis, MGH. SS. xvi. 639; and Ruperti Chronicon s. Laurentii Leodiensis, MGH. SS. viii. 277; cf. also Meyer v. Knonau, Jahrbücher, iii. 275.
2. Evidenced by Archbishop Gebhard of Salzburg in his Epistola ad Herimannum (MGH. LdL. i. 270, c. 15): ". . . inhonesta in domnum paparn convicia jaculantes, qui congregati sunt, denuntiaverunt extunc in reliquum nequaquam pro apostolico habendurn esse. Ibique incipientes pertransierunt per universum regnum eadem praedicando, adjunctis sibi et aliis eiusdem verbi ministris . . ."
3. MGH. Const. i, no. 69, p. 118.
4. "Ille sedis apostolicae subdolus invasor, divinarum hurnanarumque legurn execrabilis perturbator."
5. "Ut regni perturbatio sedetur regiaque potestas redintegretur."
6. As the decree of the synod proclaimed it: "Mediante serenissimo rege Heinrico quarto."
the initiative and leadership really lay with Henry: the initiative belonged to the episcopacy, to Wibert and Hugh. The revolt was conducted within the traditional pattern and framework of the Rex-Sacerdos presiding over a council which elects a new Pope in the person of the archbishop of Ravenna: the schism had begun which eventually led to Henry's imperial coronation at the hands of Clement III.
Whilst the decree of the Brixen Synod 1 makes, like its Worms predecessor of four years ealier, no constructive proposals and is a document without substance, 2 the result was nevertheless important. On the earlier models a new Pope was made: but the initiative still lay with the episcopal participants and not with Henry. The forms of the old proceedings were kept, though the contents were not the same. The important point to notice is that the Rex-Sacerdos could not act - however little his action would amount to -- without the episcopacy: but the episcopacy was there at Brixen, not at the behest and by command of Henry, 3 but on account of their own opposition and resistance to Gregory. Henry IV was but a feeble and emaciated reflection of his great father.
II
The abandonment of the dualist conception and its substitution by the old Rex-Sacerdos conception seemed indeed the only way by which the hicrocatic thesis could effectively be assailed. But the weakness of Henry's position was too glaring to be overlooked even by his most enthusiastic supporters. Hence the attempt to support his function as a Rex-Sacerdos by an appeal to documentary history. Documentary history was to provide what Henry could not supply himself. That in the attempt to provide these documentary tools, anti-hierocratic
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1. MGH. Const. i, no. 70, pp. 118 ff.
2. It is very largely a conglomeration of vituperative charges against Gregory: he was a wicked money-maker who had poisoned four Popes before him, who had preached arson and condoned perjury, etc.
3. That much lamented medievalist, C. Erdmann, has pointed out the change in the epistolary style of Henry's letters. Whilst before him, royal and imperial letters are characterized by the employment of phrases giving orders (mandamus; praecipimus; jubemus; etc.), with Henry IV there is a remarkable change: instead of giving orders he requests (petimus; rogamus; etc.); he adopts a confidential tone; threats of deprivation of royal grace disappear. "The whole character of his letters shows a fundamental change." See Erdmann, "Untersuchungen zu den Briefen Heinrichs IV" in Archiv f. Urkundenforschung, xvi ( 1939), pp. 195-9. About the personal part which Henry took in the drafting of his letters (which incidentally destroys the legend of Henry's lack of education) see Erdmann, ibid., pp. 247 ff.; here also contemporary testimonies about Henry's education.
thoughts turned to Charlemagne and the first Otto is understandable. Their reigns were to show that the hierocratic scheme was wrong and at variance with history. Certain documents were extant which demonstrated that the Pope was in fact made by the emperor and not viceversa; that the Popes themselves had given the right of supervision and control over the Roman Church to these two models of monarchs.
It is weakness which leads to forging documents. The falsification of the Ottonianum little more than a century earlier, was a promising beginning. Now in the early eighties the royal party took refuge in a wholesale fabrication of documents, but in so doing showed none of the versatility and skill which distinguished its great antagonist in this same field. These documents were supposed to show the ancient and right order of things. They are:
(i) the Hadrianum; 1 (2)
the Privilegium Minus of Leo VIII; 2
(3) the Privilegium Majus; 3 and the Cessatio Donationum concerning the restitution of a number of territories in the patrimony of St Peter to Otto I and his wife Adelaide, but this is of no interest to us. 4
The purport of these forged documents is to show the singular rights which the king or emperor possesses as regards the Pope. Let us be clear about one point, namely that the pivotal point in both the hierocratic and anti-hierocratic camps was the monarchical position of Pope and emperor. What was at stake in either doctrine was the unfettered exercise of monarchic rule: the Pope by virtue of the Petrine commission claimed the principatus of the whole societas christiana, of which the empire (and every Christian kingdom) formed an integral part, but no more than a part. The emperor, by virtue of his conception
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1. Also called the "Hystoria Karoli Magni Regis Francorum et decreta beati Stephani Adrianique papae" in MGH. Const. i, no. 446, pp. 659-60.
2. MGH. Const. i, no. 448, pp. 667 ff.
3. Also by Leo VIII, ibid., no. 449, pp. 667 ff.
4. Its author was also supposed to be Leo VIII, ibid., no. 450, pp. 674 ff. The first to suspect the genuineness of these documents was Baronius. Cf. now Weiland in MGH. edition, loc. cit.; Meyer von Knonau, op. cit., iii. 298 ff.; P. E. Schramm, Kaiser, Rom & Renovatio, i. 235, 282; K. Jordan, "Der Kaisergedanke in Ravenna zur Zeit Heinrichs IV" in Deutsches Archiv, ii ( 1938), pp. 88 ff.; idem, "Ravennater Fälschungen aus den Anfängen des Investiturstreites" in Archiv f. Urkundenforschung, xv ( 1938), pp. 426-48; R. Folz, op. cit., pp. 126 ff. Most likely the imperial version of the papal election decree of 1059 was also fabricated at the same time, but is in this context of no interest to us. It is printed in MGH. Const. i, no. 383, pp. 541-6; Meyer von Knonau, op. cit., iii. excursus IV, pp. 653 ff. Cf. also A. Michel, Papstwahl und Königsrecht, 1936, pp. 33 ff. Against the general opinion that Peter Crassus was the forger of these documents, see the observations of Schramm, op. cit., loc. cit., and Jordan, Deutsches Arch., ii. 119 f. For a diplomatic discussion of these forgeries, cf. idem, Archiv, pp. 432 ff.
of his office as directly divinely conferred, considered himself the monarch of the empire as regards all spheres affecting its working. Hence neither could concede any point to the other: each tried to be a monarch to the fullest possible extent. How do now these three forged documents argue the point? In examining them one is but struck by the similarity as regards the vulnerable points between these documents and the Donation of Constantine. The latter derived the unique regal position of the Pope from a constitutional grant of the emperor: it was an imperial "privilegium" of Constantine that formed the Pope's basis. Here we meet with exactly the same vulnerable point, only of course in the reversed order. The emperor's unique position and function as regards the Pope was derived from a privilegium of the Popes. Two of these documents are in fact called "Privilegia."
According to them, the emperor has the right to "elect," that is, to nominate the Pope, because this right was conceded to the emperor by the Pope, 1 the one by Pope Adrian I, the other by Pope Leo VIII. 2 The documents also speak of the imperial right, papally conceded, of investing archbishops and bishops. 3 It is not difficult to see how much the forger laid himself open to a hierocratic counter-attack. For these "rights" of the emperor were based upon a papal concession contained in a privilegium. Was not the whole Gregorian idea focused on the
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1. Hadrianum, ed. cit., p. 660: "Adrianus papa . . . tradidit Karolo augusto omne suum jus et potestatem efigendi pontificem et ordinandi apostolicam sedem. . . . soli regi huiusmodi reverenda tribuatur facultas . . . Adrianus papa haec omnia concessit, laudavit et affirmando constituit." This is followed by the sanctio. In somewhat modified form the passage was incorporated by Gratian in his Dist. lxiii, c. 22.
2. Privilegium Minus, ed. cit., p. 666: "Nos quoque Leo servus servorum. Dei episcopus constituimus, corroboramus, et confirmamus et per nostram apostolicam auctoritatem concedimus atque largimur domno Ottoni primo (!) Teutonico regi . . . eiusque successoribus huius regni Italiae in perpetuum tam sibi facultatem successorem eligendi quam summae sedis apostolicae pontificem ordinandi . . . soli regi Romani imperii hanc reverentiae tribuimus facultatem." This reappears in Gratian, Dist. cit., c. 23. See also Priv. Majus, ed. cit., p. 673, cap. 38: "Solus rex Romani imperii summae sedis apostolicae pontificem eligendi ac ordinandi facultatem habere sanctimus et per nostram apostolicam statuimus auctoritatem." We would believe that the expression "rex Romani imperii" in two documents was not inadvertently chosen: it might have been used to circumvent the ideology inherent in the imperial coronation. The author of the Priv. Majus avoids discussing imperial coronation and its import: we do not think that this was a mere omission on his part.
3. Hadrianum, p. 660; Priv. Minus, pp. 666-7; also Priv. Majus, cap. 39, p. 673: "Insuper episcopos in provinciis eligendi et ordinandi habeat (scil. rex) potestatem, ut si quis episcopatum desiderat, ab eo reverenter anulum ac pastoralem suscipiat virgam."
supreme legislative power of the Pope, a power which included the right to cancel any privilege that a predecessor might have granted? 1 Later Papal opposition and theory took precisely this line in their counter-attack.
Whilst the Privilegium Minus purports to be a proper official document, the Privilegium Majus is an exposition of the ideas underlying the official act. 2 Its author tries to prove by Old Testament passages that the king has the right to nominate the Pope. In introducing his argument he uses an expression which is not insignificant. "We all know, because it is old law, that the rex Romanum gubernans imperium should elect the pontiff of the Apostolic See." 3 The subtlety and profundity of the Caroline formula had escaped the author who took it as a mere political expression, because it was of ancient Roman origin: 4 as we shall presently see, he was quite well versed in Roman law. The "renovation of the Empire of the Romans" led, as we have said, to a "renovatio legum Romanarum" and as a result of this, certain ideas and formulae, such as "the king governing the Roman empire" were culled from usage in the ancient Roman empire. After a somewhat confused account of the installation of Boniface I by the emperor, the author proceeds to explain that the Old Testament king had the right to appoint the ecclesiastical-priestly officers. He singles out King Solomon's dismissal of Abiathar 5 and his appointment of Zadok. 6 David, too, proceeded in the same manner as Solomon: he appointed Asaph as the "princeps tabernaculi" 7 as well as a number of lower officers, such as porters and those engaged in burning offerings. 8 Lastly, Moses also invested Aaron with pontifical garments by conferring on him the mitre: 9 Moses, instituted by God "princeps et dux
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1. Cf. Gregory VII's Reg. vi. 2, p. 393: "Si necessitas vel utilitas major exegerit, licenter valent commutari (scil. privilegia)"; cf. also Reg. vii. 24 and ix. 19.
2. Cf. K. Jordan, art. cit., p. 107, who says that the Priv. Majus should rank amongst the Streitschriften of the Investiture contest, because it is not a document in the strict meaning of the term.
3. Priv. Majus, p. 669: "Cuncti enim novimus, quod non est novi juris, ut rex Romanum gubernans imperium sanctae sedis apostolicae pontificem eligere et ordinate debeat."
4. See especially cap. 19, in which the old Roman emperors are thus designated (Valentinianus etc.).
5. Priv. Majus, p. 669: "Ejecit ergo Salomon Abiathar, ut non esset sacerdos Domini." (I Kgs. ii. 28.)
6. Priv. Majus, p. 669, and cap. 35: "And Zadok the priest did the king put in the room of Abiathar."
7. I Chron. xvi. 37.
8. Cf. I Chron. xvi. 38 ff.
9. "Constituit Aaron unumquemque sacerdotem et filios eius sacerdotes." See Lev. viii. 7, 10, 13.
super filios Israel," acts as a true Rex-Sacerdos and functions in this dual capacity.
The recourse to Roman law in the Privilegium Majus is one more of its distinguishing features, and this recourse concerns the utilization of the Lex Regia. Once, the author tells us, it was possible for the Romans to make laws, but it became difficult to summon all the Romans for each and every law-making act into one place, whence they considered it expedient and advisable to transfer all their power and rights to the emperor: "Unde suum jus et potestatem imperatori concesserunt." 1 But whilst, according to the old Roman constitution, there was at least theoretically the possibility of an "abrogatio" of this grant, that is, a revocation, 2 our author made this transfer irrevocable. The construction he chooses to put upon the matter is that the originally voluntary act of the people was seen to have become an act dictated by Reason of State:
Voluntas populi postea in necessitatem convertitur, 3
and therefore there no longer exists a possibility "de regno eum expellere." Again, he believes that he finds support for this in the Old Testament, when the Jews as a people asked for a king 4 and when Samuel anointed Saul as a king. 5 The choice of the Jews was final and irrevocable. The making of a king is a matter for the people: nobody can make himself a king.
Nemo enim seipsum potest regem facere, sed populus primum se creavit regem, quem voluerat. 6
Once made a king, he cannot be deposed.
No doubt, this is a remarkable interpretation of the Lex Regia; no doubt also, this is a considerable advance in political thought: but was it the most appropriate choice of means by which to combat the hierocratic scheme effectively? Quite apart from all difficulties of reconciling the idea of kingship based upon popular will (Lex Regia) with the prevalent idea of the divine origin of royal power, the author's point of view reveals an astonishing misjudgment of the whole situation. By declaring the king's power to be derived from the people's will, in this respect he naturally puts his king in a very disadvantageous position compared with the Pope's. For it was precisely the contention of the
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1. Priv. Majus, p. 667, quoting Inst. I. ii. De jure nat.; Hadrianum, p. 660.
2. Cf. K. Jordan, art. cit., p. 111.
3. Priv. Majus, p. 673.
4. I Kgs. viii. 5-6.
5. I Kgs. x. 1.
6. Priv. Majus, p. 673, cap. 37.
hierocrats that the Petrine commission constituted a divine conferment of powers. In a theocentrically orientated society the hierocrats could reap every advantage, and the idea of the popular origin of the king's powers only accentuated the gulf that existed between Pope and emperor. Instead therefore of promoting the cause of the emperor, the author generously and gratuitously handed a good deal of ideological ammunition to his opponents. Not only did the contemporary literary product of Manegold of Lautenbach explain the Lex Regia in a totally different manner by making it out to be a revocable grant 1 on the basis of which the people had the right to depose the king, but the hierocrats were also soon to make the popular and divine origin of royal and Papal powers a major point in their discussion, a point that could without undue difficulty be pressed to its fullest advantage. 2
Whilst thus the "historical documents" of the royal party, produced as they were at the time when documentary evidence for the resuscitated monarch was wanted, cannot be reckoned as serious attacks on the hierocratic theme, they nevertheless assume importance, in so far as in them, especially the Privilegium Majus, we witness one of the earliest attempts to harness the Roman law as well as the Old and New Testaments to the cause of the monarch's functions. True, cumulatively the two lines may present some difficulties of reconciliation, but they at least face the problem squarely: the flabbiness of an unworkable dualism of government was rightly discarded in favour of a theoretically at least workable monarchism: this line of attack had at least the merit of forcefulness and virility. It might even have been thought that this line offered a promising breach into the fortifications of hierocratic doctrine, but the presupposition for this was the destruction of the Petrine theory with its consequent tenet of primacy and the resultant transformation of this tenet into the law. Hence, these documents do not meet hierocratic doctrine on its own ground: in fact, none of these approaches this problem: to do away with the primatial function of the Pope -- jurisdictionally and legislatively -- would have been the only means to set up the king as a monarch in his own right. Only one writer of this period saw this vital point: the Anglo-Norman Anonymous vigorously and originally assailed the Petrine basis. 3 Nevertheless, the Petrine theory with all its attendant consequences was so firm and apparently unshakable that within the realm of ideas it could not
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1. See his Liber ad Gebehardum, MGH. LdL. i. 365, 391, cc. XXX and xlvii.
2. Cf. Medieval Papalism, pp. 165 ff.
3. Cf. infra pp. 394 ff.
be dislodged from its habitation. When ideas prove insufficient to combat an opposing set of ideas, force must step into the breach: and that indeed is the meaning of the act perpetrated by Henry III's grandson, the fifth Henry, in 1111. Can there be a more convincing proof of the strength of an idea than when force has to be employed in combating it?
CHAPTER XI
Juristic Theology
I
IN a previous chapter we have referred to the importance which Gregory VII as Pope and already as archdeacon Hildebrand attached to the value of having assembled in one "volumen parvurn" ancient texts of papal prerogatives. 1 The result was a spate of canonical collections, beginning with Humbert's Sententiae which, by virtue of their incisive and mature hierocratic theme, set the tone for all subsequent collections. 2 These collections were in scope, orientation, subjectmatter and the amount of material assembled, quite different from any of the previous collections. With these eleventh-century works the medieval canon law begins to take shape as a universal law governing the societas christiana, to which law all other legal systems became subsidiary. 3 With Gratian in the following century the science of canon law emerges as a universal science. But in order to understand this development some observations seem justified.
Not the least significant feature of the medieval period is the great reliance placed upon authority: authority -- auctoritas -- either in the
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1. P. Damian in PL. cxlv. 89.
2. See J. de Ghellinck, Le Mouvement théologigue du XII siècle, Paris, 2nd ed., 1949, p. 442.
3. The main collections of the second half of the eleventh century are these (for details reference is made once and for all to P. Fournier-G. Le Bras, Histoire des collections canoniques, Paris, 1932, vol. ii).
A. The previously known Sententiae diversorum patrum or collectio minor (as Anselm's source), but now, thanks to A. Michel's researches, known to be the work of Cardinal Humbert. For a brilliant summary see J. de Ghellinck, op. cit., pp. 435-7.
B. Cardinal Atto's Capitulare.
C. Anselm of Lucca's collection.
D. Deusdedit's collection.
E. Bonizo of Sutri's Liber de Vita christiana.
F. Lanfranc's collection.
G. The Britannica.
H. Ivo's Decretum and his Panormia.
Besides those there are many other smaller collections.
shape of custom or tradition, or preferably in that of documentary evidence. The value of an auctoritas increased proportionately with its age: the older the auctoritas the more weight and greater standing it had. The aversion to innovations -- and this characterizes in fact all governments, whether royal, imperial or Papal -- explains the otherwise inexplicable readiness to forge documents which in themselves as often as not said absolutely nothing new, but gave a practice or an institution the halo of moss-green antiquity. This aversion also explains the incessant insistence of the Papacy, especially Gregory VII's, on the ancientness of the ideas put forward and applied. At no other period of its long history has the Papacy so loudly and in so shrill a manner proclaimed the old, the traditional, the conservative elements of its theme as in the second half of the eleventh century. Having ourselves attempted partially to retrace some of the ground of the development of Papal-hierocratic doctrine, we can but endorse the correctness of this assertion. The correspondence of the Popes, and this applies to a particularly high degree to the Popes of the second half of the eleventh century, teems with references to the "statuta," the "decreta," the "dicta," the "regulas," the "sanctiones," the "canones," the "constitutiones predecessorum nostrorum" and so forth.
The denominator common to all these manifold expressions or rather the idea behind them all is that that which the "decreta" etc. contain is what is right: what councils, Popes, fathers, doctors said was reducible to a norm, the norm being that of the right conduct: this norm is the canon of living within the societas christiana, the "norma recte vivendi." 1 Hence it is not right conduct in the absolute sense which the texts set forth and which is applicable to any society, but the right conduct, the norm, or the canon which is applicable to the societas christiana only. Now the collectors of the "decreta" or the "constitutiones" and so forth provided an assemblage of texts which in their totality showed what is, and what is not, right in the societas christiana: what is right however becomes a question of what is and what is not lawful, if set against the background of the Pope's jurisdictional and legislative primacy. The nature of a "norm" or a "canon" can be attributed only to statements made by an authority: the attribution of a canonical character to a Papal statement presupposed the authoritative character with which the Pope was credited. Transferred to society at large, the pronouncement of the Pope loses its mere
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1. As Pseudo-Isidore had it copying from the genuine Hispana, see the quotation supra p. 188 n. 5.
literary character or its expression of opinion, and emerges as an expression of his judicial or legislative capacity: the Papal letter in short becomes a canonical statement. Incorporating right conduct in a Christian society, a canonical statement becomes the law of God:
Constat et indubitanter verum. est canonicam. auctoritatem Dei esse legem. Qui ergo contra canones facit, contra legem Dei facit . . . ac per hoc impius est.
For obvious reasons as a corporate entity, the societas christiana, with its basic Roman-legal inheritance, was in need of a law, that is of rules which universally bound and regulated the life of its members. But law in the meaning of "lex," as an individual injunction or prohibition endowed with a sanction, was provided only to a very small extent. The bulk of what was considered the law of the universal Church was contained in individual letters of Popes, in passages of the fathers and so on -- and these were not strictly speaking sources of the law, but sources which set forth the right conduct, which declared what should be the norm. In their totality these norms or canons constitute the jus, Recht, Droit, Law. The individual text provides a canon: the totality of the canons supplies Law (jus) and in the course of time this whole body of rules will be called jus canonicum. Behind each and every canon declaring what is right and therefore lawful, there must be justitia, otherwise the totality of the canons cannot be jus. Accordingly, since the Roman Church in hierocratic doctrine was, within the societas christiana, the only and exclusive repository of jusdtia, explicit or implicit approval by the Roman Church of a norm raised it to the level of a canon: the jurisdictional and legislative authority of the Pope could not produce any other effects. 2
The material source of a canon was justitia; the formal source of a canon was the Pope himself. Naturally, therefore, the collections of the eleventh century strove to assemble as many Papal letters or extracts from them as could be had, because they were most obvious sources of the canons both in their material and formal respects. 3 And the whole-
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1. Siegfried of Gorze to Poppo of Stablo in 1043, quoted by G. Ladner, Theologis und Politik vor dem Investiturstreit, p. 43.
2. In the following century Gratian expresses this thought classically: "Sacrosancta Romana ecclesiajuset auctoritatem sacris canonibus impertitur," D.p.c. 16, C. XXV., q. i. For modern pronouncements which are substantially the same as their medieval predecessors, cf. G. Del Vecchio, "Jus et Juristae in sermonibus Pii Papae XII" in Apollinaris, xvi ( 1943), pp. 82-7.
3. The collection known as Britannica is a particularly good example of assembling pontifical letters; the collection is of Italian origin; for details Fournier-
sale reliance on the pantheon of papal prerogatives, Pseudo-Isidore, cannot cause any surprise. But this orientation towards the Roman Church provided not only a highly welcome means, therefore, of discarding the numerous provincial or local "canons" -- not having been approved by the Roman Church they did not constitute a binding norm, hence could not constitute a canon -- but also an opportunity to separate allegedly spurious or apocryphal texts from genuine ones: recourse to explicit or implicit approval of a text by the Roman Church supplied the means to establish the canonical character of a text as well as the authenticity of texts if their genuineness was disputed. 1 It is well known that contemporaries knew of the apocryphal character of a number of texts, 2 but the means by which they could be distinguished from the genuine material presented difficulties. Hence approval by the Roman Church, in whatever guarded or implicit form the approval may have been given, was the criterion by which the authenticity of a text could be established. 3 Consequently, what contradicted the "Roman" tradition was excised from the collections; what was doubtful was accepted, if approved by the Roman Church. What was favourable to the Roman Church was received. Into this last category there belong the Conciliar decrees, patristic expressions as well as the legislation of Eastern and Western emperors: this source was accepted without further examination. 4 In brief, the principle of Roman approval enunciated by the collectors is the application of the old hierocratic principle which we have met before, namely that the decrees of councils
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Le Bras, op. cit., ii. 155 ff., especially p. 157. There are also some significant fragments from the Digest of Justinian, about which see M. Conrat, Geschichte der Quellen des rdmischen Rechts im Mittelalter, Leipzig, 1906, pp. 345-7, 351-4, 370-2; and C. G. Mor, Il Digesto nell'etè pre-imeriana a la formazione "della Vulgata in Per il XIV Centenario della Codifica?ione Giustinianea, Pavia, 1934, pp. 631-47, 679-92. About the Britannica cf. now my observations in Ephemerides Juris Canonici, xi ( 1953), no. 4.
1. It should be pointed out in this context that the "liber canonicus" in DP. 17 has nothing to do with our topic; on this see S. Kuttner in Studi Gregoriani, ii. 387ff.
2. Cf. the statements made by Peter Dominian and Cardinal Atto and referred to by Fournier-Le Bras, op. cit., ii. 6. Cf. also Bonizo of Sutri, Liber de vita christiana, ed. E. Perels, ix. 25: "Haec duo capitula [matrimonial impediments] nominibus Romanorum pontificum, Innocentii scil. et Gregorii, titulata apocrifa sunt, tumque in decretalibus eorum epistolis non inveniuntur inscripta tumque sanctorurn patrum regulis videntur sentire contraria."
3. See Fournier-Le Bras, ii. 7.
4. This applies especially to the Epitome Juliani, cf. Fournier-Le Bras, ii. 13. It is nevertheless noteworthy that Humbert's Sententiae have only six fragments from secular legislation, see Fournier-Le Bras, ii. 17 - 18.
do not become universally binding canons, until and unless the Roman Church has approved of them. In itself this is an application of the axiom that every council, in order to have universal effects, must have been summoned by the Pope or with the Pope's approval.
The collections of the eleventh century are not so much collections of "canon law" in the strict meaning of the term as guide-books or handbooks of sources which contain in their totality the jus, the presupposition being that each individual text was based on justitia. Hence, these collections excised all the texts of Celtic, Frankish or Germanic provenance, precisely those texts which figured so largely and prominently in, say, Burchard's Decretum of the beginning of the eleventh century. Furthermore, they all have a tendency to give documentary and justificatory evidence in favour of the hierocratic theme: they are selective in the sources. They are therefore guide-books in the literal meaning of the term. They pursue a theme: in order to support the theme, they give long extracts from the sources to show what is the canon of lawful activity in the societas christiana. 1 Their concentration on the primacy of the Church of Rome and on its consequences as regards episcopacy, kings, and so forth, is therefore self-evident. The other main items in the collections are texts profusedly adduced to demonstrate the uncanonical character of simony, concubinage, lay investing of bishops, alienation of ecclesiastical property and related topics.
The character of these collections will become clearer if we glance at the actual sources which the collectors used in order to provide the canon of right living. There are extracts from purely historical accounts, such as the Liber Pontificalis, or fragments taken from the ecclesiastical histories of Eusebius and Rufinus, or from the work of Paulus Diaconus, of Anastasius's Chronographia, or Cassiodorus's Chronica, and other historical writers. One cannot very well maintain that these works are "sources of law"; but they contain texts and records which show what is right and lawful, what in other words is the canon for a particular action.
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1. The work of Bonizo of Sutri, Liber de vita christiana ( 1089-95) is a characteristic example: as the title sufficiently indicates, this work in its ten books sets forth the canonical maxims by which life in the Christian society is regulated for all its orders, classes and strata. It is a very methodical composition assembling on a somewhat selective basis many texts showing the canon of right living. For a characterization see E. Perels in his Introduction to his edition; Fournier-Le Bras, op. cit., ii. 142-4, 147-50; and Ursula Lewald, An der Schwelle der Scholastik: Bonizo von Sutri und das Kirchenrecht seiner Tage, Weimar, 1939.
If we wish to appraise the import of these Gregorian collections, we should also bear in mind, not only the diversity of sources utilized, but also the div-ersity of topics for which the canon was found. The jus by which the societas christiana is to be ruled must necessarily be intimately associated with the character of this society, unique as it was in its double aspect, a spiritual as well as a civil-earthy society. This consideration applies not merely to the issues which in other kinds of society are accessible to juristic treatment, concerning mainly the relations between individuals or between individuals and a collective entity, but also to those issues which the basic spiritual character of this society called forth, that is, sacramental and liturgical issues. Since this societas christiana is an organized entity and since its basic substratum is a spiritual element, the administration of sacraments as well as the qualification of those who administer them, are naturally susceptible to juristic formulation. The problem of the validity of sacraments -- baptism, confirmation, matrimony, penitence, eucharist, ordination, extreme unction -- is one the solution of which must rest on a binding rule, a canon. Validity means lawful administration and reception of the sacraments. Consequently, sacramental jurisprudence forms a large topic in the collections of the eleventh century, and quite particularly the issue of valid ordinations. Sacramental jurisprudence is a necessary consequence of functionalism properly understood. Moreover, membership of the [Catholic] societas entitles the individual to receive sacraments, but this right is denied to those who have severed their membership: excommunication is the exclusion from the corpus of [Catholic] Christians, and this entails not only the deprivation of the excommunicate members' right to partake in the sacraments, but also has equally severe civic consequences. The proper juristic fixation of these sacramental topics is therefore conditioned by the character of the societas. Lastly, orthodoxy of [Catholic] faith and its counterpart, heresy, are further items which are in need of juristic formulation, again only from the point of view of the organized entity. The great reliance of these collections on the penitentials can therefore be explained without undue difficulty.
Whilst the sacraments are the visible means by which the individual member of the societas christiana achieves salvation, 1 the external forms of the [Romanist] cult, especially those performed in public, are comprised in liturgy. Next to sacramental jurisprudence there is liturgical juris-
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1. Later Innocent III was to explain the sacraments thus: "Ad hoc in ecclesia Dei visibilis est sacramentorum species instituta, ut per exteriora, quae cernimus, ad interiora, quae intelligimus, transmittamus,"Reg. i. 519.
prudence which we find in the Gregorian collections: like its counterpart, so liturgical jurisprudence too is treated from an exclusively Roman point of view. Unification of liturgical actions throughout the societas christiana corresponds to the unification and centralization of the government itself. Just as the latter was necessary, so was the former: government and liturgy, both concerned with the external, must within the realm of the societas be Roman-directed. The numerous extracts from the Ordines Romani in the collections serve therefore the same purpose as the extracts from, say, the Liber Pontificalis or, for that matter, from the Liber Diurnus: namely to demonstrate what is, and what is not, the canon, what is and what is not lawful, in the sphere of liturgy.
What all these collections present to us is what for want of a better name might be called juristic theology. Speculation was conspicuously absent from these works: there is as yet no attempt to develop on scientific lines certain notions; there is no attempt to interpret, to argue, to harmonize or to make the -- considering the diversity of the material -- so necessary distinctions. 1 These features were reserved to speculative theology which as a direct result of the great Gregorian stimulus, that is, of the implementation of hierocratic doctrine, developed more freely and easily than its juristic counterpart. Indeed, this is not surprising at all: the juristic theologians, by the very nature of their occupation, were conservative. It was, as we were at pains to show, precisely the justifiable axiom of the hierocratic government that what was applied and done, was in strict concord with the ancient ideas and that accordingly the idea of innovation was abhorred. Before the juristic theologians could proceed to develop juristic notions, they were forced to dig up the material in support of their theme: and it was this search in the libraries, so characteristic of the juristic theologians, which produced so many hitherto unknown texts and fragments that had been buried in various repositories. 2 Jus by its very nature is conservative, and the juristic theologians therefore looked backwards rather than forward.
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1. To judge by the preliminary account of the late J. de Ghellinck, "Magister Vacarius: Un juriste théologien peu aimable pour les canonistes" in RHE., xliv ( 1949), pp. 173ff., it seems that the observation made in the text was still applicable to Vacarius in the following century; cf. here also the bitter remarks about the canonists, especially Gratian, pp. 176 - 8.
2. On this search see especially P. Fournier, "Un tournant de Mistoire du droit" in Nouvelle Revue historique de droit français et étranger, xli ( 1917), pp. 132, 138, 154 f., 168; Fournier-Le Brast, op. cit., ii. 7 - 14 ; and de Ghellinck, op. cit., p. 433.
At the same time there can be no doubt about the nature of this juristic theology: the accent still lies on theology. The theocentric nature of thought and of society itself makes this rather self-evident. Moreover, a differentiation between the various departments comprised in the collective name theology, could not take place until the scientific tools were provided. It is misleading to speak of canonists or of liturgical scholars, and so forth at that time: liturgy, canonistics, theology in the narrow meaning, philosophy and so on, as different aspects of one and the same theocentric science, were the results of specialization, itself the consequence of the deepening of departmental knowledge. The flowering of these branches of learning after the Gregorian period symptomatically demonstrates the comprehensiveness of the societas christiana in the world of pure learning. We venture to say that the implementation of hierocratic doctrine was an indispensable condition for the unprecedented cosmopolitan ascendancy of scholarship in all spheres. 1 The spheres most directly affected were those which originally were mere departments of theology in the widest sense: these departments -- such as canonistics, liturgy -- became henceforward branches of learning in their own rights, whilst theology proper could concentrate with all the greater vigour on its own peculiar problems. The former branches of theology became virtually autonomous although, for obvious reasons, never quite losing their original theological nexus. 2
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1. Including what is usually called the humanistic and classical sphere as represented by Marbod of Rennes, Baudry of Bourgeuil, Hildebert of Lavardin and many others. About Godfrey of Rheims see J. R. Williams, "Godfrey of Rheims: A Humanist of the Eleventh Century" in Speculum, xxii ( 1947), pp. 29-45; cf. also the impressive list of French writers of this period provided by the late F. Lot in Bulletin du Cange, xvi ( 1942), pp. 5-59, and G. Stegew, "Les lectures classiques etc.," ibid., ix ( 1935), pp. 88 ff. About Benzo of Alba see infra pp. 387 ff.
2. This intimate connexion between theology and law exists for a little time after Gratian: on the "communité des matières" see the classic observations by J. de Ghellinck, Mouvement, cit., pp. 422-65. The early decretists consider Gratian's book a theological treatise, cf. e.g. Rufinus: "Unde palam est summam quandam totius theologiae paginae contineri in hoc libro" ( Summa, ed. H. Singer, p. 1).
Another early decretist begins his glosses thus: "Inter ceteras teologiae disciplinas sacrorum patrum decreta et consiliorum non postremum obtinent locum," quoted by St. Kuttner, Repertorium der Kanonistik, Città del Vaticano, 1938, p. 14, note 1; for a similar gloss see de Ghellinck, op. cit., p. 463. In its early days French canonistics was strongly influenced by theological trends, see St. Kuttner. "Les débuts de l'école canonique française" in Studia et docurnenta historiae et juris, iv ( 1939), pp. 186 ff. Some of the earlier decretists, such as Sicard of Cremona and Gandulph, were notable theologians and canonists, cf. de Ghellinck, op. cit., pp. 297 ff., 460. Parts of the Gemma ecclesiastica of Gerald of Wales with their numerous theological, canonistic and Romanistic illustrations,
II
Every system of law is the product of those forces that created the society to which the law is to apply. Law reflects the ideology of any organized community of men. This is as true of the societas christiana as it is of the society that was ruled by Justinian. Although his statement "nec multum differant ab alterutro sacerdotium et imperium" 1 is not quite correct, his own legislation on ecclesiastical matters showed that to him there was no really substantial difference. The privileges which by virtue of his monarchic position he conferred upon the sacerdotium, could be and were embodied in the canonical collections of the eleventh century. 2 But this could not conceal from contemporaries that the ideas manifested in Justinian's codification were diametrically opposed to hierocratic ideas. For his work was the classic legal expression of the imperial-laical standpoint. As such it had all the glamour and the glory that was Rome; it had all the "authority" of documentary evidence; it had above all every advantage in the realm of jurisprudence: it was a law which had omitted hardly any item necessary for the regulation of its contemporary social life. 3
That this Justinianean codification, for brevity's sake called the. Roman law, had always been a living law at least in certain parts of Europe, has been proved beyond any doubt. 4 It has also been proved that this Roman law was studied at Ravenna 5 where it reached a very
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are probably not his own work, but that of Peter the Chanter, cf. A. Boutemy, "Giraud de Barri et Pierre le Chantre" in Revue du Moyen Age Latin, ii ( 1945), pp. 45 f., also de Ghellinck, L'éssor de la littirature Latine au XII siècle, Paris, 1947, pp. 142 ff. On Geoffrey of Monmouth's probable use of the collection of Anselm of Lucca, see Schafer Williams, "Geoffrey of Monmouth'and canon law" in Speculum, xxvii ( 1952), pp. 186-7.
1. Nov. vii, cap. 2.
2. And indeed in some earlier collections, cf. C. G. Mor, "Le droit romain dans les collections canoniques des X et XI siécles" in Revue historique de droit français et étranger, vi ( 1927), pp. 512 ff.; idem, "La rezezione del diritto romano nelle collezione canoniche die secoli IX-XI in Italia a oltr' Alpe" in Acta Congressus juridici internationalis, ii. 287 ff.; idem, "Un manoscritto canonistico francese del secolo IX" in Rendiconti del R. Istituto Lombardo di sciente e lettere, lxxvi ( 1943), especially pp. 6 ff. (of the offprint). See also Fournier-Le Bras, op. cit., i. 238 (Anselmo dedicata); 250 (Regino of Prum); 327 (Abbo of Fleury), 421 and ii. 12 f.
3. Cf. the fine observations of Paul Koschaker, Europa und das Römische Recht, Munich, 1947, pp. 80 ff.
4. It suffices to mention the names and works of Maassen, Solmi, Calisse, Besta, Leicht, Calasso, Mor. About the Digest see especially the latter's important work in Per il XIV Centenario della CodificaZione Guistinianea, pp. 559-697.
5. Cf. K. Jordan, "Der Kaisergedanke etc." in Deutsches Archiv, ii ( 1938), pp. 85 ff., and P. S. Leicht, "Ravenna e Bologna" in Atti del congresso internalionaledi diritto romano
high standard. 1 But what is of particular importance to us is that the familiarity gained through the scientific study of Roman law, suggested its utilization of ideological purposes. It is not always appreciated that the contemporary application of hierocratic doctrine provided a powerful incentive to make us of Roman law as a means to combat hierocratic tenets. It was, we hold, as a result of this ideological stimulus that Roman law studies came so much to the fore, precisely from the Gregorian period onwards. The "rediscovery" of Roman law concerned not the law, which was being studied in any case, but its underlying ideas. 2 Without the familiarity with Roman law its ideological wealth would not have been grasped: and the realization of ideological opulence exhibited in Roman law, led to the unparalleled intensification of Roman law scholarship from now onwards. 3 What is of further interest to us is that the Justinianean codification was considered a guidebook for the imperial-laical government. The study of Roman law, therefore, provided the supply of technical and jurisprudential con-
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di diritto romano, Pavia, 1934, i. 279-90; and about Pavia, see P. Vaccari, "Pavia e Bologna," ibid., i. 293-312, who holds that Roman law was studied at Pavia earlier that an Bologna. For the "antiqua schola Papiensis" of the eleventh century, see L. Moriani, "Influenza della università di Pavia negli studii della giurisprudenza civile" in Per il XIV Centenario della codificazione Giustinianea, pp. 153-8. For a contemporary products of the Pavia school see the Expositio ad librum papiensem, ed. MGH. Leges, iv. 290-585. About the influence of Pavia on Normandy and hence on the Conqueror, cf. N. Tamassia, "Lanfranco arcivescovo di Canterbury e la scuola pavese" in Mélanges Fitting, Paris, 1908, ii. 189 ff., and now especially R. Foreville, "Aux origines de la renaissance juridique" in Moyen Age, lviii ( 1952), pp. 43 ff., at pp. 78-82.
1. As regards Ravenna, cf., for instance, Peter Damian's discussion in about 1062 with the Revenna jurists on the computation of the degrees of consanguinity "De parentelae gradibus" in PL. cxlv. 191-208; cf. also Alexander II himself in his bull of April 1063, J. 4500 ( Gratian: XXV. v. 2) where the Ravenna view is styled "novus et inauditus error."
2. This applies to a special degree to the Ravenna school of Roman law: we must bear in mind that Ravenna was the historic rival of Rome (cf. H. J. Schmidt, "Die Kirche von Ravenna im frühen Mittelalter" in Hist. Jb., xxxiv ( 1914), pp. 729 ff.; and K. Brandi, "Ravenna und Rom" in Arch. f. Urkundenforschung, ix ( 1924), pp. 1 ff.; also K. Jordan, art. cit.) and that Gregory VII's anti-Pope, Clement III, was archbishop of Ravenna (Wibert). We alluded before to the possibility that the Wibertist-Henrician forgeries were fabricated at Ravenna. Cf. also Leicht, art. cit., pp. 284 ff.
3. As the late P. Koschaker, op. cit., remarked, p. 70: even if the Roman law had been a hundred times more perfect than it is said to have been, "so wäre doch kein einziger Student zu den Glossatoren nach Bologna gezogen, wäre es nicht das Recht des Imperium Romanum gewesen." On the influence of Roman law on "legal culture" see W. Engelmann, Die Wiedergeburt der Rechtskultur in Italien durch die wissenschaftliche Lehre, Leipzig, 1938, pp. 15 ff., especially pp. 31-41; cf. also pp. 62 ff. and pp. 305 ff.
cepts; it was also used as a means to be directed against the application of hierocratic doctrine: in this respect Roman law studies were a defensive measure.
The difference between Roman law and its later rival are obvious. In the one case there was a guide-book ready made at the disposal of its users; in the other case this guide-book had yet to be made. Likewise the advantages and disadvantages are obvious. The advantage inherent in Roman law was that it was a law book with minute regulations concerning all sorts of conditions of men and things: it was a law in any sense of the term. Its disadvantage was -- leaving its underlying ideas apart - that it was not readily applicable to contemporary society, there being so many items in Roman law which had no meaning at all in the eleventh century, and there being equally many items of which the old Romans knew nothing, but which were very important in the eleventh century. The disadvantage thus presented by Roman law proved to become the advantage of the "canon" law, for this was a law continually being shaped, modified and, if need be, drastically altered. Roman law could never avail itself of this natural advantage possessed by canon law: being a fixed body of law, fixed that is to say by the Romans, it would have been the height of frivolity to change it in any detail or particular. 1 On the other hand, the welldefined, lucid and sharp jurisprudential and legal concepts which accrued from a study of Roman law 2 could not but run out to be an advantage for the law to be created for the societas christiana.
The intensified study of Roman law at Ravenna, and shortly afterwards at the European legal citadel, Bologna, though so largely conditioned by the application of hierocratic doctrine, was to exercise lasting influence upon the "jus canonicum," precisely because of the specifically Roman juristictechnique and concepts. Differently expressed, there could not be a canon law worthy of the name without Roman law technique and schooling. The proper juristic equipment, the technical legal tools, were provided by the Roman law. 3 In this
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1. The question of whether it was admissible and "rational" for the present emperor to change the Roman law was treated by the author of the Quaestiones de juris subtilitatibus, and denied, see H. U. Kantorowicz, Studies in the glossators of the Roman law, Cambridge, 1938, p. 185.
2. We refer to such concepts as "dominium," "bona fides," "traditio," "praescriptio," "usucapio," "contractus," "dolus," "culpa," and so forth.
3. Cf. P. Koschaker, op. cit., p. 81: "Was wir aber am römischen Recht bewundern ist der hohe Grad seiner juristischen Durchbildung." For some interesting aspects of rhetorical (Ciceronian) and consequently Roman law influence on canonistics, especially on Sicard of Cremona, see E. Lange, "Rhetorische Einflüsseauf die Behandlung des Prozesses in der Kanonistik des 12. Jahrhunderts"
respect, then, Roman law was an indispensable auxiliary science to canonistics, that is, Roman law minus its ideology. 1 Canonistics, the proper science of canon law, could not emerge until the juristic theologians had been trained in systematic jurisprudence, which could be provided only by an intensive study of Roman law. Gratian utilizes Roman legal jurisprudence and the Roman law pattern. His book shows the influence of Roman law thought upon a juristic theologian. Precisely because he disposed of Roman law knowledge and training, his work is so markedly different from anything else produced before his time. He rests securely on the results of the intensive Roman law studies in the first decades of the twelfth century at Bologna.
But in this alone does not lie the whole importance of Gratian's work. The title he gave to it, Concordia discordantium canonum, indicates his intention, namely to present a reconciliation of contradictory texts. This could not have been done until proper juristic hermeneutics had been made available. For it was due to the combination of legal and interpretative technique that Gratian initiated a new branch of learning, canonistics; rightly has Gratian been called the Father of the science of canon law. 2 Although the immediate source acquainting him with the
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auf die Behandlung des Prozesses in der Kanonistik des 12. Jahrhunderts" in Festschrift f. E. Eichmann, Paderborn, 1940, pp. 69 ff.
1. In the course of time this will lead to the theory that Roman law was a "lex suppletoria" provided that there is no canonical regulation and that the Roman law does not violate some underlying canonical principle. Cf. Lucius III in Extra: V. xxxii. I, and Innocent III, ibid., I. ii. 10. The auxiliary function of the Roman law is the parallel to the auxiliary function of the emperor himself. For a succinct canonistic view see the Summa Reginensis (late twelfth century): "Quomodo potuerunt imperatores aliquid statuere de rebus ecclesiae? Respondeo, non quia imperatores aliquid statuerunt, sed quia ecclesia approbavit," ed. A. M. Stickler, "Vergessene Bologneser Dekretisten" in Salesianum, xiv ( 1952), p. 491. Indeed, this is a long way from Justinian's view on his own ecclesiastical legislation.
2. See Sarti-Fattorini, De Claris archigymnasii Bononiensis professoribus, i. 344: "Quasi parens et auctor juris canonici deinceps habitus est." Our observations on Gratian are not affected by the vexatious problem of whether he was the sole author of the Decretum or whether he had collaborators. Some modern experts are inclined to the latter alternative. Cf., e.g., A. Vetulani, Gratien et le droit romain" in Rev. hist. de droit français et étranger, xxiv ( 1947), p. 47: "Le Décret, tel qu'il a été reçu par l'école et que nous connaissons d'aprés les manuscrits parvenus jusqu'à nous, n'était pas l'æuvre d'un seul auteur, mais résultait d'une collaboration. Gratien n'a pas été l'auteur unique du Décret." In the forthcoming Studia Gratiana (Bologna) we tentatively suggest that the Decretum went through three main phases of which only the first was Gratian's work. Through the research of W. Peitz, the relationship between Gratian, his sources and the Papacy has become a major problem. Peitz holds that Gratian composed his Decretum, not in Bologna, but in Rome, with the knowledge and support of the Pope; that he utilized the
new technique may have been Abelard, 1 the attempts at a reconciliation of the contrarietates go back to the period immediately after the end of Gregory VII's pontificate. Collectors of "canons" as well as the Roman jurists were faced with the same difficulty: in the latter case the difficulty concerned the reconciliation of legal texts as embodied in Justinian's codification; and in the former case the difficulty concerned the reconciliation of texts which, though not all of them had the force of a binding canon, had nevertheless at one time or another been considered as "norms." Hence in both cases a satisfactory method had to be devised to do away with textual and substantial contrarietates. That theology in the narrow meaning of the term was also faced with exactly the same difficulty goes without saying. None saw the need for a reconciliation, at least in the field of juristic theology, better than Pope Urban II who, in a seemingly insignificant routine letter, pointed the way by advising the recipient that distinctions should be drawn between texts which contain norms of an immutable character and texts which were prompted "pro temporum necessitate et pro personarum qualitate" and which therefore could be considered changeable. This is a most important hermeneutic principle resting as it does on the thesis of cosmological unity: contradictions are merely apparent, not real. The means of solve these apparent contrarietates is the basic mental operation of a distinctio.
Post-Urban canonical collections, especially that of Ivo of Chartres 2 and Alger of Liége, 3 were to adopt and partly to develop this principle suggested by Urban II. 4 It is an extraordinarily fruitful principle,
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Papal archives and used the manuscript of Dionysius (still preserved as that time) is work. See Peitz's contribution to the Studia Gratiana, "Gratian und Dionysius Exiguus," of which the illustrious author has kindly sent me the typescript.
1. In this sense St. Kuttner, "Zur Frage der theologischen Vorlagen Gratians" in Sav. Z., kan. Abt., xxiii, 1934, pp. 243 ff. About the whole question of nonjuristic influences on Gratian see J. de Ghellinck, op. cit., pp. 494 ff.; FournierLe Bras, op. cit., ii. 334 ff.; cf. also Denifle-Chatelain, Chartul. Univ. Parisiensis, i. p. xxvii.
2. Cf. Ivo's Prologue, "De consonantia canonum" in PL. clxi. 74 ff.; also Fournier-Le Bras, op. cit., ii. 110 ff.
3. On this see P. Fournier, "Un tournant etc." in Nouv. Rev. hist. de droit franç. et étranger, xli ( 1917), pp. 165-9; also G. Le Bras, "Le Liber de misericordia et justitia d'Alger de Liège", ibid., xlv ( 1921), pp. 80-118; cf. also de Ghellinck, op. cit., pp. 62 ff.
4. J. 5383 of December 1088; see S. Loewenfeld, Epp. pontificum Romanorum, p. 61. Parts of this letter in Gratian: I. vii. 24. The significance of this letter is stressed by Fournier-Le Bras, op. cit., ii. 357-8; in Fournier's art. cit., pp. 157 f.; by de Ghellinck, op. cit., pp. 432-3; and G. Ladner, Theologie & Politik vor dem Investiturstreit, pp. 48 f.
applicable by canonists, Romanists 1 and theologians who developed it to the point of perfection. And from the hands of the pure theologian Abelard, the juristic theologian Gratian accepted it 2 and applied it with consummate skill to his own work: the concordia discordantium canonum created thereby a new discipline of learning, canonistics, in so far as juristic theology ceases to be a branch of theology and becomes a science in its own right -- the result of specialization. 3 The employment of proper hermeneutic principles in itself is scientific and scholarly treatment of the sources: it is scholarship. The accent now lies on the juristic, and no longer on theology. This could not have been achieved without the juristic and interpretative technique with which Gratian had so perfectly equipped himself, 4 in order to create what had not been done and could not have been done before, namely
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1. About them see E. Genzmer, "Vorbilder für die Distinctionen der Glossatoren" in Acta Congressus Juridici Internationalis, 1935, ii. 343 ff.; P. Koschaker, op. cit., pp. 62-3, 91; cf. also H. Fitting, Die Anfänge der Rechtsschule in Bologna, Berlin, 1888; also E. Seckel, "Die Anfänge der europaeischen Jurisprudenz im II. und 12. Jahrhundert" in Sav. Z., Rom. Abt., xlv ( 1925), pp. 391 ff., and P. Torelli, "Glosse preaccursiane alle Instituzione" in Studi in Onore Enrico Besta, Milan, 1939, iv. 231 ff.
2. Abelard also strongly influenced the Romanists, cf. E. Genzmer, "Die justinianische Codification und die Glosatoren" in Atti del Congresso interna?ionale di diritto romano, cit., ii. 383.
3. Gratian's work was not, however, a book to be used by the untrained, as a Cistercian enactment makes clear: "Liber qui dicitur corpus canonum et Decreta Gratiani, apud eos qui habuerint secretius custodiantur, ut cum opus fuerit proferantur; in communi armario non resideant, propter varios qui inde possunt provenire errores," Statuta capitulorum generalium ordinis cisterciensis, ed. J. M. Canivez, Louvain, 1933, i. 108, sub anno 1188, no. 7 (I owe the reference to this edition to Dr C. H. Talbot). As is well known, Sohm attached great value to this Cistercian enactment -- he had to rely on its defective edition in Martène-Durand -- but Sohm's theory on this point was demolished by U. Stutz, "Die Cistercienser wider Gratians Decret" in Sav. Z., kan. Abt., ix ( 1919), pp. 63-96, who put the enactment into its Cistercian framework. Nevertheless, the passage does not say that Gratian's Decretum itself contained errors: all it says is that errors may arise from the perusal of the Decretum. This seems also the opinion of B. Jacqueline, "Bernard et le Droit Romain" in Bernard de Clairvaux, Paris, 1953, p. 430, note 9.
4. It is well known that a modern lumen juris canonici has called Gratian a mediocre compiler, but this does little justice to the man's intentions which assuredly were not to compile what previously was scattered, but to compose on the basis of the available material something like a system, a text-book of canonistics. His Decretum was a technical handbook, and it is as a result of his perfecting legal and interpretative technique that at the right time and in the right place Gratian bequeathed his work to posterity. As regards the texts compiled by Gratian, see van Hove, in Apollinaris, xxi ( 1948), p. 18: "Speciales laudes Gratiano non sunt tribuendae in colligendis textibus. Paucissima monumenta compilationi suae addidit, quae non reperiantur in anterioribus collectionibus, quibus usus est."
a theory or doctrine of the canons binding upon all members of the societas christiana. 1
It is hardly possible to exaggerate the full implications which this new specialized branch of learning was to have for the working of the societas christiana. Barely a generation after Gregory VII's pontificate the societas christiana was given its fully equipped army of field workers or technicians, the canonists. The rapidity with which canonistics became, in a quite unprecedented manner, the most important intellectual activity, at once combining pure and applied science, invading all existing seats of learning and potently contributing to the creation of new ones, symptomatically demonstrates the necessity and usefulness of this new science. Hierocratic theory having become a practical governmental scheme, was to be worked by those trained in the science of government which was at that time the science of law. The --again unprecedented -- spate of Papal legislation of post-Gratian times is at once cause and effect: a cause in so far as it provided a further incentive to the systematic and scientific penetration of canonical jurisprudence; an effect in so far as the Popes themselves were fully fledged canonists brought up in the schools of Bologna. The canonist became the technician who in actual fact worked the mechanism of the [Catholic] societas christiana. 2 No wonder that an early decretist, still a contemporary of Gratian himself, refers to the standing of a canonist with not unjustifiable pride: "Cuius est magna in ecclesia Dei auctoritas." 3
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1. Cf. the remarks of St. Kuttner, art. cit., p. 244. In this respect an immediate predecessor of Gratian was Alger of Liége, see supra 371, and G. Le Bras, "Alger de Liége et Gratien" in Revue des sciences philosophiques et theologiques, xx ( 1931), pp. 5 ff. Cf. also Dict. Droit Can., s.v. Alger. The specialization to which we have referred later affected canonistics itself, as is evidenced by the monographic literature on certain topics, such as the numerous tracts De matrimonio, De usuris, De decimis, De electionibus, the many ordines judiciarii, and so forth.
2. Medieval canon law was not a mere ecclesiastical law: it was a law that provided a canon of right living ("recte vivendi") in the societas christiana. To this system all other legal systems, including the Roman law, were subsidiary, a tenet which transferred hierocratic ideology to the sphere of law. Canon law was the law emanating from the sedes justitiae of the Christian body politic, hence it was the law of its monarch.
3. Quoted by de Ghellinck, op. cit., p. 298. Modern critics of medieval Papalism cast aspersion on the obvious fact that the Popes from the mid-twelfth century onwards were canonists: they ought to have been theologians. This criticism is quite unjustified, because it fails to take cognizance of the function of the Pope as a monarch who was primarily concerned with the translation of the principatus of the Roman Church into practice. A theologian is assuredly not qualified to govern: government must lie in the hands of someone who is trained, and that training could be had only by canonistics. This explains the uninterrupted sequence of canonist Popes; it also explains the utility of studying canonistics:
III
The evolution of canon law and of canonistics was in fact the evolution of theologia practica externa. 1 Law by its very nature can have reference only to the forum externum. But complementary to this forum is the forum internum, an aspect that stands in closest proximity to the conception of the societas christiana as a basically spiritual body corporate which at the same time is also civil-earthy. In order to be effective, the hierocratic scheme must be made to work in the forum externum as well as in the forum internum. The means by which this was to be effected was that of compulsory sacerdotal confession of crimes and sins. This, however, was merely the application of the power to bind and to loose to individual Christians. It is the power which is hierarchically transmitted downwards to the lowest priest. From this consideration alone it follows that membership of the sacerdotal order is the indispensable presupposition for the exercise of the judicial function contained in this power. 2 Whilst this function was constitutive, basic and vital, there were other functions with which the priest was credited, namely that of a "Corrector" and "Medicus." 3 It seems, moreover, that the medicinal function of the priest, to whom faults, sins and crimes were revealed, was more emphasized in the early eleventh century than his judicial function: priests were spiritual doctors according to Burchard; 4 according to Bonizo of Sutri, however, they were
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without it, it was quite impossible to rise in the sacerdotal hierarchy. The part played by the medieval Papacy in pure theology was not overwhelming.
1. Cf. van Hove, Prolegomena ad Codicem Juris Canonici, 2nd ed., Louvain, 1945, p. 345; cf. also p. 455.
2. The well-known biblical passages (Matt. xvi. 19; John xx. 23) had always been invoked to justify the thesis that the priests alone can legitimately bind and loose. Cf. Burchard of Worms, Decretum, xix. 153 ( PL. cxl. 1013), borrowing from the Poenitentiale Romanum, a spuriously Roman penitential, about which see Fournier-Le Bras, op. cit., i. 351 f., and van Hove, op. cit., p. 300. St Peter Damian speaks of the "sacramentum confessionis," Sermo xix ( PL. cxliv. 901). About some comparative aspects cf. also R. Pettazzoni, "La confession des péchés dans I'histoire des religions" in Annuaire de l'institut de philologie et d'histoire orientale, iv ( 1936), pp. 899-901.
3. Cf. Burchard's book xix, preface, col. 940, PL. cit. : "Liber hic corrector vocatur et medicus, quia correctiones corporum et animarum medicinas plene continet."
4. Decretum, xix. 29, PL. cit., col. 985: "Nam et corporum medici diversa medicamenta componunt, ut aliter vulnera, aliter morbum, aliter tumores, aliter putredines, aliter caligines, aliter contractiones, aliter combustiones curent. Ita et spirituales medici diversis curationum generibus animarum vulnera sanare debent."
comparable to experienced doctors who with "judiciali magisterio" discerned the faults of the penitents. 1
What is clear is that doctrine down to the second half of the eleventh century maintained the advisability of the individual Christian's revealing his faults to a priest, 2 but not the necessity of doing so. All there was were "recommendations" which were rarely followed. 3 Confession to laymen was widespread and universal, and was considered sufficient to obtain remission of sins. 4
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1. Liber de vita christiana, ix. 1 (ed. cit., p. 277): "Liber iste medicinalis inscribitur, eo quod aegrotantium continet varia medicamenta animarum. Et sicut peritorum medicorum est ad tactus venarum et adspectum urine morbos cognoscere singulorum, sic prudentum est sacerdotum considerata penitudine penitentis, quid quibusque conveniat, judiciali magisterio dispertire."
2. Of earlier statements on the value and importance of confessing sins, cf. the Council of Chalons (813), cap. 33, Mansi, xiv. 100, and the almost universally current Penitentiale attributed to Theodore of Canterbury as well as the numerous other penitentials: they are little more than lists of possible (and sometimes also impossible) crimes committed and the penance to be imposed as well as the tariffs for commutation. The tariffs were given in order to facilitate the task of the priests; this can be found mainly in the Teutonic penitentials, see B. Poschmann, Die abendländische Kirchenbusse im frühen Mittelalter, Breslau, 1930, pp. 8-11, and P. Anciaux, Le Théologie du sacrement de pénitence au XII siècle, Louvain, 1949, p. 27, notes 4 and 5. For the penitentials see J. MacNeill and H. Gamer, Medieval Handbooks of Penance, New York, 1938 (with many extracts in English translation), and R. Mortimer, The Origin of private penance in the Western Church, Oxford, 1939. Since a good deal of later penitential enactments was based upon Visigothic Spanish practices and councils, reference should be made to the very useful survey of J. Ferd. Alonso, "La disciplina penitencial en la España Romano visigoda" in Hispania sacra, iv ( 1951), pp. 243-311. For Irish penitentials cf. Poschmann, op. cit., pp. 3-37, 58-72; and T. Oakley, "Celtic penance" in Irish Ecclesiastical Record, 1938, pp. 147-64, 181-201. Cf. furthermore the survey by Le Bras in Dict. Théologie Catholique, s.v. Pénitentiels: they were "des catalogues des péchés et de peines expiatiores destinés principalement à guider les confesseurs," col. 1160. About the great civilizing influence of the penitentials see T. Oakley, English penitential discipline and Anglo-Saxon Law, London, 1923, the same author's "The co-operation of medieval penance and secular law" in Speculum, vii ( 1932), pp. 515-24, and "The penitentials as sources for medieval history," ibid., xv ( 1940), pp. 210-23; cf. also Le Bras, loc. cit., cols. 1178-9.
3. So one of the best informed writers on the subject, P. Anciaux, op. cit., p. 36 : "Malgrè ces recommendations multiples et l'existence de rites déerminés, les chrètiens ne se confessaient que très rarement à cette époque (eleventh century)"; also p. 164 : "Au XI siècle les auteurs s'efforcent de mettre en relief la valeur de I'aveu des fautes au prêtre"; cf. also p. 609: in the eleventh century"les canonistes considèrent les aspects pratiques et se contentent en général de fournir les listes de tarifs et des regrave;gles générales pour l'administration de la pénitence. Les théologians ne s'interessent guère à la doctrine pénitentielle."
4. See especially the late A. Teetaert, La confession aux laiques dans l'église Latine, Louvain, 1926.
Now we may recall that in two synods, that of autumn 1078 and that of Lent 1080, Gregory VII makes "vera" and "falsa penitentia" the subject of one of the synodal decrees. 1 The decrees give warning against "false penitence" and insist on "vera penitentia" which Gregory considers is necessary if remission of sins is to be validly obtained. 2 "Vera penitentia," however, can be obtained only through the medium of properly qualified priests, that is those who are "religione et scripturarum doctrina instructi" so that they may show "viam veritatis." The two points which emerge from this decree are firstly the necessity of sacerdotal confession, and secondly the harnessing of the functionalist principle to confession, that is to "vera penitentia." Because sacerdotal confession is necessary, only those properly qualified can validly bind and loose. The thesis of functional qualification is intimately linked up with the thesis of the necessity of sacerdotal confession.
It is certainly no coincidence that the contemporary tract which was to prove so influential in the sphere of confessional-sacramental jurisprudence and theology bears as its heading the cue words of these synodal decrees: De vera et falsa penitentia. 3 That the tract sailed under the name of St Augustine was symptomatic of the authority which it was to have and in fact did have. 4 This tract was one of the bases upon which the exuberant theologians of the twelfth century were to hammer out the purely theological problems connected with priestly confession. For our purposes it will be sufficient if we concentrate on the two main tenets of the tract which are, firstly, the necessity of confession, and, secondly, the necessity of confessing to a priest. Lay confession as distinct from sacerdotal confession is the exact parallel of lay ideology in the wider political field: just as the laical-imperial standpoint had not found, and could not find, an answer to the embarrassing question, "By what authority does the emperor judge
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1. Reg. vi. 5b, cap. 6, p. 404; Reg. vi. 14a, p. 481, cap. 5.
2. Reg. vii. 14a, p. 481, cap. 5: "Valde necessarium est, ut, qui se aliquod grave crimen commissum cognoscit, animam suam prudentibus et religiosis viris committat, ut per veram penitentiam certam peccatorum suorum consequatur veniam."
3. PL. xl. 1113-30.
4. Nothing is known about the author. About dates suggested see E. Amann in Dict. Théol. Cath., s.v. Pénitence (towards the end of the eleventh century or even beginning of the twelfth); Fournier-Le Bras, op. cit., ii. 321 ("Vers le milieu du XI siècle); P. Anciaux, op. cit., p. 15, note 2: "vers le milieu du XI siècle." In view of Gregory's wording we would be inclined to place the tract somewhere in the eighties of the eleventh century.
Popes?", 1 in the same way no satisfactory answer could be had for the justification of lay confession. Nor is it quite without significance that the author who so pointedly asked the vital question "By what authority" links this up with the power to bind and to loose in the case of mere lay Christians. 2 Sacerdotal confession is a necessary effluence of the tenet of functional qualification. Just as the emperor failed to justify his function in judging Popes, so did the layman fail to justify his function in remitting crimes, sins and faults: in neither case had there been given the power to bind and to loose. 3
It is precisely on this principle that the author of De vera et falsa penitentia constructs his theme. He concentrates on the old theme of the priestly power to bind and to loose: indeed this power is a potestas judiciaria: it is judicial power in every sense of the term. 4 And as a judge the priest can legitimately demand unquestioned obedience from the penitent: this obedience 5 to be exhibited to the judge is a necessary presupposition for salvation. Punishment is to be imposed in a judicial manner; 6 the criminal is God's enemy. 7 Should the priest misuse his judicial power, he will lose it and may be reinstated only by Pontifical decree. 8 Through the priest's exercising judgment on the penitent, God Himself has made a judgment:
Quibus enim remittunt (scil. sacerdotes), remittit Deus. 9
The judicial power of the priest is not a mere arbitrary or discretionary power, but a power that is strictly based upon justitia. 10 Hence the
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1. See supra on the De ordinando pontifice, p. 264.
2. Cf. supra p. 264.
3. The widespread lay confession may possibly have some roots in Cyprianic theses.
4. See cap. 20. It was probably the juristic complexion of this tract which appealed to Gratian through whom it gained wide currency, cf. Anciaux, op. cit., p. 302.
5. Cap. 15: "Ponat (scil. penitens) se omnino in potestate judicis, in judicio sacerdotis, nihil sibi reservans sui ut omnia eo jubente paratus sit facere pro recipienda vita animae, quae faceret pro vitanda corporis morte."
6. Cf. cap. 8: "Penitentia enim est quaedam dolentis vindicta, puniens in se, quod dolet commisisse." Cf. also Isidore's Etymologies, ed. cit., VI. xix. 71: "A punitione poenitentia nomen accepit, quasi punitentia."
7. Cap. 9: "Scio Deum inimicum omni criminoso."
8. Cap. 20: "Caveat (scil. sacerdos) ne corruat, ne juste perdat potestatem judiciariam. Licet enim penitentia ei possit acquirere gratiam, non tamen mox restituit in primam potestatem . . . nisi statutum fuerit a Romano pontifice."
9. Cap. 10.
10. Cap. 10: "Dixit (scil. Dominus) enim, `Quodcumque solveritis super terram, erit solutum et in coelis,' hoc est Ego Deus et omnes ordines coelestis militiae, et
priestly judge requires adequate knowledge, the requirement stipulated by Gregory VII in the Lenten synod of 1080. 1
Although sacerdotal confession is necessary, the author of the tract realizes that a priest may not be at hand. In this case lay confession may be made which does not, however, display the same effects as sacerdotal confession. There is no remission of sins, because the layman lacks judicial powers. What is effected by a lay confession in these circumstances is that the penitent is considered worthy of pardon -- "fit tamen dignus venia." 2 But this lay confession cannot be considered a sacrament. 3 The chief point in the tract is the necessity of sacerdotal confession which alone provides full remission of sins, by virtue of the judicial capacity which the priests alone have. 4
In so far as penitence is a juristic matter, 5 it will engage the attention of the juristic theologians, and quite especially that of the canonists who will transform the "keys of the kingdom of heaven" ("claves regni coelorum") possessed by the [Catholic] priests, into "keys of the law" ("claves juris"). The necessity of annual compulsory confession to
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omnes sancti in mea gloria laudant vobiscum et confirmant quos ligastis et solvitis. Non dixit, quos putatis ligare et solvere, sed in quos exercetis opus justitiae aut misericordiae."
1. Cap. 20: "Caveat spiritualis judex, ut sicut non commisit crimen nequitiae, ita non careat munere scientiae." It should be noted that according to the old penitentials the priest had no judicial power. All he was expected to do was to impose, according to the catalogue provided, punishment. Cf. also F. Russo, "Pénitence et excommunication: étude historique sur les rapports entre la théologie et le droit canonique dans le domaine pénitentiel du IX au. XIII siècle" in Recherches des sciences religieuses, xxxviii ( 1947), pp. 257-79; also 431 ff.
2. Cap. 10: "Tanta itaque est vis confessionis, ut si deest sacerdos, confiteatur proximo. Saepe enim contingit quod poenitens non potest verecundari coram sacerdote, quem desideranti nec locus nec tempus offert. Et si ille cui confitetur potestatem solvendi non habet, fit tamen dignus venia, ex desiderio sacerdotis."
3. The late Teetaert, op. cit., pp. 50-4, 243-5, over-emphasizes the part of the tract dealing with laical confession. He himself recognizes (p. 54 ) that the author does not attribute sacramental character to laical confession. But by concentrating on this part of the work, Teetaert gives a somewhat incorrect impression of the tenor of the book. Although he is correct in pointing out the great influence which this work had, owing to ascription to St Augustine, its influence, we think, lies precisely in the opposite direction envisaged by Teetaert, namely in the direction of the thesis of necessary sacerdotal confession. The work of Anciaux provides a wholesome corrective, at least as far as theory is concerned.
4. Cf. also Lanfranc, Libellus de celanda confessione, PL. cl. 629; and Bonizo of Sutri, Liber de vita christiana, ix. 3.
5. The priest's function resembled that of a civil judge, cf. A. Teetaert, "Quelques Summae de penitentia anonymes de la Bibl. Nat. de Paris" in Misc. G. Mercati, ii. 315: "Le ministère du prêtre au confessionel présentait des multiples ressemblances avec l'activité du juge civil."
parish priests is made the subject of Innocent III's decree in the Lateran Council. 1 But this necessity posed many problems with which the juristic theologians and still less the canonists could concern themselves, namely the purely theological aspects of penitence, such as the substance of the sacrament, the problems of repentance and expiation, the elements constituting contrition and its distinction from attrition, the theological position of the priest himself acting as a confessor -- a problem that had to be faced ruthlessly when once theology had established the unique efficacy of contrition: but if God alone remits sins, what precise theological significance was to be attributed to the intervention of the [Catholic] priest? 2 These and numerous other extremely difficult theological questions were to be thrashed out in the twelfth century in such a manner which brought into clear relief the differences between speculative and juristic theology. What we would maintain is that the emergence of these problems was conditioned by the tenet of necessary sacerdotal confession.
Penitence is a classic example of the intimate connexion between speculative theology and its juristic counterpart: it is an amphibious institute equally partaking in both departments of theology. 3 But the
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1. For details see P. Browe, "Die Pflichtbeichte im Mittelalter" in Z. f. kath. Theologie, Ivii ( 1933), pp. 335-83. The view of K. Burdach, "Walther's Kampf gegen Innocenz III" in Z. f. Kirchengeschichte, Iv ( 1936), pp. 463-5, 475-8, overlooks the juristic element in confession. In this context attention should be drawn to the thirteenth-century introduction of a second laying on of hands at a priestly ordination, specifically signifying the ordinand's power to forgive and retain sins. The juristic temper of the time also accounts for the emergence of the intitute of indulgences, i.e. the remission of the temporal punishments for sins, according to a certain scale. One of the earliest indulgences was granted by Urban II in 1096 (PL. cli. 447-9; translated by W. E. Lunt, Papal revenues, cit., ii. no. 510). The excrescences of this institute, too well known, belong to the late medieval period. Cf. the classic work of N. Paulus, Geschichte des Ablasses, vols. i and ii, Paderborn, 1922.
2. Cf., e.g., the interesting distinction which Roland ( Alexander III) made between the two aspects of sin: this distinction reflects Roland's juristic temper: "Licet in cordis contritione sit peccatum remissum, non tamen superfluit oris confessio seu operis satisfactio. Peccando enim Deum et ecclesiam offendimus, Deum offendimus male cogitando, ecclesiam scandalizamus perverse agendo, et sicut duos offendimus, et duobus satisfacere debemus, Deo per cordis contritionem, ecclesiae per oris confessionem et operis satisfactionem," quoted from Anciaux, op. cit., p. 211, note 3. Roland was a faithful adherent of Abelard ( Anciaux, p. 208 ) as was also Gratian himself (supra 372), see Anciaux, pp. 196 208 and pp. 302 - 12, for an exhaustive treatment of Gratian's doctrine. For the importance of Robert Pulleyn and his influence, see ibid., pp. 231 ff. and 335 ff., 609.
3. Cf. also A. Teetaert, art. cit., p. 316: "Une fusion intime entre les domaines de ces deux sciences."
energizing of both theological branches and the subsequent acquisition of an autonomous status by canonistics as the twelfth century proceeds, brought about the necessity of providing the "simplex sacerdos" with appropriate manuals of instruction. The old penitentials would no longer do, since they were far too crude and generalizing to be of any use now that both speculative and juristic theology had made such great strides in the penetration of the sacrament. 1 Moreover, by their very nature the penitentials left no scope to the priestly judge for the exercise of any judicial functions as they were understood as a result of the deepening of legal studies: the priest's function consisted of imposing the punishment. 2 On the other hand, there were the learned theological 3 and juristic works which dealt with the subject, but they were far too intricate and difficult to be understood by the ordinary priest who after all was to administer the sacrament. 4 The way out of this impasse created by the increased specialization was the literary species of the Summa Confessorum 5 which conveyed in a diluted and easily understandable manner -- not unlike that of a modern textbook -the theological and canonistic doctrines appertaining to penitence. They were destined for the ordinary priests who were to apply academic doctrines in their daily work. They might be called manuals of confessional instruction, 6 hence they were severely utilitarian and practical, and were shorn of all literary apparatus, but they fulfilled a great need which arose out of the increase in sacerdotal confession. To judge by the number of still surviving manuscripts these Summae Confessorum appear to have successfully answered the need of the time. They were the practical transmitters of hierocratic tenets in its day-to- day
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1. On this cf. also Oakley in Speculum, xv ( 1940), p. 212.
2. See supra p. 375 n. 1.
3. The feature of specialization to which we have referred before, applies to speculative theology also: here the number of libelli or opuscula dealing with penitence alone is extraordinarily high.
4. A. Teetaert, art. cit., p. 314: these works were "trop érudites et trop coutaux . . . destinés aux professeurs et aux hommes verses dans le droit canon et les études théologiques."
5. Also called Summa de penitentia, or Liber penitentiarius or Summa de casibus conscientiae, or Speculum manuale sacerdotum or Confessionale or Formulae confessionis quotidianae or Flores penitentiae.
6. Cf., e.g., the tract of Peter of Poitiers which stands somewhat between the old penitentials and the new confessional literature; it was written before 1215, but during Innocent III's pontificate, see A. Teetaert, "Le Liber Poenitentiarius de Pierre de Poitiers" in Festschrift f. Martin Grabmann, Munster, 1935, i. 31031; parts of the tract are here edited, pp. 318 ff.
application; they were potent agencies in the service of the [Catholic] societas christiana. 1
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1. The whole subject of the Summae Confessorum is far too little studied. Cf., apart from Teetaert's article, J. Dieterle, "Die Summae confessionum" in Z. f. Kirchengschichte, xxiv ( 1903), pp. 353-74, 520-48; xv ( 1904), pp. 248 - 72 ; xxvi ( 1905), pp. 59 - 81, 349 - 62 ; xxvi ( 1906), pp. 70 - 9, 166 - 88, 296 - 310, 431 - 42 ; xxviii ( 1907), pp. 401 - 31. The English contribution seems to have been very great. Apart from Guy of Southwick (Cf. A. Wilmart, "Un opuscule sur la confession, composé par Guy de Southwick" in Recherches de théologie médievale et ancienne, vii ( 1935), pp. 337-52) and Bartholomew of Exeter's Penitentiale (ed. A. Morey, Bartholomew of Exeter, Cambridge, 1937, pp. 175-300) there are the little known, but influential works of Robert of Flamesbury, Thomas of Chabham, whose Summa seems to have been a best seller, William Rovying, John Walleys, Edmund Rich, Richard Wethershet, and so forth, none of whom is edited.
CHAPTER XII
The Defence of the Lay Thesis
A STUDY of the growth of hierocratic doctrine requires that some account be given of the opponents, that is, of the literary exponents of what in default of a better term we may call the lay thesis. Since no exhaustive account of the diversified literary products can be given in this essay, we must confine ourselves to the presentation of a few outstanding literary adherents of the lay thesis. We should bear in mind, however, that the paucity of manuscripts containing these anti-hierocratic works would suggest that there was no great public demand for them; hence the assumption is justified that their influence was limited.
I
Peter Crassus, the Ravenna jurist, entitles his tract significantly enough In Defence of King Henry. 1 The tenor of the work is on the whole defensive, but, as is so often the case, from the clear statement of a defensive position, some constructive ideas emerge. Most of the tract concerns itself with the problem of whether the monk Hildebrand -- Gregory VII is never referred to in any other way -- was entitled to excommunicate King Henry: Peter Crassus denies the Pope that right. His work assumes especial significance in that it utilizes Roman law ideology in order to buttress the monarchic function of Henry. 2 And from this point of view, the Defence is a remarkable piece of writing and symptomatically demonstrates how energizing and vitalizing the implementation of hierocratic doctrine must have been.
To Peter Crassus the king's position is that of a " tutor of the peace," appointed for this particular purpose by divine dispensation: and in the exercise of this function he is and must be unimpeded by anyone, including the "pastor" of the Patarini, Gregory VII. 3 The
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1. Ed. in MGH. LdL., i. 434 ff.
2. Cf. C. N. S. Woolf, Bartolus of Sassoferrato, Cambridge, 1913, p. 70: "The treatise announces the entry of Roman law into medieval political thought."
3. Cap. 3, p. 437 : "Ad haec rex Henricus dispensatione divina in regno successit, ut eisdem pacis tutor existeret, sine controversia vestri pastoris regnum gubernaret."
Lord Himself had given to Henry his kingdom and nobody else. 1 Henry's kingdom is not the "kingdom of your Pope," he addresses the Milanese party leaders, but is a "regnum Dei," of which the Pope has no right whatsoever to dispose. The kingdom is entirely in the king's hands. Peter's idea of the function of the king is the old idea of a royal protector: as such he is responsible not only for law and order, but also for the true orthodox faith, as it is evidenced by the invocation of Cunctos populos. 2 The faith propounded by the "Romans" and thus prescribed is orthodox, not by virtue of any authority of the Roman Church, but by virtue of the authority which had deemed it advisable to endorse that faith and make it the issue of the law. In his function as a protector in the royal sense, the secular ruler issues his laws, not only the one to which reference has just been made, but all his laws, for it is he who supplies the laws for the sake of the whole of Christianity. The leges are indeed "sacratissimae." 3 Hence, the king's laws, because they emanate from him who was divinely appointed, must be obeyed by everyone, including Popes: for these laws had been issued "pro sua et suorum utilitate." 4 The interference -- and it is nothing less -- of monk Hildebrand has therefore done untold harm to all and everyone. 5 What the hierocratic opponents forget, according to Peter, is that St Ambrose himself had declared the prince to be the image of God and that, consequently, the prince "vicem Dei agit." 6 The appeal to St Paul's exhortation suggested itself. 7 Considering this derivation of power, the king's laws are not merely "sacratissimae," but in fact
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1. Cap. 3, p. 437 : "Illud enim et divinutus datum testatur liquido Daniel propheta 'Domini est regnum et cui vult, dabit illud' " (Dan. iv. 14 ).
2. Cod. Just. I. i. 1: "Cunctos populos quos clementiae nostrae regit imperium, in tali volumus religione versari, quam divinurn Petrum apostolum tradidisse Romanis religio usque adhuc ab ipso insinuata declarat . . ."
3. Cap. 6, p. 443 :
"Attendite, quaeso, quod leges, quas piissimi imperatores pro vestra vestrorumque fitiorum ac totius christianitatis salvatione condiderunt, unius monachi pertinacia solvere ac delete laborat."
4. Cap. 6, p. 443 :
In support Peter quotes Cod. Just. I. xiv. 9:
"Leges sacratissimae, quae constringunt vitas omnium, ab omnibus intelligi debent."
5. Cap. 3, p. 437 :
"In Henrici itaque regis laesione pacis auctorem, pacis praedicatores pacisque tutores insolentia vestri papae pariter omnes laesos esse, cunctorum sententia absoluta est."
6. Cap. 7, p. 450 :
"Ambrosius: 'Principes hos dicunt reges, qui propter corrigendam vitam et prohibenda adversa creantur; Dei enim habent imaginem, ut sub uno sint caeteri.' Idcirco ideo dicit apostolus praestare subjectionern regibus, per quam sciant non esse liberos, sed sub potestate agere, quae ex Deo est, id est, sub principe suo, qui vicem Dei agit."
The passage ascribed to Ambrose comes from the Ambrosiaster, not from Ambrose himself. Cf. Ambrosiaster, in CSEL. 4, pp. 63, 147, cc. 35, 91 (Quaestiones veteris et noyi testamenti).
7. Rom. xiii. 1 - 2 ; cf. also I Pet. ii. 13 - 14.
"divinae," and disobedience to them exposes the offender to the charge of sacrilege. 1
These views of Peter Crassus are the effluence of his thesis that human society is divided into two distinct classes, the "clerus" and the "populus." Not, we take note, Christian society, but human society as such, shows this division into separate parts; consequently the two systems of law, the secular and ecclesiastical laws, apply to two different sets of people. The consequence is that "clerus" and "ecclesia" become identical, that, in other words, the hierocratically conceived Christian body politic as an autonomous, juristic and universal entity is denied: this hierocratic concept begins to evaporate into a mere fellowship of Christian brotherhood devoid of organic and juristic elements.
The Creator of all things, Petrus argues, had given mankind two sets of laws - "duplices ei contulit leges" - of which the one set He assigned through the instrumentality of the apostles and their successors to ecclesiastical men, 2 the other through emperors and kings to secular men. 3 There can be little doubt that Peter Crassus's tract presents to us an early revolt against the canon law as understood by the hierocrats, namely, a universally binding set of rules: Peter restricts the applicability of canon law to the ecclesiastics and wishes to see in canon law merely an ecclesiastical law. There must be no interference by this ecclesiastical law of the leges. 4 These civil laws were given by God and it was through them, and through no other set of laws, that the Romans governed their empire: for once having conquered a people, the Romans set about to rule them by law - "Romanis deinceps legibus regere curabant" - and the vital necessity of these Roman laws for rulership is also proved by the Preface of Justinian to the
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1. Cap. 4, p. 439: with a quotation from Cod. Just. IX. xix. 1:
"Qui divinae legis sanctitatem aut nesciendo omittunt aut negligendo violant et offendunt, sacrilegium committunt."
2. Cap. 4, p. 438 :
"Harum unam per apostolos successoresque eorum ecelesiasticis assignavit viris."
3. Cap. 4, p. 438 :
"Alteram veto per imperatores et reges saecularibus distribuit hominibus." He believes to find support in St Augustine's dictum: "Ipsa jura humana per imperatores et reges saeculi distribuit humano generi," Expositio Johannis Evangelii, c. i, tract. 6, no. 25. It is not without interest that Peter Crassus knew the significance of Gelasius's famous Duo quippe letter too well to adduce it in his support, although he was perfectly familiar with Pseudo-Isidore, which must have acquainted him with Gelasius's letter. Nor does Peter operate with the Lex Regia as the forged documents did and thus he does not lay himself open to the easy hierocratic counter-attack. His king is God's representative on earth.
4. Loc. cit., with a reference to Cod. Just. IX. xix. 1.
Institutes. 1 just how necessary these laws were at his time, Peter says, could be seen when they were not enforced: then there will reign injustitia. Abolish the civil laws, he declares, and the result is that that monk Hildebrand, that despiser of the sacred canons, takes a delight in the royal command of an army. 2 The excommunication of Henry, the sowing of all sorts of treacheries in his kingdom by monk Hildebrand, are indeed actions not sanctioned by the leges: they are in fact actions "contra leges." 3 All this is against divine ordinance; it creates instability and insecurity within the kingdom, which to prevent is precisely the task of the leges. More than that: Hildebrand, having prepared the murder of Henry, was a common criminal who had violated the leges and must thus stand his trial as a Criminal before the monarch's tribunal. 4 Monk Hildebrand is an enemy of the laws, an enemy of peace, an enemy of the whole of Christianity: "Monachus Hildebrandus, hostis legum, hostis pacis, totius christianitatis hostis." 5
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1. "Imperatoriam majestatern non solum armis decoratarn, sed etiam legibus oportet esse armatam."
2. "Sed quia leges, per quas imperatores et reges iniquitatern malorum hominum compescere debent, abolitae sunt et nusquam apparent, vexat regnurn injustitia, gaudet habere regiarn in militia potestatem Ildebrandus monachus, sanctorum canonum contemptor." Cf. also cap. 6, p. 445 : "Abolitis legibus nonne parum vivere a brutis animalibus redarguimur?"
3. Cap. 6, p. 441.
4. Cap. 4, p. 441 :
"Quis igitur huic legum inimico hanc poenam merito, qui filio (!) necem paravit, legibus addictam esse non censeat?", and cap. 6, p. 452 : "Sed cum ecclesiasticis privilegiis destitutus penitus hoc maleficus cognoscatur, quae mora est removere eum ab ecclesia?" Cf. also p. 435 : Hildebrand violated the "lex Julia et lex Plautia." What obstacle is there to putting him on trial as an outcast of the Church: "Quid ergo restat, nisi ut submotus ab ecclesia a competenti judice saeculari sententiam accipiat?" The kind of procedure envisaged by Peter is that laid down in Justinian's Nov. cxxiii, cap. 21, § I = Epitome Juliani, cxv, cap. 34, namely that the criminal clerk or monk should be deprived of his clerical status by the bishop and then handed over to the secular justice for punishment according to human civil law. Cf. Constitutions of Clarendon, cap. iii.
5. Cap. 6, p. 445. It is no doubt interesting to note that in the early fourteenth century John of Paris posed the problem of a Pope fomenting a rebellion against the king (of France) and, anti-hierocrat as the Dominican was, stated that the king could proceed against the Pope. De potestate regia et papah, cap. xx (ed. J. Leclercq, Paris, 1942, p. 239): the king concludes by "probabilibus vel evidentibus argumentis quod papa vellet inimicari vel . . . aliquid machinari intenderet contra se vel regnum suum. Est enim licitum principi abusum gladii spiritualis repellere eo modo quo potest, etiam per gladium materialem, precipue ubi abusus gladii spiritualis vergit in malum rei publicae cuius cura regi incumbit: aliter enim sine causa gladium portaret." Cf. also ibid., p. 148, 150. This is the germ of the Gallican Recursus ab abusu, about which see R. Génestal, Les origines de l'appel comme d'abus, Paris, 1950, pp. ixff. Later still the question was discussed whether the "most Christian king of the French" could legitimately render
Some observations seem warranted. Firstly, he restricts the civil and ecclesiastical laws to the two sets of men who are not conceived of as forming one unit, but are distinctly divided. From this follows, according to Peter, secondly that the ecclesiastical law can have no binding effects upon the "populus," whilst, on the other hand, the leges are applicable to the clerics: the king being the divinely appointed protector of peace within his kingdom is entitled to punish those who violate the leges. Thirdly and lastly, the Pope's jurisdictional powers are denied. Canon law is a mere disciplinary code of law for the ecclesiastics. The Pope should act in a fatherly manner - "more paterno" but cannot exercise "patria potestas." In other words, it is religion as such with which the Pope should busy himself. he should be its guardian. 1 Religion alone cannot, of course, be a governmental basis: it is the transformation of what Gregory VII had called "pura religio" into an enforceable rule, which Peter contests. What is in his mind is the conception that a kingdom can be governed only by the leges: the supremacy of the civil law and its exclusiveness is what Peter wishes to establish. The criterion of lawful conduct is not contained in a canon, but solely in the lex which is "sacratissima" and "divina."
None the less, the defence of kingship must necessarily lead to the abandonment of all universalist ideas. Peter Crassus, despite all his predilection for the universalist cause of the Roman empire, must of necessity concede to every territorial king the same basic standing as regards the civil laws as he claims for King Henry's leges. There must therefore be as many civil law systems as there are kingdoms. Although the Christian religion may be the same for all of them, its custodian may give paternal admonition only, but no binding rule or canon for those who are not ecclesiastics. This thesis of Peter Crassus contains the germs of the later "Rex in regno suo est imperator." Or seen from yet a different angle, his thesis will in course of time lead to the separation of law from morals: what the king has at his disposal, is the coercive law; what the priesthood and herewith the Pope have at their disposal, is morals unenforceable.
No doubt these are remarkable features in a tract written in the eighties of the eleventh century. As a Roman jurist he clearly realizes
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assistance to his allies if they were attacked by the Pope "caco demone suadente" and answered in the affirmative. Cf. the Repetitio of Pierre d'Angleberme discovered by M. Boulet-Sautel: Rev. hist. de droit français et étranger, xxvi ( 1948), pp. 323 ff., at pp. 329ff.
1. Cap. 6, p. 449 : "Et idcirco tota christiana religio est confusa, ex quo ill-um habuit custodem."
the threat which the "canons" present to the Roman law. Only in a strict adherence to, and enforcement of, the leges sacratissimae can peace be achieved. The character of canon law as a universally binding law is denied. But this is nothing else but the presentation of the monarchic thesis in the garb of Roman law. And yet, despite these features, the weakness of the tract lay in disregarding the character of contemporary society. Was it, at that time, sufficient to operate with the colourless "humanum genus"? Since the tract contented itself with stating that the king's function was the preservation of peace through the laws - assuredly a negative aim - what positive goal did the king pursue? These are questions which should have been answered at that time: later generations would not be perturbed by the lack of an answer to this embarrassing question. Peter Crassus's tract was not a serious threat to hierocratic doctrine since it failed to deal with the teleological problem so powerfully and attractively posed by the hierocrats.
II
We now turn to Bishop Benzo of Alba. His attack on hierocratic tenets breathes an atmosphere entirely different from that of Peter Crassus. Here was the vision of the idealist, the exuberant enthusiast, a writer soaked in the ancient hellenistic and Roman world, an eleventhcentury humanist of the purest kind, whose poetic and fluent pen indeed knew no bounds of imagination when praising the ideal of empire and the idol of emperor, whose sonorous phrases and rhymes raise his poetry above the ordinary publicistic literature of the time. The Renovatio Romani imperii was to him the panacea for the world's evils; steeped as he was in Romanism, his contemporary emperors, Henry III and Henry IV, were to him the successors of the Caesars. This resuscitation of the Roman Empire and the resurrection of the Caesars make him dispense altogether with an attack on the primacy of the Roman Church: the Roman Church as the primatial Church of [Catholic] Christendom - the sheet anchor of hierocratic ideology - simply did not exist for him. In a way, Benzo's Liberl 1 is the perfect antithesis of Cardinal Humbert's works.
Benzo's long poem is not an arid exposition of abstract theories. There is no system at all in it; it is an ingenious tour de force, although
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1. Liber ad Heinricum IV, ed. MGH. SS. xi. 591 ff. For a biographical sketch of the bishop see A. Fliche in DHE. viii. 298 - 9.
its material contribution to ecclesiastical-political thought should not be overrated. What makes it worth studying, is the very deep culture that pervades it. He is as well versed in Roman statesmen and writers and poets - Scipio, Cicero, Fabricius, Cato, Horace, Virgil, Lucan, Quintilian, Terence, and so forth - as he is familiar with Greek language and writers: Homer, Socrates, Demosthenes, Diogenes, and so forth. 1 Nor was he any less acquainted with ancient mythology references and allusions to Hercules, Hector, Rhadamantes, are frequent. The fiery enthusiasm which he has for the emperor turns into a fiery contempt when he comes to write of contemporary Popes: Alexander II is the "Asinandrellus" or "Alexandrellus," "Asinander," "papa noctulanus contra totam christianitatem." Gregory VII is invariably spoken of as "Folleprandus," "Prandellus," "Merdiprandus." All his poetical zest is directed against Hildebrand who is to him nothing more or less than "anti-christellus" or "falsissimus atque diabolicus monachellus" or "diabolus cucullatus," "stercorentius" and so forth. 2 The emphasis upon the part which he himself played in imperial affairs, through his personal contacts and his appearance at crucial moments, is another feature that characterizes the work and its
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1. Cf., for instance, his Latinization of Greek terms: e.g. ephemerida, p. 653, line 44; Baburrus (ßaß?´??a?), p. 632, line 41; hembada, p. 629, line 18; hoestum (?? + ^st???), p. 619, line 2; bravium (ß?ße?+ ^??), p. 605, line 14; rampnos (?a`µ???) = rhamnos, p. 605, line 8; prohelempsis (p??e´?e??s??) = processus publicus, p. 602, line 23; hempyrium, p. 641, line 22; psiaticus (f?´a???), p. 641, line 24; rexcleonus = conflation of ??e´?? and ?e´??, p. 649, line 22; tegnas (te´??a?), p. 676, line 40, and so on. On the general aspects of Greek culture cf. B. Bischoff, "Das griechische Element in der abendländischen Bildung des Mittelalters" in Festschrift f. Dölger, 1951, pp. 49ff. Another of the eleventh-century humanists and the personal friend of Manasses of Rheims, Godfrey of Rheims, also seems to have taken up his pen in the cause of "Caesar," cf. J. R. Williams in Speculum, xxii ( 1947), p. 37.
2. That Benzo particularly strongly objected to Gregory's monetary dealings and his connexions with Jewish bankers, is clear, cf. pp. 614, 616. The following verses give some indication of the author's contempt for Gregory VII (p. 659, lines 42 ff.):
Saonensis Buzianus est quidam humuntio,
Ventre latro, crure curto, par podicis nuntio,
Tale monstrum non creavit sexuum conjunctio.
Falsus monachus Prandellus, habet mille vitia,
Quem cognoscimus deformem, carne leprositia,
Ab ecclesia tollendus hac sola malicia.
Protheus est monstruosus in diversis vultibus,
Modo ridet, modo plangit in amixtis singultibus,
Nocte carnibus abutens, die tantum pultibus.
(p. 666, lines 15 ff.)
author. 1 This self-importance is also revealed in the opening verses of the poem. 2
Romanism, universalism and imperialism are tautological expressions for Bishop Benzo. When the hierocratic watchword was that the Pope exercised the universale regimen, Benzo contrasted this claim which to him was sheer usurpation, with the emperor's power. The emperor, being the true successor and heir of the Caesars, 3 represents "majestas Julii et Tyberii." 4 Rome it was that subjected the whole world to its rule; Europe was made by Rome, the "caput mundi." 5 Rightly is the emperor extolled, ruling as he does over all the kings of the world: "magnificatur super omnes reges universae terrae," 6 for he is the imperator orbis terrarum. 7 What difference there is between him and the mere kinglings, the "reguli provinciarum" or the "regulelli" !The grandiose idea embodied in Roman emperorship is best seen when imperial and royal coronations are compared. The latter is performed by two "episcopelli" who raise the princeling of the one region to the status of a "regulellus" and the "solemn procession" at a royal coronation consists of an iron cross bearer followed by an illiterate, rustic rabble. What splendour, what ceremonial, what profound meaning there is in an imperial coronation. 8
The universal rulership of the emperor, his monarchic rule, is the
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1. Cf. his lively and graphic description of the events after the death of Nicholas II and the stress on his personal part, pp. 612-13.
2. Cf. the prologue, p. 597. In another place Benzo contrasts his approach with that of the lukewarm imperial bishops whom he treated "ferreis increpationibus durisque exortationibus," whilst different methods of dealing were indicated in the case of Adelaide: "Sed alia manu erat agendum cum domna Adeleida, cuius parem non assignat ephymerida. Ipsa igitur, quasi regina piscium, ammirabilis balena, non poterat capi neque hamo neque catena. Quapropter adgressus est eam frater Benzo mellifluis verbis porrigens ei escas ex floribus, necnon aromaticis herbis. Et quia noverat eam dilectari planetarum cantilenis, cottidie infundebat auribus eius Ambrosianas melodias, maritimis associatus Syrenis, et ita lyrizando, organizando, deduxit eam in sagenam fidei, traxitque ad litus ante pedes imperatoris Heinrici..." pp. 653-4.
3. See p. 611; cf. also p. 603, line 35: "imperatorum succesor factus."
4. p. 656, line 22.
5. p. 598: "Heuropam his jungentes fecerunt monarchiam, Roma dehinc exaltatur eiusque imperium...subjugavit totum mundum Romana potentia."
6. p. 600, line 2.
7. p. 602, line 13. In parenthesis we may note that Benzo's archiepiscopal brother, Alfanus of Salerno, had showered on the future Pope almost the same epithets in the poem dedicated to Archdeacon Hildebrand. Hildebrand was the successor of Marius and Caesar: St Peter was "Consul Caesarque," cf. on this N. Lenkeith, Dante and the Legend of Rome, London, 1952, pp. 9-10. On Alfanus see P. E. Schramm, Kaiser, i. 248-50.
8. p. 602, lines 25 ff.:
direct effluence of his being the successor of the Caesars. Imperial power, in an ideational sense at least, is universal monarchic rule:
Tantus es, Caesar, quantus et orbis. 1
Not only are the various kinglings of the provinces subjected to the Roman Empire in its medieval shape, but they have also to render services, as a sign of their subjection. 2 Man's language is incapable of expressing the glory and honour of Rome adequately -- "nulla humana lingua potest explicate talem gloriam tantumque honorem" -- Unless indeed one sees in the Roman Empire, in Rome herself, the manifestation of God's will. For it was through the merits of the apostles that Rome's empire was sancitified. 3
O Roma, Romani, ideo super gentes omnes preposuit vos Creatpr gemeros humani. 4
According to the poet, the whole world awaits the emperor as if he were a redeemer: "Omnis terra expectat eum quasi redemptorem." 5
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Portatur ante eum sancta crux gravida ligni dominici
et lancea sancti Mauricii.
Deinde sequitur venerabilis ordo episcoporum.
Tunc rex indutus bysino podere
auro et gemmis insertis, mirabili opere
terribilis calcaribus aureis, accinctus ense,
adopertus Frisia clamide, imperiali veste,
habens manus involutas cyrotecsi lineis (!)
cum anulo pontificali
glorificatus insuper diademate imperiali
portans in sinistra aureum pomum,
quod significat monarchiam regnorum,
in dextera vero sceptrum imperii,
de more Julii, Octaviani et Tyberii;
quem sustentant ex una parte papa Romanus,
ex altera parte archipontifex Ambrosianus.
Hinc et inde duces, marchiones et comites,
et diversorum procerum ordines.
Contrasted with a royal coronation, ibid.:
Duo igitur episcopelli
sustentant manus unius provinciae regulielli,
antecedit eum ferrea crucicula,
retro prosequitur agrestis plebicula.
1. p. 668, line 36; cf. also p. 644.
2. p. 647: "Decet utiqu quatenus omnes ordines ex provinciis regnorum, quae sun se continet Romanum imperium, ut afferant suo imperatori munera, unusquisque juxta suae professionis ministerium".
3. p. 603, lines 7-8: "Per quorum (scil. apostolorum) sanctum meritum Roma tenet imperium."
4. p. 631, line 8.
5. p. 605, line 4. About the ancient idea of a saviour and redeemer see supra, p. 16 n. 3.
Directly descending fromt the heavens, the emperor is no man of mere flesh -- "De coelo missus, non homo carnis" 1 -- but the "vicar of the Creator"; 2 he is the trueimage of God. 3 He is divinity become flesh, he is the "christus Domini" 4 and God walks, so to speak, of front of him. 5 What therefore Christ has said of Himself, is directly applicable to His vicar: "He who despiseth you, despiseth me." 6 The government of the world exercised monarchically by the emperor, is the divine way of governing. The whole Christian world should rise in praise of the Creator Who had chosen His vice-gerent. 7
It is consistent with Benzo's point of view that the emperor regulates all sacerdotal life. Whatever the priests have, whatever they are, whatever status they occupy, it is through the medium of the "vicar of the Creator." They are set in the house of God by the will of the emperor, not by that of a "Folleprandus." 8 Accordingly, they owe subjection to their "plantator" and not to a "supplantor." 9 They should rise in praise of their lord, who had given them all they have. 10 The bishops in particular should show their gratitude to the emperor by some form of military service on his behalf: military service is the outward acknowledgment of the emperor's instrumentality in raising them to the height of their position. The Pope himself, according to Benzo, must be created by the emperor: the creation of Clement III appears to him the ideal way of making a Pope: "Caesare praecipiente, papa benedicitur." This was so in the time of the Ottos and Henry's father, and so it should be. This imperial right of appointing a Pope flows also from the emperor's duty to protect the apostolic see and to govern it. 11 It is therefore against all historical evidence when the "Sarabaita" ( Ger-
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1. p. 669, line 1.
2. Vicarius Conditoris (p. 609, line 37).
3. p. 606, line 4; cf. also p. 655, line 30: "Vult enim Deus, quo geras reipublicae sarcinam cum eo, qui regnorum regis moinarchiam."
4. p. 656, line 12.
5. p. 605, line 2: "Ipse Deus vadit ante Heinricum christum suum, praeparans ei victoriae cumulum."
6. p. 655, line 25 ( Luke x. 16).
7. p. 601, line 35-6: "Tota igitur christianitas assurgat in Laudem Creatoris, qui contra hostiles impetus reddit terribiles aquilas christianissimi imperatoris."
8. p. 634, line 17: "In domo etenim Domini etis plantati manibus regisk, non manibus Folleprandi."
9. p. 634, line 18: "Oporter itaque ut sitis subjecti plantatori, minime autem supplantori."
10. p. 599, lines 16 ff.: "Omnes surgant ad scribendum victorias Caesaris." The "omnes" are "praesules et sacedotes, abbates et clerici, quicumque sunt de sorte Dei ordines angelici."
11. p. 671, lines 4 ff.
gory VII) asserts that he can promote to imperial dignity whomsoever he pleases. 1
It is something unheard of, Benzo holds, for the election of the most important official of the sacerdotium to be in the hands of monks. Papal elections are not the business of monks. They are fugitives of St Benedict if they try to meddle in papal elections. 2 And what monks! Perjurors and ravishers! 3 Nothing better can be said about the Normans who should be called "Nomans" ("Nullimanni") interfering as they do in papal elections: this really amounts to a degradation of the papal office, for they do nothing but roam about in the streets and squares "utpote frenetici." 4
The apotheosis of imperial power was reached at the time of Otto III.
O vir virorum, o imperator imperatorum,
cuis liberalitas erit memorialis per saecula saeculorum,
whilst Henry is gently taken to task for earlier dualist mollifications:
Duobus servire qui nititur,
Stultissimus inium dicitur. 5
Man cannnot serve two masters 6 and man's salvation depends upon his obedience to the divine word revealed as it is in the person and the laws of His Vicar, the emperor. By rendering to Caesar what ishis, God is thereby rendered what is His. 7
Regis enim victoria
Salus est populorum
Et ecclesiarum gloria.
There is no need for us to stress that the italian bishop's vivacious peom represents the exact parallel to the hierocratic thesis. According to him, autonomous and universal character can be attributed only to the Imperium Romanum, and not to the corporate Christian body politic. What the hierocrats applies to the latter, Benzo applies to the
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1. p. 670: "Dixerat enim ille Sarabaita, quod in sua potestate esset, quem veller ad imperium promovere, et quem nollet removere."
2. p. 671, lines 27 ff.:
"Fugitive estis sancti Benedicti,
sub nulla regula vultis esse districti."
3. p. 672, lines 40 ff.:
"Monachos dico, et quales monachos!
Perjurris infamatos, stupris monialium sordidatos
Et isti sunt creatores paparum."
Cf. also p. 614, lines 29 ff.:
"Non est auditum a saeculis saeculorum,
Quod ordinatio papae est in manibus monachorum."
4. p. 622, line 22.
5. p. 645, line 51.
6. Matt. vi. 24.
7. p. 602, lines 4-5.
former. "Christianitas" is to him no more than a religious concept: it is not what the hierocrats conceived it to be, namely the notion designating a corporate juristic organic entity. The Christian faith is not the constitutive element of the universal Roman empire. Hence the Pope cannot appear as the monarch: the emperor alone is monarch because he alone is the vicar of the Creator. This is the true monarchic conception in a universal framework within which the kings become mere provincial governors ("reguli"). And the utilization of the apostolic sojourn in Rome heralds later and very similar interpretations. 1 The Pope's function is that of a head of the priesthood, and no more. But the priests are members of the universal empire, and so is the Pope, and accordingly he and they owe subjection to the emperor.
Benzo avoids one great difficulty, namely that afforded by the proprietary church system. To him, it appears, all clerical appointments are direct imperial nominations; the appointed clerics constitute merely a kind of imperial civil service. But whilst he bypasses this difficulty, his theory has nevertheless serious flaws. Firstly, he does not even attempt to answer the Gregorian argument of the binding and loosing: is his idol, the emperor, not a Christian and as such subjected to the papal "potestas ligandi et solvendi"? And if he is, what are the limits of this papal "potestas" when applied to the emperor? And if he is not, where is the evidence for exempting the emperor? Secondly, by what unimpeachable documentary authority does the emperor function in the way in which Benzo wishes him to function? And thirdly, how did this universal Roman empire come about? These are vital questions for the answers of which we will look in vain in Benzo's poem. One feels that the author was somewhat uneasy when in the midst of all the din of eulogy and poetry, he writes about the Franks and Teutons having reached the apex of imperial dignity and in the same context speaks of the Greek emperor who is a mere "Rex Bizanzenus." How did this degradation of the Eastern emperor come about? How in other words does Benzo's emperor become a truly universal "Imperator Romanorum" if not through Papal volition? To these questions Benzo could not give an answer without jeopardizing all that his venerated idol, the emperor, stood for.
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1. Cf. E. Jordan, "Dante et la théorie romaine de l'empire" in Nouvelle Revue historique de droit français et étranger, xlvi ( 1922), pp. 203f. Miss Nancy Lenkeith, op. cit., takes no account of Benzo's poem.
III
From yet another angle the hierocratic thesis and its application are vigorously assailed by the Anglo-Norman Anonymous, the author of the York Tracts. 1 There is none of the lively imagination and enthusiasm so characteristic of the Italian bishop: here writes a scholarly theologian in a detached, severe and cool manner. He fixes upon the strongest point of hierocratic thought, that namely because all the believers in Christ form one concrete, coherent, organized body, because they constitute a corporate entity, the Papal monarch alone is functionally qualified to govern that body. The author of the tracts rightly perceives that the primatial claim of the Roman Church must be assailed, if hierocratic doctrine is to be effectively attacked. He rightly saw that a mere restriction of the papal primacy to certain issues only, would not do: if hierocratic doctrine was to be uprooted, it must be assailed at its most vital point, the Petrine commission. This attempt to demolish the Papacy's primatial claim is the negative side of the author's thesis. Its positive and constructive side is focused upon the establishment of a link between Christ and the king. For the hierocrats the link between Christ and the Pope was established by Scripture: for their anonymous opponent that link between Christ and the monarchical king was established by theological speculation.
He too operates with the conception of the corporate entity of the "populus Dei" or the "congregatio fidelium Christi" which form the "house of God." 2 He argues that the hierocratic claim rests upon the tenet of the primacy of the Roman Church, through which the Pope appears as the "apostolus Christi." 3 If this claim is correct, then the Pope "suscipiendus est a nobis quasi apostolus Christi in omni reverentia et honore propter mittentis auctoritatem." 4 Novertheless, if one looks at the mandates issuing forth from the pontiff in Rome, one
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1. That these thirty-five tracts were not written by the same author was the theme of Ph. Funk, "Der fragliche Anonymus von York" in Hist . Jb., Iv ( 1935), pp. 251-76. The ideological and linguistic unity of all these tracts cannot be disputed. Cf., apart from Böhmer's works, P. de Lapparent, "Un précurseur de la réforme anglaise: I'anonyme d'York" in Archives d'histoire doctrinale et littéraire du Moyen Age, xxi ( 1946), pp. 149-68; this author is inclined to accept Böhmer's earlier ascription of these tracts to Archbishop Gerard of York (p. 165 ). About a new and not unattractive ascription to Archbishop William Bona Anima of Rouensee G. H. Williams, The Norman Anonymous of 1100 A.D., 1951 ( Harvard Theological Studies, vol. xviii), especially pp. 102 - 27.
2. Ed. MGH. LdL. iii, tract iv, p. 663, lines 14-19.
3. Ed. MGH. LdL. iii, tract v, p. 680, line 17.
4. Ed. MGH. LdL. iii, tract v, p. 680, lines 23-35.
cannot very well say that they contain the "voluntas Christi," that in other words, what is prescribed by the Pope, harmonizes with evangelical or apostolic doctrine. 1 For these are either openly against established Christian doctrine or they circumvent apostolic teachings, with the result that the corporate body of the Christians, is divided between those who follow the Pope and those who do not.
But this corporate union of all the Christians, the universal Church, does not and can not suffer division, for it is "unum corpus," that is, the "populus fidelium." Just as one part of the human body is not the human body itself, so no part of the universal Church constitutes the whole Church. 2
The head of the one and undivided body is Christ Himeself. 3 The bond that unites all the members of this one universal body is "una fides, unum baptisma," 4 but certainly not obedience to the Pope in Rome. And when the hierocratic doctrinaires base themselves upon the Petrine commission, they are very much mistaken in their interpretation of Christ's words to St Peter. In the first place, St Peter was not constituted as a judge over the other apostles, or as their head or prince who could command obedience from them. 5 And in the second place, the crucial words -- "Tu es Petrus. . ." -- did not specifically apply to St Peter alone, but to all the apostles: "Ego dico tibi, quia tu es Petrus. . ." St Peter only received these words from Christ on behalf of the others: "pro omnibus ab ipso responsum accepit." 6 Consequently, each apostle was equal to St Peter, each individual church represents
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1. There follows a list of gravamina against the papal government, for instance, the command to bishops to visit Rome annually, p. 680 (often leading to the bishops divesting themselves of their clerical habits "ne agnoscentur, ut episcopi sint," p. 681); the resulting absenteeism, p. 681; the exaction of obedience from bishops and abbots, pp. 681-2; excommunication and deposition in cases of disobedience; unwarranted translation of bishops, p. 684; prohibition of concubinage; and so forth.
2. "Nulla igitur pars unius ecclesiae per se ecclesia est, nulla pars corporis per se corpus Christi est, sicut nulla pars corporis humani per se hominis corpus est," tract no. 2 in H. Böhmer, ed. in his Kirche und Staat in England, Leipzig, 1899, p. 439.
3. Kirche und Staat in England, p. 439: "Omnes insimul partes una sunt ecclesia, unum corpus Christi . . . quorum omnium caput est unum, Christus" with a reference to Col. i. 18 : "And he is the head of the body, of the church."
4. Kirche und Staat in England, p. 440.
5. Kirche und Staat in England, p. 443: "Licet enim b. Petrus apostolorum princeps dictus sit, non tamen apostolrum judex constitutus esse vel de illis judicasse vel subjectionem ab eis expetiisse legitur."
6. Kirche und Staat in England, p. 443. It may be that the author here relies on the Cyprianic exposition in De catholicae ecclesiae unitate, cap. 4 (ed. CSEL, iii. 209 f.) Cf. also Cf. also Cyprian's Ep. lxxxi, cap. 3.
St Peter in so far as Christ is acknowledged as "the Son of the living God." 1 Moreover, "petra" (rock) means not St Peter at all, but Christ Himself 2 who alone is the "petra": "qui est petra," and from Christ all those who believe in Him, have received the power to bind and to loose. 3 Hence, none of the other apostles had received this power from St Peter, but from Christ Himself: "sed ab ipso Christo, Deo et homine." 4 It is an unwarranted assertion to say that Christ had made St Peter a prince of the apostles who thereby had become his satellites. 5 All apostles were equal. 6
There is, then, no Biblical foundation at all for the primatial claim of the Roman Church. For if St Peter was not superior to the other apostles, the Pope cannot be superior to the other bishops. Being without any scriptural basis, the primatial claim can rest only on human grounds, of which the most conspicuous is the purely historical fact that the city of Rome was once the capital of the Roman empire (as well as, he adds, the head of many errors) and so it became through the physical presence of Peter and Paul the capital of religion: but let there be no mistake about it that the two apostles could not be what they were without -- Jerusalem. 7 The alleged divine origin of the Roman Church's primacy gives way to a human explanation. 8 If any church can claim primacy, it is Jerusalem alone, which is the mother of all. For here in Jerusalem, Michael, the "princeps coelestis exercitus," had his "principatus," and Gabriel had his "municipatus"; 9 in Jerusalem also there were the patriarchs and prophets to whom God Himself had spoken in person and had shown His secrets. 10 And from this
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1. Matt. xvi. 16: "Thou art the christ, the son of the living God."
2. See I Cor. x. 4: "Petra autem erat Christus."
3. ". . . petra, et ab ipso accepit claves regni coelorum et potest ligare et solvere."
4. Also according to St John's gospel, St Peter received his power together with the others ( John xx. 22): "Qui (scil. Christus) resurgens a mortuis et veniens ad eos sufflavit et dixit eis . . . hoc itaque Petrus non fecit eis nec hanc gratiam contulit, sed pariter cum eis accepit", p. 443.
5. Ibid., "Neque legitur quod a Christo vel ab eius apostolis Petrus apostolorum princeps sit nuncupatus; neque legitur, ut huius principis ceteri apostoli satellites vel ministri sint appellati vel a Petro judicati."
6. Tract 23a, p. 475, ed. cit.: "Divina institutione nullus inter apostolos major fuit, nullus magisterium vel principatum in alios habuit . . . fecerat eos equales." Cf. also ibid., p. 476 : "In his omnibus apostolorum equalitas intelligitur, quia haec omnia equaliter acceperunt."
7. Tract iii, LdL., p. 660, lines 22-5: "Romana ecclesia praefertur, hoc fit propter potentiam imperii et dignitatem urbis, ut quae videlicet erat caput orbis et princeps erroris, caput quoque fieret religionis."
8. Tract iii, LdL., p. 660: "Verumtamen hoc ab hominibus institutum est, non a Christo Deo vel ab apostolis."
9. Tract no, 12, ed, Böhmer, op. cit., p. 458.
10. Tract no, 12, op. cit. p. 458: "Ipsa sanctos habuit patriachas et prophetas, quibus Deus locutus est et ostendit eis secreta sua et regni coelestis misteria."
seed came Christ and the redemption of the whole world originated. 1 Here in Jerusalem it was that Christ was made priest in the order of Melchisedek: 2 and here was the throne of David and the kingdom "super quod Christus sedet in aeternum." It was also in Jerusalem that all the apostles had received the powers of the keys: in short, in Jerusalem Christ was made the head of the Church universal, of the corporate body of Christians. What claim has Rome to counterbalance these obvious facts? Apart from the imperial position nothing but the apostolic sojourn, but the two apostles did not cease to be members of the Church of Jerusalem because they happened to stay in Rome. 3 Whatever the Roman Church may have, it has through its connexion with Jerusalem which is the "ecclesia primitiva." It is this see which "jure primatum obtinet, et propter primatum obtinere debet principatum." 4
Perhaps the most formidable difficulty confronting the antihierocratic writers was how to establish the monarchic principle in a Christo-centric world. The difficulty concerned nothing more nor less than the king's direct derivation of powers from Christ, so that it could be demonstrated in a plausible manner that the king's link with Christ was direct. Often enough before, as we have seen, has it been maintained that the king (or emperor) was vicar of Christ, but never has there been an attempt to prove this link. In order to show it, and at the same time to disprove the hierocratic theme, the scriptural basis of the Pope's monarchic function -- the result of the Petrine commission -had to be supplanted by a rather involved theological and christological speculation. Our author is one of the very few medieval writers who, seeing the virtually inexhaustible strength of the Pope's primatial position, attempts on a purely doctrinal basis to reason out the monarchical position of the king by virtue of his continuing Christ's powers and functions in his kingdom. How, in other words, can it be established that not the Pope, because there was no such a thing as a primacy of the Roman Church, but the king is the legitimate, sole,
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1. Tract no. 12, op. cit., p. 458: "De quorum semine Christus natus et salus et redemptio totius mundi orta est."
2. "In ea quoque sacerdos factus est in aeternum secundum ordinem Melchisedek." On the transmission of Melchisedek in liturgical poetry, see B. Bischoff in Festschrift Dölger, p. 50, note I.
3. "Non tamen Hierosolimitanae membra esse desierunt atque discipuli nec principatum eius vel primatum abstulerunt nec eius auctoritatem vel dignitatem vel meritum minuerunt," ibid., p. 459, ed. cit. This argument was later dealt with by Innocent III in Reg. ii. 209.
4. Ibid. 461, cap. 2.
hence truly monarchic authority that rules the corporate body of Christians? Where, in short, is the link between the king and Christ, since there is no link between the Pope and Christ?
The anonymous author and his hierocratic opponents share the thesis that Christ is "Rex et sacerdos secundum ordinem Melchisedek." But whilst hierocratic doctrine stressed, for obvious reasons, the sacerdotal part in Christ, the anonymous author stresses the regal part in Christ. Although it is true, he says, that Christ is "verus rex et sacerdos," the universal Church, His spouse, is not His spouse by virtue of His sacerdotal functions, but by virute of His regal functions. The Church is called "regina," queen, and not "sacerdotissa," priestess. 1 Apart from this, Christ was heralded in the Old Testament in several places and no prophet can be shown who had announced Christ's coming in His function as a priest: all prophets heralded Christ as king. 2 We must realize, he says, that the priestly nature of Christ was of inferior rank in Him. The construction he chooses in order to prove his thesis -- a construction which is admittedly somewhat artificial, though no doubt original -- namely that there is a direct link between king and Christ, is this: Christ was not created or made or constituted a king, for He had been king from all eternity, and therefore He was equal to the Father. This equality to the Father accounts for His royal nature's being the really divine part of His being. On the other hand, He was made a priest because He allowed Himself to become Man. Christ's human nature is represented in His sacerdotal part.
Christus enim Deus et Homo, verus et summus rex et sacerdos. Rex est, sed ex eternitate divinitatis, non factus, non creatus, non inferior vel diversus a patre, sed equalis et unus cum patre. Sacerdos vero est ex assumptione humanitatis, factus secundum ordinem Melchisedek, et creatus et ideo minor patre. 3
The two natures in Christ, God and Man, are symbolized by His royal and priestly functions. As king He is one with the Father, hence divine; as priest He is merely man and thus inferior to the Father. 4 It is quite in consonance with this speculation when our author holds
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1. He appeals to St Augustine who had called the Church "regina" of Christ, but I was unable to verify the quotation.
2. He refers, by way of exemplification, to Jer. xxiii. 5-6 and to Zach. ix. 9: Tract iv, LdL., p. 662.
3. Tract iv, LdL., p. 667.
4. Tract iv, LdL., p. 667, lines 10-11: "Sacerdos inferioris officii et naturae, id est humanitatis, rex superioris, id est divinitatis."
that Christ had given promise of the kingdom of heaven, but never of the "priesthood" of heaven. 1 The important point to bear in mind, according to the author, is that when Christ created and changed things, He could do this only in the exercise of His royal functions, and not in the exercise of His sacerdotal functions: as a king He ruled, that is governed, men and angles, whilst as a priest He never performed governmental actions, but only redeemed man. The redemption of man by Christ -- the effluence of His sacerdotal part -- is the means by which Christians may in fact partake of His royal-divine government. As king alone He would not have been able to make His followers, all Christians, partake in the divine ordering of things: their redemption was necessary for this. 2 On the other hand, Christ could not have become priest, that is Man, without first being a king, that is, God. Christ's royalty was prior and superior to His priesthood, because in His royalty He was equal to the Father. 3 He died as a priest, not as a king.
The same relationship can be observed in the case of the king. Christ was the prototype of any king: a Christian king represents Christ on earth, in so far as not only His royalty, but also His priesthood is typified in him. The king is in every respect a rex and a sacerdos. 4 The king is "figura et imago Christi et Dei" 5 and just like his prototype he rules and governs the Christian people, by virtue of his kingship: "regnat et regit populum suum." Because Christ as king was one and equal to the Father, so the king as king too was one and equal to Christ and God: "Unde et rex Deus et Christus est"; and in so far as he governs, he exercises divine powers. If on the other hand the priests were to govern, this would mean that a certain governmental act, as for instance, the appointment and installation of the king himself, would be based upon the human side of Christ: and as a priest Christ never exercised governmental actions, being unable to do so, because
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1. Tract iv, LdL., p. 667, lines 17-18: "Regnum enim coelorum ubique scripturarum promittit fidelibus, nusquam autem sacerdotium."
2. Tract iv, LdL., p. 667: "Secundum vero quod sacerdos est, homines tantum redemit, ut secum regnare faciat. Haec enim est tota intentio, qua sacerdos factus est, et se ipsum obtulit, in sacrificium, ut homines regni sui et potestatis regiae faceret esse participes."
3. Tract iv, LdL., p. 667: "Hinc igitur apparet majorem esse in Christo regiam quam sacerdotalem potestatem et praestantiorem, tanto scilicet, quanto divinitas eius major est humanitate atque praestantior."
4. p. 665, lines 21 ff.
5. p. 667, line 8. On this cf. E. Kantorowicz in Harvard Theol. Rev., xlv ( 1952), pp. 253ff.
only in His royal functions could He create and make things, but not in His purely sacerdotal-human function. But when the king institutes the priests, this indeed is the effluence of the divine functions in Christ: it is a governmental act which a priest can not perform. 1 The consequence is that the government of the corpus fidelium must be in the hands of the monarchic king because he alone is the "figura et imago Christi" and hence alone functionally qualified to govern.
In pursuance of this idea the author logically claims that the ecclesiasticum regimen must be in the hands of the king as Christ's vicar. The unity of royal and sacerdotal powers in Christ, the unity therefore of these powers in his "figura," the king, is a necessary guarantee for the achievement of unity in the unum corpus. Unity of government, that is the monarchic form of government, is the necessary presupposition for unity of the body politic itself. Hence the two powers must, so to speak, be glued together -- "in glutino Dei unita conventio" 2 -- to ensure unity of the whole body. Monarchy alone will guarantee this. And just as royal power in Christ is superior and original, so also it is with the king. 3 Only under this presupposition can the terrestrial kingdom become a faithful and true reflexion of the celestial one when the former is presided over by the king functionain as a true monarch, that is, by the "figura Christi" who continues Christ's function as head. 4 The "terrena civitas" is the copy of the "civitas Dei" but only if it is ruled by the monarchic king 5 who is "summus typus" and "summa figura" of Christ. 6 Christendom is a corporate body politic; it is the respublica Dei omnipotentis. 7
It is therefore the basic contention of our author that the (royal)
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1. "Verum si sacerdos per regem instituitur, non per potestatem hominis instituitur, sed per potestatem Dei; potestas enim regis potestas Dei est."
2. p. 669, line 7.
3. "Quare et a quibusdam estimatur, ut in hominibus similiter major sit et praestantior regia potestas quam sacerdotalis, et rex major et praestantior quam sacerdos, utpote melioris et praestantioris Christi naturae imitatio sive potestatis aemulatio," p. 667.
4. Tract v, p. 685, lines 33 ff.: "Haec quidem sublimis et gloriosa investitura est, qua Deus imperatorem sive regem investit, ut habeat potestatem coelitus datam super omnes homines ad hoc, ut qui bona appetunt, adjuventur, ut coelorum via largius pateat, et terrestre regnum coelesti regno famuletur, et ut manui suae sacerdotes suos Christus committat et eisdem dominari concedat."
5. p. 673: "Regnum enim eorum (scil. regum) figura est coelestis regni."
6. For ideological support he draws on St Augustine again, Ep. 185, c. 5, nos. 19 and 20, quoted in full on p. 673, lines 22-41.
7. p., 674, line 19. Cf. also p. 676: "Unde manifestum est, reges habere sacrosanctam potestatem ecclesiastici regiminis super ipsos etiam pontifices Domini et imperium super eos, ut et ipsi pie fideliterque regnant sanctam ecclesiam."
Vicar of Christ has the task of providing the priesthood with adequate ministers, so that, in his words, the priests may serve the Church "pie fideliterque." Hence the king appoints and creates ecclesiastical officers. All this, he declares, is foreshadowed in the Old Testament where we read of priestly appointments by kings. Moses, who was not even a king, but a mere "dux populi," had power over the priests 1 and made Aaron and his sons priests: he also consecrated the tabernacle and the altars and the liturgical objects. 2 But Moses could not have done all this if he had not been given power to do so by God Himself. 3 The same holds true as regards Joshua and the five kings of Israel. King Solomon in particular was such a shining light that he has rightly been called "ecclesiastes." 4 He enlarged the number of priests, laid down a new liturgy, himself caused a temple to be constructed and consecrated it himself: 5 "In his igitur omnibus per figuram Christus Domini fuit et Christi futuri vices exercuit."
The visible act of anointing during the coronation of the king creates an intimate union between him and the corpus of all believers and hence he becomes sanctus. "The king is felt to be almost physically transformed into a sanctus by the holy chrism in which flows the cleansing potency of the Holy Spirit." 6 Oblivious or unaware of the change effected in the kind of oil used for imperial unctions, our author holds that this unction contains a higher degree of sanctity than a mere episcopal unction, for the king's unction is performed after the example of Christ Who was anointed by God Himself "ante saecula," whilst that of the bishops is modelled on that of Aaron and the apostles. 7
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1. Tract iv, p. 666, lines 24 ff.: "Sed de Moysi quid dicemus, qui non fuit rex unctione sacratus, non fuit sacerdos, sed dux tantum populi? Nonne et ipse super sacerdotes potestatem habuit et imperium?"
2. ". . .et tabernaculum et altaria et omnia vasa eius sanctificavit et totum dedicavit sanctuarium."
3. Tract iv, p. 666, lines 24 ff.
4. p. 666, lines 34-5.
5. p. 666, lines 39-40.
6. Williams, op. cit., p. 159.
7. p. 669, lines 23 ff.:
"Major regis quam sacerdotis et unctio et sanctificatio et potestas . . . secundum interiorem gratiam et veritatem invisibilis et spiritualis unguenti et maxime secundum exemplum filii Dei, ad quod instituta est, major sanctior videtur unctio et sancrtificatio et potestas regis quam sacerdotis. Nam unctio et sanctificatio sacerdotum ad exemplum Aaron instituta est, quem Moyses unxit et sanctificavit, et quod majus est, ad exemplum apostolorum quos unxit Deus pater ... regis vero unctio instituta est ad exemplum illius quem Deus pater unxit ante saecula . . . Jesu Christi Domini nostri." Reference is made to Ps. xlv. 7, and Hebr. i. 9. As regards royal coronations in England, the author merely states the practice.
This sanctification confers the highest kind of priesthood upon the king. He is alone Deus-Homo. 1
As the "figura Christi" the king represents Christ on earth: he is Deus-Homo. It is not consequently surprising that the famous gelasian passage is adduced by the author in support of his monarchic scheme. 2 What Gelasius had related to Christ, is now related to the "figura Christi." Whereas, on the authority of Gelasius, Christ had distributed the two powers, so also does the king, the "figura Christi" do now. Because the author has set aside the primacy of the Roman Church and the Pope's mediatory role, he is theoretically entitled to call upon Gelasius as his supporting witness. This view is indeed hierocratic doctrine turned upside down. Moreover, because the king is also a priest, he may function as a priest: he may remit sins; 3 the power of the keys is conferred upon him through the act of anointing, and is based upon his theory of the priesthood of all Christians: St Peter had received this power on behalf of all the others. The king's priesthood also entitles him to sacrifice bread and wine. 4 No wonder, then, that the author's king may also proclaim doctrine and faith, because he is "summus pontifex." 5 He convokes councils, 6 issues ecclesiastical laws and is the supreme ecclesiastical tribunal -- the solium justitiae. 7
We recall that the hierocratic thesis stressed the function of the soul as the directling agency of the body; hence the priests alone were considered functionally qualified to issue binding instructions for the proper use of the corporeal or material. It is the same teleological and directive principle which we meet in the anonymous author of our tracts, only in an inverted sense. There are some, he says, who declare that kings should have power over the bodies, priests power over the souls -- as if, he exclaims with a note of irritation, souls could be ruled without the bodies, and bodies governed without the souls, 8 which to maintain "is manifestly without reason." The unitary view on human personality militates against the theory of a diarchy. For if the bodies are to be well ruled, the souls too must be well ruled, and vice-
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1. p. 664, line 26 ff.: "In unoquippe erat naturaliter individuus homo, in altera per gratiam christus, id est, Deus Homo."
2. Quoted in three places: tract iv, p. 663, line 26; p. 668, line 32; tract v, p. 684, line 45.
3. p. 672, lines 14 ff.; 677, lines 10 ff.
4. p. 678, lines 18 ff.: "Quare et peccata remittere et panem et vinum in sacrificium potest offere quod utique facit in die quo coronatur." For this cf. also Williams, op. cit., p. 169.
5. p. 677, line 33.
6. p. 675, line 25; p. 676, line 7.
7. p. 674, line 21.
8. p. 663, lines 29 ff.
versa. 1 The human body is the temple of the Holy Ghost, that is, of the soul. 2 The soul must necessarily follow the direction of the body which houses it. If we transfer these ideas to the larger question of government it becomes clear to our author "quod rex habet principatum regendi eos, qui sacerdotali dignitate potiuntur." 3
There is no gainsaying the originality of this author, his trenchant utilization of sources and materials, and his theological acumen. Concentrating as he does on the essential point, namely the link between Christ and the king, he establishes in his king a Deus-Homo, the "figura et imago Christi." This author saw the necessity of making the king a true monarch in a Christo-centric world, hence his christological argument. In consequential pursuit of his theme the teleological conceptions fall into line with his principles of government. It would be quite misleading to dub our author a materialist, because he adheres to the view that the body alone gives direction to the soul: for, quite unlike the conceptions of kingship which the dualist opponents of the hierocratic scheme embraced, his king is not a mere personification of inert matter, and for this reason alleged to be autonomous: quite on the contrary, his king is "Deus et Christus," not because he deals with matter, but because Christ's royal nature was directly continued in him, and Christ's royal nature was the true divine part of His being. The reason, we suggest, why our author arrives at this view is that the priestly office cannot concern itself with government. Government is dominium in the literal meaning of the term manifesting itself in the promulgation of binding decrees, the laws, and in their enforcement: government, according to the view of our author, means to take effective measures, to shape and to alter, to direct and to command: this is what he comprises under the term "creation." Because Christ had created, He was king, that is, He governed. Although perhaps somewhat tortuous, this is indubitably an original theory. But there looms many a large question in the background. Could this highly speculative theory conquer the hierocratic theme? Could this purest kind of speculative theology do away with the scriptural argument, so easily accessible? Where was the documentary evidence for the author's ingenious assertions of the divinity of Christ's kingship, and the humanity of His priesthood? 4
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1. p. 663, lines 32 ff: "Necese est enim, si bene regantur corpora, bene regantur et animae et econverso, quoniam utraque ideo reguntur, ut in resurrectione simul utraque salventur."
2.. He refers to I Cor. vi. 19, and to II Cor. vi. 16.
3. Loc. cit., lines 41-2.
4. In view of his christological arguments it is erroneous to say that he almost
IV
We must now turn to another representative of anti-hierocratic thought, the author of the Liber de unitate ecclesiae conservanda. 1 It should not be assumed that because we survey him his work had exercised any influence. 2 The reason for giving this tract any prominence at all is that it contained ideas which were not only extraordinarily similar to those expressed by Henry IV in the early months of 1076, 3 but which also in the following century gained great currency. The tract is merely symptomatic of a certain kind of anti-hierocratic opposition.
So far we have surveyed three authors who firmly adhered to the monarchic conception of rulership. This author, however, is one of the early specimens who wished to propound an anti-hierocratic doctrine in the shape of a diarchy of government. He maintained that the Petrine power to bind and to loose was not comprehensive: the binding and loosening concerns only those things which should be bound and
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anticipated the fourteenth-century attacks on the Papacy or that he was unique. He was one of the few, if not the only one, and one of the last, if not the last one, who attempted to rescue the monarchic king by establishing a link between him and Christ. Nor is it quite correct to say that the York Tracts were the only "English" contribution to contemporary controversial literature. Even if Williams's thesis is accepted, there are indubitably English contributions from Theobald of Étampes writing from Oxford to Roscellinus at Compiégne (LdL. iii. 603 ff.), Bishop Herbert Losinga of Norwich (ibid., iii. 615 ff.) and others whose writings have disappeared; cf. Böhmer, op.cit., pp. 168 ff., WattenbachHoltzmann, Geschichtsquellen im Mittelalter, Tübingen, 1948, i. 772 ff. The politically important tract of Gilbert Crispin (a pupil of St Anselm, see R. W. Southern, "St Anselm & his English pupils" in Medieval & Renaissance Studies, i ( 1943), pp. 19-22) is edited by J. Armitage Robinson, Gilbert Crispin, Cambridge, 1911, pp. 111-24, and also by W. Holtzmann, "Zur Geschichte des Investiturstreits" in Neues Archiv, 1 ( 1933), pp. 255-70. Of a little later date is the Oxonian and later Cardinal Robert Pulleyn writing in the thirties of the twelfth century.
1. Ed. MGH. LdL., ii. 173 ff.
2. In actual fact this work was completely unknown in the medieval period: only in 1519 Ulrich van Hutten discovered it in the library of Fulda and published it the year after; and since then, even this one manuscript has vanished. For details see R. Holtzmann in Wattenbach-Holtzmann, Geschichtsquellen in Mittelalter, cit., i. 406-7, here also modern literature.
3. The tract was written in the early nineties of the eleventh century. The usual designation of the author today is "the monk of Hersfeld" because it is believed that a monk of the monastery of Hersfeld wrote it. The possibility, however, that Gottschalk, the provost of Aachen and Henry's chief chaplain, was the author, cannot be entirely dismissed, cf. supra 345, and see also the remark of C. Erdmann in his examination of Gottschalk, Deutsches Archiv, iii ( 1939), p. 172, sub no. 17 and in Archiv f. Urkundenf., xvi ( 1939), p. 203, note I.
loosed. 1 In vain, however, we shall look for a definition of matters which should not be bound and loosed. Nevertheless, the author contends that by disregarding the essentially limited power given to St Peter, Hildebrand had disturbed the peace and unity of the one Church. But when there is no unity, one cannot speak of a catholic Church, that is, a universal Church, because then it is not the Church of Christ, but the Church of the wicked. 2 By this treacherous conduct towards Henry IV Hildebrand had trangressed the divinely set frontiers: he not only caused disunity and untold harm, but he also took it upon himself to wield the sword which alone belonged to King Henry: the Pope had thereby doubled and trebled the sword and sown dissension. 3 Moreover, Hildebrand had violated the apostolic command "Fear God, honour the king" for the king has his power directly from God -- "cui potestas a Deo concessa est" 4 -- that is, the power to coerce and punish evidoers.It sword -- "cui gladius est permissus ad vindictam noxiorum" 5 -- which the recently deceased Hildebrand had arrogated to himself. In this way, he has usurped the height of royal power. 6 The remedy proposed by the author was the separation of the two swords, their distribution to Pope and king, in short a dual form of government.
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1. i. 4, p. 190 : "Ecce, qualem, s. Petrus a Domino potestatem accepit ligandi atque solvendi, talem et ipse tradidit eius successori, scilicet in his, quae oportet ligari et quae expedit solvi."
2. i. 5, p. 191 : "Ideoque, ubi non est totum quod dicitur catholica, hoc est universalis ecclesia, ibi non est Christi, sed malignantium ecclesia, quae divisa est in aliqua parte."
3. i. 5, p. 198 : "Non solum duplicavit gladium, juxta quod in Ezekiele legitur (Ez. xxi. 14), vel triplicavit, sed et multiplicavit, et non solum divisit populum Christianum, sed et sacerdotia, ut multi sunt episcopi in parte ista, plurimi autem in parte altera." Cf. also ii. 11, p. 222 : "Sed jam facta divisione imperii simul et sacerdotii, surrexit rex adversus regem, gens adversus gentem, episcopus contra episcopum, populus contra populum." And ii. 3, p. 214 : "Scandalorum orta sunt genera; exinde crevit grave et diuturnum bellum et non solum civile bellum . . . vastatationes ecclesiarum et caedes hominum; exinde etiam corruptae sunt divinae et pariter humanae leges, sine quibus non subsisit ecclesia Dei vel imperii respublica; exinde violata est fides et publica et catholica."
4. i. 10, p. 198 ; cf. also ii. 13, p. 224.
5. i. 10, p. 198.
6. ii. 15, p. 230 : "Hildebrant et episcopi eius vendicaverunt sibi absque dubio fastigium regiae regulae, immo usurpaverunt sibi officia potestatis utriusque." Cf. also ibid.: "Hanc Dei dispositionem quisquis diligenter considerat juxta divinam utriusque potestatis ordinationem, perspiciet sane in hoc quoque per Hildebrantum et episcopos eius magnam operatam esse iniquitatem, qui, cum pro pontificali dignitate non deberent vel negotiis saecularibus sese implicare, usurpaverunt sibi ordinationem regiae dignitatis contra Dei ordinationem et contra usum et disciplinam ecclesiae."
This point of view can be propounded only when firstly, the corporate, juristic and organic character of the universal Church is denied: when in other words, the universal Church, the congregatio fidelium, is considered to constitute merely a spiritual fellowship held together by the bonds of charity, peace and love. In this way the author would look forward to a period radically different from his own, to a time, that is, when Christianity had become a "moral force" having no organic, corporate and juristic character. Secondly, ecclesia and imperium are two distinct entities which are autonomous, or rather, whose rulers are autonomous, having been both directly instituted by God. Ecclesia therefore means to him no more than the sacerdotium. 1 Thirdly, and arising out of these two points, is his contention that Christ is the true head of Christendom. In other words, the monarchic principle is assailed by him, but he can do this only by denying the -- hierocratically conceived -- mediatory role of the Pope, that is, the fullness of the Petrine commission, the plenitude of power. 2 Christ has instituted both powers: He had given only specific power to St Peter, whilst others He had given to the king; or if we were to employ the terminology of the twelfth century, He had not created St Peter His sole vicar: 3 and for this the author believes that he finds support in no lesser authority than Gelasius I. 4
The consequence is that the author must deny the decrees of the Roman Church binding, that is, juristic character: the Pope's weapon is not the law or anything else but the "verbum Dei." 5 What the Pope
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1. Cf. ii. 3, p. 214 : "Ecclesia Dei" and "imperii respublica." Furthermore ibid.: "Certe Deus Romanorum praeparavit regnum, ut ibi et ecclesia et imperium haberet principatum; huic divinae ordinationi qui resistit, Deo resistit." Also i. 12 : "Haec potestas (scil. regia) quae a Deo ordinata est et quae jubetur honorificari, ubi tandem debet judicari? Utrum in ecclesia an in curia? Si in ecclesia, fortasse ecclesia fit curia, quae a cruore dicitur . . . et cum ecclesiastica prohibeant decreta . . . ut inferior quilibet gradus non praesumat superiorem accusare, quis accusabit regem quasi praecellentem?"
2. In substance this attack on the Pope's plenitude of power -- an attack essential to every dualist -- foreshadows the (more effective) fourteenth-century opposition to the hierocratic ideology; cf. Dante, Monarchia, iii. 8 (ed. A. C. Volpe, Modena, 1946), pp. 162-4; Marsiglio of Padua, Defensor Pacis, II. xxiii. 5 (ed. R. Scholz, Hannover, 1933), pp. 445 ff.; Ockham, Breviloquium de potestate papae, caps. xiv-xix (ed. L. Baudry, Paris, 1937), pp. 43-59; idem, Octo quaestiones, III. iv; etc.
3. As indeed Staufen idelogy was to conceive of a double vicariate of Christ, cf. supra p. 343 n. 3.
4. See i. 3, where he quotes the relevant passage from Tractatus IV of Gelasius.
5. i. 3: "Sacerdotale judicium non habet nisi gladium spiritus, quod est verbum Dei."Cf. Ephes. vi. 17.
can do is to submit a humble petition to the prince, but on no account may the latter be deposed 1 or even excommunicated, because he is "minister Dei" and as such may not be judged by anyone, 2 the underlying reason being that he -- just as much as the [Pope] -- is directly instituted by God. There is a regia auctoritas and next to it a sacerdotalis auctoritas. The Papal insistence on the binding and juristic character of the canons issuing forth from the Roman Church is in reality the main grievance of our author: it is this which he means by the charge that the Gregorian party would like that "totus mundus vadat post eos, non post Christum"; 3 it is this which he means by the multiplication of swords in the hands of Hildebrand. His ideal Pope -and he considered Clement III ideal enough to eulogize him -- was one who admonishes by using the "verbum Dei," but who does not issue binding laws. Government, or what he calls the coercion of evildoers, is the task of the autonomous secular ruler. The Pope is given no more than magisterium, but no jurisdictio. The respublica imperii and the ecclesia are two independent societies, the aims of which are never stated. 4 The negation of the Pope's jurisdictional powers, the narowing own of the concept of ecclesia and the concomitant emergence of the respublica imperii are heralds of an -- as yet distant -- time when the problem was no longer Pope versus king-emperor, but the very real separation of Church and State.
There is a great ideological kinship between the school of thought represented by this author and a group of writers who, though insistent on a diarchy of government, nevertheless introduced a topic which at the time was of mere practical importance but which later was to assume an equally great theoretical importance. These writers were of a more practical bent. In order to combat the hierocratic thesis effectively, this school of thought was forced to look for some concrete basis of royal power; they directed attention less towards the origins of royal power than towards the actual and concrete objects with which royal power was concerned. And these objects were found in property and material possessions. What was the position of the bishop (or abbot) as holder of estates and goods connected with the bishopric
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1. i. 3: "Sic solebant Deo digni pontifices Romani suppliciter deprecari pro ecclesiastica pace, non quaerentes, immo numquam concipientes animo, aliquos de regibus sive imperatoribus deponere. . ."
2. Cf. the passage quoted supra, p. 406, note 1.
3. See ii. 14, p. 225.
4. Unless one takes the punishment of evildoers by the king's sword as the aim of the respublica imperii.
(or abbacy)? Although these writers cannot be said to have contributed materially to questions of principle, they nevertheless deserve attention because of the possibilities inherent in their theory of a separation of ecclesiastical office and ecclesiastical possessions.
The theorists of the Regalia assert the exclusive rights of the king as regards the "temporalia" of the invested bishop (or abbot) and consequently deny ecclesiastical jurisdiction over these "temporalities." It was undeniable that the bishops by way of investiture had received, not only their pastoral office, but also substantial property, such as houses, estates, manors, granges, and so forth. In order to ward off the comprehensive hierocratic claims some ant-hierocratic littérateurs with a practical sense withdraw he rex-sacerdos from his exposed position, and maintained the king's inalienable and untransferable rights over the material possessions with which the bishop was invested. These royal rights associated with the temporal goods, houses, estates, and so on, received the significant name of Regalia. 1 The first to draw attention to this distinction between the (spiritual) office and the (temporal) possessions was Wido of Ferrara. 2 According to him, royal investiture is divided into two quite separate spheres, into the bishop's spiritualia, his episcopal and pastoral office, and the bishop's saecularia, consisting of manors, fields, and the like. The office is spiritual, the possessions are secular. 3 But the term secularia comprises also, according to Wido, "omnia placita saecularia et juditia et regalia et publica jura et vectigalia." 4 All these items were withdrawn from the bishop's jurisdiction, Wido declared, and the king alone was entitled to dispose of them. What the bishop had during the tenure, was legally a mere usufruct of the "possessions," which therefore remained the king's property. Hence every newly installed bishop must be invested anew
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1. The best recent account of the theory of the Regalia will be found in Irene Ott, "Der Regalienbegriff im 12. in Jahrhundert" Sav. Z., Kan.Abt. xxxv ( 1948), pp. 234-304.
2. See A. Scharnagl, Der Begriff der Investitur, Stuttgart, 1909, pp. 47-50, and Ott, art. cit., p. 238, Wido's tract was written in the spring of 1086 and entitled De schismate Hildebrandi, ed. MGH. LdL., i. 532 ff.
3. Wido, De schismate Hildebrandi, lib. ii, p. 564, lines 32 ff.: "Duo siquidem jura conceduntur episcopis omnibus, spirituale vel divinum, aliud saeculare; et aliud quidem coeli, aliud quidem fori. Nam omnia, quae sunt episcopalis officii spiritualia sunt, divina sunt, quia, licet per ministerium episcopi, tamen a sancto spiritu conceduntur. At vero judicia saecularia et omnia, quae a mundi principibus et saecularibus hominibus ecclesiis conceduntur, sicut sunt curtes et praedia omniaque regalia, licet in jus divinum transeant, dicuntur tamen saecularia, quasi a saecularibus concessa. Itaque divina illa a sancto spiritu tradita imperatoriae potestati constat non esse subjecta."
4. p. 565, line 42.
with these temporalities, otherwise "revertuntur ad imperialia jura." 1
It is an important distinction which the bishop of Ferrara draws, although its flaws are obvious; it is a distinction which has all the appearance of eminent practicability, even though theoretically open to all manner of opposition; it is a distinction which has all the makings of a compromise and as such will eventually be utilized for the truce signed at Worms ( 1122). What is important, however, is that in the stormy February days of 1111 Paschal II and Henry V drew up a document in which certain rights were declared to be the king's rights, and were termed as such: Regalia. By virtue of their nature, the Regalia are withdrawn from the jurisdiction of anyone else but the king. The bishops and abbots were to be satisfied with the tithes, offerings and voluntary gifts. The Regalia according to this document are:
Cities, duchies, markgravates, countships, mints, tolls and customs, markets, hundredcourts, manors, soldiery and fortifications. 2
Even though all this remained a dead letter, the careful enumeration of these royal rights, the Regalia, and their embodiment in an official document, would indicate that as regards these material goods kingly rights were acknowledged, that is to say, rights which the king had independent of any other authority, and solely emanating from the fact of his materially possessing them. Royal ownership alone was the criterion. It is however plain that the proposal that the bishops should divest themselves of all temporal possessions, was unacceptable to the logical and consistent papal-hierocratic mind: this is made manifest by Placidus of Nonantula writing in the same year 1111 and obviously attacking the proposal. 3
Not the least interesting facet of this tract of Placidus is that although it deals largely with this question, the author studiously avoids the
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1. p. 564, lines 41 ff.: "Quae vero sunt ab imperatoribus tradita, quia non sunt ecclesiis perpetuo jure manentia, nisi succedentium imperatorum et regum fuerint iteratione concessa, dicuntur profecto quoddammodo regibus et imperatoribus subdita, quia nisi per succedentes imperatores et reges fuerint ecclesiis confirmata, revertuntur ad imperialia jura."
2. MGH. Const., i, no. 90, p. 141: "Interdicimus etiam et sub districtione anathemastis prohibemus, ne quis episcoporum seu abbatum, presentium vel futurorum, eadem regalia invadant, id est, civitates, ducatus, marchias, comitatus, monetas, teloneum, mercatum, advocatias regni, jura centuriorum et curtes, quae manifeste regni erant, cum pertinentiis suis, militiam et castra regni, nec se deinceps nisi per gratiam regis de ipsis regalibus intromittant."
3. See Ott, art. cit., p. 246. The tract De honore cclesiae is edited in MGH. LdL., ii. 568 ff.
expression Regalia when speaking of the "temporalities" of the bishop. For him these kingly rights do not exist, and hence he cannot even use the term. The material possession and the episcopal office are one: they are inseparable, just as body and soul are. 1 With the installation of the bishop he automatically obtains possession of the material goods attached to his bishopric. In his enumeration of these goods Placidus leans heavily on the definition of the Regalia in the papalimperial document. The underlying reason for Placidus's rejection of the idea as well as of the notion of Regalia is the old unitary principle rationalized in the view that what was once donated to an individual church, remains the property of the whole Church:
Quod semel ecclesiae datum est, in perpetuum Christi est. 2
In a way one might see in this view the old proprietary church principle turned upside down. 3
Nevertheless, despite the hierocratic condemnation of the division of the episcopal sphere into an "office" and "possessions," and despite the theoretical untidiness and practical difficulties which the division introduced, the idea appeared to appeal to writers with a strong practical bent of mind. This applies in particular to the Upper Austrian monk Gerhoh of Reichersberg writing in the thirties of the twelfth century. 4 Whilst earlier writers, such as Wido of Ferrara, had distinguished between the office and the possessions of the bishop, Gerhoh accepts this division, but, and this is the important point, adds a distinction as regards the king himself. According to Gerhoh a distinction should be drawn between donations which the king made as a private person, and the donations which he made in his function as a king.
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1. "Si enim saecularia, quae ecclesia possidet, per saeculares obtinere episcopus debet et spiritualia per spirituales, ergo quoddammodo dividitur ecclesia. Sicut autem qui corpus ab anima dividit, destruit hominem, ita qui corporalia ecclesiae a spiritualibus dividit, destruit ecclesiam," p. 586 B, lines 25 ff. This is a state of affairs "omnes catholici abhorrentes."
2. p. 577, lines 31 ff. He continues: "Nec aliquo modo alienari a possessione ecclesiae potest in tantum, ut etiam ipse fabricator ecclesiae, postquam eam Deo voverit et consecrari fecerit, in ea deinceps nullum jus habere possit."
3. We may recall that the question of secular jurisdiction concerning a cleric's feudal matter, was of considerable importance later. Here again the same unitary principle was invoked to demand that no cleric must be judged before the king's justices in a matter of lay fee. This is summed up by Bishop Grosseteste, Ep. lxxii*, Rolls Series, p. 222: "Quilibet singularis homo etiam cum omnibus actibus suis unus et unum est; nec alius nec aliud est Petrus agens et Petrus simpliciter, licet alter sit vel alteratus ... et ideo si persona sit ecclesiastica, non subest judicio potestatis laicalis (scil. super laico feudo)."
4. His tract is called Opusculum de edificio Dei, ed. MGH. LdL., iii. 136 ff., and was written between 1126 and 1132 and in a second redaction issued in 1138.
The distinction which he tries to draw is that between the person and the office or that between the king and the crown. 1 The important point is that Regalia are rights which are inalienable and which are neither at the disposal of the individual king nor at that of the individual church. They are, if we were to employ Roman law or modern terminology, issues of public law.
Neither Gerhoh himself 2 nor, as far as can be seen, any other writer of the period, attached any significance to this very important distinction. 3 And yet, it is the conception of Regalia, assuredly only a side-
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1. Cap. 21, p. 152 :
"Sicut enim cuilibet fideli non dubitamus licere, ut sive de hereditate sua sive de alia legitime acquisita possessione oblationem faciat ecclesiis: sic idipsum regibus nemo est qui dubitet. Nemo qui tales oblationes ab ecclesia recusandus putet. De regni autem facultate, quae est res publica, non debet a rege fieri donatio privata. Est enim aut regibus in posterum successuris integre conservanda, aut communicato principum consilio donanda. De re autem privata tam a regibus quam a ceteris principibus potest fieri donatio privata."
2. See Ott, art. cit., pp. 263-4. It is not easy to construct a system from the various and long tracts of Gerhoh. If any particular trend is noticeable it is his opposition to the essence of the hierocratic scheme, namely that the priests govern and that they lay down binding rules of action. Although attributing to the Pope the vicariate of Christ and the successorship of St Peter (De Inv. Antichristi, MGH. LdL. iii. 325, cap. 19: "Christus per suum vicarium Petri successorem, Gregorium VII"), he nevertheless inveighs against the worldliness of the Roman curia to which he contemptuously refers as the "Romani" (ibid., p. 372, cap. 58): they claim to judge everything and everyone, but on the other hand, claim that they may not be judged by anyone; nor may anyone ask them "why do you do this?" (ibid., lines 12 ff.: "Cur ita facitis?"). If they had their way, all old law would vanish and they would make a new society, wiping out all distinctions, so that there would be "solum unum ovile et unus pastor, solus Romanus pontifex" (ibid., lines 25 ff.). It is certainly a "jocundum spectaculum" to watch the Pope proceed on feast days, riding on the imperial horse, clad with the purple "et aliis regalibus insigniis" ( De Quarta Vigilia Noctis, p. 511, cap. 12) and playing the role of the caesars and super-caesars ( De Inv. Antichr., p. 183, line 18; cf. also his scathing remarks about the "conduct" of the priests, ibid., p. 315, cap. 5). It was bad enough when once kings had added to their royal functions also priestly ones, but it is "more abominable" to witness the same thing "in sede beati Petri": the Pope should not claim more than one sword, since this is not warranted by reason, authority or the Fathers (ibid., p. 392 ). The evil began with Gregory VII ( De Quarta Vig. Noctis, p. 509, cap. II, lines 32 f.); from then onwards the pontiffs began to amass gold and silver -- "argentum et aurum colligere." The cause of the evil is the claim to unlimited power to bind and to loose. St Peter had not been given limitless powers: "Sed nec ipsam solvendi et ligandi potestatem indifferenter et pro libitu exercendam accepisse arbitrandus est" ( De Inv. Antichr., p. 355, cap. 47). This power was restricted: "Ut solveret quae solvenda essent et liganda ligaret," ibid., lines 22 ff. Christ, Gerhoh holds, "determinate tradit, sub eadem determinatione se accepisse patenter (Petrus) innuit," ibid., lines 31-2. Like the author of De unitate ecclesiae conservanda, Gerhoh can arrive at a dualism only by restricting the power to bind and to loose.
3. D. Knowles, Episcopal colleagues of Archbishop Thomas Becket, Cambridge
issue of the great ideological conflict, which forms one of the embryos out of which the theory of sovereign-public rights will grow and herewith the theory of the modern State.
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1951, pp. 82-3, was the first to draw attention to the influence of Gerhoh of Reichersberg on Gilbert Foliot during the Becket controversy. But it seems that Gerhoh's influence may even have been greater, particularly concerning the possible distinction between king and crown. Cf., for instance, Henry II's Assize of Northampton, W. Stubbs, Charters, p. 180, cap. 7: "Justitiae faciant omnes justitias et rectitudines spectantes ad dominum regem et ad coronam suam." Cf. on this C. McIlwain, Growth of political thought in the West, London, repr. 1949, pp. 379-80, and about the possible inclusion of the respective duties in the coronation oath, see F. M. Powicke, Henry III and the Lord Edward, Oxford, 1948, ii. 725, note 1. About the "proprietary theory of kingship" see especially Maitland in Pollock & Maitland, History of English Law, Cambridge, 2nd ed., 1923, i. 511 ff., especially 521 ff. Attention should also be drawn to the early thirteenth-centuryLeges Anglorum which contain a title headed "De jure et appendiciis coronae regni Britanniae et quod sit officium regis" (cf. F. Schulz, "Bracton on Kingship" in EHR. lx ( 1945), p. 149). The reply of Henry III to Grosseteste is worth quoting, as it also shows the auxiliary role allotted to the Pope and the priesthood within the framework of a government built on this principle. In 1245 Grosseteste pleaded with the king for "obedience, fidelity and devotion" towards the Roman Church and the Pope, and the reply Henry gave was this: "Domine episcope, quae pertinent ad coronam et regalitatem nostram, intendimus, sicut et debemus, conservare illaesa; et desideramus, quod dominus papa et ecclesia sint nobis in hac parte in adjutorium," but apart from this he promises obedience and devotion; the reply was forwarded to Innocent IV without any comment by Grosseteste; cf. Ep. cxvii, Rolls Series, p. 338.