6

Canon Law in Intellectual Spaces

Canon law permeated European life in the Middle Ages. It not only regulated the life of clerics and the religious, but also regulated the life of laity through the sacraments and marital relations. It structured the relationship between the sacred and secular with policies regarding ecclesiastical property and donations, and secular interference within the Church. Canon law infused and informed the world in which it occupied. As a body of thought it was studied and applied by those who found its principles useful.¹ This chapter explores a few examples of the spaces canonical thought permeated. Penitentials addressed similar topics and drew from similar sources as canonical collections. Theological tracts of the twelfth and thirteenth century demonstrate the slippage between theology and law through the lens of divine and natural law. Romano-canonical principles likewise permeated secular and customary law as compilers saw such principles as integral to their particular locale.

1 See B. Stock, The Implications of Literacy: Written Language and Models of Interpretation in the Eleventh and Twelfth Centuries (Princeton, 1983), Part II Textual Communities.

Humans sin. It has been, and always will be, a fact of Christian life. Confession of those sins to and performance of acts prescribed by the priest who served as a doctor for the soul atoned for those sins, reconciled the sinner with God, and returned him/her to the road of perfection. The acts prescribed by the confessor, the priest, are referred to as penance.² Confessors, who tended to the sins of clerics, monastics, and the laity, often turned to penitentials, manuals that helped them to determine the nature and gravity of the sin and to assign the appropriate penance in atonement for it. For example, a priest might assign a pilgrimage to a saint’s shrine as penance to atone for the sin of homicide. To atone for the sin of greed, the priest might assign the penance of fasting on bread and water. As we have seen, the line between canon law and penance had been blurred since the early Middle Ages. Canonical collections, such as those of Regino of Prüm, Burchard of Worms, and Gratian, wove penance into individual books or had sections devoted explicitly to the subject. Penitentials, like canonical collections, addressed topics such as lying, homicide, marriage, and excommunication. Penitentials, also like canonical collections, drew upon Scripture, conciliar canons, monastic rules, and, on occasion, secular law. Together with the canonical collections, penitentials set forth the norms and processes for the clerical authorities who sat in judgment of offenses.

2 For an excellent introduction to penance, see R. Means, Penance in Medieval Europe, 600–1200 (Cambridge, 2014).

Early medieval penitentials prescribed specific “tariffs” for all sorts of behavioral, particularly sexual, transgressions as a way to resolve conflict through pragmatic, practical, and pastoral means. The priest welcomed, questioned, and advised the penitent by discerning his intentions and what was in his heart and, based upon the information gleaned during confession, determined what price or “tariff”, should be paid, that is, performed, to compensate for the transgression.³ One of the earliest penitentials was that of Finnian (or Vinnian) of Clonard, which dates from Ireland in the first half of the sixth century. It recommended that a cleric who lusted after a virgin or any woman in his heart, but did not speak it, serve a penance of seven days on an allowance of bread and water. In another example, it recommended a penance of six years, three of which on an allowance of bread and water and the remaining three years abstaining from meat and wine, if a cleric or woman who practiced magic led anyone astray by their magic.⁴ Dating from the seventh century, the Anglo-Saxon Iudicia Theodori is attributed to Archbishop Theodore of Canterbury. In his penitential, one finds regulations stipulating that if a lay Christian vomits because of drunkenness, he should do penance for 15 days. He who drinks blood or semen shall do penance for three years. As a final example, if a mouse should fall into a liquid, it should be removed and sprinkled with holy water. If the mouse was alive, the liquid could be drunk. If the mouse was dead, the liquid should be discarded and the container cleaned.⁵

3 C. Vogel, Les Libri Paenitentiales (Turnout, 1978); J. Longère, “Quelques ‘Summa de poenitentia’ à la fin du XIIe siècle et au début du XIIIe siècle,” in La piété populaire au Moyen Âge, ed. E. Delaruelle (Turin, 1975), 45–58.4 L. Bieler, ed., The Irish Penitentials (Dublin, 1963), c.17, c.18 (p. 81).5 Die Canones Theodori Cantuariensis und ihre Ueberlieferungsformen, ed. P. W. Finsterwalder (Weimar, 1929), 1.5; 1.3, 8; see also A. J. Frantzen, “The Tradition of Penitentials in Anglo-Saxon England,” Anglo-Saxon England 11 (1982): 23–56.

The twelfth- and early-thirteenth-century Libri penitentiales (“Books of Penance”) and Summae confessorum (“Summa for Confessors”) marked a gradual shift from an overwhelming concern with satisfaction for sins to a concern with the penitent’s intentionality behind and confession of sins. Description of sin and the contextualization of sexual offenses called upon the priest to use his best judgment.⁶ These manuals were particularly concerned with the way in which confessors conducted confession by elaborating on the theology, law, doctrine, and social problems underlying the sacrament of penance.⁷ The penitential manuals of the twelfth and thirteenth centuries represent the need for the confessor to be a “jack of all trades”, competent in theology in order to instruct and guide the penitent, competent in canon law in order to deal with offenses that fell under church law, and competent in Roman law in order to draw upon principles not covered by canon law. All of these competencies, however, had to be distilled in a manner that would be rendered serviceable to the intended user who may not be trained to read the technical language or did not have access to the source material to read it for himself.⁸

6 J. Goering, “The Internal Forum and the Literature of Penance and Confession,” in HMCL, 379–428; more broadly see O. Lottin, Psychologie et Morale aux XIIe et XIIIe Siècles, 6 vols (Gembloux, 1942–1960); S. Kuttner, Kanonistische Schuldlehre von Gratian bis auf die Dekretalen Gregors IX: Systematisch auf Grund der handschriftlichen Quellen dargestellt (Vatican City, 1935).7 L. Boyle, “Summae confessorum,” in Les genres littéraires dans les sources théologiques et philosophiques médiévales: Définition, crique et exploitation: Actes du colloque internationale de Louvain-la-Neuve 25–27 mai 1981 (Louvain-la-Neuve 1982), 227–237; Vogel, Les Libri Paenitentiales, 13. See E. Papp Kamali, Felony and the Guilty Mind in Medieval England (Cambridge, 2019) for how judicial conceptions of intentionality (mens rea) intersected with the Church’s focus on confession and the internal state, particularly after the Fourth Lateran Council. See K. L. Jansen’s Peace and Penance in Late Medieval Italy (Princeton, 2018) for ways in which religious and civic leaders of Florence devised devices similar to confession and penance to settle disputes and maintain peace in the commune.8 F. Bloomfield, ed., Thomae de Chobham Summa Confessorum (Louvain-Paris, 1968), xvi–xvii.

The penitential forum paralleled the judicial forum and twelfth- and early-thirteenth-century pastoral theologians wove legal texts into their penitentials as they sought the correction of and atonement for sin in order to return the faithful to the path toward God. Peter the Chanter’s Summa de sacramentis et animae conciliis was composed in stages between 1191 and his death in 1197 while teaching theology at the University of Paris. It includes a wide swath of material found in Gratian’s Decretum; in conciliar canons, primarily from the eleventh and twelfth century, such as from the councils of Rome (1078), Reims (1119, 1131, and 1148), Rouen (1128 and 1190), Tours (1163), and from the Second Lateran (1139) and Third Lateran (1179) Councils; from papal letters found in decretal collections such as Compilationes I and II; and, finally, Roman legal principles found in the Digest, Institutes, and Codex.⁹ In his discussion of excommunication, a central—and practical—consideration was whether the crime was hidden and the number of people engaged in the crime. If, for example, the crime was hidden to all, the perpetrator could not be excommunicated despite such actions being a mortal sin. If the crime was open, such as a dice thrower, boxer, or balistarius, then the perpetrators could be excommunicated. The exceptions, however, were in whether there was a fear of retaliation from the prince or if the multitude were involved in the sin.¹⁰ The latter exception—raised both by St. Augustine in his treatise Contra Parmenianum and in his letter to Count Boniface and by Ivo of Chartres in his Prologue—was of particular concern.¹¹ Peter acknowledged the position taken at the Third Lateran Council (c.14), which excommunicated the laity who usurped the tithe because such actions endangered the ability of the Church to fulfill its charge of caring for souls. But then he discounted this view, drawing rather on C.23 q.4 d.p.c.31 in which Gratian held that if the majority were involved in sin, they should not be sentenced for fear of creating a schism. Peter homed in on Gratian’s view that if the majority were engaged in the crime, no punishment should be rendered. To him, the pervasiveness of the laity holding the tithe, while a sin, was not the most pressing of sins to punish.¹²

9 P. Chanter, Summa de sacramentis et animae consiliis, ed. J. Dugauquier (Lille, 1954–1967), table of citations for ecclesiastical authors and secular authors found in II, pp. 497–505; III.2a and III.2b, pp. 799–817.10 Chanter, Summa de sacramentis et animae consiliis, III.2a, §242, pp. 241–242.11 B. Brasington, Ways of Mercy: The Prologue of Ivo of Chartres, Edition and Analysis (Münster, 2004), 126–128 of the critical edition.12 I Comp. 3.26.23 (X 3.30.19); Grat. C.23 q.4 d.p.c.31; Chanter, Summa de sacramentis et animae consiliis, III.2a, §242, p. 241.

Theological tracts of the twelfth century likewise drew upon legal sources courtesy of both the intellectual climate around Paris—a climate interested in the reconciliation of disputes and methodical harmonization of authoritative texts—and the porous disciplinary boundaries between theology and law in northern France during the twelfth century. Peter Abelard (d. 1142) had drawn upon the prevailing legal thought in northern France available to him for various positions presented in his Sic et Non (1115–1117). For example, Abelard turned to papal decretals to sketch the contours of clerical marriage and the texts he selected represented the current legal viewpoint. Abelard, drawing on a letter of Pope Stephan IX, noted that a key difference between the Eastern and Western churches was whether priests, deacons, and subdeacons could marry. In the Western church, no one from subdeacon to bishop had the right to marry.¹³ Turning to the minor orders, however, a letter of Pope Leo IX decreed that doorkeepers, lectors, exorcists, or acolytes who had not taken vows and donned the habit of a monk were permitted to marry should they not wish to profess chastity. The woman must be a virgin—that is, neither a non-virgin, a divorced or twice-married woman, nor a widow—and the marriage must have the blessing of a priest. Should any of these qualifiers be ignored, he would not be able to pass from the minor orders into the subdeaconate in the major order.¹⁴ If those in the major orders—subdeacon, deacon, priest, or bishop—were found to have transgressed these rules, they would be removed from their position. Gregory I decreed that an abbot/deacon deposed for taking a wife could not be reinstated to his position. Subdeacons who made similar missteps were likewise removed from office and had to take communion with the laity.¹⁵ These texts are found in the Panormia, but the Panormia delves into the issue of clerical marriage as it connected to the question of clerical celibacy, which was a hot topic for eleventh-century reforms… and a bit of a challenge for Abelard given his history with Helöise.¹⁶ Grouped with those canons in the Panormia is the position not presented by Abelard: that those who enter the major orders must profess chastity, not keep concubines, and abstain from carnal relations if they are married, or otherwise lose their office.¹⁷ Abelard knew the prevailing legal thought on clerical marriage, but his interest lay in presenting it from the perspective of whether it was possible and at what point. The connected stance regarding celibacy, he left silent.¹⁸

13 Abelard 122.2 / Pan. 3.84.14 Abelard 122.3 / Pan. 3.107.15 Abelard 122.5 / Pan. 3.142. See also J. Brundage, Law, Sex, and Christian Society in Medieval Europe (Chicago, 1987), 214–223.16 Pan. 3.49; Pan. 3.50; Pan. 3.59 / ID 6.134; Pan. 3.102; Pan. 3.104; Pan. 3.107. See also S. Dusil, Wissensordnungen des Rechts im Wandel: Päpstlicher, Jurisdiktionsprimat und Zölibat zwischen 1000 und 1215 (Leuven, 2018), 111–112, and 148–152. Dusil points to the inclusion of c.12 of Urban II’s Council of Melfi in Pan. 3.101 which mandated the compulsory separation of clerics from the spouses, even, presumably, in the cases where a marriage was contracted licitly while still in the minor orders. Those who did not comply risked having the secular authorities place such women into bondage as servants.17 Pan. 3.85–92; Pan. 3.101; Pan. 3.105; Pan. 3.133; Pan. 3.135.18 As Stephan Dusil notes, eleventh-century reformers were debating the idea that all clerical marriages, even those licitly contracted while in the minor orders, were no longer valid even if the marriage was chaste. See “The Emerging Jurisprudence, the Second Lateran Council of 1139 and the Development of Canonical Impediments,” in The Use of Canon Law in the Ecclesiastical Administration, 1000–1234, eds. M. H. Eichbauer and D. Summerlin (Leiden, 2018), 140–158, here 140–146.

The thirteenth-century mendicant theologians of the University of Paris continued to be intellectually versatile, also drawing upon legal thought though not in the same way as the secular masters who preceded them. In an age grappling with Aristotelian philosophy, their treatises were more speculative in character, often considering the nature of human acts, the sacraments, and God. Divine law, natural law, and the nature of law itself played more important roles than the particulars of the legal pronouncements themselves. Take, for example, the Franciscan St. Bonaventure (d. 1274). His De Reductione Artium ad Theologiam (“On the Reduction of the Arts to Theology”, ca. 1270) and sermons on the Ten Commandments given in 1267 during Lent at the University of Paris engaged with divine law—which comprised of the “necessary precepts, salutary warnings, and counsels of perfections and thus demonstrates what is the good and acceptable and perfect will of God”¹⁹—and with natural law. As the basis for all laws and divine precepts are the Ten Commandments, they serve the rule of a two-fold justice: those by which we are ordered to God (three commandments); and those by which we are ordered to our neighbor (seven commandments), namely do to others what you would wish done to yourself and do not do to others what you do not wish done to yourself. Transgressing these commandments are violations of natural law.²⁰ Divine and natural law are necessary prerequisites to which one’s journey to God are hinged. As such Bonaventure links transgressions typically found in legal codes to transgressions of divine and natural law. For example, he uses the second commandment—“You shall not take the name of your God in vain”—to rail against all forms of magic (e.g. verbal incantations, inscription of characters and images, and offering of sacrifices),²¹ and against the three forms of idolatry which include pacts with demons, superstitious fabrication of errors, and incorrect evaluations of creatures.²² The eighth commandment—“You shall not bear false witness against your neighbor”—anchors his discussion of vows, oaths, and lying.²³ As a final example, Bonaventure’s discussion of sexual transgressions falls under the sixth commandment “You shall not commit adultery”. All sexual desire is forbidden unless it lies within the bond of matrimony formed within the Church. Illicit use of the sexual organs through adultery, fornication, harlotry, deflowering, sacrilege, and incest are sins against nature.²⁴ The moral codes contained in God’s commandments anchored Bonaventure’s discussion of deviations from the faith; vows, oaths, and perjury; heresy; murder; sexual transgressions; and theft, which included a very brief mention of usury and simony.

19 Bonaventure, De Reductione Artium ad Theologiam/On the Reduction of the Arts to Theology, trans. Z. Hayes, O.F.M (New York, 1996), no. 23, pp. 58, 59; no. 24, pp. 58, 59.20 Bonaventure, Collationes de decem praeceptis/Collations on the Ten Commandments, trans. P. J. Spaeth (St. Bonaventure, New York, 1995), Collation I, nos. 20–21, p. 26; no. 23, p. 27; no. 24, p. 28. The Ten Commandments, in case one needs a reminder, are: you shall not have strange gods, take the name of your God in vain, kill, commit adultery, steal, bear false witness, desire your neighbor’s wife, nor covet your neighbor’s goods; you shall keep the sabbath, and you shall honor your father and mother.21 Ibid., Collation III, no. 4, p. 48.22 Ibid., Collation III, no. 6, p. 49.23 Ibid., Collation III, no. 26, p. 56.24 Ibid., Collation VI, nos. 12–16, pp. 88–90.

Though Bonaventure did not explicitly cite from legal sources, St. Thomas Aquinas engaged with law, on occasion, as an external factor that influenced human acts or human decision making. For example, Aquinas cited Gratian’s Decretum seven times in his Commentary on the Sentences and 81 times in his Summa theologiae. He cited papal decretals 32 times in his Commentary on Peter Lombard’s Sentences.²⁵ Both theologians relied heavily on the Bible, particularly the Psalms, and the Church Fathers, particularly Augustine; sources upon which canonists also relied. While these sources did not necessarily differ, the purpose of the works and the intended audience of those works did. In Bonaventure and Aquinas’s quest to provide a pathway for the journey of the human spirit toward the love of God, and with that love of neighbor, the need of and use for law was to serve theology. Yet, disciplinary specialization did not mean being walled off from other areas of knowledge or that being known for their work in one discipline negated competency in another discipline. The porous boundaries between theology and legal thought suggest that theologians, at least some, had a working knowledge of the law. Theologians, after all, worked in an environment where lay and ecclesiastical jurisdictions would overlap, and they needed to be intellectually versatile.

25 K. Pennington, “Lex naturalis and Ius naturale,” The Jurist 68 (2008) 569–591, here 578. He drew his statistics from the Index Thomisticum (http://www.corpusthomisticum.org/it/index.age). While Pennington was critical of Aquinas’s handling of the law (579–585), it should be remembered that Aquinas was not approaching the law from the vantage point of a lawyer. For Aquinas treatise on law, see R. J. Henle, S.J., The Treatise on Law. St. Thomas Aquinas, Summa Theologiae, I–II, qq. 90–97 (Notre Dame, 1993).

Canonists had worked to draw clearer and tighter distinctions between divine and natural law. Gratian first defined natural law as “what is contained in the Law and the Gospel. By it, each person is commanded to do to other what he wants done to himself and prohibited from inflicting on others what he does not want done to himself.” This definition, which could be seen to echo the theologian Hugh of St. Victor, equated natural law, found in Scripture, with the Golden Rule. Seeming to slip between natural law and divine law, Gratian defined divine ordinances as those determined by nature, and thus natural law is equated to divine law.²⁶ Following Isidore of Seville (d. 636), Gratian also identified natural law with the positive divine law of Scripture. Divine law was understood as the moral teachings of the Old Testament expressed in natural law. What God commands, as it belongs to natural law, stands ahead of customs or enactments which become null and void if contrary to natural law.²⁷ Decretists commenting on Gratian’s Decretum identified natural law with an innate human inclination to do good and avoid evil, while they reserved the term divine law to designate the rules enunciated in the Scriptures. Natural law, according to the Glossa ordinaria, could be interpreted as granting both subjective and objective rights. Subjective rights, Rufinus characterized, were “a certain force instilled in every human creature by nature to do good and avoid the opposite” and included “commands, prohibitions, and demonstrations.” Objective rights were “the moral laws known through reason” and which were summed up by the Golden Rule found in the book of Matthew: do to others what he would have done to himself and not to do to others what he would not have done to himself (Matt. 7:12).²⁸ Hostiensis devoted a significant portion of the prologue to his Summa on the titles of the Liber extra to the classification of laws. He saw the divine law contained in the Scriptures as an extension of rational natural law, and this led him to declare that human laws or judicial decisions that violated rational natural law, were untenable and lacked any binding force.²⁹ In essence, divine and natural law helped man to achieve his purpose in God.

26 Grat. D.1 d.a.c.1 s.v. Naturali: “idest, divino” (Corpus Iuris Canonici with Glossa Ordinaria [Rome 1582], col. 1); Grat. D.1 c.1; Gratian, The Treatise on Laws (Decretum DD. 1–20), trans. A. Thompson with the Ordinary Gloss trans. J. Gordley (Washington, DC, 1993), 3–4.27 Grat. D.8 d.p.c.1; Gratian, The Treatise on Laws, 25. Grat. D.8 c.2 s.v. Sicut; Gratian, The Treatise on Laws, 26.28 B. Tierney, Liberty and Law: The Idea of Permissive Natural Law, 1100–1800 (Washington, DC, 2014), 18, 62–65. See also, T. Sol, Droit subjectif ou droit objectif? La notion de ius en droit sacramentaire au XIIe siècle (Turnhout, 2017).29 Hostiensis, Summa aurea (Lyon, 1537), §5–§6 (fol. 2va).

Canonical thought was also instrumental to conversations about the nature of authority and the substitution of the term “positive law” for the older term “human law”. The significance of the new usage lay in its emphasis upon the notion that human authorities could create law by the express or positive action of a person or group that possessed legislative authority. The new term appeared in one of Gregory IX’s decretals in the Liber extra, and this gave it official standing.³⁰ A further refinement of this usage differentiated between positive laws that were “constituted” and those that were “unconstituted”. A constituted positive law meant one expressly proclaimed by a pope, monarch, or other authority, while unconstituted positive law referred to laws that originated in the customs of a community and thus derived their force from the implicit assent of the community to a particular practice, rather than from a legislative command by a ruler.³¹

30 X 1.4.11.31 Grat. D.1 c.5; see further G. Le Bras, C. Lefebvre, and J. Rambaud, L’âge classique, 1140–1378: Sources et théorie du droit (Paris, 1965), 388–396.

The conversations in which theologians, canonists, and, as we will see, civil jurists and secular law engaged had roots in “general law”; a concept for which we find increasingly frequent references from the second half of the thirteenth century onward. This “general law”, or ius commune, referred to those principles of substantive law (the body of rules setting forth rights and obligations) and procedure that were in common use throughout Christendom. These principles were not simply debated in the classroom amongst law faculty and students, but rather influenced and shaped society and secular institutions. In effect, the general law usually meant Romano-canonical legal concepts and practices that municipal and royal courts could invoke to settle problems for which appropriate local custom or statute was lacking.³² The ius commune included not only the texts of Romano-canonical law, but also acceptance of the standard glosses and opinions of the commentators as authoritative sources of legitimate law. It was a pan-European system of norms, principles, and practices which allowed judges to adjust the rules to fit the circumstances of a particular situation where justice seemed to require departure from strict law. Thus, the ius commune in effect transformed Romano-canonical law into sets, or ‘blocks’ of legal practices and principles that were conceived as underlying local custom and statute.³³ Judges could and did exercise discretion to invoke the ‘blocks’ of principles or practices that they deemed useful in order to resolve a dispute and make peace within a community. The ius commune, and with it canon law, operated in theory as well as in practice.

32 Despite the similarity in terms, the ius commune must not be confused with English Common Law, which was the body of customary rules worked out in English practice from the mid-twelfth century onward. See A. Watson, The Making of the Civil Law (Cambridge, 1981).33 K. Pennington, “Introduction to the Courts,” in HCP, 3–29, here 5; idem., “‘The ‘Big Bang’: Roman Law in the Early Twelfth-Century,” RIDC 18 (2007): 43–70. The standard development of the ius commune can be found in M. Bellomo, The Common Legal Past of Europe, 1000–1800, trans. L. G. Cochrane (Washington, DC, 1995). On Romano-canonical law in Italy, France, and Scotland see also A. Watson, Sources of Law, Legal Change, and Ambiguity (Philadelphia, 1984), 51–75.

The Romano-canonical principles of the ius commune shaped answers to societal questions and problems. The consilia of Bartolo da Sassoferrato (d. 1357) and Baldus de Ubaldis (d. 1400) are excellent examples of jurists who taught law and were practicing lawyers applying the ius commune to the legal issues they faced. A consilium could either be an expert legal opinion in support of the position of a particular party which that party sought out, or it could be a legal opinion sought out by the judge from a jurist not involved in the case. The jurist Bartolo da Sassoferrato had been asked to weigh in on an inheritance dispute between the natural great-grandsons of one Gualterio di Pietro of San Severino. One of Gualterio’s great-grandsons, Pascuccio, was a minor when he was made heir to his father’s, Gualterio’s grandson, family property. Cola, Pascuccio’s father, possessed goods from both his paternal and maternal line. Pascuccio died and his material grandfather, Atto, laid claim to Pascuccio’s portion from Gualterio’s side. Gualterio’s other two great-grandsons, Angelo and Menalcha, opposed Atto’s claim. Bartolo drew primarily upon the Digest to form his opinion in support of Atto. In another example of a consilium, Baldus de Ulbaldis relied principally on the Codex in his opinion on whether a woman could transfer a greater portion of her dowry, which she acquired after the death of first husband, to the children of her second marriage rather than to her son from the first marriage. Baldus concluded that the woman was permitted to do so and that it was not in violation of the Roman law Hac edictali (Cod. 5.9.6) which prohibited the second husband from receiving a larger portion than the children of the first marriage. In this case, the second husband was not receiving the portion, but rather the children of that second marriage. If the son of the first marriage wished to pursue the case, he must do so via an alternative legal avenue.³⁴

34 On consilia, see O. Cavallar and J. Kirshner, eds., Jurists and Jurisprudence in Medieval Italy: Texts and Contexts (Toronto, 2020), 43.3, pp. 792–796; 42.2, pp. 771–772, respectively. On the jurists, see O. Condorelli, “Bartolo da Sassoferrato (1313/14–1357),” and J. Kirshner, “Baldo degli Ubaldi da Perugia (1327–1400),” in Law and the Christian Tradition in Italy: The Legacy of the Great Jurists, eds. O. Condorelli and R. Domingo (London-New York, 2020), 160–178, and 179–197, respectively.Map 6.1 Europe in the thirteenth century.

As society changed, what it needed from the law also changed and therefore law had to keep pace to reflect the times. To this end, compilers of secular law saw the norms of both Roman and canon law as being useful.³⁵ The Christianization of Denmark facilitated the influence of the Latin language, used by the Church and canon law. Both the Danish crown and church adopted, borrowed, and, in some cases, created Latin legal language modelled on Romano-canonical processes for recording disputes in their legal documents. The Diplomatarium Danicum, a collection of Danish charters, preserved the reliance on oral testimony in Danish law but it utilized the ars dictaminis (forms of letter writing), followed by use of the testimonium placiti (testimony of the courts) that developed from the notarial arts (ars notaria) toward the end of the thirteenth century, to frame and record the outcome of the proceedings.³⁶ The conversion of central Europe also brought with it the influence of the ius commune. For example, the kingdoms of Bulgaria, Serbia, and Bosnia were heavily influenced by Roman law and the law of the Eastern Roman Empire (Byzantine Empire). The secular laws of Dalmatia, in what is now modern-day Croatia, drew heavily on Italian statutes, in addition to both Roman and canon law.³⁷ Principles and arguments from Roman law provided an authoritative source for refining and changing traditional rules that no longer fit the current culture. The glosses of Hugolino and Azo on the Codex engaged with customary legal status of serfs (manentes) found in the statutes of Bologna as opposed to that of the colonus found in Roman law. The end goal was to make it harder for serfs who come to the city and fled their landlords to be returned. The commentary of Romanists (glossators of Roman law) also shaped how Italian communes defended their rights against the Holy Roman Emperor Frederick Barbarossa’s attempts to exercise dominion over them.³⁸ In Spain, the legal code La Ley de las siete Partidas (1265), promulgated under King Alphonso X the Wise of Castile (d. 1284), expounded on the ius commune as applied to the sources of law and the Church, administrative and military law, the organization of justice, feudal and family law, civil responsibility, rights of succession, and criminal law.³⁹

35 For an overview of the different forms of secular law, such as territorial law, feudal law, the Assizes and Liber Augustalis (Constitutions of Melfi) for Sicily, and maritime and commercial law, see M. Ascheri, The Laws of Late Medieval Italy (1000–1500): Foundations for a European Legal System (Leiden, 2013), ch. 5.36 A. Leegaard Knudsen, “Latin and the Vernacular in Medieval Legal Documents: The Case of Denmark,” in Law and Language in the Middle Ages, eds. M. W. McHaffie, J. Benham, and H. Vogt (Leiden, 2018), 107–127; see also M. Korpiola, “High and Late Medieval Scandinavia: Codified Vernacular Law and Learned Legal Influences,” in The Oxford Handbook of European Legal History, eds. H. Pihlajamäki, M. D. Dubber, and M. Godfrey (Oxford, 2018), 378–403. To access Diplomatarium Danicum online, see https://diplomatarium.dk/english (accessed 11 May 2021).37 M. Korpiola, “Customary Law and the Influence of Ius Commune in High and Late Medieval East Central Europe,” in The Oxford Handbook of European Legal History, eds. Pihlajamäki, Dubber, and Godfrey (Oxford, 2018), 404–429.38 E. Conte, “Roman Law vs. Custom in a Changing Society: Italy in the Twelfth and Thirteenth Centuries,” in Custom: The Development and Uses of a Legal Concept in the Middle Ages. Proceedings of the Fifth Carlsberg Academy Conference on Medieval Legal History 2008, eds. P. Andersen and M. Münster-Swendsen (Copenhagen, 2009), 33–49.39 Ascheri, The Laws of Late Medieval Italy, 245 n.1.

As with other secular legal systems, the ius commune had some influence on English Common Law. The writ of Cessavit per biennium offers but one example.⁴⁰ The original writ addressed the rights of a landowner to take back his property should the person to whom he leased it default on his obligations for two years. A possible impetus for the Statute of Gloucester was the complaint of Ellis of Tingewick. He had sought a remedy against the person to whom he had leased land and woodland wood for five marks per year (other evidence suggests that this was a grant in fee farm), but the lessee had destroyed the woodland and allowed the land to lie uncultivated to the point that Ellis could not be compensated for arrears of rent. While Roman law and canon law did not address the specific situation set forth in the writ, they did address questions of contracts and prescription, that is the acquisition of ownership of property through continuous and uncontested possession or use for a fixed period of time.⁴¹ And while we do not know if the specific legal texts were used, we do know that Accursius’s gloss on the Corpus iuris civilis, Azo’s Summa codicis, Bernard of Parma’s glosses on the Decretales, commentary on the decretals of Pope Innocent IV, and William Durand’s Speculum iudiciale were known. It can be said then that the person who formulated the writ had knowledge of Roman and canon law and he used that knowledge to provide a legal solution to a problem that at that moment did not have one.⁴²

40 The writ had its roots in the 1278 Statute of Gloucester (ch. 4) but was reissued in a more generalized form in the 1285 Statute of Westminster II (ch. 21).41 Cod. 4.66.2, Nov. 7.3.2, Nov. 120.8; X 3.18.4.42 D. Ibbetson, “Civilian and Canonist Influence on the Writ of Cessavit Per Biennium,” in Laws, Lawyers and Texts: Studies in Medieval Legal History in Honour of Paul Brand, eds. S. Jenks, J. Rose, and C. Whittick (Leiden, 2012), 87–100. As Ibbetson’s concluding comments (p. 100) suggest, scholars remain hesitant toward attributing extensive influence of the ius commune on English Common Law, though its influence is recognized. See also A. Musson, “The Influence of the Canon Law on the Administration of Justice in Late Medieval England,” in Der Einfluss der Kanonistik auf die europäische Rechtskultur. Vol. 4: Prozessrecht, ed. Y. Mausen (Cologne, 2014), 325–343.

Written texts of the Roman and canon law had circulated and were used in England in the middle years of the twelfth century. The Leges Henrici Primi (from the first half of the twelfth century) drew upon canonical principles.⁴³ Ranulf de Glanville, Chief Justiciar for King Henry II, was immersed in the intellectual environment of the ius commune as he compiled Tractatus de legibus et consuetudinibus regni Anglie (“The Treatise on the Laws and Customs of the Kingdom of England”).⁴⁴ The Magna Carta (1215), the charter delineating the relationship between the English king and the nobility/people, incorporated, in appropriate contexts, the principles of the ius commune. Such principles, for example, included the rights and liberties of the Church; enforcement of wills and protection of inheritance; framing the crown’s right to tax, collect on debt which included the safeguarding of the rights of those who stood as sureties for the debts of others, and seizing of land; framing of levying of fines on freemen, villeins, barons, and clergy; and the safeguarding of justice.⁴⁵ As seen in William FitzStephen’s account of the royal council of Northampton in October 1164, Henry II’s court justified the legal action taken against Thomas Becket, archbishop of Canterbury, using Roman legal concepts. Essentially, the king’s court used the principles of the ius commune—such as “was charged/sued” (conventus est), pressing a claim for a specific sum (certi condictio = condictio certae pecuniae), regarding the matter of a loan (for use) (ex causa commodati), regarding the matter of surety (ex causa fideiussionis), an action for guardianship (actio tutelae), and warranted guarantee (cautio fideiussoria)—to advance civilian-style claims and actions.⁴⁶ As the medieval treatise Bracton demonstrates, Roman, and to a lesser extent canonical, legal principles factored into the legal and professional identity of English jurists who were keen to prove that English law was already in line with those principles.⁴⁷

43 L. J. Downer, ed., Leges Henrici Primi (Oxford, 1972); P. Wormald, The Making of English Law: King Alfred to the 12th Century, I: Legislation and Is Limits (Oxford, 1999; repr. 2001), 236–244, 411–414, 465–473.44 G. D. G. Hall, ed. and trans., Tractatus de legibus et consuetudinibus regni Anglie qui Glanvilla vocatur/The Treatise on Laws and Customs (Oxford, repr. 1993); J. Hudson, “From the Leges to Glanvill: Legal Expertise and Legal Reasoning,” in English Law Before Magna Carta: Felix Liebermann and Die Gesetze der Angelsachen, eds. S. Jurasinski, L. Oliver, and A. Rabin (Leiden, 2010), 221–249.45 R. H. Helmholz, “Magna Carta and the Ius commune”, The University of Chicago Law Review 66, no. 2 (1999): 297–371; For more on surety, see K. Pennington, “The Ius commune, Suretyship, and Magna Carta,” RIDC 11 (2000): 255–274.46 A. J. Duggan, “Roman, Canon and Common Law in Twelfth-Century England: The Council of Northampton (1164) Re-examined,” Historical Research 83, no. 221 (2010): 379–408. Duggan’s emphasis on clerics serving the crown is an important point as it shows the particular slippage between secular and sacred in the common law system. As she notes: “… the intellectual environment of the English law was enlarged and enriched by exposure to the learned law, Roman and canon, in the critical years 1160–80, when Henry II’s lawmen were fashioning the common law critical years 1160–80, when Henry II’s lawmen were fashioning the common law; …” (402).47 T. McSweeney, Priests of the Law. Roman Law and the Making of the Common Law’s First Professionals (Oxford, 2019).

Codes of customary law, known in French as coutumiers, proliferated in the twelfth and thirteenth centuries. While once thought that a coutumier was limited to the geographic region for which it was issued,⁴⁸ it is now thought that manuscripts of coutumiers moved to areas other than the regions for which they were compiled and the ideas contained therein influenced the compilation of other coutumiers. As a result, legal concepts in one collection echoed those in other collections with the end result being less of a customary code with particulars specific to an area and more collections for use in an area that echoed other collections intended for the same purpose.⁴⁹

48 F. R. P. Akehurst, trans., The Coutumes de Beauvaisis of Philippe de Beaumanoir (Philadelphia, 1992), xiii.49 A. Kuskowski, “Inventing Legal Space: From Regional Custom to Common Law in the Coutumiers of Medieval France,” in Space in the Medieval West: Places, Territories, and Imagined Geographies, ed. F. Madeline (London-New York, 2014), 133–155, here 137, 141.

Romano-canonical principles of the ius commune infiltrated the pages of coutumiers with compilers drawing implicitly and explicitly from both Roman and canon law. The Livre de Jostice et de Plet—compiled between 1260 and 1273, possibly by a student studying at Orléans—explicitly referenced the Liber extra of Gregory IX on 31 occasions in addition to 195 texts from the Digest.⁵⁰ Coutumiers benefited from vernacular translations of the Romano-canonical tradition which made a different legal culture assessable to a new legal culture. Translations of Roman law appearing in the southern French dialect (Occitan/langue d’oc) include the Lo Codi, a synthesis of Justinian’s Codex between 1158 and 1162. The thirteenth century saw translations of Tancred of Bologna’s procedural manual, Gratian’s Decretum, Gregory IX’s Liber extra, and the entirety of Justinian’s Corpus iuris civilis. An example of a northern French translation (langue d’oïl) of Justinian’s Institutes demonstrates how the translator could make precise and deliberate changes to ensure that the specialized Latin was rendered into a generalized French. For example, the Roman term res publica translated into the more familiar term empire, which could also mean “rule, authority, or governance”. Sometimes the translator clarified difficult terminology, such as the Roman concept of “age of maturity” in the section of “On Supervisors” (De curatoribus), which meant boys over the age of 14 and women who were able to be in the company of men were to have a supervisor until the age of 25. The attribution of a text could be altered to emphasize the emperor as law-giver by omitting the accompanying names of the jurists found in the original. The text of a particular law could be altered to ensure that the reader had at the forefront of their mind that the law being read was that of the Roman empire, not of their own time.⁵¹ Translators, like the Romanists, engaged in the reshaping and reframing of Roman law for a new cultural milieux.

50 J. Gaudemet, “L’influence des droits savants (romain et canonique) sur les texts de droit coutumier en occident avant le XVle siècle,” La norma en el derecho canonico. Actas del lll Congreso internacional de derecho canónico, Pamplona, 10-15 de octubre de 1976 (1979), 165–194.51 A. Kuskowski, “Translating Justinian: Transmitting and Transforming Roman Law in the Middle Ages,” in Law and Language in the Middle Ages, eds. McHaffie, Benham, and Vogt, 30–51.

The Coutumes de Beauvaisis, a code of customary law for Beauvaisis and the county of Clermont and compiled by Philippe de Beaumanoir who served as the chief judge (the bailli) of Gâtinais from 1279 to 1283, exemplifies the incorporation of Roman law and canon law. Beaumanoir would have needed to navigate the general practices and jurisdictional boundaries of lay and church courts, and his familiarity with Romano-canonical law enabled him to navigate within it, enforce it, or deviate from it as needed. Rather than cite explicitly from his legal source(s), he synthesized the principles found within the texts that he used. The canon law outlined in his coutumier shows a familiarity with procedural treatises, such as the canonist Tancred of Bologna’s Ordo iudiciarius. Written around 1216, Tancred’s Ordo was the most popular of the procedural handbooks.⁵² The treatise is neatly organized into four parts: the first treats the persons who ought to make up a trial; the second offers instructions regarding the plaintiff, defendant, judge, and those things which precede the trial (litis contesatio); the third concerns the trial and all things which pertain to the judgment up to the definitive sentence; the fourth addresses sentences and their execution, appeals, and restitution.⁵³ Each part is subdivided to treat a particular legal concept and provides cross-references to the relevant texts contained in Gratian’s Decretum, the Liber extra of Gregory IX, and Justinian’s Codex and Digest.

52 J. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago, 2008), 162.53 Tancred of Bologna, Ordo iudiciarius, in Libri de Iudiciorum Ordine, ed. F. C. Bergmann (Göttingen 1842; repr. Darmstadt, 1965), 86–316, here 90–91.

As the secular administrator for his district, Beaumanoir had within his territorial boundaries churches subject to the bishop as well as monasteries. Because he would have had to be familiar with procedure in ecclesiastical courts, Beaumanoir consolidated for everyday use principles found in both Tancred and the Liber extra. He knew that a bishop could not summon someone to court who resided outside his diocese without first seeking the permission of that bishop. A bishop should adhere to his jurisdictional boundaries. It behooved the individual to appear, however, or face being deemed contumacious and excommunicated, particularly if he ignored three summons.⁵⁴ Interestingly, Beaumanoir recognizes the principle that an excommunication is a sentence to be feared irrespective of whether it is just or unjust.⁵⁵ If the individual owned something in that diocese, or if he made a claim involving someone from the diocese and that individual made a counterclaim, which was unique to ecclesiastical court,⁵⁶ or if his predecessor had begun a claim in the diocese and then died, he was still responsible for appearing even if he lived outside the diocese. In the case of appeals, if the judge is a papal legate, he must appeal directly to the pope. Otherwise, as laid out in Tancred’s Ordo, he may appeal to the bishop if the suit was before the dean, to the archbishop if the suit was before the bishop, and to the pope if the suit was before the archbishop.⁵⁷ Echoing Tancred’s Ordo, Beaumanoir noted that ecclesiastical courts should not hear cases on feast days, the grain harvest, grape harvest, Holy Week, Easter week, the week of Pentecost, and the week of Christmas.⁵⁸

54 Ibid., 2.1 §3, p. 129; 2.3 §1–§2, pp. 133–134; 2.4 §1, pp. 135–136. X 1.3.34; X 2.19.7.55 Akehurst, trans., The Coutumes de Beauvaisis of Philippe de Beaumanoir, ch. 2 §91, p. 42; on just and unjust sentences, see Grat. C.11 q.3.56 Ibid., ch. 11 §357, p. 118; §359, p. 119; Brundage, The Medieval Origins of the Legal Profession, 419, 431. Brundage notes the ease in which counter claims were made in ecclesiastical court as opposed to secular court.57 Ibid., ch. 2 §93, p. 43; Tancred, Ordo, 4.5 §4, pp. 292–293.58 Ibid., ch. 2 §96, p. 44; Tancred, Ordo, 2.18 §1, p. 185; X 2.9.1; Brundage, The Medieval Origins of the Legal Profession, 420.

As chief judge, Beaumanoir would have had to understand the relationship between the secular and the sacred and, because the sacred and secular did collide, would have had to accept that ecclesiastical and secular courts sometimes shared jurisdiction. For example, secular courts dealt with all cases involving a trial by battle or where the loss of life or limb was involved, except in cases in which one of the individuals involved was of privileged status such as clerics.⁵⁹ If a cleric was suspected of a crime, secular judges could arrest him and hold him in prison, but could not put him to death in the prison. At the ecclesiastical judge’s request, the secular arm was to hand over the cleric, state the reason for his arrest, and allow the ecclesiastical judge to try him according to canon law having paid the secular court for the expense of his imprisonment. If the crime was not serious, no payment was required.⁶⁰ If the secular judge did not know he was a cleric on account of his lack of tonsure, the ecclesiastical judge must prove his status and, if he could not, he remained in the custody of the secular court. If someone in the habit of cleric was arrested for a serious crime, he should be handed over to the ecclesiastical judge to determine whether he was in fact a cleric or simply a layman posing as one. If he was a cleric, he was sentenced to life in prison if found guilty. Yet if the person was found to be a layman, and he was found guilty of a serious crime, the Church could sentence him to life in prison as the ecclesiastical judge was not required to hand him over to secular authorities. If, however, the layman was arrested for something other than a serious crime, the ecclesiastical judge should hand him over to secular authorities.⁶¹ Beaumanoir seemed to be expounding on a basic principle found in the Liber extra: a layman who was posing as a cleric was not under ecclesiastical jurisdiction.⁶² In cases of threats or acts of violence between a cleric and a layman, a cleric who wished to ask for a guaranteed peace must do so in secular court but he swore to that peace in ecclesiastical court. Conversely, the layman must ask for the peace in ecclesiastical court but swear to it in secular court.⁶³ In this regard, Beaumanoir may have taken some liberties with his interpretation of ecclesiastical law.⁶⁴ With that said, Beaumanoir recognized that effective governance entailed understanding the legal plurality in which one worked: what were the jurisdictional limitations, how jurisdictions overlapped, and in what ways they were in dialogue with each other.

59 Ibid., ch. 11 §340, p. 126; Tancred, Ordo, 1.5 §2, p. 112; X 3.49.5–6; X 3.50.5, X 3.50.9.60 Ibid., ch. 11 §350, p. 128; ch. 11 §352, p. 128.61 Ibid., ch. 11 §353, p. 128; ch. 11 §354, p. 129; ch. 11 §355, p. 129. X 5.37.6 states that for serious crimes a cleric ought to be degraded and placed in a monastery, which could serve as a de facto prison.62 X 5.33.27.63 Akehurst, trans., The Coutumes de Beauvaisis of Philippe de Beaumanoir, ch. 11 §347, p. 127.64 Neither Tancred nor the Liber extra seem to address this matter.

Canon law played a role in shaping the world in which it operated. Pastoral theologians turned to canon and Roman law in the formation of their penitentials. They were addressing, after all, similar topics such as excommunication and murder. The speculative theologians of the thirteenth century continued to see law as important. For them natural and a divine law as echoed in the canonical collections played a critical role. These works sought to keep the faithful on the path to salvation of their souls. The Romano-canonical principles of the ius commune, principles which were woven into and inseparable from canon law, were also not isolated to the university as musings of law faculty or the ideals of their students. They were found in the courtroom as seen with consilia. They filtered into secular and customary legal collections as rulers and administrators considered—or were forced to consider—what was fair and just. The ius commune truly was a set of universal legal principles and concepts, jurisprudential norms, customary legal norms, and constitutional norms.⁶⁵

65 H. A. Kelly, “Medieval Jus commune versus/uersus Modern Ius commune; or Old ‘Juice’ and New Use,” in Proceedings Washington 2004, 377–403.