Most of the written records that survive from the European Middle Ages are legal documents. They include such things as charters, registers, writs, contracts, wills, court rolls, tax records, and other written instruments of civil administration. They also include ecclesiastical legal documents, such as the canons of councils and synods, collections of church law, the act books and cause papers of ecclesiastical courts, bishops’ registers, mandates, memoranda, formularies, monastic cartularies, and numerous other artifacts of ecclesiastical administration. Likewise the chronicles, annals, and other narrative sources upon which historians also rely are typically filled with accounts of lawsuits and other legal actions that arise from property disputes, treaties, crimes, and the punishment of malefactors, not to mention domestic matters, such as marriages, dowries, divorces, and the disposition of estates. All of these had profound legal consequences and were governed by legal rules, many of them highly technical. Even medieval poets on occasion employed the language of the law to describe the legal consequences of love and marriage, betrayal and perjury, adultery and rape, death and mourning.
Some grasp of medieval laws and legal conventions is accordingly essential for the study of almost any facet of medieval life. But which laws? Medieval laws came in abundant variety. Multiple legal systems coexisted and overlapped within the same town or region, each with its own complex rules and conventions as well as its own system of courts that applied them. Manorial law, feudal law, municipal law, royal law, maritime law, merchant law, Roman law, and canon law all nestled cheek by jowl with each other in medieval communities. Each claimed its special areas of competence, to be sure, but jurisdictional claims frequently competed with one another and disputes over jurisdictional questions erupted with lamentable regularity.
Worldly-wise and canny litigants, however, could find ways to manipulate this competition for jurisdiction to their own advantage. Multiple courts and legal systems gave individuals and institutions the opportunity to take their lawsuits to the jurisdiction that seemed most likely to produce the result that they wanted in the shortest time and at the least expense. This does not mean, of course, that all medieval litigants acted rationally, any more than their modern counterparts do. But the situation certainly furnished clear-headed parties with ample opportunity either to stretch out or abbreviate the settlement of their legal claims, depending upon what best suited their interests.
To penetrate the mists of the legal documents that survive from any of the multiple jurisdictions that flourished in the Middle Ages requires some knowledge of the subtleties and conventions of the legal language and procedures peculiar to that jurisdiction. In legal records, as historians have occasionally learned to their sorrow, things are seldom what they seem. The words “By force and arms” (vi et armis) in English common law documents, for example, do not necessarily mean that the trespass of which the petitioner complains involved either weapons or physical coercion—at least not in any ordinary meaning of these terms. Vi et armis was simply a technical formula necessary to bring the matter under royal jurisdiction. Similarly the “clerics” who appear in ecclesiastical documents were not always religious professionals, while some full-time religious professionals, such as nuns or members of military religious orders, for example, were technically not “clerics” at all. Likewise, a “libel” (libellus) in canon law need not be defamatory, nor does it mean a “little book”, which is another possible definition—in legal records, however, the term refers to the formal petition for redress necessary to initiate an action before a canonical judge. The terminology of legal documents is often baffling to the uninitiated, and people have complained about this for centuries.1
1 John of Salisbury, Policraticus, sive de nugis curialium, 2 vols, ed. C. C. J. Web (Oxford, 1919), 5.19, 1:350–351; cf. E. K. Rand, “Ioannes Saresberiensis sillabizat,” Speculum 1 (1926): 447–448. Jonathan Swift made a similar complaint in Gulliver’s Travels, pt. 4, ch. 4.
Canon law occupied a unique niche among the legal systems that flourished in the Middle Ages. While most legal systems were confined to a particular region or locality, canon law emerged as a working and often quite effective international law. With relatively few exceptions, the same canonical rules applied everywhere in Latin Christendom and, at least in principle, its rules applied equally to everyone, regardless of gender, class, or social standing. Thus dynastic alliances between royalty at the upper end of the social scale and peasant marriages at its lower end were both subject to the same body of canonical marriage rules. This does not mean, of course, that in practice canonical courts treated princes and ploughmen with even-handed impartiality. The canonical legal system, like any other, often—perhaps too often—fell short of its ideals. What was remarkable, however, was that impartial equality was a canonical ideal at all.
This book aims to provide an introduction to the fascinating field of medieval canon law. It seeks to provide an orientation to its history, development, and interaction with the world in which it operated. The first edition of this book, authored by James Brundage, sought to sketch the broad outlines of the development of canon law in the Western church from its beginnings to the end of the Middle Ages. The core objective of this second edition remains the same, but after almost 30 years since its publication a light revising was simply not possible. A bit of reworking was needed in the light of recent discoveries and scholarly trends. The second edition, rooted in the original volume, is in many ways a different work. Chapter 1, “Law in the Early Christian Church,” lays the foundation for canon law with the norms that developed in the early Christian Church to guide its members and to help individual communities navigate questions confronting its faithful. These norms originated in the Bible, in the writings of the Patristic Fathers, in decrees of church councils, and in papal decretals. Alongside these sources, Roman emperors of the fourth century would have a tremendous impact on the status of the Church and Roman law would serve as a secondary source for the canonical tradition. Norms that regulated Christian monasticism would also complement the canonical tradition. Texts found in these sources would be recopied into the canonical collections that began to appear at the turn of the fifth century.
Chapter 2, “Canon Law in the Early Middle Ages,” delves into the realization that canon law in the early Middle Ages was truly an era in which law did not emanate from one centralized authority in the form of a “state”. Law was not simply a top-down measure. Law, rather, came from a diverse variety of legislative bodies, be it secular rulers, church councils, the papacy, penitential manuals, or monastic rules. These sources were not isolated from but rather crisscrossed one another. The products of these legislative bodies—along with Scripture and the writings of the Church Fathers also discussed in Chapter 1—were then selected for their applicability and gathered into a wide assortment of collections that served the needs of both the compiler and its community of users, needs that included the administration of justice, ecclesiastical governance, liturgical services, pastoral care, and overall spiritual welfare of both the religious and the laity. The early Middle Ages also saw the secular and the sacred becoming more intertwined as Frankish kings sought to harness the political advantages ecclesiastical institutions could offer. With the ascension of Charlemagne and the birth of the Carolingian empire, the secular and sacred came closer together. As the Carolingian empire faced headwinds and there was a perception of disarray, canonical collections and episcopal handbooks offered some mechanism for safeguarding, at least in theory, societal norms.
Chapter 3, “Canon Law amid the Eleventh-Century Reform Efforts,” explores how canon law was used to address complaints about the influence of the secular sphere on ecclesiastical institutions and the drastic deterioration in the discipline of the clergy and of the spiritual services that began to surface by the beginning of the tenth century. From the pontificates of Leo IX (1049–1054) through Calixtus II (1119–1124), a key focus of papal and conciliar policy was to eliminate lay inference by ridding the church of the twin vices of simony and nicolaitism (clerical marriage). The papacy’s interjection of its authority led to clashes with the German emperors, known as the Investiture Controversy, and with it a wide use of legal sources to justify each party’s position. Yet calls for reform were not isolated to the papacy. During this extremely active period in the proliferation of legal texts, compilers created and adapted to the law to create collections that suited the needs of its users, be it to preserve monastic privileges, bolster episcopal rights, or administer the diocese more effectively. There existed a negotiation of the legal material to suit a purpose shaped by the individual’s environment, and since every compiler’s environment was different, each collection would be different in order to suit the needs of that environment.
Chapter 4, “Gratian and the Decretists,” places one of the most important canonical collections of the Middle Ages into the overall intellectual revolution taking place at the turn of the twelfth century. Irnerius’s teaching of Roman law in Bologna revived the Corpus iuris civilis (Body of Civil Law), the product of the sixth-century Eastern Roman Emperor Justinian’s call for a reform of the legal system. As Irnerius was reviving the study of Roman law in Bologna, schools in northern France—the cathedral schools of Chartres, Reims, and Notre Dame in Paris; and the monastic schools of Bec, and Ste-Geneviève and St. Victor on the Left Bank of Paris—were likewise thriving for their focus on the artes liberales (liberal arts) and the development of the scholastic method, a method of inquiry that provided tools to analyze, cross-reference, and reconcile texts. The face of these two movements was Gratian, a Bolognese magister (teacher) of law whose Decretum became the textbook for the teaching of law across Europe and England, which, in turn, sparked new methods of commentary to facilitate teaching as well as to further clarify or correct Gratian’s understanding of the law. These commentors, known as Decretists, hailed from Anglo-Norman region, northern France, the Rhineland, and Italy. They sought to clarify, elaborate, and even contradict Gratian’s understanding of the law.
Chapter 5, “Decretal Collections and the Decretalists,” engages in the papacy as a driver of law in the twelfth century. Papal decretals, which had been a feature of the canonical tradition since late antiquity, began to play a more important role. Popes took an active role in holding councils, whether in person or via their legate, which resulted in conciliar legislation. Jurists gathered these papal decretals and conciliar acts into new collections to keep lawbooks current since the circulation of Gratian’s Decretum earlier in the century. Just as canonists had commented on the Decretum, some of these same jurists, along with others of the age, commented on the decretal collections compiled. Known as Decretalists, they were steeped in both the law found in Gratian as well as Roman law, which was burgeoning at places such as Bologna. The “new law” (ius novum) found in these decretal collections, together with the “old law” (ius vetus) found in Gratian’s Decretum, produced a unified body of canon law studied at universities and used by administrators. Despite a unified body of law, the source of law had taken a distinct turn with the thirteenth century. No longer was it the mining of the wide variety of texts from older collections which included texts from a diverse variety of legislative bodies: ancient church councils and papal decretals, the writings of Church Fathers, secular rulers, penitential manuals, and monastic rules. With the thirteenth century, legal norms largely emanated from the centralized authority of the papacy.
Chapter 6, “Canon Law in Intellectual Spaces,” explores canon law’s place in the wider intellectual climate. Penitentials and confessors’ manuals of the twelfth and thirteenth century drew on the principles and sources of canon law to instruct the priest in the salvation of the sinner’s soul. The treatises of thirteenth-century theologians saw the natural and divine law as found in the canonical collections as critical to keeping the faithful on the path to salvation. The twelfth and thirteenth century also ushered in the age of the ius commune, principles found in Roman and canon law, that established a set of universal legal principles and concepts, jurisprudential norms, customary legal norms, and constitutional norms. They factored into the courtroom, as seen with expert legal opinions known as consilia. They filtered into secular and customary legal collections across Europe as rulers and administrators considered—or were forced to consider—what was fair and just. The principles of the ius commune, principles which were woven into and inseparable from canon law, were neither the musings of law faculty nor the ideals of their students; they were the reflections on, and the application of, equity.
Chapter 7, “Canonical Courts and Procedure,” delves into the evolution of the canonical courts and procedural norms. This chapter begins by laying bare the various ecclesiastical courts, their personnel, and their purpose. Diocesan and synodal courts served in most cases as the court of first instance, with the court of the archbishop, or metropolitan’s court, serving as a court of appeals or court of first instance in egregious cases. By 1325, the decisions of the papacy’s external forum, the Roman Rota, had overtaken decretal letters as the principal vehicle for legal innovation in the Western church while the papacy’s internal forum, the Apostolic Penitentiary, served as the “tribunal of conscience.” Canonical procedural law grew increasing systematized between the twelfth and fourteenth centuries. Persons with formal legal training came to shape and operate this sophisticated, technical, and complex body of law. Under these circumstances, it is scarcely surprising to discover that jurists also became progressively more concerned with problems of procedural law and jurisprudence. Thus, they produced manuals and treatises to help judicial personnel navigate these waters. These works served as indispensable tools to the trial process and creating an atmosphere in which due process and justice could be upheld. The second part of this chapter turns from courts to procedure. It explains the evolution of the principles of due process, the different types of procedure, the course of a trial, and the development of procedural manuals used by officers of the court.
With canon law permeating the entire medieval social order, Chapter 8, “Canon Law in the Lives of People,” uses the case studies of deviation from religious norms and marriage to explore ways in which law was imposed on people, but also how people used the law for their own ends. The papal inquisition is probably the most famous example of how the institutional Church and its legal apparatus involved itself in the lives of people who had strayed from accepted belief. Serving penitential and punitive functions, it was the forum for detecting and correcting deviant behavior and belief. Marital law reveals that people had a level of legal understanding and used the law to reach a desired outcome. Couples sought dispensations from the papacy in cases of consanguinity and affinity to have their marriage, and their children, recognized. Women, in particular, made use of the court system that, in this case, gave them the ability to bring cases on their behalf. Inquisitorial trials and marital law reveal a world of written canonical texts and the legal practice of found registers and court records, a world in which academic lawyers and the laity engaged and navigated.
Chapter 9, “The Impact of Canon Law on Western Societies,” pulls together themes found in the first edition to demonstrate that medieval canon law is not legal system of a by-gone era. The speculations and insights of medieval canonists remain enshrined both within the common law tradition of the English-speaking world and within the civil law heritage of Continental Europeans. Canon law influenced commercial activity, examples being just price and excess profit, charging of interest on loans, and when people could work. It supported the ownership of private property and helped to move testamentary practices from a rigid system to one that allowed the dying to determine who inherits their goods. Canon law laid the foundation for social safety-nets, such as poor relief. Finally, canonists created mechanisms by which to address legal problems inherent in both ecclesiastical and secular corporate organization and structure. Medieval canon law, in short, constituted a fundamental, formative force in the creation of some of the elemental ideas and institutions that continue to this day to characterize Western societies.
Canonical records, documents, commentaries, and glosses can reveal a great deal about how medieval institutions worked, about how medieval people of all sorts thought and acted, and about the delicate relationship between law and society in the Middle Ages. Beyond that, the study of medieval canon law has already shown important and previously unsuspected linkages between the medieval Church’s legal system and the development of some of the most basic institutions of modern constitutional government. Both canonical public law, which treats the relationship between governments and their subjects, and canonical private law, which deals with the ways in which private persons managed their affairs, can tell us much about the sources of our own institutions and societies, as well as about the vanished world of medieval Christendom, out of which the world we see around us ultimately grew.