3
The influence of the secular sphere on ecclesiastical institutions that intensified during the Carolingian period had left an indelible mark on the Church. Bishops came from noble families, further intwining church and secular affairs. Wealthy donors, local lords, and the monarchy drew upon church property for private use. Nor was the papacy immune to these developments. With Otto I (d. 973), the Holy Roman Emperor was known to play a role in appointing the next pope. In Rome, the powerful Crescentians and Tusculans had used the papacy to augment their families’ power at the expense of the other. While the Crescentians managed to have one of their own elected pope, John XIII (d. 972), they wielded much control over the papacy through their secular office, serving as praefectus (prefect) of Rome. The Tusculans managed to have more from their family elected pope, but three of them—Benedict VIII (d. 1024), John XIX (d. 1032), and Benedict IX (d. 1048)—simultaneously served as Count of Tusculum. The secular was the sacred and the sacred was the secular. Additionally, there was a drastic deterioration in the discipline of the clergy and of the spiritual services that they provided. Even monks, it was said, no longer fasted and prayed; instead, they feasted and played their days away. Many monks, in truth, did enter the monastic life under compulsion, rather than out of idealistic aspirations for a life of asceticism and devotion. A substantial number of religious houses became little more than ecclesiastical country clubs, filled with the surplus offspring of noble families who exiled their extra sons and daughters to monasteries where they would no longer be a drain on the family wealth. Nunneries, it was said, were little more than brothels, although they were perhaps a bit cleaner and more orderly than most such establishments.
Complaints about these matters began to surface from all directions by the beginning of the tenth century and over the following century-and-a-half they grew in frequency, in number, and in intensity.1 In the mid-eleventh century, reform-minded clerics came to sit on the papal throne. Holy Roman Emperor Henry III (d. 1056) appointed Bruno of Toul—a reforming monk from Lorraine, who conveniently happened to be Henry’s cousin—as Pope Leo IX. The new pope brought with him to Rome a phalanx of fellow-reformers, including Frederick of Lorraine (later Pope Stephen IX), Humbert of Moyenmoutier (soon named as cardinal of Silva Candida), and Hildebrand (later Pope Gregory VII). The result was an ecclesiastical hierarchy which began to question openly the secularization of the Church and, with that, the place the laity had within ecclesiastical affairs. Writers complained about the ignorance, boorishness, lust, and greed of the priests whom local landowners appointed to parish churches. The people complained about the quality of spiritual care they were receiving from those charged with the care of souls. Those in the religious order called for a return to the essence of monastic life prescribed by St. Benedict. The Burgundian monastery of Cluny (founded in 909), for example, was prominent among the reformed religious communities and soon attracted others to the cause. Calls for reform and the restoration of a perceived long-lost past when the Church was pure(r) were in the air, and those calls impacted the legal landscape. The clergy were at the heart of these calls for reform as they were ordained to rule the church.2 From the pontificates of Leo IX (1049–1054) through Calixtus II (1119–1124) a key focus of papal and conciliar policy was to eliminate lay inference. In order to secure freedom from lay control, which was their ultimate objective, two chief vices of contemporary ecclesiastical life had to be eradicated: simony and nicolaitism.
1 K. G. Cushing, Reform and the Papacy in the Eleventh Century: Spirituality and Social Change (Manchester, 2005) provides an excellent analysis of the interconnected nature of the issues spurring the reform movement.2 For a discussion of what reform meant to the popes of this period, see J. Yezdi Malegam, “Pro-Papacy Polemic and the Purity of the Church: The Gregorian Reform,” in A Companion to the Medieval Papacy: Growth of an Ideology and Institution, eds. K. Sisson and A. A. Larson (Leiden, 2016), 37–65.
Simony was so-called from Simon Magus, who tried to bribe St. Peter to give him the power to confer the Holy Spirit through the laying on of hands (Acts 8:9–24). In the language of the reformers, simony referred to: the giving of money or goods in exchange for an office; the fulfilling of an obligation in exchange for an office; and finally, the fulfilling of a future promise in exchange for an office. Antagonism between the forces of reform seeking to ensure the integrity of the ecclesiastical office and those whose practices and behaviors the reformers sought to change resulted in the long and acrimonious struggle, often called the Investiture Controversy. In short, the Investiture Controversy centered on, but was not limited to, the question of whether the pope or the secular ruler controlled appointments of church officials and invested the bishop or abbot with his secular and spiritual authority. Without question, one ceremony serving two functions was convenient: the secular ruler invested the prelate with lands, to which he was beholden to the ruler, and with his ecclesiastical office. However, the one ceremony presided over by the secular ruler also reduced the authority of the papacy as there was no real role for the pope to play, and augmented the authority of the monarchy as the king appointed and installed the prelate. While the Investiture Controversy was not the sole reason for efforts to reform the church, it did play an important role.
The Investiture Controversy would involve five popes (Nicholas II, Gregory VII, Urban II, Paschal II, and Calixtus II) and two Holy Roman emperors (Henry IV and Henry V), and take about sixty years to resolve. To be sure, there were more than a few notable high, and low, points during this soap opera. At the 1059 Synod of the Lateran in Rome, Pope Nicholas II issued a decree on papal elections which gave the College of Cardinals the sole right of electing popes and banned the practice of lay investiture, that is, laymen giving bishops the symbols of their spiritual offices. Emperor Henry IV’s refusal both to abide by this papal policy and to send Archbishop Hermann of Bremen to Rome for judgment resulted in his excommunication by Pope Gregory VII, though the pope would later reconcile him at Canossa in 1077. At the Council of Clermont in 1095, Pope Urban II would again condemn the abuses of simony and lay investiture, forbidding bishops to do homage to rulers. In 1111, Pope Paschal II proposed a solution to the Investiture Controversy which involved bishops returning to kings all regalia (royal lands, rights, powers, and privileges) and be content with the lands given to their churches by the pious. This would have removed bishops from royal administration completely. Paschal II’s cardinals, the German bishops, and Henry V vehemently rejected this proposal. After Paschal II refused to crown Henry V emperor, Henry took the pope captive, which lead to the Privilege of Mammolo whereby the imprisoned pope surrendered to Henry V on all the major issues: he granted the emperor the right of investiture before consecration of bishops, promised to anoint Henry emperor, and promised never to excommunicate Henry. The cardinals and bishops rejected the Privilege and Paschal, once freed from captivity, moved away from it.
After the long, drawn-out dispute, the Investiture Controversy would finally come to a close in the first quarter of the twelfth century. While no record survives, the Concordat of London (1107) resolved the issue in England and France. Bishops and abbots were to be freely elected, receive the king’s consent, swear feudal oath to him and be put in possession of his bishopric, and then receive ordination to their office. It would also influence the resolution in the Holy Roman Empire, but that resolution would not come officially until 1122 with the Concordat of Worms. With that agreement, Emperor Henry V renounced imperial right to investiture with the ring and crosier, thus allowing for free canonical elections and consecration. Pope Calixtus II agreed to allow elections in presence of the king or his representatives for German episcopal and abbey elections, though the emperor could intervene in disputed elections. The emperor could also invest candidates before consecration with the regalia, using the scepter instead of the ring and crosier. Upon receiving the regalia, the prelates had to fulfill legal obligations (not defined) toward the ruler. Then the prelate would proceed to Rome for consecration to his ecclesiastical office by the pope.3
3 Emperor Henry V, Constitutiones, Concordatum Wormatiense (MGH LL 2, pp. 75–76).
In what amounted to a debate over the authority and jurisdiction of the emperor versus that of the pope, each side justified their perceived right to invest prelates in different types of documents. While they may not always fit neatly into the categories of legal sources, they are important for understanding the legal climate of the time. The treatise Dictatus papae (1075), found in the register of Pope Gregory VII, most clearly articulated the papacy’s position.4
4 Das Register Gregors. VII Liber 2, 55a (MGH Epp. sel. 2.1, pp. 202–208); E. F. Henderson, trans., Select Historical Documents of the Middle Ages (London, 1910), 366–367.
1. That the Roman church was founded by God alone.
2. That the Roman pontiff alone can with right be called universal.
3. That he alone can depose or reinstate bishops.
4. That, in a council his legate, even if a lower grade, is above all bishops, and can pass sentence of deposition against them.
5. That the pope may depose the absent.
6. That, among other things, we ought not to remain in the same house with those excommunicated by him.
7. That for him alone is it lawful, according to the needs of the time, to make new laws, to assemble together new congregations, to make an abbey of a canonry; and, on the other hand, to divide a rich bishopric and unite the poor ones.
8. That he alone may use the imperial insignia.
9. That of the pope alone all princes shall kiss the feet.
10. That his name alone shall be spoken in the churches.
11. That this is the only name in the world.
12. That it may be permitted to him to depose emperors.
13. That he may be permitted to transfer bishops if need be.
14. That he has power to ordain a clerk of any church he may wish.
15. That he who is ordained by him may preside over another church, but may not hold a subordinate position; and that such a one may not receive a higher grade from any bishop.
16. That no synod shall be called a general one without his order.
17. That no chapter and no book shall be considered canonical without his authority.
18. That a sentence passed by him may be retracted by no one; and that he himself, alone of all, may retract it.
19. That he himself may be judged by no one.
20. That no one shall dare to condemn one who appeals to the apostolic chair.
21. That to the latter should be referred the more important cases of every church.
22. That the Roman church has never erred; nor will it err to all eternity, the Scripture bearing witness.
23. That the Roman pontiff, if he has been canonically ordained, is undoubtedly made a saint by the merits of St. Peter; St. Ennodius, bishop of Pavia, bearing witness, and many holy fathers agreeing with him. As is contained in the decrees of St. Symmachus the pope.
24. That, by his command and consent, it may be lawful for subordinates to bring accusations.
25. That he may depose and reinstate bishops without assembling a synod.
26. That he who is not at peace with the Roman church shall not be considered catholic.
27. That he may absolve subjects from their fealty to wicked men.
Dictatus papae modified the ecclesiastical order by outlining the prerogatives of the church in Rome and obedience to its bishop. The pope subordinated bishops to his authority; he possessed the ability to transfer them from one diocese to another or to restructure dioceses as he saw fit. The pope was above a council, possessing the ability to convene it and the right to ratify its decisions. He possessed jurisdiction in major cases and could release others from their oaths of loyalty through excommunication of those to whom they were bound. The pope was above judgment.5
5 B. Ferme and G. Falchi, Introduzione allo studio delle fonti dell’Utrumque Iuris (Vatican City, 2006), 211–213. See also K. Grant, “A Divine Mandate: Pope Gregory VII’s Defense of Papal Authority,” in Authorities in the Middle Ages: Influence, Legitimacy, and Power in Medieval Society, eds. S. Kangas, M. Korpiola, and T. Ainonen (Berlin, 2013), 39–54; H. Fuhrmann, “Papst Gregor VII. und das Kirchenrecht: Zum Problem des Dictatus Papae,” in La Riforma Gregoriana e l’Europa, I: Congresso Internazionale, Salerno, 20–25 maggio 1985. Relazioni, ed. A. M. Stickler (Roma, 1989), 123–149; H. Mordek, “‘Dictatus papae’ e ‘proprie auctoritates apostolice sedis’; Intorno all’idea del primato pontificio di Gregorio VII,” Rivista di storia della Chiesa in Italia 28, no. 1 (1974): 1–22.
Because of Dictatus papae’s inclusion in the register of Gregory VII’s letters, it was long thought that he authored the text. However, this view has since been revised. Peter Damian has been suggested as a possible author. So too has Deusdedit, who served as the cardinal-priest of S. Pietro in Vincoli, based on the close parallels to his canonical collection. In the preface to his collection, Deusdedit drew from traditional sources in support of papal jurisdictional authority. Councils were the first crutch upon which he leaned. He pointed to the 318 fathers who sat together in the Council of Nicaea where it was stated that councils ought not to be celebrated nor bishops condemned without the decision of the Roman pontiff, and all major cases should be referred to his judgment. Deusdedit was sure to note, in addition to the number of bishops in attendance, that this decision was reported to Pope Felix by Athanasius, bishop of Alexandria. He drew upon the Council of Sardica, which hosted 300 bishops, where it was deemed proper that bishops from every single province report to the head, that is, to the see of blessed Peter. He also leaned on writings of the Church Fathers. The eminent martyr Cyprian, primate of the African province, acknowledged his humble obedience to the statutes of the priests and deacons governing the Roman church. Deusdedit then seemed to take a subtle jab at the emperor by noting that it was impious for anyone to boast about being a Christian but not assent to the admonitions of the Roman church. Desiring to disclose to the ignorant the privilege of the authority of Peter, Paul, their successors, and thus of the Roman church, he organized this work to begin with the privilege of the authority of the Roman church in the first book. The second book treats the clergy and Book 3 treats the possessions of the church. Book 4 addresses the liberty of the church, both of its clergy and its property, a critical topic for consideration because the secular world attempts to subjugate the church of God to its will.6
6 “Preface to the Book of Canons of Cardinal Deusdedit (1086): Dedicatory Letter to Pope Victor III and the Clergy of the Roman Church,” in Prefaces to Canon Law Books in Latin Christianity: Selected Translations, 500–1317, 2nd edn., trans. R. Somerville and B. Brasington (Washington, DC, 2020), 104–110, here 104–106; Die Kanonessammlung des Kardinals Deusdedit, ed. V. Wolf von Glanvell (Aalen, rpt. 1967).
Henry IV’s position is best summarized in a letter to Hildebrand, Gregory VII’s given name prior to assuming the papacy. He criticized that archbishops, bishops, and priests have been trodden under foot like slaves, ignorant of what their master was doing, and that he won favor by crushing them. Henry even noted the words of the Church Father, Gregory VII’s namesake, Gregory I, to describe the current pope: “The pride of him who is in power increases the more, the greater the number of those subject to him; and he thinks that he himself can do more than all.” His benediction referring to the pope by his given name, followed by the descriptor “not pope but false monk,” foreshadowed Henry’s attack on the validity of Gregory’s election to the apostolic see. He accused Gregory of obtaining his position by money, favor, and the sword. Essentially, he accused Gregory of being a simoniac himself. Though he sat on the “throne of peace”, he caused disruption: arming subjects against those in authority over them; teaching that [certain] bishops ought to be despised, and usurping for laymen the ministry over their priests and allowing them to depose or condemn those whom they themselves had received as teachers.7
7 Emperor Henry IV, Constitutiones, Regis litterae ad papam (MGH LL 2, p. 47); Henderson, trans., Select Historical Documents of the Middle Ages, 372–373.
Henry then turned to Gregory’s attack on his royal authority. He pointed out that his royal power was conferred upon him by God. How could he be unworthy to rule when God anointed him to do so? He questioned Gregory’s audacity at threatening to divest him of his throne, as if he had received his kingdom from the pope rather than from God, as if the empire were in the pope’s hands and not in God’s. Henry pointed to the tradition of the Holy Fathers to support his stance: he was not to be deposed for any crime unless he strayed from the faith, and then he was subject to the judgment of God alone. He presented Julian the Apostate, who was handed over to God alone to be judged and deposed, as an example. He then presented the words of the apostles. Peter instructed follows to “[f]ear God, honor the king.” Gregory’s actions have demonstrated that he neither feared God and nor did he honor the king. Paul himself said: “If any one, either I or an angel from Heaven, should preach a gospel other than that which has been preached to you, he shall be damned.” Henry’s conclusion, based on the transgressions outlined, was that Gregory “[d]escend, descend, to be damned throughout the ages.” Gregory must resign the position he usurped so another could be elected.8
8 Ibid.
Supporters from both the imperial and papal camps compiled polemical works in defense of their respective candidate. Collectively, these letters and treatises are known as the Libelli de lite and they reflected a renewed interest in rhetoric that was emerging in the eleventh century.9 Royal letters compiled between 1073 and 1082, for instance, were addressed to clerical audiences, to be sure, but not all letters were. Some letters suggest they were for lay audiences to garner their support. (Whether this is true or not is another question.) The Libelli de lite also reveal a use of canon law, especially the works of Pseudo-Isidore, Burchard’s Decretum, conciliar texts, and writings of the Church Fathers. Such is the case from the earliest works in defense of the papacy, such as Peter Damian’s Liber gratissimus (“Most Favored Book”) to Archbishop Henry of Ravenna (1052) and Humbert of Silva-Candida’s Libri tres adversus simoniacos (“Three Books against Simoniacs”, ca. 1058). The pro-papal treatise Liber de unitate ecclesiae conservanda (“Book on Preserving the Unity of the Church”) drew on legal sources—such as the Pseudo-Isidorian Decretals, the Collectio Dionysiana, the Collectio Quesnelliana—as well as works of secular authors—such as Cicero, Lucan, Terence, Sallust, Juvenal, and Quintilian—in order to defend Rome’s authority.
9 For what follows, see K. G. Cushing, “Law and Disputation in Eleventh-Century Libelli de lite,” in The Use of Canon Law in Ecclesiastical Administration, 1000–1234, eds. M. H. Eichbauer and D. Summerlin (Leiden, 2018), 185–194; L. Melve, Inventing the Public Sphere: The Public Debate during the Investiture Contest (c. 1030–1122) (Leiden, 2007); Cushing, Reform and the Papacy in the Eleventh Century, 111–138.
The Libelli de lite collectively engage in the debate of who could make law and thus what legal precepts were authoritative. For example, Bernold of Constance, while conceding upon papal judgments their respective importance, noted that they were not necessarily binding. This was especially the case when the judgment countered positions taken by the Church Fathers. In order to debate the law, authors had to engage with the law. Royal letters reflect Pope Gelasius’s two sword theory and notions of the “just king” (rex iustus), among other themes. The German realm was very active early on in polemical writing. Writers such as Wenrich of Trier, Gebhard of Salzburg, and Manegold of Lautenbach focused on the use of excommunication as a weapon, the legality of being able to be released from an oath, and conceptions of “right order” by using the rhetorical device of drawing on “common knowledge” as an effective tool for reaching a wider audience through combatting the intellectual positions of the opposite party. The treatise Defensio Heinrici IV regis (“Defense of King Henry IV”) sought to construct an autonomous secular legal sphere, defining the legitimate function of the secular laws and their implication for the Church. Giving reason an active force in relation to both religious and secular law, the author grounded his argument in a conception of rationality that ensured “right order” as envisioned by the emperor. More legalistic was the work of Peter Crassus, who drew on both canon law and Roman law in order to defend royal power. The treatise De investitura episcoporum (“Concerning the Investiture of Bishops”, 1109) put forth the divine mandate of the Salian tradition with a clear conceptualization of the election of the emperor. It defined relationship between the ruler and the ruled, and liberated the emperor from papal influence. The Libelli de lite presented positions related to episcopalism (the rights of bishops), papal infallibility, notions of theocratic and hierocratic power, questions of resistance, and individualism.
Regulating access to the episcopate as a way to combat simony riddle the canonical tradition. Papal letters and conciliar canons decreed that a prospective bishop should be steeped in ecclesiastical discipline. Thus, to enter the episcopate he not only must have progressed through orders (lector, deacon, priest) where he learned ecclesiastical discipline, he also must have been elected and consecrated. In other words, one could not enter the episcopate directly from the laity and he must have been properly trained so he could teach. Irrespective of whether the candidate comes from among the wealthy, from the scholastics at court, or from administration, he must have first been a lector and must have performed in the office of deacon and priest. A bishop should be elected from among the priests of the city, though a candidate from another city could be considered if there were no available or viable options. The role the laity had played by inserting themselves into the election of prelates was, in theory, being curbed as it came into conflict with the papacy’s idea of what constituted the proper ordering of powers.10
10 For a modern comprehensive discussion of elections, see A. Thier, Hierarchie und Autonomie: Regelungstraditionen der Bischofsbestellung in der Geschichte des kirchlichen Wahlrechts bis 1140 (Frankfurt am Main, 2011); and K. Pennington, “The Golden Age of Episcopal Elections 1100–1300,” BMCL 35 (2018): 243–253.
The second chief vice concerning church reformers, clerical marriages and fornication, was referred to as nicolaitism. The term derived from the Nicolaitans, a heretical sect accused of sexual promiscuity referred to in the book of Revelation (2:6, 2:14–15). The eleventh-century reformers, in turn, used the term Nicolaites to refer indiscriminately to married clergymen, clerics who kept concubines or frequented prostitutes, and, in general, to all monks, priests, or other members of the clergy who were in any way sexually active. A resurgence in calls for clerical celibacy can be seen as early as the 1022 synod of Pavia held jointly by Pope Benedict VII and Emperor Henry II. There, all women were excluded from the houses of priests, and married clergy, including bishops, were deposed. The children and possibly the wives of clerics were to become serfs of the cleric’s manor. Behind such legislation lay a concern regarding the loss of church property to the families of priests. At a Roman synod in 1049, Pope Leo IX forbade those in major orders to have sexual relations with their wives; a year later, he commanded that all clergy and laity to abstain from communion with priests and deacons who were guilty of fornication.11 Pope Gregory VII would continue the efforts to enforce clerical celibacy begun by Leo IX. Those efforts, however, revealed that the clerical rank and file were not necessarily on board. This was a radical change in the structure and operations of Western society as it would require priests to forsake their wives, abandon their children, and embrace a life of sexual renunciation that few had probably contemplated when they were ordained. Gregory VII would face considerable resistance from the German episcopate and it would take a few years into his pontificate before he was able to broach the matter in France and in England.12
11 U.-R. Blumenthal, “Pope Gregory VII and the Prohibition of Nicolaitism,” in Medieval Purity and Piety: Essays on Medieval Clerical Celibacy and Religious Reform, ed. M. Frassetto (New York-London, 1998), 239–267.12 H. E. J. Cowdrey, “Pope Gregory VII and the Chastity of the Clergy,” in Medieval Purity and Piety, ed. Frassetto, 269–302.
The canonical tradition linked clerical celibacy with requirements of those in the major and minor orders. Those in the major orders—subdeacon, deacon, priest, and bishop—were forbidden to marry and were to remain celibate. Pope Alexander II, for example, had mandated celibacy for all clerics above the rank of subdeacon. The First Lateran Council (1123), convened by Pope Calixtus II, held that marriages contracted by priests, deacons, subdeacons, and monks were void and the persons involved ought to undergo penance. It not only reinforced the long-held view that priests were forbidden to marry, it also reconsidered the legal status of those marriages that had been contracted. While such unions had traditionally been treated as binding even if illicit, the council decreed that the marriages of those in the major orders no longer possessed legal, even if illicit, status. Those in the major orders who contracted a marriage illicitly should be separated from their wife and their marriage voided. Nothing was stated regarding those in the minor orders, who presumably were permitted to marry. Should someone in the minor orders contract a marriage and then wish to progress into the major orders, he had to make a profession of continence to which his wife had agreed. The marriage remained, but it was a chaste spiritual marriage.13 Thus, a man who was already married at the point of ordination and did not put away his wife remained married, though he must live with his wife as though she were his sister. Ordination did not dissolve a marriage and a husband could not be ordained without his wife’s consent. Though celibacy was preferred, one could marry in the minor orders, but that marriage must take place before entering the subdeaconate.
13 First Lateran Council, c.7, c.21 (COGD II/1, 90, 94); D. Elliot, Spiritual Marriage: Sexual Abstinence in Medieval Wedlock (Princeton, 1995), 51–93.
The norms found in the canonical tradition, particularly papal letters and conciliar canons, had set clear guidelines for the qualities and characteristics that someone seeking ordination should possess in order to prevent the unworthy from acquiring an ecclesiastical position. These norms provided fodder for reformers aimed to raise the standards among the clergy. Prelates had railed against the illiteracy of the parish priest who scarcely possessed the rudiments of learning which would enable him to conduct the services of the church.14 As such, those in the major orders must not be ignorant of letters. Priests (sacerdotes) should know the Scriptures, the canons, and works of preaching and doctrine. They should know the works of pagans and gentiles, but that knowledge should serve a purpose, not simply for indulging in delights, and they should not spread that knowledge either in writing or in speech as they will lead others to ruin. Secular works of poets and fictions were useful for learning grammar. Grammar was important in order to understand the Scriptures. Dialectic was important for reasoning, speaking rightly, and discerning what was true and false. Whoever entered the major orders should be of free as opposed to servile status, even if that lord was a bishop or abbot. He should be physically fit, not having voluntarily mutilated himself by becoming a eunuch because he could not remain chaste, and he should neither be handicapped nor physically unable to perform his pastoral duties. He should not play dice and drink, be a flatterer, be quarrelsome or litigious, a usurer, or seditious. Looking ahead, conciliar canons of the twelfth, and even into the thirteenth, century suggest that one of the most common failings of the clergy was that they ran and frequented taverns and engaged in playing with dice and gambling.15
14 R. W. Collins, “The Parish Priest and His Flock as Depicted by the Councils of the Twelfth and Thirteenth Centuries,” Journal of Religion 10, no. 3 (1930): 313–332.15 Ibid., 313–319. Examples of twelfth-century councils are: the Council of Gran in 1114, the Council of London in 1138, the Council of Tours in 1163, and the Third Lateran Council in 1179. Examples of thirteenth-century councils are: the Fourth Lateran Council in 1215, the Council of Worcester in 1240, the Council of Le Mans and Liege both in 1247, Council of Valencia in 1261, and the Council of Salzburg in 1274.
The second half of the eleventh century saw the appearance of numerous compilations of canon law designed to further the objectives of church reform. Several of these—such as the Collectio canonum completed about 1083 by Bishop Anselm of Lucca (d. 1086), or the collection that Cardinal Deusdedit (d. 1100) assembled about 1087—were the work of identifiable members of the reform party at the papal curia. The ambitious collection of the French bishop, Ivo of Chartres (d. 1115), entitled the Decretum comprised 3,760 canons divided into 17 books. This work was too bulky and complex, however, to serve as a convenient reference work. The Panormia, a more compact canonical collection comprising slightly more than a thousand canons and arranged in eight books, was produced from this collection. It achieved far greater popular success than its more cumbersome companion, though it is unlikely that Ivo compiled it. The Panormia was widely disseminated throughout Western Christendom and later canonists drew upon it freely for subsequent collections.16 Once firmly attributed to Ivo as well, the Tripartita (“Collection in Three Parts”) is, like the Panormia, seen as being compiled in the region of Chartres but the ascription to him is rather shaky.
16 C. Rolker, Canon Law and the Letters of Ivo of Chartres (Cambridge, 2010) argues, based on an analysis of canonical ideas contained in Ivo of Chartres’ letters, that he most likely did not compile the Panormia.
While calls for reform and spiritual renewal came from a swathe of stakeholders, a by-product oftentimes emphasized is the impacts on the pope’s authority. However, not all reformers conceived of papal primacy in the same way. Take, as one example, views on the ability of the Church to wage war. In Book 13 of his Collectio canonum, Anselm of Lucca sought not only to provide canonical justification for war, but also for the Church to conduct that war. God had ordained the Church to be the executor of His will. It was the Church’s responsibility to placate God by correcting severely the evils of wrongdoers and bring them back into the fold, otherwise be regarded as a conspirator to the evils.17 A just war must be from love and thus conducted with benevolence.18 Anselm made no mention of the secular realm’s obligation to assist the Church. The Church, rather, was able to wage a war under its own authority. By using the writings of St. Augustine and Pope Gregory I, Anselm aimed to support ecclesiastical rights to direct the ius gladii and vis armata against heretics, excommunicates, enemies of the peace, and infidels.19 He essentially wanted to justify papal-led coercion against all enemies of the Church. In Book 10 of his Decretum, Ivo of Chartres purposed a slightly different stance. He argued for the ecclesiastical suppression of evil and the coercion of heretics. The Church, however, may not undertake this suppression on its own; it may only encourage their suppression. While wars for the faith were pleasing to God, He authorized only the secular, not the ecclesiastical, realm to kill. Kings could punish evildoers because they were the ministers of God.20 Ivo of Chartres seemed to take a more moderate stance toward a just war and the Church’s involvement in it; the Church may encourage a war, but it may not be involved in it. Thus, there were two different views on papal authority with respects to warfare. On the one hand was that of Anselm of Lucca, Gregory VII’s staunchest supporter, who thought that not only could the Church wage war but also could lead an army. Leaving out the secular authority’s obligation to assist the Church, Anselm argued that the Church was well within its right to defend itself by force. On the other hand was the viewpoint of Ivo of Chartres, who thought that the Church could call a war but not lead an army. The Church may call for the suppression of evil and the coercion of heretics, but it may not undertake this suppression on its own; rather, it had to call upon secular authorities who were responsible for punishing wrongdoings.
17 K. Cushing, Papacy and Law in the Gregorian Revolution: The Canonistic Work of Anselm of Lucca (New York, 1998), Appendix II Abridged Edition of Books 12 and 13 of the Collectio canonum from BAV, lat. 1363, 13.12–29.18 Ibid., 13.2–3, 9–10, 12, 21. In c.21, Anselm parallels persecutio (persecution) with misercordia (mercy)19 F. Russell, The Just War in the Middle Ages (Cambridge, 1975), 37–38.20 ID 10.73–74, 80; Pan. 8.2, 26; J. Brundage, “St. Anslem, Ivo of Chartres and the Ideology of the First Crusade,” rpt. in The Crusades, Holy War, and Canon Law (Aldershot, 1991), 181–182.
The Diversorum partum sententiae (“Collection in Seventy-Four Titles”; 74T) is another collection most often thought of a work specific to the Gregorian Reform. Its emphasis on papal primacy led scholars to characterize it as the first collection of the movement. The Rome-driven emphasis on simony, clerical celibacy, and lay investiture seemed to undercut diocesan and parish concerns with improving spirituality.21 The 74T, now thought to have been compiled at Reims, however underscores the desire of a compiler—and thus the user—to protect monastic liberties. The collection, which drew heavily upon the Pseudo-Isidorian Decretales, is, yes, concerned principally with the primary of the Roman church, along with criminal and other legal procedures affecting the clergy, the quality of a candidate put forth for clerical office and whether simony was involved, and the powers of ministers in the church.22 It is this emphasis on papal primacy, an emphasis characteristic of Italian collections but not of collections of northern France, that led scholars to see the 74T as a collection with a monastic agenda, one using papal primacy to formulate an argument in support of the freedom of a monastery from outside interference. The choice of texts in titles two and three show a clear concern with the privileges of religious communities, thus linking the theme of papal authority, found in the first title, with monastic rights. The compiler either purposefully chose texts that favored monastic houses or adapted Pseudo-Isidorian texts to favor monasteries. The compiler thus intended to circumscribe the authority of bishops. For example, the compiler altered the Pseudo-Gregory I canon “Quam sit necessarium” (JE †1366) so that the text would authorize abbots—not bishops—to solve internal conflicts and conflicts over monastic property. The alterations to Pseudo-Isidorian texts and the compilation date of the late eleventh century corresponds to the trend toward monastic liberties and exemptions from episcopal control. The 74T became a popular collection in monastic houses. Monastic libraries either copied or owned a large portion of the existing manuscripts, such as the copy in cartulary at Saint-Denis. No copy can be shown to have come from an episcopal library.23
21 Because of the emphasis on papal primacy, Gilchrist attributed an Italian origin to the collection; see Diversorum patrum sententie sive Collectio in LXXIV titulos digesta, ed. J. T. Gilchrist (Vatican City, 1973), xxii; J. T. Gilchrist, trans., The Collection in Seventy-Four Titles: A Canon Law Manual of the Gregorian Reform (Toronto, 1980); 2. J. Gilchrist, “Changing the Structure of a Canonical Collection: The Collection in Seventy-Four Titles, Four Books, and the Pseudo-Isidorian Decretals,” in Iure Veritas: Studies in Canon Law in Memory of Schafer Williams, eds. S. B. Bowman and B. E. Cody (Cincinnati, 1991), 93–117, here 93–94. For additional historiography on its Italian origin, see C. Rolker, “The Collection in Seventy-Four Titles: A Monastic Canon Law Collection from Eleventh-Century France,” in Readers, Texts and Compilers in the Earlier Middle Ages: Studies in Medieval Canon Law in Honour of Linda Fowler-Magerl, eds. M. Brett and K. G. Cushing (Aldershot, 2009), 59–72, here 60–62.22 Gilchrist, trans., The Collection in Seventy-Four Titles, 17, 23–26; Rolker, “The Collection in Seventy-Four Titles,” 60.23 L. Fowler-Magerl, Clavis Canonum Clavis Canonum: Selected Canon Law Collections Before 1140 (Hannover, 2005), 116; Rolker, “The Collection in Seventy-Four Titles,” 65–70.
During a period active in the proliferation of law, compilers and copiers continued to adapt texts to suit the needs of the users. The Collectio canonum offers a final example of this. William of Champeaux possibly inspired the collection and it may have been copied at the abbey of Saint-Victor around 1125; if not, it was possessed by the abbey’s library by 1200.24 The collection drew from the books of Burchard of Worm’s Decretum, but omitted those books that did not suit the compiler’s needs: Books 4–6 (sacraments, homicide), Book 8 (men and women), Book 10 (divination and magic), Books 13–14 (fasting and drunkenness), Book 18 (visitation and last rights), and Book 20 (penance). The compiler then supplemented the collection with texts drawn from Pseudo-Isidorian Decretales; from a version of the 74T with an appendix compiled at the abbey of Saint-Blasien in the south of Hirasu (known as the Swabian Appendix); from Martin of Braga’s “Ex decretis Orientalium Patrum”; and possibly from the Codex Udalrici, a pro-German collection of poems, official records, and documents dedicated Bishop Gebhard of Würzburg in 1125. The Collectio canonum begins with the structure of the Church: primacy of Rome, elections of bishops and accusations that can be made against them, and clerical behavior and discipline. It then moves to churches and their goods, excommunication, oaths and perjury, the laity, accusations and procedure, fornication and incest, and marriage. In addition to the liturgical and theological material seamlessly woven into canonical texts, the Collectio canonum showed an interest in affairs between regnum and sacerdotium taking place in Germany between 1060 and 1125.25
24 U.-R. Blumenthal, “The Collection of S. Victor (=V), Paris: Liturgy, Canon Law, and Polemical Literature,” in Ritual, Text and Law: Studies in Medieval Canon Law and Liturgy Presented to Roger E. Reynolds, eds. K. G. Cushing and R. F. Gyug (Aldershot, 2004), 293–307, here 294; Paris, Bibliothèque de l’Arsenal, lat. 721, fol. 165r–250v.25 P. Fournier, “Collections Issues du Décret de Burchard,” in Mélanges Paul Fabre: Études d’histoire du Moyen Age (Paris, 1902), 199–203; P. Fournier and G. Le Bras, Histoire des Collections Canonique en Occident: Depuis les Fausses Décrétales jusqu’au Décret de Gratien, Vol. 2: De la réforme grégorienne au Décret de Gratien (Paris, 1932), 261–265; Fowler-Magerl, Clavis Canonum, 237–238; L. Kéry, Canonical Collections in the Early Middle Ages, ca. 400–1140: A Bibliographic Guide to the Manuscripts and Literature (Washington, DC, 1999), 288; Blumenthal, “The Collection of St. Victor (=V), Paris,” 293–308.
The proliferation of law also went hand in hand with the recognized need for more effective courts and enforcement mechanisms as tools for good diocesan administration. In this endeavor Ivo of Chartres proved indispensable. His Prologue addressed the importance of caritas (charity) and misericordia (mercy), both of which the judge was to keep at the forefront of his mind as he used dispensations as a way to bring about order, harmony, and enact legal change.26 Ivo saw dispensation as a medicine to heal, and thus he was concerned with the nature and limits of dispensation, a right that that he felt belonged to the episcopacy. His Prologue was on how the law applied to the Church and, to that end, on the systemization and defining of legal norms in order to balance rigor and mercy. Canonists found Ivo’s Prologue immensely valuable as a guide for resolving the discrepancies that they often encountered between contradictory ecclesiastical laws. Faced with such conflicts Ivo advised users to examine the context in which the canons had been adopted. Such an examination might reveal that the apparently conflicting canons had addressed different problems or separate aspects of a single problem. In that case the users might be able to resolve apparent discrepancies by showing that the canons did not in fact conflict at all. Ivo also cautioned users to test the authenticity of their sources in order to eliminate forged or interpolated texts that might conflict with authentic canonical rules. In addition, Ivo declared that when users interpreted the law, they must take account of the hierarchy of jurisdictions within the church. The basic principle here was that canons that originated with higher authorities took precedence over canons adopted by lesser authorities. Thus, if the canons of a general council conflicted with the canons of a provincial council or a diocesan synod, the general council’s enactments overrode those of the lesser body. Further, Ivo warned users that they must be alert to the distinctions between variable laws and invariable laws and between general and particular canons. Variable laws might be subject to dispensation by an appropriate authority, while invariable laws were not. The application of particular canons was limited to specific regions or situations or classes of persons, whereas general laws applied across the board to all Christians. The rules he set forth for the interpretation of canonical texts became central to the work of later canonists, and especially to the work of Gratian (whom we meet in the next chapter).
26 “Prologue of Ivo of Chartres,” in Prefaces to Canon Law Books in Latin Christianity, 2nd edn., trans. Somerville and Brasington, 113–132; B. Brasington, Ways of Mercy: The Prologue of Ivo of Chartres, Edition and Analysis (Münster, 2004), 34–36, 40.
The Collectio decem partium (“Collection in Ten Parts”)—a revised, updated, and enlarged version of the Panormia, possibly compiled by Walter of Thérouanne between 1125 and 1130—reflects the importance placed on judgment and correction as essential elements of a diocesan administrator’s duties.27 This collection specified particular titles which the corresponding book of the Panormia did not specify. Part 5 included topics concerning the selection of judges, the condemning of bishops and clerics, and sentences. Part 6 specified a section on the power of binding and loosing. The collection made use of the Roman law collections available at the time, drawing most heavily from the Epitome of Julian and the Benedictus Levita followed by portions of Emperor Justinian’s sixth-century Corpus iuris civilis (Institutes, Digest, and Codex) which was just starting to be rediscovered,28 and from the Sentences of Paul via the Breviary of Alaric; a few passages came from the Theodosian Code. Walter relied on Roman law in Part 6 to elucidate the elements comprising the legal process—first and foremost witnesses and testimony, followed by accusations, the judge, delays and sentences, and legal status—and key areas where judgment would have to be passed—wills and inheritance, and, in particular, economic issues. He also used Roman law in Part 7 to lay bare legitimate betrothals and marriage, second marriages, the legitimacy and governance of children, prohibitions on concubinage and prostitution, and, in one text, the celibacy of bishops. The incorporation of Roman law was instrumental to the changing social and economic climate. As the Church often adjudicated legal cases, it needed a more structured mechanism by which to do so. Legal theory was not an overt concern, but rather the focus lay on practicality. Walter or the compiler was careful to include texts that clearly outlined procedural matters: from accusations, to who could and could not testify and under what conditions testimony should not be accepted, to the duties of the judge. However, his inclusion of texts also shined light on the matters in which the Church might most frequently be involved in litigating: execution of wills and inheritance; loans and debts; all manner of property, including whether one could possess wild animals; marital and family law, with special attention being given to the rights of children to ensure their safety and care.
27 “Preface to the Collection in Ten Parts (Perhaps Compiled shortly after 1123 by Archdeacon Walter of Thérouanne): Dedicatory Letter to an Unknown Patron, Perhaps to Bishop John of Thérouanne,” in Prefaces to Canon Law Books in Latin Christianity, 2nd edn., trans. Somerville and Brasington, 132–137; M. H. Eichbauer, “A Desire for the Latest and the Greatest: Papal Decretals and Roman Law in the Collectio decem paritum,” BMCL 36 (2019): 195–208.28 D. Walters, “From Benedict to Gratian: The Code in Medieval Ecclesiastical Authors,” in The Theodosian: Studies in the Imperial Law of Late Antiquity, 2nd edn., eds. J. Harries and I. Wood (London, 2010), 200–216; W. P. Müller, “The Rediscovery of Justinian’s Digest in the Middle Ages,” BMCL 20 (1990): 1–29.
Collections of the eleventh and early twelfth century should not be seen as a part of a papal agenda, but rather illustrate interest in issues germane to the reformers.29 The similarities between collections are a part of the social mindscape advocating certain standards of practice, courtesy, in large part, to the Via Francigena, which served as the main route from Canterbury to Rome beginning in the tenth century and likewise facilitated the dissemination of legal collections. Canonical collections, farragines (collections without a particular internal order), legal texts, and people steeped in legal learning easily travelled along this route which included, for example, Canterbury, Arras, Laon, Reims, and Pavia. In particular, the route between Châlons-sur-Marne (69th station) and Thérouanne (77th station) was of considerable significance for the development of canon law in northern Europe in the late eleventh and early twelfth centuries, with Reims as a central hub (70th station). Both monasteries and cathedrals played important roles at each station. For example, both the cathedral of Arras and the monastery of Saint-Vaast were important stations, as was the monastery of Saint-Bertin, located approximately 15 kilometers north-west of Thérouanne in Saint-Omer. Clerics accessed different libraries—be it cathedral or monastic—and copied legal texts of particular interest to them.30 The differences within this mindscape, however, demonstrate a negotiation of the material to suit a purpose shaped by the individual’s environment.31 A “standard” among collections would not exist because no “standard” environment existed. Since every compiler’s environment was different, each collection would be different in order to suit the needs of that environment. Thus, while there might have been a European-wide “clerical culture” by the early twelfth century because of more standardized social mechanisms for exchange (e.g., more councils and a call for better education), compilers of legal codes adapted common culture as evident not in what topics they covered (as the collections all cover pretty much the same topics), but rather in the context in which the compilers addressed that topic (i.e., how it is covered).
29 C. Rolker, Canon Law and the Letters of Ivo of Chartres (Cambridge, 2013); K. Rennie, The Collectio Burdegalensis: A Study and Register of an Eleventh-Century Canon Law Collection (Toronto, 2013).30 L. Fowler-Magerl, “The Collection and Transmission of Canon Law along the Northern Section of the Via Francigena in the Eleventh and Twelfth Centuries,” in Bishops, Texts and the Use of Canon Law Around 1100: Essays in Honour of Martin Brett, eds. B. C. Brasington and K. G. Cushing (Farnham-Burlington, 2008), 129–139; Rolker, Canon Law and the Letters of Ivo of Chartres, 70–71, 82.31 E. Zerubavel, Social Mindscapes: An Invitation to Cognitive Sociology (Cambridge, 1997), 5–11, 17, 81–82, 87. Kathleen G. Cushing has noted that however much reform initiatives may have been promulgated as proscriptive or normative measures establishing uniformly binding and enforceable laws, in reality the measures were prescriptive, seeking an idealized vision of what the reformers aspired to achieve for the Church and Christian society. See Reform and the Papacy in the Eleventh Century, 31.