The Canons of the Third Lateran Council of 1179: Their Origins and Reception 1107145821, 9781107145825

Table of contents :
Cover
Half-title page
Series page
Title page
Copyright page
Dedication
Contents
List ofTables
Acknowledgements
List ofAbbreviations
Walther-Holtzmann Kartei
Note on Citation Styles
Introduction
1 Historical Survey
2 Disputes, Decretals, and the 1179 Conciliar Canons
3 The 1179 Canons and the Schools
4 The Dissemination of the 1179 Canons
5 Use of the Canons, ca. 1179–ca. 1191
Conclusions
Appendix: Manuscript Listing of the 1179 Canons
Bibliography
Manuscript Index
General Index

Citation preview

THE CANONS OF THE THIRD LATERAN COUNCIL OF 1179 Alexander III’s 1179 Lateran Council was, for medieval contemporaries, the first of the great papal councils of the central Middle Ages. Gathered to demonstrate the renewed unity of the Latin Church, it brought together hundreds of bishops and other ecclesiastical dignitaries to discuss and debate the laws and problems that faced that church. In this evaluation of the 1179 conciliar decrees, Danica Summerlin demonstrates how these decrees, often characterized as widespread and effective ecclesiastical legislation, emerged from local disputes which were then subjected to a period of sifting and gradual integration into the local and scholarly consciousness, in exactly the same way as other contemporary legal texts. Rather than papal mandates that were automatically observed as a result of their inherent papal authority, therefore, Summerlin reveals how the conciliar decrees should be viewed as representative of contemporary discussions between the papacy, their representatives and local bishops, clerics, and scholars. d a n i c a s u m m e r l i n is Lecturer in Medieval History at the University of Sheffield, where her research focuses on the role of canon law in government and society in the central Middle Ages. She is one of three leaders of an international project revamping the Clavis canonum, a key database for the study of medieval canonical collections available online via the Monumenta Germaniae Historica. She is the co-editor of The Use of Canon Law in Ecclesiastical Administration, 1000–1234 (2018) with Melodie H. Eichbauer.

Cambridge Studies in Medieval Life and Thought Fourth Series General Editor rosamond mckitterick Emeritus Professor of Medieval History, University of Cambridge, and Fellow of Sidney Sussex College Advisory Editors christopher briggs Lecturer in Medieval British Social and Economic History, University of Cambridge adam j. kosto Professor of History, Columbia University alice r io Professor of Medieval History, King’s College London magnus ryan University Lecturer in History, University of Cambridge, and Fellow of Peterhouse

The series Cambridge Studies in Medieval Life and Thought was inaugurated by G. G. Coulton in 1921; Professor Rosamond McKitterick now acts as General Editor of the Fourth Series, with Dr Christopher Briggs, Professor Adam J. Kosto, Professor Alice Rio, and Dr Magnus Ryan as Advisory Editors. The series brings together outstanding work by medieval scholars over a wide range of human endeavour extending from political economy to the history of ideas. This is book 116 in the series, and a full list of titles in the series can be found at: www.cambridge.org/medievallifeandthought

THE CANONS OF THE THIRD LATERAN COUNCIL OF 1179 Their Origins and Reception

DANICA SUMMERLIN University of Sheffield

University Printing House, Cambridge c b 2 8b s, United Kingdom One Liberty Plaza, 20th Floor, New York, ny 10006, USA 477 Williamstown Road, Port Melbourne, vi c 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107145825 do i: 10.1017/9781316536209 © Danica Summerlin 2019 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2019 Printed in the United Kingdom by TJ International Ltd, Padstow Cornwall A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data n a m e s: Summerlin, Danica, author. t i t l e : The canons of the Third Lateran Council of 1179 : their origins and reception / Danica Summerlin. d e sc r ip t io n: Cambridge, United Kingdom ; New York, n y : Cambridge University Press, 2020. | Series: Cambridge studies in medieval life and thought. Fourth series ; book 116 | Includes bibliographical references. id en t ifi er s: lc c n 2019018732 | is bn 9781107145825 s u b j e c t s : lc s h : Lateran Council (3rd : 1179 : Palazzo Lateranense) | Catholic Church – History of doctrines – Middle Ages, 600–1500. | Church history – Middle Ages, 600–1500. c las si fic a t io n: lc c b x830 1179 .s 86 2020 | d dc 262/.52–dc23 LC record available at https://lccn.loc.gov/2019018732 is b n 978-1-107-14582-5 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

For my parents, with grateful thanks

CONTENTS

List of Tables Acknowledgements List of Abbreviations Walther-Holtzmann Kartei Note on Citation Styles

page viii ix xii xxii xxiii

INTRODUCTION

1

1

HISTORICAL SURVEY

2

DISPUTES , DECRETALS , AND THE

3

THE

4

THE DISSEMINATION OF THE

5

USE OF THE CANONS , CA .

1179

11 1179

CONCILIAR CANONS

CANONS AND THE SCHOOLS

1179

CANONS

1179– CA . 1191

CONCLUSIONS

44 94 125 183 241

Appendix: Manuscript Listing of the 1179 Canons Bibliography Manuscript Index General Index

vii

249 261 296 299

TABLES

4.1 Locations of the 1179 canons in manuscripts

144

4.2 The canons as they appear in select manuscripts, demonstrating the variety of numbers and orders 148 4.3 Total number of 1179 canons in different traditions and manuscripts

150

5.1 1 Comp. 3.34

225

5.2 1 Comp. 5.2

226

5.3 Brugensis title 4

227

5.4 Francofurtana title 23

228

5.5 Francofurtana title 29

228

viii

ACKNOWLEDGEMENTS

This book has been many years in the making: the thanks and acknowledgements I can offer here cover only the most pressing of the deep debts of gratitude incurred in the process. Firstly, my thanks to the editorial team at Cambridge University Press, and particularly my editor, Magnus Ryan, and my copy-editor, Alwyn Harrison. Laughing out loud in the British Library was not what I expected, but it certainly made the editing process more bearable. Financially, I benefitted at various points from the support of the Frederic William Maitland Fund, the Leverhulme Trust, and the British Academy, as well as other, smaller grants too many to list but no less gratefully received. This book is based on my PhD thesis, initially written at Cambridge University Library and refined over six years as a postdoc and junior lecturer in three cities across two countries. Neither thesis nor book would have been completed without the Stephan Kuttner Institute, then in Munich and now in Yale, and particularly without Jörg Müller and the microfilms in the Institute’s care. At UCL, David D’Avray provided more opportunities to discuss medieval canon law than I could have dreamed possible. Elsewhere, I benefitted from the generosity of the librarians at the Fitzwilliam Museum and St John’s College, Cambridge; New, Oriel and Corpus Christi Colleges, Oxford; the Durham, Lincoln, Worcester, and Hereford Cathedral Libraries; the Bibliothèque royale de Belgique; the Biblioteca Medicea Laurenziana, Biblioteca Nazionale Centrale, and Biblioteca Riccardiana in Florence; the Biblioteca Apostolica Vaticana; the Bayerische Staatsbibliothek; the Monumenta Germaniae Historica; the Universitätsbibliotheken in Darmstadt, Innsbruck, and Leipzig; the Staatsbibliotheken in Bamberg and Berlin; the Biblioteca della Basilica di Sant’Ambrogio, Milan; the Bibliothèque nationale de France; the Bodleian Library; and the British Library. These libraries have made this work possible. ix

Acknowledgements In Cambridge, Munich, UCL, and now Sheffield, I have found lively and fun-filled communities. Without the medievalists in Cambridge, the long hours spent in the university library would have been considerably less enjoyable and productive, so thanks go to Greg Fedorenko, Mike Humphreys, Lars Kjaer, and Linda Stone, there from the beginning in September 2007, and Megan Leitch, Margaret McCarthy, Ingrid Rembold, Ben Vertannes, Graeme Ward, and Tony Watson, who joined us later. Equally important were Adam Gilbert and James Cameron, longsuffering Americanists who strayed into the medievalists’ 4pm tea break and for a reason that remains hazy decided to stick with us, and Jenni French and Kathryn Barnes, who provided critical breaks from thinking about the medieval past. In Munich, Tolly Sinclair, Tom Smith, and Micol Long kept me going over hot chocolate, cake, and the odd Weissbier or three in the Englischer Garten, while the London years were punctuated by pizza, wine, and coffee with Coleman Dennehy, Lowly Dale, Anna Dorofeeva, and Matt McHaffie. Back in my beloved north, particular thanks are due in Sheffield to Chris Doar, Bex Freeman, Eliza Hartrich, Casey Strine, and Charles West for easing the transition into the rigours of a lectureship. At some point in the mêlée, I had the great fortune to become acquainted with Levi Roach, who has since turned into a much-valued conference-buddy and close friend. All have saved what’s left of my sanity on more occasions than can be counted. Thanks are due, too, to the historians of medieval canon law who constitute my academic family. Kate Cushing has been a much-valued mentor, Bruce Brasington a good-humoured friend, and Christof Rolker an ideal Doktorbruder, while Melodie Eichbauer makes the impossible seem realistic. Anne Duggan and Gisela Drossbach provided me with many occasions to debate papal decretals, not that I need any excuse, and I thank them both without reservation for those discussions even when we disagree absolutely in our conclusions; and Peter Clarke has consistently been the right mixture of champion and critic. Lastly, but by no means least, I thank my PhD supervisor, Martin Brett, for his patience, perspicacity, profound erudition, and though he would no doubt be surprised – his pedantry. I had the supreme good fortune to be supervised by someone who both believes in making canon law comprehensible but whose eyes light up when faced with a complex manuscript, and who is uncompromising in appreciating such oddities. I can only hope that his constant remonstrances over the last ten years have had the desired effect. Throughout all of this, though, my parents have listened patiently to me wittering on semi-incomprehensibly about decretals and the Extra for over a decade. There have been positives, including trips to Florence, x

Acknowledgements Berlin, and Munich, but in the face of such potentially baffling terminology their constant and unquenchable support means more than I can say. Incredibly, they have mostly refrained from asking me when this book will be finished, so in answer to that unasked question: it is now. Thanks both; you’re brilliant.

xi

ABBREVIATIONS

Abh. Gött., Phil.-hist. Kl. AHC AHP AKKR BAV BL BM BMCL BML BN BSB c., cc. CCCM COD3 Code COGD Councils & Synods

Abhandlungen der Akademie der Wissenschaften in Göttingen, Philologisch-historische Klasse Annuarium historiae conciliorum Archivium historiae pontificiae Archiv für katholisches Kirchenrecht Biblioteca Apostolica Vaticana British Library Bibliothèque municipale Bulletin of Medieval Canon Law, new series Biblioteca Medicea Laurenziana Bibliothèque nationale, Biblioteca nacional, etc. Bayerische Staatsbibliothek canon(s), chapter(s), etc. Corpus Christianorum Continuatio Medievalis G. Alberigo et al., Conciliorum oecumenicorum decreta (Bologna, 1973) Codex Iustinianus, ed. P. Krüger, Corpus Iuris Civilis (15th edn, 1970) Conciliorum Oecumenicorum Generaliumque Decreta, ed. A. Melloni et al. (3 vols, Turnhout, 2007–13) Councils & Synods, With Other Documents Relating to the English Church, Volume 1 to 1205, ed. D. Whitelock, C. N. L. Brooke, and M. Brett (Oxford, 1981); Volume 2, 1205–1313, ed. F. M. xii

List of Abbreviations

DA DDC Decrees

Decretum D. C., q., c. d.a.c. d.p.c. EEA EHR frag. Hefele-Leclercq HMCL

Holtzmann-Cheney

Howden, Chronica

Howden, Gesta

Powicke and C. R. Cheney (Oxford, 1964) Deutsches Archiv Dictionnaire du droit canonique, ed. R. Naz (7 vols, Paris, 1935–65) N. Tanner, ed. and trans., The Decrees of the Ecumenical Councils, Vol. 1: Nicaea I to Lateran V (Washington, DC, 1990) Decretum magister Gratiani, ed. E. Friedberg, Corpus Iuris Canonici, 1 (2 vols, Leipzig, 1879) Distinctio Causa, questio, capitulum dictum ante capitulum dictum post capitulum English Episcopal Acta English Historical Review fragment of a conciliar canon, decretal, or similar K. Hefele, Histoire des conciles d’après les documents originaux, rev. and trans. H. Leclercq (11 vols, Paris, 1907–49) W. Hartmann and K. Pennington (eds.), The History of Medieval Canon Law in the Classical Period, 1140–1234. From Gratian to the Decretals of Pope Gregory IX (Washington, DC, 2008) Walther Holtzmann, Studies in the Collections of Twelfth Century Decretals From the Papers of the Late Walther Holtzmann, ed. and rev. C. R. Cheney and M. G. Cheney, MIC, B, 3 (Vatican City, 1979) Roger of Howden, Chronica, ed. W. Stubbs, Chronica Magistri Rogeri de Houedene, Rolls Series, 51 (4 vols, London, 1868–71) Roger of Howden, Gesta, ed. W. Stubbs, Gesta Regis Henrici Secundi Benedicti Abbatis, Rolls Series, 49 (2 vols, London, 1867) xiii

List of Abbreviations JE, JL

JEH Mansi MGH SS. rer. Germ. MIC A Series A: B Series B: C Series C: MIÖG, [Erg. Band] PL Pott.

Proceedings . . . Boston

Toronto I

Salamanca

Berkeley

P. Jaffé, ed., Regesta Pontificum Romanorum, rev. F. Kaltenbrunner, P. Ewald and S. Loewenfeld (2nd edn, 2 vols, Leipzig, 1888) Journal of Ecclesiastical History G. D. Mansi, Sacrorum Conciliorum nova et amplissima collectio (56 vols, Paris, 1756–98) Monumenta Germaniae Historica Scriptores rerum Germanicarum in usum scholarum separatim editi Monumenta Iuris Canonici Corpus Glossatorum Corpus Collectionum Subsidia Mitteilungen des Institut für österreichisches Geschichtsforschung, [Ergänzungen Band] Patrologia Latina Cursus Completus, ed. J.P. Migne (221 vols, Paris, 1844–64) Regesta Pontificum Romanorum: inde ab anno post Christum natum MCXCVIII ad MCCCIV, ed. August Potthast (2 vols, Berlin, 1873–5) S. Kuttner and J. Ryan (eds.), Proceedings of the Second International Congress of Medieval Canon Law: Boston, Massachusetts, MIC, C, 1 (Vatican City, 1965) S. Kuttner (ed.), Proceedings of the Fourth International Congress of Medieval Canon Law: Toronto, MIC, C, 5 (Vatican City, 1976) S. Kuttner and K. Pennington (eds.), Proceedings of the Fifth International Congress of Medieval Canon Law: Salamanca, MIC, C, 6 (Vatican City, 1980) S. Kuttner and K. Pennington (eds.), Proceedings of the Sixth International Congress of Medieval Canon Law: Berkeley, xiv

List of Abbreviations

Cambridge

San Diego

Munich

Syracuse

Catania

Washington

Esztergom

Toronto II

QF RDC

California, MIC, C, 7 (Vatican City, 1985) P. Linehan (ed.), Proceedings of the Seventh International Congress of Medieval Canon Law: Cambridge, MIC, C, 8 (Vatican City, 1988) S. Chodorow (ed.), Proceedings of the Eighth International Congress of Medieval Canon Law: San Diego, MIC, C, 9 (Vatican City, 1992) P. Landau and J. Müller (eds.), Proceedings of the Ninth International Congress of Medieval Canon Law: Munich, MIC, C, 10 (Vatican City, 1997) K. Pennington and S. Chodorow (eds.), Proceedings of the Tenth International Congress of Medieval Canon Law: Syracuse, New York, MIC, C, 11 (Vatican City, 2001) M. Bellomo and O. Condorelli (eds.), Proceedings of the Eleventh International Congress of Medieval Canon Law: Catania, MIC, C, 12 (Vatican City, 2006) U.-R. Blumenthal, K. Pennington, and A. A. Larson (eds.), Proceedings of the Twelfth International Congress of Medieval Canon Law: Washington, D.C., MIC, C, 13 (Vatican City, 2008) P. Erdö and S. A. Szuromi (eds.), Proceedings of the Thirteenth International Congress of Medieval Canon Law: Esztergom, MIC, C, 14 (Vatican City, 2010) S. Dusil, J. Goering, and A. Thier (eds.), Proceedings of the Fourteenth International Congress of Medieval Canon Law: Toronto, MIC, C, 15 (Vatican City, 2016) Quellen und Forschungen aus Italienischen Archiven und Bibliotheken Revue de droit canonique xv

List of Abbreviations Repert. RHD RHE RIDC SB Wien, Phil.-hist. Kl. SCH Schulte, Quellen und Literatur

WH ZRG Kan. Abt.

S. Kuttner, Repertorium der Kanonistik (1140–1234): prodromus corporis glossarum, Studi e testi, 71 (Vatican City, 1937) Revue historique de droit français et étranger Revue d’histoire ecclésiastique Rivista internazionale di diritto comune Sitzungsberichte der kaiserlichen Akademie der Wissenschaften, Wien, Philosophischhistorische Klasse Studies in Church History J.-F. von Schulte, Die Geschichte der Quellen und Literatur des canonischen Rechts von Gratian bis auf die Gegenwart (2 vols, Stuttgart, 1875) Walther-Holtzmann Nummer; see p. xxii Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, kanonistische Abteilung

Abbreviations Used in Letter Citations Aguirre Bouquet Colliete Foedera

Ineditae IP

Collectio maxima conciliorum omnium Hispaniae et novi orbis, ed. J. S. de Aguirre (6 vols, 1753–50) Recueil des historiens des Gaules et de la France, ed. M. Bouquet et al. (25 vols, Paris, 1868–80) Mémoires pour servir à l’histoire ecclésiastique, civile et militaire de la province de Vermandois, ed. L.-P. Colliete (3 vols, Cambrai, 1771–3) Foedera, conventiones, literae, et cuiuscunque generis, acta publica, inter reges Angliae, et alios quosvis imperatores, reges, pontifices, principes, vel communitates, ab uneunte saeculo duodecimo, viz. ab anno 1101 ad nostra usque tempora, ed. T. Rymer, R. Sanderson, and G. Holmes (repr., 10 vols, Farnborough, 1967) Decretales ineditae saeculi XII. From the Papers of the Late Walther Holtzmann, ed. S. Chodorow and C. Duggan, MIC, B, 4 (Vatican City, 1982) Italia Pontificia, ed. P. Kehr, W. Holtzmann, and D. Girgensohn (10 vols, 1906–75) xvi

List of Abbreviations Kan. Erg. Martène-Durand MHH Mon. Ang.

MTB PUE, 1 PUE, 3

PUF, 5

PUF n.F., 3 PUF n.F., 4 PUF n.F., 5 PUNL PUP

W. Holtzmann, ‘Kanonistische Ergänzungen zur Italia Pontificia’, QF, 37–8 (1957–8) E. Martène and U. Durand (ed.), Veterum scriptorum et monumentorum historicorum dogmaticorum moralium, amplissima collectio (9 vols, Paris, 1724–33) Monumenta Hungariae Historica, Diplomata (72 vols, Pest, 1872–) Monasticon Anglicanum: A History of the Abbies and Other Monasteries, Hospitals, Frieries, and Cathedral and Collegiate Churches, with their Dependences, in England and Wales, ed. W. Dugdale (repr., 8 vols, Farnborough, 1970) Materials for the History of Thomas Becket, ed. J. C. and J. B. Sheppard, Rolls Series, 67 (7 vols, London, 1875–85) Papsturkunden in England, 1: Bibliotheken und Archive in London, ed. W. Holtzmann, Abh. Gött., Phil.hist. Kl., neue Folge, 25 (1930) Papsturkunden in England, 3: Oxford, Cambridge, kleinere Bibliotheken und Archive und Nachträge aus London, ed. W. Holtzmann, Abh. Gött., Phil.-hist. Kl., 3e Folge, 33 (1952) Papsturkunden in Frankreich, 5: Berry, Bourbonnais, Nivernais und Auxerrois, ed. W. Wiederhold, Göttingen Nachrichten, Phil.-hist. Kl., Beiheft, 5 (1910) Papsturkunden in Frankreich, neue Folge, 3: Artois, ed. J. Ramackers, Abh. Gött., Phil.-hist. Kl., 3e Folge, 23 (1940) Papsturkunden in Frankreich, neue Folge, 4: Picardie, ed. J. Ramackers, Abh. Gott., Phil.-hist. Kl., 3e Folge, 27 (1942) Papsturkunden in Frankreich, neue Folge, 5: Touraine, Anjou, Maine und Bretagne, ed. J. Ramackers, Abh. Gött., Phil.-hist. Kl., 3e Folge, 35 (1956) Papsturkunden in den Niederlanden (Belgien, Luxembourg, Holland und französisch-Flandern), ed. J. Ramackers, Abh. Gött., Phil.-hist. Kl., 3e Folge, 8 (1933) Papsturkunden in Portugal, ed. C. Erdmann, Abh. Gött., Phil.-hist. Kl., neue Folge, 20 (1927)

xvii

List of Abbreviations PUS, 2 PUTJ PUTJ n.F. Sirmond, Opera

Papsturkunden in Spanien, 2: Navarra und Aragon, ed. P. Kehr, Abh. Gött., Phil.-hist. Kl., neue Folge, 22 (1928) Papsturkunden für Templer und Johanniter, ed. R. Hiestand, Abh. Gött., Phil.-hist. kl., 3e Folge, 77 (1972) Papsturkunden für Templer und Johanniter, neue Folge, ed. R. Hiestand, Abh. Gött., Phil.-hist. Kl., 3e Folge, 135 (1984) Jacobi Sirmondi soc. Jesu presbyteri, Opera Varia (5 vols, Venice, 1728) Decretal Collections

1 Abr.

1 Alcob. Ambros. App. Aur. Bamb. 1 Berol. Bridl. Brug. Cant. Chelt.

Abrincensis I, analysed by Heinrich Singer, Neue Beiträge über die Dekretalensammlungen vor und nach Bernhard von Pavia, SB Wien, Phil.-hist. Kl., 171 (Vienna, 1913), pp. 355–400 Alcobacensis I, analysed in Holtzmann-Cheney, pp. 16–25 Ambrosiana, analysed in Holtzmann-Cheney, pp. 37–42 Appendix Concilii Lateranensis, printed in Mansi, 22.248–453 Aureavallensis, analysed by W. Holtzmann, ‘Beiträge zu den Dekretalensammlungen des zwölften Jahrhunderts’, ZRG Kan. Abt., 16 (1927), 77–115 Bambergensis, analysed by W. Deeters, Die Bambergensisgruppe der Dekretalensammlungen des 12. Jahrhunderts (Bonn, 1956), passim Berolinensis I, analysed by J. Juncker, ‘Die Collectio Berolinensis’, ZRG Kan. Abt., 13 (1924), 284–426 Bridlingtonensis, no analysis; Oxford, Bodleian Library, Bodley 357, fols 80r–133v Brugensis, analysed by E. Friedberg, Die Canones-sammlungen zwischen Gratian und Bernhard von Pavia (Leipzig, 1897), pp. 140–70 Cantuariensis, analysed by C. Duggan, Twelfth-Century Decretal Collections and their Importance in English History (London, 1963), pp. 162–71 Cheltenhamensis; G. Drossbach, Die Collectio Cheltenhamensis: eine englische Decretalensammlung. Analyse beruhend auf Vorarbeiten von Walther Holtzmann, MIC, B, 10 (Vatican City, 2014) xviii

List of Abbreviations Claustr. 1 Comp. 2 Comp. 3 Comp. Cott. Cus. Dert. Duac. 1, 2 Dun. Eberb. Flor. Frcf.

Lips. 1 Par. 2 Par. Pet. Rem. Roff. 1 Rot. Sang.

Claustroneoburgensis, analysed by E. Schönsteiner, ‘Die Collectio Claustroneoburgensis’, Jahrbuch des Stiftes Klosterneuburg, 2 (1909), 1–154 Breviarium Extravagantium, analysed in E. Friedberg, ed., Quinque Compilationes Antiquae necnon Collectio Lipsiensis (Leipzig, 1882), pp. 1–65 Compilatio Secunda, analysed in Friedberg, ed., Quinque Compilationes, pp. 66–104 Compilatio Tertia, analysed in Friedberg, ed., Quinque Compilationes, pp. 105–34 Cottoniana, no analysis; London, BL, Cotton Vitellius E.xiii, fols 204–88 Cusana, summary analysis in Holtzmann-Cheney, pp. 70–4 Dertusensis I, analysed by W. Holtzmann, ‘Beiträge zu den Dekretalensammlungen des zwölften Jahrhunderts’, ZRG Kan. Abt., 16 (1927), 39–77 Duacensis, no analysis; Douai, Bibliothèque de la ville 590, fols 1r–2v, 247r–248v Dunelmensis I, the first and second sections thereof, analysed in Holtzmann-Cheney, pp. 80–99 Eberbacensis, analysed by W. Holtzmann, ‘Die Collectio Eberbacensis’, ZRG Kan. Abt., 17 (1928), 548–55 Florianensis, summary analysis in Holtzmann-Cheney, pp. 48–61 Francofurtana, analysed by P. Landau and G. Drossbach, Die Collectio Francofurtana: eine franzözische Decretalensammlung. Analyse beruhend auf Vorarbeiten von Walther Holtzmann, MIC, B, 9 (Vatican City, 2007) Lipsiensis I, analysed in Friedberg, Quinque Compilationes, pp. 189–208 Parisiensis I, analysed in Friedberg, ed., CanonesSammlungen, pp. 52–63 Parisiensis II, analysed in Friedberg, ed., CanonesSammlungen, pp. 32–45 Petrihusensis; no analysis, various manuscripts Remensis, analysed in Holtzmann-Cheney, pp. 280–3 Roffensis; analysed by C. Duggan, Twelfth-Century Decretal Collections, 173–87 Rotomagensis I, analysed in Holtzmann-Cheney, pp. 169–207 Sangermanensis, analysed in Singer, Neue Beiträge, pp. 117–354 xix

List of Abbreviations Tann.

1 Vict Wig.

X

Tanner, analysed by W. Holtzmann, ‘Die Dekretalensammlungen des 12. Jahrhunderts: 1. Die Sammlung Tanner’, in Festschrift zur Feier des 200jährigen Bestehens der Akademie der Wissenschaften in Göttingen, Phil.Hist. Kl., (1951), pp. 83–145 Victorina I, summary analysis in Holtzmann-Cheney, pp. 31–4 Wigorniensis, analysed by H.-E. Lohmann, ‘Die Collectio Wigorniensis (Collectio Londoniensis Regia): Ein Beitrag zur Quellensgeschichte des kanonischen Rechts im 12. Jahrhundert’, ZRG Kan. Abt., 22 (1933), 36–187 Gregory IX, Decretales, ed. E. Friedberg in Corpus Iuris Canonici (2 vols, Leipzig 1879–81), 2.1–928 Summae

Honorius, Summa

Huguccio, Summa Paucapalea, Summa Rolandus, Summa Rufinus, Summa Simon of Bisignano, Summa Stephen of Tournai, Summa Summa Lipsiensis

Honorius, Summa, in Magistri Honorii Summa ‘De Iure Canonico Tractaturus’, ed. R. Weigand, P. Landau, and W. Kozur with S. Haering, K. Miethaner-Vent, and M. Petzolt, MIC, A, 5 (3 vols, Vatican City, 2004–10) Huguccio Pisanus, Summa Decretorum, Tom. I, Dist. 1–20, ed. O. Prˇerovský, MIC, A, 6 (Vatican City, 2006) Die Summa des Paucapalea über das Decretum Gratiani, ed. J.-F. von Schulte (Giessen, 1890) Die Summa Magistri Rolandi, ed. F. Thaner (Innsbruck, 1874) Die Summa decretorum des Magister Rufinus, ed. H. Singer (Paderborn, 1902) Summa decretorum Simonis Bisinianensis, ed. P. V. Aimone-Braida MIC, A, 8 (Vatican City, 2014) Die Summa des Stephanus Tornacensis über das Decretum Gratiani, ed. J.-F. von Schulte (Giessen, 1891) Summa ‘Omnis qui iuste iudicat’ sive Lipsiensis, ed. R. Weigand, P. Landau, and W. Kozur with S. Haering, K. xx

List of Abbreviations

Summa Monacensis Summa Parisiensis

Miethaner-Vent, and M. Petzolt, MIC, A, 7 (2 vols, Vatican City, 2007–10) Munich, Staatsbibliothek, clm 16084, fols 1–9, 11–16, 18–27 The Summa Parisiensis on the Decretum Gratiani, ed. T. McLaughlin (Toronto, 1952)

xxi

WALTHER-HOLTZMANN KARTEI

A major source for this study is the so-called ‘Walther-Holtzmann Kartei’, a card file created by Walther Holtzmann including all papal letters from ca. 1148–98 that he considered to be decretals. A typed copy of the card file has been made freely available by the Stephan Kuttner Institute of Medieval Canon Law in Munich, at http://www.lrz.de/ ~SKIMCL/ under the title ‘Walther Holtzmann Kartei’. The Kartei are numbered 1–1090 and are broadly alphabetical according to incipit. Additional decretals of which Holtzmann was unaware have been added since custody of the Kartei passed to the Institute, and inserted into the sequence as appropriate. Decretals are referred to consistently throughout this book by their Walther Holtzmann Number, in place of the Jaffé-Loewenfeld (JL) numbering. Letters not included in the decretal collections are still denoted according to their JL number, unless they were not calendared in the second edition. Although a project to revise JL is underway, at the time of writing, J3 had not advanced enough in the twelfth century to permit its use for those letters. See also the note on citation styles below.

xxii

NOTE ON CITATION STYLES

The Decretum, the Liber Extra, and the Quinque Compilationes Antiquae are cited as in James Brundage, Medieval Canon Law (London, 1994), pp. 190–7. Papal letters are cited first by their numbering in the Walther Holtzmann Kartei (WH), followed by the relevant Jaffé-Loewenfeld (JL) number, and ending with reference to the printed edition or, if unpublished, the manuscript from which a reading was taken. For example, WH 192, Consulit nos of Alexander III to the bishop of Winchester, is JL 14136 and was published by Friedberg as 1 Comp. 4.1.3, making the reference WH 192: JL 14136 = 1 Comp. 4.1.3. Sections of decretals, where they are dissected in collections, are identified by letter. WH 649a, for example, refers to the first ‘section’ of Meminimus nos. Where a letter is included in the Kartei but was not part of Holtzmann’s original numbering, it is noted by an asterisk, and the published version referenced as before. Letters found in the English Episcopal Acta and Papsturkunden series will be cited by volume, number, and page. Letters found in the Italia pontificia will be cited by volume, page, and number. Other multivolume works are cited by volume and page or column (e.g. the Council of Tours is Mansi, 21.1177–9, while D. 20 of the Summa Lipsiensis is 1.61–3). A full list of the abbreviations used is found above. Quotations from summae and glosses, published or unpublished, are modelled on the standardised format as used in Rudolf Weigand, Die Glossen des Dekret Gratians. Wherever practicable, names and terms have been Anglicised, except where best expressed in their original language (e.g. Dekretanhänge for the variety of collections that are added to Gratian’s Decretum). The Bible was used in the Vulgate, and translations are based on a modernised version of the King James Bible.

xxiii

INTRODUCTION

Ecclesiastical councils present a peculiar problem for historians of the medieval church, and especially for those trying to understand the nature of medieval papal authority. Despite an ancient pedigree, the pre-eminence of ecclesiastical councils began to fade over the course of the central Middle Ages. The centuries after 1050 are more often presented as a period in which a newly self-confident papacy rose, determined to maintain its hard-won independence from lords both secular and ecclesiastical. One result of that determination, especially when seen alongside the emergence of the papal states as a territorial conglomeration in central Italy, has been the so-called papal monarchy.1 For Walter Ullmann, whose interpretation still carries a certain weight, the papal monarchy reached its ‘zenith’ with Innocent III, although since the time of Barraclough scholars have debated the validity of the concept.2 As a result, the synod and papal council, traditional decisionmaking bodies of the Church, have all too often been perceived as procedural rubber stamps, especially those held under forthright pontiffs such as Innocent III.3 The implication that these bodies acted as venues 1

2

3

E.g. C. Morris, The Papal Monarchy (Oxford, 1989). I. S. Robinson, The Papacy, 1073–1198: Continuity and Innovation (Cambridge, 1990), implicitly takes a similar perspective. W. Ullmann, A Short History of the Papacy (London, 1972), p. 223, although his arguments antedated this publication; Ullmann took an extremely longue durée approach to the history of the papacy. Innocent III retains a central role in perceptions of the medieval papacy. See e.g. H. Tillmann, Pope Innocent III (Amsterdam, 1980); J. Sayers, Innocent III: Leader of Europe (London, 1994); J. C. Moore, Innocent III: To Root up and to Plant (Leiden and Boston, 2003); J. C. Moore (ed.), Innocent III and his World (Aldershot, 1999). For more nuanced perspectives on Innocent’s pontificate, see works by Brenda Bolton, including and especially the studies collected in her Innocent III: Studies on Papal Authority and Pastoral Care (Aldershot, 1995). The recent octocentenary of the 1215 council also provided an opportunity for a rethinking of its role, via a series of major international conferences in Italy and Spain; the associated volumes are only now starting to come to press, but see e.g. M. Boulton (ed.), Literary Echoes of the Fourth Lateran Council in England and France (1215–1405) (Toronto, 2018); J. Bird and D. J. Smith (eds.), The Fourth Lateran Council and the Crusade Movement.

1

Introduction for the general approval of decrees which emerged from the curia according to a predetermined papal agenda, presents a stark contrast to the more inclusive ideas of a council as a place for discussions, judgements, and, above all, counsel. For the twelfth century, the central elements of all such debates concern the extent and nature of papal power and, by consequence, the purpose of papal government. With the close of the Investiture Controversy and the Concordat of Worms in 1122, the existence of an independent papacy was no longer in question.4 Open to interpretation, however, were the extent of its authority and its interactions with secular rulers who often, although by no means universally, viewed ecclesiastical authority with suspicion. Stephen of Blois forbade his archbishop of Canterbury, Theobald, from attending the 1148 Council of Reims held by Pope Eugenius III; Henry II, in the Constitutions of Clarendon, attempted to impose a regulation that limited the right of ecclesiastics to appeal to Rome.5 At the same time, all clerics and especially the papacy functioned concurrently in both ecclesiastical and secular spheres. Ecclesiastical princes, popes, bishops, and abbots also functioned as secular lords in their own right. While the lure of considering the papacy in the light of its relationship with secular powers remains strong, there is an increasing movement to consider the secular and ecclesiastical powers as overlapping spheres working alongside one another rather than as antagonists, which certainly seems to have been more in keeping with contemporary practice. Part of that change is the interest, particularly outside the anglophone world, in ideas of ‘centre’ and ‘periphery’, especially in the context of the medieval papacy.6 Such research builds on

4

5 6

The Impact of 1215 on Latin Christendom and the East (Turnhout, 2018), and A. A. Larson and A. Massironi (eds.), The Fourth Lateran Council and the Ius Commune (Turnhout, 2019). Innocent’s precise relationship to the 1215 council is therefore currently being reconsidered, but there remains an overwhelming scholarly attachment to the idea that he was directly, if not personally, responsible for the contents of its canons. The year 1122 marks the end of the period characterised by Harold Berman as the catalyst for a legal ‘revolution’. See: Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA, 1983); J. A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago, 2008), p. 79 n. 15 summarises the critiques. John of Salisbury, Historia Pontificalis, ed. and trans. M. Chibnall (Oxford, 1956), pp. 6–8. See e.g. the essays in J. Johrendt and H. Müller, Romisches Zentrum und kirchliche Peripherie. Das universale Papsttum als Bezugspunkt der Kirchen von den Reformpäpsten bis zu Innocenz III. (Berlin, 2008); G. Drossbach and H.-J. Schmidt, Zentrum und Netzwerk. Kirchliche Kommunikationen und Raumstrukturen im Mittelalter (Berlin, 2008). For a recent summary, see C. Zey and M. P. Alberzoni, ‘Legati e delegati papali (secoli XII–XIII): stato della ricerca e questioni aperte’, in Zey and Alberzoni (eds.), Legati e delegati papali. Profili, ambiti d’azione e tipologie di interventi nei secoli XII–XIII, con la collaborazione di Renato Mambretti e Pietro Silanos (Milan, 2012), pp. 4–12.

2

Introduction questions of delegated authority, papal legates, and the relationship between prelates and the papacy, but it has also shifted direction. Rather than focussing on the verbal explications of power from the head of the ecclesiastical hierarchy, there is growing interest in the exercise of power and authority by prelates who were forced to balance their ecclesiastical roles and ideals with secular or familial responsibilities.7 It increasingly seems as though it was not only the popes of the twelfth century who were ‘practical men’, to employ Southern’s phrase.8 Martyrs such as Becket provide at best an honourable exception. Having been characterised variously as a ‘crisis’ and a ‘Renaissance’ since the 1920s, the twelfth century was a time of intellectual change and revival.9 Yet deciding which elements of the changing culture of Latin Christendom were most influential remains problematic. Both ecclesiastical and secular laws, for example, saw a movement towards written expositions and away from ideas of custom over the period, brought about in part by changing patterns of literacy and in part due to the emergence of the law schools. Debates over the relationships within the ius commune tend, however, to be unhelpful, breaking down into arguments over how far individual elements borrowed from one another, and how far each region instead presents its own independent narrative.10 As far as the popes are concerned, questions of twelfth-century vitality play into still-live debates which emerged from nineteenth-century caricatures of a grasping papacy to evolve into the idea of a papal hierocracy made infamous by Ullmann.11 Debates have focussed on the intention and extent of papal control, conceptualising the period between 1050 and 7

8 9

10

11

The anglophone literature alone is extensive, but see e.g. J. Ott, Bishops, Authority and Community in Northwestern Europe, 1050–1150 (Cambridge, 2015); J. Eldevik, Episcopal Power and Ecclesiastical Reform in the German Empire: Tithes, Lordship and Community, 950–1150 (Cambridge, 2012); J. Ott and A. Trumbore-Jones (eds.), The Bishop Reformed: Studies of Episcopal Power and Culture in the Central Middle Ages (Aldershot, 2007); K. Rennie, Law and Practice in the Age of Reform: The Legatine Work of Hugh of Die, Medieval Church Studies, 17 (Toronto, 2010). R. W. Southern, The Making of the Middle Ages (London, 1978), p. 146. C. H. Haskins, The Renaissance of the Twelfth Century (Cambridge, MA, 1927); R. L. Benson and G. Constable with Carol Lanham (eds.), Renaissance and Renewal in the Twelfth Century (Cambridge, MA, 1982); T. Bisson, The Crisis of the Twelfth Century (Philadelphia, 2009); T. F. X. Noble and J. van Engen (eds.), European Transformations: the Long Twelfth Century (Notre Dame, 2012); J. D. Cotts, Europe’s Long Twelfth Century: Order, Anxiety, and Adaptation (New York, 2013). E.g. the debates outlined in a recent debate in Law and History Review: S. Reynolds, ‘The emergence of professional law in the long twelfth century’, Law and History Review, 21 (2003), 347–66; followed by P. Górecki, ‘A view from a distance’, 337–76; C. Radding ‘Legal theory and practice in eleventh-century Italy’, 377–81; P. Brand, ‘The English difference: the application of bureaucratic norms within a legal system’, 383–7. For a recent overview of many of these discussions and debates, see K. Sisson and A. A. Larson (eds.), A Companion to the Medieval Papacy: Growth of an Ideology and Institution (Leiden, 2016), esp. A. A. Larson, ‘Introduction’, pp. 1–16 at 1–9, and T.F.X. Noble, ‘Narratives of papal history’, pp. 17–33.

3

Introduction 1250 as a clash between the institutionalised ‘Church’ and ‘State’ and demarcating the medieval period as a time when tensions between the two were at their height.12 Alongside the otherwise more celebrated pontificates of Gregory VII and Innocent III, that of Alexander III proved a useful hunting ground: both the Alexandrine schism and the Becket conflict could be portrayed as struggles by a nascent independent state – in these cases, Germany and England – against unclerical attempts by the popes to involve themselves in secular matters. For some scholars, such as Stubbs, these attempts were ultimately futile; for others, such as Maitland, they met with greater success.13 Some studies, including those by Ullmann, have employed the evidence of canon law to investigate contemporary thinking on dualism and the Gelasian ‘two swords’ doctrine, and on the role of canon law in creating the institutional Church.14 Some of these studies were well-received; others less so.15 One result, however, has been the equation of legal and political thought, and the consequent growth in studies that use canon law in particular to buttress arguments concerning papal supremacy as indicated in the Dictatus papae and the letters of Innocent III. Falling between Gregory VII and Innocent, the popes of the twelfth century were overlooked except when they could be used to support a teleological argument for the gradual growth of the papal monarchy. The sole scholarly biography of Alexander III, written by Marcel Pacaut, was not purely a biography but a ‘study of [his] conception of papal authority’.16 The legal element meant that, when the backlash came, it began amongst legal historians. Even in the early 1990s, the implications of John Gilchrist’s argument that contemporary lawyers virtually ignored 12 13

14

15

16

Exemplified in e.g. B. Tierney, The Crisis of Church and State, 1050–1300 (repr., Toronto, 2004). F. W. Maitland, ‘Church, state and decretals’, in his Roman Canon Law in the Church of England: Six Essays (London, 1898), p. 98 and passim; C. Donahue, Jr., ‘Roman canon law in the medieval English Church: Stubbs vs Maitland re-examined after 75 years in the light of some records from the church courts’, Michigan Law Review, 72 (1973–4), 647–71 at 648–54. W. Ullmann, The Growth of Papal Government in the Middle Ages (London, 1955), pp. 370, 373; W. Ullmann, Medieval Papalism: The Political Theories of the Medieval Canonists (London, 1949), p. 76. Also, for the thirteenth century, see J. Watt, The Theory of Papal Monarchy in the Thirteenth Century: The Contribution of the Canonists (New York, 1965), pp. 9–57, on the theory as elucidated between Gelasius and Innocent III, including Gratian and the decretists. S. Chodorow, Christian Political Theory and Church Politics in the Mid-Twelfth Century: The Ecclesiology of Gratian’s Decretum (Berkeley, 1972), reviewed by R. L. Benson, Speculum, 50 (1975), 97–106. M. Pacaut, Alexandre III: é tude sur la conception du pouvoir pontifical dans sa pensé e et dans son oeuvre (Paris, 1956). Although, as with the general movement of scholarship, there is now a more nuanced understanding of Alexander’s role in government. See e.g. P. D. Clarke and A. J. Duggan (eds.), Alexander III (1159–81): the art of survival (Aldershot, 2012) and I. FonnesbergSchmidt, The Popes and the Baltic Crusades, 1147–1254 (Leiden, 2006).

4

Introduction Gregory VII’s more hard-line letters were easily overlooked – in his words, ‘compromise and moderation replaced ideological inflexibility’ – as was Pennington’s critique of the extent of Innocent III’s legal education.17 That scholars of canon law often refuse, with good reason, to give broad answers that are not based on an understanding or knowledge of specific manuscripts may explain in part how far these ideas were overlooked. Yet there was something demonstrably different about the papacy in the early thirteenth century compared with its predecessor two centuries earlier and while studies of legal texts go a significant way towards explaining that change, they do not necessarily give a full picture. There is now an acceptance, in both traditional canon law scholarship and that of broader papal history, that multiple forms of authority existed at the same time, and a growing willingness to investigate how they interacted. As a result, the papacy now appears more often as one player amongst many. Concerning the fourteenth-century York Cause Papers, for example, Donahue commented that the procedures in local courts did ‘not make the papal law any less binding, but [they did] make it considerably less important’.18 At the same time, grandiose statements of papal power did not translate into actions. Popes engaged with wider Christian society using language heavy with the rhetoric of papal supremacy, but whatever their claims to the fullness of power, they were reliant on local co-operation to implement their ideas. During the twelfth century, cut off from its traditional lands in central Italy, split by schism, and reliant on lay and clerical support for financial aid and accommodation, the papacy lacked the resources to force any approach on a cleric or lord.19 It was thus reliant on compromise, making the discourse between popes and local clerics, and the balancing of ecclesiastical and secular, and local and central, authorities a critical component of twelfth-century ecclesiastical government. While the scholarly view of the papacy focusses increasingly on its role as responsive government, discussion of the papal councils has revolved 17

18 19

J. Gilchrist, ‘The reception of Pope Gregory VII into the canon law (1073–1141), II’, ZRG Kan. Abt., 97 (1980), 192–203 at 225–6; K. Pennington, ‘The legal education of Pope Innocent III’, BMCL, 4 (1974), 70–77; K. Pennington, ‘Further thoughts on Pope Innocent III’s legal education’, ZRG Kan. Abt., 72 (1986), 417–28. Morris, Papal Monarchy, p. 418 comments briefly on Innocent III’s learning. Donahue, ‘Stubbs vs Maitland re-examined’, p. 708. See K. Pennington, Pope and Bishops: The Papal Monarchy in the Twelfth and Thirteenth Centuries (Philadelphia, 1984), pp. 116–19, and M. G. Cheney, ‘Inalienability in mid-twelfth-century England: enforcement and consequences’, Proceedings Berkeley, pp. 467–78 at 470–1 for two twelfth-century examples.

5

Introduction around how far they should be perceived as papal instruments.20 The evolution of the papal council from a judicial synod under Leo IX to the fully fledged legislative general council under Innocent III supported the narrative of the progressive march of centralised papal government, and little has been done to challenge that tale.21 Conciliar decrees were not the result of debate and discussion, but instead reflected papal preoccupations that were rubber-stamped by the conciliar fathers. For the 1179 council, Raymonde Foreville portrayed both conciliar canons and papal decretals as part of a stream of law-making material emanating from the curia.22 Pacaut too presented papal bulls and decisions that predated the council as part of a long-term agenda that culminated in the conciliar decrees.23 Both saw the conciliar canons as a form of overarching legislation expressly put forward by the papacy, and, with minor modifications, the view they espoused has held firm. Despite the growing idea of the papacy as a responsive institution in both its pastoral and legal roles, the position of papal councils in the later twelfth century remains opaque. aims This study addresses that situation in two ways. Firstly, the conciliar canons’ emergence from the numerous learned debates of the period 1148–79 will be investigated. Eugenius III’s 1148 Council of Reims was the last general council before the election of Alexander III and the beginning of the schism that split Latin Christendom for most of Alexander’s pontificate. It represents, therefore, the last occasion before Alexander’s 1179 council at which clerics from across Latin Christendom were able to come together under a single pope and discuss and debate issues of importance; 1148 is also, by lucky coincidence, within a few years of the widespread appearance of the second recension of Gratian’s Decretum. From 1150 on, the Decretum moved further afield from Bologna, and its influence began to percolate into schools of law and 20

21

22

23

For a commentary on responsive papal government in the early thirteenth century and general overview, see e.g. T. W. Smith, ‘Honorius III and the crusade: responsive papal government versus the memory of his predecessors’, SCH, 49 (2013), 99–109. F.-J. Schmale, ‘Synodus – synodale concilium – concilium’, AHC, 8 (1976), 80–102; F.-J. Schmale, ‘Systematisches zu den Konzilien des Reformpapsttums im 12. Jahrhundert’, AHC, 6 (1974), 21–39, esp. at 35–8. Even under Gregory VII, papal synods were held regularly every six to twelve months, and brief accounts survive: H. E. J. Cowdrey, The Register of Pope Gregory VII (Oxford, 2002), 3.10a, pp. 191–3; 9.35a, pp. 439–40. R. Foreville, ‘La place de Latran III dans l’histoire conciliare du XIIe siècle’, in J. Longère (ed.), Le troisième concile de Latran (1179): sa place dans l’histoire (Paris, 1982), pp. 11–17, at 16. M. Pacaut, ‘Alexandre III et le concile œcuménique de 1179’, in J. Longère (ed.), Troisième concile de Latran (1179): sa place dans l’histoire (Paris, 1982), pp. 19–22, at 21.

6

Aims episcopal chanceries. Over the course of the twelfth century, legal learning seeped into episcopal and archiepiscopal familiae from schools across Christendom. Networks formed between men who had studied or worked together. The relative closeness of several members of Archbishop Theobald’s familia represents a particularly pertinent example, especially as that group was reinforced by other colleagues throughout the Becket conflict. It was not the only such grouping, however, and the relationship of these networks to the papacy and ultimately their relevance to the drafting of the 1179 conciliar canons are the foundations of the first section of this study. The second section assesses what happened to the canons after their promulgation in 1179. For this, fifty-six traditions of the complete decrees have been investigated, some nineteen more than in Herold’s critical edition, though by no means all that have been discovered since.24 However, the circulation of versions of the decrees that claim to be complete is not the only means by which their dissemination and, in particular, their use should be judged. As a result, the final chapter constitutes a study of the canons’ use and citation between the council in 1179 and the appearance of Huguccio’s Summa Decretorum and of Bernard of Pavia’s Breviarium Extravagantium in about 1191. That year provides a flexible terminus for this study; some reference will need to be made to works composed after 1191. This is particularly true for the canonistic material, which can rarely be dated with great accuracy, but it remains a consideration for local councils and episcopal acta. While a new pope, Celestine III, was elected in 1191, making it easier to restrict the use of post-1191 papal letters, such a useful distinction does not exist for most bishoprics.25 Especial attention is paid to the distinction between papal and local use, the latter of which terms will be used as shorthand for the canonical and non-canonical use of the canons away from the curia and the direct influence of the papacy. That distinction is fundamental to understanding how the relationship between the papacy and the rest of Christendom worked in practical terms during the later twelfth century. 24

25

W. Herold, ‘Die Canones des 3. Laterankonzils’, inaugural dissertation, University of Bonn (1952). Uta-Renate Blumenthal and Martin Bertram have discovered some sixty-four manuscript traditions (personal communication). See more recently U.-R. Blumenthal, ‘Das Dritte Laterankonzil, seine Beschlüsse und die Rechtspraxis’, in C. Andenna et al. (eds.), Die Ordnung der Kommunikation und die Kommunikation der Ordnung im mittelalterlichen Europa, Band 2: Zentralität: Papsttum und Orden im Europa des 12. und 13. Jahrhunderts (Stuttgart, 2013), pp. 37–49. A. J. Duggan, ‘Hyacinth Bobone: diplomat and pope’, in J. Doran and D. J. Smith (eds.), Pope Celestine III (1191–1198): Diplomat and Pastor (Aldershot, 2008), p. 1. Hyacinth had been in the curia since the mid-1140s.

7

Introduction While taking into account recent criticism of the interpretation of legal texts,26 this study aims to understand the relative position of conciliar acta within the broader scope of twelfth-century ecclesiastical history and, in particular, ecclesiastical law and the legal hierarchy of sources. Consequently, there are two important caveats concerning its source material. Firstly, the texts studied here are those loosely classified as legal in origin. In this case, that means papal letters, accounts of papal and episcopal councils and synods, and the collections and commentaries compiled for and by twelfth-century lawyers. There has been minimal recourse to the works of theologians or to penitential texts, despite the well-established proximity of the two schools of thought in the later twelfth century and the everconvincing arguments for the importance of theological material in shaping canonical collections, particularly Gratian’s De Penitentia.27 The distinction is a rough one, and should not be regarded as implying that theological material is less important for understanding the canons’ origins and use. It is purely practical, and even limiting the selection to ‘legal’ texts incorporates a substantial amount of material. Hiestand listed around 6,000 papal letters sent between Eugenius III’s departure from Reims in May 1148 and the death of Clement III in 1191, to which should be added the 6,000 or so calendared in Jaffé-Loewenfeld.28 Alongside the commentaries of canonists, these letters have formed the majority of the works investigated; at this study’s very core, however, are the 950-odd letters that entered the decretal collections, and the men who wrote or requested their composition. The volume of material imposed a second limitation. Here, the text of the 1179 decrees has not been reconstituted by creating a critical edition. Nor does this study pretend to be an exhaustive survey of the precise texts of every canonical collection; papal, archiepiscopal, or legatine letter; or conciliar canon from across Latin Christendom over the fifty years it covers. The canons’ emergence and their later use and incorporation 26

27

28

E.g. K. Pennington, ‘Canon law in the later Middle Ages: the need and the opportunity’, Proceedings Catania, pp. 31–42 at 33–4, on the need for manuscript research into the ‘classical’ juristic texts; K. Pennington, Review of B. C. Brasington and K. G. Cushing (eds.), Bishops, Texts and the Use of Canon Law around 1100: Essays in Honour of Martin Brett (Aldershot, 2008), EHR, 124 (2009), 929–32 at 930. For an overview, see J. Wei, ‘Gratian and the schools of Laon’, Traditio, 64 (2009), 279–322. On De Pen. see also J. Wei, ‘Penitential Theology in Gratian’s Decretum: critique and criticism of the treatise Baptizato homine’, ZRG Kan Abt., 127 (2009), 78–100 at 87–8. Regesta Pontificum Romanorum, ed. P. Jaffé, rev. S. Loewenfeld et al. (2 vols, Leipzig, 1881–8); Initienverzeichnis und chronologisches Verzeichnis zu den Archivberichten und Vorarbeiten der Regesta pontificum Romanorum, ed. R. Hiestand, MGH, Hilfsmittel, 7 (Munich, 1983), pp. 186–425.

8

Aims necessitates an unashamedly broad outlook; it has been physically impossible to identify, analyse, and create critical editions of all known copies of the 1179 canons, all papal letters from the period 1148–91, and all episcopal synods and letters even before the myriad of canonical works are considered. With the exception of the conciliar canons and certain canonical works outlined below, my study depends upon the printed materials available, which have been used with due respect for their many limitations. While original or secure texts have been ascertained as far as possible, this has not always been the case and a huge debt of gratitude must be acknowledged to the creators of the printed analyses and texts that exist for both canonical and non-canonical works. Had it not been for them, and in particular the Walther-Holtzmann Kartei made available by the Stephan Kuttner Institute in Munich, then this study would not have been possible.29 These limitations have been introduced for good reason. The peculiar situation of conciliar canons in the later twelfth century means that they demand a coherent, cohesive study. When discussing ‘why the history of canon law is not written’, Donahue pointed out that the next stage in canonical studies was to begin the analysis of the texts, and that to do so ‘we must be satisfied for the time being with something less than fully annotated critical editions’.30 Thirty years later, the understandable focus upon editing texts shows no sign of abating, unless along very specific lines of enquiry. A recent reappraisal of writing the history of canon law concluded, in fact, the opposite: that the creation of editions and analyses is of primary importance, although it noted the importance of ‘a conscious regard and responsibility for making the law intelligible and relevant’.31 The works that these specific enquiries produce are immensely valuable, but such an approach is profoundly unsatisfactory for the canons of general councils. After all, these were widely disseminated texts that constitute a genre in and of themselves and defy further classification. A narrowly confined survey cannot hope to do them justice, while waiting until every canonical work has been adequately edited would leave the councils out in the cold despite their acknowledged importance. Yet any broad study has its imperfections and can only hope for accuracy across its entirety. If more support were needed, when commenting upon the Panormia, Martin Brett once noted that 29

30 31

Ordered by WH number at http://www.kuttner-institute.jura.uni-muenchen.de/WaltherHoltzmann-Kartei%20-Stephan_Kuttner_Institute_wh_mit%20Bildverweisen.pdf (last accessed 1 September 2018). Kartei items are referenced throughout by this number. C. Donahue, Jr., Why the History of Canon Law Is Not Written (London, 1986), p. 17. K. Rennie and J. Taliodoros, ‘Why study medieval canon law?’, History Compass, 12 (2014), 133–49, at 141.

9

Introduction ‘error based on some manuscripts can contribute more than a prudent silence before the massed witness of them all’.32 With all its associated problems, therefore, the view of Brett and Donahue has been followed here, albeit far from slavishly. In summary, the aims of this study are to help elucidate contemporary thoughts on the role and import of conciliar canons at a time of legal change, and in particular in the development of the ius novum that comprised one of the many intellectual achievements of the later decades of the twelfth century, and to thus better understand the mechanisms of contemporary papal government.

32

M. Brett, ‘Creeping up on the Panormia’, in in R. H. Helmholz et al. (eds.), Grundlagen des Rechts: Festschrift für Peter Landau zum 65. Geburtstag (Paderborn, 2000), pp. 205–70, at 206.

10

1

HISTORICAL SURVEY

In the summer of 1178, Pope Alexander III sent out a series of letters designed to bring the prelates and clergy of Latin Christendom together. As he wrote in his letter of summons, clergy were to ‘come to Rome for the first Sunday of the coming Lent’ in order to correct abuses and introduce statutes ‘following the custom of the ancient fathers’.1 Alexander made no formal mention of a council in his letter, but as a direct result of those summons around three hundred bishops and an unknown but presumably large number of other clerics gathered in Rome, discussing issues of import and issuing, in the process, twentyseven decrees. After the Counter-Reformation, Alexander’s council came to be classed as the third of a series of ecumenical councils held in the Basilica of Constantine, also known as the Lateran Basilica, in Rome, exalted in the Roman Catholic Church for their overarching authority. Held up as an example of peace and unity by commentators both medieval and modern, what has become known as the Third Lateran Council, or Lateran III, was also the final act in a hundred-year period rich in councils.2 These councils were grandiose occasions, designed to express authority as well as to reform the Church and its morals. The anonymous eyewitness to Innocent III’s 1215 gathering described the number of clerics and languages present in a manner reminiscent of 1 Corinthians: ‘Eye hath not seen, nor ear heard’; awe is seeded throughout his narrative.3 Although the surviving narratives from 1179 are 1 2

3

WH – : JL 13070, 13097–9; plus PUF n.F., 5, 256, pp. 361–3, from where this text is taken. At least fifty papal councils were held between the election of Gregory VII in 1073 and 1179. G. Gresser, Die Synoden und Konzilien in der Zeit des Reformpapsttums in Deutschland und Italien von Leo IX. und Calixt II. 1049–1123 (Paderborn, 2006) lists most councils and synods for the period until Calixtus’ death; there is no comprehensive list for the remainder, but an overview can be found in R. Somerville, ‘General councils in the twelfth century: some observations’, AHC, 40.2 (2008), 281–8 at 288. S. Kuttner and A. García y García, ‘A new eyewitness account of the Fourth Lateran Council’, Traditio, 20 (1964), 115–78 at 123: nec oculos quidem uidit nec auris audiuit nec in cor hominis ascendisse

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Historical Survey significantly less vivid, it would be uncharacteristic for Alexander to have missed the opportunity presented by the council to emphasise his preeminence amongst ecclesiastical princes: the curial account of the assembly at Venice two years previously recounted Alexander’s reception of Frederick I, with the emperor prostrating himself before the pope; even if exaggerated, it suggests that Alexander both understood the opportunity to communicate his authority and exploited it as far as possible.4 Probably born Roland Bandinelli, Alexander was brought into the Roman curia from Pisa by Eugenius III and appointed first cardinaldeacon of the church of SS Cosmas and Damian and later cardinal-priest of the church of St Mark.5 He became papal chancellor some time before 4 May 1153 and, with the exception of a three-month period in 1157, subscribed a number of Adrian IV’s documents in that role.6 His chamberlain, Cardinal Boso, composed a Life that at times verges on the hagiographical, describing an almost miraculously sweet disposition, significant education, and a deep devotion to God; Boso described Alexander as ‘at once thoughtful, kind, patient, merciful, gentle, sober, chaste, [and] assiduous in the bestowing of alms’.7 In reality, Alexander probably possessed some learning, but his apparent devotion to ecclesiological ideals should be nuanced. While he doubtless believed that the papacy deserved a central role within contemporary life, his at times brutal pragmatism is evidenced in the east by his approval of a treaty with the Hungarian king Géza II that accepted the king’s influence over the Hungarian Church,8 and in the west by the distance he created between himself and Thomas Becket during the latter’s

4

5

6

7

8

crederentur. See also B. Bolton, ‘A show with meaning: Innocent III’s approach to the Fourth Lateran Council, 1215’, Medieval History, 1 (1991), 53–67 at 53, 62–3, who comments on a similar quotation from Horace in the same work. Boso, Vita Alexandri III, ed. L. Duchesne, Le Liber Pontificalis (2 vols, Paris, 1886–92), 2.445; S. Weinfurter, ‘Papsttum, Reich und kaiserliche Autorität. Von Rom 1111 bis Venedig 1177’, in E.-D. Hehl, I. H. Ringel, and H. Seibert (eds.), Das Papsttum in der Welt des 12. Jahrhunderts, Mittelalter-Forschungen, 6 (Stuttgart, 2002), 77–99 at 96. See also the account in Romuald of Salerno, Chronicon, ed. C. A. Garufi, RIS, 7.1, pp. 271–85. Boso, Vita Alexandri, 2.397; A. J. Duggan, ‘Alexander ille meus: the papacy of Alexander III’, in P. D. Clarke and A. J. Duggan (eds.), Alexander III (1159–81): The Art of Survival (Aldershot, 2012), pp. 13–49 at 15–16. During the problematic three-month embassy to Frederick I, the vice chancellor attested the documents. See: Ottonis et Rahewini Gesta Friderici I Imperatoris, ed. G. Waitz, MGH, SS rer. Germ., 46 (Hanover and Leipzig, 1912), 172–7; W. Ullmann, ‘Cardinal Roland and Besançon’, Miscellanea Historiae pontificiae, 18 (Rome, 1954), 107–25, esp. 108–12; M. Pacaut, Alexandre III: é tude sur la conception du pouvoir pontifical dans sa pensé e et dans son oeuvre (Paris, 1956), pp. 88–9. Boso, Vita Alexandri, 2.397. On Alexander’s education see also J. T. Noonan, Jr., ‘Who was Rolandus?’, in K. Pennington and R. Somerville (eds.), Law, Church and Society: Essays in Honour of Stephan Kuttner (Philadelphia, 1977), pp. 21–48, at 22. T. Reuter, ‘The papal schism, the Empire and the West, 1159–1169’, unpublished DPhil thesis, University of Oxford (1975), pp. 52–4.

12

Historical Survey French exile.9 Whatever sympathy he felt for Becket, and Henry II’s actions would be condemned following Becket’s murder, Alexander and his curia were aware that they could not afford to alienate any of their secular supporters. For Alexander’s pontificate was characterised by upheaval. At twentytwo years, it was the longest of the central middle ages. For eighteen of those years, however, Christendom was split by schism, pitting Alexander against the Emperor Frederick I. Disputes between the cardinals in the years before 1159 had led to a dual election following Adrian IV’s death in late August.10 Initial divisions between Adrian’s designated successor, Cardinal-bishop Bernard of Porto, and Octavian, cardinal-priest of St Cecilia, were exacerbated in early September. On the third day of discussions, a majority of the cardinals elected as pope a third candidate in Adrian’s chancellor, Roland. Octavian objected to the election on the grounds of simony.11 Either literally or metaphorically, he seized the papal mantle. According to Roland, writing as Alexander III, Octavian’s poor claim on the papal office became obvious when he donned the mantle back to front.12 The schism that followed was damaging. Broadly speaking, and led by Frederick I and Rainald of Dassel, the Empire supported Octavian as Pope Victor IV,13 while hurried negotiations between Henry II of England and Louis VII of France culminated in both kings recognising Roland as Pope Alexander III,14 as did the clergy and kings of Sicily, 9

10

11

12

13

14

F. Barlow, Thomas Becket (London, 1997), pp. 134–5; N. Vincent, ‘Henry II and the papacy’, in P. D. Clarke and A. J. Duggan (eds.), Alexander III (1159–81): The Art of Survival (Aldershot, 2012), pp. 257–99 at 265, 272–8. Boso, Vita Alexandri, 2.397; Gesta Friderici, pp. 291, 297–312. The idea of common consent and an agreement made by the cardinals in Anagni can be found in the letter of Octavian’s supporters, on p. 305. For an historiographical account of events from an imperial perspective, see Reuter, ‘The papal schism, 1159–1169’, pp. 9–11. The events are recounted in Boso, Vita Alexandri, 2.397–8; Gesta Friderici, pp. 297–303; Boso included Alexander’s election encyclical, Aeterna et incommutabilis, but see Reuter, ‘The papal schism, 1159–1169’, pp. 232–5 and the calendar in R. Somerville, ‘The beginning of Alexander III’s pontificate: Aeterna et incommutabilis and Scotland’, in F. Liotta (ed.), Miscellanea Rolando Bandinelli, Papa Alessandro III (Siena, 1986), pp. 357–68, at 358–66. J. Johrendt, ‘The empire and the schism’, in P. D. Clarke and A. J. Duggan (eds.), Alexander III (1159–81): The Art of Survival (Aldershot, 2012), pp. 99–126, at 103–13 on the period 1159–64, and pp. 114, 124–5 on petitions to Alexander III from within the Empire before 1177. For an overview, see W. Maleczek, ‘Das Schisma von 1159 bis 1177. Erfolgsstrategie und Misserfolgsgründe’, in H. Müller and B. Hotz (eds.), Gegenpäpste. Ein unerwünschtes mittelalterliches Phänomen (Vienna, 2012), pp. 194–203. M. G. Cheney, ‘The recognition of Pope Alexander III: some neglected evidence’, EHR, 84 (1969), 474–97; F. Barlow, ‘The English, Norman and French councils to deal with the papal schism of 1159’, EHR, 51 (1936), 264–68; M. Pacaut, ‘Louis VII et Alexandre III (1159–1180)’, RHEF, 39 (1953), 5–45 at 6–8; Reuter, ‘The papal schism, 1159–69’, pp. 34–41. More recently: Vincent, ‘Henry II and the papacy’, passim; M. Soria, ‘Alexander III and France: exile, diplomacy

13

Historical Survey Hungary, Scotland, and Ireland.15 Italy was a patchwork of loyalties.16 On the edges of Christendom, the situation was even more complicated. In Denmark, clerical support for Alexander was balanced alongside royal backing for the emperor.17 Ramon Berenguer IV of Aragon attended Frederick’s 1162 council at Turin and received a confirmation from the emperor of his family’s lands in Provence; following his death later the same year, the province of Tarragona reversed its position and the kingdoms of the Iberian Peninsula gradually stated their allegiance to Alexander during the early 1160s.18 Despite attempting neutrality, the king and patriarch of Jerusalem eventually chose to support Alexander, who was certainly more successful at first gaining and then keeping the support of clerics and secular lords alike than the series of anti-popes who stood against him; although the different supporters occasionally wavered, after 1162 Victor and his successors lost much of their credibility. Following Victor’s death in 1164, the situation crystallized further, and the choices made by then would hold until the schism ended with the victory of the Lombard League in northern Italy and the subsequent ritual peace celebrated in Venice.19 Following the schism, the Treaty of Anagni contained numerous resolutions designed to restore peace, including its announcement at a general council presided over by the pope.20 Despite William of Newburgh’s cynical claim that the 1179 council was called in part to fill the papal coffers with the bribes paid by clerics anxious to avoid attending, therefore, it seems that

15

16

17 18

19

20

and the new order’, in P. D. Clarke and A. J. Duggan (eds.), Alexander III (1159–81): The Art of Survival (Aldershot, 2012), pp. 181–202 at 181–5. Later in the year, the imperial party also received the support of the Czechs. Reuter, ‘The papal schism, 1159–69’, pp. 47, 51–4. J. Johrendt, ‘Cum universo clero ac populo eis subiecto, id ipsum eodem modo fecerunt. Die Anerkennung Alexanders III. in Italien aus der Perspektive der Papsturkundenempfänger’, QF, 84 (2004), 38–68 at 66–7. Reuter, ‘The papal schism, 1159–69’, pp. 54–9. D. J. Smith, ‘Alexander III and Spain’, in P. D. Clarke and A. J. Duggan (eds.), Alexander III (1159–81): The Art of Survival (Aldershot, 2012), pp. 203–42 at 204–7. See also the list of attendees at the Council of Tours: T. Reuter, ‘A list of bishops attending the Council of Tours (1163)’, AHC, 8 (1976), 116–25 at 124. William of Tyre, Chronicon, ed. R.B.C. Huygens, Willelmi Tyrensis Archiepiscopi Chronicon, CCCM, 63 (Turnhout, 1986), 852–3 on the deliberations of the Levantine Church. In JL 10645 to Eberhard of Salzburg on 17 January 1161, Alexander claimed the support of the Levantine bishops: WH – : JL 10645 = PL 200.101; Reuter, ‘The papal schism, 1159–69’, pp. 165, 169–72. On Louis VII, see Pacaut, ‘Louis VII et Alexandre III’, pp. 8–12. On Henry II, see A. J. Duggan, ‘Henry II, the English Church and the papacy, 1154–76’, in C. Harper-Bill and N. Vincent (eds.), Henry II: New Interpretations (Woodbridge, 2006), pp. 154–83, at 171–2, 174, 183. Die Urkunden Friedrichs I., 1168–1180, ed. H. Appelt, MGH, Diplomata, 10.3 (Hanover, 1985), 203–5, though the ritualised peace that took place at Venice may also have been envisaged as the great council: G. Raccagni, The Lombard League, 1167–1225 (London, 2010), p. 98.

14

Historical Survey Alexander’s intentions were genuine and over the summer of 1178 he despatched legates and letters across Christendom.21 Five written summons survive: four, sent to the archbishops of Pisa, Tours, and Bourges and their suffragans, and to the bishops, archbishops, and abbots of Hungary, are dated 21 September 1178, but preparations were clearly underway by late May, when a letter of summons was sent to Conrad, archbishop of Salzburg and cardinal-bishop of Sabina.22 Narrative accounts suggest that the letters were preceded or accompanied by curial representatives who also left in the late spring or summer of 1178: Albert de Summa appeared in England ‘in the summer of 1178’, alongside his travelling companion Peter of St Agatha, who continued to Scotland and Ireland.23 With Alexander and his curia in central or southern Italy, it would have taken around two months to travel to Britain; for the legates to have arrived between April and July as suggested by Howden, they must have left the curia slightly after the letter to Conrad at the latest, and probably earlier. A similar process explains the legates’ arrival in the Low Countries in September,24 while William of Tyre, Heraclius of Caesarea, their four suffragans, the prior of the Holy Sepulchre, and the abbot of Mount Syon must have received the summons in the summer of 1178 as they set out for Rome in October.25 Combined, these sources suggest that preparations for the council began at least nine months before it opened in March 1179.26 If those nine months were significantly fewer than the thirty allotted by Innocent III in 1213, they still allowed for Alexander and his curia to consider their plans, permitting them to carefully stage-manage the conciliar events if desired. Nine months also permitted the considered formulation of the decrees that would be put forward and the gradual accumulation of 21

22

23 24

25 26

William of Newburgh, Historia, in R. Howlett (ed.), Chronicles of the Reigns of Stephen, Henry II and Richard I, Rolls Series, 82 (4 vols, London, 1884–90), 1.206. On the earlier letter, see WH – : JL 13070 = S. Loewenfeld, ed., Epistolae pontificum Romanorum ineditae (Leipzig, 1885), p. 154; G. Tangl, Die Teilnehmer an den allgemeinen Konzilien des Mittelalters (Weimar, 1922), p. 211. On the later ones, which are normally named as the only summons, see R. Foreville, Latran I, II, III et Latran IV (Paris, 1965), p. 135; Hefele-Leclercq, 5.1086; WH – : JL 13097–99 = various, plus PUF n.F., 5, 256, pp. 361–3. For recent commentaries see A. J. Duggan, ‘Conciliar law, 1123–1215: the legislation of the four Lateran councils’, HMCL, pp. 318–66 at 333; A. A. Larson and K. Pennington, ‘Concilium Lateranense III, 1179’, in COGD, p. 118. Councils & Synods, 1.1011; Howden, Chronica, 2.167; Howden, Gesta, 1.209–10. Sigeberti Gembloux Continuatio Aquicinctina, ed. D.L.C. Bethmann, MGH, Scriptores, 6 (Hanover, 1844), 417. William of Tyre, Chronicon, p. 996. Cf. T. Wetzstein, ‘Kommunikationsgeschichtliche Bedeutung der Kirchenversammlungen des hohen Mittelalters’, in G. Drossbach and H.-J. Schmidt (eds.), Zentrum und Netzwerk. Kirchliche Kommunikationen und Raumstrukturen im Mittelalter (Berlin, 2008), pp. 247–97 at 280.

15

Historical Survey evidence about the problems faced by local churches. Unlike Innocent III’s Vineam Domini, Alexander’s letter summoning the 1179 council, Quoniam in agro, did not request local bishops to come to the council bearing a list of abuses that needed correcting.27 Nevertheless, both the summons and Romuald of Salerno spoke of a meeting whose purpose was the correction of abuses, an aim restated with a rhetorical flourish in the opening sermon and hinting at the expectations of both Christendom and curia.28 events of the 1179 lateran council Expansive narratives of the council are limited, and even between the surviving sources precise details differ. Few accounts were contemporaneous with events, and fewer still written by known eyewitnesses: Boso’s death in 1178 means that no curial narrative has survived. Only the longest descriptions extend to more than a paragraph in modern editions and most are much shorter; even considering the various narratives together, the precise events of the council consequently remain vague.29 Three plenary sessions of the council are recorded, all in March 1179, although the exact dates differ: Howden noted three sessions on 5, 14, and 19 March; while Ralph Diceto agreed that the canons were promulgated on the 19 March, he mentioned no other meetings.30 In contrast, the Sienese Annales Senenses suggest that three conciliar sessions took place on 8, 9, and 16 March,31 while a chronicler in Sens describes a single session on 12 March, the Rievaulx Cartulary ascribes the canons to 11 March, and William of Tyre dates the entire council to 5 March.32 Later commentators, including Hefele-Leclercq and Foreville, dated the 27

28

29

30

31

32

See Vineam Domini: Pott. 4706–8, trans. C. R. Cheney and W. H. Semple, Selected Letters of Pope Innocent III Concerning England (London, 1953), pp. 144–7. JL 13070, 13097–9; WH – : JL – = PUF n.F., 5, 256, pp. 361–3; G. Morin, ‘Le discours d’ouverture du concile général de Latran (1179) et l’œuvre littéraire de Maître Rufin, Évèque d’Assise’, Atti della Pontificia Accademia di Archeologia, serie III: Memorie, 2 (1928), 113–33 at 119–20; Romuald of Salerno, Chronicon, p. 295. Arnold of Lübeck, Chronica Slavorum, ed. G. Pertz, MGH, SS rer. Germ., 14 (Hanover, 1868), 46–7; Annales Stadenses, ed. G. Pertz, MGH, Scriptores, 16 (Hanover, 1857), 348–9. Howden, Gesta, 1.222; Howden, Chronica, 2.171; Ralph of Diceto, Imagines Historiarum, ed. William Stubbs, Radulfi de Diceto Decani Lundoniensis opera historica, Rolls Series, 48 (2 vols, London, 1876), 1.430. Anders Winroth has kindly informed me that the mention is indeed found in a twelfth-century necrology of the Cathedral of Siena. See also Annales Senenses, ed. G. Pertz, MGH, Scriptores, 16 (Hanover, 1859), 226. Chronique de Saint-Pierre-le-Vif de Sens, dite de Clarius, ed. and trans. R.-H. Bautier, M. Gilles, and A.-M. Bautier (Paris, 1980), p. 210: Hoc anno dominus Alexander papa IIIus celebravit concilium Rome, iiii idus martii, feria scilicet iia post medium xlme et . . .; London, BL, Cotton Julius D.i, fol. 7r; William of Tyre, Chronicon, p. 998.

16

Events of the 1179 Lateran Council sessions to 5, 14, and either 19 or 22 March.33 Roger of Howden’s account tallies best, especially when combined with William of Tyre’s. Nevertheless, the discrepancies need to be noted. The variety in the accounts demonstrates that, from early in their life, the details of the 1179 council became confused even in the minds of the participants, and certainly in written accounts of the conciliar events. Such confusion is also apparent in the inflated number of prelates whose presence is claimed. Described by Howden as ‘archbishops, bishops, and abbots; religious men from both sides of the sea’, the exact number of attendees was disputed for decades.34 Annals north of the Alps suggest the presence of as many as nine hundred bishops, but the number was more probably around three hundred, demonstrated by an incomplete account of bishops present, which lists 289.35 They would have attended alongside an unknown but presumably significant number of abbots and other ecclesiastics.36 According to Tangl, representatives of at least sixty-two abbeys were present.37 Although some managed to avoid the summons,38 clerics came to Rome from as far afield as England and the Latin East: Walter Map was present,39 as were the delegation from the Latin East, including the aforementioned prior of the Holy Sepulchre and the abbot of Mount Syon. The promulgation of conciliar decrees was not the only business of the council, and flashes of evidence remain to demonstrate the diverse issues brought to Rome. At least 260 letters were sent by Alexander from the Lateran between 16 February and 4 July 1179.40 Most were papal confirmations of monastic or clerical privileges, but some hint at larger issues 33

34

35 36

37 38

39

40

Hefele-Leclercq, 5.1086. See also H. Reuter, Die Geschichte Alexanders des Dritten und der Kirche seine Zeit (3 vols, Leipzig, 1860–4), 3.766–7; Foreville, Latran, p. 136, citing Howden; Tangl, Die Teilnehmer, p. 210. Howden, Gesta, 1.221; Tangl, Die Teilnehmer, pp. 212–14; Reuter, Die Geschichte Alexanders, 3.767–8; Foreville, Latran, pp. 387–90. See pp. 135–6 below. ‘More than 300’ is given in the Continuatio Admuntensis, ed. W. Wattenbach, MGH, Scriptores, 9 (Hanover, 1851), 585; 301 bishops and twenty-two cardinals in the Annales Casinenses, ed. G. Pertz, MGH, Scriptores, 19 (Hanover, 1866), 312; 600 and more in the Continuatio Claustroneoburgensis II, Codices B and Continuatio Claustroneoburgensis III, ed. W. Wattenbach, MGH, Scriptores, 9 (Hanover, 1851), 617, 632; and 900 and more in the Lamberti parvi annales of Liège, in Annales Sancti Iacobi Leodiensis, ed. G. Pertz, MGH, Scriptores, 16 (Hanover, 1859), 649; Foreville, Latran, pp. 387–90 lists 289 bishops. Tangl, Die Teilnehmer, pp. 215–18. The Letters of Peter of Celle, ed. J. Haseldine (Oxford, 2001), pp. 80, 350–1; Councils & Synods, 1.1011 n. 2. See also the comment of William of Newburgh mentioned above, Historia, 1.206. Walter Map, De nugis curialium: Courtier’s Trifles, ed. and trans. M. R. James, rev. C. N. L. Brooke and R. A. B. Mynors (Oxford, 1983), pp. 126–7. JL lists 165: JL 13288–JL 13541; Hiestand adds ninety-five in his Initienverzeichnis und chronologisches Verzeichnis zu den Archivberichten und Vorarbeiten der Regesta pontificum Romanorum, MGH, Hilfsmittel, 7 (Munich, 1983), 304–10.

17

Historical Survey subject to debate or adjudication. JL 13452, to William Whitehands, archbishop of Reims, and Rotrou, archbishop of Rouen, forbade exactions of tithes on Cistercian novalia and animal fodder.41 Other sources describe the investigation and eventual overruling of the election of the archbishop of Bremen, one of the few imperial bishops whose pallia were refused due to an uncanonical election during the schism.42 William Whitehands was appointed cardinal-priest of St Sabina, and Henry de Marcy, abbot of Clairvaux, cardinal-bishop of Albano.43 Judges-delegate were appointed to investigate a dispute over the monastery of Fitero.44 Peter Lombard’s Christology was the subject of a report written by John of Cornwall,45 while the Waldensians were questioned over their beliefs.46 At the same time, the Treaty of Anagni must have been announced in some manner: all accounts suggest that celebrating the renewal of Christian unity was a primary motivating factor for the council. While the exact form of any proclamation has been lost, it would be remarkable if c. 2, condemning the schismatics, were the only mention of the schism. That disappearance emphasises an important point. The twenty-seven or so conciliar canons promulgated during the final session were not the only business of the council, but they represent the bulk of its surviving written acts, and modern scholars have viewed the conciliar proceedings through that lens. Pacaut noted that the council had three aims: to end the schism and present the submission to Alexander of the imperial bishops, to legislate on matters concerning reform, and to discuss heresy.47 All three aims can be found in the twenty-seven canons, whose survival owes much to the influence of canonists of the later twelfth century: modern 41 42

43

44 45

46 47

WH – : JL 13452. Arnold of Lübeck, Chronica Slavorum, pp. 46–7; Annales Stadenses, pp. 348–9; S. Kuttner, ‘Bertram of Metz’, Traditio, 13 (1957), 501–5 at 504. On the role of the pallium see the work of Steven Schoenig, including e.g. his ‘The palliated suffragan’, Proceedings Toronto II, pp. 837–48 on papal use of palliation, and ‘The livery of loyalty: Innocent II and the pallium’, in J. Doran and D. J. Smith (eds.), Innocent II (1130–1143). The World vs the City (London, 2016), pp. 311–25 on a similar occurrence in 1139. Howden, Gesta, p. 222. Howden suggests that William was cardinal-bishop of S. Sabina, but he only witnessed letters in his role as cardinal-priest, and Conrad, archbishop of Salzburg and onetime archbishop of Mainz, witnessed a letter as cardinal-bishop of Sabina after William’s appointment. WH – : JL – = PUS, 2, 166, p. 513. J. Châtillon, ‘Latran III et l’enseignement christologique de Pierre Lombard’, in J. Longère (ed.), Le troisième concile de Latran (1179): sa place dans l’histoire (Paris, 1982), pp. 75–90 at 83–8, 89; J. Taliadoros, Law and Theology in Twelfth-Century England: The Works of Master Vacarius (c. 1115/20–c. 1200) (Turnhout, 2006), pp. 149–52. Map, De nugis curialium, pp. 124–7. M. Pacaut, ‘Alexandre III et le concile de 1179’, in Longère (ed.), Le troisième concile de Latran (1179): sa place dans l’histoire (Paris, 1982), pp. 19–22 at 19–20.

18

Canon Law in the Twelfth Century editions of the conciliar canons are still based on the copy that precedes the Appendix Concilii Lateranensis decretal collection.48 Anything else that the pope, the cardinals, and the council attempted to achieve has been lost, or consigned to historical footnotes. This study makes no great attempt to address that disparity and look beyond the events of the council and the conciliar canons, instead seeking to fill a different gap. Despite the importance of the second half of the twelfth century for scholars of legal, political, and papal history, there has been no detailed analysis of how these conciliar canons emerged from or affected legal culture and ecclesiastical government during that period: that is the intent of this study. canon law in the twelfth century Underlying recent approaches to papal government is a growing awareness of the flexible boundaries of twelfth-century life. On the one hand, the exact nature of any distinction between theology and canon law can be difficult to discern: canonical collections including Gratian’s Decretum and the Liber Extra incorporated extracts from both the Christian Fathers and even glosses to the Bible, while theological books such as Lombard’s Sentences drew heavily on Gratian.49 On the other, there is a growing awareness that the men who created canon law in the twelfth century had not necessarily been trained as lawyers; rather than following pre-existing legal rules, they were instead formulating their own. That explains, in part, the continued interest in episcopal, archiepiscopal, and papal education. Identifying Alexander III, for example, as the canonist Rolandus allowed an investigation of Alexander’s ecclesiology through Rolandus’ writings.50 Since Noonan first noted how improbable that attribution is, it has become more difficult to equate canonists with popes.51 Pennington made a similar leap in undermining the perception of Innocent III as a trained canonist, but added the critical point that no matter what Innocent’s education, by the time of the 1215 Lateran Council his practical experience of the law would have provided him 48 49

50

51

COD, p. 208; COGD 2.1, pp. 111–12. See now A. A. Larson, ‘The reception of Gratian’s Tractatus de penitentia and the relationship between canon law and theology in the second half of the twelfth century’, Journal of Religious History, 37 (2013), 457–73; A. A. Larson, Master of Penance: Gratian and the Development of Penitential Thought and Law in the Twelfth Century (Washington, DC, 2015); J. C. Wei, Gratian the Theologian (Washington, DC, 2016). Walter Ullmann, Medieval Papalism: The Political Theories of the Medieval Canonists (London, 1949), p. 3. Noonan, ‘Who was Rolandus?’, pp. 21–48; R. Weigand, ‘Magister Rolandus und Papst Alexander III’, AKKR, 149 (1980), 3–44.

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Historical Survey with a suitable apprenticeship.52 While, further afield, it becomes easier to identify canonists further down the ecclesiastical hierarchy, few bishops elected before the 1179 council are known to have been trained in canon law,53 and John Baldwin’s argument that a lengthy education in a specific scholastic discipline would not become commonplace until the 1190s remains sensible.54 There are exceptions: examples of lawyers working in the 1160s, 1170s, and 1180s who later became bishops include Gérard Pucelle, bishop of Coventry for less than a year from 1183;55 Stephen of Tournai, bishop of that see from 1191/2 having previously been abbot of Ste-Genevieve in Paris;56 Huguccio, bishop of Ferrara from 1191;57 and Sicard, bishop of Cremona from 1185.58 But these examples have their drawbacks: while Stephen’s Summa survives, in letters written as bishop of Tournai he demonstrates little of the practical brilliance that drew people to earlier canonist-bishops such as Ivo of Chartres.59 The best example of a canonist-bishop from the time of the council remains Omnebene, bishop of Verona from ca. 1157 and author of an Abbreviatio of the Decretum.60 In part, this was because bishops were often still political appointees, rarely chosen specifically for their learning. Position and local connections played a more significant role: Roger, bishop of Worcester, cousin of Henry II and reportedly

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55

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K. Pennington, ‘The legal education of Pope Innocent III’, BMCL, 4 (1974), 70–7; K. Pennington, ‘Further thoughts on Pope Innocent III’s legal education’, ZRG Kan. Abt., 72 (1986), 417–28. Especially if Rufinus of Assisi was not the canonist of the same name. See: R. Deutinger, ‘The decretist Rufinus – a well-known person?’, BMCL, 23 (1999), 10–15. J. W. Baldwin, ‘Studium et regnum: the penetration of university personnel into French and English administration at the turn of the twelfth and thirteenth centuries’, Revue des études islamiques, 44 (1976), 199–215 at 211. C. Donahue, Jr., ‘Gerard Pucelle as a canon lawyer’, in R. H. Helmholz et al. (eds.), Grundlagen des Rechts: Festschrift für Peter Landau zum 65. Geburtstag (Paderborn, 2000), pp. 333–48 at 338–9. On Stephen, see G. Conklin, ‘The ecclesiology of Stephen of Tournai, 1128–1203’, PhD dissertation, University of North Carolina at Chapel Hill (1987), pp. 1–24. On his career as a canonist, see H. Kalb, Studien zur Summa Stephans von Tournai. Ein Beitrag zur kanonistischen Wissenschaftsgeschichte des späten 12. Jahrhunderts, Forschungen zur Rechts- und Kulturgeschichte, 12 (Innsbruck, 1983), pp. 9–10; K. Pennington and W. Müller, ‘The decretists: the Italian school’, HMCL, pp. 121–73 at 136–8; R. Weigand, ‘The transmontane decretists’, HMCL, pp. 174–210 at 180–2. For Huguccio’s biography, see W. Müller, Huguccio: The Life, Works and Thought of a TwelfthCentury Jurist (Washington, DC, 1994), pp. 21–66; Pennington and Müller, ‘Decretists’, pp. 143–8. Schulte, Quellen und Literatur, 1.143; Sicard of Cremona, Cronica, ed. O. Holder-Egger, Sicardi episcopi Cremonensis Cronica, MGH, Scriptores, 31 (1903), 168. See e.g. his infamous comment lamenting the ‘inextricable forest of decretal letters’: Letters, ed. J. Desilve, Lettres d’Étienne de Tournai, nouvelle edition (Paris, 1893), p. 345, no. 274. J. Rambaud-Buhot, ‘L’Abbreviatio Decreti d’Omnebene’, Proceedings Berkeley, pp. 93–107 at 93.

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Canon Law in the Twelfth Century selected in part as a result of his learning and at Alexander’s request, was unusual in this regard.61 It is, however, also prudent to avoid throwing the baby out with the proverbial bathwater. The curia certainly contained an increasing number of trained lawyers, and not every pope can be disassociated from canon law: Gregory VIII, pope for two months in 1187, was previously the canonist Alberto di Morra and Urban III, also a lawyer, was appointed cardinal in 1182.62 ‘Cardinalis’ was the nom de plume of a canonist of the 1160s who provided several glosses on Gratian: André Gouron and Rudolf Weigand have argued persuasively that he was Cardinal Raymond des Arènes. Meanwhile Laborans, appointed cardinal-deacon of the church of St Maria in Porticu in 1173, compiled an altered version of the Decretum known as the Compilatio Decretorum.63 Before Alberto’s election to the papal throne as Gregory, moreover, he had been a cardinal for thirty-one years, and the curia had included men interested in law since the 1130s.64 In total, Alexander III’s pontificate saw at least nine legally trained clerics promoted to the cardinalate; in addition to those trained lawyers, Pennington’s argument concerning Innocent III stands firm here too. Pope for twenty-two years, Alexander’s practical knowledge of canon law must have been extensive, whatever the extent of his formal training. Locally, by the 1170s a bishop with education was not a rarity. Thomas Becket,65 William Whitehands,66 and Henry of France all possessed some 61

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M. G. Cheney, Roger, Bishop of Worcester: An English Bishop in the Age of Becket (Oxford, 1980), p. 13. R. Weigand, Die Glossen zum Dekret Gratians: Studien zu den frühen Glossen und Glossenkompositionen, Studia Gratiana, 25–6 (Rome, 1991), 618–19; J. A. Brundage, ‘The managerial revolution in the English church’, in J. S. Loengard (ed.), Magna Carta and the England of King John (Woodbridge, 2010), pp. 83–98 at 84 n. 4. A. Gouron, ‘Le cardinal Raymond des Arènes: Cardinalis?’, RDC, 28 (1978), 180–92 at 190–2; Weigand, ‘The transmontane decretists’, pp. 178–9; N. Martin, ‘Die Compilatio Decretorum des Kardinals Laborans: eine Umarbeitung des Dekrets aus dem 12. Jahrhundert’, PhD thesis, University of Heidelberg ([1985] 1994), pp. 7–14. J. A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago, 2008), pp. 130–2; J. Brixius, Die Mitglieder des Kardinalkollegiums von 1130–1181 (Berlin, 1912), p. 58. The best example of an early interest in law was the papal chancellor [H]Aimeric: A. J. Duggan, ‘Jura sua unicuique tribuat: Innocent II and the advance of the learned laws’, in J. Doran and D. J. Smith (eds.), Innocent II (1130–1143): The World vs the City (London, 2016), pp. 272–308 at 280–1; B. C. Brasington, Order in Court: Medieval Procedural Treatises in Translation (Leiden, 2016), pp. 80–6. Barlow, Thomas Becket, pp. 36–7, but cf. his note that ‘as usual with Thomas’s schooling, we have scant proof of his attainments’, compared to Anne Duggan, Thomas Becket (London, 2004), pp. 11–15. Dictionnaire de l’histoire géographique et ecclésiastique, ed. R. Aubert (Paris, 1988), 22.857–9, although the extent and location of that learning is difficult to place. See L. Falkenstein, ‘Guillaume aux Blanches Mains, archevêque de Reims et légat du siège apostolique (1176–1202)’, RHEF, 91 (2005), 5–25 at 6.

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Historical Survey learning, although the extent and location of their tuition is indeterminable.67 Despite the lack of a recorded legal treatise in his name, Gilbert Foliot possessed a deep knowledge of Roman law; an 1153 letter to Robert de Chesney, bishop of Lincoln, concerning a copy of the Digest suggests that both bishops understood the importance of the text.68 When Gilbert’s brother Robert was elected to the bishopric of Hereford in 1173, one of the many points in his favour was his knowledge of both laws.69 Elected archbishop of Rouen in 1184, Walter of Coutances was canonically learned,70 while Baldwin of Forde had a career in the schools before his election as first bishop of Worcester in 1180 and then archbishop of Canterbury in 1184.71 Instead of prelates with their own highly specialised knowledge of a particular discipline, however, the picture is now of men who were learned enough to undertake their duties but relied upon a familia of magistri and specialists. The English evidence is copious. Roger of Worcester, who had received a brief education in the Parisian schools, had a familia which included Master Silvester and Master Moses.72 The archbishops of Canterbury used, at various points in the twelfth century, Gérard Pucelle, believed to have played a substantial role in the drafting of conciliar decrees before the 1175 Council of Westminster,73 Master 67

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Henry was both a Capetian prince and possessed an early copy of the biblical Glossa Ordinaria. See C. de Hamel, Glossed Books of the Bible and the Origins of the Paris Booktrade (Woodbridge, 1984), pp. 5–7. My thanks to Linda Stone for many fruitful discussions on the subject. D. Knowles, The Episcopal Colleagues of Archbishop Thomas Becket (Cambridge, 1951), p. 39; A. Morey and C. N. L. Brooke, Gilbert Foliot and his Letters (Cambridge, 1965), pp. 59–69; E. Rathbone, ‘Roman law in the Anglo-Norman realm’, Collectanea Stephan Kuttner, Studia Gratiana, 11 (Bologna, 1967), 255–71 at 259–60; Falko Neininger followed Morey and Brooke: English Episcopal Acta, 15: London, 1076–1187, ed. F. Neininger (Oxford, 1999), p. lxi. On Chesney, see English Episcopal Acta, 1: Lincoln, 1067–1185, ed. D. M. Smith (London, 1980), pp. xxxv–vi. John of Salisbury, Later Letters, 321, ed. W. J. Millor and C. N. L. Brooke, The Letters of John of Salisbury, Volume 2: The Later Letters (1163–1180) (Oxford, 1979), p. 784: habentem utriusque iuris peritiam. P. Landau, ‘Walter von Coutances und die Anfänge der Anglo-Normannischen Rechtswissenschaft’, in O. Condorelli (ed.), Panta Rei: Studi dedicati a Manlio Bellomo (5 vols, Rome, 2004), 3.183–204 at 3.203–4. Cheney described Baldwin as ‘a distinguished scholar’: English Episcopal Acta, 2: Canterbury, 1162–1190, ed. C. R. Cheney and B. Jones (Oxford, 1991), p. xxviii. See also ‘Master Baldwin’, in English Episcopal Acta 33: Worcester, 1062–1185, ed. M. G. Cheney et al. (Oxford, 2008), pp. liii–lv. John of Salisbury reported that Baldwin had been appointed tutor to Eugenius III’s nephew Gratian, later cardinal-deacon of SS Cosmas and Damian. See John of Salisbury, Later Letters, 289, Millor and Brooke, p. 650. EEA 33: Worcester 1062–1185, pp. lxi–lxii; Cheney, Roger, Bishop of Worcester, pp. 13–14 on Roger’s election, and pp. 102–3 on magistri in his familia. S. Kuttner and E. Rathbone, ‘Anglo-Norman canonists of the twelfth century: an introductory study’, Traditio, 7 (1949–51), 279–358 at 296–303; S. Kuttner, ‘Retractiones’, in his Gratian and the Schools of Law (London, 1982), pp. 29–31; J. Fried, ‘Gerard Pucelle und Köln’, ZRG Kan. Abt., 68 (1982), 125–35; Donahue, ‘Gerard Pucelle’, pp. 333–40; P. Landau, ‘Die Kölner Kanonistik des 12. Jahrhunderts: ein Höhepunkt der europäischen Rechtswissenschaft’, in D. Strauch (ed.),

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Canon Law in the Twelfth Century Simon of Sywell,74 Master Silvester,75 Master John of Tynemouth,76 and Master Vacarius,77 as well as men such as John of Salisbury, who did not consistently use the title magister but had clearly received a scholastic education.78 Across the Channel, learned staffs have been located in the orbit of the archbishops of Reims, particularly William Whitehands; Otto of Freising wrote of the Roman lawyers Bulgarus and Martinus aiding Frederick Barbarossa at the Diet of Roncaglia.79 And it was not just bishops and emperors who maintained learned networks. There is increasing evidence that knowledge was transferred through monastic orders: Peter Landau has pointed to the importance of the Cistercians, while André Gouron and Uta-Renate Blumenthal have suggested that the canons of St Ruf provided significant connections across Provence which supported a thriving interest in both Roman and canon law in the 1150s.80 The importance of trained personnel was obviously, therefore, recognised by contemporaries, for all that they are a relatively recent addition to modern writing. Baldwin has shown that very late in the twelfth century, the English royal administration included at least sixty men

74 75

76 77

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Vortrag vor dem Rheinischen Verein für Rechtsgeschichte, Köln, 27. Mai 2008, Kölner Rechtsgeschichtliche Vorträge, 1 (Cologne, 2008), pp. 8–11. Or Southwell. See Kuttner, ‘Retractiones’, p. 35 (to p. 326). H. Mayr-Harting, ‘Master Silvester and the compilation of early English decretal collections’, SCH, 2 (1975), 186–96. Kuttner and Rathbone, ‘Anglo-Norman canonists’, pp. 317–21. F. Pollock and F. W. Maitland, The History of English Law before the Time of Edward I, reissued 2nd edn (Cambridge, 1968), 1.118 summarises Vacarius’ time at Canterbury and his teaching, but see also Taliadoros, Law and Theology, pp. 2–9 and most recently, P. Landau, ‘The origins of legal science in England in the twelfth century: Lincoln, Oxford, and the career of Vacarius’, in M. Brett and K. G. Cushing (eds.), Readers, Texts and Compilers in the Earlier Middle Ages: Studies in Medieval Canon Law in Honour of Linda Fowler-Magerl (Farnham, 2009), pp. 165–82 at 167–75. Amongst the voluminous literature: D. Luscombe, ‘Salisbury, John of (late 1110s–1180)’, Oxford Dictionary of National Biography (Oxford, 2004), https://doi.org/10.1093/ref:odnb/14849 (last accessed 1 September 2018); B. Smalley, The Becket Conflict and the Schools (Oxford, 1973), pp. 87–108. For the archbishops in general, see EEA 2: Canterbury, 1162–1190, pp. xxiii–xxxiii; C. Duggan, ‘Richard [of Dover] (d. 1184)’, Oxford Dictionary of National Biography, https://doi .org/10.1093/ref:odnb/23514 (last accessed 1 September 2018). P. Landau, ‘The development of law’, in D. Luscombe and J. Riley-Smith (eds.), The New Cambridge Medieval History, Volume IV: c. 1024–c. 1198 (Cambridge, 2004), 1.113–47, at 1.124; Gesta Friderici, p. 239. U.-R. Blumenthal, ‘The revival of Roman law: the Exceptiones Petri’, Haskins Society Journal, 21 (2009), 113–24 at 120–3; vs A. Gouron, ‘Sur le patrie et la datation du “Livre de Tubingue” et des “Exceptiones Petri”’, RIDC, 14 (2003), 15–39 at 32–7; L. Fowler-Magerl, ‘The version of the Collectio Caesaraugustana in Barcelona, Archivio de la Corona de Aragón, MS San Cugat 63’, in K. G. Cushing and R. F. Gyug (eds.), Ritual, Text and Law: Studies in Medieval Canon Law and Liturgy Presented to Roger E. Reynolds (Aldershot, 2004), pp. 269–80 at 275–7; P. Landau, ‘Collectio Fontanensis: A decretal collection of the twelfth century for an English Cistercian Abbey’, in K. Pennington and M. H. Eichbauer (eds.), Law as Practice and Profession in Medieval Europe. Essays in Honor of James A. Brundage (Farnham, 2011), pp. 187–204 at 190–2, 198–203.

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Historical Survey describing themselves as magistri, while most episcopal sees in the same period were serviced by between four and eight magistri.81 In the past, Clanchy stated that difficulties in studying scholastically trained administrators emerged because they fall into a void between administrative and intellectual history.82 The problem for the canonists is not that scholars do not want to investigate their origins but rather that material evidence is limited, meaning that we cannot. Both canonical manuscripts and charter witness lists survive but they are mostly independent sources and often links between the two rely on supposition, as Uta-Renate Blumenthal has pointed out.83 manuscripts of canon law in the twelfth century Manuscripts have provided a more fruitful area of modern study. The classic model of medieval canon law, currently being challenged, saw a series of collections appear in the late eleventh century, most of which were compiled at the behest of or in conjunction with the ‘reform’ papacy. Following the appearance of these collections, Gratian gathered the available sources together into a single volume which, in turn, spread quickly across Europe. As this textbook, the Concordia discordantium canonum or Harmony of Dissonant Canons, became embedded in the scholarly and legal life of Christendom, questions emerged. Gratian employed an argumentdriven approach in his work. Rather than simply listing excerpts, he compared them, balancing his authorities in an attempt to arrive at a firm conclusion to a specific question. But his chosen excerpts and the accompanying commentary did not answer every query that emerged in the quotidian exercise of ecclesiastical law. As a result, individual clerics, especially those acting as judges, began asking for clarification, sending their queries to the papacy in recognition of the pope’s role as the highest judge in Christendom. The resulting answers, or the hints given by individual pontiffs to judges-delegate tasked with the case, were gathered together into supplementary collections that covered the gaps: the decretal collections, which emerged in the later twelfth century and went on to become the first papally promulgated canon law collections since Carolingian times with the Liber Extra of Gregory IX in 1234. 81

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Baldwin, ‘Studium et regnum’, pp. 204, 207–8. See also R. V. Turner, ‘Changing perceptions of the new administrative class in Anglo-Norman and Angevin England: the curiales and their conservative critics’, in his Judges, Administrators and the Common Law in Angevin England (London, 1994), pp. 225–51 at 239–41, 245. M. T. Clanchy, ‘Moderni in education and government in England’, Speculum, 50 (1975), 671–88 at 671. On the anonymity of most transmontane works of canon law, see below. Blumenthal, ‘Revival’, p. 121.

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Manuscripts of Canon Law in the Twelfth Century Studies of multiple manuscripts of the widely dispersed canonical collections and of surviving manuscripts of less well-known compilations have, however, changed that narrative, making it more complex and, as a result, more interesting. An increasing number of scholars of early medieval canon law, especially Martin Brett, Linda FowlerMagerl, and Uta-Renate Blumenthal, have argued that interpolation and emendation were the everyday, if no less intriguing, acts of scribes and lawyers across Latin Christendom. Rather than ever being ‘complete’, canonical compilations were therefore ‘living’ texts in constant use, adapted by different clerics for varying reasons.84 This generalisation is as true for the abbreviations of Burchard’s Decretum in the eleventh century and the appendices to the Ivonian collections of the early twelfth century as it is for the local adaptations and expansions of Gratian’s Concordia, including the decretal collections that emerged later in the twelfth century. The ‘living text’ hypothesis challenges the idea that clerics using preGratian collections after ca. 1150 were out of touch, in the process rendering the simple narrative murkier.85 A major question is now how much the Concordia changed, and why and when those changes took place. Studies have demonstrated the continued use of earlier collections: as Christof Rolker succinctly noted, while Gratian is now identified as a moment of decisive change, ‘no-one seems to have told this to Gratian’s contemporaries’.86 By way of example, at least a third of the surviving Panormia manuscripts date from ca. 1150 or later: so, after the appearance of Gratian.87 The Concordia itself only achieved a ‘vulgate’ form late in the twelfth century, and even then earlier manuscripts clearly continued to 84

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M. Brett, ‘Canon law and litigation: the century before Gratian’, in M. J. Franklin and C. HarperBill (eds.), Medieval Ecclesiastical Studies in Honour of Dorothy M. Owen (Woodbridge, 1995), pp. 21–40 at 33–40; M. Brett, ‘Editions, manuscripts and readers in some pre-Gratian collections’, in K. G. Cushing and R. F. Gyug (eds.), Ritual, Text and Law: Studies in Medieval Canon Law and Liturgy Presented to Roger E. Reynolds (Aldershot, 2004), pp. 205–24, esp. 218–19. See P. Fournier, ‘Un tournant de l’histoire de droit’, RHD, 41 (1917), 129–80 at 130–1 for his comments on post-Gratian jurisprudence; Z. N. Brooke, The English Church and the Papacy from the Conquest to the Reign of John (Cambridge, 1931), p. 84; C. Duggan, Twelfth-Century Decretal Collections and their Importance for English History (London, 1963), p. 16; argued most recently by R. H. Helmholz, The Oxford History of the Laws of England, 1: The Canon Law (Oxford, 2004), p. 74. C. Rolker, ‘Ivo of Chartres and the Panormia’, BMCL, 28 (2008), 39–70 at 53. See also Brett, ‘Canon law and litigation’, p. 39; M. Brett, ‘Creeping up on the Panormia’, in R. H. Helmholz et al. (eds.), Grundlagen des Rechts: Festschrift für Peter Landau zum 65. Geburtstag (Paderborn, 2000), pp. 205–70 at 208; M. Brett, ‘English law and centres of law studies in the later-twelfth century’, in T. Iversen (ed.), Archbishop Eystein as Legislator: The European Connection (Trondheim, 2011), pp. 87–102 at 88–9. Brett, ‘Creeping up on the Panormia’, p. 208 and a table of some manuscripts on pp. 261–70. See now also the Ivo of Chartres website at: https://ivo-of-chartres.github.io, last used with date/ revision stamp 2015-09-23/898fb.

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Historical Survey circulate.88 Material predating the appearance of Gratian in ca. 1140 continued to be used in the decretal collections that emerged in the later years of the twelfth century and, on a level more instructive for this study, a copy of the 1179 canons was appended to a manuscript of Burchard of Worms’ Decretum copied in the vicinity of Reims in 1152, demonstrating both that the Decretum itself was copied and that it continued to be used and expanded by interested parties later in the twelfth century.89 Burchard’s continued employment is also attested by Simon of Bisignano’s Summa: Simon cites canons from Burchard throughout, alongside allusions to Roman law and decretals.90 As yet there is little scholarly consensus on the use and role of pre-Gratian texts, but the debate will shape future understandings of the role of Gratian in the twelfth century and beyond. Patrons clearly spent valuable resources making new copies while lawyers used extracts from older texts, making it unlikely that these earlier collections were considered out of date. Nevertheless, Gratian and his Concordia discordantium canonum remain at the centre of modern scholars’ views on twelfth-century legal change. Despite recent advances, the Decretum remains subject to detailed scrutiny.91 In defining the ‘first recension’, Anders Winroth took a significant step along the path of discovering Gratian laid out by Stephan Kuttner in 1984 yet, as Winroth noted, ‘Gratian himself has become more enigmatic than ever’.92 Although Peter Landau isolated 88

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J. C. Wei, ‘The later development of Gratian’s Decretum’, Proceedings Toronto II, pp. 149–61; J. C. Wei, ‘Gratian in France and Halberstadt’, in P. Carmassi and G. Drossbach (eds.), Rechtshandschriften des deutschen Mittelalters: Produktionsorte und Importwege, Wolfenbütteler Mittelalter-Studien, 29 (Wiesbaden, 2015), 363–83. Manuscripts used later in the twelfth century that lack critical paleae include Salzburg, Stiftsbibliothek A.XI.9. On the decretal collections, see P. Landau, ‘Vorgratianische Kanonessammlungen bei den Dekretisten und in frühen Dekretalensammlungen’, Proceedings San Diego, pp. 93–116 at 99–108; Reims, BM 674, see Appendix below; P. Landau, ‘Die Dekretsumme “Tractaturus magister” und die Kanonistik in Reims in der zweiten Hälfte des 12. Jahrhunderts’, ZRG Kan. Abt., 100 (2014), 132–52 at 145–7. See P. V. Aimone, ‘Prolegomena’, in Summa in decretum Simonis Bisinianensis, ed. P. V. Aimone, MIC, B, 8 (Vatican City, 2014), pp. cxxi–cxxii for a tabulation of Simon’s citations from Burchard, pp. cxxiii–cxxv for Roman law citations, and pp. cxcii–ccxxiv for decretal references. For a lucid summary of the following with more extensive bibliography, see M. H. Eichbauer, ‘Gratian’s Decretum and the changing historiographical landscape’, History Compass, 11/12 (2013), 1111–25. A. Winroth, ‘Recent work on the making of Gratian’s Decretum’, BMCL, 26 (2004–6), 1–29 at 1. On recension 1, see A. Winroth, The Making of Gratian’s Decretum (Cambridge, 2000). Winroth built on important work by Titus Lenherr, Jacqueline Rambaud-Buhot, Adam Vetulani, and Gérard Fransen amongst others; he summarised their contributions in Making, pp. 11–15. On Gratian’s biography or, more accurately, lack thereof, see J. T. Noonan, Jr., ‘Gratian slept here: the changing identity of the father of the systematic study of canon law’, Traditio, 35 (1979), 145–72, although on closer inspection Noonan’s evidence is haphazard. The speed of advance within studies on Gratian contributes significantly to understanding why Landau’s brief commentary on Gratian in HMCL, pp. 23–4 appears conservative. The most recent biographies of

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Manuscripts of Canon Law in the Twelfth Century five formal sources for the Decretum,93 remarkably little is known about the processes by which the first recension expanded to the second – or, even, how many recensions there were.94 Recent work by Regula Gujer and John Wei has also emphasised the deliberate reworking of Decretum manuscripts in certain contexts. They have demonstrated that a particular school of law – northern French, according to Wei – made small but systematic alterations to the collection: even after ca. 1150, the Decretum remained a ‘living text’.95 Despite these textual variations and the addition of the texts later known as paleae,96 few would argue for significant changes in the fundamental structure of the Decretum itself after the midtwelfth century. From then, it spread across Latin Christendom: Nardi has argued for its use in Siena by 1150, while it had reached England and the familia of Archbishop Theobald by the late 1150s and in 1164 was used in Scandinavia to compile the canons of Nidaros.97 Moreover, later attempts to deviate from the arrangement were notable for their lack of success.98

93

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95

96

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Gratian are A. Winroth, ‘Where Gratian slept: the life and death of the father of canon law’, ZRG Kan. Abt., 99 (2013), 105–28; K. Pennington, ‘The biography of Gratian, father of canon law’, Villanova Law Review, 59 (2014), 679–706. P. Landau, ‘Neue Forschungen zu vorgratianischen Kanonessammlungen und den Quellen des Gratianischen Dekrets’, Ius Commune, 11 (1984), 1–29 at 15–29. Winroth dated recension 1 to ca. 1139 and recension 2 to no later than 1150, moving the date earlier following Nardi’s discovery: Winroth, Making, p. 142. Kenneth Pennington posited a first recension dating to the 1120s and a second recension to ca. 1140 in his ‘Roman law, 12th-century law and legislation’, in G. Drossbach (ed.), Von der Ordnung zur Norm: Statuten in Mittelalter und Früher Neuzeit (Paderborn, 2010), pp. 17–38 at 25–6, while Carlos Larrainzar has suggested a complicated and convoluted structure of multiple recensions stemming from an ‘Ur-Gratian’ that no longer survives: C. Larrainzar, ‘La formación del Decreto de Graciano por etapas’, ZRG Kan. Abt., 87 (2001), 67–83. The ‘S-Group’: R. Gujer, Concordia Discordantium codicum manuscriptorum? Die Textentwicklung von 18 Handschriften anhand der D. 16 des Decretum Gratiani, Forschungen zur kirchlichen Rechtsgeschichte und zum Kirchenrecht, 23 (Cologne, 2004), pp. 343–63, clearest at 343, 357–8; Wei, ‘Gratian in France and Halberstadt’, 363–83. On the paleae, see J. Rambaud-Buhot, ‘Les paleae dans le Décret de Gratien’, Proceedings Boston, 23–44; R. Weigand, ‘Versuch einer neuen, differenzierten Liste der Paleae und Dubletten im Dekret Gratians’, in P. Linehan (ed.), Life, Law and Letters: Historical Studies in Honour of Antonio García y García, Studia Gratiana, 29 (Rome, 1998), pp. 883–99, gives the most up-to-date list on pp. 897–9, although further research is required. See P. Nardi, ‘Fonti canoniche in una sentenza senese del 1150’, in P. Linehan (ed.), Life, Law and Letters: Historical Studies in Honour of Antonio García y García, Studia Gratiana, 29 (Rome, 1998), pp. 661–70; John of Salisbury’s use of the Decretum in his letters is generally accepted both as fact and as the earliest in England, see his Early Letters, ed. W. J. Millor and H. E. Butler, rev. C. N. L. Brooke, The Letters of John of Salisbury, Volume 1: The Early Letters, 1153–1161 (Oxford, 1986), p. xx n.1, citing 99 at pp. 153–6, 100 at pp. 157–60, and 131 at pp. 227–37. On Nidaros, see below. E.g. Cardinal Laborans’ Compilatio Decretorum, which survives in only a single manuscript. See p. 21 above.

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Historical Survey For the purposes of this study, the critical point is that by 1150 a version of the Decretum had emerged that contained slightly over 3,800 individual chapters: a version similar to that now found printed in Friedberg’s Corpus Iuris Canonici, more or less, minus the paleae, although there were minor differences between each copy.99 The multiple theories that surround the St Gall manuscript, for example, emphasise the persistent uncertainty over critical details such as who Gratian was, when he worked, and the full range of sources he used.100 The debates around the Concordia’s authorship and dating have a broader relevance, however, emphasising as they do how gaps in knowledge surround even the most well-known texts of twelfth-century canon law.101 Accepting that each manuscript is different and that small textual differences existed between different copies is part of interacting with twelfth-century canonical material. canon law and letters in the twelfth century Twelfth-century canon law was thus fundamentally private in nature. Collections were accepted through use, not necessarily because they were published: the Decretum, for example, was never promulgated by the papacy.102 The same is true of the decretal collections which, during the second half of the twelfth century, collected responses from contemporary popes to the questions and appeals sent to their courts and which contain the thousand or so papal decretals that now form the Corpus Decretalium Saeculi XII.103 It was not until 1234, with the Liber Extra, that twelfth-century decretals were promulgated by the papacy as codified 99 100

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Winroth, Making, p. 122 gives 3,945 chapters, including the paleae. Recent works examining St Gall include Pennington, ‘Gratian, Causa 19, and the birth of canonical jurisprudence’, in E. de Leòn and N. Álvarez de las Asturias (eds.), La cultura giuridicocanonica medioevale (Milan, 2003), pp. 211–32; M. H. Eichbauer, ‘St Gall, Stiftsbibliothek 673 and the early redactions of Gratian’s Decretum’, BMCL, 27 (2007), 105–39; J. C. Wei, ‘A reconsideration of St. Gall, Stiftsbibliothek 673 (Sg) in light of the sources of Distinctiones 5–7 of the De Penitentia’, BMCL, 27 (2007), 141–80, esp. 176. Disagreements over the recensions have become, as Winroth admits, ‘overtly polemic’: Winroth, ‘Le manuscrit florentin du Décret de Gratien: une critique des travaux de Carlos Larrainzar’, RDC, 21 (2001), 211–31, at 211. For more balanced views, see M. E. Sommar, ‘Gratian’s Causa VII and the multiple recension theories’, BMCL, 24 (2000), 78–96 at 90; F. S. Paxton, ‘Gratian’s thirteenth case and the composition of the Decretum’, Proceedings Catania, pp. 119–27 at 127, though Paxton’s conclusion that more time would provide a solution is optimistic. J. T. Noonan, Jr, ‘Was Gratian approved at Ferentino?’, BMCL, 6 (1976), 15–27; rebutted by P. Classen, ‘Das Decretum Gratiani wurde nicht in Ferentino approbiert’, BMCL, 8 (1978), 38–40. A project to first calendar and then publish all decretals of the twelfth-century popes has been underway since the 1950s, led at first by Walther Holtzmann, then Christopher and Mary Cheney, and Charles Duggan and Stanley Chodorow; it is currently under the custodianship of Peter Landau and Gisela Drossbach, in cooperation with Klaus Herbers’ venture revising JafféLöwenfeld, to produce a third edition. Holtzmann’s papers, which will form the core of the

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Canon Law and Letters in the Twelfth Century law. Nearly thirty years ago, Stephan Kuttner remarked upon the fluidity of twelfth-century law, noting that modern conceptions of law and legislation only emerged after the formation of the ius novum, from the foundations which it had created.104 Before the authorisation of the decretal collections early in the thirteenth century and the widespread use of five or six specific decretal collections – the Quinque Compilationes and the Liber Extra – in the law schools, canon law was a body of changing legal concepts and approaches used or adapted locally. The circulation, and ultimately survival, of papal decretals was decided by the clerics who collected them. The first of the decretal collections to secure a geographically widespread dissemination was the Breviarium Extravagantium – known later as the Compilatio Prima – of Bernard of Pavia, from the early 1190s. The success of Bernard’s collection can probably be traced to its use in Bologna in that decade.105 Before then, most decretal collections were made by individual clerics away from the papal curia. They nevertheless borrowed heavily from one another, to the point that early studies of their contents, especially those by Walther Holtzmann, grouped the various manuscripts into families.106 The complex relationship between the English Appendix Concilii Lateranensis and the Tours-derived Bambergensis, for example, has yet to be fully drawn out.107 Nor were even the Compilationes Secunda and Tertia broadly received as codified legislation: Innocent III’s bull Devotioni vestrae explicitly stated that the aim of the Compilatio Tertia was to give the Bolognese canonists true and

104

105

106 107

Corpus Decretalium, are lodged in part at the Stephan Kuttner Institute in Munich, and in part with Professor Anne Duggan. S. Kuttner, ‘The revival of jurisprudence’, in R. Benson and G. Constable (eds.), Renaissance and Renewal in the Twelfth Century (Cambridge, MA, 1982), pp. 299–323 at 316–18; S. Kuttner, ‘Quelques observations sur l’autorité des collections canoniques dans le droit classique de l’Eglise’, Actes du Congrès canonique, Paris, 22–26 Avril 1950 (Paris, 1950), pp. 305–12 at 305–6. Quinque Compilationes antiquae: nec non collectio canonum Lipsiensis, ed. Emil Friedberg (Leipzig, 1882), pp. 1–65; K. Pennington, ‘Decretal collections 1190–1234’, HMCL, pp. 296–300. On the manuscript transmission see Repert., pp. 322–43, updated by M. Bertram, ‘Some additions to the Repertorium der Kanonistik’, BMCL, 4 (1984), 9–16 at 10, 11, 13, 14, 15; K. Pennington, ‘Bio-bibliographical guide to canonists, 1140–1298’, rev. C. Donahue, Jr, and A. A. Larson, http:// amesfoundation.law.harvard.edu/BioBibCanonists/HomePage_biobib2.php under ‘Compilatio prima’ (last accessed 1 September 2018); and G. Dolezalek et al., ‘Decretalium Comp. 1 “Breviarium extravagantium” Bernardus Balbus (Papiensis)’, http://www.uni-leipzig.de/~jurarom/ manuscr/Can&RomL/titles/11552.htm (last accessed 1 September 2018); Bernard of Pavia, Summa decretalium, ed. E. Laspeyres (Leipzig, 1860, repr. Graz, 1959), p. 2. Holtzmann-Cheney, p. xxxii. See the brief comments in C. Duggan, ‘Decretal collections from Gratian to the Compilationes antiquae: the making of the new case law’, HMCL, pp. 246–92 at 280; P. Landau, ‘Die Entstehung der systematischen Dekretalensammlungen und die europäische Kanonistik des 12. Jahrhunderts’, ZRG Kan. Abt., 65 (1979), 120–48 at 125 demonstrating the links between collections.

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Historical Survey accurate copies of his letters, but, as Pennington has noted, that did not prevent French canonists from making emendations.108 Early copies of the Liber Extra also demonstrate minor alterations from copy to copy.109 With the complexity and multiplicity of canon law, it is difficult now to sustain Stephan Kuttner’s argument that, after the Breviarium, the northern canonists retired to obscurity.110 The process by which these collections were compiled remains hazy. They contained extravagantes, or texts that wandered outside Gratian, and were described as such from at least the time of Simon of Bisignano.111 The collections are notably skewed in favour of English material: slightly less than half of Alexander III’s decretals from these collections were sent to English recipients; in comparison, only about 4 per cent were sent to the Angevins’ continental lands, and even fewer to Germany.112 Early commentators, especially William Stubbs, attributed this to canon law’s lack of applicability in England before 1172. Even Zachary Brooke’s more nuanced account suggested that the elevated number of surviving decretals sent to English recipients was the result of a need to bring the English Church up to speed with recent developments.113 Since the 1950s, Charles Duggan’s approach has been broadly accepted. He argued that the high proportion of English material overall occurred simply due to the large number of early English collections exerting a strong influence over later compilations, for which they acted as sources.114 While Duggan’s explanation for the amount of English material holds firm, it does not resolve the question of why the collections were compiled in the first place. The most common answer is that they reflect an intensive interest in recent precedent, spurred on by attempts to fill gaps left in the 108

109

110

111 112

113 114

K. Pennington, ‘The French recension of the Compilatio Tertia’, BMCL, 5 (1975), 53–71 at 64–5. For an overview, see R. Somerville and B. C. Brasington (ed. and trans.), Prefaces to Canon Law Books in Latin Christianity. Selected Translations, 500–1245 (New Haven and London, 1998), pp. 219–25. More detailed studies can be found in K. Pennington, ‘The making of a decretal collection: the genesis of the Compilatio tertia’, Proceedings Salamanca, pp. 67–92 at 89–90; P. D. Clarke, ‘The collection of Gilbertus and the French glosses in Brussels, Bibliothèque royale MS 1407-9, and an early recension of Compilatio secunda’, ZRG Kan. Abt., 86 (2000), 132–84 at 142–3 and 180–4. Innocent’s bull to the Bolognese masters, Devotione vestrae, was dated 28 December 1210; WH – : Pott. 4157 = 3 Comp. pr. M. Bertram, ‘Dekorierte Handschriften der Dekretalen Gregors IX (Liber Extra) aus der Sicht der Text- und Handschriftenforschung’, Marburger Jahrbuch für Kunstwissenschaft, 35 (2008), 31–65 at 59–60, citing amongst others two early manuscripts in Florence: see p. 221 below. S. Kuttner, ‘Les débuts de l’école canoniste française’, Studia et documenta historiae et iuris, 4 (1938), 193–204 at 203–4. Duggan, Twelfth-Century Decretal Collections, p. 16. W. Holtzmann, ‘Über eine Ausgabe der päpstlichen Dekretalen des 12. Jahrhunderts’, Nachrichten von der Akademie der Wissenschaften in Göttingen, Phil.-hist. Kl., 24 (1945), 15–36 at 34. Brooke, English Church, pp. 212–14. On Stubbs, see above. Duggan, Twelfth-Century Decretal Collections, pp. 118 and passim; Duggan, ‘Decretal collections’, pp. 256–62.

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Canon Law and Letters in the Twelfth Century Decretum.115 Anne Duggan has argued that the early collections were composed from responsa to episcopal consultationes, but why more questions were being asked and their answers preserved remains obscure.116 How far twelfth-century canonists used the registers of sent papal letters remains frustratingly uncertain. Marked-up copies of Honorius III’s registers suggest that they were used by Tancred in compiling the 1226 Compilatio Quinta.117 As the twelfth-century registers are lost, repeating Boyle’s correlation of Honorius’ registers with the Quinta is impossible. Even the format of the twelfth-century registers remains uncertain: Blumenthal suggested that they were more extensive than a calendar, but did not contain full letters.118 Despite this ambiguity, the registers were clearly used later in the century.119 Holtzmann argued that earlier collections such as the Appendix Concilii Lateranensis and a collection of letters that follow the Cantabrigiensis collection were compiled in part from the registers, but Pennington’s observation that ‘it is very unlikely that a significant number of the letters were ever enregistered’ seems more sensible, although he did not suggest an alternative source.120 Canonists’ use of papal registers should not, however, suggest that their collections were ‘official’. It demonstrates that the registers existed and were open for consultation, but nothing more, and their extensive use in the last decade of the century is of little relevance to this study. 115

116

117 118

119

120

Brooke, English Church, p. 213; C. Duggan, ‘English decretals in continental primitive collections with special reference to the primitive collection of Alcobaça’, Collectanea Stephan Kuttner, Studia Gratiana, 14 (1967), 53–71 at 56; G. Dolezalek, ‘A series of papal decretals from the late 12th century and its usefulness for the dating of manuscripts of Roman law’, RIDC, 15 (2004), 77–95 at 77. A. J. Duggan, ‘Making law or not? The function of papal decretals in the twelfth century’, Proceedings Esztergom, pp. 41–70 at 56–7; A. J. Duggan, ‘Master of the decretals: a reassessment of Alexander III’s contribution to canon law’, in P. D. Clarke and A. J. Duggan (eds.), Alexander III (1159–81): The Art of Survival (Aldershot, 2012), pp. 365–427, at 373–5. L. Boyle, ‘The Compilatio Quinta and the registers of Honorius III’, BMCL, 8 (1978), 9–19. U.-R. Blumenthal, ‘Papal registers in the twelfth century’, Proceedings Cambridge, pp. 135–52 at 146, 150–1. Duggan, ‘Decretal collections’, pp. 290–1, citing Seguntina and Cracoviensis. See also W. Holtzmann, ‘La “Collectio Seguntina” et les décrétales de Clément III et de Célestin III’, RHE, 50 (1955), 400–53 at 418–19; A. Vetulani, ‘Un manuscrit bolonais du chapitre cathédrale de Cracovie’, Eos, 48 (1957), 389–409, reprinted in his Institutions de l’Église et canonistes au Moyen Age (Aldershot, 1990), VII, 401–2; and A. Vetulani, ‘L’origine des collections primitives de décrétales à la fin du XIIe siècle’, Congrès de Droit canonique médiéval: Louvain et Bruxelles, 22–26 juillet 1958, Bibliothèque de la Revue d’histoire ecclésiastique, 33 (Louvain, 1959), 64–72. See Pennington’s caution when he argues that a collection of apparently unimportant letters could not have come from the register: K. Pennington, ‘Epistolae Alexandrinae: a collection of Pope Alexander III’s letters’, in F. Liotta (ed.), Miscellanea Rolando Bandinelli, Papa Alessandro III (Siena, 1986), pp. 339–53. W. Holtzmann, ‘Die Register Papst Alexanders III. in den Händen der Kanonisten’, QF, 30 (1940), 13–87, at 69–80; Pennington, ‘Epistolae Alexandrinae’, p. 341.

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Historical Survey The 1170s and 1180s were the most important decades in the history of decretal collections, despite some earlier survivals. During the twentyyear period from 1170 to 1190, their number increased dramatically. Only one surviving twelfth-century decretal collection may predate 1175; earlier, core, collections have been suggested on the basis of the survivors and as the number and variety of Dekretanhänge, or appendices to Gratian’s Decretum, has become apparent. Unfortunately, none has survived intact.121 In any case, from around 1179 a more sophisticated type of collection began to circulate.122 These systematic collections broke letters down into sections that were copied out in thematic titles. The earliest, Parisiensis II or the Collection in Ninety-Five Titles, was compiled before 1179; it survives in a single known manuscript.123 From the mid1180s an increasing number of collections were compiled, and by the 1190s four broad groupings existed, although each survives today in only a handful of manuscripts.124 These were still vibrant, living texts which were altered from manuscript to manuscript, and although those with broadly similar contents and structures are grouped together in ‘families’, any two collections within each family are rarely identical. But these twelfth-century collections were not papally controlled codifications of legislation, and their authority thus depended on the authority of the texts they contained. In the later twelfth century, the papacy’s supremacy was fundamentally a legal supremacy, even when couched in theological terms.125 The political theories of the canonists will always intrigue scholars and they have been the subject of intense scholarly study, but the most relevant point for the purpose of this book 121

122

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124 125

Duggan, Twelfth-Century Decretal Collections, pp. 69–70; C. Duggan, ‘Decretals of Alexander III to England’, in F. Liotta (ed.), Miscellanea Rolando Bandinelli, Papa Alessandro III (Siena, 1986), pp. 87–151 at 88–98, describes a proto-Alcobacensis, esp. at p. 89, where he suggests that a series of decretals (1 Alc. 50–72) sent to Roger of Worcester were gathered together by Roger’s circle in the years 1177–9. P. Landau, ‘Typen von Dekretalensammlungen’, in V. Colli (ed.), Juristische Buchproduktion im Mittelalter, Ius Commune, Sonderheft, 155 (Frankfurt am Main, 2002), pp. 269–82 at 274–8; Duggan, ‘Decretal collections’, p. 270. Paris, BnF lat. 1566, fols 1r–54v; Duggan, ‘Decretal collections’, pp. 270–1. The fullest analysis remains Die Canones-Sammlungen zwischen Gratian und Bernhard von Pavia, ed. E. Friedberg (Leipzig, 1897), pp. 21–45, but see also J. Hanenburg, ‘Decretals and decretal collections in the second half of the XIIth century’, Tijdschrift voor Rechtsgeschiedenis, 34 (1966), 552–99 at 593–9 for a brief commentary. Duggan, ‘Decretal collections’, pp. 270–87; Landau, ‘Entstehung’, passim. Hanenburg, ‘Decretal collections’, pp. 566–8. See also C. R. Cheney, From Becket to Langton: English Church Government, 1170–1213 (Manchester, 1965), pp. 43–5; J. Sayers, Papal Judges Delegate in the Province of Canterbury, 1198–1254: A Study in Ecclesiastical Jurisdiction and Administration (London, 1971), pp. 1–8. On the establishment of papal supremacy in the eleventh century, see e.g. K. G. Cushing, Papacy and Law in the Gregorian Revolution: The Canonistic Work of Anselm of Lucca (Oxford, 1998), pp. 1–18; I. S. Robinson, The Papacy, 1073–1198: Continuity and Innovation (Cambridge, 1990), pp. ix–x.

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Canon Law and Letters in the Twelfth Century was made by Brian Tierney half a century ago. Canonists were individual writers and, although the development of their ideas can be demarcated, there was no one political theory among them regarding papal authority.126 The range of views is not always clear: in his discussion of the authority of decretals, for example, Charles Duggan relied heavily on the late twelfth-century decretist Huguccio, supported by the writings of Stephen of Tournai and Rufinus, all of whom equated decretals and conciliar canons.127 The impact of Duggan’s thinking is such that Gérard Fransen described one commentary as showing ‘a certain originality’ for stating that conciliar canons and decrees possessed greater authority than decretals.128 In her critique of Duggan, by contrast, Jacoba Hanenburg pointed to different canonists’ opinions on decretals and their authority in the time before Huguccio, which only serves to emphasise Tierney’s point.129 While Gratian granted the pope the ability to interpret the laws, most notably in his statement that ‘Decretals are equal in law to conciliar canons’, the canonists differed in their interpretation of that ruling.130 Huguccio and Johannes Teutonicus offer important insights into the development of a way of thinking since they show the final products of that system and both would have significant later influence, but taken alone they limit understanding of the peculiar legal culture of the later twelfth century. Whatever the theoretical arguments for the authority of papal decretals – and Gratian makes his point perfectly clear – their use provides ample evidence for their authority in practice. What it cannot do is suggest the presence of a legislating papacy. Letters were mostly addressed to individual bishops: Peter Landau isolated only seven examples of twelfth-century decretals issued with law-making intent. Only three of these predate the 1179 council, and three of the remaining four were decretals of Gregory VIII, a man steeped in law.131 Landau did limit his 126

127 128

129 130

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B. Tierney, Foundations of the Conciliar Theory: The Contribution of the Canonists from Gratian to the Schism (Cambridge, 1955), pp. 12–13. Duggan, Twelfth-Century Decretal Collections, pp. 27–39. G. Fransen, ‘Quaestiones decretales dans un manuscrit espagnol’, Sine Invidia Communico: Opstellen aangeboden aan Prof. Dr. A. J. de Groot (Nijmegen, 1985), pp. 83–103 at 85, with the quaestio on 93–4. Hanenburg, ‘Decretal collections’, pp. 564–85. H. Dondorp, ‘Review of papal rescripts in the canonists’ teaching, I’, ZRG Kan. Abt., 76 (1990), 172–253 at 188–91; D.20 pr.: Decretales itaque epistolae canonibus conciliorum pari iure exequantur. P. Landau, ‘Rechtsfortbildung im Dekretalenrecht. Typen und Funktionen der Dekretalen des 12. Jahrhunderts’, ZRG Kan. Abt., 86 (2000), 86–131 at 120–7, esp. 120–1 on Inherentes (WH 563: JL 7401 = X 2.7.11); Attenta diligentia (WH 94: JL – = Ineditae, 1, pp. 1–2) and Relatum est auribus (WH 871: JL 13744 = X 3.38.21). See also A. J. Duggan, ‘De consultationibus tuis: the role of episcopal consultation in the shaping of canon law in the twelfth century’, in B. C. Brasington and K. G. Cushing (eds.), Bishops, Texts and the Use of Canon Law around 1100: Essays in Honour of

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Historical Survey sample by only considering letters from the decretal collections, and so missed a number written on behalf of the privileged orders, but it is nevertheless becoming increasingly important to recognise that the papacy fulfilled the role of a judge and adjudicator whose decisions only achieved universal force through repeated use by others. The very presence of the decretal collections further demonstrates that, firstly, the papal legal supremacy was recognised by contemporaries; secondly, that authority was then called upon by members of both ecclesiastical and lay society who required judgement and assistance; and thirdly, that those who received such letters believed the precedents they set important enough to copy them out, albeit often in a shortened form. The evidence suggesting a deliberate implementation of a longstanding papal agenda is therefore shrinking under scholars’ scrutiny. The pontificate of Alexander III has proven particularly fruitful here, in part because many of the arguments have focussed on the development of marriage law. Mary Cheney demonstrated how the study of decretals could illuminate the complicated relationship between pope and bishop.132 At its heart, though, the current debate focusses on the lawyerhistorian divide, albeit through the lens of marriage law, where Alexander has been singled out as particularly innovative.133 Charles Donahue showed how Alexander was unable – or unwilling – to achieve a consistent approach to marriage for the entirety of his pontificate, an oversight Brundage attributed to his ‘conservative but pragmatic temperament’.134 Charles Duggan characterised this as a result of the papacy’s position as ‘the mother of justice, [which] therefore should not

132

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Martin Brett (Aldershot, 2008), pp. 191–214 at 209. On Gregory VIII, see R. Weigand, ‘The development of the Glossa Ordinaria to Gratian’s Decretum’, HMCL, pp. 55–97 at 76; Weigand, Die Glossen, 618. On Gregory’s letters see W. Holtzmann, ‘Die Dekretalen Gregors VIII’, MIÖG, 58 (1950), 113–23, esp. 121, distinguishing Gregory from his contemporaries in part as a result of the intent behind his decretal letters. M. G. Cheney, ‘Pope Alexander III and Roger, Bishop of Worcester, 1164–1179: the exchange of ideas’, Proceedings Toronto I, pp. 207–27, esp. 227. See also Cheney, Roger, Bishop of Worcester, esp. pp. 169–70. E.g. S. McDougall, ‘The making of marriage in medieval France’, Journal of Family History, 38 (2013), 103–21, challenging the idea that at the heart of the development of marriage law was a competition between lay and ecclesiastical authorities. C. Donahue, Jr., ‘The policy of Alexander III’s consent theory of marriage’, Proceedings Toronto I, pp. 251–81 at 276; C. Donahue, Jr., ‘The dating of Alexander the Third’s marriage decretals: Dauvillier revisited after fifty years’, ZRG Kan. Abt., 68 (1982), 70–124 at 70–3. See also J. Dauvillier, Le mariage dans le droit classique de l’Église (Paris, 1933), pp. 17–32; J. A. Brundage, ‘Marriage and sexuality in the decretals of Alexander III’, in F. Liotta (ed.), Miscellanea Rolando Bandinelli, Papa Alessandro III (Siena, 1986), pp. 59–83 at 69. C. Donahue, Jr., ‘Johannes Faventinus on marriage’, in W. P. Müller and M. E. Sommar (eds.), Medieval Church Law and the Origins of the Western Legal Tradition: A Tribute to Kenneth Pennington (Washington, DC, 2006), pp. 179–97, at 195, suggests that the difference emerges from a gap between legal and historical training.

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Canon Law and Letters in the Twelfth Century deviate from reason and equity’.135 In contrast, Donahue attempted to reshape Jean Dauvillier’s theory of five ‘rules’ on marriage, enforced at different times – an approach challenged in turn by Christopher Brooke and, latterly, Anne Duggan, both of whom have argued against attempts to portray a deliberately enforced agenda.136 More recently, Duggan has gone further and noted that, far from explicitly attempting to create law, Alexander at times emphasised that a particular decision should not be read as a legal precedent, arguing that ‘the law was not abandoned when particular historical circumstances made it difficult or impossible to apply, but it could be abandoned temporarily’.137 Rethinking the purpose of decretals has been central to their repositioning as responses rather than deliberate legislation. Nevertheless, lacunae remain. As yet there is no adequate exploration into the number of letters that survive addressed to a single recipient, but originally sent to many, and there is no explanation as to how far modern scholarly vocabulary differs from its medieval counterpart.138 Unlike Landau, Nörr included all papal encyclicals in his broad definition of papal decretals, meaning any letter that began ‘to all archbishops and bishops whom these letters reach’;139 Dondorp interprets Nörr’s article to suggest that ‘constitutiones are only issued by Gregory VIII (1187) and at councils (for instance at the Third Lateran Council)’.140 Yet the decretal Ex parte tua, concerning tithe privileges, survives with at least two different inscriptions.141 Giles Constable believed that the variety occurred because the letter was sent to multiple different locations, although as the two named dioceses are Troyes (Trecensis) and Tarragona (Tarraconensis) the scribal error that is well attested in the collections’ history is a definite possibility.142 Equally, a confirmation of Richard, bishop of Coventry mentions a ‘directive’ possessing ‘apostolic authority’ that resembles a letter received by multiple English bishops but not 135

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138

139

140 142

C. Duggan, ‘Equity and compassion in papal marriage decretals to England’, in W. van Hoeck and A. Welkenhuyen (eds.), Love and Marriage in the Twelfth Century (Leuven, 1981), pp. 59–87 at 60. C. N. L. Brooke, The Medieval Idea of Marriage (London, 1980), pp. 169–72; A. J. Duggan, ‘The effect of Alexander III’s “rules on the formation of marriage” in Angevin England’, AngloNorman Studies, 33 (2010), 1–22. Duggan, ‘De consultationibus tuis’, pp. 209–10, citing WH 833: JL – = Ineditae, 89, p. 155; A. J. Duggan, ‘Tempering the wind: moderation and discretion in late twelfth-century decretals’, SCH, 43 (2006), 180–90 at 190. An example here is that the term ‘decretal’, employed so frequently in scholarly literature, appears only a handful of times in Gratian’s Decretum, mostly in D.18. See T. Reuter and G. Silagi (eds.), Wortkonkordanz zum Decretum Gratiani, MGH Hilfsmittel, 10 (Munich, 1990). K. W. Nörr, ‘Päpstliche Dekretalen und römisch-kanonischer Zivilprozeß’, in W. Walter (ed.), Studien zur europäischen Rechtsgeschichte (Frankfurt am Main, 1972), pp. 53–65 at 54. Dondorp, ‘Review of papal rescripts’, p. 180 n. 23. 141 WH 470: JL 14117 = X 3.30.10. G. Constable, Monastic Tithes: From their Origins to the Twelfth Century (Cambridge, 1964), p. 298.

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Historical Survey recorded as sent to Coventry.143 Another decretal, Sicut Iudeis, survives with varied inscriptions including to both the archbishops of Canterbury and Reims and the possibility that it was sent to multiple locations at different times cannot be discounted.144 Here at least, it is difficult to agree with Anne Duggan’s contention that ‘none of the responses in Alexander’s day constituted conscious law-making’.145 As will be demonstrated below, Sicut Iudeis was a response to a request for protection; it entered the decretal collections in several different versions, suggesting that what appears at first glance to be a single letter repeated in multiple collections may have been several.146 Such repetition can only constitute a papal attempt to make law, albeit of a very different sort to modern conceptualisations, and such examples urge caution. That caution aside, Landau’s fundamental point concerning the intent behind the letters stands firm. Few of the letters that would ultimately constitute law with the promulgation of the Liber Extra or that were considered representative of legal precedent by twelfthcentury canonists were written to multiple recipients with such legally precise content as to imply that the papacy intended that content to become immediate, universal law. Most letters written to multiple recipients were sent to judges-delegate or to several bishops who were all involved in the same dispute; WH 692, for example, chastised six English bishops involved in the crowning of the Young King in 1170 and is considered a decretal thanks to its inclusion in two AngloNorman collections.147 Four of the six letters in decretal collections sent by Alexander III to the abbot of St Albans were commissions to multiple judges-delegate, and the remaining two were responsa.148 These letters came to be recognised as legal precedents by clerics other than their intended recipients through their circulation in the collections.

143

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145 147

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I am grateful to Martin Brett for bringing this to my attention. See English Episcopal Acta 16: Coventry and Lichfield, 1160–1182, ed. Michael J. Franklin (Oxford, 1998), 38, p. 35. WH 941: JL 13973 = X 5.6.9. Something similar can be said for Licet universis Dei, WH 624: JL 13974 = X 2.20.23. Duggan, ‘Alexander III’s “rules”’, p. 3. 146 See below, pp. 72, 74–5. WH 692: JL 11835 = MTB, 7.360–4 (Sang. 3.13.9, 1 Abrinc. 3.9.2) to the bishops of London, Salisbury, Exeter, Chichester, Rochester, and Saint Asaph. The commissions were WH 441: JL – = Wig. 7.64, to the abbot of St Albans and Gilbert, bishop of London, 1167–79; WH 813: JL 14140 = X 2.1.11, to the abbot of St Albans and the bishop of Worcester, also 1167–79; WH 236: JL – = Claustr. 206, to the abbot of St Albans and the abbots of Evesham and Forde, 1175–81, and WH 846: JL 14365 = X 2.22.4, to the abbot of St Albans, the bishop of Durham, and the abbot of Bury St Edmunds, dated 23 January 1181.

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Councils and Canon Law in the Twelfth Century councils and canon law in the twelfth century However, as scholars have increasingly underlined the importance of responses to appeals and consultationes, they have left a troubling gap. All accept, to a greater or lesser extent, that the role of legislation or the setting of the papal agenda was instead played by conciliar canons alone. In this assumption, they were building on old ground: councils are after all the traditional legislative bodies of the Church, and when scholars, in the twelfth century as much as the twenty-first, have discussed the authority of decretals, they have compared them to conciliar canons.149 Consequently, the 1179 canons have been widely described as legislation, although Uta-Renate Blumenthal has started to nuance that perspective.150 Anne Duggan and Mary Cheney, when arguing that decretals did not necessarily create law, stressed that conciliar canons did. In Duggan’s words, ‘the proper forum for [making general law] was the papal council, which provided the opportunity for face to face debate as well as mechanisms for promulgation and dispensation, however primitive’.151 Both opinions were formed from studies of the letters rather than studies of the conciliar canons, however, and assumed that something must have filled the void. One aim of this study is therefore to test these hypotheses concerning conciliar canons, and to investigate whether there was a noticeable difference between the authority and reception of decretals and the canons of papal councils in the later twelfth century. To do that, a little recourse to contemporary legal theory is necessary. The theory is clear enough. Gratian and his immediate commentators distinguished between a general or universal council and a provincial council.152 Their argument was simple: the presence of the pope or his legate made a council general, and gave it the ability to institute new decrees. If no such authority were present, then a council could only correct according to existing statutes.153 Sieben noted how the 149

150

151 152 153

Helmholz, History, 1.93; Decretum, D.19, D.20 pr. See also e.g. U.-R. Blumenthal, The Early Councils of Pope Paschal II, 1100–1110 (Toronto, 1978), p. 5, for a similar comment on the reform popes, and see the quaestio cited by Fransen, ‘Quaestiones decretales’, pp. 93–4. E.g. Kuttner, ‘Revival of jurisprudence’, pp. 316–17; Helmholz, History, 1.93, 1.378; COGD, 2.117 on Lateran III. See now U.-R. Blumenthal, ‘Das Dritte Laterankonzil, seine Beschlüsse und die Rechtspraxis’, in C. Andenna et al. (eds.), Die Ordnung der Kommunikation und die Kommunikation der Ordnung im mittelalterlichen Europa, Band 2: Zentralität: Papsttum und Orden im Europa des 12. Und 13. Jahrhunderts (Stuttgart, 2013), 37–49. Duggan, ‘Making law or not?’, p. 61; Cheney, ‘Alexander and Roger’, p. 207. Decretum, D.16, D.17 pr. Paucapalea, Summa to D.16, p. 18; Paucapalea, Summa to D.17 d.a.c.1, p. 19; cf. Rolandus’ terse comment that ‘a synod cannot be called without the authority of the Roman pontiff’, Rolandus, Summa to D.17, p.6; Rufinus, Summa to D.17. d.a.c.1, v. General. conc., p. 38; Stephen of Tournai, Summa to D.17 d.a.c.1 v. Gen. conc., p. 26.

37

Historical Survey commentators on the Decretum differed in their treatment of the idea of general councils, but did point to an overall emphasis on the legal role of the papacy and differentiated between the general and the particular.154 It seems clear-cut: papal authority made a council general, and that authority could take the form of written papal assent to the council or the presence of the pope, either in person or via an intermediary. Contemporary practice was somewhat murkier. While a general council required papal authority, the presence of the pope or his emissary did not automatically make a council general. Both Urban II and Innocent II avoided referring to certain councils as ‘general’, Urban at Melfi in 1089 and Innocent after his Lateran council in 1139.155 Over the course of the twelfth century, local synods were held by a number of papal legates, both nati and a latere. These were rarely received into canonical collections however, which suggests that contemporaries did perceive general and local councils in a different light and that such a division held true even in the presence of papal authority in the person of a legate. The only provincial synod received into late twelfth-century canonical collections, the council held by Richard of Dover at Westminster in 1175, appears to have been mistakenly attributed.156 In any case, what papal authority could not guarantee was the reception of that council’s decrees. Tierney has argued that ‘the ultimately decisive criteria for determining [a law’s] validity were its substantive content (its conformity with divine truth) and its reception by the church’.157 If something were patently false, it could not be accepted, but nor could something that had been received by the Church be wrong. Tierney’s point finds tacit support in Gratian, who talked of general councils as a thing of the past.158 The commentaries compiled north of the Alps implemented a rough hierarchy of authorities for judging cases, with the canons of the first four ancient councils taking precedence over more recent councils.159 In an additional layer of complication, Gratian had stressed the importance of reception when deciding which of the canons of Nicaea were authoritative: only the twenty that had been 154 155

156

157

158 159

H. Sieben, Die Konzilsidee des lateinischen Mittelalters (847–1378) (Paderborn, 1984), p. 241. S. Kuttner and R. Somerville, Pope Urban II, the Collectio Britannica and the Council of Melfi (1089) (Oxford, 1996), pp. 181–4. C. N. L. Brooke, ‘The canons of English church councils in the early decretal collections’, Traditio, 13 (1957), 471–80, focussing on Westminster (1175) and Westminster (1143). B. Tierney, ‘“Only truth has authority”: the problem of “reception” in the decretists and in Johannes de Turrecremata’, in K. Pennington and R. Somerville (eds.), Law, Church and Society: Essays in Honor of Stephan Kuttner (Philadelphia, 1977), pp. 69–96 at 78. Decretum, D.17 pr. Summa Coloniensis, 1.52 at p. 1.15; Summa Lipsiensis to D.20 pr. at pp. 1.61–2.

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Councils and Canon Law in the Twelfth Century received.160 Then, while he explicitly stated that canons from provincial councils should be reproduced by diocesan bishops within six months, he gave no mechanism for the repetition of papal conciliar canons.161 To add to the confusion, there is a division between contemporary practice and a modern historiographical tradition that gives much weight to tenets of the Counter-Reformation Church, albeit through modern eyes. Brooke, Morris, and Foreville all present the three Roman councils held in 1123, 1139, and 1179 as somehow different from other papal councils of the period, and they are not alone.162 Helmholz pointed to these three councils, alongside that held in 1215, as representing the ‘vitality’ of ‘the traditional form of clarifying old and enacting new law’.163 For the modern Catholic Church, these councils are the ninth, tenth, and eleventh ecumenical councils. Historically, however, this nomenclature and numbering was adopted much later; to search for its use and meaning four hundred years earlier is to investigate a phantom. Nevertheless, the emergence of general or ‘ecumenical’ councils in the twelfth century is the preoccupation of much historiography. Robinson, building on Schmale, focussed on differentiating between the judicial eleventh-century synod and the law-making twelfth-century council, maintaining the traditional differentiation between the three ‘ecumenical’ councils held at the Lateran and others held elsewhere, and tying the development of papal councils into broader ideas of bureaucratisation and the professionalisation of law and administration.164 The terminology has been debated by Sieben and Schmale, while the major edition of the conciliar canons until 2013 was the COD3: the Conciliorum oecumenicorum decreta.165 Even the newest edition, titled the Conciliorum oecumenicorum generaliumque decreta, decided against adding to the twelfth-century councils.166 Instead, there was no one established contemporary practice. While Calixtus II referred to his 1123 Lateran council as ‘general’, Alexander III did not always follow suit. Nevertheless, the Treaty of Anagni provided for a general council in the late 1170s and chroniclers employed the 160 162

163 164

165

166

Decretum, D.16 d.a.c.13. 161 Decretum, D.18 c.17. See, amongst others, Foreville, Latran, which barely considers other councils than the four ‘ecumenical’ ones: the council at Tours, for example, is only briefly of interest on pp. 118–20; C. Morris, The Papal Monarchy: The Western Church from 1050–1250 (Oxford, 1989), pp. 217, 221; Brooke, English Church, p. 104. Helmholz, History, 1.93. Robinson, The Papacy, p. 131, building on the progression outlined by F.-J. Schmale in his ‘Synodus – synodale concilium – concilium’, AHC, 8 (1976), 80–102. F.-J. Schmale, ‘Systematisches zu den Konzilien des Reformpapsttums im 12. Jahrhundert’, AHC, 6 (1974), 21–39, at 36–8. COGD, 2.vi.

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Historical Survey term.167 In contrast, canons from Alexander’s council at Tours in 1163, referred to by both Boso and William of Newburgh as ‘general’, were incorporated into a number of decretal collections including, eventually, the Liber Extra.168 To argue that only the councils of 1123, 1139, and 1179 were legislative councils is therefore to force an idea onto the twelfth century that did not exist. If ‘general’ was a technical term, it was not universally employed. Given the potential for uncertainty, the presumption that the canons of general councils were automatically incorporated into universal law is therefore surprising. More problematic is the unfortunate consequence that the authority and dissemination of twelfth-century papal councils remain under-investigated. The founding members of the Institute for Medieval Canon Law (now the Stephan Kuttner Institute) placed the study of ‘source collections, synodal statutes, [and] pastoral treatises’ as their sixth priority, behind a critical catalogue and eventual critical edition of the Decretum; a focus on abbreviationes; editions of the twelfth- and thirteenth-century decretal collections in order to produce a Corpus Decretalium; editions and card indices for the pre-Gregory IX decretists and decretalists; and pre-Gratian canonical collections. If, as seems likely, ‘synodal statutes’ referred to the acta of local councils, then it becomes apparent that the canons of general councils were not considered unstable enough to be of interest to scholars investigating legal change.169 When Robert Somerville investigated Alexander III’s 1163 council at Tours, he edged around the canons’ transmission in decretal collections despite acknowledging that they constituted ‘the major area for additional study’, while Anne Duggan recently referred to the 1179 council as ‘the supreme achievement of [Alexander’s] papacy, both in its immediate impact and in the significance and longue durée of its decrees’.170 Understanding of the reception of conciliar canons in the later twelfth century therefore remains patchy. Although a majority of the traditions are canonical in origin, there are even fewer studies of the canonists’ role. With the notable exception of Christopher Brooke’s 1957 study of the use of certain councils in early English collections and Martin Brett’s ongoing interest in the 1139 Lateran council in Panormia manuscripts, 167

168

169 170

Die Urkunden Friedrichs I. 1168–1180, 687, p. 205; WH – : JL – = PUF n.F., 5, 256, pp. 361–3; Annales Senenses, p. 226; The Winchcombe and Coventry Chronicles: Hitherto Unnoticed Witnesses of the Work of John of Worcester, ed. and trans. P. A. Hayward (Tempe, 2010), pp. 540–1; cf. Annales S. Petri Erphesfurdenses, ed. G. Pertz, MGH, Scriptores, 16 (Hanover, 1859), 23, which instead speaks of magna sinodus cum universarum provinciarum episcopis. R. Somerville, Pope Alexander III and the Council of Tours (1163) (Berkeley, 1977), pp. 39–48; Boso, Vita Alexandri, 2.408–10; William of Newburgh, Historia, 1.135. S. Kuttner, ‘The Institute for Medieval Canon Law: report’, Traditio, 11 (1955), 429–39 at 434. Somerville, Council of Tours, p. 49; Duggan, ‘Master of decretals’, p. 411.

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Councils and Canon Law in the Twelfth Century their role in contemporary canon law has been sidelined in favour of the more voluminous decretal correspondence.171 Peter Landau’s 1979 study of the Appendix Concilii Lateranensis collection in its four known variants does not mention the 1179 canons at all, giving the incorrect impression that in all four the text of the canons is identical; the omission is understandable given that Landau is concerned with the contents of the decretal collection, but it is indicative of a general approach that overlooks the potential contribution of conciliar canons to understanding the complicated world of the decretal collections.172 Charles Duggan even noted, when referring to the Dunelmensis decretal collection, that ‘there is little of significance to note here concerning [the 1179] canons, as they are very well known and found in numerous manuscripts of the period’; the fact that both criteria equally apply to Alexander’s decretal Meminimus nos does not make the letter itself any less interesting.173 Such an omission is in part a reaction to earlier scholars who posited that the 1179 canons were integral to the development of the decretal collections, and in part due to the fact that the use of papal conciliar canons in canonical collections falls into a gap between canon law and conciliar history.174 Studying the reception of conciliar canons is also becoming increasingly important. Studies of eleventh- and early twelfth-century papal councils now suggest that their canons did not necessarily enter local use as promulgated in the conciliar session. It is increasingly difficult to view the three ‘ecumenical’ councils of the twelfth century as more authoritative than any others. Leonardi noted the insecurity of the traditions of both Lateran I and Lateran II, work on which Martin Brett has built; from an alternative perspective, Christopher Cheney pointed out that to contemporaries, the 1179 council was the first Lateran council or simply the Lateran Council, thus minimising the impact of the earlier assemblies.175 The question then becomes not how far conciliar canons 171

172

173

174 175

Brooke, ‘Canons of English church councils’; M. Brett and R. Somerville, ‘The transmission of the councils from 1130 to 1139’, in J. Doran and D. J. Smith (eds.), Pope Innocent II (1130–43): The World vs the City (London, 2016), pp. 226–71. P. Landau, ‘Studien zur Appendix und den Glossen in frühen systematischen Dekretalensammlungen’, BMCL, 9 (1979), 1–21 at 1–8. C. Duggan, ‘A Durham canonical manuscript of the late twelfth century’, SCH, 2 (1965), 179–85 at 183. Meminimus nos in fact appears in more decretal collections than the 1179 canons: every complete primitive collection before the Breviarium contains at least one section. See M. G. Cheney, ‘JL 13162 “Meminimus nos ex”: one letter or two?’, BMCL, 4 (1974), 66–70. Holtzmann-Cheney, pp. 4–5. C. Leonardi, ‘Per la tradizione dei concili di Ardara, Lateranensi I–II, e Tolosa’, Bullettino dell’Istituto storico italiano per il Medio Evo e Archivio Muratoriano, 75 (1963), 57–70 at 65–70; M. Brett, ‘The First Lateran Council in English manuscripts’, Proceedings Berkeley, pp. 13–28, esp. pp. 27–8; M. Brett and L. I. Hamilton, ‘New evidence for the canons of the First Lateran Council’, BMCL, 30 (2013), 1–20; thence Brett and Somerville, ‘Transmission of the councils’, pp. 256–71. For an unsatisfactory synopsis

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Historical Survey permeated local ecclesiastical consciousnesses, but whether, when, and how they did. The work of Robert Somerville provides the most substantial body of conciliar studies for the eleventh and twelfth centuries.176 He has ‘speculated’ on the possibility that a pope would suppress decrees promulgated by one of his own legates in order to reduce disgruntlement with political actions,177 suggested that the canons promulgated by Innocent II over the course of his pontificate represent the core of a papal ‘agenda’ repeated whenever possible,178 but also demonstrated that both the canons of the councils themselves and their reception possessed a distinctly local aspect. At Pisa in 1135, one canon condemned the sale of Corsicans as slaves.179 Only certain canons were disseminated from Clermont in 1095, on the basis of their interest to local clerics.180 Somerville’s work implies that the relationship between the events of councils and the canons that they promulgated is far more complicated than is normally believed. This general conclusion has been supported by Uta-Renate Blumenthal in her work on papal councils between Leo IX and Paschal II. Blumenthal stressed that those papal conciliar canons have been preserved mostly in manuscripts compiled as a result of episcopal rather than papal initiatives.181 Her intention was to draw a comparison with Carolingian councils, but in doing so she maintained the traditional emphasis on Gratian changing all seen elsewhere.182 She nevertheless recognised that modern knowledge of papal conciliar canons rested upon a body of material preserved through non-papal intervention and pointed out that a variety of different texts have survived as a consequence.

176

177

178

179 180

181

182

see COGD, 2.100. On 1179, see C.R. Cheney, ‘The numbering of the Lateran Councils of 1179 and 1215’, in his Medieval Texts and Studies (Oxford, 1985), pp. 203–8. R. Somerville, Papacy, Councils and Canon Law in the 11th–12th Centuries (Variorum reprint, London, 1990). R. Somerville, ‘The councils of Pope Calixtus II: Reims 1119’, Proceedings Salamanca, pp. 35–50 at 48–9. R. Somerville, ‘The canons of Reims (1131)’, BMCL, 5 (1975), 122–30 at 125–7, 130; R. Somerville, ‘The Council of Pisa, 1135: a re-examination of the evidence for the canons’, Speculum, 45 (1970), 98–114 at 109–11; R. Somerville, ‘Another re-examination of the Council of Pisa, 1135’, in M. Brett and K. G. Cushing (eds.), Readers, Text and Compilers in the Earlier Middle Ages. Studies in Medieval Canon Law in Honour of Linda Fowler-Magerl (Farnham, Surrey, 2009), pp. 101–10 at 103–4. Somerville, ‘Another re-examination of Pisa’, p. 105, with the texts on pp. 109–10. R. Somerville, The Councils of Urban II, Vol. 1: Decreta Claromontensia, AHP, Supplementa, 1 (Amsterdam, 1972), p. 41. U.-R. Blumenthal, ‘Conciliar canons and manuscripts: the implications of their transmission in the eleventh century’, Proceedings Munich, pp. 357–79 at pp. 364, 367, and citing Wilfrid Hartmann on p. 367 n. 28. Blumenthal, ‘Conciliar canons’, pp. 378–9.

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Councils and Canon Law in the Twelfth Century When combined, Blumenthal and Somerville’s work suggests that there is more to conciliar canons than meets the eye, in much the same way that earlier work on decretals suggested that they were responsive, not authoritative, texts. Conciliar canons claim stronger authority than papal decretals, but if it was the reception of decretals that led to their acceptance and widespread circulation, then was it the same for conciliar canons? Although some conciliar canons form part of decretal collections, they were not always included. Consequently, while conciliar canons have always played a role in legal collections as substantial as decretals, the increased focus on the new law of the decretals and its implications of centralised papal government has often overshadowed the specific and practical role played by conciliar canons in both papal governance of the Latin Church and in the ius novum during its formation period in the later twelfth century.

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2

DISPUTES, DECRETALS, AND THE 1179 CONCILIAR CANONS

The agenda for the 1179 council was in all likelihood decided in the curia. Quoniam in agro, the letter summoning clerics to the council, makes no mention of prelates investigating matters locally before travelling to Rome, while the nine-month delay between the summons and the council would not have provided sufficient time to complete detailed local investigations.1 Nevertheless, it seems unlikely that Alexander’s curia would put forward for correction problems that they did not know needed correcting. This chapter, therefore, sets out to investigate how Alexander and his curia may have been presented with the problems that appeared in the 1179 conciliar canons. Although very little is known about the gestation of conciliar and synodal acta, one example of their preparation is provided by Mary Cheney’s examination of BL, Cotton Claudius A.iv. Cheney noted that the canons promulgated at the 1175 Council of Westminster were drafted in response to a number of propositions now found in the Claudiana decretal collection, and suggested that these propositions were received from local bishops before being collated within the familia of Richard of Dover.2 Critically, not every proposition became a conciliar canon. Cheney’s approach ties in with that of Gabriel Le Bras, who commented that ‘most conciliar [i.e. papal] canons were provoked by local incidents’;3 Christopher Cheney also commented that ‘law, like population, recruits from below’.4 Westminster was a provincial rather than a papal council, but it demonstrates how ecclesiastical gatherings could respond to particular concerns. 1 2

3

4

WH – : JL 13070 = PUF n.F., 5, 256, pp. 361–2; see above pp. 1, 15–16. M. G. Cheney, ‘The Council of Westminster 1175: new light on an old source’, SCH, 11 (1972), 61–8 at 61–2; C. N. L. Brooke, ‘Canons of English church councils in the early decretal collections’, Traditio, 13 (1957), 471–80 at 473–6. G. Le Bras, Prolégomènes, Histoire du droit et des institutions de l’Église en Occident, 1 (Paris, 1955), p. 61 n.1; cited in C. R. Cheney, ‘Some aspects of diocesan legislation in England during the thirteenth century’, repr. in his Medieval Texts and Studies (Oxford, 1973), pp. 185–202, at 185 n. 2. Cheney, ‘Some aspects of diocesan legislation’, p. 185.

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Disputes, Decretals, and the 1179 Conciliar Canons Since this study is examining the mechanisms and extent of responsive papal government, the relationship between Lateran III and such local concerns is a critical question. Some scholars have perceived the 1179 conciliar canons as part of a papally initiated process of enforcing law, as for example in the work of John Baldwin, Joshua Tate, Raymonde Foreville, and Colin Morris.5 Foreville nevertheless noted that the 1179 conciliar canons were rooted in the contents of papal decretals, commenting that the decrees were the work of canonists working on details proposed in advance and based in part on the canons of older councils (such as those on jousts and tourneys, the Peace and Truce of God) and, in large part, on the decretals that Alexander III, himself a canonist, had sent in large numbers to local churches.6

By explicitly linking the 1179 canons to both earlier councils and to papal decretals, which she clearly considered to be legislative, Foreville placed them as part of a stream of deliberately law-making material broadly disseminated by the papacy in the twelfth century, as did Marcel Pacaut.7 Similarly, Morris noted in passing that some of the 1179 decrees ‘reflect policies already applied in Alexander III’s decretal letters’.8 Yet, if decretals are responsive and not necessarily representative of a deliberately instigated long-term papal policy, then they cannot provide evidence of the precursor legislation to the 1179 canons that Foreville and Morris surmise.9 Both were adamant that the decrees were closely related to Alexander’s letters, so this chapter sets out to investigate what, precisely, was the relationship between the letters and the conciliar canons, and how Alexander and his curia knew which issues required correction. The absence of known drafts, however, means that attention must focus on the letters when attempting to interpret how they knew. In turn, the letters bring to the fore the complicated question of whether Alexander instigated a papal ‘policy’ via the council, deliberately foreshadowed in the letters he wrote in response to local queries and requests over the course of his pontificate, or whether the reality presented a more complex scenario. 5

6

7

8 9

J. W. Baldwin, Masters, Princes and Merchants: The Social Views of Peter the Chanter and his Circle (Princeton, 1970), pp. 122–4; J. C. Tate, ‘The Third Lateran Council and the ius patronatus in England’, Proceedings Esztergom, pp. 589–600 at 593. R. Foreville, Latran I, II, III et Latran IV (Paris, 1965), p. 152; also R. Foreville, ‘La place de Latran III dans l’histoire conciliare du XIIe siècle’, in J. Longère (ed.), Le troisième concile de Latran (1179): sa place dans l’histoire (Paris, 1982), pp. 11–17, at 16. M. Pacaut, ‘Alexandre III et le concile de 1179’, in Longère (ed.), Le troisième concile de Latran (1179): sa place dans l’histoire (Paris, 1982), pp. 19–22, at 20–1. C. Morris, The Papal Monarchy: The Western Church from 1050 to 1250 (Oxford, 1989), p. 218. See the discussion on pp. 33–6 above.

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Disputes, Decretals, and the 1179 Conciliar Canons To make matters more complicated, unlike for the 1175 Council of Westminster, no sets of ‘draft’ decrees for the 1179 Lateran council have been recorded which could demonstrate how the canons were formulated. The Cheneys pondered the idea that the copy in BL, Cotton Claudius A.iv represented drafts, an idea strengthened by the presence, in the same manuscript, of the ‘propositions’ to the 1175 council.10 Unfortunately, it is more likely that the shortened version in that manuscript presents an abbreviation.11 The only other tradition which could present such a draft is the brief copy found appended to a narrative manuscript now in Karlsruhe: Badische Landesbibliothek, Rastatt 27.12 Certainly the mapping of decrees, decretals, and propositions undertaken by Mary Cheney for the 1175 council is impossible on the scanty evidence proffered in the Karlsruhe manuscript, which could show propositions, drafts, abbreviated copies of the 1179 decrees, or an abbreviated replica of statutes issued by Frederick I at some point in the 1180s which, oddly, also includes the papal election decree Licet de vitanda. The imperial slant on the copy appears from its repetition of the decree against the antipopes, and the inclusion of a reference to a treaty between Frederick and the Emperor of Constantinople. More certainly needs to be done on this intriguing manuscript, but for the present purpose it is considered amongst the copies of the canons in Chapter 4, following Fransen’s analysis. papal letters in the twelfth century Papal letters provide a substantial body of evidence for the questions asked of the twelfth-century papacy. Many are now lost, but for Alexander III, 5,733 survive from a variety of sources.13 These letters illustrate the cases, petitions, and questions brought to the curia during Alexander’s pontificate. As such, they show the concerns of local prelates, offer the best evidence of how these concerns were communicated to the curia, and present one way of understanding the responses they elicited. Papal letters 10 12

13

Holtzmann-Cheney, p. 132. 11 See the discussion on pp. 230–1 below. Karlsruhe, Badische Landesbibliothek, Rastatt 27, fol. 103r; referenced in Fransen, ‘Les canonistes et Latran III’, in Longère (ed.), Le troisième concile de Latran (1179): sa place dans l’histoire (Paris, 1982), pp. 33–40 at 36. COD3, p. 207. Regesta Pontificum Romanorum, ed. P. Jaffé, rev. S. Loewenfeld et al. (2 vols, Leipzig, 1881–8) lists 3,901, and around 2,000 more can be found in Initienverzeichnis und chronologisches Verzeichnis zu den Archivberichten und Vorarbeiten der Regesta Pontificum Romanorum, ed. R. Hiestand, MGH, Hilfsmittel, 7 (Munich, 1983), pp. 221–341. See also R. Hiestand, ‘Die Leistungsfähigkeit der päpstlichen Kanzlei im 12. Jahrhundert mit einem Blick auf den lateinischen Osten’, in P. Herde und H. Jakobs (eds.), Papsturkunde und europäisches Urkundenwesen. Studien zu ihrer formalen und rechtlichen Kohärenz vom 11. bis 15. Jahrhundert, Archiv für Diplomatik, Beiheft, 7 (1999), 1–26 at 23.

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Papal Letters in the Twelfth Century thus provide the most valuable resource for any investigation into responsive papal government. Surviving papal documents broadly fall into four types. The bulk encompasses privileges and confirmations of privileges, often written in response to petitions.14 These were requested by the supplicant from the pope, often but by no means exclusively in person, and are highly important for understanding papal relationships with individual monasteries or orders. They are principally illustrative, with local clerics requesting written proof of papal protection of their possessions and rights.15 The insight they provide into papal government and its relationship with local clerics is consequently very specific. Firstly, they demonstrate what houses needed and requested, and thus potentially when monasteries were feeling insecure or uncertain. Meanwhile, they can be used to follow small changes representing minor adjustments to papal approaches. Under Adrian IV, for example, the Cistercian tithe exemption was limited to lands that were newly tilled; the partial reversal under Alexander III can be seen in both privileges and responsa. The privileges therefore show the practical side of the changes implemented by both popes.16 The two other types of document are both legal in nature. Appeals to the pope, although reliant upon the papal position as the legal head of the Latin Church, were always the result of an individual deliberately choosing to turn to papal judgement on an issue. Consequently, every case that was appealed helped to underpin the papal legal supremacy in some way. In some cases, a dispute came to the curia because the pope provided the only higher court, such as in the lengthy dispute between the archbishops of Tours and the bishops of Dol over whether the Breton city was the site of an archdiocese or not.17 In others, which increased in volume over the course of the twelfth century, the disputed case could have been resolved at a local level, but was not; the Anstey dispute presents one example of a convoluted case that eventually travelled to the curia.18 Despite the 14

15

16

17

18

See P. Zutshi, ‘Popes, petitioners and proctors: the development of curial institutions, c. 1150– 1250’, in G. Andenna (ed.), Pensiero e sperimentazioni istituzionali nella ‘Societas Christiana’ (1046–1250) (Milan, 2007), pp. 255–93. See H. Bresslau, Handbuch der Urkundenlehre für Deutschland und Italien (2 vols, Leipzig, 1912), 1.80–2 on the formulae of twelfth-century privileges. G. Constable, Monastic Tithes from their Origins to the Twelfth Century (Cambridge, 1964), pp. 279–88, esp. p. 279. The dispute was ongoing. See e.g. Howden, Gesta 1.34 on the Council of Avranches in 1172, where Dol’s claims were quashed by the legates. See also P. de Fougerolles, ‘The Archbishopric of Dol, 849–1199’, unpublished PhD thesis, University of Cambridge (2004), pp. 225–45 on Dol 1144–99, and pp. 323–6 on Alexander III and Dol. P. Barnes, ‘The Anstey case’, in P. Barnes and C. F. Slade (eds.), A Medieval Miscellany for Doris Mary Stenton, Publications of the Pipe Roll Society, new series, 36 (1962), pp. 1–23 at 1–16; The

47

Disputes, Decretals, and the 1179 Conciliar Canons rhetorical emphasis placed upon underlying papal power, describing the Roman Church as ‘mother of all’ but her bishop as ‘servant of the servants of God’, appeals only existed because clergy and laity both chose to rely on that power and brought their cases to the curia accordingly. Yet the pope, peripatetic in the twelfth century but mostly absent from Rome itself, could not judge every case himself and so frequently appointed judges-delegate who acted in his stead. Mary Cheney listed 126 letters of Alexander III to Roger of Worcester that have either survived or can be identified. Ninety of these are commissions to the bishop to act as a papal judge-delegate or as a papal representative. In total, Cheney identified seventy cases between Roger’s election and his death where he acted as a judge-delegate, and Roger was only one of many clerics across Europe acting on Alexander’s behalf.19 The importance of that appellate jurisdiction is critical to understanding the relationship between the papacy and the rest of Latin Christendom. Jane Sayers described the appeals process and specifically appellate jurisdiction as ‘the most striking aspect of the growing power of the twelfth-century papacy’, yet, as Gazzaniga notes, it emerged only gradually through the twelfth century.20 Although Müller stressed that appeals were increasingly ‘universally used tools of law’, the fundamental point remains that Alexander could only judge an appeal if it were first brought to the curia.21 Any responsum was also a rescript. Responsa were opinions and learned counsel on specific or abstract questions of law that had been carried to the curia through consultationes. A number of these responsa, mostly those sent to bishops or other judges-delegate, were copied into the collections that ultimately constituted the new law.22 Mary Cheney was the first to identify responsa in the exchange of letters between Roger, bishop of

19

20

21

22

Letters of John of Salisbury, Volume 1: The Earlier Letters, 1153–1161, ed. W. J. Millor and H. E. Butler, rev. C. N. L. Brooke (Oxford, 1986), pp. xxxii–xxxiv, and no. 131, pp. 227–37. M. G. Cheney, Roger, Bishop of Worcester 1164–1179: An English Bishop in the Age of Becket (Oxford, 1980), pp. 317–73; M. G. Cheney, ‘Alexander III and Roger, Bishop of Worcester, 1164–1179: the exchange of ideas’, Proceedings Toronto I, pp. 207–27 at 209. J. Sayers, Papal Judges Delegate in the Province of Canterbury, 1198–1254: A Study in Ecclesiastical Jurisdiction and Administration (Oxford, 1971), p. 3; G. Le Bras, ‘Le droit romain au service de la domination pontificale’, RHD, fourth series, 27 (1949), 377–98 at 390–1; J.-L. Gazzaniga, ‘L’appel omisso medio au pape et l’autorité pontificale au Moyen Age’, RHD, fourth series, 60 (1982), 395–414 at 395–405 for the period to Alexander III, esp. 402–4 for his qualifications concerning the time span of the change. H. Müller, Päpstliche Delegationsgerichtsbarkeit in der Normandie (12. und frühes 13. Jahrhundert), Studien und Dokumente zur Gallia Pontificia, 4 (2 vols, Bonn, 1997), 1.10–11. P. Landau, ‘Rechtsfortbildung im Dekretalenrecht. Typen und Funktionen der Dekretalen des 12. Jahrhunderts’, ZRG Kan. Abt., 86 (2000), 86–131; A. J. Duggan, ‘Making law or not? The function of papal decretals in the twelfth century’, Proceedings Esztergom, pp. 41–70 at 48–9, 66–7, demonstrated that the ‘first’ decretal collection, Wigorniensis altera, was principally comprised of responsa.

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Papal Letters in the Twelfth Century Worcester and Alexander.23 Her subsequent analysis of the relationship between pope and bishop stressed the importance of local support in twelfth-century papal government and was based in large part on the existence of consultationes that can be conjectured from the papal responses. These reconstructed consultationes are in their own way as striking as appeals, but often covered more, and more variable, ground. Meminimus nos covered multiple topics,24 as did Quoniam in parte, whose seven topics included feast days, the penance for murder, and the reconsecration of an altar.25 Cheney believed that responsa were a mixture of theoretical questions and queries about extant cases, but she stressed that they were responses to bishops who were active judges, a conclusion with which it is difficult to argue.26 The final way in which news was brought to the curia was by individual reports, especially those from papal legates who were also members of the papal curia.27 While not every papal legate in the twelfth century was a cardinal, a number were; in any case, most were in frequent contact with the papacy, and it seems that some form of report was required after a legatine mission. Cardinal-bishop Alberic of Ostia reported to Innocent II on his return from a mission to the Levant in 1142, while Henry de Marcy, abbot of Clairvaux and papal legate to the south of France in the late 1170s, reported on the situation of the Church in the region, imploring Alexander to act and stem the heresy that Henry had encountered.28 All of these methods of bringing information to the curia produced papal responses in some form. The question therefore becomes how far the answers they elicited were also the solutions employed in the 1179 conciliar canons. How did the curia see the conciliar canons relative to papal decretals, and how far were the conciliar canons responses to those local concerns communicated to the papal curia? Traditionally, many papal communications were perceived as legislation; while that has been 23 24

25

26 27

28

Cheney, ‘Alexander and Roger’, pp. 208–9, 214–20. WH 649: JL 13162 = X 4.6.3, X 3.5.12, X 3.39.8, X 2.28.9, 1 Comp. 1.21.12, X 2.28.10, X 2.28.11, 1 Comp. 4.20.6, X 3.24.5, X 4.5.4, X 2.22.2; M. G. Cheney, ‘Meminimus nos: one letter or two?’, BMCL, 4 (1974), 66–70 at 67 on the contents. For current purposes, the decretal is classed as a single letter. WH 833: JL 14109 + JL 14206 = Ineditae, 89, pp. 154–5; A. J. Duggan, ‘De consultationibus tuis: the role of episcopal consultation in the shaping of canon law in the twelfth century’, in B. C. Brasington and K. G. Cushing (eds.), Bishops, Texts and the Use of Canon Law around 1100: Essays in Honour of Martin Brett (Aldershot, 2008), pp. 191–214 at 196–9, nn. 27, 30, 38. Cheney, ‘Alexander and Roger’, pp. 214–17 on Meminimus. For the twelfth century, this is documented in S. Weiß, Die Urkunden der päpstlichen Legaten von Leo IX. bis Coelestin III. (1049–1198) (Cologne, 1995). B. Zenker, Die Mitglieder des Kardinalkollegiums von 1130 bis 1159 (Wurzburg, 1964), pp. 17–18; Weiß, Die Urkunden, pp. 254–6, 272–4.

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Disputes, Decretals, and the 1179 Conciliar Canons nuanced for papal decretals by Cheney and Duggan, there remains an overwhelming scholarly attachment to the idea that papal conciliar canons alone acted as widespread, general, legislation.29 Consequently, there remains the question of how far the 1179 canons represented an attempt to introduce new precedents that would have been impossible in individual letters. Cheney commented that Meminimus presented Alexander with ‘the opportunity . . . to devise some means of dealing locally with appeals on trivial questions’ but that the pope ‘simply followed the leges, and his rule prevailed’, yet in 1179, slight limits were placed on appeals.30 Key to these questions is therefore the relationship between universal and particular, which has only recently started to be unravelled.31 methodology The principal sources for the following discussion are surviving papal letters. A number have been either calendared or published through the revised Regesta pontificum romanorum and the Papsturkunden series.32 These volumes provide an overview of papal correspondence with local communities, be it through privileges or appeals and other requests for aid. The core of the discussion, however, relates to papal decretals, and this study follows Holtzmann’s definition of a decretal, in keeping with the use of his card file system as a principal source despite its limitations. Holtzmann defined a decretal as any papal letter that appeared principally or only in a canonical context – such as the extravagantes to Gratian included in decretal collections and canonistic summae.33 More recent definitions of the decretals are wider. Fransen and Charles Duggan both viewed decretals as any letter written in response to a legal question, although Fransen noted that ‘custom now calls every papal letter in a canonical collection a decretal’.34 Robert Benson defined decretals as ‘simply letters in which the pope, alone or with the consultation of the cardinals, answered the various questions which had been referred to the papal curia’, but since he noted that Alexander sent around 700, he was

29 30 31

32 33

34

Cheney, ‘Alexander and Roger’, p. 207; Duggan, ‘Making law or not?’, p. 61. Cheney, ‘Alexander and Roger’, p. 215. Duggan, ‘De consultationibus tuis’, pp. 196–7, 209–10; cf. R. H. Helmholz, ‘The universal and the particular in medieval canon law’, Proceedings Munich, pp. 641–59 at 643–5. See p. 46 n. 13 above. W. Holtzmann, ‘Kanonistische Ergänzungen zur Italia Pontificia, I–IV’, QF, 37 (1957), 55–102 at 56. G. Fransen, Les décrétales et les collections de décrétales, Typologie des sources du Moyen Âge occidental, 2 (Turnhout, 1972), p. 7.

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Methodology clearly referring only to those letters preserved in the decretal collections.35 Both interpretations present difficulties. Holtzmann’s was legally precise but limited by his conception of what constituted canonical material. Conversely, it included letters which survive in single collections alongside those which had a much greater influence, including Meminimus nos mentioned above.36 Holtzmann therefore classed a number of letters as decretals because of their inclusion in a single family or even a single decretal collection which may never have been intended as such. An example is provided by WH 895, nominated by Holtzmann as a decretal. It is the tithe clause of a privilege that entered into collections of the Italian family in severely truncated form.37 From that family, it passed into the systematic collections and thence the Breviarium of Bernard of Pavia, although not the Liber Extra. Hundreds of privileges from across Christendom contained a similar tithe exemption clause, even if the exemption was peculiar to each circumstance. The legal importance of the exemption clause is obvious to modern scholars, given the intense discussions surrounding tithe privileges.38 When it left the papal curia, however, the clause would have been merely one phrase in a privilege that was not considered of particular significance. WH 895, therefore, demonstrates how an initially non-legal letter came to be classified as a ‘decretal’. In contrast, the more recent argument, as well as being broad almost to the point of unhelpfulness, pays only lip service to those letters that are not found in decretal collections. Charles and Anne Duggan, for example, focussed on decretals as found in the canonical collections rather than papal letters as a whole; Benson’s numerical limitations suggest a similar scope.39 Since the primitive collections alone provide hundreds of texts, there are plenty of letters to work from, but despite this broadening of the definition of decretals, there is no corresponding extension of the source base. It is thus too easy to underestimate the importance of those letters that did not enter the collections as a result of 35 36

37

38 39

R. Benson, The Bishop-Elect: A Study in Medieval Ecclesiastical Office (Princeton, 1969), p. 12. See the example of five letters found only in Parisiensis I: WH 28: JL – = 1 Par. 165; WH 230: JL – = 1 Par. 33; WH 597: JL – = 1 Par. 177; WH 847: JL – = 1 Par. 176; WH 920: JL – = 1 Par. 169. WH 895: JL 14173 = 1 Comp. 3.26.12: Sane laborum uestrorum, quos propriis manibus aut sumptibus colitis, siue de nutrimentis uestrorum animalium, nullus omnino clericus siue laicus a uobis decimas exigere presumat; hoc etiam idem ex priuilegiis aliis aliorum Romanorum habetur pontificum; 1 Berol. 108b, Flor. 104b, Cus. 118, 2 Par. 56.10b, App. 13.7, 2 Oriel. 13.12, Bamb. 25.8, Cpd. 25.8, Erl. 25.8, Lips. 23.12, Cass. 35.8, Tann. 3.14.7, Brug. 19.8, Frcf. 20.12, Sang. 4.10.7. Constable, Monastic Tithes, p. 270, refers to it as a ‘crisis of monastic freedom from tithes’. E.g. C. Duggan, ‘Decretals of Alexander III to England’, in F. Liotta (ed.), Miscellanea Rolando Bandinelli, Papa Alessandro III (Siena, 1986), pp. 87–151 at 114–46, where Duggan calendars decretals of Alexander III to Roger of York by their WH number.

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Disputes, Decretals, and the 1179 Conciliar Canons choice or chance. The inclusion of decretals in the Extra was the culmination of a process of selection and editing that took place over six decades.40 One result of this selection process was that only letters with contemporary legal relevance were included in later collections, those no longer considered important being discarded; not every response to an appeal or consultatio, therefore, reached these collections even if they were included in an earlier version. Consequently, despite Holtzmann’s reliance on the surviving decretal collections, his narrow definition of a decretal remains the most accurate. When talking about the decretals, scholars mean those letters transmitted through the legal collections, and that should be an explicit feature of their vocabulary. While other letters could have been decretals, they were either not considered by contemporary lawyers to have the overwhelming legal importance that would lead to their inclusion in the collections or they were sent to recipients who played no part in the development of the ius novum over the second half of the twelfth century. Since Holtzmann’s definition of a ‘decretal’ is that used for this book, what of the thousands of other papal letters that were sent over the course of Adrian’s and Alexander’s pontificates? The problem is not insurmountable. Although decretals have provided the core of the analysis, other papal letters have also been used whenever possible, in large part thanks to the many volumes of the Italia Pontificia, Germania Pontificia, Gallia Pontificia, and Papsturkunden series. These add texture, since those legal letters not confined to decretal collections are also frequently more complete than the letters in even the oldest surviving collection. In its original state as preserved by Martène and Durand, Arras, BM 964 contained over five hundred papal letters addressed to Henry of France, archbishop of Reims alongside many to his suffragan bishops,41 while the so-called Collectio Jacques Sirmond includes fifty-six.42 Since both survive in early modern editions and damaged manuscripts, neither was identified as a decretal collection by Holtzmann yet they are certainly collections of at times legally significant letters assembled in the province

40

41

42

S. Horwitz, ‘Reshaping a decretal chapter: Tua nobis and the canonists’, in K. Pennington and R. Somerville (eds.), Law, Church and Society: Essays in Honour of Stephan Kuttner (Philadelphia, 1977), pp. 207–21; Duggan, ‘De consultationibus tuis’, pp. 211–12. L. Falkenstein, ‘Alexander III et Henri de France, conformités et conflits’, in R. Grosse (ed.), L’église de France et la papauté (Xe–XIIIe siècle): actes du XXVIe colloque historique franco-allemand organisé en coopération avec l’École nationale des chartes par l’Institut historique allemand de Paris (Paris, 17–19 octobre, 1990) (Bonn, 1993), pp. 103–76 at 104–5; Martène-Durand, 2.622–1011. L. Falkenstein, ‘Die Sirmondsche Sammlung der 56 Litterae Alexanders III.’, in R. Hiestand (ed.), Hundert Jahre Papsturkundenforschung (Göttingen, 2003), pp. 267–334, calendared the letters on pp. 274–84.

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Methodology to which the letters were sent.43 Likewise, the Papsturkunden series contains any letters sent with papal authority, including those sent by papal legates a latere, and those rare cases where the reports of judges-delegate to the pope have survived.44 Using other papal letters as well as decretals thus limits the problems created by both the arbitrary distinction between decretals and other letters and the former’s patchy survival. In a series of letters to the cathedral chapter at Arras, the variety of papal interaction with local dioceses becomes clear. The letters also demonstrate how unrepresentative the decretal collections are for understanding the papacy’s relationship with local churches. Four decretals included in later canonical collections were sent to the bishop of Arras, but none to the chapter.45 These letters survive elsewhere: Ramackers edited thirteen to the cathedral chapter from the pontificates of Adrian IV and Alexander III. Adrian confirmed the chapter’s possessions and papal protection in December 1154.46 He later confirmed a custom whereby the chapter gave one year’s income from a deceased canon’s prebend to his church, in order to cover the costs of masses for his soul.47 During the 1175 legation of Peter, cardinal-priest of St Chrysogonus, the cathedral chapter and the bishop undertook not to fill prebends before they had become vacant.48 A number of other letters were sent at an unidentifiable point during Alexander’s pontificate. Amongst other actions, he confirmed that canons absent from the cathedral, unless studying, on pilgrimage, or at the papal curia, would only receive half their income, with the remainder used for the clerics of the chapter.49 The construction of new churches was forbidden on the chapter’s lands,50 and the chapter was given the right of election of bishop, dean, provost, and chanter according to the rule of maior et sanior pars,51 protected from increased exactions on the part of the bishop but 43

44

45

46 48 50 51

L. Falkenstein, ‘Decretalia Remensia. Zu Datum und Inhalt einiger Dekretalen Alexanders III. für Empfänger in der Kirchenprovinz Reims’, in Liotta (ed.), Miscellanea Rolando Bandinelli, Papa Alessandro III (Siena, 1986), pp. 155–216 at 155–61. E.g. WH – : JL – = PUF n. F., 5, 88, pp. 177–8, a report from Bishop Bernard of Nantes and Archdeacon T. of Tours to Adrian IV concerning a case commissioned to their judgement between the canons of St Aubin and St Jean in Angers, and WH – : JL 13635 = PUF 5, 92, pp. 115–16, an account of a dispute settlement dated 28 March 1180. For a discussion of an entire case through decretals, see K. Christensen, ‘“Rescriptum auctoritas vestre”: a judge delegate’s report to Pope Alexander III’, in L. Mayali and S. A. J. Tibbets (eds.), The Two Laws: Studies in Medieval Legal History Dedicated to Stephan Kuttner (Washington, DC, 1990), pp. 40–54. WH 452: JL – = Frcf. 7.5 (Alexander III, 1159–81); WH 738: JL 13748 = 1 Comp. 3.26.30 (Alexander III, 1159–81); WH 229: JL 13749 = X 3.17.3 (Alexander III, 1167–75); WH 409: JL – = Brug. 24.4 (Urban III, 28 August 1186/7). WH – : JL 10450 = PUF n.F., 3, 38, pp. 87–91. 47 WH – : JL – = PUF n.F., 3, 42, pp. 95–6. WH – : JL – = PUF n.F., 3, 69, p. 129. 49 WH – : JL 13751 = PUF n.F., 3, 89, p. 148. WH – : JL 13750 = PUF n.F., 3, 105, pp. 167–8. WH – : JL 13755 = PUF n.F., 3, 108, pp. 169–70.

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Disputes, Decretals, and the 1179 Conciliar Canons also prohibited from increasing charges on its own churches.52 These stipulations are notable because all reflect ideas found in the 1179 canons. Promising prebends before they became vacant was prohibited in c. 8, while the problems of building new churches are alluded to in c. 23, concerning chapels for leper colonies. Additional exactions were condemned in several canons, including in c. 4, on visitation, and c. 7. The use of maior et sanior pars in local elections was restated in both c. 1 and in c. 16 of the council. In this particular example, elements of five tenets later promulgated in 1179 can be found in thirteen letters, none of which entered the decretal collections. Although none of these letters between Alexander and the cathedral chapter were incorporated into legal collections, the communication still demonstrates how closely local and papal government were linked. It presents a real example of how the 1179 Lateran canons emerged from a range of problems encountered away from the curia, and shows how the interaction of centre and periphery remained a critical part of quotidian ecclesiastical government. The final caveat regards the reconstruction of decretals from within the collections. As non-relevant letters were removed from decretal collections, so too was non-relevant language from those letters that remained, even if that was the hallmark of a poor lawyer.53 In the Liber Extra, Raymond of Peñafort often noted the incipit of a letter before noting et infra, removing excess text and cutting straight to the legal material.54 For his edition of the Extra, Friedberg expanded the texts through comparison with earlier collections such as Lipsiensis and the Appendix Concilii Lateranensis in an attempt to replicate the whole letter.55 He was not always successful, and the results are often haphazard, especially since Friedberg’s sources were themselves secondor third-generation decretal collections whose texts had been altered and rarely indicated those alterations. A pertinent example is WH 1087, Viris ecclesiasticis. Although only included in the primitive collections and three systematic collections, WH 1087 survives in multiple 52 53 54

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WH – : JL 13752 = PUF n.F., 3, 106, p. 168; WH – : JL 13760 = PUF n.F., 3, 113, p. 173. I owe a debt to Professor Charles Donahue, Jr for this insight. S. Horwitz, ‘Magistri and magisterium: Saint Raymond of Peñafort and the Gregoriana’, Escritos del Vedat, 7 (1977), 209–38 at 216–17; S. Kuttner, ‘Raymond of Peñafort as editor: the “decretales” and “constitutiones” of Gregory IX’, BMCL, 12 (1982), 65–80 at 65–6; E. A. Reno III, ‘The authoritative text: Raymond of Penyafort’s editing of the “Decretals of Gregory IX” (1234)’, unpublished PhD dissertation, Columbia University (2011), pp. 65–78. The use of et infra predated Raymond by some margin, used to designate when a text was a letter fragment and not the initial title: e.g. WH 944e: JL 12293 = 2 Par. 34.2, Paris, BnF lat. 1566 fol. 23v, which reads Sicut Romana etc. et infra. Si autem V. Si vero. Gregory IX, Decretales in Corpus Iuris Canonici, ed. E. Friedberg (2 vols, Leipzig, 1879–81), 2. xliv–xlix.

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Methodology forms.56 Tanner curtails the canon,57 Bridlingtonensis even more severely,58 while Holtzmann’s edition of Dertusensis shows the amount of excision in even the early collections.59 Address and dating clauses are frequently missing, with the texts reconstructed from fragments.60 Consequently, the following discussion is balanced wherever possible between ‘letters’ (i.e. non-canonically transmitted papal letters) and ‘decretals’ (i.e. those letters that were included in any collection Holtzmann defined as a decretal collection or in other obviously legal material).61 The use of these terms thus simply indicates which letters were incorporated in the decretal collections and which therefore both possess a peculiar textual history and were considered particularly important precedents or responsa in the eyes of contemporary canonists. To help the following discussion, the 1179 canons are considered in three groups. The first contains those canons which are scarcely or tangentially mentioned in papal letters, but where there is a demonstrable link between the problem and the curia.62 Perhaps papal legations were sent to investigate or, as in the case of the schism, the effects were so obvious that searching for references in letters narrows the focus. The second group comprises those canons that possess a clear ancestry in the tenets of the eleventh-century and Innocentine reform movements, and that were restated or reinforced at the 1179 council. One example here is Felicis memorie, which prohibited tournaments and was 56

57

58

59

60 61

62

A further pertinent example is WH299. See H. Schmitz, Appellatio Extraiudicialis: Entwicklungslinien einer kirchlichen Gerichtsbarkeit über die Verwaltung im Zeitalter der klassischen Kanonistik (1140–1348), Münchener Theologische Studien, 3, kanonistische Abteilung, 29 (1970), p. 25 and n. 14; compare Schmitz’s version with that in Troyes, BM 103, fol. 2ra. WH 1087: JL – = Tann. 2.3.3, Oxford, Bodleian Library, Tanner 8, p. 605a: Viris ecclesiasticis plurimum expedire dinoscitur ut in cunctis actibus suis modum et cupiditatis procedunt abdicare ita satagant quod laicos ad perfecionem morum atque uirtutum bonis possent informare exemplis. Quia ergo thesaurus scientie gratis debet exhiberi et liberaliter iuxta illud gratis accepisti et cum fraternitati uestre per apostolica scripta mandamus qua pro scolis regendis. nec uos ipsi aliud exigatis, nec quisquam exigere permittatis. Quoniam turpe est et abhominabile, et apud deum et apud homines precium extorquere. WH 1087: JL – = Brid. 36, Oxford, Bodleian Library, Bodley 357, fol. 93va: Quia tesaurus scientie gratis debet et liberaliter exiberi, iuxta illud gratis accepistis gratis date, fraternitati vestre per apostolica scripta precipiendo mandamus quatinus pro scolis regendis nec uos pecuniam exigatis, nec quemquam exigere permittatis. Quoniam turpe est et abhominabile apud deum et homines, pro re tam honesta precium extorquere. WH 1087: JL – = Dert. 25: Viris ecclesiasticis plurimum expedire dinoscitur, ut in cunctis actibus suis modum et honestatem observent et, que de radice avaricie vel cupiditatis procedunt, ita satagant abdicare, quod laicos ad perfectionem eorum atque virtutum bonis informare possint exemplis. Inde est, quod quia thesaurus sciencie gratis debet et liberaliter exiberi iuxta illud: gratis accepistis, gratis date, fraternitati vestre per apostolica scripta precipiendo mandamus, quatinus pro scolis regendis nec vos pecuniam exigatis nec quemquam exigere permittatis, quoniam turpe est et apud Deum et hominis abhominabile pro re tam honesta precium extorquere. Holtzmann-Cheney, p. 10. Holtzmann-Cheney, pp. xx–xxxi contains the most up-to-date version of Holtzmann’s list of decretal collections, taken from Holtzmann, ‘Kanonistische Ergänzungen, I’, 58–65. Cc. 1, 2, and 27.

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Disputes, Decretals, and the 1179 Conciliar Canons a direct repeat of Innocent II’s conciliar canon from 1139.63 The final and in many ways most interesting section comprises those canons that were relatively novel, or at the very least not based in near-contemporary conciliar canons, and whose gestation can in fact be traced through the surviving papal letters.64 lateran iii and twelfth-century crises In some cases, the link between contemporary events and the canons of the 1179 council is obvious. Canon 1, Licet de vitanda, was clearly a direct response to the events of the schism. The election of the Roman pontiff is, according to the canon, of the utmost importance; it is the only election that requires a two-thirds majority, with all remaining elections and decisions limited to the earlier and less precise idea of the ‘greater and wiser part’, maior et sanior pars, and referral to a superior in the case of dispute.65 Unlike his predecessor Innocent II, Alexander had faced not one, but three antipopes: Victor IV, Paschal III, and Calixtus III.66 For Innocent II, simply surviving until 1138 had assured his acceptance as sole pontiff; Alexander had to negotiate his acceptance in the Empire, where he was faced by Rainald of Dassel and Christian of Mainz.67 He relied upon military victories and political manoeuvring. In introducing the two-thirds majority, Alexander was attempting to end the problematic schisms caused by disputed elections, and by emphasising the importance of the cardinals, he was limiting secular influence on papal elections in the manner of Nicholas II 120 years earlier.68 The specifics of the canon are, furthermore, an obvious response to contemporary conversations. The numerical majority emerged from Roman law, but there is evidence of it being communicated to the 63

64 65

66

67

68

Cc. 3, 7, 10, 11, 12, 13, 14.1, 14.2, 17, 18, 20, 21, 22, 23, 25, and 26. Only certain canons are discussed here. Cc. 4, 5, 6, 8, 9, 15, 16, 19, and 24. Only certain canons are discussed. COD3 used senior for sanior. The latter has a lengthier history. See A. J. Duggan, ‘Conciliar law, 1123–1215: the legislation of the four Lateran Councils’, HMCL, pp. 318–66 at 335 n. 91. See also Chapter 3, pp. 116–19 below. T. Reuter, ‘The papal schism, the Empire, and the West, 1159–1169’, unpublished DPhil thesis, University of Oxford (1975), pp. 132–4. A more recent account of the schism can be found in J. Laudage, Alexander III. und Friedrich Barbarossa, Forschungen zur Kaiser-und Papstgeschichte des Mittelalters, Beihefte zu J. F. Böhmer, Regesta Imperii, 16 (Cologne, 1997). Reuter, ‘The papal schism, 1159–69’, pp. 132–4; G. Raccagni, The Lombard League, 1167–1225 (London, 2010), pp. 98–102 on the Lombard League’s role in the negotiations between Alexander and Frederick and the Battle of Legnano; J. Johrendt, ‘The empire and the schism’, in P. D. Clarke and A. J. Duggan (eds.), Pope Alexander III (1159–1181): The Art of Survival (Aldershot, 2012), pp. 99–126. H. Appelt, ‘Die Papstwahlordnung des III. Laterankonzil (1179)’, in K. Amon (ed.), Ecclesia Peregrinans (Festschrift für Josef Lanzenburger zum 70. Geburtstag) (Vienna, 1986), pp. 95–102 at 96.

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Lateran III and Twelfth-Century Crises curia early in the schism.69 In 1160 Gilbert Foliot, then bishop of Hereford and a recipient of legal training, referred to the Roman law majority in a letter to Alexander.70 He used the Code at 10.32.45.71 This section of the Code considered municipal elections and their management, and provided for a two-thirds majority. As the editors of Foliot’s letter noted, this seems to be the first time that such a numerical majority was mentioned by an ecclesiastic and its presence in a letter written by a bishop to Alexander demonstrates that the pope would have been aware of the principle from the early 1160s. Quod a praedecessore, c. 2 of the council, also responded to the events of the schism. Here, the pope had a precedent in c. 30 of Innocent II’s 1139 Lateran council, which annulled ‘those ordinations made by Peter Leoni and other schismatics and heretics’.72 The canon was repeated at Reims in 1148, and at Tours in 1163.73 In 1179, the canon made explicit the consequences of the annulment by including men who received their ordinations or benefices from those ordained by the antipopes, or any alienations of ecclesiastical land by either the schismatics or their lay or ecclesiastical followers.74 The Treaty of Anagni also helped, since it listed bishops who were to remain in their offices as part of the compromise.75 Yet Alexander was not as inflexible on the matter as the strident tone of the canon could suggest. He pardoned Gérard Pucelle when the canonist had received benefices in Cologne after his time teaching there and, in 1178, permitted him to receive income from his German benefices after a petition from Christian of Mainz.76 Neither Gérard nor Christian were the subject of a grudge, therefore, and most of the formerly schismatic prelates who attended the 1179 council received pallia, including 69 70

71 72

73

74 75

76

See pp. 116–19 below. A. Morey and C. N. L. Brooke, Gilbert Foliot and his Letters (Cambridge, 1965), p. 59; The Letters and Charters of Gilbert Foliot, ed. A. Morey and C. N. L. Brooke (Cambridge, 1967), no. 133, pp. 175–7. Letters and Charters of Gilbert Foliot, p. 176. 2 Lat. c. 30 = COD3, p. 203; M. Brett and R. Somerville, ‘The transmission of the councils from 1130 to 1139’, in J. Doran and D. J. Smith (eds.), Pope Innocent II (1130–43): The World vs the City (London, 2016), pp. 226–71, at 271. Mansi, 21.717; R. Somerville, Pope Alexander III and the Council of Tours (1163) (Berkeley, 1977), p. 50; Boso, Vita Alexandri III, ed. L. Duchesne, in Le Liber Pontificalis (2 vols, Paris, 1886–92), 2.410: Ad hec ordinationes ab Octaviano et aliis scismaticis et hereticis evacuamus et irritas esse censemus; yet Mansi, 21.1179, alters the language of the canon: Ad haec, ordinationes factas ab Octaviano, et aliis schismaticis, et haereticis, evacuamus, et irritas omnes esse dicimus, et decernimus. 3 Lat. c. 2 = COD3, pp. 211–2; COGD, 2.128. Die Urkunden Friedrichs I. 1168–1180, ed. H. Appelt, MGH, Diplomata, 10.3 (Hanover, 1985), 687, pp. 204–5. C. Donahue, Jr., ‘Gerard Pucelle as a canon lawyer’, in R. H. Helmholz et al. (eds.), Grundlagen des Rechts: Festschrift für Peter Landau zum 65. Geburtstag (Paderborn, 2000), pp. 333–48 at 335; J. Fried, ‘Gerard Pucelle und Köln’, ZRG Kan. Abt., 68 (1982), 125–35 at 130, citing WH –: JL 13032 = Bouquet 15.960.

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Disputes, Decretals, and the 1179 Conciliar Canons Christian himself and Philip of Cologne.77 Only the archbishop of Bremen’s election was quashed.78 Even Conrad of Wittelsbach, Alexander’s only German cardinal and erstwhile archbishop of Mainz, had to wait, receiving the archbishopric of Salzburg and only returning to his former see following Christian’s death in 1183.79 If the Empire north of the Alps shows Alexander granting greater concessions to the status quo, Italy presented a different problem. Conciliatory in the 1160s, by the late 1170s Alexander was applying his authority with greater strictness. In a letter to the bishop of Pavia in 1177, Alexander permitted schismatics to keep benefices that they had possessed before becoming schismatic, but ruled that they should lose those they had obtained since; he deprived one of the schism’s leaders of his benefices, and pardoned those who had left the antipope’s cause despite the personal loss involved.80 Earlier, however, his approach showed greater flexibility: WH 818, written in 1163–4 to Hildebrand, cardinal-priest of the Basilica of the Twelve Apostles, allowed Hildebrand to confirm the Patriarch of Aquileia’s election on the grounds that the latter had abjured his schismatic ways, as long as there was no canonical reason for it to be rejected.81 Politically, it is not surprising that Alexander was more conciliatory in the 1160s, as long as clerics had renewed their allegiance to him. In both situations, though, the decision emerged from interaction with local ecclesiastics, and the Pavia letter appears to be the result of a consultatio asking for advice in the face of a confusing situation. Alexander’s response was couched in characteristically careful terms that suggest he was keeping within existing statutes for fear of overreaching: ‘lest we should seem to exceed or even violate the statutes of the holy fathers or the boundary of the constitutions of the Church’.82 That caution is significant for understanding the role of the council. While the bishop of Pavia’s letter has survived, it is not unlikely that other clerics, especially in the north of Italy and the Empire, were similarly confused. The 1179 council would have provided a general forum for the repetition of the precedent, and thereby reduced the likelihood that Alexander would fall foul of earlier laws. Contemporary concerns are also evident in c. 27. The canon condemned heretics and mercenaries; it named the Cathars alongside other 77 78

79

80 82

Annales Stadenses, ed. G. Pertz, MGH, Scriptores, 16 (Hanover, 1859), p. 348. Arnold of Lübeck, Chronica Slavorum, MGH, SS rer. Germ., 14 (Hanover, 1868), pp. 46–7; Annales Stadenses, pp. 348–9. Urkunden Friedrichs I., 1168–1180, p. 204. For Conrad’s legatine correspondence, see Weiß, Die Urkunden, pp. 244–7. WH 558: JL – = Kan. Erg., 5, 93, pp. 89–90. 81 WH 818: JL 12632 = X 1.6.5. WH 818: JL 12632 = X 1.6.5.

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Lateran III and Twelfth-Century Crises heretical sects located ‘in Gascony, Albi, the areas around Toulouse, and in other places’.83 Pacaut considered this heresy an important factor underpinning the 1179 council.84 The second part of the canon targeted mercenaries, the ‘Brabanters, Aragonese, Navarese, Basques, Coterelli, and Triaverdini, who practise such cruelty upon Christians that they respect neither churches nor monasteries . . . but like pagans destroy and lay everything waste’.85 Since the two canons are combined in the COD, historians of the Languedoc have pointed to a combination of mercenaries and heresy in the region as the catalyst for c. 27, making it in effect a regional decree.86 However, that seems unlikely: although a mercenary war raged in the region,87 bandits and paid troops were a more widespread problem. Despite earlier suggestions that relate the critique of mercenaries to their ability to undermine an idealised feudal levy, the major problem was how to control the more violent of these bands of routiers.88 Brabançon mercenaries and coterelli were the subject of an 1171 treaty between Frederick I and Louis VII whereby any vassal of the king or emperor who retained mercenaries could be excommunicated by a prelate.89 A mandate of Henry of France to his suffragans in Reims states how soldiers and coterelli had burned a church and thirty-six men.90 Henry II used Brabanters at the siege of Dol and relief of Rouen in 83

84 86

87

88

89

3 Lat. c. 27 = COD3, pp. 224–5; COGD, 2.145: in Gasconia, Albigesio et partibus Tolosanis et aliis locis. Pacaut, ‘Alexander III et le concile’, p. 20. 85 3 Lat. c. 27 = COD3, p. 224; COGD, 2.145–7. E. Graham-Leigh, The Southern French Nobility and the Albigensian Crusade (Woodbridge, 2005), p. 96; L. Macé, Les comtes de Toulouse et leur entourage, XIIe–XIIIe siècles. Rivalités, alliances et jeux de pouvoir (Toulouse, 2000), pp. 355–8; A. Vauchez, ‘Les origines de l’hérésie cathare en Languedoc, d’après un sermon de l’archevêque de Pise Federico Visconti (+ 1277)’, Società, Istituzioni, Spiritualità: studi in onore di Cinzio Violante (Spoleto, 1994), pp. 1032–4 and esp. 1034. See also W. Wakefield, Heresy, Crusade and Inquisition in Southern France 1100–1250 (London, 1974), pp. 85–6, 100. Stephen of Tournai described his encounter with ‘robbers, and Coterelli, Basques, [and] Aragonese’ while accompanying Henry de Marcy (by then cardinal-bishop of Albano) to the Languedoc in 1181 in a letter to Raymond, prior of Ste-Geneviève: Stephen of Tournai, Letters, ed. J. Desilve, Lettres d’Étienne de Tournai, nouvelle édition (Paris, 1893), 86, pp. 101–2; Les miracles de Notre-Dame de Rocamadour au XIIe siècle, ed. J. Rocacher (Toulouse, 1996), p. 162; William of Puylaurens, Chronicle, ed. J. Duvernoy, Chronica magistri Guillelmi de Podio Laurentii, 2nd edn (Toulouse, 1996), p. 30. See e.g. M. Prestwich, ‘Money and mercenaries in English medieval armies’ in A. Haverkamp and H. Vollrath (eds.), England and Germany in the High Middle Ages (Oxford, 1996), pp. 129–50 at 142; S. D. B. Brown, ‘The mercenary and his master: military service and monetary reward in the eleventh and twelfth centuries’, History, 74 (1989), 20–38; K.-F. Krieger, ‘Obligatory military service and the use of mercenaries in imperial military campaigns under the Hohenstafen emperors’, in A. Haverkamp and H. Vollrath (eds.), England and Germany in the High Middle Ages (Oxford, 1996), pp. 151–68; L. Napran, ‘Mercenaries and paid men in Gilbert of Mons’, in J. France (ed.), Mercenaries and Paid Men: The Mercenary Identity in the Middle Ages (Leiden, 2008), pp. 287–99. Die Urkunden Friedrichs I., 1168–1180, p. 47. 90 WH – : JL – = Martène-Durand, 2.866.

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Disputes, Decretals, and the 1179 Conciliar Canons 1174,91 and earlier in the century William of Malmesbury described them as ‘the most violent and rapacious men, who thought nothing of breaking cemeteries or despoiling churches’, and accused them of abducting clerics.92 These suggest that the problem of mercenaries was not isolated to Languedoc. Much the same can be said for heresy. Although there is debate over the exact date when Catharism came to Languedoc,93 and there are scholarly divisions over whether heresy existed or was more in the eye of the beholder and over the presence or absence of a Cathar ‘church’,94 dualist heretics had been the subject of local censure since at least 1143, when three were burned in Bonn.95 Eckbert of Schönau reported his theological argument with these heretics, most of whom were either hounded out of their homes or burned.96 In 1157, a provincial council held by Archbishop Samson of Reims condemned the Piphiles, heretics who were described as Manichees and were consequently most likely to be dualists.97 In the early 1160s, King Henry II threw a number of heretics out of England after first branding them, while some form of dualist heresy also flourished in Lombardy from the beginning of the Alexandrine schism.98 While both heretics and uncontrollable mercenaries reflect widespread problems, the most likely source of the conciliar canon against heresy is the legation of Peter of Pavia, cardinal-priest of St Chrysogonus. Peter’s 91

92 93

94

95

96 97

98

J. D. Hosler, ‘Revisiting mercenaries under Henry FitzEmpress, 1167–88’, in J. France (ed.), Mercenaries and Paid Men: The Mercenary Identity in the Middle Ages (Leiden, 2008), pp. 33–42 at 36–8. William of Malmesbury, Historia Novella, ed. E. King, 2nd edn (Oxford, 1998), p. 32. Bernard of Clairvaux’s 1141 preaching tour had focussed on opposing Henry of Lausanne: R. I. Moore, ‘St Bernard’s mission to the Languedoc in 1145’, BIHR, 47 (1974), 1–10; B. Hamilton, ‘Wisdom from the East: the reception by the Cathars of Eastern dualist texts’, in P. Biller and A. Hudson (eds.), Heresy and Literacy, 1000–1530 (Cambridge, 1994), pp. 38–60 at 44–5; Vauchez, ‘Les origines de l’hérésie cathare’, pp. 1027–8. Bernard Hamilton has also argued that heresy in the Languedoc dated from the 1170s and the Council of St-Félix: ‘The Cathar Council of Saint-Félix reconsidered’, Archivum Fratrum Praedicatorum, 48 (1978), 25–53 at 30–4. R. I. Moore, The Formation of a Persecuting Society, 2nd edn (Oxford, 2006), esp. pp. 158–69, on the period where Moore talks of contemporary insecurity; M. Pegg, ‘On Cathars, Albigenses, and good men of Languedoc’, Journal of Medieval History, 27 (2001), 181–95. M. Lambert, The Cathars (Oxford, 1998), p. 20; Annales Brunwilarenses, MGH, Scriptores, 16 (Hanover, 1859), p. 727 for 1143. See also M. Barber, ‘Northern Catharism’, in M. Frassetto (ed.), Heresy and the Persecuting Society: Essays in Honour of R. I. Moore, Studies in the history of Christian tradition, 131 (Leiden, 2006), pp. 115–37 at 118–20 on Catharism in the north of France. Lambert, Cathars, pp. 20–3. Mansi, 21.843; P. Demouy, ‘Synodes diocésains et conciles provinciaux à Reims et en Belgique seconde aux XIe–XIIIe siècles’, in G. Clause, S. Guilbert, and M. Vaïsse (eds.), La Champagne et ses administrations à travers le temps. Actes du colloque d’histoire régionale, Reims – Châlons-sur-Marne, 4–6 juin 1987 (Paris, 1990), pp. 93–112 at 100; O. Pontal, Les conciles de la France Capétienne, jusqu’en 1215 (Paris, 1995), p. 335. Lambert, Cathars, p. 87.

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Lateran III and Twelfth-Century Crises travels had begun in northern France, but from 1177 he moved south.99 By July 1178, he was adjudicating a dispute involving Bishop Peter of Périgueux, and a letter detailing his experiences with the Cathars has survived.100 An initial plea had been directed to Henry de Marcy, abbot of Clairvaux, although Howden portrayed the papal legation as a secular mission, whereby Louis VII and Henry II ‘sent’ (miserunt) Peter and several other delegates to the south of France.101 The others included two bishops from Henry II’s French kingdoms in the delegation alongside Henry of Marcy. Peter of Pavia was never in Henry’s territory, and it is difficult to imagine a papal legate being sent anywhere by a secular power.102 If anything, Alexander’s letters emphasise the distinction between the two sections of the canon. Apart from this mission, Alexander’s only decretal on heresy went to the schools at Paris and focussed on the controversy over Christ’s nature.103 It had nothing to do with the dualist beliefs of the Cathars or other heretics condemned at the council, while the title of the Breviarium which includes both c. 27 and c. 4 from Alexander’s council at Tours, which condemned heretics around Toulouse, is filled with extracts from older sources including writings by Leo I, Gregory I, and Augustine.104 In contrast, Alexander’s letters concerning mercenaries reflect a more widespread problem. Henry of France had appealed to Alexander over the depredations on his land.105 Since the appeal focussed on the dispute that had caused the soldiers’ and mercenaries’ actions, Henry would surely have mentioned those actions in his letter. In a letter to the abbots of St Remi and Clairvaux, Alexander cited an abbot who blamed Brabanters for the poor state of his monastery.106 While the first part of the canon probably represents a reaction to a widespread problem, it appears to have strong local roots including the legation. In contrast, 99

100 101

102 104

105

Weiß, Die Urkunden, pp. 254–9 shows Peter starting in Arras; on p. 258, he moves to Langres and by 1178 he was in southern France. Weiß, Die Urkunden, p. 259. Howden, Gesta, 1.199; Weiß, Die Urkunden, pp. 258 and on Henry de Marcy, pp. 272–4; C. Taylor, Heresy in Medieval France: Dualism in Aquitaine and the Agenais, 1000–1249 (Woodbridge, 2005), pp. 155–6, suggests that the mission went to Henry II as Duke of Aquitaine. Howden, Chronica, 2.151, and other accounts mention Raymond of Toulouse writing to the Cistercian Chapter-general; see C. Thouzellier, Catharisme et Valdéisme en Languedoc (Paris, 1969), pp. 19–21 and J. Duvernoy, Le catharisme (2 vols, Paris, 1976–7), 2.219–21. See S. Ragg, Ketzer und Recht. Die weltliche Ketzergesetzgebung des Hochmittelalters unter dem Einfluß des römischen und kanonischen Rechts, MGH, Studien und Texte, 37 (Hanover, 2006), pp. 203–4, and 203–8, on Raymond of Toulouse’s own activities against the Cathars. Taylor, Heresy in Medieval France, p. 155. 103 WH 223: JL 12785 = X 5.7.7. 1 Comp 5.6: Quinque Compilationes antiquae: nec non collectio canonum Lipsiensis, ed. E. Friedberg (Leipzig, 1882), pp. 55–6; Tours c. 4 = Mansi, 21.1177. WH – : JL – = Martène-Durand, 2.866. 106 WH – : JL 12074 = Sirmond, Opera, 3.881.

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Disputes, Decretals, and the 1179 Conciliar Canons the second part reflects a genuinely European matter about which the pope had expressed more direct concern during interactions with extra-curial clergy. These three canons, therefore, all emerged from broad issues with which the curia would have been familiar before the council. With the exception of c. 1, Alexander had been forced to act as either arbiter or authority on both the broad and specific issues underpinning these canons in the years leading up to 1179, and for obvious reasons that stipulation had personal relevance to the pontiff. In the cases of both c. 2 and c. 27, moreover, Alexander’s legates provided him with up-to-date information on the difficulties faced by prelates in the localities while they themselves responded to local requests for aid (c. 27) and adjudication (c. 2). These were not only live issues, but ones where Alexander’s actions as judge had informed his opinion. The exception to this general rule is therefore the first part of c. 27 concerning heresy which has at best a slender connection with Alexandrine letters. lateran iii and reform In several cases, the 1179 canons are explicitly responding to problems that, although experienced across Christendom, were nevertheless not as overarching as the schism and heresy. Several of these themes appear time and again in reference to the reform papacy – such as simony, lay investiture, and clerical celibacy – or to other issues which had become an increasing focus over the course of the twelfth century. Examples such as c. 18, on the licence to teach or licentia docendi and the provision of free schooling for poor children and clerics, repeated older ideas in a muchrevised format. As a brief example, the old issue of lay involvement in ecclesiastical affairs appears once in the 1179 canons as c. 14 and once in the form of a new ruling on the ius patronatus.107 The right of patronage allowed for the founder of a church to present a priest to a benefice; in the 1179 canons it was stipulated that those who possessed the ius patronatus of a church must accept a single candidate for each church. The decree also included a limit, probably of six months, within which the benefice had to be filled in cases where the right of patronage was disputed.108 Alexander disliked dividing benefices: a canon promulgated in 1163 at Tours had criticised the practice, and the pope also referred to it in his 107

108

3 Lat. c. 14 = COD3, pp. 218–9; COGD, 2.137–8; S. Wood, The Proprietary Church in the Middle Ages (Oxford, 2008), pp. 896–904; for c. 17, see n. 108 below. 3 Lat. c. 17 = COD3, p. 220; COGD, 2.140, but see pp. 166-7 below.

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Lateran III and Reform letters.109 Although the division of benefices is lacking from the 1179 decrees, Alexander seems to have taken a particularly strong line on the subject of ius patronatus. At the same time, scholarly debate continues over the precise relationship between the 1179 council and the assize of darrein presentment in England, with van Caenegem suggesting that the council influenced the assize and Landau arguing the reverse, that an English custom – i.e. darrein presentment – was the basis for both Alexander’s decretal Consultationibus and the canon.110 Tate posited that while darrein presentment itself post-dated the council, it used an earlier English custom.111 But there appears to have been a broader uncertainty in England, at least, over the function of the ius patronatus. As van Caenegem noted regarding darrein presentment, ‘the indecisive period 1165–80 is over and definite attempts are now made to deal with the question of advowson and presentation’.112 Since four English bishops were present at the 1179 council, the ‘English custom’ to which Alexander referred in his 1173–6 letter could easily have featured in the debates surrounding the canons at the 1179 council.113 Schools and Teaching, c. 18 Quoniam in ecclesia Dei, c. 18, laid out a series of rules for the governance of the schools.114 In particular, the licentia docendi was not to be sold, and cathedrals were to provide a benefice for the magister scolarum so that he could teach clerics and poor children for free. Baldwin saw the canon as the final element in a ‘papal campaign against academic simony’ that was ‘sufficiently formulated by 1179 to provide canonists and theologians with clear guidance’; Ferruolo, in contrast, believed that there was an implicit give and take in the situation, whereby the pope would support the schools and ‘in return, the schools would serve the interest of papacy’.115 Although such an approach would seem overly cynical, even for Alexander, a deliberate papal agenda is still widely perceived: 109

110

111 112

113 115

Tours c. 1 = Mansi, 21.1178; e.g. WH – : JL 12009 = Martène-Durand 2.901–2; WH 102: JL 13892 = X 3.5.11. R. C. van Caenegem, Royal Writs in England from the Conquest to Glanville: Studies in the Early History of the Common Law, Selden Society, 77 (London, 1959), pp. 330–1; P. Landau, Jus patronatus. Studien zur Entwicklung des Patronats im Dekretalenrecht und der Kanonistik des 12. und 13. Jahrhunderts, Forschungen zur kirchlichen Rechtsgeschichte und zum Kirchenrecht, 12 (Cologne, 1975), pp. 195–6. Tate, ‘Third Lateran Council’, p. 589. Van Caenegem, Royal Writs, p. 333, citing J. W. Gray, ‘The ius praesentandi in England from the Constitutions of Clarendon to Bracton’, EHR, 67 (1952), 485–7. WH 184: JL 12636 = X 1.29.10. 114 3 Lat. c. 18 = COD3, p. 220; COGD, 2.140–1. Baldwin, Masters, Princes and Merchants, p. 123; S. C. Ferruolo, The Origins of the University of Paris, 1100–1215 (Stanford, 1985), p. 283.

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Disputes, Decretals, and the 1179 Conciliar Canons Baldwin, who considered the canon as a whole, saw ‘a determined campaign against charging for the licence’, unlike Post, who split it into a section on selling the licence to teach and a section on providing a benefice for the magister scolarum and noted that ‘the motive of free education did not have much weight in causing the papacy to interfere in the matter of the licence’.116 Baldwin argued that the separation was unnecessary, since a connection between the two was subsequently assumed by both canonists and theologians.117 Yet the approach taken by the canonists and that of the papacy are not necessarily identical, and should not be combined on the basis of the canon’s later use. Baldwin’s conflation of the two sections therefore obscures their different origins. Alexander may well have incorporated a provision for a prebend in order to prevent a magister scolarum from charging for the licence, but the canon explicitly states that it is to stop him charging fees for his own teaching services.118 The two were not entirely separate, but it is also notable that while multiple Alexandrine letters survive concerning the sale of the licence, free schooling appears far less frequently despite a more ancient pedigree.119 Quanto Gallicana is Alexander’s best-known letter on the subject of the licence. Sent to the bishops and archbishops of France, it directly stipulated that no charge should be made for the licence to teach.120 It was preceded, in 1166–7, by a letter to the bishop of Châlons-enChampagne, which prohibited charging for the right to teach.121 The problem was far from limited, as Gaines Post suggested:122 a brief excerpt found in the Dunelmensis prima collection also prohibited charging for the licentia docendi,123 and Alexander’s decretal Viris ecclesiasticis to Richard of Ilchester, bishop of Winchester supports Richard’s prohibition that ‘anything be exacted from or promised to anyone in return for the licence to teach’. Any master who infringed the prohibition was to be removed, and Richard was to fill the vacant positions with ‘honest and discreet’ 116

117 118 119 120 122 123

Baldwin, Masters, Princes and Merchants, pp. 122–4, at 122; G. Post, ‘Alexander III, the licentia docendi and the rise of the universities’, Anniversary Essays in Medieval History by Students of Charles Homer Haskins (New York, 1929), pp. 255–77 at 257. Baldwin, Masters, Princes and Merchants, p. 123 n. 45. 3 Lat. c. 18 = COD3, p. 220; COGD, 2.140. A. Murray, Reason and Society in the Middle Ages, 2nd edn (Oxford, 1986), pp. 218–19. WH 766: JL 11925 = X 5.5.3. 121 WH – : JL 11329 = Martène-Durand, 2.730. Post, ‘Alexander III and the licentia docendi’, p. 260 suggests that France was the focal point. WH 638: JL – = Ineditae, 99, p. 174. The editors of the Ineditae suggested that ‘it has the character of a papal decree rather than a decretal letter’ due to its terse and explicit statement of the prohibition. The first section of Dunelmensis may be Italian in origin: see P. V. Aimone-Braida, ‘Some remarks on a critical edition of the Summa of Simon of Bisignano’, Proceedings Washington, pp. 191–206 at 199–200.

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Lateran III and Reform men.124 Yet in 1174, Alexander limited Peter Comestor, chancellor of the Parisian schools, to ‘modest’ exactions, implying that he was permitted to charge something.125 Although Alexander’s provisions for free education are limited, several earlier authorities rehearsed the prohibition. Much earlier, Theodulf of Orléans issued a ruling in favour of free schooling;126 so too the Council of London in 1138, and Gregory VII at his synod in Rome in 1079.127 On the one hand, therefore, there is ample evidence that Alexander had considered the claims of the magistri scolarum to charge for the licence, and decided against them except in specific circumstances. On the other, the provision of free schooling seems to repeat much earlier precedents, but with little obvious contemporary stimulus. Behind both sections of the canon lay the same fundamental principle, which may explain why Baldwin and later lawyers combined the two. Knowledge of letters was a gift of God, to be freely given and received.128 Alexander expounded it clearly in a letter to Richard of Dover: Since the treasure of knowledge ought to be free and widely available, according to the principle that what you have freely received, freely give, we command through apostolic writings that neither should you exact money for ruling the schools nor should you permit anyone else to exact such a sum.129

Alexander mentioned that tenet again in a letter to Cardinal Peter of Pavia during his legation in France. He ‘order[ed] that those who wish to teach should demand nothing pro regendis scolis’.130 Here, he was referring to a squabble in the schools at Paris. Alexander’s language was vague: he refers to ‘ruling’ the schools, which in a twelfth-century context could mean either the magistri scolarum or the provision of general education. What were Alexander’s motivations? Earlier in his pontificate, when requesting a prebend for a cleric, he had noted that it was ‘shameful’ that ‘men of the scholarly discipline should have no benefice from which they 124 125

126

127 128

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WH 691b: JL 14157 = X 5.5.2. WH – : JL 12397 = Bouquet, 15.951–2; Baldwin, Masters, Princes and Merchants, p. 123; Post, ‘Alexander III and the licentia docendi’, pp. 272–3. Theodulf of Orléans, Statutes, ed. P. Brommer, MGH, Capitula episcoporum, 1 (Hanover, 1984), 20, p. 116. My thanks to Jason Berg for pointing out the statutes to me. Councils & Synods, 1.778; Baldwin, Masters, Princes and Merchants, p. 123 n. 42. Matthew 10:8. For a commentary on the use of this principle in the early thirteenth century, see G. Post, K. Giocarinis, and R. Kay, ‘The medieval heritage of a humanistic ideal: “Scientia donum Dei est, unde vendi non potest”’, Traditio, 11 (1955), 195–234 at 198–201. WH 1087: JL – = Brid. 36, Oxford, Bodleian Library, Bodley 357, fol. 93va: Quia tesaurus scientie gratis debet et liberaliter exhiberi, iuxta illud gratis accepistis gratis date, fr. v. per a. s. p. m. quatinus pro scolis regendis nec uos pecuniam exigatis, nec quemquam exigere permittatis. See pp. 54–5. WH – : JL 12397 = Bouquet, 15.951–2. For the context, see Baldwin, Masters, Princes and Merchants, p. 123.

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Disputes, Decretals, and the 1179 Conciliar Canons can properly gather the necessities of life’.131 He seems to have taken a practical outlook on this: elsewhere he refers to a northern French custom which provided for a benefice for the magister scolarum.132 The 1179 canons also stated that any cleric appointed to a position should have a benefice to support himself, apportioning responsibility for the provision of that benefice to the bishop.133 These measures would have been useful against simony in both its ancient and contemporary senses. But in the canon, Alexander does not forbid magistri to charge for teaching. Free education was only for clerks and poor children. Alexander’s letters demonstrate the importance of the licentia docendi in contemporary life. They are either responsa to episcopal consultationes or are linked to appeals. Although Alexander’s stance was not entirely consistent throughout his pontificate – as evidenced by his permission for Peter Comestor to charge – the 1179 canon provided an explicit statement of ideas to which the pontiff had returned many times. Whether it provided a formal statement of an Alexandrine agenda is a different matter. Several more delicate problems from Alexander’s letters were not included. Alexander had commented approvingly on a French custom whereby canons who studied away from their house were prebendaries but with half the usual income; the remainder was used for the clerics of their house,134 and a similar compromise was reached in northern Italy.135 These provided students with an income, but were not mentioned in the 1179 canon. A letter to Henry of France, archbishop of Reims also referred to the difficulties faced by students at the schools: in this case, a group had fallen foul of an irate priest who had attacked them, while Sicut dignum est to Bartholomew of Exeter had modified Si quis suadente to allow for a master to strike an unruly pupil.136 In the canon, these nuances were omitted: instead, Alexander simply addressed the broad point of the sale of the licence and the provision of an income for the magister scolarum. Post’s general argument, that Quoniam in ecclesia Dei ‘was not a factor in the rise of Bologna, Montpellier, and Oxford; nor, of course, in the rise or history of Salerno’, stands firm.137 It is perhaps taking it too far to suggest, however, that Alexander’s ‘legislation aimed at stopping feudal practices in the Church, at centralizing papal authority’. Responding as they did to particular issues, Alexander could have taken the opportunity to expand papal authority, but the tone of the decree instead makes it the responsibility of the local prelate. Instead, in c. 18, he 131 133 135 136 137

WH – : JL 12423 = Martène-Durand, 2.806. 132 WH 526: JL – = Brug. 20.3. 3 Lat. c. 5 = COD3, p. 214; COGD, 2.131. 134 WH – : JL 13751 = PUF n.F., 3, 89, p. 148. WH – : JL 12864 = IP 5.2, p. 220.6. WH – : JL 11934 = Sirmond, Opera, 3.884; WH 929: JL 12842 = X 5.12.6, X 39.1–3. Post, ‘Alexander III and the Licentia docendi’, p. 268.

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Lateran III and Reform restated two important principles – the right to free education for the poor and for clerics, and the prohibition of charging for the licentia docendi – without adding those nuances that had arisen through individual cases. Benefices, cc. 5, 13, 14.1 As well as these examples, three canons of the 1179 council are concerned with the provision of benefices. The first, c. 5, specifies that a bishop is responsible for providing a cleric with a suitable income, if he is ordained without a title. The remaining two prohibit pluralism (i.e. the holding of multiple benefices). Previous condemnations of both pluralism and absolute ordination existed, and even entered into Gratian’s Decretum; they can thus be associated, at least in part, with the contemporary reform movement.138 The close relationship between the canons’ contents, and in particular the connection between their contents noted by the decretists,139 further suggests that they be considered together. Episcopus si aliquem, c. 5 of the 1179 council, does appear in Alexander’s letters. In part, it taps into a broader discussion of papal provision of benefices. Papal requests asking bishops to appoint clerics to a benefice were to become a source of major discord from the thirteenth century and, as Pennington has pointed out, even in the twelfth century bishops were consistently attempting to sidestep their responsibilities.140 Although Alexander did attempt to force clerics on bishops, his letters also demonstrate his responses to prelates’ broken promises. In WH 867, for example, Alexander asked the archbishop of Bordeaux to provide a benefice for ‘Master James’, who was a canon in the archbishop’s cathedral but had insufficient means to support himself.141 Alexander’s letter, which was ultimately included in the Liber Extra in typically mangled form,142 notes that the archbishop had promised James a benefice but then broken the promise. Rather than chastising the archbishop over promising a benefice that was not vacant, a practice also forbidden at the 1179 council, Alexander rebuked him for not fulfilling his promise ‘since it is not fit that he lacks a benefice who is known 138

139 140

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S. Schoenig, ‘Withholding the pallium as a tool of the Reform’, Proceedings Esztergom, pp. 577–88, at 577 for Nicholas II’s refusal to bestow the pallium on Aldred, pluralist bishop of Worcester and archbishop of York. See pp. 103–8 below. G. Barraclough, Papal Provisions (Oxford, 1935), pp. 8–9; K. Pennington, Pope and Bishops: The Papal Monarchy in the Twelfth and Thirteenth Centuries (Philadelphia, 1984), pp. 115–53 at pp. 117–19, giving the example of Master Herveus. WH 867: JL 13800 = X 3.5.9. 142 Compare X 3.5.9 with Sang. 7.37.

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Disputes, Decretals, and the 1179 Conciliar Canons to be received as a canon’.143 James probably held an office of some kind, and Alexander was supporting him in his claim for an income. Providing benefices was also the subject of cc. 13 and 14.1 of the canons, except that there the problem was that clerics had too many, rather than too few.144 Such pluralism was sometimes a subsidiary concern that emerged later: WH 132c, for example, is in the Appendix Concilii Lateranensis at 29.6 and concerns the alienation of church goods. Raymond of Peñafort edited out the section concerning alienations, leaving the comment that ‘it is against all reason that one cleric or person should obtain many dignities in one or many churches’, demonstrating which section was his focus.145 WH 274 to the archbishop of Genoa reprimands him for permitting ‘the custom of the Gallic Church, which is not followed by us since one cleric is received to many benefices against the institutes of the holy canons’, although Alexander seemed somewhat resigned to the problem.146 A decretal sent to the bishop of Châlons-enChampagne demonstrates a dispute arriving at the curia through appeal. J., a priest, had been in possession of two churches; knowing this, an archdeacon had deprived him of one benefice and given it to a different priest, G.; J. had then appealed to the metropolitan and been restored to the benefice. As a result, G. had appealed to the curia. To complicate the matter, when J. refused to resign his benefice, he was excommunicated by the archdeacon. Alexander’s instructions to the bishop were clear: J. was to be absolved of the excommunication. The bishop ‘should not delay in assigning the abovementioned J. to the aforementioned church that he wanted, with all its appurtenances, and the other to G., if he does not have a church’.147 As well as presenting a particularly detailed example of the mechanisms of the appeals process, the letter demonstrates Alexander’s approach to pluralism: a cleric should not have more than one church. The same applied to archdeaconries, according to a letter to the archbishop of Bordeaux.148 While Alexander consistently applied the fundamental principle that a cleric should not have more than one benefice, several of his rescripts suggest that it was not necessarily that simple. After the council, the Summa Lipsiensis would note the difficulties created by cc. 5 and 13/14.1, but Alexander had already recognised these problems.149 In a decretal dated 1174–6, the pope suggested, in a manner mimicked later by the canonists, that an important consideration was the value of 143 144 145 147 149

WH 867: JL 13800 = X 3.5.9. 3 Lat. c. 13 = COD3, p. 218, COGD, 2.137; 3 Lat. c. 14 = COD3, p. 218, COGD, 2.137–8. WH 132c: JL 13587 = App. 29.6, X 3.5.13. 146 WH 274: JL 13966 = X 3.5.15. WH 858: JL 14168 = X 3.5.7. 148 WH 191d: JL 13790 = X 3.5.14. See Chapter 5, pp. 236–7 below.

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Lateran III and Reform the benefice and whether a cleric could sustain himself on its income. When the pope wrote to the bishops requesting that a benefice be given to a cleric, two factors could overrule the instruction: if a benefice could not be provided ‘without scandal’, and if the cleric in question already held a benefice that could sustain him, which he had not divulged in his initial request.150 While this decretal also demonstrates the responsive nature of papal provisions, since the unnamed cleric had petitioned Alexander to plead his case, it provides a useful tie between cc. 5, 13, and 14.1 and demonstrates the principles underpinning all three canons. It also, conveniently, suggests the limitations on papal actions: the pope could only act according to the information that he had available. Tournaments, c. 20 Canon 20 of the 1179 council concerned tournaments. It explicitly denounced knights who took part, and denied Christian burial to those who died in a tournament. Papal denunciations of tourneys began in 1130 at Clermont, and Innocent II repeated the strictures at Reims and the Lateran.151 Crouch noted a potential link between the 1130 and 1131 prohibitions and Capetian pressure: Louis VI was a known opponent.152 Certainly by the 1180s the tournament was a well-established pseudo-war game, and in November 1179 a large tournament took place in Lagny-surMarne to celebrate the coronation of Philip II.153 Some kings disliked the practice, as it had the potential to lead to disorder: Richard I’s writ licensing tournaments, for example, stressed that it was issued to help keep the peace, although the replication of war for military training purposes was also surely a motive.154 Later popes would link the prohibition of tournaments to the

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WH 317: JL 13994 = X 3.5.6; cf. H. Dondorp, ‘Review of papal rescripts in the twelfth century, I’, ZRG Kan. Abt., 76 (1990), 172–253 at 194–5, using WH 18: JL 13889 = X 1.29.12. Clermont (1130) c. 9 = Mansi, 21. 439; 2 Lat. c. 14 = COD3, p. 200; Brett and Somerville, ‘Transmission’, p. 267; Reims (1148) c. 12 = Mansi 21.716–7; M. Parisse, ‘Le tournoi en France, des origines à la fin du XIIIe siècle’, in J. Fleckenstein (ed.), Das ritterliche Turnier im Mittelalter: Beiträge zu einer vergleichenden Formen- und Verhaltensgeschichte des Rittertums, Veröffentlichungen des Max-Planck Instituts für Geschichte, 80 (Göttingen, 1985), pp. 173–211 at 183–4. D. Crouch, Tournament (London, 2005), pp. 9–10; Parisse, ‘Le tournoi’, p. 183; S. Krüger, ‘Das kirchliche Turnierverbot im Mittelalter’, in Fleckenstein (ed.), Das ritterliche Turnier im Mittelalter: Beiträge zu einer vergleichenden Formen- und Verhaltensgeschichte des Rittertums, Veröffentlichungen des Max-Planck Instituts für Geschichte, 80 (Göttingen, 1985), pp. 401–22 at 402. The History of William Marshal, ed. A. J. Holden, trans. S. Gregory, notes by D. Crouch, AngloNorman Text Society, Occasional Publications, 4–6 (3 vols, London, 2002–6), l. 4457–60, 1.227; see also the notes to l. 4457, 3.84–5. For a recent general history, E. Oksanen, Flanders and the Anglo-Norman World (Cambridge, 2012), pp. 114–44, and on ecclesiastical hostility, pp. 119–20. J. Barker and M. Keen, ‘The medieval English kings and the tournament’, in Fleckenstein (ed.), Das ritterliche Turnier im Mittelalter: Beiträge zu einer vergleichenden Formen- und Verhaltensgeschichte

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Disputes, Decretals, and the 1179 Conciliar Canons need to safeguard the Holy Land, but that does not appear to have been the case earlier in the twelfth century.155 Eugenius III repeated Innocent’s conciliar canon against tournaments at Reims in 1148, but no mention was made in 1163.156 The decree’s absence is unsurprising given the limited nature of the Tours canons: between eight and ten were promulgated. However, the first surviving fragments demonstrating local clerical interest in the ban on tournaments date to between 1163 and 1179, making it a plausible inference that Alexander did not believe a repeat of the canon to be necessary in 1163, but did by the time of the Lateran council in 1179. Barker pointed to an 1175 account of the archbishop of Magdeburg receiving requests for the relaxation of ecclesiastical penalties on sixteen knights who died in tournaments.157 The chronicle narrates one case where the archbishop relented after the family assured him that the knight had received the last rites and made his last confession; even then papal confirmation was required before the archbishop would permit ecclesiastical burial. Since the schism was still in full force, it is likely that the pope referred to was in fact Calixtus III, providing a rare parallel between the Empire and the Alexandrine lands, but it also demonstrates why the papacy opposed the practice. Those wounded in tournaments could die unshriven. Evidence of Alexander’s knowledge of tournament deaths comes from two widely different sources. One is a canonically transmitted decretal that ultimately entered the Liber Extra, while the other is a noncanonically transmitted letter to Henry, archbishop of Reims. Both letters petition Alexander to allow ecclesiastical burial to those who died at a tournament. In the letter to Henry, Alexander notes the pressure exerted on him to permit a knight, fatally wounded at a tournament, to receive Christian burial. Henry and the archbishop of Canterbury requested that the knight be allowed ecclesiastical burial. Alexander turned the request down with seeming regret, on the basis that many kings, princes, and barons wrote to him with exactly the same request, and he worried that allowing a single burial would undermine the overall custom.158 Alexander sent the letter from Bourges on 23 August 1163, several months after the council at Tours.

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des Rittertums, Veröffentlichungen des Max-Planck Instituts für Geschichte, 80 (Göttingen, 1985), pp. 212–28 at 213–15. J. Barker, The Tournament in England, 1100–1400 (Woodbridge, 1986), p. 76, discussing JL 16944; Howden, Chronica, 3.202. Mansi, 21.716–17. Barker, The Tournament, p. 74; Chronicon Montis Sereni, ed. E. Ebrenfeuchter, MGH, Scriptores, 23 (Hanover, 1874), p. 155. WH – : JL 10929 = Martène-Durand, 2.674.

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Lateran III and Reform The decretal, in contrast, is no more narrowly datable than Alexander’s pontificate, but adds depth.159 It has survived because it explains a loophole. Sent to the bishop of Amiens, it considers the case of I., a knight who died after being thrown from his horse while at a tournament. Although present, I. had not participated in the tournament and had received the viaticum before his death. Alexander clarified that those who died participating in a tournament should be denied ecclesiastical burial. But I. had been a bystander and had received the last rites, so was permitted ecclesiastical burial. It was a tricky problem. When combined with the letter sent to Henry and the report in the annals, though, it demonstrates that the burial of knights who died in tournament remained a current problem. These examples serve to demonstrate that despite earlier conciliar decrees, bishops continued to seek papal adjudication on the treatment of knights who died at tournaments. Clerical opposition to tournaments was ineffective if, in some cases, explicit. At the same time, the 1179 canon does not restate the particular allowances Alexander had made in WH 23. Since the decretal does not mention the council as an authority, and Alexander had been pontiff for twenty years before the council and would be for only two after, it is a reasonable assumption that WH 23 was sent before 1179. Yet, in his conciliar canon, Alexander repeated the canon as it had been promulgated before, adding none of the nuances that he had introduced when writing to the bishop of Amiens that had made the letter so attractive to the canonists. Consequently, the 1179 conciliar canon instead appears as a general restatement of the prohibition of tournaments. Jewish-Christian Relations, c. 26 Lateran III has also been singled out as an important point in contemporary Christian-Jewish relations. Canon 26 of the council excommunicated any who lived with Jews or Saracens, while simultaneously prohibiting Jews from acting as witnesses against Christians and 159

WH 23: JL 13733 = X 5.13.2 to the bishop of Amiens. Barker, The Tournament, p. 75, suggests that the writer was Gregory IX, but Holtzmann believed it to be Alexander III: www.kuttnerinstitute.jura.uni-muenchen.de/kartei/whr0026.gif (last accessed 1 September 2018). The tradition of the ascription is uncertain, but all three collections are northern French, while Brugensis, the earliest to include the letter, is generally accurate in its inscriptions and, according to Falkenstein, had several local collections of letters as its sources: L. Falkenstein, ‘Zu Entstehungsort und Redaktor der Collectio Brugensis’, Proceedings San Diego, pp. 117–51 at 124, citing W. Holtzmann, ‘Über die Vatikanische Handschrift der “Collectio Brugensis” (Ottob.lat. 3027)’, in Collectanea Vaticana in honorem Anselmi M.Card. Albareda, Studi e testi, 219 (Vatican City, 1962), pp. 391–414 at 403–4.

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Disputes, Decretals, and the 1179 Conciliar Canons protecting the goods of Christian converts.160 It forms part of Moore’s ‘persecuting society’, an attempt to answer the recurring question of why Jewish people and their culture were persecuted during the medieval period. The importance of the twelfth century here has been restated many times; the emergence of anti-Jewish polemics demonstrates a profoundly unlikable aspect to a century that is characterised as an intellectual ‘renaissance’, renovatio, or ‘renewal’ and a time of social and economic change.161 The particular role of the papacy has not always been a central issue: Chazan pointed instead to the importance of secular powers’ protection of Jews during the twelfth century.162 Yet the papal role in these debates is critical, particularly since letters from later popes provide notable sources for negative attitudes towards Jews.163 Referring to Alexander’s letters, Watt commented that ‘originality and novelty is not the hallmark of this Alexandrine legislation’ and he linked both letters and conciliar canon to earlier pontiffs.164 The repetition of Gregory the Great’s Sicut Iudeis is particularly pertinent.165 Grayzel, however, suggested that Alexander’s pontificate marked a watershed, although he perceptively noted that ‘the severest restrictions imposed by Pope Alexander were in response to urging by bishops and archbishops’ and suggested that Alexander in fact protected Jews from episcopal exactions.166 Recently, Anna Sapir Abulafia has emphasised that during the twelfth century, the definition of the Christian-Jewish relationship along the lines laid out by St Augustine was revitalised: Jews ‘provided [witness] to Christian truth by carrying the books of the Old Testament’.167 Such a reinterpretation would certainly fit alongside the spirit of a canon more concerned with regulating how Jews and Christians 160 161

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3 Lat. c. 26 = COD3, pp. 223–4; COGD, 2.145. A. S. Abulafia, ‘Jewish-Christian co-existence in medieval Europe’, Journal of Medieval History, 23 (1993), 179–89. R. Chazan, ‘The Jews in Europe and the Mediterranean basin’, in D. Luscombe and J. RileySmith (eds.), The New Cambridge Medieval History, Volume 4: c. 1024–1198, Part 1 (Cambridge, 2004), pp. 623–57 at 633–4, citing the 1148 charter of Ramón Berenguer IV for Tortosa and p. 638 citing Louis VII’s 1171 statement of support. R. Chazan, ‘Innocent III and the Jews’, in J. C. Moore (ed.), Innocent III and his World (Aldershot, 1999), pp. 187–204 at 189; S. Grayzel, ‘Pope Alexander III and the Jews’, in Salo Wittmayer Baron, Jubilee Volume on the Occasion of his Eightieth Birthday (New York, 1974), pp. 555–72 at 570–1, compares Innocent III and Alexander III. J. A. Watt, ‘The Gregorian Decretals’, SCH, 29 (1992), 93–105 at 98, drawing a comparison with the originality seen under Innocent III. See also K. R. Stow, Alienated Minority: The Jews of Medieval Latin Europe (Cambridge, MA, 1992), pp. 246–7, who draws attention to the precedents in Burchard of Worms and Ivo of Chartres. On Sicut Iudeis, see A. S. Abulafia, Christians and Jews in the Twelfth-Century Renaissance (London, 1995), p. 66. Grayzel, ‘Alexander III and the Jews’, p. 571. A. S. Abulafia, Christian-Jewish Relations, 1000–1300 (Harlow, 2011), pp. 30, 195–8.

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Lateran III and Reform lived together than presenting a negative perspective on contemporary Jewish society, and that explicitly stated that Jews should be subject to Christians.168 In common with a number of other canons of the 1179 council, Jews do not feature overwhelmingly in Alexander’s surviving letters. The canonists avoided specific regulations for Jewish life except for those occasions where Christians were involved, and this carried over into the decretal collections. Only in Brugensis, Francofurtana, Cassellana, and Cheltenhamensis are there sections titled ‘concerning Jews’; in Appendix, Bambergensis, Tanner, Abrincensis, Lipsiensis, and in most Breviarium manuscripts the title is the narrower ‘concerning Jews, and that Christians should not be in their service’, which supports Abulafia’s hypothesis.169 Brugensis’ three letters on Jews concern Christian wet nurses for Jewish children,170 the protection of Jewish communities,171 and the construction of new synagogues172 and the title ends with the 1179 canon. The Breviarium contains more chapters on heretics (eleven) than it does on Jews and Saracens combined (seven, one of which is the c. 24 of the 1179 council) even if six of those were earlier extracts.173 For the collectors of the decretals, Jews were a minor part of Christian life. What remains in the collections is nevertheless telling. Alexander knew he needed to protect converts, for example. A letter preserved in Dertusensis shows him attempting to prevent Jews who converted to Christianity from losing their movable goods after their conversion.174 A letter of Alexander to Henry of Reims ordered the archbishop to reinstate the convert Peter to a benefice of which he had been deprived. Alexander’s letter implied that Peter’s former religion was a reason for that deprivation, for he told Henry that ‘those who, neglecting Judaism, have converted to our ways, are to be treated humanely and kindly, for they despair easily’.175 In the Dertusensis letter, Alexander noted that ‘judges of the provinces should not permit 168

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3 Lat. c. 26 = COD3, p. 224; COGD, 2.145. See also S. Simonsohn (ed.), The Apostolic See and the Jews, 492–1404, Pontifical Institute of Mediaeval Studies, Studies and Texts, 94 (Toronto, 1988), pp. 50–62, for letters of Alexander III concerning the Jews. S. Kuttner (ed.), Index titulorum decretalium ex collectionibus tam privatis quam publicis conscriptus, Ius romanorum Medii Aevi, Subsidia, 2 (Milan, 1977), pp. 127–8. WH 624b: JL 13974 = X 2.20.23. 171 WH 941: JL 13973 = X 5.6.9. WH 195b: JL 14345 = X 5.6.7. Quinque Compilationes, ed. Friedberg, pp. 55–6; 1 Comp. 5.5, ‘De Iudeis et Sarracenis et eorum servis’, includes four pre-Gratian extracts, 3 Lat. cc. 26 and 24, and WH 811: JL 13975 = X 5.6.4 to the bishop of Marseilles; 1 Comp. 5.6, ‘De hereticis’, includes six pre-Gratian extracts, but supplements them with 3 Lat. c. 27, Tours c. 4, and Lucius III’s Ad abolendam, WH 13: JL 15109 = X 5.7.9. WH 16: JL – = Dert. 68. 175 WH – : JL 11484 = Martène-Durand, 2.786.

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Disputes, Decretals, and the 1179 Conciliar Canons [Jews] to hold public positions’.176 Underlying that proscription is the idea of Jewish service, and Alexander repeated that idea elsewhere. In WH 255b, he cites ‘ancient canons’ as an authority for prohibiting Christians to act as Jewish servants.177 In WH 673, he condemned Jewish possession of parochial churches whether in fact or held in mortgage, ‘since it is contrary to the holy canons that Christians ought to be bound to Jews’.178 Any who went against the letter were subject to excommunication. Licet universis Dei, a letter also preserved in Appendix but later incorporated into the Liber Extra, unlike the other letters cited here, demonstrates the diversity of Christian-Jewish relations. Alexander had heard that Jews had taken clerics before a secular court either without witnesses or with only one. Alexander did not like either aspect of this arrangement: clerics were not to be taken in front of a secular court and should be tried in front of at least two or three witnesses. Secondly, and more directly relevant to the 1179 canons, Christian women were forbidden to act as wet nurses to Jewish infants, ‘because our customs and those of the Jews are incompatible’.179 Given the connection between Licet universis Dei and the stipulation of the 1179 council forbidding Christian women to act as wet nurses to Jewish children, there is a particularly interesting overlap between the letter and the projected consultationes sent by Richard of Dover to Alexander.180 If, as Mary Cheney suggested, Licet universis Dei emerged from Richard’s query after the 1175 council at Westminster, then the 1179 council could represent a response from Alexander that took place in a general forum. All these letters seem to respond to local concerns. Sicut Iudeis, the papal letter of protection for Jewish communities, was requested by that community.181 The oldest surviving (Alexandrine) copy refers to earlier letters of Calixtus II and Eugenius III, while a later version in a different collection was sent by Clement III and included Alexander in the list of previous authorities.182 WH 255b is part of a follow-up letter to 176 178 179

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WH 16: JL – = Dert. 68. 177 WH 255: JL 13976 = App. 20.4. WH 673: JL 13976 = App. 20.3. WH 624: JL 13974 = App. 20.2. See H. Meyer, ‘Female moneylending and wet-nursing in Jewish-Christian relations in thirteenth-century England’, unpublished PhD thesis, University of Cambridge (2009), pp. 255–61 for a cogent overview of papal approaches to the problem. Cheney, ‘Council of Westminster’, pp. 66, 67; Councils & Synods, xia, 1.979. WH 941: JL 13973 = X 5.6.9; Watt, ‘Gregorian Decretals’, p. 97; Abulafia, Christian-Jewish Relations, p. 21. WH 941: JL 13973 = Frcf. 61.3. It is inscribed de eodem in Die Collectio Francofurtana: eine französische Decretalensammlung. Analyse beruhend auf Vorarbeiten von Walther Holtzmann, ed. P. Landau and G. Drossbach, MIC, B, 9 (Vatican City, 2007), although the London and Paris manuscripts both name the sender as Alexander III. For Holtzmann’s notes, see www.kuttnerinstitute.jura.uni-muenchen.de/kartei/whr1056.gif (last accessed 1 September 2018).

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Lateran III and Novel Canons a commission and was dated 1174–9 by Holtzmann, while WH 673 was the result of either a delegation or appeal, although it can be dated no more closely than Alexander’s pontificate. The letter in Dertusensis, although undatable, is a response to a complaint that had reached the pope. It begins, ‘it has come into our hearing that when some of the Jews in your provinces are converted to the faith . . .’.183 The letter, ostensibly to Henry of Reims though potentially sent to more recipients, was clearly a response to Peter’s appeal, and also antedates the 1179 council. Once again, therefore, the 1179 conciliar canon can be easily linked to the questions and appeals that Alexander had received, suggesting that the canon was formulated in part as a response to those requests. lateran iii and novel canons As well as canons that were based on earlier conciliar canons or widely accepted precepts, a number were novel. These are, for the most part, responses to new situations or ideas which had emerged over the course of the twelfth century. The treatment of leper colonies, for example, was not an issue with which earlier popes had been forced to grapple, while the military orders were comparative newcomers. The increase in papal letters concerning appeal and excommunication, themes for which decretals of Alexander III or later popes constitute the majority of the contents of twelfth-century canonical collections, must be seen within the context of the growth of legal consciousness, the emergence of the Romano-canonical legal system, and an increasingly deep awareness of the difficulties both posed.184 Procedural Issues, c. 6 Appeal and excommunication were two processes that appeared in Lateran III in the same canon. Canon 6, Reprehensibilis valde, stressed that excommunications were not permitted without warnings except in the case of excommunication latae sententiae.185 It also explained a new procedure for appeals. They had to be begun within an unspecified time 183

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WH 16: JL – = Dert. 68: Ad audientiam apostolatus nostri pervenit, quod cum in provinciis vestris aliquid Iudeorum convertuntur ad fidem . . . Even Parisiensis II, two-thirds of which is comprised of non-decretal material, uses only letters of Alexander III in its title De appellationibus (tit. 32). See Die Canones-sammlungen zwischen Gratian und Bernhard von Pavia, ed. E. Friedberg (Leipzig, 1897), pp. 37–8; and J. A. Brundage, The Medieval Origins of the Legal Profession. Canonists, Civilians, and Courts (Chicago, 2008), pp. 151–61 for a description of romano-canonical legal procedure around 1200. 3 Lat. c. 6 = COD3, p. 214: nisi forte talis sit culpa, quae ipso genere suo excommunicationis poenam inducat; COGD, 2.131–2. See E. Vodola, Excommunication in the Middle Ages (Berkeley, 1986),

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Disputes, Decretals, and the 1179 Conciliar Canons limit and plaintiffs were to present themselves on the appropriate day. Regular clerics were not to appeal against their chapter’s decision, nor other religious against that of their superior. According to the canon, it was implemented because of those who ‘use for the defence of wrongdoing what is known to have been instituted to help the innocent’, referring to the principle, present in both canon and civil law, that appeals were designed to overcome unjust judgements.186 What was specific to canon law, however, was the ability to file the appeal ad cautelam (i.e. before the sentence had been passed).187 In civil law, no such provision existed. The 1179 council was important precisely because it attempted to reduce first instance cases and imposed a set period in which an appeal could be lodged.188 The issue was clearly of local interest. Problems within the system of appeals and excommunications became obvious during the Becket crisis, when bishops and archbishops were frequently appealing and excommunicating one another.189 The number of appeals travelling to the curia had also been criticised earlier by Bernard of Clairvaux.190 For the compilers of the decretal collections, it was certainly a live topic: thirty-five of the eighty-eight relevant chapters in the Liber Extra are letters of Alexander, alongside forty-four in the Breviarium.191 One widespread letter on appeals was Cum sacrosancta Romana ecclesia, sent to Henry of Reims in 1171–2. It laid out much of the appeals process.192 Unfortunately, its text is highly corrupted, and particularly mangled in the Liber Extra.193

186

187 188

189

190 191

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pp. 28–32 on excommunication latae sententiae and the canon Si quis suadente, although she does not comment on c. 6. W. Litewski, ‘Appeal in Corpus Iuris Canonici’, Annali di storia del diritto, 14–17 (1970–3), 145–221 at 153 esp. at n. 66; 3 Lat. c. 6 = COD3, p. 214: ad defensionem iniquitatis usurpant, quod ad subsidium innocentium dignoscitur institutum; COGD, 2.131 uses praesidium for subsidium. Litewski, ‘Appeal’, pp. 159–60, esp. n. 76 citing various chapters of C.2 q.6, X, and the decretists. 3 Lat. c. 6 = COD3, p. 214; COGD, 2.131–2; Schmitz, Appellatio Extraiudicialis, pp. 30–1. See also B. C. Brasington, Order in Court: Medieval Procedural Treatises in Translation (Leiden, 2016), esp. pp. 168–71 for a version and commentary of Pseudo-Ulpian’s De edendo, roughly prior to the period in consideration here. See also WH 802: JL – = Ineditae, 37, pp. 63–4, which considers the excommunication of Jocelin of Salisbury and voids all grants he made when excommunicate. Zutshi, ‘Petitioners, popes, and proctors’, pp. 284–5. A. P. Schioppa, ‘I limiti all’appello nelle decretali di Alessandro III’, Proceedings San Diego, pp. 387–406 at 390 and citing letters at 405–6. Some letters were lost following the selection process between primitive collection and Liber Extra: see S. Chodorow, ‘Dishonest litigation in the Church courts, 1140–98’, in K. Pennington and R. Somerville (eds.), Law, Church and Society: Essays in Honor of Stephan Kuttner (Philadelphia, 1977), pp. 187–206 at 189 for an example. Chodorow, ‘Dishonest litigation’, p. 189; Schmitz, Appellatio Extraiudicialis, pp. 23–9. WH – : JL 12020 = X 2.28.5: si vero a gravamine et ante litis ingressum fuerit appellatum, huiusmodi audietur appellans, quoniam sacri canones etiam extra iudicium passim appellare permittunt, nec solent huiusmodi dici appellationes, sed provocationes ad causam; WH – : JL 12020 = Schmitz, Appellatio extraiudicialis, p. 25: si uero a grauamine et ante litis ingressum fuerit appellatum, huiusmodi audietur appellans, quoniam sacri canones passim appellare permittunt. Si uero ante sententiam appellauerit, cogetur

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Lateran III and Novel Canons Schmitz, who used the letter extensively, pointed out that Reprehensibilis valde provided a ‘stronger’ version of Cum sacrosancta; it is interesting to note the link between the time limit imposed by the decretal and that implied by the conciliar canon.194 Cum sacrosancta, allowing appeal before the introduction of a case, is subtly different from c. 6, which forbids appeal before a case has been initiated; hence the link with the Becket conflict is reinforced. The timing of appeals was obviously important elsewhere. In a letter written to the archbishop of Rouen on an 11 October some time between 1171 and 1180, Alexander responded to a query from the archbishop: should he absolve men who were excommunicate before their case could be heard? Alexander’s reply stressed the importance of the timing. If the excommunication had taken place before the appeal, and before their case had been heard, then they could be absolved according to the customs of the Church unless he chose to delegate that task to the bishop who had excommunicated them.195 Padoa Schioppa suggested that the difference between Alexander’s decretals and the 1179 canon over first instance appeals was one of doctrine.196 In fact, appeal was such an important matter that it is tempting to see Alexander leaving the debate until it could be addressed generally, and until then using other authorities. Cheney pointed to Meminimus nos as a missed opportunity for Alexander to ‘devise some means of dealing locally with appeals on trivial issues’, but if Alexander’s letters were written within the confines of particular cases and were not deliberately legislative then it would be unsurprising if he felt that those letters alone could not change current practice.197 Vacant Benefices, c. 8 Mollat elucidated some history of c. 8 of the 1179 council in 1947, in his article on promising benefices before they were vacant, or les grâces expectatives.198 He pointed, rightly, to the papal practice of ‘requesting’ benefices for supporters, noting a genuine difference between the popes in the later twelfth century and those of the thirteenth; the latter ‘intervened in a strongly different way’ that overruled local rights and used papal authority to overcome local opposition or prevarication.199

194 196 198 199

illius stare iudicio, ad quem noscitur appellasse; si uero in agro uel alias ante cause ingressum fuerit appellatum, non solent huiusmodi dici appellationes, set ad causam prouocationes. The latter text appears in Troyes, BM 103, fol. 2ra with the exception that it uses uocationes in place of prouocationes. Schmitz, Appellatio extraiudicialis, p. 31. 195 WH 836: JL 13538 = 1 Comp. 1.23.2. Schioppa, ‘I limiti all’appello’, p. 398. 197 Cheney, ‘Alexander and Roger’, p. 215. G. Mollat, ‘Les grâces expectatives du XIIe au XIVe siècle’, RHE, 42 (1947), 81–102. Mollat, ‘Les grâces expectatives’, p. 83.

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Disputes, Decretals, and the 1179 Conciliar Canons However, he mentioned only briefly what constituted a significant change of approach in the 1170s, when surviving papal letters show the papacy opposed to promising benefices.200 Although he echoed Mollat by noting that the popes ‘were finding that [the practice] had its uses’, Christopher Cheney simply noted in passing that ‘talk of dead men’s shoes always has an unpleasant sound’.201 Hypocrites they may have been, but it is difficult to see popes of the later twelfth century acting on a whim that had no basis in local practicalities. Neither the council at Tours nor that at Reims mentioned the problem, although Tours did condemn the division of benefices.202 The two Alexandrine chapters in X 3.8, ‘Concerning the concession of prebends and churches that are vacant’, are unhelpful.203 One is the conciliar canon; the other is WH 873 to the archbishop of York, which cites the 1179 council.204 In JL 12009, Alexander’s hostility is directed at the division of the benefice, condemned at Tours, rather than the promise of benefices before they fall vacant.205 Christopher Cheney used WH 42 as an illustration of the problem in England before 1179, although he did not explain why he differed from Holtzmann, who ascribed the letter to Lucius III.206 Holtzmann was cautious about dating the letter since in the earliest collections it is ascribed to idem, leaving it open to interpretation; while, in his edition of 2 Comp., Heinrich Singer pointed to Alexander III on the basis of 2 Comp. and Appendix. Friedberg gave the pontiff as Lucius III, and the recent analysis of Cheltenhamensis also ascribes the letter to Lucius.207 Elsewhere in Alexander’s letters, however, there is scant evidence for his interaction with the issue. Evidence of an even more direct local impact on Alexander’s thinking does exist from the 1170s, in the list of propositions discussed at the 1175 Council of Westminster.208 One of the propositions identified by Cheney from BL Cotton Claudius A.iv opposed the promise of benefices before they fell vacant.209 No known decree of 1175 condemns the 200 201

202 203 204 205 207

208 209

Mollat, ‘Les grâces expectatives’, pp. 84–6. C. R. Cheney, From Becket to Langton: English Church Government, 1170–1213 (Manchester, 1956), pp. 76–9. Boso, Vita Alexandri, 2.408. X 3.6, ‘De concessione praebendae et ecclesiae non vacantis’. 3 Lat. c. 8 = COD3, p. 215; COGD, 2.133; WH 873: JL 14350 = X 3.8.3. WH – : JL 12009 = Martène-Durand, 2.901–2. 206 WH 42: JL 13952 = 2 Comp. 3.7.2. WH 42: JL 13952 = Sang. 7.36, H. Singer, Neue Beiträge über die Dekretalensammlungen vor und nach Bernhard von Pavia, SB Wien, Phil.-hist. Kl., 171 (1913), p. 294 n. 83; Chelt. 7.17, ascribed to Lucius III in Die Collectio Cheltenhamensis: eine englische Decretalensammlung, ed. G. Drossbach, MIC, B, 10 (2014), p. 80. Cheney, ‘Council of Westminster’, p. 67; Councils & Synods, 1.969–70. Councils & Synods, 1.981: Donationes ecclesiarum et presentationes personarum facte viventibus irrite sint. See esp. the editors’ comment in 1.981 n.1 concerning the mangling of the phrase.

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Lateran III and Novel Canons practice, but Richard of Dover is believed to have written to Alexander asking for advice on propositions omitted from the conciliar decrees. Of the seven letters identified by Cheney as emerging from Richard’s queries, none proscribed promising benefices before they fell vacant, but it remains possible that the archbishop wrote to Alexander asking for advice on the matter; even if no response was received, such a request would provide a link between the conciliar proposition and the 1179 conciliar canons. Episcopal Exactions and Visitations, c. 4 Another addition to the roll of twelfth-century papal conciliar canons, even though it condemned abuses that had been recognised for centuries, was c. 4 concerning the visitation of parish churches and monasteries. Christopher Cheney demonstrated that, in England at least, episcopal and archiepiscopal visitations were rare before the time of Archbishop Richard. He referred to ‘the comparative rarity of visitation in the twelfth century’, and pointed to the importance of the early thirteenth century in the context of episcopal visitations.210 Since the first edition of Episcopal Visitation in 1931, many additional sources have come to light, not least the wealth of records available in the Papsturkunden series and Holtzmann’s Kartei, a fact noted in the second edition.211 Cheney studied the visitation of monasteries, but many of his comments are equally valid for episcopal visitation of churches. Visitations of monasteries, for example, were frequently required when discipline had collapsed. A letter of Alexander to William, archbishop of Sens commissions the archbishop to visit the monastery of St Victor. The archbishop was to be accompanied by Stephen, bishop of Meaux and the abbot of a monastery referred to as ‘Vallis secretae’.212 John of Salisbury recorded a visit made by Bartholomew, bishop of Exeter, Roger, bishop of Worcester, and Clarembald, abbot of Faversham to St Augustine’s Canterbury. Alexander had requested the visit after receiving reports that the abbotelect, also called Clarembald, was letting the place go to rack and ruin.213 Two letters to England laid out a series of rights that applied to ecclesiastical superiors when visiting their subjects. The clerics of the 210

211 213

C. R. Cheney, Episcopal Visitation of Monasteries in the Thirteenth Century, 2nd edn (Manchester, 1983), pp. 20–2 on Gratian and episcopal visitation of monasteries, and p. 32 on the comparison between twelfth and thirteenth centuries; this view was qualified somewhat in Cheney, Becket to Langton, pp. 139–41. Cheney, Episcopal Visitation, pp. ix–xi. 212 WH – : JL 11974 = Martène-Durand, 6.250. Letters of John of Salisbury, Volume 2: The Later Letters (1163–1180), ed. W. J. Millor and Christopher N. L. Brooke (Oxford, 1979), 355, pp. 786–94. See also F. Barlow, Thomas Becket (London, 1997), p. 260.

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Disputes, Decretals, and the 1179 Conciliar Canons archdeaconry of Berkshire received a privilege limiting their archdeacon to seven horses and riders, and three servants on foot. He was to visit no more than once a year and was to stay only for one day and one night.214 Alexander also wrote to the archdeacon, dean, and clerics of Nottingham, laying out a series of rights for the collegiate church of St Mary’s, Southwell, in which he noted that ‘your visitation ought to be mostly without trouble for them’.215 These were not purely English matters. The canons of St Quentin also received a letter limiting the retinue of the bishop of Noyon when he conducted a visitation, while a privilege for the abbot and brothers of St Germain-des-Prés limited episcopal and archidiaconal retinues while on visitation.216 These privileges were surely all products of local requests, and also suggest that episcopal visitation was more common in the twelfth century than Cheney suggested. Several decretals comment on episcopal exactions as a pressing local concern.217 In one decretal on visitation rights, the limits on accompanying riders used in the 1179 canon are stated. Excerpted from a commission delegated to the bishop of Norwich and dean of Chichester, it is now very incomplete and survives only in the Victorina I and Parisiensis I decretal collections; although datable only to Alexander’s pontificate, it is more likely that it was sent before the council than after, which suggests that Alexander was referring to the numerical limits before the council met.218 The first part of the letter responded to a complaint about archidiaconal exactions, commanding that the bishops ‘curb the archdeacon who makes such terrible exactions’. That included limiting him to five or six horses when visiting churches since ‘truly, it ought to suffice a bishop, let alone an archdeacon, to visit churches with twenty riders’.219 Combined, these letters demonstrate not only that were visitations a pressing matter, but that the introduction of numerical limits was gradual and based in practice rather than being an idea that was introduced at the 1179 council. The Military Orders, c. 9 Further evidence for local influence on the novel 1179 canons can be found for c. 9, which restricted the Templars and Hospitallers to the terms 214 216 217

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WH – : JL 13170 = Foedera, 1.20. 215 WH – : JL 11898 = Mon. Ang., 8.1314. WH – : JL 12576 = Colliete, 2.339. One of which was identified by Charles Duggan as a forgery: WH 920: JL – = 1 Par. 169; C. Duggan, ‘Improba pestis falsitatis: forgeries and the problem of forgery in twelfth-century decretal collections’, in H. Furhrmann (ed.), Fälschungen im Mittelalter: Internationaler Kongress der Monumenta Germaniae Historica, München, 16.–19. September 1986, MGH, Schriften, 33 (Hanover, 1988), 2.319–61 at 2.330–1. WH 922: JL – = 1 Par. 96, 1 Vict. 140. 219 WH 922: JL – = 1 Par. 96.

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Lateran III and Novel Canons of their privileges.220 The 1179 Lateran council fell within a period when the military orders were severely criticised, yet the papacy is usually presented as the orders’ strong supporter.221 Gerald of Wales stated that Alexander had relied on three orders that he intended to protect: the Cistercians, the Templars, and the Hospitallers,222 and Riley-Smith succinctly describes the rights developed by the Hospitallers over the first half of the twelfth century.223 Luis García-Guijarro Ramos remarked that the combined weight of the privileges amounted to a significant exemption for the orders.224 Before Alexander’s pontificate, the Hospitallers possessed rights to tithe exemptions on demesne lands, free election of their master, exemption from interdict or excommunication for their churches, permission to hold regular services during times of general interdict for members of the order and once a year for non-Hospitallers, and remission of part of penance for benefactors or those who joined the order. For Riley-Smith, these privileges ‘seem to have resulted from the papacy’s desire to employ the international Orders as instruments of its will’, while Forey surmised that an exemption for the Templars was the result of their support for Alexander during the schism.225 Reuter, focussing on the Empire, challenged that interpretation. He argued that both popes were recognised by the Hospitallers, and suggested that the same should be said of the Templars.226 Finally, in direct contrast to the idea of a symbiotic relationship between the orders and the papacy, Hiestand has argued that the events of Third Lateran demonstrate ‘how little the papacy really had a grip on the orders’, since ‘they were never docile tools in the hands of the papacy’.227 220 221

222

223

224

225

226

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3 Lat. c. 9 = COD3, pp. 215–17; COGD, 2.134–5. As defined by H. Nicholson, Templars, Hospitallers and Teutonic Knights: Images of the Military Orders, 1128–1291 (Leicester, 1993), pp. 10–12. Gerald of Wales, ‘Speculum Ecclesiae’, in Giraldi Cambrensis Opera, ed. J. Brewer, J. F. Dimock, and G. F. Warner, Rolls Series, 21 (8 vols, London, 1861–91), 4.205. J. Riley-Smith, The Knights of St John in Jerusalem and Cyprus, c. 1050–1310 (London, 1967), pp. 376–7. L. G.-G. Ramos, ‘Exemption in the Temple, the Hospital and the Teutonic Order: shortcomings of the Institutional approach’, in H. Nicholson (ed.), The Military Orders, Volume 2: Welfare and Warfare (Aldershot, 1998), pp. 289–93 at 292. Riley-Smith, Knights of St John, p. 377; A. Forey, The Templars in the Corona de Aragón (London, 1973), p. 167. Reuter, ‘The papal schism’, p. 180. Cf. Cartulaire générale des hospitaliers de S. Jean de Jerusalem, ed. J. Delaville le Roulx (4 vols, Paris, 1894–1906), 305, 1.219–20 for a confirmation of Frederick I dated 21 August 1162 that also took the Hospitaller houses in Provence under his protection. R. Hiestand, ‘Some reflections on the impact of the papacy on the Crusader States and the military orders in the twelfth and thirteenth centuries’, in Z. Hunyadi and J. Laszlovszky (eds.), The Crusades and the Military Orders: Expanding the Frontiers of Medieval Latin Christianity (Budapest, 2001), pp. 15–16.

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Disputes, Decretals, and the 1179 Conciliar Canons Hiestand’s argument certainly has its merits. Other orders – particularly the Cistercians – received both papal privileges and extensive tithe exemptions without being perceived by modern scholars as papal pawns.228 During the time of Bernard of Clairvaux, for example, it is easier to see Bernard’s influence on the papacy than vice versa. Consequently, while no one would doubt that the Cistercians provided valuable support for many popes, including Alexander III, they are mostly represented as an order with similar aims to the papacy but a distinct identity. Despite the aid they gave to the papacy, particularly in the Levant, the military orders should be viewed in the same way. They relied upon the papacy for their privileges and provided support in return. It is doubtful, for example, whether Alexander would have supported the orders at the expense of all else. Further, although c. 9 of the 1179 council explicitly cites abuses by the two orders, it comments that its strictures should be generally observed ‘by all other religious’.229 Complaints from bishops about services held under interdict during Alexander’s pontificate were certainly not limited to the orders. JL 13754, sent to the abbot and chapter of St Vaast in Arras, ordered the brothers to stop receiving townsfolk in their church when the town had been placed under interdict by its bishop.230 The ringing of bells was forbidden, and only monks could be buried. The dispute did not mention the military orders, but it did include many of the same abuses of privilege that would later be condemned by the council. Consequently, while there can be no doubt that the two military orders were in perception and reality a focus of the canon, it possessed a broader applicability. Local criticism of the Templars and Hospitallers was at times fierce. They were accused of pride and wilfulness; although Helen Nicholson has demonstrated how deeply modern scholars’ views on the orders in the Levant have been shaped by William of Tyre,231 William cannot have been responsible for the views of Walter Map,232 John of Salisbury,233 and Gerhoh of Reichersberg,234 all of whom were writing before William’s Chronicle circulated in the West. Criticism of the orders by these 228

229 231

232

233 234

Although the two were conflated by contemporaries, including the popes. See WH 470: JL 14117 = X 3.30.10. 3 Lat. c. 9 = COD3, p. 216; COGD, 2.135. 230 WH – : JL 13754 = PUF n.F., 3, 87 p. 146. H. Nicholson, ‘Before William of Tyre: European reports on the military orders’ deeds in the East, 1150-1185’, in Nicholson (ed.), The Military Orders, Volume 2: Welfare and Warfare (Aldershot, 1998), pp. 111–18; Nicholson, Images of the Military Orders, pp. 41–5. Walter Map, De nugis curialium, or Courtiers’ Trifles, ed. and trans. M. R. James, rev. C. N. L. Brooke and R. A. B. Mynors (Oxford, 1983), p. 70, trans. p. 71. John of Salisbury, Early Letters, 91 p. 140. Gerhoh of Reichersberg, De Investigatione Antichristi, ed. E. Sackur, MGH, Libelli de Lite, 3 (Leipzig, 1897), p. 391, accused the Hospitallers of simony.

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Lateran III and Novel Canons contemporary authors was strong. For present purposes, however, William’s account is particularly pertinent because it narrates an episode in the 1150s where a dispute between the Hospitallers and the Patriarch of Jerusalem was taken to Rome after the Master of the Hospitallers claimed that the order’s papal privileges cushioned them from the immediate jurisdiction of local prelates.235 With the orders presented as papal pawns that were reluctantly sacrificed to the baying horde of bishops, the 1179 canon becomes evidence of direct local influence on the contents of the conciliar canons. The reality is, somewhat predictably, far more complicated. Map’s account of the council suggests that the assembled clergy forced a change of approach; with this in mind, Riley-Smith discerned the influence of William of Tyre.236 According to the canon, accounts of the Templars and Hospitallers overreaching their privileges led to ‘the strongly worded complaints of our brethren and fellow bishops’.237 There is nothing to say that the strongly worded complaints were presented at the council, however. Equally, contrary to Map’s narrative, Cum et plantare limited the Templars’ and Hospitallers’ privileges by holding that they could not exceed those they had already been granted and giving a list of examples. Map was a satirist, and although he was surely representing contemporary views on the orders, he was also probably exaggerating for effect. Awareness of the problems presented by the orders is expressed in both papal letters and in the presence of those letters in contemporary or nearcontemporary canonical collections. A copy of the bull Milites Templi Ierusalem can be found in all decretal collections of the ‘Worcester’ family, as well as in the mainstream Appendix tradition and in Brugensis.238 Alexander’s decretal Ex parte tua on tithe privileges mentions by name 235

236

237

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William of Tyre, Chronicon, ed. R. B. C. Huygens, Willelmi Tyrensis Archiepiscopi Chronicon, CCCM, 63 (Turnhout, 1986), pp. 812–14, 817–20. Map, De nugis curialium, p. 70, trans. p. 71; M. Barber, The New Knighthood: A History of the Order of the Temple (Cambridge, 1994), p. 107; M. Barber, The Trial of the Templars (Cambridge, 1993), p. 12; Riley-Smith, Knights of St John, 387–8; Nicholson, Images of the Military Orders, p. 41; A. Forey, The Military Orders: From the Twelfth to the Early Thirteenth Centuries (London, 1992), p. 115; also Nicholson, ‘Before William of Tyre’, p. 112 suggests a connection between the two men. On William at the council, see Chronicon, p. 998; P. W. Edbury and J. G. Rowe, William of Tyre: Historian of the Latin East (Cambridge, 1990), p. 128. On the uncanny resemblance between William’s account of Urban II’s speech at Clermont and c. 27 of the 1179 council, see A. Bysted, The Crusade Indulgence: Spiritual Indulgence and the Reward of the Crusades, c. 1095–1216 (Leiden, 2014), p. 47. 3 Lat. c. 9 = COD3, p. 216, trans. Decrees, p. 216: fratrum autem et coepiscoporum nostrorum vehementi conquestione comperimus; COGD, 2.134. WH 652: JL – = Claustr. 100. Also, according to Holtzmann, Wig. 2.12, Chelt. 10.3, Cott. 4.43, Pet. 3.22; App. 44.5; Brug. 19.1; Sang. 3.15.12; 1 Abr. 3.11.10; www.kuttner-institute.jura.unimuenchen.de/kartei/whr0737.gif (last accessed 1 September 2018).

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Disputes, Decretals, and the 1179 Conciliar Canons the orders of Cîteaux, the Temple, and the Hospital.239 A letter of Alexander on behalf of the abbey of St Vaast in Arras forbade the Templars from acquiring or occupying the abbey’s lands and later claiming exemption through their privileges.240 There would have been no better way to alert the pontiff to illegal exactions on the part of the orders than bringing such disputes to his attention, and the St Vaast dispute demonstrates that Alexander was willing to call the Orders to heel when necessary. At the same time, letters from the Cartulaire générale suggest that tension existed in both directions: Alexander wrote to all bishops demanding that they respect the order’s privileges,241 and in 1164 or 1165 he ordered the bishop of Lerida to stop prohibiting the burial in Hospitaller churches of the order’s members.242 Of the ten chapters in the relevant title of the Breviarium, seven concerned the military orders and one the Cistercians.243 Two predated Gratian; of the remaining eight chapters, one was Cum et plantare itself and the remainder letters of Alexander III. Five of these concerned the Hospitallers or Templars, one the Cistercians, and in one the order is unspecified although it seems to refer to either the Templars or the Hospitallers. In the Appendix, five of the ten chapters in title 44, ‘Concerning the pre-eminence of London and York, and concerning privileges generally and specially given, and the abuse and confirmation of those privileges’, are decretals of Alexander either to or concerning the military orders.244 Later, in the Liber Extra, five of the eight chapters concerning the military orders were Alexandrine: a shortened Cum et plantare and excerpts from four letters. Alexander’s letters laid the foundation for the treatment of the privileged orders, proclaiming adherence to the terms of their privileges. These decretals indicate the problems faced by local bishops. WH 69a condemned the Hospitallers and Templars for burying the excommunicate.245 The substantive text begins, ‘We know, however, that Hospitallers and Templars246 have presumed to give ecclesiastical burial to the excommunicate, against the prohibitions of the bishops’; the letter was a papal response to either an appeal or an archiepiscopal query of some kind. Prohibiting the burial of the excommunicate appears elsewhere in Alexander’s letters: one sent to the archbishop of Sens on behalf of the Templars stipulated that the archbishop permit the order to bury 239 241 243 244 246

WH 470: JL 14117 = X 3.30.10. 240 WH – : JL 10633 = PUTJ n.F., 13, p. 217. Cartulaire générale, 274, 1.206. 242 Cartulaire générale, 331, 1.233–4. 1 Comp. 5.28: ‘De privilegiis et excessibus privilegiatorum’. See Quinque Compilationes, pp. 61–2. Mansi, 22.405–9. 245 WH 69a: JL 12448 = X 5.33.5. X 5.33.5 includes only the Hospitallers, while earlier versions of the letter included both orders. E.g. WH 69a: JL 12448 = Cant. 1.1, London, BL, Royal 10 B.iv, fol. 43ra.

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Lateran III and Novel Canons ‘those who have chosen to be buried with them, unless they are excommunicated or under interdict’.247 The presence of these restrictions suggests that Alexander did not allow the Templars and Hospitallers free rein, and was willing to remind them of their responsibilities under ecclesiastical law. Dues were also a point of conflict. In a general letter to all archbishops, bishops, abbots, and other prelates ‘to whom this letter reaches’, preserved in Aragon, Alexander forbade them to exact more than a quarter of the value of testaments from those who chose burial in Templar churches when dying, thus limiting what was effectively the provision of compensation.248 WH 355b restates that anyone ‘received into’ the order may be buried in their church, unless named excommunicate or under interdict.249 The most relevant letter is WH 707. Sent to the Hospitallers, it lays out a list of complaints received by the pope from the bishop of Hereford. These are exactly the same as the complaints reported in the canon. The Hospitallers were visiting the diocese not once but frequently in the year, opening churches under interdict and celebrating divine office. Alexander ordered that they follow the terms of their privileges, and in particular only open churches once a year.250 These letters demonstrate that Cum et plantare was drafted in response to local events. It is not unthinkable that the canon was under consideration before the 1179 council; Walter Map’s account of the council seems exaggerated, a trait that is far from uncharacteristic.251 It seems possible that the papacy had prepared some form of condemnation of excesses for the privileged orders and it may well be that the victory of which Map so acidly spoke was not the creation of a new idea, but an expansion. The canon is impeccably precise in limiting the orders to precisely their privileges and only their privileges, meaning that their ability to bury their own dead and to hold individual services was not affected. In fact, Hiestand has argued that the papal letters of privilege for the Templars and the Hospitallers changed in 1179 as a result of pressure from the council. Copies of the bull Omne datum optimum that post-date the 1179 council are slightly different to those that antedate Lateran III: they permitted the building of oratories and cemeteries as long as they did not prejudice existing abbeys or groups of religious;252 they prohibited bishops from excommunicating the brothers or placing them under interdict but specifically forbade the pealing of bells in Templar churches during 247 249 250

251

WH – : JL – = PUTJ, 51, p. 250. 248 WH – : JL – = PUTJ, 94, p. 283. WH 355b: JL 13963 = 1 Comp. 5.28.5. WH 707: JL 13962 = 1 Comp. 5.28.7. The letter can be dated no more accurately than to Alexander’s pontificate. Map, De nugis curialium, p. xxxiii. 252 WH – : JL – = PUTJ n.F., pp. 100–1.

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Disputes, Decretals, and the 1179 Conciliar Canons a general interdict;253 and they changed the tithe privilege from an exemption for all movable goods and those movable goods that ‘pertain to your venerable home’ to an exemption on lands tilled by their own labours, their food, and their animals’ food.254 In earlier privileges, the Templars promised obedience ‘saving, however, to the bishops their rights, in tithes as in oblations and in burials’.255 Intriguingly, therefore, c. 9 of the 1179 council appears to articulate the Templars’ and Hospitallers’ privileges, rather than limiting the orders to specifics which had previously been agreed upon. It fits neatly into the perception that the 1179 canons were mostly concerned with providing a general outlook. By presenting the specific details of the privileges and exemptions possessed by the orders, the council was not only restricting them to their privileges, it was also protecting those privileges and consequently the orders themselves from hostility. In fact, it seems a well-designed approach to maintaining the balance between the orders and their critics. Furthermore, there is also a hint that although the military orders were the explicit focus of the canon, the metaphorical net was in reality somewhat wider. While the Cistercians, whose influence had been growing throughout the twelfth century, are not mentioned by title, the suitably vague reference to ‘all other religious’ could indicate that they, too, were intended to be subject to the restrictions placed. Leper Colonies, c. 23 Long-standing disputes over tithes and episcopal jurisdiction were also critical to c. 23 of the council, concerning leper colonies. It was the first conciliar canon concerned with leprosy since the Merovingian councils at Orléans (549) and Lyon (583).256 Both of these councils emphasised the bishops’ duty of care in providing all necessary food and clothing for the lepers. Instead of providing purely for lepers’ worldly welfare, the 1179 canon instructed bishops to care for lepers’ spiritual welfare by providing colonies with rights to a cemetery, chapel and priest, and a tithe exemption on their gardens and animal fodder. Carole Rawcliffe argued cogently that lepers were perceived as closer to God due to the horrific consequences of their disease, and Françoise Bériac described the canon as ‘permitting lepers gathered together in sufficient numbers’ a chapel and 253 255 256

WH – : JL – = PUTJ n.F., p. 102. 254 WH – : JL – = PUTJ n.F., p. 98. WH – : JL – = PUTJ n.F., p. 101. Orléans (549) c. 21 = Concilia Aevi Merovingici, ed. F. Maassen, MGH, Concilia, 1 (Hanover, 1893), p. 107; Lyons (583) c. 6 = Concilia Aevi Merovingici, p. 154; in general see also J. Avril, ‘Le IIIe concile de Latran et les communautés de lépreux’, Revue Mabillon, 60 (1981–4), 21–76 at 21–38 for the period prior to and immediately after the 1179 council.

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Lateran III and Novel Canons cemetery.257 Combined, these represent a profoundly different interpretation to that of R. I. Moore, who suggested that the canon demanded segregation.258 Such deliberate separation of lepers was based upon biblical law, including Leviticus 13:46, which states that they ‘should live outside the camp’; despite the obvious truth in Rawcliffe’s and Bériac’s arguments, it remains difficult to imagine that legal reactions to lepers were not influenced by this passage.259 Approaches to leprosy seem rather haphazard. One proposition debated at the 1175 Council of Westminster was that ‘lepers shall not now live amongst the clean’.260 In a similar fashion to expectative graces as demonstrated above, the proposition did not lead to a canon promulgated by the council and no surviving letter of Alexander explicitly deals with the idea, for all that Mary Cheney noted the possible existence of a link between the proposition and WH 713, sent to Richard of Dover some time after 1174. That was one of a series of Alexandrine decretals concerned with leprous marriage. Alexander began his letter by noting that ‘those who incur the malady of the leper are by general custom separated from the society of men, and are transferred to lonely places outside cities and towns’ without their husbands and wives.261 Alexander’s ultimate decision, that spouses should remain together and that the healthy should tend the ill ‘with conjugal affection’ is of minimal importance here except to note that marriage was considered more important than the illness, which in turn reinforces the suggestion that leprosy was perceived less as a danger than as an affliction requiring treatment.262 While Cheney noted the letter’s existence so tentatively as to suggest that even she was not entirely convinced by the link to the Westminster propositions, Alexander’s reference to the ‘general custom’ of segregation implied that it was far from a papally initiated idea. His letters make this distinction clear but any personal opinions did not stop 257

258

259 260

261 262

C. Rawcliffe, Leprosy in Medieval England (Woodbridge, 2006), p. 257. See also C. Rawcliffe, ‘Learning to love the leper: aspects of institutional charity in Anglo-Norman England’, AngloNorman Studies, 23 (2000), 231–50 at 237; F. Bériac, Des lépreux aux cagots. Recherches sur les sociétés marginales en Aquitaine médiévale (Bordeaux, 1990), p. 21, which also describes Lateran III as ‘un codification partielle’. See P. Richards, The Medieval Leper and his Northern Heirs (Cambridge, 1977), p. 49; Moore, Formation of a Persecuting Society, pp. 53, 58; E. Brenner, ‘Recent perspectives on leprosy in medieval western Europe’, History Compass, 8 (2010), 388–406. Leviticus 13:46: omni tempore quo leprosus est et inmundus solus habitabit extra castra. Councils & Synods, 1. 981 at no. 36: Leprosi inter sanos amodo non conuersentur; Councils & Synods, 1.967–8 on the propositions and 1.970 on 36 alone; Cheney, ‘Council of Westminster, 1175’, p. 67. WH 713: JL 13974 = X 5.8.1. See C. Duggan, ‘Equity and compassion in papal marriage decretals to Engand’, in W. van Hoecke and A. Welkenhuyen (eds.), Love and Marriage in the Twelfth Century (Leuven, 1981), pp. 59–87 at 86 for discussion of Pervenit ad nos.

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Disputes, Decretals, and the 1179 Conciliar Canons him noting in a letter to Louis VII of France that excommunicates should be treated like lepers, and should be kept outside the camp lest they pollute others.263 Papal responses to lepers certainly hardened over the course of the twelfth century: Lucius III allowed for the appointment of an assistant to help leprous priests who administered the cura animarum, while one surviving letter of Celestine III ordered a leprous priest’s removal from office; the danger here, of course, was pollution of the sacraments.264 In these contexts, Alexander’s approach was both benign and humane. Given that Alexander’s chancery referred to lepers as both leprosi and as infirmi, it is difficult to tell whether there was any differentiation between lepers and those who were just ill. Consequently, his approach to the ill is informative. Alexander supported hospitals in their attempts to build chapels and cemeteries. He wrote to Archbishop Henry of Reims on multiple occasions, ordering that various hospitals be permitted an oratory and a cemetery. His beneficiaries included the patients of a hospital at Dampierre in 1168–9,265 at Meulan in 1173–4,266 and at Valenciennes,267 and the pope also issued a judgement some time between 1171 and 1172 that the infirmary at Osdayn should be allowed both an oratory and a cemetery.268 In contrast to his concern for churches that may be injured by the leper colonies’ rights, however, Alexander made no provision for the rights of existing parochial churches who would otherwise have received duties from the inhabitants of the hospitals. Alexander took a similar approach to leper colonies.269 A privilege to the lepers of Sens freely conceded burial to ‘the brothers of the house and their families, unless they are named excommunicate or under interdict’.270 Although Alexander did not make the link with hospitals explicit, as early as 1171–2 he had ruled that the lepers of Épernay be allowed both a chapel and a cemetery.271 The letter was his response to an appeal, and addressed to the lepers. Alexander’s letter did not solve the problems; debate about the colony continued. In 1174, Alexander approved the appointment of a priest, Walter, whose sole role was to 263

264 265 266 267 268 269

270

WH – : JL 11841 = PL 200.785: Excommunicatio enim ad modum leprae, quae totum corpus corrumpit, totum hominem contaminat et deturpat. Leprosi namque, sicut in Testamento Veteri legitur, extra castra abjiciebantur. WH 61b: JL 14965 = X 3.6.3; WH 1035b: JL 16607 = X 3.6.4. WH – : JL 11574 = Martène-Durand, 2.755. WH – : JL 12315 = Martène-Durand, 2.988. WH – : JL 12421 = Martène-Durand, 2.868. WH – : JL 12261 = Martène-Durand, 2.963. See also L. Falkenstein, ‘Analecta pontificia Cameracensia. Zu Datum und Inhalt mehrerer Mandate Alexanders III. betreffend Cambrai (1169–1172)’, AHP, 21 (1983), 35–78 at 36–51. WH – : JL 14256 = PUF, 5, 94 p. 119. 271 WH – : JL 12076 = Martène-Durand, 2.937.

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Lateran III and Novel Canons care for the inhabitants and their families.272 Alexander stated in these letters that his reasoning centred upon the lepers’ need to avoid the ‘grave danger’ of dying without receiving the viaticum; in both cases, therefore, the concern was a lack of pastoral care for the lepers. At Épernay, furthermore, Alexander was made aware of the problems surrounding a cemetery and the priest through the lepers’ appeals to the curia, demonstrating how far his knowledge of specific problems relied upon such local knowledge. The lepers of Épernay also disputed their tithe privilege. Tithe exemptions presented the papacy with a broader problem.273 Both the produce being tithed and the tithes themselves were important sources of income, which explains in part the problems faced by ecclesiastical institutions at all levels. Under Innocent II and his successors, the monastic orders and particularly the Cistercians were increasingly given tithe exemptions on all land tended by their own hands.274 Adrian IV attempted to limit these exemptions to all land previously fallow, known as novalia.275 Alexander reverted to Eugenius’ privilege on occasion, and seems to have considered each case separately. By the 1170s, however, he maintained the Cistercians’, Templars’, and Hospitallers’ privileged positions.276 He was implicitly undermining his predecessor, but in Ex parte tua claimed that Adrian had given the Cistercians, Templars, and Hospitallers an exemption only on all the land that they tilled with their own hands.277 Cistercian abbeys such as Rufford278 and Cercamp received an exemption on all lands tilled by their own hands,279 while non-Cistercian houses such as the Premonstratensian Notre-Dame de Licques280 and the Augustinian Haughmond Abbey281 received an exemption on novalia. Even though Cistercian, Templar, and Hospitaller houses were provided with a standard exemption, other houses had a range of different exemptions. A privilege issued for the Benedictine house of St Vaast in Arras provided only for a tithe exemption on animal fodder.282 The lepers’ tithe exemption should be considered alongside these disputes. Cum dicat apostolus (c. 23) employed a very specific tithe privilege: it gave leper colonies an exemption from tithes only on 272 274 276 277 278 279

280 281 282

WH – : JL 12355 = Martène-Durand, 2.1008. 273 See above, pp. 46, 51. Constable, Monastic Tithes, pp. 237–45. 275 Constable, Monastic Tithes, p. 279. Constable, Monastic Tithes, pp. 294–303. WH 470: JL 14117 = X 3.30.10; Constable, Monastic Tithes, p. 298. WH – : JL – = PUE, 1, 80, pp. 340–1. WH – : JL – = PUF n.F., 3, 100, p. 160. For a letter of judgement on the same issue, see WH – : JL – = PUF n.F., 3, 66, pp. 126–7. WH – : JL 12342 = PUF n.F., 3, 57, p. 115 and 65, p. 125. WH – : JL – = PUE, 1, 114, p. 383. WH – : JL – = PUF n.F., 3, 58, p. 119; the text follows JL 7699 of Innocent II.

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Disputes, Decretals, and the 1179 Conciliar Canons their gardens and animal fodder.283 Adrian IV bestowed an exemption on novalia, gardens, and trees upon the lepers of St Jacob’s in Châlonsen-Champagne.284 Alexander confirmed a variety of tithe exemptions from gardens, fruit trees, fodder, and novalia in privileges to lepers in Albert, Moreil, and Sens over the last decade of his pontificate.285 Local privileges for leper houses varied: Bishop Richard of Coventry produced a charter confirming a grant of tithes of their own milk and the herbs from their garden given by the abbey of St Pierre sur Dives to the lepers of Brentford in return for 2 shillings per year.286 At Épernay, the papal privilege allowed lepers a tithe exemption on novalia, meaning that they did not have to pay tithes on all newly tilled land worked by their own labours, and on the fodder of their animals.287 A series of letters detailing the case between the lepers of Cambrai and three local churches further demonstrates the particular problems faced by the new colonies. The churches and the leper colony entered into a lengthy arbitration over the latter’s right to a tithe exemption. The contentious privilege was an exemption on novalia and animal fodder, the same tithes that had been confirmed to Épernay. Initially, Alexander supported the Cambrai lepers’ claim to a broad tithe exemption. Then, at some point during the early 1170s, he changed his mind and issued a letter that drastically limited their tithe exemption and reinforced the stance of the parish churches.288 These cases, however, began with the lepers claiming a privilege on novalia at Cambrai and on animal fodder and novalia at Épernay. The tithe privilege the lepers claimed was the same as the standard tithe privilege given to a non-privileged monastic house, but it seems that the lepers were rarely able to sustain that level of privilege. Two fragments of evidence suggest that during the 1170s Alexander used the same tithe exemption as is found in c. 23, one of which can be directly linked to a leper colony. One, a canonically transmitted fragment possibly taken from a privilege, is lacking both a recipient and a more specific dating clause beyond Alexander’s pontificate.289 The other is a letter of Alexander to the lepers of Abbeville in probably either 1174 or 283 284

285

286

287 288 289

3 Lat. c. 23 = COD3, p. 223; COGD, 2.143. WH 353*: JL – = Ineditae, 11, p. 20, found only in the margin of a version of the summa Quoniam status ecclesiarum in Paris, BnF lat. 16538. WH – : JL – = PUF n.F., 4, 164, p. 306 ; WH – : JL – = PUF n.F., 4, 192, p. 337; WH – : JL 14256 = PUF, 5, 94 pp. 118. English Episcopal Acta, 16: Coventry and Lichfield, 1160–1182, ed. M. J. Franklin (Oxford, 1998), 91, p. 86. WH – : JL 12265 = Martène-Durand, 2.966. WH – : JL 11452 = Martène-Durand, 2.763; WH – : JL 11669 = Martène-Durand, 2.772. WH 844: JL 14174 = Lips. 23.4, to an unknown recipient.

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Conclusions 1176, at a similar or slightly later date than the letters to Cambrai.290 In particular, no letters survive to suggest that the terms of the Abbeville letter were contested, suggesting that perhaps by the mid-1170s Alexander had found an arrangement which worked, minimising confrontation by safeguarding existing parochial jurisdictions but providing the lepers with the necessary food and medicinal herbs. A welcome side effect of this may have been to encourage their efforts towards the colony’s lands and draw them away from forays into society. Equally, little damage was done to the substance of existing parochial rights, as neither animals nor gardens would have existed if it were not for the leper colonies. It was perhaps the best compromise that could be achieved. Direct links can be traced to a series of disputes and appeals which illustrate the development of an approach to the new leper colonies. Most strikingly, the canon enunciates the rights gradually built up by the lepers of Épernay over the course of some five years – rights to a chapel, priest, cemetery, and tithe exemptions, all of which were confirmed by the pope. conclusions All the canons described here were inextricably linked to local and papal concerns. There appears to have been a genuine attempt to promulgate conciliar canons grounded in the problems and disputes that had come to papal attention before the council. These may have been particularly important at the time – such as the Becket conflict or the schism – or they may have been representative of numerous smaller disputes that were brought frequently to papal attention. Some were relatively new concerns that can be dated to Alexander’s pontificate, and some were representative of difficulties or ideas that had been a concern for a longer period. All the issues that the canons tackled had been brought to papal attention within the previous decade. Cases concerning leper houses in northern France date to the mid-1170s, as do Alexandrine letters on visitation rights and the Templars and Hospitallers. The consultatio(nes) written by Richard of Dover asking advice concerning the promise of vacancies and the segregation of lepers can only have been written after 1175; while Cum sacrosancta Romana ecclesia was probably written in 1172, other letters that questioned the timing of appeals and the consequences of excommunication reappear throughout the 1170s. The schism and its consequences would have been fresh in the memory of all who attended the council, especially when they saw the election of Berthold as archbishop of Bremen overturned by a panel of cardinals.291 Henry of Marcy, 290

WH – : JL 12974 = PL 200.1154–5.

291

See p. 18 above.

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Disputes, Decretals, and the 1179 Conciliar Canons abbot of Clairvaux and, from 18 March 1179, cardinal-bishop of St Sabina, had been one of the delegation sent to aid Peter of Pavia in the south of France as well as being the recipient of the count of Toulouse’s letter for help when faced with the problem of heretics in his backyard. Several further important points should be made concerning the link between Alexander’s letters and the 1179 conciliar canons. The first refers to Alexander’s oft-stated preoccupation with marriage, itself a common concern of the canonists in the later twelfth century. Brundage, amongst others, has noted that over a third of the decretals concerning marriage in the Liber Extra were written by Alexander.292 Although a number of Alexander’s letters on marriage established important precedents, the only mention of marriage in the conciliar canons falls in c. 11, which restated a by-then common prohibition of marriage for clerics in the subdiaconate or higher orders.293 No mention is made of lay marriage or of the practice whereby the illegitimate sons of priests inherited their fathers’ churches, although c. 3 does restate that legitimate birth was required of bishops.294 In contrast to Dauvillier and Donahue, who posited that Alexander’s ideas concerning marriage developed in set stages over his pontificate, Charles Duggan suggested that Alexander preferred to allow individual cases to be decided upon their own merits and refused to adopt one blanket approach.295 Since issues concerning marriage were frequently sensitive, Duggan characterised Alexander’s approach as ‘compassionate’; although it can be argued that Alexander was adamantly opposed to passing benefices through families, Duggan points to several occasions where he demonstrated compassion and understanding in difficult circumstances.296 As the examples above demonstrate Alexander’s willingness to put forward general ideas in other sensitive areas, it is possible that lay marriage and the inheritance of the illegitimate sons of priests were purposefully not incorporated into the conciliar canons in order to leave the decisions down to individual cases. If marriage was omitted because Alexander thought each case needed individual consideration, it suggests that he intended his canons to be the opposite: wide-ranging universal law. In other words, he and his curia intended that the canons would provide a body of generally applicable statutes for the governance of the Church. Alexander and his curia therefore clearly viewed the council as ‘general’: one reason for his 292

293 294

295

J. A. Brundage, ‘Marriage and sexuality in the decretals of Pope Alexander III’, in Liotta (ed.), Miscellanea Rolando Bandinelli, Papa Alessandro III (Siena, 1986), pp. 59–83 at 65–6. 3 Lat. c. 11 = COD3, p. 217; COGD, 2.136. 3 Lat. c. 3 = COD3, p. 212: nisi qui iam trigessimum aetatis annum egerit et de legitimio sit matrimonio natus, qui etiam vita et scientia commendabilis demonstretur; COGD, 2.128–9. See pp. 34–5 nn. 134–5 above. 296 Duggan, ‘Equity and compassion’, pp. 67–8.

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Conclusions reassertion of ideas found elsewhere in his decretals was surely to provide widespread guidance in place of the particular guidance that he had given through decretals. Papal intention did not automatically equate to widespread reception, however, and an interesting question that will be discussed in chapters 4 and 5 of this book is therefore whether those intentions came to fruition and how particular cases could influence these general authorities after their promulgation. The final point that needs to be drawn out from the canons is linked to their relationship to issues of the 1170s and the existence of a papal ‘agenda’. The most striking element of the canons is how closely c. 23 replicated the rights built up by the lepers of Épernay and Abbeville. It may well be a coincidence that the canon used exactly the same tithe exemption as the only surviving unchallenged letter, but it suggests that the conciliar canons were not representative of an unstated Alexandrine ‘agenda’ that had existed since the early years of his pontificate, or at least that their specifics were not. Alexander did constantly restate particular principles: the libertas ecclesie, his opposition to clerical marriage, and the condemnations of the schismatics are only three examples. But there is a difference between the introduction of rules that relate to specific ideas – a category into which most of the 1179 conciliar canons fall – and the papacy deliberately using the conciliar canons to introduce grand ideas. Although the canons emerged from a belief in the papal and conciliar ability to introduce such new regulations, they were legally specific rules that were instituted as a result of the difficulties and dilemmas faced by clerics across Latin Christendom.

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3

THE 1179 CANONS AND THE SCHOOLS

While events across Christendom provided the catalysts for the canons promulgated at the 1179 council, they were only one aspect of the complex legal culture of the late twelfth century. A second and closely connected element were the canonists and jurists trained in the schools. These men, writing on the Decretum of Gratian or on other legal texts, produced a body of work which, for decades, has provided insight into the legal and political attitudes of contemporaries. Twelfth-century papal government is seen through the veil of these commentaries, which are often portrayed as representing or deliberately strengthening and perpetuating the idea of papal supremacy at the behest of the pope and curia. Whether or not the canonists acted as propagandists for an increasingly self-confident papacy, their writings cover a far wider range of issues, including those incorporated into the 1179 decrees. As a result, the surviving commentaries provide an insight into how the problems faced by Alexander were debated and considered in learned circles. Many assessments of Alexander’s ecclesiastical decision-making still rely on the now-shaky idea that Alexander was a magister.1 Since John Noonan, Rudolf Weigand, and now James Brundage have cast doubt upon this supposition, it is increasingly difficult to assume that Alexander acted according to ideas present in the schools purely because he himself 1

J.-F. von Schulte, Zur Geschichte der Literatur über das Dekret Gratians, SB Wien, Phil.-hist. Kl., 63 (1870), p. 301; B. Smalley, The Becket Conflict and the Schools (Oxford, 1973), p. 138; M. Pacaut, Alexandre III. Étude sur la conception du pouvoir pontifical dans sa pensée et dans son œuvre (Paris, 1956), 62; G. Lesage, ‘La nature du droit canonique d’après Alexandre III’, in F. Liotta (ed.), Miscellanea Rolando Bandinelli, Papa Alessandro III (Siena, 1986), pp. 303–35 esp. 305–6; J. Laudage, Alexander III. und Friedrich Barbarossa, Forschungen zur Kaiser- und Papstgeschichte des Mittelalters, 18 (Cologne, 1997), pp. 5–6 distinguishes Alexander from Rolandus, but conflates the two in both his bibliography and his index. See also B. Meduna, Studien zum Formular der päpstlichen Justizbriefe von Alexander III. bis Innocenz III. (1159–1216): die ‘non-obstantibus’-Formel, SB Wien, Phil.-hist. Kl., 536 (Vienna, 1989), p. 14.

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The 1179 Canons and the Schools had spent years teaching law.2 Yet Lynch’s analysis of simony, for example, stated that the pope ‘approached the problem of ruling the church with an armoury of intellectual models, value judgements, and ideas that derived in great part from his study of canon law’.3 In particular, Lynch noted that the 1179 canon ‘reflected the decretist arguments of the preceding sixteen years’ in describing forced entrance ‘gifts’ to monastic houses as simony.4 Although his underlying argument, that the pope was deeply influenced by developments in canon law from the time of Gratian on and that the 1179 conciliar canons reflect the changes and adaptations that accompanied the transformation of legal ideas, is surely right, it needs to be re-evaluated. Despite Robert of Torigny’s suggestion that Alexander had a legal education,5 it can no longer be proven and it is in any case unlikely that Alexander was able to maintain a strong personal interest in new legal ideas following his election to the papacy, despite his role in creating many of the regulations. It is less clear, however, whether and how he was kept up-to-date on debates and discussions in the schools, and if so, how that happened. Alexander’s curial cardinals are the obvious place to look for this learning. In early 1179, his curia included eight cardinals known to have received an education, most of whom were cardinal-priests or cardinal-deacons, and relatively recent appointees. Two, Gratian of Pisa and Master Vivian, had been involved in the complex series of negotiations that surrounded Becket’s exile, although at the time of their journey to England neither jurist had entered the cardinalate.6 Others included 2

3

4 5

6

G. Fransen, ‘La structure des “Quaestiones disputatae” et leur classement’, Traditio, 23 (1967), 516–34 at 519–20; J. T. Noonan, ‘Who was Rolandus?’, in K. Pennington and R. Somerville (eds.), Law, Church and Society. Essays in Honour of Stephan Kuttner (Philadelphia, 1977), 21–48; R. Weigand, ‘Magister Rolandus und Papst Alexander III’, AKKR, 149 (1980), 3–44; J. A. Brundage, ‘Marriage and sexuality in the decretals of Pope Alexander III’, in F. Liotta (ed.), Miscellanea Rolando Bandinelli, Papa Alessandro III (Siena, 1986), pp. 59–83 at 60–1, 80–2. J. Lynch, Simoniacal Entry into Religious Life from 1000 to 1260: A Social, Economic and Legal Study (Columbus, 1976), p. 148. Lynch, Simoniacal Entry into Religious Life, p. 149. Weigand, ‘Rolandus und Alexander’, pp. 8–9, citing Robert of Torigny, Chronica, ed. Richard Howlett, Chronicles of the Reigns of Stephen, Henry II and Richard I, Rolls Series, 82 (4 vols, London, 1884–90), 4.298. Classen was sceptical of Noonan’s original article: P. Classen, ‘Rom und Paris: Kurie und Universität im 12. und 13. Jahrhundert’, in his Studium und Gesellschaft im Mittelalter, ed. Johannes Fried, MGH, Schriften, 29 (Stuttgart, 1983), pp. 127–69 at 130–2. Torigny’s comment that Gratian was a bishop of Chiusi has often been disregarded; in light of Winroth’s evidence in support of Torigny, his comments on Alexander may require revisiting. See Chapter 1, pp. 19–20, 26–7 above. On the two legates in England, see F. Barlow, Thomas Becket (London, 1997), pp. 183–4. See also Alexander’s letters to Henry II (JL 11597) and Becket (JL 11602), which refer to Gratian as subdiaconu[s] et notariu[s] nost[er] and Vivian as magist[er]. On the cardinals’ learning, see esp. J. Brixius, Die Mitglieder des Kardinalkollegiums von 1130–1181 (Berlin, 1912), pp. 61, 66; S. Weiß, Die Urkunden der päpstlichen Legaten von Leo IX. bis Coelestin III. (1049–1198), Forschungen zur Kaiser- und Papstgeschichte des Mittelalters, Beihefte zu J. F. Böhmer, Regesta Imperii, 13

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The 1179 Canons and the Schools Cardinal Laborans, who completed an abbreviation of the Decretum around 1182;7 Master Peter of Pavia, who had studied with Stephen of Tournai at Bologna;8 Master Matthew of Angers, a relatively recent recruit to the curia who became cardinal priest of St Marcellus months before the council and who, it is tempting to suggest, was deliberately drawn in as a result of his recent experience;9 Master Rainier ‘the small’, cardinal-deacon of St George in Velabro;10 and Alberto di Morra, who has been identified as the canonist Albertus.11 A further two lawyers who had been appointed cardinals were no longer active members of the curia in 1179, through either death or choice, demonstrating how fundamental lawyers were to Alexander’s curia.12 The route of several of these jurists into the curia demonstrates the number of lawyers on whom Alexander could have drawn even outside the select cadre appointed to the cardinalate: Master Gratian, for example, had been both subdeacon of the Roman Church and papal notary before being appointed to the mission to England, while the mission itself provides a link between himself, Vivian, and Lombard, who had all played a role in the negotiations at some point.13 These men had established themselves as valued members of the curia before their appointments, and it can be assumed that the pope and his officials were surrounded by many more magistri who have remained nameless. The pool of learned canonists around the curia was certainly extensive. The cardinals, however, were not the only legally trained minds who attended the council who could have influenced its decrees. Bertram of Metz was present for the discussions concerning the election of the new archbishop of Bremen,14 as was Gérard Pucelle.15

7

8 10 11

12 13

14

15

(Cologne, 1995), pp. 248–9 esp. n. 79 on Vivian; W. Holtzmann, ‘Die Benutzung Gratians in der päpstlichen Kanzlei im 12. Jahrhundert’, Studia Gratiana, 1 (1953), 323–49 at 327–8; W. Maleczek, Papst und Kardinalskolleg von 1191 bis 1216, Publikationen des historischen Instituts beim Österreichischen Kulturinstitut in Rom, 6 (Vienna, 1984), pp. 71–3 on Gratian, although he probably was not the glossator ‘Cardinalis’ as Maleczek implies, following Schulte, Quellen und Literatur, 1.145–8: see p. 21 above. Schulte, Quellen und Literatur, 1.148–9; Brixius, Die Mitglieder, pp. 63–4; Repert., pp. 267–8; N. Martin, ‘Die Compilatio Decretorum des Kardinal Laborans’, Proceedings Berkeley, pp. 125–37 at 125; Weiß, Die Urkunden, pp. 269–70. 9 Brixius, Die Mitglieder, p. 65. Brixius, Die Mitglieder, p. 64. Brixius, Die Mitglieder, p. 66. R. Weigand, Die Glossen zum Dekret Gratians: Studien zu den frühen Glossen und Glossenkompositionen, Studia Gratiana, 25–6 (Rome, 1991), pp. 618–19. For Hermann, see Brixius, Die Mitglieder, p. 62; for Lombard, see Brixius, Die Mitglieder, p. 64. A. J. Duggan, Thomas Becket (London, 2004), p. 67 describes Lombard as ‘Becket’s Bolognese legal eagle’; Brixius, Die Mitglieder, pp. 162–3 on Gratian and Vivian’s mission in 1169. Arnold of Lübeck, Chronica Slavorum, ed. J. M. Lappenberg, MGH, SS rer. Germ., 14 (Hanover, 1868), pp. 46–7; Annales Stadenses, ed. G. Pertz, MGH, Scriptores, 16 (Hanover, 1859), pp. 348–9. S. Kuttner and E. Rathbone, ‘Anglo-Norman canonists of the twelfth century: an introductory study’, Traditio, 7 (1949–51), 279–358 at 302; J. Fried, ‘Gerard Pucelle und Köln’, ZRG Kan. Abt.,

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Schools of Canon Law in the Mid-Twelfth Century Both are believed to have had significant legal learning. Not every contemporary canonist can be identified at the council: Rufinus of Assisi was probably not the canonist of the same name, while there is no evidence that Simon of Bisignano and Sicard of Cremona were present.16 Nevertheless, the fact that canonists identified as working in the 1170s and 1180s are known to have attended the council means that they could have contributed to the intellectual content of the decrees, in either their draft or final forms. Although the authors of some of these comments can no longer be identified, the commentaries and glosses on Gratian remain critical for appreciating the intellectual environment of the 1170s. By then, the enlarged Decretum had been in circulation for at least twenty years, probably more, making a rich pool of texts and analyses from which to draw.17 No analysis could hope to investigate all of the strands of canonical writings which appeared in this period, let alone do justice to each individually. This chapter, therefore, will present a selection of the available evidence, investigating how far the ideas that permeated the canons emerged from the intellectual environment in the schools and arguing for deep resonances between the two. canonical works in the mid-twelfth century: schools and dating The period was rich in canonical writings, and modern scholarship tends to separate them into schools. Bologna still reigns supreme, over a century after Maitland remarked that from the twelfth century ‘hardly a man acquires the highest fame as legist or decretist who is not Italian, if not by birth, at least by education’.18 Works of the Bolognese school were the first to be published and include the summae of Paucapalea,19 Rolandus,20

16

17 18

19

20

68 (1982), 125–35 at 129; C. Donahue, Jr., ‘Gerard Pucelle as a canon lawyer’, in R. H. Helmholz et al. (eds.), Grundlagen des Rechts: Festschrift für Peter Landau zum 65. Geburtstag (Munich, 2000), pp. 333–48 at 337. Rufinus is listed on London, BL, Add. 39646, fol. 153ra. See R. Deutinger, ‘The decretist Rufinus – a well-known person?’, BMCL, 23 (1999), 10–15. The bishop of Cremona at the time, Umfredus, was present: London, BL, Add. MS 39646, fol. 154ra. See Chapter 1, pp. 25–6 above. F. Pollock and F. W. Maitland, The History of English Law before the Time of Edward I, 2nd edn (Cambridge, 1968), 1.120. Repert., pp. 125–6; Schulte, Quellen und Literatur, pp. 109–14; Die Summa Paucapalea, ed. J.-F. von Schulte (Giessen, 1890); Pennington, ‘The decretists’, pp. 129–31. More recently, see the work of J.-M. Viejo-Ximénez, including his ‘The Summa Quoniam in omnibus revisited’, Proceedings Toronto II, pp. 163–77, arguing for a radically different interpretation: that instead of being compiled by a single individual, the Summa is what he terms ‘a mosaic of teachings’. Repert., pp. 127–9; Schulte, Quellen und Literatur, p. 114–18; Rolandus, Summa Decretorum, ed. F. Thaner in Die Summa Magistri Rolandi, nachmals Papstes Alexanders III (Innsbruck, 1874);

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The 1179 Canons and the Schools and Rufinus,21 all of whom compiled their works on Gratian long before the 1179 council; most known and studied glosses on Gratian are from Bologna. Of the major Bolognese summae, only those of Johannes Faventinus and Huguccio remain unpublished, the former because of a general scholarly perception that it is highly derivative, the latter due to its sheer size.22 Yet recent decades have seen a not-unsuccessful attempt to nuance the impression of Bologna’s pre-eminence. In the 1930s and 1940s, Kuttner and Rathbone proved the existence of legal schools north of the Alps.23 Their conclusions have since been deepened and nuanced by Gouron,24 Weigand,25 and Landau, with the transmontane schools expanding to include Paris and Cologne.26 Links are provided between the Bolognese schools and those north of the Alps by the Italian-trained yet Paris-based Stephen of Tournai27 and Simon of Bisignano28 if, as Weigand, Landau,

21

22

23

24

25 26

27

28

Pennington, ‘The decretists’, pp. 131–5. The DDC entry on Rolandus is unhelpful, as it confuses him with Alexander III: M. Pacaut, ‘Roland Bandinelli’, DDC, 6.703–26. Repert., pp. 131–2; Schulte, Quellen und Literatur, pp. 121–30; Rufinus, Summa decretorum, ed. H. Singer, Die Summa decretorum des magister Rufinus (Paderborn, 1902); R. Benson, ‘Rufin’, DDC, 6.779–84; Pennington, ‘The decretists’, pp. 135–6. Repert., pp. 143–6; Schulte, Quellen und Literatur, pp. 137–40; Pennington, ‘The decretists’, pp. 138–9. S. Kuttner, ‘Les débuts de l’école canoniste française’, Studia et documenta historiae et iuris, 4 (1938), 193–204 at 201–2; Kuttner and Rathbone, ‘Anglo-Norman canonists’, 279–358. A. Gouron, ‘Une école ou des écoles? Sur les canonistes français (vers 1150–vers 1210)’, Proceedings Berkeley, pp. 223–40; A. Gouron, ‘Canon law in Parisian circles before Stephen of Tournai’s Summa’, Proceedings San Diego, pp. 497–503 at 502–3. See also A. Gouron, ‘Le rôle des maîtres français dans la renaissance juridique du XIIe siècle’, read in Droit et coutume en France aux XIIe et XIIIe siècles (London, 1993), 15.198–207 on civilians. R. Weigand, ‘The transmontane school’, HMCL, pp. 174–210. P. Landau, ‘The origins of legal science in England in the twelfth century: Lincoln, Oxford and the career of Vacarius’, in M. Brett and K. G. Cushing (eds.), Readers, Texts and Compilers in the Earlier Middle Ages: Studies in Medieval Canon Law in Honour of Linda Fowler-Magerl (Aldershot, 2009), pp. 165–82 at 175–9; P. Landau, ‘Die Kölner Kanonistik des 12. Jahrhunderts. Ein Höhepunkt der europäischen Rechtswissenschaft’, Kölner Rechtsgeschichtliche Vorträge, 1 (Cologne, 2008), pp. 1–39. Repert., pp. 133–6; Stephen of Tournai, Die Summa des Stephanus Tornacensis über das Decretum Gratiani, ed. J.-F. von Schulte (Giessen, 1891). These links are dated to 1166–9 by H. Kalb, Studien zur Summa Stephans von Tournai: ein Beitrag zur kanonistischen Wissenschaftsgeschichte des späten 12. Jahrhunderts, Forschungen zur Rechts- und Kulturgeschichte, 12 (Innsbruck, 1983), pp. 108–12; Pennington, ‘The decretists’, pp. 136–8. Repert., pp. 148–9; Schulte, Quellen und Literatur, pp. 140–2; Summa decretum Simonis Bisinianensis, ed. P. V. Aimone-Braida, MIC, B, 8 (Vatican City, 2014); Pennington, ‘The decretists’, pp. 140–1. On Simon and Bologna, see Weigand, Die Glossen, p. 615; R. Weigand, ‘Die Glossen des Simon von Bisignano’, AKKR, 161 (1992), 362–95; P. Landau, ‘Simon von Bisignano, Sikard von Cremona und die Mainzer Kanonistik der Barbarossazeit: Zur Biographie des Simon von Bisignano und zur Forschungsgeschichte’, BMCL, 28 (2008), 119–44 at 136–8; most recently M. Bertram, ‘Simon of Apulia. Randbemerkungen zu der Edition der Dekretsumme des Simon von Bisignano’, 14 November 2017, https://mittelalter.hypotheses.org/10240 (last accessed 12 June 2019).

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Schools of Canon Law in the Mid-Twelfth Century and now Bertram have hypothesised, Simon was indeed outside the mainstream Bolognese tradition because he was a transmontane canonist.29 Anonymity still presents a problem, especially in the period to 1180.30 Aside from Stephen and Gérard Pucelle, later bishop of Coventry, very few of these northern canonists can be identified and the major canonical works they produced, such as the Summa Parisiensis,31 the Summa Coloniensis,32 and the Summa Monacensis,33 are mostly anonymous. Far fewer manuscripts of transmontane summae survive than their Bolognese counterparts: Kuttner listed fifteen manuscripts of Rufinus, twenty-four of Stephen of Tournai, and thirty-six of Johannes Faventinus compared to a single surviving manuscript of each of the Summa Parisiensis and Summa Monacensis, and three of the Summa Coloniensis, the transmontane schools’ most characteristic work. Locating works geographically or intellectually helps identify links between schools of thought, without obscuring the fact that canonists disagreed with and borrowed heavily from one another. Redating the works therefore has significant repercussions.34 One interesting, if unforeseen, consequence of scholarly redating since the 1970s is that the major summae, rather than being presented as a slowly expanding corpus commenting progressively on the Decretum, are now seen to overlap, strengthening the impression of different schools of thought, but further complicating the accurate dating of individual works. Given the existence of scholarly disagreements, here the summae have been dated according to the History of Medieval Canon Law in the Classical Period.35 Simon of Bisignano’s Summa demonstrates contemporary currents of thought better than the others evaluated here, written as it was around the 29

30 31

32

33

34

35

On the transmontane summae see Repert., pp. 168–207; Rudolf Weigand, ‘The transmontane decretists’, HMCL, pp. 174–210. Kuttner, ‘L’école canoniste française’, p. 201. Repert., pp. 177–8; The Summa Parisiensis on the Decretum Gratiani, ed. T. McLaughlin (Toronto, 1952). Otherwise known as the Summa ‘Elegantius in iure divino’. See Repert., pp. 170–2; Die Summa Elegantius in iure divino, seu Coloniensis, ed. G. Fransen and S. Kuttner, MIC, A, 1 (4 vols, New York and Vatican City, 1969–90); P. Gerbenzon, ‘Bertram of Metz, the author of the “Elegantius in iure diuino” (Summa Coloniensis)’, Traditio, 21 (1965), 510–11. Otherwise known as the Summa ‘Inperatorie Maiestati’. See Repert., pp. 179–80; Munich, BSB, clm 16084, fols 1–9, 11–16, 18–27. Noted by André Gouron when redating Rufinus’ Summa to the mid-1160s: A. Gouron, ‘Sur les sources civilistes et la datation des Sommes de Rufin et d’Étienne de Tournai’, BMCL, 16 (1986), 55–70 at 68. ‘Paucapalea’ is dated as ca. 1144–50, Rolandus in five recensions between 1150 and 1160, Rufinus as ca. 1164, Stephen of Tournai as ca. 1165–7, the Summa Parisiensis as the late 1160s but before 1169, the Summa Coloniensis as ca. 1169, the Summa Monacensis as ca. 1175, and Simon of Bisignano as ca. 1177–9.

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The 1179 Canons and the Schools time of the 1179 council.36 The dating of this summa is more difficult than most, however, precisely because of its relationship to the 1179 council: c. 12, Clerici in subdiaconatu, is cited at C.11 q.1 c.29 in several, but not all, manuscripts.37 As one of the eldest manuscripts contains no mention of the canon, McLaughlin believed it to be a later addition.38 Since it is now thought that Simon’s Summa was created in multiple recensions, this is a tangible possibility even if the canon was not added by a later commentator. Aimone has followed McLaughlin, and excluded the comment on c. 12 from the recent edition of the Summa.39 However, three glosses of Simon published by Rudolf Weigand also cite the 1179 council.40 Glosses are often seen as a canonist’s original comments on the Decretum, gathered together later to produce the summae. If that was the case, then Simon’s Summa could not predate the 1179 council, and therefore reflects the changes brought in by Lateran III, rather than demonstrating the problems and difficulties encountered in ecclesiastical government which prompted them. Johannes Faventinus and Rufinus are now believed to have continued teaching after compiling their summae, however, so there is no reason to assume Simon did not.41 At the same time, Weigand noted that the citation of the council may be a later addition to Simon’s glosses, and refused to be drawn on whether these glosses predated the Summa.42 Aimone, by contrast, stated his belief explicitly on several occasions that Simon’s glosses predate his Summa, while Juncker, an early commentator, was unaware of a critical manuscript now in Zwettl.43 A number of Simon’s glosses are not duplicated in his Summa, suggesting either significant revision before inclusion, or that Simon continued teaching after 36 37

38 39

40

41

42

43

The Summa survives in ten manuscripts, of which one is a fragment: Repert., pp. 148–9. T. McLaughlin, ‘The Extravagantes in the Summa of Simon of Bisignano’, Mediaeval Studies, 20 (1958), 167–76 at 169. Holtzmann investigated Juncker’s claim that Simon had used a collection of the Italian family: W. Holtzmann, ‘Zu den Dekretalen bei Simon von Bisignano’, Traditio, 18 (1962), 450–9. McLaughlin, ‘The Extravagantes’, 11, p. 169. P. V. Aimone-Braida, ‘Prolegomena’, Summa decretum Simonis Bisinianensis, p. xli; Simon of Bisignano, Summa to C.11 q.1 c.29 at p. 211. Aimone-Braida, ‘Prolegomena’, 1, 3, 4 at pp. lxxxv–lxxxvii; 3 Lat. c. 16 = 42e to D.19 c.1, Weigand, ‘Glossen des Simon’, at p. 371; 3 Lat. c. 16 = 76 to D.23 c.1, Weigand, ‘Glossen des Simon’, at p. 377; 3 Lat. c. 3 = 81 to D.23 c.1, Weigand, ‘Glossen des Simon’, at p. 378. Pennington, ‘The decretists’, p. 139. See also R. Weigand, ‘Die ersten Jahrzehte der Schule von Bologna: Wechselwirkungen von Summen und Glossen’, Proceedings Munich, pp. 445–65 at 454–56 on the relationship between Rufinus’ text and his glosses. Weigand, ‘Glossen des Simon’, p. 393; P. V. Aimone-Braida, ‘Some remarks on a critical edition of the Summa of Simon of Bisignano’, Proceedings Washington, pp. 191–206 at 201; Aimone-Braida, ‘Prolegomena’, p. lxxxvii; Rudolf Weigand, ‘The development of the Glossa Ordinaria to Gratian’s Decretum’, HMCL, p. 75. Gloss to D.23 c.1 v. disponendi at J. Juncker, ‘Die Summa des Simon von Bisignano und seine Glossen’, ZRG Kan. Abt., 15 (1926), 403.

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Schools of Canon Law in the Mid-Twelfth Century the appearance of his long commentary and that these glosses are the remnant of that teaching.44 One of these, the gloss at D.19 c.1, cites the 1179 council in the Zwettl manuscript but not in Berlin, Staatsbibliothek, Phil. 1742. It therefore seems that the glosses demonstrate the assimilation of the canons into Simon’s work – but whether that was by Simon shortly after the council or by an unknown commentator at a later date cannot be determined.45 The important point is that the Summa was hardly influenced by the 1179 conciliar canons. Even if Simon’s Summa post-dates 1179, it still presents a critical witness to one particular branch of contemporary canonistic thought. The result is a body of texts, employed here to demonstrate how the canons emerged from the milieu of the law schools as well as in response to individual questions asked of the pope in his role as judge. There are some absences: despite its importance later in the century, the gloss apparatus Ordinaturus Magister, for example, has barely been used as it probably post-dates the 1179 council.46 Nevertheless, there are three main ways in which the canons that were promulgated in Rome emerged from the debates and discussions surrounding canon law at the time. 44

45

46

Weigand, at least, believed that the Zwettl manuscript represented an important witness for Simon’s glosses while acknowledging that it was not without its faults: Weigand, ‘Glossen des Simon’, p. 395; and at p. 362 notes that forty-two of Juncker’s one hundred glosses have no parallel in the Summa. Aimone, ‘Some remarks’, pp. 195, 201; Aimone, ‘Prolegomena’, pp. xi–xii; Weigand, ‘Glossen des Simon’, pp. 613–15. J. Kejrˇ, ‘La genèse de l’apparat “Ordinaturus” au Décret de Gratien’, Proceedings Boston, pp. 45–54 at 51: ‘les citations nombreuses du troisième concile de Latran nous permettent de conclure que l’apparat a été composée, dans son stade ultime, après 1179’. Kejrˇ used Munich, BSB clm 10244 as the base text for his examination while drawing attention to its infelicities; while Weigand considered the manuscript representative of the second recension he agreed with Kejrˇ’s date. See R. Weigand, ‘Der erste Glossenapparat zum Dekret: “Ordinaturus Magister”’, BMCL, 1 (1971), 31–41 at 39: ‘Für die Abfassungszeit der 1. Rezension ist an der von Kejrˇ genannten Zeit von etwa 1180 festzuhalten’. Neither publicly altered their stance: J. Kejrˇ, ‘Apparat au Décret de Gratien “Ordinaturus”, source de la “Summa Decretorum” de Huguccio’, in Collectanea Stephan Kuttner, Studia Gratiana, 12 (1967), 145–64 at 163; R. Weigand, ‘Zur Handschriftenliste des Glossenapparats “Ordinaturus Magister”’, BMCL, 8 (1978), 41–7 at 45; Weigand, Die Glossen, pp. 451–5, which also notes a number of glosses written purely for the apparatus. Stickler made the same connection to the 1179 canons but dated the apparatus 1180–2: A. M. Stickler, ‘Zur Enstehungsgeschichte und Verbreitung des Dekretapparats “Ordinaturus Magister”’, Collectanea Stephan Kuttner, Studia Gratiana, 12 (1967), 114–41 at 140. Stickler’s dating is by far the most secure. Instead, the layers of glosses found in BAV, Vat.lat. 2494 have been consulted; they include the third, ‘Rufinus’-composition and elements of the fourth and seventh compositions; the latter is closely related to a proto-Ordinaturus Magister layer and since Vat.lat. 2494 does not appear to cite the 1179 canons where they are found in Erlangen 342 and Hereford P.VII.3, it can be accepted that these glosses were compiled with minimal input from the canons. See Vatican City, BAV, Vat.lat. 2494, passim; Repert., p. 54; Weigand, Die Glossen, pp. 449–50, 974–6, using the siglum Va; Weigand, ‘Ordinaturus Magister’, p. 32; Weigand, ‘The Glossa Ordinaria’, pp. 61–2.

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The 1179 Canons and the Schools reform canons in gratian and his commentators That canonists’ commentaries reflect the development of reform canons over the course of the twelfth century has already been established many times. McLaughlin commented extensively on the idea of usury, first promulgated in the 1139 Lateran council of Innocent II, and traced its development through canonical works.47 The evolution of the idea of ‘just war’ has been linked by Russell to cc. 21, 22, and 27 of the council, although he did not make the connection between decretists and pope explicit.48 Lynch demonstrated the importance of the decretists’ development of the idea of simony over the course of the twelfth century; although he wrote when Alexander III was still believed to be the canonist Rolandus, his account is lucid.49 In particular, he commented extensively on the increasingly critical attitude of all members of religious life towards the custom of giving an entrance gift to a monastery, condemned in c. 10 of the 1179 council.50 These examples suggest that, even if there is no direct textual link between a canonical commentary and the decrees, they reflect the subtle changes in the intellectual environment that appeared over the course of the twelfth century. Some of the canons are more complicated, however, suggesting strong connections between the theological and legal schools or, sometimes, external factors. The prohibition of clerical marriage was as long-standing as that of simony, but in 1179 c. 11 added a condemnation of homosexuality.51 From the legal perspective, such ecclesiastical criticism was relatively novel. A canon from Leo 47

48

49 50 51

T. McLaughlin, ‘The teaching of the canonists on usury’, Mediaeval Studies, 1 (1939), 81–147 at 95–8 on the period before ca. 1190; 3 Lat. c. 25 = COD3, p. 223; COGD, 2.144–5. See now M. Brett and R. Somerville, ‘The transmission of the councils from 1130 to 1139’, in J. Doran and D. J. Smith (eds.), Pope Innocent II (1130–43). The World vs the City (London, 2016), pp. 226–71 at 242–3. F. Russell, Just War in the Middle Ages (Cambridge, 1975), pp. 186, 189. See also S. Ragg, Ketzer und Recht. Die weltliche Ketzergesetzgebung des Hochmittelalters unter dem Einfluß des römischen und kanonischen Rechts, MGH, Studien und Texte, 37 (Hanover, 2006), 201–03 on Lateran III, and passim; T. Lenherr, Die Exkommunikations- und Depositionsgewalt der Häretiker bei Gratian und den Dekretisten bis zur Glossa Ordinaria des Johannes Teutonicus, Münchener Theologische Studien, 3, kanonistische Abteilung, 42 (Munich, 1987), pp. 194–214. Lynch, Simoniacal Entry, pp. 106–32. 3 Lat. c. 10 = COD3, p. 217; COGD, 2.135–6; Lynch, Simoniacal Entry, pp. 149–50. 3 Lat. c. 11 = COD3, pp. 217–18; COGD, 2.136; J. A. Brundage, Law, Sex and Christian Society in the Middle Ages (Chicago, 1987), pp. 313–14; V. Bullough, ‘The sin against nature and homosexuality’, in V. Bullough and J. A. Brundage (eds.), Sexual Practices & the Medieval Church (Buffalo, 1982), pp. 55–71 at 62–4; J. Boswell, Christianity, Social Tolerance, and Homosexuality: Gay People in Western Europe from the Beginning of the Christian Era to the Fourteenth Century (Chicago, 1980), pp. 277–8. Although the 1179 decree condemns crimes ‘against nature’, itself a rather flexible term, the consensus remains that the condemnation refers to homosexuality.

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Reform Canons in Gratian and His Commentators IX’s 1049 council at Reims condemned the crimes of the sodomites;52 an expansion of this at a local council in London in 1102 deposed offending clerics from their orders and deprived the laity of their legal dignity.53 Both of these criticisms were in the distant past, however, and cannot have been direct catalysts for the inclusion of ‘crimes against nature’ in the 1179 canons. Although canonists including Rolandus and the author of the Summa Parisiensis were critical of sex ‘against nature’, it is difficult to maintain that the condemnation of lay and ecclesiastical sodomy included in the 1179 canons was a direct result of their comments. Boswell noted the presence of Alain of Lille in Rome in 1179, and linked it to his authorship of the poem The Complaint of Nature, although homosexuality was not Alain’s principal target in matters of sexual morality.54 Other law codes, including those from Isaurian Byzantium, condemned homosexuality in far harsher terms than those used in 1179. As Kedar demonstrated, the impact of those prohibitions was felt not only when twelfth-century clerics read these secular codes, but also when they read any one of the subsequent Byzantine law codes, some of which had long afterlives in the Levant – as, for example, in the decrees issued at the 1120 council at Nablus.55 Despite the chronological distance between their appearance, the link between the Isaurian codes and Nablus also demonstrates how conciliar decrees could, in the right circumstances, emerge from previous legal conversations. Benefices Of the four 1179 canons that concern the holding of benefices, three represent a repetition of ancient principles and, as a result, were the subject of study and debate in the years around 1170. Canon 5, Episcopus si aliquem, ordered bishops to provide suitable income for 52

53

54 55

U.-R. Blumenthal, ‘Ein neuer Text für das Reimser Konzil Leos IX. (1049)?’, DA, 32 (1976), 23–48: 11, p. 32 (Sodomitica luxuria remaneat omnino), and 12, p. 32 (Praedam penitus non faciant; qui vero fecerint et non resipuerint, a communione totius christianitatis in vita et morete alieni fiant). Councils & Synods, 1.678–9: Qui vero in hoc crimine publicatus fuerit, statutum est si quidem fuerit persona religiosi ordinis, ut ad nullum amplius gradum promoveatur, et si quem habet ab illo deponatur. Si autem laicus, ut in toto regno Anglie legali sue conditionis dignitate privetur. Boswell, Christianity, Social Tolerance, and Homosexuality, p. 310. Ecloga: das Gesetzbuch Leons III. und Konstantinos V, ed. L. Burgmann, Forschungen zur byzantischen Rechtsgeschichte, 10 (1983), 239 at 17.38 and now M. T. G. Humphreys, The Laws of the Isaurian Era: The Ecloga and its Appendices, Translated texts for Byzantinists, 3 (Liverpool, 2017), p. 75. See also B. Z. Kedar, ‘The origins of the earliest laws of Frankish Jerusalem: the canons of the Council of Nablus, 1120’, Speculum, 74 (1999), 310–35 at 314, 318–19. On Nablus as a synod or secular gathering see H. E. Mayer, ‘The Concordat of Nablus’, JEH, 33 (1982), 531–43 at 533.

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The 1179 Canons and the Schools those they appointed deacon or priest without a title. Canons 13 and 14 both condemn the holding of multiple benefices.56 Canon 8, rather more novel, prohibited the promise of benefices before they fell vacant.57 The ideas in cc. 5, 13, and 14 were all incorporated into Gratian. In D.70, Gratian forbade certain ordinations. In particular, he criticised ordinations ‘absolute’ (i.e. without a title): in D.70 c.2, he used Urban II’s Council of Piacenza against those ordained without a title, and also provided that those who were ordained must remain loyal to their original title. This loyalty provided the link to the discussion of pluralism that otherwise constituted most of C.21 q.1 and appeared in C.16 q.7 c.20§2.58 In particular, the canon stated that, ‘while by the decision of the bishop, one may possess many churches, he ought to be a canon or prebendary of only the one in which he is titled’. These extracts were the basis for the legal commentaries. While C.16 q.7 c.20 was often overlooked by the decretists, they did comment on D.70 c.2 and C.21 q.1. Rolandus’ five-word overview stated ‘that no one should be ordained absolutely’.59 Stephen of Tournai expanded this, commenting that ‘none ought to be titled to two churches, unless through necessity or because he has one in title and the other as custodian’.60 According to Rufinus, the canon commanded that ‘no cleric is ordained without the title to their own church’, noting that ‘absolute ordination is forbidden lest it create wandering, worldly, and leaderless clerics’.61 However, he produced a problem. Did not the Roman Church consistently appoint men subdeacons and to lower positions without a specific title, according to an ancient custom?62 Here too the relationship between absolute ordination and pluralism becomes clear. Similarly to Stephen, Rufinus noted: 56

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3 Lat. c. 13 = COD3, p. 218; COGD, 2.137; 3 Lat. c. 14 = COD3, pp. 218–19, COGD, 2.137–8. On the ‘Reform’ papacy’s distaste for pluralism, see S. Schoenig, ‘Withholding the pallium as a tool of the reform’, Proceedings Esztergom, pp. 577–88 at 578. 3 Lat. c. 5 = COD3, p. 214; COGD, 2.131. Decretum, D.70 c.2: Licet enim episcopi dispositione unus diuersis preesse possit ecclesiis, canonicus tamen prebendarius, nisi unius ecclesiae, in qua conscriptus est, esse non debet; Decretum, C.16 q.7 c.20§2: Nullus presbiter duas habeat ecclesias. Rolandus, Summa to D.70, at p. 10: Quod nemo absolute sit ordinandus. Stephen of Tournai, Summa to D.70 d.p.c.1, at p. 96: Sed et duabus ecclesiis attitulari quis non debet, nisi lex necessitatis, vel quia alteram habeat titulatam, alteram commendatam. Rufinus, Summa to D.70 pr., at p. 161: quod nullus clericus absque proprie ecclesie titulo est ordinandus; alioquin irrita habetur ordinatio. Ideo autem hec absoluta ordinatio prohibita est, ne vagos, seculares, et acephalos redderet clericos. Rufinus, Summa to D.70 pr., at p. 161: Sed numquid non in tota pene Romana provincia hodie clerici, maxime a subdiacono infra, ex longeva consuetudine absque titulo ordinantur?

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Reform Canons in Gratian and His Commentators It is said that everyone should always stay in the church to which he is titled, nor should he hold a benefice unless from that church in which he is titled. For no one can be titled in two churches, although he may have one church as a title and another as a custodian, as is said in C.21 q.1, unless it is conceded to him by special right to be titled in two.63

The Summa Parisiensis briskly explained Gratian’s comments, pointing out that absolute ordination meant ordination without the title of any church, and at D.70 c.2 noted that ‘truly, none ought to have two prebends’.64 The Summa Coloniensis considered D.70 at 3.72 and 3.77. The author perceived that clerics without title would lack an office or benefice from which to draw an income. He quoted extensive sections of Gratian’s texts in both locations, noting at the former that ‘no one is to be ordained absolute’ and pointing to Chalcedon and the council of Urban as his authorities.65 By contrast, Simon of Bisignano’s commentary lacks any mention of D.70 pr. or D.70 c.1, and at D.70 c.2 merely contains a warning about abuses of papal power, an oddity given that Simon makes no overt comment on such abuses at C.21 q.1 c.5 where papal power is explicitly mentioned in the text.66 All the commentators agreed, therefore, that ordination without a title was forbidden, making c. 5 of the council unsurprising. Their instinctive movements between D.70 c.2 and C.21 q.1, the condemnation of pluralism, are still intriguing.67 Given the relationship between pluralism and absolute ordination in the minds of the commentators, it could be that the three canons were conceived together, with c. 5 perhaps intended as a companion canon to cc. 13 and 14. These two latter decrees are already odd as they rehearse the same material, and the surviving manuscript evidence raises doubts over whether they were promulgated together.68 They may also, therefore, reflect different opinions on the holding of multiple benefices seen in the widely discussed C.21 q.1, which considered whether a cleric could hold two churches at the same time. While most of the questio originated in the first recension of Gratian, the argument, that it was not possible for a cleric 63

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Rufinus, Summa to D.70 pr, at p. 162: dicitur quod quisque semper maneat in ecclesia, in qua est titulatus, nec habeat prebendam nisi de illa ecclesia, in qua titulatus est. Nec titulari quis valet in duabus, licet unam possit habere titulatam et aliam commendatam, ut est infra C.21 q.1; nisi forte iure speciali duabus ei concederetur intitulari. Summa Parisiensis to D.70 c.2, at p. 59: Vere nullus debet habere duas praebendas. Summa Coloniensis, 3.72–8 at 1.148–50, which covered having multiple churches. Simon of Bisignano, Summa to D.70 c.2, at p. 62. The commentaries are littered with links, demonstrated by the examples given above and the glosses to Vat.lat. 2494: Vatican City, BAV, Vat.lat. 2494, gloss to C.21 q.1, at fols 171rb–va cites D.70 three times. See Chapter 4 below, pp. 158–60.

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The 1179 Canons and the Schools to hold two titles, lost some of its force through the inclusion of C.21 q.1 c.5, permitting a bishop to hold multiple sees if and only if he had a specific papal privilege giving him permission.69 The Summa Coloniensis followed Gratian’s lead and strongly condemned all holding of multiple churches.70 It used C.21 q.1 c.5 in a separate chapter, however; like most of the decretists, its author struggled to incorporate the privileged aspect of the papacy in a questio that was critical of pluralism.71 The Summa Coloniensis does not comment upon a critical dichotomy in the questio that most other decretists noticed, however, between title and income. Rolandus began his commentary on C.21 q.1 by noting numerous authorities supporting Gratian’s contention that only one church could be held at any time.72 About halfway through this commentary, he made a distinction between holding the title to more than one church, and holding the income to more than one church. Put simply, he argued that if a cleric could support himself on the income from one benefice, then on no account should he take another. If, however, the cleric could not support himself on the revenues from one church, then Rolandus admitted that the situation became more complicated. Other decretists followed Rolandus’ lead: Stephen of Tournai copied his approach, while the Summa Parisiensis rather sanguinely noted that despite decrees stating that clerics could not be given the title to more than one church, ‘today custom tends to the contrary’. It distinguished between cases where the revenue of one church is sufficient and those where it is not.73 At one point, the author compares a cleric with two titles to the owner of two tunics who gives one away to someone who has none. In turn, Rufinus commented extensively and lucidly on C.21 q.1. He immediately differentiated between the two ways of holding two churches: one where a cleric holds a title in two churches, and one where he draws income from two churches.74 He permits some 69

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A. Winroth, The Making of Gratian’s Decretum (Cambridge, 2000), p. 217; Decretum, C.21 q.1 d.p. c.6: Non enim potest utrique presidere tamquam titulatae, sed uni tamquam commendatae, alteri vero tamquam titulatae preesse valet. Summa Coloniensis, 3.80–2 at 1.151–2. The rubric for 3.80 reads Secundum ius strictum nullum in duabus ecclesiis titulari. Summa Coloniensis, 3.83 at 1.152: Denique ut sufficientibus sibi ecclesiis earumque ministris secundum titulum uel clericatus uel prelationis utramque duarum aliquis obtineat, non nisi speciale summe sedis priuilegio fieri potest. Rolandus, Summa to C.21 q.1, pr., at pp. 75–6. The other canons are C.21 q.1, D.70 c.2§1; C.10 q.3 c.3; C.7 q.1 c.29; D.71 c.4, D.25 c.pen (probably c. 5). Summa Parisiensis to C.21 q.1 pr., at p. 199: plures aiunt et decreta conclamant clericos in duabus ecclesiis conscribi non debere, sed tamen hodie contraria obtinet consuetudo. Distinguendum est igitur quoniam ecclesiarum aliae sunt quarum redditus una sufficiunt, aliae non. Si forte habeat aliquis ecclesiam quae ei sufficiat, in alia conscribi non debet. Si non sufficiat, forte potest. Rufinus, Summa to C.21 q.1 pr., at p. 383: quoad titulum, ut scil. in duabus ecclesiis sit intitulatus; quoad stipendium, ut duarum ecclesiarum sit prebendarius.

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Reform Canons in Gratian and His Commentators pluralism: ‘for, if he cannot sustain himself on [the income from] one church . . . then he can seek an income from two churches’.75 Rufinus permitted this ‘since it seems to be supported through custom and to be close to equity and reason’.76 He also allowed for one cleric to belong to many churches in the same diocese or city if there was a lack of priests; one cleric could never be subject to two different bishops, however.77 Overall, therefore, the early canonists (i.e. those writing before 1170) distinguished between a cleric holding two churches because the income from one was insufficient and a cleric who held two for no good reason. The comment in the Summa Parisiensis, that ‘custom tends to the contrary’, nevertheless suggests a disparity between the influence of the canonists and the realities of legal practice. A similar perspective can be seen in Simon of Bisignano. Despite sharing the outlook of Rufinus and the author of the Summa Parisiensis, Simon cited an extravagans in his commentary alongside D.70 c.2 and C.10 q.3 c.3.78 He accepted that a priest could receive a stipend from multiple churches in order to survive, but he added a clause whereby a prelate could strip a cleric of unnecessary additional benefices in order to provide for other clerics in need; the decretist’s sole authority for this provision was WH 858.79 He also noted a disparity: this was ‘not what is done in Rome, but what ought to be done in Rome’.80 That difference could explain cc. 13 and 14.1, which otherwise stand out for their rather puzzling repetition. Canon 13 condemns those who, ‘setting no limit to their avarice, strive to obtain several ecclesiastical 75

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Rufinus, Summa to C.21 q.1 pr., at p. 383: si enim una ecclesia non potest eum sustentare et ex alio honesto sibi artificio victum habere non potest, tunc licite ex duabus ecclesiis potest stipendia querere. Rufinus, Summa to C.21 q.1 pr., at p. 383: sed quoniam et consuetudini favere et equitati rationique propinquum esse. Rufinus, Summa to C.21 q.1 c. 2, at p. 384: Non ideo hoc dicit, quin et prohibeantur conscribi in pluribus ecclesiis unius civitatis, sed quia frequentius evenit, ut in diversarum civitatum duabus ecclesiis clericus intituletur, et illud prohibetur specialius, quod solet evenire frequentius. Vel dicatur quia ideo prohibet de ecclesiis duarum civitatum, quoniam tunc propter inopiam clericorum licitum erat uni clerico in pluribus ecclesiis unius episcopatus conscribi. Simon of Bisignano, Summa to C.21 q.1 d.a.c.1, at p. 355: In diuersis autem ecclesiis potest quis stipendia percipere in eo dumtaxat casu, si una ei ad necessaria non uidetur sufficere, ut supra C.10 q.ult. Vnio et d.lxx. Sanctorum canonum et in Extra. c. Referente. These correspond to C.10 q.3 c.3 and D.70 c.2. Referente is WH 858: JL 14168 = X 3.5.7. See also McLaughlin, ‘The Extravagantes’, 68 p. 174. Simon of Bisignano, Summa to C.21 q.1 d.a.c.1, at p. 355: Et usque adeo regulariter obtinet quod dicimus, quod si prelatus alicui habent duas ecclesias quorum una sufficit, etiam non seruato iudiciario ordine unam abstulerit, non cogitur ei restituere, sed debet eam potius alicui indigenti concedere, ut in Extra. c. Referente. Simon of Bisignano, Summa to C.21 q.1 d.a.c.1, at p. 355: Sed hoc quod dicimus non approbant, sed potius infirmare conantur, qui nobis consuetudinem contrariam nituntur obicere, cum propositum nostrum sit ostendere, non quid Rome fiat sed quid Rome fieri debeat.

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The 1179 Canons and the Schools dignities and several parish churches’, while c. 14.1 notes that the ‘ambition of some has now gone to such lengths that they are said to hold not two or three but six or more churches’.81 Canon 13 therefore criticises all pluralism, while c. 14.1 could be read as proscribing only the holding of superfluous benefices.82 In that, it is more in keeping with the tone of the decretist literature permitting clerics to take their income from multiple churches in order to survive. Canon 14.1, requiring bishops to redistribute the excess benefices of clerics guilty of plurality, is also strikingly close to the approach of Simon of Bisignano. If these ideas were both deliberately incorporated into the conciliar canons, then Alexander and his curia were being far too sophisticated for their audience: cc. 13 and 14 have an inconsistent survival in manuscripts of the canons.83 Although Alexander’s curia had the legal learning and knowledge to deliberately separate the two types of pluralism, it would also be uncharacteristic to make such a specific distinction in so general a forum as a papal concilium generale. Another striking point here is how far from the decretist commentaries the conciliar canons fall. These canons are an outright attack on pluralism and, combined with c. 5, place responsibility firmly on episcopal jurisdiction. A common theme in the 1179 canons generally seems to be the reinforcement of episcopal jurisdiction, but here the bishops would no doubt have protested at the problems the curia laid at their door – especially when the decretists argued that a specific papal, not episcopal, grant was required in order to allow even one instance of pluralism. novel canons On a fundamental level, however, twelfth-century commentators on Gratian were limited by, although not always to, the Decretum’s contents. While decretists would comment on issues tangential to the text, that text still provided their basic framework. Minor glosses, for example, often provide cross-references to other parts of Gratian; the cross-referenced texts both agree and disagree with the commentary. Yet a number of the 1179 canons were novel in character or focus. Even these, however, still drew upon ideas and characteristics which predated the 1179 council. Since the decretists’ comments were restricted to Gratianic texts, to find evidence of the novel canons requires a degree of sifting, and it is all the more interesting when it is uncovered.

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See below pp. 158–60.

Novel Canons Monastic Privileges, c. 9 As an example, the Templars and Hospitallers are mentioned extremely rarely. Simon of Bisignano, chronologically the last of the decretists considered here, mentioned the Templars and Hospitallers only once in his commentary, alongside the Cistercians and in the context of tithe exemptions, at C.16 q.1 c.46.84 However, Simon also commented on Adrian IV’s attempt to limit tithe exemptions, citing Nobis in eminentia.85 He then used Fraternitatem tuam and Ad audientiam nostram, two letters of Alexander III renewing exemptions for the Cistercians, Hospitallers, and Templars, commenting that the exemption was applied to those orders because ‘at the time, their churches were rare’.86 Simon disliked the clause because of its effect on poor clerics and churches, and was highly critical of the privileges.87 At the same place, Rufinus cited a ‘decree’ of Adrian but made no mention of the Templars or Hospitallers; it is perhaps also telling that in Laborans’ Compilatio Decretorum, c. 9 is the only canon promulgated in 1179 not to be included in the marginal annotations.88 The absence of the Hospitallers in summae does not necessarily mean that they were not discussed: James Brundage has noted the existence of a disputatio from Oxford concerning the privileges of the Hospitallers.89 The date of this disputatio is uncertain. Brundage dated it to the 1190s on the basis that the Oxford law school could not be earlier than ca. 1190, although this has now been challenged.90 Consequently, while the disputatio cannot provide evidence for canonistic debate over the privileged orders before 84 85 86

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Simon of Bisignano, Summa to C.16 q.1 c.46, at p. 304. WH 664: JL 10444 = 1 Comp. 3.26.15. Simon of Bisignano, Summa to C.16 q.1 c.46, at p. 304: Alibi tamen uidetur dici quod solis fratribus Cisterciensis ordinis Templariis et Hospitalariis olim fuerit concessum, quia tunc eorum ecclesie rare erant; WH 518: JL 13873 = 1 Comp. 3.26.8 (Fraternitatem tuam); WH 31: JL 13859 = X 30.12 (Ad audientiam nostram); cf. Chapter 2, p. 89 above. Simon of Bisignano, Summa to C.16 q.1 c.46, at p. 304: Unde causa constitutionis illius hodie locum non habet nec ergo constitutio locum habebit. Extenderunt enim tali palmites a mari usque ad mare et eorum priuilegium pauperibus clericis et ecclesiis per nimium inueniretur esse dampnosum. Rufinus, Summa to C.16 q.1 c.46, at p. 356; Martin, ‘Die Compilatio Decretorum’, pp. 133. J. A. Brundage, ‘A twelfth-century Oxford disputation concerning the privileges of the Knights Hospitaller’, Mediaeval Studies, 24 (1962), 153–60, at 158–60. R. W. Southern, ‘Master Vacarius and the beginning of an English academic tradition’, in J. Alexander and M. Gibson (eds.), Medieval Learning and Literature. Essays Presented to Richard William Hunt (Oxford, 1976), pp. 257–86, at 266–73 argued against the law school before 1190. See also P. Stein and F. de Zulueta, The Teaching of Roman Law in England around 1200 (London, 1990), pp. xxii–xxvii. However, Henry Mayr-Harting demonstrated the existence of magistri in Oxford in his ‘The role of Benedictine abbeys in the development of Oxford as a centre of legal learning’, in H. Wansbrough and A. Marett-Crosby (eds.), Benedictines in Oxford (London, 1997), pp. 11–19 at 12–13; and Thomson argued that there was a law school present as early as the 1150s: R. M. Thomson, ‘Serlo of Wilton and the schools of Oxford’, Medium Aevum, 68 (1999), 1–12 at 10–12.

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The 1179 Canons and the Schools the 1179 council, it does suggest that they presented problems that lawyers needed to consider. In this particular case, therefore, it seems likely that the reliance of the summae on Gratian led to little discussion of the new orders and that the canon of 1179, which effectively applied the same rules to Templars and Hospitallers as those previously introduced for other religious houses, emerged purely from local concerns. Leper Colonies, c. 23 Finding decretist comments on leprosy is also difficult, in part because Gratian’s thoughts on leprosy are frequently limited to the dicta and infrequently provided a base for his commentators. The argument made earlier, that the specific tithe exemptions in c. 23 emerged from specific cases, is supported by the absence of much discussion of exemptions in decretist works, but the underlying idea of the separation of lepers does appear in Gratian, most often in the context of the discussion of simony in C.1 q.1. The link between simony and leprosy built on the writings of Ambrose, Augustine, and Gregory of Nazareth.91 The equating of heresy with leprosy and the resulting social exclusion is a theme in the work of R. I. Moore in particular, but in the case of the 1179 canon it is clear that the lepers referred to are those unfortunates stricken by some biological disease.92 It was not an attempt to isolate those who held heretical or schismatic views. The portrayal of leprosy as a disease of spiritual degeneration can only vaguely be linked to the 1179 canon, which attempts to protect lepers rather than denigrate them. Many early references to leprosy are lacking from the Decretum, and in particular none of the early medieval decrees mentioned above were included.93 Yet the decretists still commented on a few texts, at least in passing. The principal occasion for consideration of lepers’ status as outsiders appears in C.11 q.3 c.44, where Gratian quotes Jerome’s commentary on Matthew.94 C.11 q.3 is broadly concerned with the removal of priests from their office. In particular, it focusses on circumstances when a priest can be removed by a superior. The passage from Jerome appears to 91 92

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E.g. Decretum, C.1 q.1 cc.11, 14, 16, 23, and 38 (Augustine). R. I. Moore, ‘Heresy as disease’, in W. Lourdaux and D. Verhelst (eds.), The Concept of Heresy in the Middle Ages (11th–13th Centuries): Proceedings of the International Conference, Louvain, May 13–16, 1973, Mediaevalia Lovaniensia, series 1, Studia, 4 (1976), pp. 1–11 at 5, 11. See p. 86 n. 256 above. This is not the place to do justice to such a complex issue, but Melodie Eichbauer, who is currently working on leprosy in medieval canon law, has told me that earlier canonical collections do include the texts, as part of debates over the inclusion of lepers in society. Decretum, C.11 q.3 c.44: Quomodo sacerdos mundum leprosum non facit, sic episcopus uel presbiter non alligat eos, qui insontes sunt, nec, soluit noxios, sed pro offitio suo cum peccatorum varietates audierit, scit qui ligandus sit, qui soluendus.

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Novel Canons exonerate from episcopal censure priests who do not attend leprous members of their flock. The clear implication is that segregation of lepers – who, according to Leviticus, ought to live ‘outside the camp’ while unclean – was considered necessary. Moreover, Gratian took a segment of a longer passage. He used only the legally significant section, omitting Jerome’s lengthy, repetitive exegesis.95 Nevertheless, for Gratian the canon was an example of a legal situation which may occur, and he felt no need to comment upon the position of lepers which the canon assumed: that of outcasts. Canon 23 of the 1179 council did not, therefore, follow Gratian’s chapter in condoning priests who abandoned their leprous flock. In fact, it ordered the opposite. Yet it also provided an explicit statement of the need to separate leprous and non-leprous members of society. The ‘proposition’ concerning leprosy that preceded the 1175 Council of Westminster suggests there was a need to restate the biblical law,96 but few of the canonists enlarged upon that aspect of C.11 q.3 c.44 before the 1170s. The Summa Coloniensis engaged in a discussion of just and unjust sentencing, as did Rolandus, albeit for the questio as a whole.97 Rufinus omitted the chapter, as did the early gloss compositions and the minor glossators.98 The anonymous author of the Summa Parisiensis made a legal note on the definition of alligabit.99 Simon of Bisignano’s commentary therefore provides a significant contrast to earlier decretist approaches to leprosy. It refers to Quomodo . . . mundum non facit leprosum as a ‘custom of the ancients’. Anyone believed to be leprous was examined by a priest. If leprosy were judged to be present, then the affected individual was removed from the company of men so that he did not mix with the clean.100 A comparison with Sicard of Cremona is instructive here. Sicard took a more legalistic approach than most. He included a brief comment,

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A longer passage can be found in Ivo, Decretum, 14.07 (https://ivo-of-chartres.github.io/decre tum/ivodec_14.pdf) and in most of the ‘Ivonian’ collections (see the collation of canons at https:// ivo-of-chartres.github.io/decretum/id_concordance.pdf) last accessed 1 September 2018. M. G. Cheney, ‘A new light on an old source: the Council of Westminster, 1175’, SCH, 11 (1975), 61–8 at 67; Councils & Synods, 1.981 and see p. 87 above. Summa Coloniensis, 7.50, at 2.182; Rolandus, Summa to C.11 q.3, at pp. 25–6. Rufinus, Summa to C.11 q.3, at p. 318; Vatican City, BAV, Vat.lat. 2494 to C.11 q.3 c. 44, at fol. 128r–b; Weigand, Die Glossen, p. 1032. These absences do not provide definitive proof that no glosses exist. Summa Parisiensis to C.11 q.3 c.44, at p. 152. Simon of Bisignano, Summa to C.11 q.1 c.44, at p. 228: Consuetudinem tangit antiquorum. Antiquitus enim a sacerdote inspiciebatur qui credebatur esse leprosus ut eius iudicio uel tamquam leprosus esset a communione hominum separatus uel sanus inuentus communioni hominum se posset inmiscere.

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The 1179 Canons and the Schools noting that ita nec leprosum mundificat.101 These two commentaries, when taken together, suggest that during the 1170s there was an increasing realisation that the custom of separating lepers needed to enter the legal framework. Peter Landau has noted that leprosy found its place in the law in two particular issues: leprous marriage and the removal from office of priests who contracted the disease.102 These are both effects of segregation, however, and during the 1170s what canonical debates existed centred on providing for lepers’ segregation, rather than on its effects. Episcopal Exactions, c. 4 While the novel canons discussed so far are loosely connected to Gratian’s Decretum, others were more grounded in its arguments and texts. A more direct link between the two appears when c. 4, Cum apostolus, is considered. The decree forbade bishops from placing excessive demands on local churches. Retinues were limited, bishops could not travel with hunting dogs or birds, and should not request overly sumptuous meals. Taxes and impositions were prohibited, although bishops could ‘ask for assistance moderated by charity’.103 Visitations provide an excellent starting point. Episcopal visitations of churches and monasteries were increasingly complex affairs. We have seen how the exactions resulting from such visitations were a source of complaints to the curia.104 By the twelfth century a number of privileged orders were subject directly to the Pope, rather than to their diocesan bishop.105 However, a bishop was still bound to visit both parish churches and monasteries and C.10 of the Decretum covered those visitation rights, while D.34 c.1 and D.86 cc.8–12 both investigated the prohibition of hunting. The latter section was considered by Augustine Thompson, who provided a lucid discussion of the development of that prohibition, but misunderstood a critical element of the 1179 canon.106 Rather than prohibiting hunting specifically, the decree forbade bishops from taking 101 102

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Sicard, Summa to C.11 q.1 c.44, at London, BL, Add. 18367, fol. 37vb. P. Landau, ‘Die Leprakranken im mittelalterlichen kanonischen Recht’, in D. Schwab (ed.), Staat, Kirche, Wissenschaft in einer pluralistischen Gesellschaft. Festschrift für Paul Mikat (Berlin, 1989), pp. 565–78 at 567–74 and 574–7, respectively. 3 Lat. c. 4 = COD3, p. 213; COGD, 2.1129–31; trans. Decrees, p. 213. See pp. 79–80 above. On the early history, see C. R. Cheney, Episcopal Visitations of Monasteries in the Thirteenth Century, 2nd edn (Manchester, 1983) pp. 19–22; on the privileged orders see Cheney, Episcopal Visitations, pp. 23–4. A. Thompson, ‘The prohibition of hunting by the decretists’, Proceedings Munich, pp. 135–47 at 136–42, with commentary on p. 142 on Lateran III.

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Novel Canons hunting dogs and birds with them on visitations, commenting that bishops ‘should proceed in such a way that they are seen to be seeking not things of their own but of Jesus Christ’.107 Hunting entered into the Decretum rather late, in both locations.108 Their focal points were different, however.109 D.86 is broadly concerned with the giving of alms, and D.86 c.8 focusses in particular upon whether alms should be given to venatores. Whoever these venatores were for St Augustine when he was writing, for the writers of the twelfth century they were huntsmen.110 Stephen of Tournai commented extensively on the problem, separating hunting into two categories, one a sin and the other not.111 Hunting was wrong when it involved the arena fighting described by Augustine, and was always illegal for clerics, but it was not a crime when ‘in forests or woodlands’.112 To those comments can be added the anonymous gloss prohibiting hunting when a luxury, found in several manuscripts of the Decretum that Vat.lat. 2494 attributes to Ambrose.113 The level of coherence is generally high and most canonical works state or intimate that hunting is forbidden for clerics.114 Yet the Summa Monacensis, although it comments on c. 11, makes no mention of clerical hunting while Simon of Bisignano uses St Eustace to argue that hunters were not entirely unrepresented in the ranks of Christian martyrs.115 Simon’s view is representative of an earlier tradition isolated by Thompson and linked by him to the Summa Parisiensis.116 From the decretists, therefore, we can see that clerical hunting was prohibited. At the council, however, the canon referred specifically to the circumstance 107

108

109 110

111 112

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114 115 116

3 Lat. c. 4 = COD3, p. 213: sed ita procedant, ut non quae sunt sua sed quae Iesu Christi quaerere videantur; COGD, 2.130; trans. Decrees, p. 213. For a full discussion of these chapters, see S. Dusil, ‘Lawmaking between Burchard and Raymond. The example of the prohibition of hunting by clerics in the twelfth century’, Proceedings Toronto II, pp. 817–36, although the expansion of D.34 by two paleae, cc. 2 and 3, is brought in rather late in the day: compare D.34 cc. 2–3 with Salzburg, Stiftsbibliothek A.XI.9, fol. 38ra–b. Thompson, ‘Prohibition of hunting’, p. 136. Cf. Thompson’s argument that Augustine’s venatores were arena fighters: Thompson, ‘Prohibition of hunting’, p. 137. Thompson, ‘Prohibition of hunting’, pp. 138–41. Stephen of Tournai, Summa to D.86 c.7, at p. 107: Non criminosa vocatio est, quae fit in siluis et saltibus. See Vatican, BAV, Vat.lat. 2494, fol. 54rb, gloss to D.86 c.11: Luxurie causa venari peccatum est, necessitatis vero causa venari non est malum, et ex hoc decimas dare iubemus. Hanc distinctionem comonemur facere ex verbis Ambrosi. The same gloss is repeated at D.86 c.8 in Erlangen 342, fol. 72vb and Hereford P.VII.3, fol. 56rb in the layer taken from Ordinaturus Magister; an extended passage is present in Durham C.III.1, fol. 85vb. See also Summa Coloniensis, 3.119 at 1.171: Clericis ergo religiosisque personis omnis uenatio interdicta est. Summa Monacensis to D.86, at fols 12vb–13ra; Simon of Bisignano, Summa to D.86 c.11, at p. 75. Summa Parisiensis to D.86 d.p.c.6, v. prohibemur, at p. 67; Thompson, ‘Prohibition of hunting’, pp. 140–1.

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The 1179 Canons and the Schools of hunting on visitation. While that could have been perceived as a subgroup of the broader prohibition, the decretists’ overwhelming prohibition of hunting was not repeated by the conciliar fathers. Aside from this mention of hunting, Gratian’s tenth causa contains the bulk of his discussion on episcopal visitations and exactions. It is based around the difference between a cathedral and a basilica, and was broken into three questiones. Should a basilica and all its lands be subject to episcopal oversight? Can a bishop usurp control of ecclesiastical goods? Finally, what may a bishop exact from his priests as tribute to his role as bishop?117 Gratian turned the first of these questiones into an extensive series of extracts on episcopal visitations, while the third questio provides a series of authorities on permissible exactions. Compared to other causae, C.10 has very few dicta. Aside from the prologue, the rubrics provide most of its structure; only C.10 q.2 d.a.c.8 and C.10 q.3 d.a.c.6 play a role in Gratian’s argument. Consequently, in contrast to some causae and in common with the chapters of the Decretum concerned with usury, the majority of the chapters agree over the nature of depredations. Intriguingly, the wording of C.10 q.3 c.7 is reminiscent of c. 4 of Alexander’s council. Of particular importance is its mention of charity, which mirrors the wording of the 1179 canon when it explicitly reminds local clerics that at times moderate charity is required: We maintain, however, that [bishops] may request help from [their subjects], moderated by charity, for the many needs that at times come upon them, if there is a clear and reasonable cause.118

The decretists’ approach to this causa nevertheless varied. Stephen of Tournai reported that the councils of Braga and Toledo (C.10 q.3. cc.7–8) limited the amount a bishop could accept from parish churches to two solidi; he could exact more if it were necessary to fight a case or travel to Rome.119 Stephen did note that individual circumstances, such as the church’s income, should be taken into account, an idea repeated more lucidly by Rufinus. He noted that ‘while the cathedraticum ought to amount to the sum of two solidi, it varies according to the place; in some places it is given more, in others 117 118

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Decretum, C.10 pr. 3 Lat. c. 4 = COD3, p. 213: Sustinemus autem pro multis necessitatibus, quae aliquoties superveniunt, ut si manifesta et rationabilis causa exstiterit, cum caritate moderatum ab eis valeant auxilium postulare; COGD, 2.130. Stephen of Tournai, Summa to C.10 q.3 d.a.c.1, at pp. 210–11: Auctoritate Bracarensis et Toletani concilii terminatur quaestio, in quibus statutum est, ut nomine cathedratici duos tantum solidos accipiat episcopus a parochianis ecclesiis; tamen si necessitas pro negotio ecclesiastico, vel causa visitandi romanam curiam, vel aliqua simili, plus exigere poterit. Dicunt tamen quidam, decreta Brac. et Tol. conciliorum ex loco intelligenda; quod inde patet, quoniam secundum diversitatem ecclesiarum diversae summae per singulos annos cathedratici nomine solvuntur.

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Novel Canons less’.120 He further noted that a bishop ‘must not exact more from a church than the cathedraticum’. Simon of Bisignano commented more explicitly on C.10 q.3 c.7, noting, ‘I do not think it says that, if a bishop is rich, he could not receive sums from clerics when he visits parishes, since according to the common law he could receive worldly goods from those whose spiritual needs he tends’.121 Monetary assistance was not determined by the relative wealth of the bishop, therefore, but by his role. So while a bishop could not exact undue amounts, he could request aid freely. All the commentators, though, seem to accept the need for the exaction while also being aware of the need for nuance and custom, which relied on a local knowledge possessed, probably, by others. The second parallel between the commentators and the 1179 canons is found in the commentary of the Summa Coloniensis to C.10 q.3 c.8.122 The Summa Coloniensis draws attention to the numerical limits placed on episcopal retinues found in that chapter. Bishops were permitted fifty riders, and the Summa used that number as the focal point for its discussion, beginning with the rubric ‘That a bishop should not have more than fifty men in his retinue on visitation of parishes’.123 It then adds that the number of the retinue is to be the same for horses as for men.124 Fifty men in a retinue was the greatest number permitted by the 1179 Lateran Council.125 That restriction applied to archbishops; for other prelates, it was lower. It is not impossible that whoever drafted the canon used the figure given in Gratian, and commented on by the Summa Coloniensis, as the maximum number of riders permitted, and then worked back to provide the different amounts given in the canon. 120

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Rufinus, Summa to C.10 q.3 d.a.c.1, at p. 305: Quod autem dicitur quia hoc cathedraticum habere debet summam duorum solidorum, pro loco intelligendum est; in quibusdam enim locis datur amplius, in aliis vero minus. Quod autem in primo capitulo statuitur, ut episcopus plus quam cathedraticum ab ecclesia non exigat, intelligendum est preter tertiam illam, de qua supra in secunda questione diximus, et preterquam si necessitas pro negotio ecclesiastico aliquid amplius causaliter exigere suadeat, ut causa visitandi apostolica limina vel alio casu simili intercedente. Simon of Bisignano, Summa to C.10 q.3 c.7, at p. 204: Non ideo hoc dicit quod si diues est episcopus non possit sumptus a clericis accipere cum parochias uisitat, cum de communi iure possit accipere carnalia ab hiis quibus spiritualia seminat. Decretum, C.10 q.3 c.8, Item ex Concilio Tolletano VIII. It was probably taken from the Tripartitia, according to Fowler-Magerl the only one of Gratian’s formal sources to contain the canon: L. Fowler-Magerl, Clavis Canonum: Selected Canon Law Collections before 1140, MGH, Hilfsmittel, 21 (Hanover, 2005). Summa Coloniensis, 8.42 at 3.19: Ut episcopus in visitatione parrochiarum ultra quinquagesimum numerum in comitatu non habeat. Summa Coloniensis, 8.42 at 3.19 (nec unquam quinquagenarium euectionis numerum excedat [quem numerum quidam computant tam in equis quam in hominibus] aut amplius quam una die per unamquamque basilicam remorandi habeat licentiam) vs Decretum C.10 q.3 c.8. 3 Lat. c. 4 = COD3, p. 213; COGD, 2.130.

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The 1179 Canons and the Schools Canon 4 therefore allows two conclusions regarding the lawyers’ influence on the 1179 canons. The stipulations it contained were grounded, if not in Gratian then at least in the commentators. The limit on the number of horses, and the appearance of a prohibition of clerical hunting while on visitation were novel within the context of the reform papacy. Yet both built on previous legal ideas that could be found in Gratian, although not in exactly the same terms as they were expressed in c. 4. It is possible that these chapters were drawn from another collection, and in an intriguing quirk of the tradition D.86 c.8 and C.10 q.3 cc.7–8 all have a common source in the Tripartita.126 That said, the stipulations were deeply influenced by the canonists’ works. The closest parallels lie with the Summa Coloniensis, but elements of the ideas employed in the canon can also be found, obliquely, in the Summa of Simon of Bisignano. The 1179 decree therefore seems to have emerged from the discussions of the canonists on the issue of visitation, drawing on earlier legal extracts while receiving its nuances from the discussions that surrounded them. Roman Law in the Decrees: Non-Vacant Benefices, c. 8, and Elections, c. 1 Two final canons should be considered together. Canons 1 and 8 provide examples of the incorporation into the 1179 decrees of Roman law ideas. Canon 8 prohibited the promise of benefices while their incumbent was alive. Christopher Cheney noted that the canon, which speaks of something so terrible ‘that even the Gentiles have undertaken to condemn it’,127 showed a link between Roman and canon law, pointing to 8.38.4 and 2.3.30 of Justinian’s Code.128 The issue was subject to an extensive commentary by the author of the Summa Coloniensis, who devoted a chapter of his work to the issue of why it was forbidden to promise benefices before they fell vacant. In this section, there are only three references to Gratian’s Decretum, compared to eight from the Digest, Code, and Institutes, which suggests that the secular laws influenced his thoughts more deeply than their ecclesiastical counterpart.129 The Summa Coloniensis was the only summa to comment extensively on these Gratian passages. Once again, therefore, the influence of the transmontane schools appears in the 1179 canons, and in this case the use of Roman law may provide one reason for their inclusion. 126

127 128

129

The Tripartita is the only common source. Although Winroth noted that C.10 q.3 c.8 was not in the first recension, both of the other canons were: Winroth, Making, pp. 204, 211. 3 Lat. c. 8 = COD3, p. 215: quam etiam damnare ipsi gentiles homines curaverunt; COGD, 2.133. C. R. Cheney, From Becket to Langton: English Church Government, 1170–1213 (Manchester, 1956) p. 77. Summa Coloniensis, 8.85, at 3.35–7.

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Novel Canons Yet Roman law was also influential in c. 1 of the council, concerning decision-making in the Church. Licet de vitanda set a numerical majority for the election of the pope but specified that the principle of maior et sanior pars should be followed in all other elections;130 Cum in cunctis ecclesiis, c. 16, then explicitly ordered the use of maior et sanior pars when making decisions in chapter.131 That distinction can only have been deliberate, separating the papacy from the rest of the Church. According to Peltzer, by the 1170s the implicit use of numerical majority in elections was increasing. He points to canonists from Rufinus to the Summa Coloniensis using an unspecified numerical majority as one of the three factors in deciding a disputed election together with dignity and intentions.132 Aimone-Braida comments on the idea of the unanimous election and the majority in both canon and Roman law in the later twelfth century, although most of his civilian sources are of a later date than Lateran III.133 He summarises the contribution of the jurists, noting that ‘for the glossators of civil law, the presence of a two-thirds majority in the electoral college or the deliberating assembly was required in order to proceed to an election or to arrive at a joint decision following the majority principle’.134 Its incorporation of that Roman law majority is precisely what distinguished Licet de vitanda from previous attempts to regulate elections. Before, majorities in ecclesiastical elections had remained unspecified; for all that a numerical majority was implied, the idea remained that of maior et sanior pars. The numerical majority appears in three ecclesiastical lawyers’ writings between 1148 and 1179: a letter of Gilbert Foliot and two canonical summae. Foliot was the first to employ it, explicitly suggesting the use of a two-thirds majority in a letter to Alexander in 1160.135 Foliot is known to have received legal training, although the nature and location of that training is far from certain,136 and pointed implicitly to the Code in one of his letters.137 This section of the Code considered municipal elections and their management. 130 131 132

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134 135

136 137

3 Lat. c. 1 = COD3, p. 211; COGD, 2.128–9. 3 Lat. c. 16 = COD3, pp. 219–20; COGD, 2.139–40. J. Peltzer, Canon Law, Careers and Conquest: Episcopal Elections in Normandy and Greater Anjou, c. 1140–c.1230 (Cambridge, 2008), pp. 38–45, esp. pp. 44–5 including an informative summary of literature. P. V. Aimone-Braida, ‘Il principio maggioritario nel pensiero di glossatori e decretisti’, Apollinaris, 58 (1985), 209–85 at 216–34. The earliest jurist Aimone-Braida cites was Placentinus. Aimone-Braida, ‘Il principio maggioritario’, p. 237. A. Morey and C. N. L. Brooke, The Letters and Charters of Gilbert Foliot (Cambridge, 1967), 133, pp. 175–7, at l. 33 Gilbert mentions the Roman law majority. See pp. 22, 57 above. The Letters of Gilbert Foliot, p. 176 (Nominationum forma vacillare non debet, si omnes qui albo curiae detinentur adesse non possunt, ne paucorum absentia sive necessaria sive fortuita debilitet, quod a maiore parte

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The 1179 Canons and the Schools While Foliot’s language is reminiscent of the Code in a letter to Alexander III concerning the schism, the two canonical summae present different uses of the two-thirds rule. Simon of Bisignano uses it when commenting on an obscure distinction of Gratian. D.85 comprises a single chapter concerning episcopal hospitality and is taken from a letter of Gregory the Great.138 At one point, mention is made of a deacon ‘elected by all’.139 The passage has little, if anything, to do with the rest of the extract, and is far from the most legally significant element of the chapter. Simon, however, took this mention in a different direction: ‘where it says “elected by all”, that is by two parts, for all are said to do what is done by two parts’.140 No other summa mentions the majority, and at D.85 the apparatus Ordinaturus Magister in Erlangen 342 in fact stresses that election ‘by all’ meant the maior et sanior pars.141 Simon’s slightly more practical approach mirrored the earlier Summa Coloniensis in its comments on a different chapter of Gratian. That author had a profound grasp of both Roman and canon law; although he has tentatively been identified as Master Bertram (or Berthold) of Metz, there is precious little evidence to support this attribution.142 Whoever he was, he linked the two approaches taken by Gilbert and Simon, although he preceded the latter by some ten years. The author used a two-thirds majority when discussing decision-making without explicit attribution to any Roman law principle, noting that ‘the major part is accepted to be a doubled number, so if thirty are against fifteen, and one of the thirty dies, then the replacement is to be counted amongst the thirty’.143 The comment concerns a quotation from Pope Martin which appears as D.65 c.2. It demonstrates not only an appreciation of the Roman law majority, but also a broader understanding of the practicalities of its use: the Summa Coloniensis explained what constituted the maior pars. It was not contradicting Gratian’s canons, just making them more specific. That

138

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ordinis salubriter fuerit constitutum, cum duae partes ordinis in urbe positae totius curiae instar exhibeant), probably referring to Code 10.32.45. Simon of Bisignano, Summa to D.85 un; Schulte, ‘Zur Geschichte der Literatur über das Dekret Gratians’, p. 334. Gratian, Decretum, D.85 un: Florentinum uero diaconum ecclesiae Rauennatis, qui electus ab omnibus memoratur, sollicitum esse nouimus, sed qualis sit interius omnino nescimus. Simon of Bisignano, Summa to D.85 un, at p. 74: Vsque v. ab omnibus fuerat electus, idest a duabus partibus, nam omnes dicuntur facere quod due partes faciunt. Erlangen, Universitätsbibliothek 342, gloss to D.85 un, v. ab omninbus at fol. 72ra: sed dicendum ab omnibus a. a maiori et saniori parte capituli et e. ar. quod totum capitulum faciat quod maior et sanior pars facit. The same (anonymous) comment can be found in Hereford P.VII.3, fol. 55vb. Gerbenzon, ‘Bertram of Metz’, pp. 510–11; Landau, ‘Die Kölner Kanonistik’, pp. 15–18; Weigand, ‘Transmontane decretists’, pp. 183–4. Summa Coloniensis, 3.47 at 1.135: Maior quoque pars accipitur in duplo numero, ut si xxx. contra xv. sint, et si unus de xxx. obierit, subrogatus parti decessoris annumerabitur.

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The Lateran (1139) Decrees said, neither Simon of Bisignano nor the anonymous author of the Summa Coloniensis cites or quotes from the Code even when using the numerical majority, while Gilbert does. Simon and the Summa Coloniensis both cite texts from Roman law elsewhere, so are not deliberately avoiding a noncanonical source. It may be that in transmontane circles the use of the two-thirds majority was so widespread and accepted as early as 1169 that there was no need to cite its source. By stressing that maior et sanior pars is to be used in all other elections, both Licet and Cum in cunctis also reflect the Bolognese canonists’ views. Rufinus too comments on the three qualities required for a valid election, providing that the numerical majority only prevails when the candidates are equal in all else.144 Bernard of Pavia’s Summa de electione, which probably predates the 1179 council,145 makes no mention of the twothirds majority but does mention ‘number’ as one of the three components that support an election.146 That observation coincides with a striking feature about the three clerics who employ the two-thirds majority: none appear to have numbered amongst the mainstream Bolognese canonists. While Foliot had received legal training somewhere, he was a bishop in England when he wrote to Alexander. The author of the Summa Coloniensis wrote in the Rhineland, while Simon of Bisignano’s glosses did not enter the apparatus Ordinaturus Magister, implying that his writings were not part of the legal culture which that apparatus represents. Bolognese glosses and Bolognese magistri continued to use the principle of maior et sanior pars rather than the clear-cut civilian numerical majority, which suggests that something new needed to be done, and that the impetus came from outside Bologna. the lateran (1139) decrees Equally intriguing, if rather more confusing, is the repetition of certain canons of Innocent II in the 1179 decrees. Repeating and expanding earlier principles were common features of papal and diocesan councils. Innocent II’s reform canons in the 1130s saw the repetition over five different councils of strikingly similar decrees, culminating in the promulgation, in 1139, of thirty canons at what would become the Second 144

145

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Rufinus, Summa to D.23 c.1, at p. 50: Si igitur inter paucitatem et multitudinem electionis contentio oriatur sitque pars utraque equalis auctoritatis et opinionis et bono zelo currens, cedendum est multitudini, iuxta illud Simachi ‘Si transitus’ etc., nisi paucitas probare potuerit eum esse indignum, quem multitudo decreverit sublimandum . . . Die Canones-Sammungen zwischen Gratian und Bernhard von Pavia, ed. E. Friedberg (Leipzig, 1897), p. 31; K. Pennington, ‘Decretal collections, 1190–1234’, HMCL, p. 214. Bernard of Pavia, Summa Decretalium, ed. E. Laspeyres (Regensburg, 1860; repr. Graz, 1956), p. 316.

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The 1179 Canons and the Schools Lateran Council.147 Alexander III’s 1179 council expanded on earlier ideas, including adding a prohibition of homosexuality to previous strictures against clerical concubinage and a specific critique of those who paid money to enter a monastery, a subsection of simony.148 Yet it also repeated four of Innocent’s conciliar acts. The four canons that rehearse Innocentine principles verbatim are cc. 2, 20, 21, and 22. Canon 2 repeated Innocent II’s condemnation of those who had supported the antipopes, and expanded it to incorporate the removal of all benefices confirmed by the antipopes and their supporters and all alienations of ecclesiastical land into lay hands that had taken place.149 Canon 22 of the 1179 council, Innovamus autem, added two clauses to an otherwise identical canon of 1139, Precipimus etiam.150 These clauses broaden the spread of Precipimus etiam to include a proscription on new tolls on roads and then add a specific punishment that was apparently lacking in the earlier canon: offenders will be excommunicated. Canons 20–1 of the 1179 council repeated earlier canons in their entirety without making any substantive additions, in this case cc. 14 and 12 respectively of the 1139 Lateran Council, prohibiting tournaments and instigating the Truce of God.151 A similarly worded but not quite identical canon to c. 20 had also 147 148

149

150

151

See now Brett and Somerville, ‘The transmission of the canons’, pp. 236–71. 3 Lat. c. 11 = COD3, pp. 217–18; COGD, 2.136; 3 Lat. c. 7 = COD3, p. 215, COGD, 2.132–3, vs 2 Lat. c. 2 = COD3, p. 197: Si quis praebendam vel prioratum seu decanatum aut honorem vel promotionem aliquam ecclesiasticam seu quodlibet sacramentum ecclesiasticum, utpote chrisma vel oleum sanctum, consecrationes altarium vel ecclesiarum . . . per pecuniam acquisivit, which entered Gratian at C.1 q.3 c.15; 3 Lat. c. 10 = COD3, p. 217; COGD, 2.135–6; discussed by Lynch, Simoniacal Entry, pp. 149–52. 2 Lat. c. 30 = COD3, p. 203: Ad haec ordinationes factas a Petro Leonis et aliis schismaticis et haereticis evacuamus et irritas esse censemus; 3 Lat. c. 2 = [COD3, p. 219,] COGD, 2.128: Quod a praedecessore nostro felicis memoriae Innocentio factum est innovantes, ordinationes ab Octaviano et Guidone haeresiarchis necnon et Iohanne Strumensi, qui eos secutus est, factas, et ab ordinatis ab eis, irritas esse censemus, adicientes etiam ut, [add. si] qui dignitates ecclesiasticas seu beneficia per praedictos schismasticos [receperunt] acceperunt, careant impetratis. Alienationes quoque [seu] sive invasiones, quae per eosdem schismaticos sive per laicos factae sunt de rebus ecclesiasticis, omni careant firmitate et ad ecclesiam sine omni eius onere revertantur. Si quis autem contraire praesumpserit, excommunicationi se noverit subiacere. Illos autem, qui sponte iuramentum de tenendo schismate praestiterint, a sacris ordinibus et dignitatibus decrevimus manere suspensos. 2 Lat. c. 11 = COD3, p. 199: Precipimus etiam ut presbyteri, clerici, monachi, peregrini et mercatores et rustici euntes et redeuntes et in agricoltura persistentes, et animalia cum quibus aratur et semina portant ad agrum, et oves, omni tempore securi sunt; 3 Lat. c. 22 = ; COGD, 2.143 [COD3, p. 222,]: Innovamus autem [om.] ut presbyteri, monachi, clerici, conversi, peregrini, mercatores, rustici, euntes et redeuntes et in agricultura exsistentes et animalia quibus [/quae] semina portant ad agrum, continua [/congruat] securitate laetentur, nec quisquam alicubi [/alicui] novas pedagiorum exactiones sine auctoritate et consensum regum et principium statuere aut statutas de novo tenere aut veteres augmentare aliquo modo temere praesumat. Si quis autem contra hoc fecerit [/venire praesumpserit] et commonitus non destiterit, donec satisfaciat, communione careat Christiana. 2 Lat. c. 12 = COD3, pp. 199–200; 3 Lat. c. 21 = COD3, p. 222; COGD, 2.142–3.

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The Lateran (1139) Decrees been promulgated at Reims in 1148. The parallels between the texts from 1139 and 1179 are greater than those between the 1148 and 1179 decrees, which suggests that Innocent’s forty-year-old conciliar decrees had provided the basis for Alexander’s when they were being drafted rather than those of Eugenius.152 In spite of this, both Eugenius and Innocent were referred to in the canon. While Eugenius and Alexander had renewed Innocent’s condemnation of the schismatics at Reims in 1148, it was not included in the Tours decrees, nor was a prohibition of tournaments making this an addition to Alexander’s conciliar programme.153 None of these repeated canons can be found in full in Gratian’s Decretum, although it does incorporate a number of Innocentine decrees. Although it mostly comprised earlier extracts, in its second recension the Decretum did contain sections from eighteen canons from Lateran II, alongside others from Lateran I.154 The eighteen Lateran II canons represent over half of the total promulgated, and present a wide range of ideas, from a prohibition of simony to Si quis suadente, the prohibition of violence against clerics.155 Canons 11, 14, and 30, repeated in 1179, were not included in either recension of the Decretum. Canon 12, repeated in full in 1179, does appear as D.90 c.11, but only in a shortened form which does not take into account the earlier sections of the canon, attributed, as were the others, to Innocent II rather than a Lateran 152

153 154

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2 Lat. c. 14 = COD3, p. 200; 3 Lat. c. 20 = COGD, 2.142 [COD3, p. 221]: Felicis memorie papae Innocentii et Eugenii praedecessorum nostrorum vestigiis inhaerentes, detestabiles nundinas vel ferias, quas vulgo torneamenta vocant, in quibus milites ex condicto convenire [/venire] solent et ad ostentationem virium suarum et audacie temerarie congrediuntur, unde mortes hominum et animarum pericula saepe proveniunt, fieri prohibemus. Quod si quis eorum ibidem mortuus fuerit, quamvis ei poscenti poenitentia [/venia] non negetur, ecclesiastica tamen careat sepultura; Reims (1148) c. 12 = Mansi, 21.716–17: Temerariam quoque militum audaciam, qui ad detestabiles nundinas vel ferias ex condicto solent ad ostensionem suarum virium convenire, unde mortes corporum et animarum saepius provenerunt, omnino fieri interdicimus. Quod si quis ibidem caesus vel mortuus fuerit, pentitentia ei et viaticum non negetur: ecclesiastica tamen careat sepultura. Reims (1148) c. 17 = Mansi, 21.717–18. 2 Lat. [i.e. COD3] c. 2 = C.1 q.3 c.15; 2 Lat. c. 4 = C.21 q.4 c.5; 2 Lat. c. 5 = C.12 q.2 c.47; 2 Lat. c. 6 = D.28 c.2; 2 Lat. c. 7 = C.27 q.1 c.40; 2 Lat. c. 8 = C.27 q.1 c.40; 2 Lat. c. 10 = C.21 q.2 c.5, D.60 c.3; 2 Lat. c. 12 = D.90 c.11; 2 Lat. c. 15 = C.17 q.4 c.29; 2 Lat. c. 16 = C.8 q.1 c.7; 2 Lat. cc. 18, 19, 20 = C.23 q.8 c.32; 2 Lat. c. 21 = D.56 c.1; 2 Lat. c. 22 = De pen. D.5 c.8; 2 Lat. cc. 26, 27 = C.18 q.2 c.25; 2 Lat. c. 28 = D.63 c.5. Friedberg used the idiosyncratic MGH tradition, and his numbering has been altered to represent the text in the COD3. 1 Lat. [i.e. COD3] c. 1 = C.1 q.1 c.10; 1 Lat. c. 3 = D.62 c.3; 1 Lat. c. 4 = C.12 q.2 c.47 [recte 2. Lat c. 5, see above], C.16 q.7 c.11; 1 Lat. c. 6 = D.60 c.2; 1 Lat. c. 8.2 = C.16 q.7 c.25; 1 Lat. c. 12 = C.10 q.1 c.14; 1 Lat. c. 14 = C.24 q.3 c.23; 1 Lat. c. 16β = C.16 q.1 c.10; 1 Lat. c. 19.1β = C.18 q.2 c.31; 1 Lat. c. 19.2β = C.16 q.4 c.1; 1 Lat. c. 20β = C.24 q.3 c.24; 1 Lat. c. 21β = D.27 c.8; 1 Lat. c. 22β = C.12 q.2 c.37. The inclusion (or not) of the 1139 canons in the first recension of Gratian is of scant relevance for this study. See above, pp. 26–8.

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The 1179 Canons and the Schools council.156 As a result, it becomes a rather amorphous plea to bishops to preserve peace, rather than a targeted attempt to promote the Peace and Truce of God. It is possible that this overlap was a coincidence. Given the depth of learning in Alexander’s curia, however, it seems unlikely that the only canons from Innocent’s council to be copied in 1179 were those which are mostly missing from Gratian. The earliest example of the use of Gratian in the curia is seen in either 1133157 or the 1150s, but Anders Winroth argues that the 1139 canons were included in the Concordia as part of the second recension.158 To my mind, it is clear that this anomaly represents the targeted repetition of canons that were omitted from Gratian but recognised as important. The repetition of significant canons that were not yet incorporated into any vulgate of Gratian indicates a great degree of deliberation and planning. It is not impossible, in fact, that the 1179 canons, drafted as they must have been with an eye to Gratian, demonstrate an attempt on the part of Alexander and his curia to re-establish those canons that had fallen by the wayside and were consequently absent from a compilation that had already assumed a role as the basic textbook of canon law. conclusions The views of the decretists were wide-ranging and are difficult to synthesise. It is impossible to point to a single summa as a source for the entire council, for example. Nevertheless, the canonists’ contributions to the debates prompt several intriguing suggestions for the origins and development of the 1179 conciliar canons. Each of the canons emerged from a different set of ongoing debates. Most of those mentioned here were linked in some way to the Decretum Gratiani and its commentaries. Thus, it seems certain that whoever drafted the canons possessed a detailed knowledge of the Decretum and its associated literature. In 1179, that should not be surprising, but it is worthwhile establishing. There is evidence of knowledge of or some familiarity with civil law, to the

156

157

158

2 Lat. c. 12, from precipimus ut episcopi = D.90 c.11; checked vs Salzburg, Stiftsbibliothek A.XI.9, fol. 79vb. A. A. Larson, ‘Early states of Gratian’s Decretum and the Second Lateran Council: a reconsideration’, BMCL, 27 (2007), 21–56 at 46–52, suggests that Chancellor Aimeric and/or Innocent II had knowledge of a Roman law phrase received via Gratian in a letter to the archbishop of Lund dated 27 May 1133; her view was critiqued in A. Winroth, ‘Innocent II, Gratian, and Abbé Migne’, BMCL, 28 (2008), 145–51. Winroth, Making, pp. 137, following G. Fransen, ‘La date du Décret de Gratien’, RHE, 51 (1956), 521–31 at 529–30.

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Conclusions point where it could be deployed in c. 8 of the council, albeit without an exact citation. More intriguingly, given the two hypotheses put forward at the beginning of this chapter, there is a strong correlation between the 1179 canons and the contents of the Summa Coloniensis. While Simon of Bisignano’s discussion of what would become the 1179 canons amounts to a commentary on their contents, the Summa Coloniensis offers solutions to problems, such as the use of the two-thirds majority and the strict limits placed on the escorts permitted to bishops. Bertram of Metz, who has been claimed as the author of the Summa Coloniensis, was at the council.159 It is possible that he exerted an influence on the drafting of the canons. It seems unlikely, however, that his was the sole influence. Canon 19 of the council uses regionally specific terminology which suggests an Italian influence, while letters sent by Alexander in the early 1170s had foreshadowed the numerical limits placed on bishops’ companions during visitations.160 It also seems too far-fetched to argue that Bertram of Metz – who, after all, was schismatic for most of the 1170s – could have exerted an influence over Alexander’s earlier letters. A more likely link is perhaps provided by the school of law that surrounded the Summa Coloniensis. The Summa itself was compiled around a decade before the 1179 canons and its three surviving manuscripts attest a considerable diffusion from Cologne. Two of Alexander’s legally trained cardinals in the 1170s are likely to have spent time in France: Lombard when he was representing Becket’s legal interests, and Matthew of Angers, appointed cardinal-priest of St Marcellus on 2 January 1179. We know little of Matthew’s education and background, but it is certainly not impossible that he exerted an influence on the canons. Furthermore, it is not improbable that one of the Italian cardinals who had travelled north of the Alps had access to the Summa during the decade between its compilation and the drafting of the 1179 decrees. There were multiple legations to northern France in the 1170s, concerned with the Becket dispute and other matters, and therefore multiple occasions when the Summa could have been copied or viewed. Peter of Pavia, legate a latere to France from 1174 to 1178 and a trained lawyer who had studied with Stephen of Tournai, is only one example. The involvement of the curia is further emphasised by the most striking element of the canons, the repetition of several canons of Innocent II, probably taken from the decrees he promulgated at the Lateran in 1139. The selection of particular canons which were relevant but absent from 159 160

S. Kuttner, ‘Bertram of Metz’, Traditio, 13 (1957), 501–5. I am grateful to Martin Brett for this observation.

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The 1179 Canons and the Schools Gratian suggests not only that there was an element of deliberate intent behind the canons, but also what that intent was: these were conciliar decrees designed to restate principles which had not yet been accepted into law, or not rooted deeply enough to penetrate into local legal culture. The presence of these canons therefore sheds further light on the role played by the Concordia in canon law in the later twelfth century. By 1179, it was more than just a collection of texts. It was beginning to be the collection of the laws of the Christian Church. But the 1180s was the decade of the ius novum, not the ius antiquum, and while the 1179 conciliar canons may have been drafted with an eye to Gratian, they have survived as part of that newer corpus of texts.

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4

THE DISSEMINATION OF THE 1179 CANONS

During the final session of the council, on 19 March 1179, the canons were promulgated by the fathers present.1 The decrees are frequently perceived to connect the chaotic transmission of early twelfth-century acta and the more extensive, incisive, and occasionally orderly acta of the thirteenth century: when Raymonde Foreville examined the council as part of her study on all four Lateran councils of the long twelfth century, she saw the 1179 council as a final step before the more coherent canons of Lateran IV, while Uta-Renate Blumenthal pointed to the mid-twelfth century as a period of ‘growing papal dominance in ecclesiastical administration everywhere’.2 Given the fluidity of canon law in the last quarter of the twelfth century, the gestation period of the ius novum, the process by which the 1179 canons were accepted is particularly important for legal historians, including for the origins of the decretal collections.3 Despite the continued difficulty in dating, it is now accepted that collections of decretals existed much earlier than the 1179 council, be it as appendices to Gratian or as separate collections 1

2

3

Howden, Chronica, 2.171; Howden, Gesta, 1.222. For a discussion of the dates of the council, see pp. 16–17 above. R. Foreville, Latran I, II, III et Latran IV (Paris, 1965) devotes almost as much space to Lateran IV as to the period 1123–78: pp. 245–324 and pp. 44–133, respectively, not including documents. A. García y García refers to Lateran IV as ‘the single most substantial collection of legislation put together by medieval popes for the reform of the Church and society of the time’ in his ‘Lateran IV and the Canonists’, HMCL, pp. 367–77 at 367. See also A. J. Duggan, ‘Conciliar law, 1123–1215: the legislation of the four Lateran Councils’, HMCL, pp. 318–66 at 341–66; U.-R. Blumenthal, ‘Conciliar canons and manuscripts: the implications of their transmission in the eleventh century’, Proceedings Munich, pp. 357–79 at 367. See e.g. Holtzmann’s belief that the council provoked the decretal collections: W. Holtzmann, ‘Die Collectio Eberbacensis’, ZRG Kan. Abt., 17 (1928), 548–55 at 551; G. Fransen, ‘Les canonistes et Latran III’, in J. Longère (ed.), Le troisième concile de Latran (1179): Sa place dans l’histoire (Paris, 1982), pp. 33–40 at 37 states that ‘it does not seem necessary to give much weight to [Holtzmann’s] hypothesis’.

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The Dissemination of the 1179 Canons compiled by working lawyers.4 In any case, although it may not have initiated the gathering of recent legal materials, the council took place at a time when legal precedents were beginning to be recorded on a previously unseen scale. Editions of the 1179 canons are not difficult to find, but are rarely satisfactory. Post-Reformation editions fall into two categories: those copied directly from manuscripts and those claiming to represent a hypothetical ur-text. The earliest version, published by Crabbe in 1552, copied the conciliar decrees directly from a now-lost manuscript of the Appendix Concilii Lateranensis decretal collection; varieties of this edition were later reprinted in most of the major collections of conciliar acta, culminating with Mansi, and formed the basis for the text in the twentieth-century Conciliorum Oecumenicorum Decreta.5 Justus Böhmer employed the same method but a different collection, known now as the Cassellana.6 Walter Herold, by contrast, studied the thirty-six thenknown traditions of the Lateran canons and attempted to discover the lost ‘original’ text of the decrees rather than seeking to analyse the texts that survive with a view to understanding their use and dissemination.7 The strengths of Herold’s work should not be underestimated, least of all his critical apparatus of the texts known to him, an essential tool in the study of the canons. Most recently, the Conciliorum Oecumenicorum Generaliumque Decreta or COGD, uses Herold’s text with reservations and the same order as the earlier COD3 edition (i.e. culled from a now-lost manuscript of a particular regional canonical collection).8 The edition is preferable to the earlier COD3, which used an older text with little or no revision, but even Herold’s revised text is now sixty years old and the old order and edition retain their influence.9 4

5

6 7 8

9

C. Duggan, ‘Decretal collections from Gratian’s Decretum to the Compilationes antiquae’, HMCL, pp. 246–92. An example of a working lawyer’s collection can be found in London, BL, Royal 15.B. iv, and see also S. Kuttner, ‘The “Extravagantes” of the Decretum in Biberach’, BMCL, 3 (1973), 61–71. COD3, p. 210; Conciliorum omnium tam generalium quam particularium, ed. P. Crabbe, 2nd edn (2 vols, Cologne, 1551), 2.836–43; Concilia generalia, et provincialia quaecunque reperiri potuerunt omnia, ed. S. Binius (4 vols, Cologne, 1606), 3.1345–50; Concilia generalia Ecclesiae catholicae (4 vols, Rome, 1608–12), 4.27–33; Sacrosancta concilia, ed. G. Cossart and P. Labbe (18 vols, Paris, 1671–2), 10.1507–23; Acta conciliorum et epistolae decretales, ed. J. Hardouin (11 vols, Paris, 1714), 6.1673–84; Mansi, 22.217–33. Corpus Iuris Canonici, ed. J. H. Böhmer (2 vols, Magdeburg, 1747), Appendix 2, 2.185–340. W. Herold, ‘Die Canones des 3. Laterankonzils’, Inauguraldissertation, University of Bonn (1952). COGD, 2.127–47. The editors accepted that their choice of both text and structure could be debated but decided, for sensible reasons with which it is difficult to disagree, that the scholarly community was better served by not changing the numbering and structure: COGD, 2.121. G. Alberigo et al. (eds.), Conciliorum Oecumenicorum Decreta (Bologna, 1972). The editors comment on the problem at p. 210; they used the adapted Editio Romano of 1612, itself based on Crabbe’s lost Appendix manuscript.

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The Dissemination of the 1179 Canons Nevertheless, these editions can hinder discussion of the canons, presenting them as a coherent whole rather than questioning the format of their medieval transmission. To take Herold as an example, his attempt to recreate a single original text hinders the accessibility of his work. His restructured version never had a wider impact on scholarship, while the presence of multiple unknown manuscripts in the stemma between his hypothetical ur-text and the surviving manuscripts casts doubt on the existence of such an ur-text, an idea which Herold himself never considered.10 Herold also omitted to take into account links created by the additional contents of the manuscripts he used and to understand the implications of those connections or, as the case may be, disparities. There is no purpose now in a refashioning of Herold’s analysis or in an attempt to reconstitute an official version of the canons. In the decades since Herold’s work, the study of twelfth-century canon law has changed dramatically. Recent challenges to the preconceived idea of a centralised, legislating papacy have focussed on papal decretals, as noted above.11 An unfortunate side effect has been a hardening of the assumption that conciliar canons had an explicit and widely accepted status as binding papal legislation presenting a papal agenda.12 Such an assumption could be dangerous if it is incorrect. Given Herold’s inability to establish a workable ur-text of the 1179 canons and broader questions surrounding the nature and intent of contemporary legislation, the remainder of this study will constitute a deeper study of the canons and evaluate their role as conciliar acta in contemporary ecclesiastical government and canon law. With that in mind, the first focus of this chapter rests on the mechanisms of promulgation used at contemporary church and papal councils, before moving to look at the versions of the 1179 canons which survive in manuscript form, and what they can tell modern scholars about the role of conciliar acta in the twelfth century. Robert Somerville took the lack of surviving canons from Alexander’s 1162 Montpellier council to mean that they had ‘no legislative impact’, but the question has yet to be asked of Alexander’s 1179 council in any systematic way. Furthermore, there remains the critical question of precisely what is meant by ‘legislative impact’ given the inherently local nature of most contemporary collections.13 It has already been suggested that the canons were intended 10 11

12

13

Herold, ‘Die Canones’, p. 31. M. G. Cheney, ‘Pope Alexander III and Roger of Worcester: the exchange of ideas’, Proceedings Toronto, pp. 207–27, at 207–8. E.g. A. J. Duggan, ‘Making law or not? The function of papal decretals in the twelfth century’, Proceedings Esztergom, pp. 41–70 at 61. R. Somerville, Alexander III and the Council of Tours, 1163 (Berkeley, 1977), p. 7. The synod of Montpellier is unrecorded in Boso, although he mentions sentences of excommunication passed there: Boso, Vita Alexandri III, ed. L. Duchesne, Le Liber Pontificalis (2 vols, Paris, 1886–92),

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The Dissemination of the 1179 Canons to provide generally promulgated precedents for contemporary law and ecclesiastical government, but was the fathers’ intention matched by the canons’ dissemination? The 1179 canons were the culmination of ‘a momentous period in the history of the councils of the western Church’: between Urban II and Alexander III, at least thirty-five papal councils are known to have taken place, and the number could well be higher.14 Why, then, did the 1179 canons survive when others did not? Ultimately, the following survey of the dissemination and use of Alexander’s 1179 conciliar canons is an attempt to reconcile modern historiography with the convoluted manuscript transmission of the canons. popes, conciliar canons, and the latin christian clergy Reception of papal conciliar canons was mixed. Somerville’s work on both Urban II’s council at Clermont and the Innocentine councils of the 1130s posits that few surviving manuscripts accurately represent the entire set of acta promulgated at a council, while Martin Brett noted the inconsistencies that riddle Calixtus II’s conciliar acta of 1123 and, more recently, Innocent II’s 1139 Lateran canons.15 Concerning Clermont, from which a papal sermon survives in multiple different copies, most compiled much later, Somerville even commented that ‘what was diffused throughout Latin Christendom were the decrees of which someone wished

14

15

2.404–5. Canons were cited at the 1195 Council of Montpellier, but no other records remain. See Mansi, 22.667–71; R. Somerville, Pope Alexander III and the Council of Tours (1163) (Berkeley, 1977), pp. 54–5; I. S. Robinson, The Papacy, 1073–1198: Continuity and Innovation (Cambridge, 1990), p. 108. Foreville mentions Tours but omits any mention of Montpellier: Latran, pp. 118–20. Robinson, Papacy, pp. 121–47; A. A. Larson, ‘Early stages of Gratian’s Decretum and the Second Lateran Council: a reconsideration’, BMCL, 27 (2007), 21–56, passim but especially her conclusions on pp. 52–6; R. Engl and A. A. Larson, ‘Ein unbeachtetes Zeugnis zum dritten Laterankonzil: Bernardo Maragones Annales Pisani’, ZRG Kan. Abt., 97 (2011), 357–68 at 363 n. 21, which mentions an almost entirely unrecorded council of Avignon cited by Uta-Renate Blumenthal, now at U.-R. Blumenthal, ‘Das Dritte Laterankonzil, seine Beschlüsse und die Rechtspraxis’, in C. Andenna et al. (eds.), Die Ordnung der Kommunikation und die Kommunikation der Ordnung im mittelalterlichen Europa, Band 2: Zentralität: Papsttum und Orden im Europa des 12. und 13. Jahrhunderts (Stuttgart, 2013), 37–49, at 46–7. See Florence, BML, S. Marco 762, fols 135vb–136v; R. Somerville, ‘The Council of Pisa, 1135: a re-examination of the evidence for the canons’, Speculum, 45 (1970), 98–114 at 111. Brett pointed to the greater care seemingly taken by the archbishops of Canterbury in ensuring that their synodal acta were disseminated: M. Brett, ‘The First Lateran Council in English manuscripts’, Proceedings Berkeley, pp. 13–28, esp. pp. 27–8. See also now M. Brett and L. I. Hamilton, ‘New evidence for the canons of the First Lateran Council’, BMCL, 30 (2013), 1–20. A synopsis of his work on Lateran II can be found in COGD, 2.100, but see also M. Brett and R. Somerville, ‘The transmission of the councils from 1130 to 1139’, in J. Doran and D. J. Smith (eds.), Pope Innocent II (1130–43). The World vs the City (London, 2016), pp. 226–71.

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Popes, Conciliar Canons, and the Latin Clergy a complete transcription, plus synopses of others’.16 By 1179, however, scholars agree that the clumsy, confused survival of conciliar decrees was becoming more coherent, for all that Atria Larson and Richard Engl noted Bernardo Maragone’s chronicle ascribing canons to Lateran III which do not appear in the COD3. There is, therefore, the possibility that the transmission of the conciliar acta was not as secure as believed.17 Even the most detailed chronicle evidence of the 1179 council only states that the canons were ‘promulgated’ in one of its sessions, and the exact mechanism is unclear. Earlier popes rehearsed conciliar acta in letters, such as Nicholas II’s In nomine Domini18 or Gregory VII’s exhortations to the German bishops to implement his ‘decrees’,19 while Lucius III repeated Ad abolendam in a letter to Peter, bishop of Arras, after the 1184 council at Verona.20 In the thirteenth century, Innocent IV and Gregory X both circulated canons from their general councils through canonical collections addressed to the schools at Bologna.21 Even these had their limitations: three sets of the 1245 Lyon I acta survive; for Lyon II, Kuttner originally believed the decrees circulated by Gregory to be ‘the legislative work of the council’, but changed his mind when presented with synodal decrees promulgated at Salzburg shortly after, which replicated the canons as produced at the council.22 While papal mandates therefore disseminated the ‘official’ copies of the canons, they did not prevent the local use of earlier or alternative versions.23 In any case, there is no evidence that Alexander chose this method to reproduce the 1179 decrees. Although the papal registers for Alexander’s pontificate are now lost, the decretal collections provide an extensive selection of legally significant letters and even the call to the council, Quoniam in agro, has survived in five locations.24 Had a letter as legally important as one 16

17

18 19 20 21

22

23

24

R. Somerville, Councils of Urban II, Vol. 1: Decreta Claromontensia, AHP, Supplementa, 1 (1972), 41. They stopped short of arguing that additional canons were promulgated as a result of its ‘strong and constant witness’: Engl and Larson, ‘Ein unbeachtetes Zeugnis’, p. 652. Decretum, D.23 c.1. Gregory VII, Epistolae vagantes, ed. and trans. H. E. J. Cowdrey (Oxford, 1982), 6–8, pp. 14–19. WH – : JL 15377 = PUF n.F., 4, 154, pp. 207–10. S. Kuttner, ‘Die Konstitutionen des ersten allgemeinenen Konzils von Lyon’, Studia et documenta historiae et iuris, 6 (1940), 70–131 at 71; S. Kuttner, ‘Conciliar law in the making: the Lyonese Constitutions (1274) of Gregory X in a manuscript in Washington’, Miscellanea Pio Paschini, II, Lateranum n.s., 15 (Rome, 1949), pp. 39–81 at 79–81. For a discussion of the problems of circulation in the thirteenth century, see R. Dorin, ‘Canon law and the problem of expulsion: the origins and interpretations of Usurarum voraginem (VI 5.5.1)’, ZRG Kan. Abt., 99 (2013), 129–61. S. Kuttner, ‘Retractiones’, in his Medieval Councils, Decretals, and Collections of Canon Law, 2nd edn (London, 1992), pp. 13–14. WH – : JL 13097–99 = various, plus PUF n.F., 5, 256, pp. 361–3; see above pp. 15–16.

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The Dissemination of the 1179 Canons promulgating the 1179 decrees been produced, it would surely have survived somewhere. The most likely replacement was the local repromulgation of the canons. In the Decretum, Gratian had endorsed this method for disseminating the canons of provincial synods. Selecting a chapter from the Sixteenth Council of Toledo, he required bishops to repromulgate provincial canons at a diocesan synod within six months, or face suspension of up to two months.25 The twelfth-century papacy seems to have adopted its spirit, albeit with little success. Innocent II held a series of councils in the 1130s in France and Italy.26 Most were excerpted from a common, yet evolving, stock accompanied by locally relevant additions or emendations; Somerville believed that the core canons represented a definite papal agenda established as early as the 1130 council at Clermont, and it is notable that significant echoes of Innocent’s conciliar acta from 1139 appeared in a provincial council convened in Valladolid under the direction of the legate Guy of Crema in 1143.27 Eugenius III also held multiple councils in 1148, one in Reims and one in Cremona. According to John of Salisbury, who attended the Reims council, Eugenius intended to repeat the same decrees at both councils, ensuring that their texts were dispersed as widely as possible.28 Unfortunately, neither Eugenius’ nor Innocent’s attempts to ensure the spread of their acta had much success. Innocent’s proposed agenda has only recently been unearthed after much effort on Somerville’s part, demonstrating the erratic nature of the canons’ circulation. Although decrees survive from councils at Clermont (1130), Reims (1131), and Pisa (1135) as well as the Lateran (1139), no acta are preserved from Piacenza (1134) or Liège (1131), and the existence of an additional synod in Rome remains a tantalising if remote possibility.29 Eugenius’ conciliar canons are 25

26

27

28

29

Decretum, D.18 c.17. According to Anders Winroth, the chapter was not included in the first recension of Gratian, but it was included in the widely circulated second version and is in Friedberg’s edition as a canon rather than as a palea. A. Winroth, The Making of Gratian’s Decretum (Cambridge, 2000), p. 198. Clermont (1130) = Mansi, 21.437–40; Reims (1131) = Mansi, 21.458–62; Piacenza (1132) = Mansi, 21.479–80; Pisa (1135) = Mansi, 21.489–90; Lateran (1139) = Mansi, 21.526–33, COD3, pp. 197–203. For Lateran II, COGD used the same text as COD3: COGD, 2.viii, but a new critical edition can be found in Brett and Somerville, ‘Transmission of the councils’, pp. 260–71. R. Somerville, ‘Council of Pisa’, pp. 98–114; R. Somerville, ‘The canons of Reims (1131)’, BMCL, 5 (1975), 122–130; R. Somerville, ‘Another re-examination of the Council of Pisa, 1135’, in M. Brett and K. G. Cushing (eds.), Readers, Texts and Compilers in the Earlier Middle Ages: Studies on Medieval Canon Law in Honour of Linder Fowler-Magerl (Farnham, 2009), pp. 101–10; Robinson, The Papacy, pp. 135–9; PUP, 40, pp. 198–203. Reims (1148) = Mansi, 21.711–8; John of Salisbury, Historia Pontificalis, ed. and trans. Marjorie Chibnall (Oxford, 1986), p. 50. On a conjectured council in Rome in 1133, see Larson, ‘Early stages of Gratian’s Decretum’, 39–47; on Liège (1131), see Larson, ‘Early stages of Gratian’s Decretum’, p. 37 n. 42; Somerville, ‘The

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Popes, Conciliar Canons, and the Latin Clergy in as parlous a state: no decrees from Cremona survive, while two versions circulated from Reims.30 Nevertheless, there is little evidence that the pope, or even legates a latere, repromulgated the 1179 canons locally. Where decrees survive from provincial councils held in the second half of the twelfth century, there are no signs of the mass repetition of Alexander’s statutes.31 The most concrete evidence of local repromulgation comes from the Vallombrosan congregation who met in 1179, ostensibly with a papal mandate to repromulgate the conciliar canons. One narrative stated that the council’s aim was ‘to hear the sacred constitutions promulgated in council’.32 Yet William of Tyre, definitely present at the council, makes no mention of either an equivalent papal mandate or any provincial synod in the Levant to repromulgate the canons on his return. Any request may, therefore, have been specific to the Vallombrosans. In fact, William directs any who wish to know the canons and the bishops present to a copy lodged at Tyre, suggesting that he took little interest in deliberately circulating the canons.33 Any attempt that Alexander made to promote the conciliar canons’ repromulgation fell largely on deaf ears. Despite the variety of approaches here, these mid-twelfth-century examples demonstrate that contemporary popes were at least aware of the difficulties in communicating their conciliar decrees. It is therefore all the more surprising that there is scant evidence of any attempt by Alexander – who by 1179 was seemingly a lawyer in temperament, if not in training – to secure the dissemination of the canons. Quoniam in agro, after all, made no explicit mention of any council, referring only to the correction of abuses; in an earlier letter to Alfonso of Spain referring to the 1163 council at Tours, Alexander made express mention of the council’s intentions, making it odd that such an explicit instruction was not repeated in 1178.34 Alexander’s aims may have been to introduce reforming ideas, but their dissemination after the council does not appear

30

31

32 33

34

Council of Pisa 1135’, p. 111 n. 44; most recently, A. J. Duggan, ‘Jura sua unicuique tribuat. Innocent II and the advance of the learned laws’, in J. Doran and D. J. Smith (eds.), Innocent II (1130–1143): The World vs the City (London, 2016), pp. 272–310 at 309–10. John of Salisbury, Historia Pontificalis, p. 50; C. N. L. Brooke, ‘The canons of English church councils in the early decretal collections’, Traditio, 13 (1957), 471–80 at 472. See the discussion in Chapter 5 below. See also Duggan, ‘Conciliar law, 1123–1215’, pp. 339–40; Florence, BML, S. Marco 762, fols 135vb–136v; WH – : JL 15690 = MHH, 11.159–61. Florence, BML, S. Marco 599, fol. 47r; Fransen, ‘Les canonistes’, pp. 39–40. William of Tyre, Chronicon, ed. R. B. C. Huygens, Willelmi Tyrensis Archiepiscopi Chronicon, CCCM, 63 (Turnhout, 1986), p. 998. Quoniam in agro = WH – : JL 13070, 13097–9; plus PUF n.F., 5, 256, p. 361–3; Somerville, Council of Tours, pp. 9–10, citing E. Martin-Chabot, ‘Deux bulles closes originales d’Alexandre III’, Mélanges d’archéologie et d’histoire, École française de Rome, 24 (1904), pp. 65–74, with the letter on pp. 72–4.

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The Dissemination of the 1179 Canons to have been one of his priorities, either because he was not interested or perhaps because he was unaware of the existence of mechanisms by which these decrees could be circulated. events of the 1179 council Although the sources disagree on the dates of the plenary sessions, the canons must have been promulgated in such a plenary session.35 A contemporary conciliar ordo places the promulgation on the final day of the council and debate of their contents on the penultimate day, a pattern also seen in accounts of the 1119 and 1215 councils.36 The extent of extra-curial influence over conciliar pronouncements remains opaque and debated, particularly for the later pontificate of Innocent III; what evidence there is provides much-needed texture to the picture of a centralised papal monarchy whose ideas were imposed through structured, formulaic church councils. Critically, it was not uncommon for the statutes of a papal council to be overruled in session. In 1119, Hesso Scholasticus reported that the canon prohibiting lay investiture was shouted down by the clergy during the session, resulting in a day’s delay to allow for alteration of the wording.37 John of Salisbury observed that the German delegation at Reims in 1148 refused to countenance a decree forbidding bishops from wearing excessively lively apparel, while the Norman bishops had steadfastly rejected a decree against simony at an 1172 legatine council.38 For the 1179 council, there are explicit acknowledgements of debate. The Anonymous of Laon suggests that forty-four canons were put forward for consideration by the fathers, of which twelve were not 35

36

37

38

As suggested in Howden, Chronica, 2.172; Howden, Gesta, 1.221–2. See also Duggan, ‘Conciliar law, 1123–1215’, p. 333; Foreville, Latran, pp. 136–7, 153–4. Le Pontifical romain au moyen-age I: le pontificale romain du XIIe siècle, ed. M. Andrieu, Studi e Testi, 86 (Vatican City, 1938), 36, pp. 255–260 and H. Schneider, Die Konzilsordines des Früh- und Hochmittelalters, MGH, Ordines de Celebrando Concilio (Hanover, 1996), 7A, pp. 322–8 at 327. Foreville provided a translation into French in Latran, pp. 195–9, which omits several important passages where the manuscript evidence diverges. As a result, the version used here is Schneider’s for the MGH. See also A. García y García and S. Kuttner, ‘A new eyewitness account of the Fourth Lateran Council’, Traditio, 20 (1964), 115–78 at 127–8; Hesso Scholasticus, Relatio de concilio Remensi, ed. W. Wattenbach, MGH, Libelli de Lite Imperatorum et Pontificum, 3 (Hanover, 1897), p. 27; Orderic Vitalis, Ecclesiastical History, ed. and trans. M. Chibnall (6 vols, Oxford, 1969–80), 6.274–6. Hesso Scholasticus, Relatio Concilii de Remensis, p. 27; R. Somerville, ‘The councils of Pope Calixtus II: Reims 1119’, Proceedings Salamanca, pp. 42–3, 48–9. John of Salisbury, Historia Pontificalis, p. 8; Howden, Gesta, 1.34. The bishops refused to promulgate c. 13: Concilia Rotomagensis Provinciae accedunt dioecesanae synodi, pontificum epistolae, regia pro Normanniae clero diplomata, necnon alia ecclesiasticae disciplinae monumenta, ed. G. Bessin (Rouen, 1717), p. 86.

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Events of the 1179 Council approved.39 The Anonymous is a difficult text: there are inaccuracies in the chronicle, especially regarding dates. However, enough circumstantial evidence survives to suggest that it was based on a first-hand account and multiple ecclesiastics from Laon attended the 1179 council, including the bishop and therefore presumably some of his familia.40 It is supported by Peter the Chanter, who records a debate, led by John of Salisbury, over ‘new decrees’;41 it has also long been accepted that a curial attempt to condemn Peter Lombard’s Sententiae on Christological grounds was foiled by at least Adam, bishop of St Asaph.42 So although Foreville and Robinson consider the council to have merely rubber-stamped the decrees of a canonist-pope, it seems they were mistaken. Not only is Alexander unlikely to have been a canonist, but it seems likely that at some point before the conciliar decrees were promulgated on or around 19 March, discussion and debate took place over their contents.43 Whether that debate occurred in plenary sessions of the council or in smaller groups is impossible to determine. Howden tells of three plenary sessions and intimates that the canons were promulgated in the last one, but the number of smaller discussions remains unrecorded. The ordo demanded that the bishops ‘discuss between themselves concerning the holy scripture, and decree those things that need to be changed’.44 Although this statement appears in only one of the two variant readings of the ordo, the other focussing purely on scripture, the fuller version survives in more manuscripts, including three from the twelfth century. The implication of debate in a full session is supported by Peter the Chanter’s account of John of Salisbury.45 But had all debate over the 39

40

41

42

43

44 45

Ex chronico universali anonymi Laudunensis, ed. G. Waitz, MGH, Scriptores, 26 (Hanover, 1882), p. 449. C. Papini, Valdo di lione e i “poveri nello spirito”. Il primo secolo del movimento valdese (1170–1270) (Turin, 2008), p. 71. On the impetus behind writing the Anonymous, and its link to Lateran III, see K.-V. Selge, ‘Caractéristiques du premier mouvement vaudois et crises au cours de son expansion’, in É. Privat (ed.), Vaudois languedociens et Pauvres Catholiques, Cahiers de Fanjeaux, 2 (Paris, 1967–8), pp. 110–42 at 118–19. London, BL, Add. 39646, fol. 154rb lists Bishop Roger of Laon as attending the council. Peter the Chanter, Verbum abbreviatum, ed. M. Boutry, CCCM, 196 (Turnhout, 2004), pp. 520–2; J. van Laarhoven, ‘“Non iam decreta, sed Evangelium!” Jean de Salisbury au Latran III’, in M. Fois, V. Monachino, and F. Litva (eds.), Dalla chiesa antica alla chiesa moderna: Miscellanea per il Cinquantesimo della Facoltà di Storia Ecclesiastica della Pontificia Università Gregoriana, Miscellanea Historiae Pontificiae, 50 (Rome, 1983), pp. 107–19. M. Colish, Peter Lombard (2 vols, Leiden, 1994), 1.429, 433–4; J. Châtillon, ‘L’enseignement christologique de Pierre Lombard’, in J. Longère (ed.), Le troisième concile de Latran (1179): Sa place dans l’histoire (Paris, 1982), pp. 75–90 at 86–8. R. Foreville, ‘Procédure et débats dans les conciles médiévaux de Latran (1123–1215)’, Rivista di Storia della Chiesa in Italia, 19 (1965), 21–37 at 34; Robinson, Papacy, pp. 141–2. On Alexander’s lack of a legal background, see above pp. 19–20. Schneider, Konzilsordines, 7A, p. 327. Peter the Chanter, Verbum Abbreviatum, pp. 520–2.

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The Dissemination of the 1179 Canons canons’ contents taken place in a full session, it would have been chaotic at best; small group sessions are attested for issues including the interrogation of the Waldensians and the authenticity of the election of the archbishop of Bremen.46 Map’s propensity for self-aggrandisement means that his account has to be read judiciously – he probably did not embarrass Valdès quite as easily as he claims, for instance, even assuming that he interviewed the leader of the sect at all – but the practice of delegating certain matters to smaller groups is corroborated in the accounts of the 1119 Council of Reims and of the 1215 Lateran Council, while Bolton has suggested that the latter also devolved discussions of the canons to smaller groups.47 Regardless of when objections to the canons were aired, the accounts of the Chanter and the Anonymous of Laon suggest that, in 1179, the conciliar fathers were not all in agreement. authority A bigger question, and one which is more relevant to the relationship between the papacy and the conciliar fathers, is the authority ascribed to the canons and the absence of an ur-text such as that assumed by Herold. For Lateran III, the idea that the decrees were read out and approved in a session – present in the accounts of Roger of Howden, the Anonymous of Laon, and Robert of Torigny, as well as in c. 1, Licet de vitanda – is persuasive, but there are two witnesses to a more concrete formulation.48 The first, a minor set of annals, states tersely that ‘many decrees were promulgated there with all subscribing’.49 Here, the use of the Latin subscribere indicates a written document accompanying the assent. These annals are minor, however, and the amount of detail given is limited, suggestive of hearsay rather than an author recalling a specific copy and witness list he had seen. 46

47

48

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Annales Stadenses, ed. G. Pertz, MGH, Scriptores, 16 (Hanover, 1859), pp. 348–9; Foreville, Latran, pp. 142–3; Walter Map, De nugis curialium: Courtiers Trifles, ed. M. R. James, rev. and trans. C. N. L. Brooke and R. A. B. Mynors (Oxford, 1983), pp. 124–7. Calixtus II travelled to Mouzon for a meeting with the Emperor Henry V: Orderic Vitalis, Ecclesiastical History, 6.264–5. The Song of the Cathar Wars, ed. and trans. J. Shirley (Aldershot, 1996), pp. 76–7, shows Innocent III being petitioned outside the plenary sessions; B. Bolton, ‘A show with meaning: Innocent III’s approach to the Fourth Lateran Council, 1215’, Medieval History, 1 (1991), 53–67 republished in her Innocent III: Studies on Papal Authority and Pastoral Care (London, 1995), p. 56. Howden, Gesta, 1.222; 3 Lat. c. 1 = COD3, p. 211, trans. Decrees, p. 211, COGD, 2.127; Ex chronico universali anonymi Laudunensis, p. 449; Robert of Torigny, Chronica, ed. R. Howlett, Chronicles of the Reigns of Stephen, Henry II, and Richard I, Rolls Series, 84 (4 vols, London, 1884– 90), 4.284–5. Annales Pegavienses, ed. G. Pertz, MGH, Scriptores, 16 (Hanover, 1859), p. 262.

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Authority More definite is William of Tyre’s comment that ‘we diligently prepared [the list of the canons and the names of the bishops] at the request of the holy fathers, who came to that synod’.50 William’s narrative is not lengthy but this phrase has become a focal point, often read as implying that he was entrusted with compiling the official copy of the conciliar decrees.51 William was a senior prelate of an important province, who had spent time in the schools and may have known Alexander or members of his curia personally, details which support any claim for his influence.52 But dozens of other prelates present in Rome in 1179 fulfil exactly the same criteria, including most of a curia that included seven men trained in canon law, and to identify William as possessing sole responsibility for the decrees ignores the claims of the other equally influential and learned men who attended the council alongside him. The difficulty can be neatly solved if William’s account is read slightly differently. Nowhere does he state that his copy was the only one: such a detail has been read into his comments on the basis that there must have been an ‘official’ copy. Instead, William and other attendees could each have made their own copies of the canons, in accordance with papal wishes. William’s claim to have created a copy of the canons and a list of bishops present towards the end of the council deserves closer scrutiny, however, because it suggests some form of written witness list. Earlier ecumenical councils had produced a signed list of all bishops who assented to the conciliar proceedings.53 Lists of bishops attending the 1179 council survive in four manuscripts.54 In each, the list is preceded by a short narrative preface; they then list the names of just under three hundred bishops geographically, beginning with Rome, moving south through Norman Sicily to the Levant before returning to northern Italy, then France, Iberia, the Empire, the British Isles, and ultimately Hungary.55 In each archdiocese the metropolitan is listed first, if present, followed by all attendant suffragan bishops.56 The prefaces give a rough account of the 50 51

52 53

54

55 56

William of Tyre, Chronicon, p. 998. Hefele-Leclercq, 5.1087; Foreville, Latran, p. 139; Engl and Larson, ‘Ein unbeachtetes Zeugnis’, p. 358; COGD, 2.100. P. W. Edbury and J. G. Rowe, William of Tyre: Historian of the Latin East (Cambridge, 1990), p. 15. H. Ohme, Das Concilium Quinisextum und seine Bischofsliste, Arbeiten zur Kirchengeschichte, 56 (Berlin and New York, 2000), pp. 208–16, on the bishops present. Mansi, 22.253–7, 22.239–40; Foreville, Latran, pp. 139–40, 387–90 for an accumulation of the list; Hefele-Leclerq, 5.1087; Paris, BnF lat. 17656, fols 160va–162vb; Paris, BnF lat. 14938, fols 263va– 266va, i.e. following the Victorina Prima decretal collection (see Holtzmann-Cheney, pp. 26, 30); Paris, BnF lat, 14664, fols 266r–269vb, itself an early modern copy of another manuscript; London, BL, Add. 39646, fols 152vb–155rb. See also Herold, ‘Die Canones’, p. 7. London, BL, Add. 39646, fols 152vb–155rb. For the province of Reims, for example, the manuscript lists first Archbishop William, followed by Bishop Nivelon of Soissons, Bishop Theobald of Amiens, Bishop Reinald of Noyon, Bishop Roger of Laon, Bishop Desiderius of Thérouanne, and Bishop Roger of Cambrai: London, BL,

135

The Dissemination of the 1179 Canons events of the council, similar in many ways to the narratives present before copies of the canons in two legal manuscripts.57 Herold considered the two prefaces to be the same, but there are small differences between them, particularly in the number of bishops present: the Paris and London manuscripts suggest 302, those in Erlangen and Leipzig 289. That could reflect the later alteration of the surviving list, which gives around 290 bishops, of whom two – both from Sicily – were Greek, but it is possible that alternative versions circulated, or even that the preface as found in the legal manuscripts never travelled with a witness list.58 The latter possibility makes it less likely that the witness lists represented the formal attestation of the acts. No surviving manuscript containing the list also contains the canons, not even the Victorina Prima decretal collection, an odd situation given that other contemporary decretal collections did incorporate the conciliar decrees. Furthermore, the preface in these four manuscripts makes no reference to the promulgation of any conciliar canons, unlike the otherwise very similar prefaces in the canon law collections Erlangen 342 and Leipzig 975; the council is presented as having been convened in order to end the schism between the papacy and the Empire, in keeping with the suggestion that reunifying Christendom was a key aim. In any case, the list does not seem to have circulated widely: all four manuscripts have a connection with Paris, through either St Victor or St Denis.59 The reverse is therefore also true: no copy of the canons investigated for this study also includes a list of bishops. Only William of Tyre’s now-lost copy of the canons may have combined both. Had the list of bishops present been a witness list designed to add authority or authenticity to the canons, it failed to be broadly perceived as such. Put simply, therefore, the canons did not rely on the list of bishops for their authority. Instead, the authority ascribed to the canons varies widely, falling into three broad categories. Some copies possess no identification, such as in the Roffensis and Eberbacensis collections.60 Others focus on the pope: in Brussels II 2532, the canons are described as the ‘decrees of Pope Alexander III’ and a similar description is found in Roger of Howden’s

57 58 59

60

Add. 39646, fol. 154rb; the prefaces can be found at London, BL, Add. 39646, fol. 152vb; Paris, BnF lat. 17656 fol. 160ra–b; and Paris, BnF lat. 14938 fol. 263va–b. Erlangen, Universitätsbibliothek 342, fol. 291ra; Leipzig, Universitätsbibliothek 975, fol. 116ra. Paris, BnF lat. 14664, fol. 267rb; Paris, BnF lat. 14938, fol. 264vb. Add. 39646 was from St-Yved de Braine, and shared a common exemplar with the St Denis manuscript, lat. 17656: Catalogue of Additions to the Manuscripts of the British Museum, 1916–20 (London, 1933), pp. 123, 128–9; Inventaire des manuscrits de la Bibliothèque Nationale fonds latin 16717 à 18613, ed. L. Délisle (Paris, 1871), p. 60. Lat. 14664 and lat. 14938 both came from St Victor, and one may be the manuscript referred to in Martène-Durand, 7.77. London, BL, Royal 10.C.iv, fol. 137ra; London, BL, Arundel 490, fol. 218vb.

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Authority works, in the opening rubric to BAV, Reg.lat. 984, and in the Dertusensis decretal collection.61 BAV Reg.lat. 596 attributed the decrees to Alexander, but confirmed by 288 fathers, while the compiler of the Claustroneoburgensis collection amended its opening rubric to include decrees as well as letters, incidentally suggesting that he distinguished between the two.62 The most common authority cited is that of the Roman or Lateran Council, as in Cantuariensis, or in combination with the pope: Claudiana states that it was Alexander’s Lateran Council, while both the Munich Panormia and the St John’s Appendix use the idea of a Roman council held ‘under Alexander’.63 In contrast to the episcopal lists, which all accompany a short prose paragraph, few copies of the canons possess a narrative preface. The Rievaulx Cartulary has a short rubric giving the date of the council, while Erlangensis and Lipsiensis give variants of the introduction discussed above.64 The significant exception is BAV, Reg.lat. 984, where half a folio is given to an introductory passage. It is not a narrative, but a passage situating the council in a broader timeline.65 The manuscript may have been in the abbey of Saint-Martial in Limoges by the late twelfth century, 61

62

63

64

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Brussels, Bibliothèque royale de Belgique, II 2532, fol. 212ra; Howden, Chronica, 2.172–89; Howden, Gesta, 1.222 on; Vatican City, BAV, Reg.lat. 984, fol. 2r; Tortosa, Biblioteca Capitular 144, fol. 29v. Vatican City, BAV, Reg.lat. 596, fol. 6v: Decreta pape Alexandri. IIIIti [sic] in Lateranis facta, a due centis viii. ginta et viii. patribus confirmata; F. Schönsteiner, ‘Die Collectio Claustroneoburgensis’, Jahrbuch des Stiftes Klosterneuburg, 2 (1909), facing p. 1 = Klosterneuburg, Stiftsbibliothek 19, fol. 36r. The earliest complete collection of that group of decretal collections, Wigorniensis, does not include the canons and its titles begin, ‘Here begin the letters of Pope Alexander III’: London, BL, Royal 10.A.ii, fol. 5ra. For the connection between the two, see C. Duggan, Twelfth-Century Decretal Collections and their Importance in English History (London, 1963), pp. 95–8, citing H.E. Lohmann, ‘Die Collectio Wigorniensis (Collectio Londoniensis Regia): Ein Beitrag zur Quellengeschichte des kanonischen Rechts im 12. Jahrhundert’, ZRG Kan. Abt., 22 (1933), 38–187 at 43–8, 164–87. London, BL, Royal 10.B.iv, fol. 62ra: Decreta Lateran’ concilii; London, BL, Cotton Claudius A.iv, fol. 204vb: Ex concilio Alexandri pape III in Lateranensi ecclesia Beati Johannis; Munich, BSB, clm 11316, fol. 117r: Capitula Romani Concilii sub Alexandro papa; Cambridge, St John’s College F.11, fol. 61v: Concilium Romanum habitum sub Alexandro papa tercio in Lateranensis ecclesie. London, BL, Cotton Julius D.i, fol. 7r: Decreta concilii Romani tempore Alexandri pape III sancta. Anno Domini m°C°. lxxix, V Idus Marcii, anno pontificatus eiusdem Alexandri xx; Herold, ‘Die Canones’, p. 7. Vatican City, BAV, Reg.lat. 984, fol. 1v: Anno ab incarnatione Domini m°c°lxx°viiii, presidente in Romana sede uniuersaliter Papa Alexandro tercio postquam Deo auctore abolita est et euanuit scisma, que instigante diabolo illis temporibus in Romana sede diuerso modo emersit, conuocauit et statuit concilium in urbe Roma. In uicesimo itaque anno illius apostolatus regnante Ludovico Rege Francorum, qui fuit filius Ludovici Regis, et regnante ˛etiam cum filiis Henrico nobilissimo Rege Anglorum, Duce Normannorum et Aquitanorum, Comite etiam Pictauentium et Andegauentium, facta est congregatio maxima et precipua in urbe Roma, tam archiepiscoporum quam episcoporum et abbatum et presbyterorum et aliorum ordinum et fidelium Christianorum in dominica qua cantatur inuocauit me et residente ipso beatissimo Papa Alexandro in concilio statuerunt decreta ex diuersis sententiis sanctorum patrum collecta, que irrefragabiliter in sancta ecclesia sub attestatione anatematis preceperunt obseruari, que in hunc modum continentur.

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The Dissemination of the 1179 Canons and was potentially compiled there. The first quire, originally separated from the remainder if the inscription on fol. 12r is correct, consists of eleven folios that contain a copy of the 1179 canons followed by a mixed chronicle-inventory of Saint-Martial up to 1174.66 The preface further suggests such a Poitevin connection, noting as it does the reigns of both King Louis VII and of the Angevin Henry II, and giving the latter’s multiple continental titles accurately. While the narrative suggests that the decrees were declared by the fathers, having been prepared ‘from the sentences of the fathers’, the rubric on fol. 2r indicates papal involvement, potentially alluding to the involvement of two different clerics in copying the manuscript, but also demonstrating how a single set of canons could be perceived differently depending on who was reading them.67 Generally, although not exclusively, the canonists tend to ascribe the canons to Alexander and the council, while the non-canonical copies cite Alexander’s authority alone. The monastic chronicles and Reg.lat. 984 are disposed to give the pope a primary role in the promulgation of the acta, while the canonical sources tend to emphasise the combined authority of pope and council, or council alone. Any such comment is only a generalisation, but the critical point stands: broader Christendom had no one preconceived idea of the authority behind the conciliar canons and, as has been demonstrated, Alexander made no attempt to rectify the situation through the explicit promulgation of the decrees by letter. The situation carries echoes of the councils of the eleventh century, as seen by Uta-Renate Blumenthal. She noted the importance of bishops in the dissemination of conciliar canons: papal authority alone did not guarantee their reception.68 By the time of Alexander III, however, the papacy is generally supposed to have had a greater capacity to command the obedience of the clergy in Latin Christendom. If there was no general understanding of precisely whose authority underpinned the decrees where they appeared in manuscripts, then their reception becomes all the more important in clarifying their acceptance by contemporaries, and consequently the role played by papal councils in ecclesiastical government. dissemination of the canons We have no way of knowing how many copies of the canons left Rome, nor how many survived long and difficult journeys to far-flung sees. That 66

67 68

Chroniques de Saint-Martial de Limoges, ed. H. Duplès-Agier (Paris, 1874), p. lxviii describes the manuscript. Vatican City, BAV, Reg.lat. 984, fol. 2r: Incipiunt decreta Alexandri pape tercii. Blumenthal, ‘Conciliar canons and manuscripts’, p. 367.

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Dissemination of the Canons a large number did make those treks is nevertheless a secure assumption: fifty-six manuscripts were cited by Gérard Fransen while, more recently, Martin Bertram and Uta-Renate Blumenthal have identified sixty-four.69 In comparison, sixty-six manuscripts survive of the 1215 canons, across a variety of traditions, and around forty are believed to have survived of the 1139 canons;70 for this study, fifty-six versions of the 1179 decrees have been investigated. Geographically, the canons achieved a considerable spread. Barely attested in Central and Eastern Europe, copies abound in England,71 France,72 and the Low Countries.73 At least one manuscript now in German archives can be traced to an abbey in the Empire,74 and copies are known to have been in Tuscany, too. Two now-lost manuscripts can be traced to Torigny75 and, potentially, Aureil, although the Aureil decrees may be those of Alexander’s council at Tours.76 Scandinavia presents a peculiar problem: although no copies are known to have survived, the canons are mentioned in glosses to a canonical fragment now in Oslo which may have been in Norway in the late twelfth 69 70

71

72 73

74

75

76

Fransen, ‘Les canonistes’, p. 34; as communicated to me by Professor Bertram. COD3 noted the presence of twenty manuscripts of the 1215 canons, with a further twelve if commentaries on the canons are included: COD3, p. 229, trans. Decrees, p. 229. Antonio García y García, however, states that sixty-six copies are known, with a further fourteen attested but subsequently lost: ‘The Fourth Lateran Council’, HMCL, p. 369; see also A. García y García, Constitutiones Concilii quarti Lateranensis una cum Commentariis glossatorum, MIC, A, 2 (Vatican City, 1981), pp. 18–32 with the manuscript sigla list at 39. I owe the number of the 1139 canons to Martin Brett: see now Brett and Somerville, ‘The transmission of the councils’, pp. 256–60. Manuscripts of known English provenance include Cantuariensis, London, BL, Royal 10.B.iv, fols 62ra–65ra which, according to Duggan, Twelfth-Century Decretal Collections, p. 73, ‘in subject matter and composition . . . is an authentic Canterbury composition’; Roffensis, London, BL, Royal 10.C.iv, fols 137ra–139vb, described by Duggan, Twelfth-Century Decretal Collections, p. 76, as ‘a manuscript from the neighbouring and dependent see at Rochester’. Vatican City, BAV, Reg.lat. 984, fols 2r–7v; Vatican City, BAV, Reg.lat. 596, fols 6v–8v. Reims, BM 674, fols 154ra–156va; L. Kéry, Canonical Collections of the Early Middle Ages (ca. 400–1140). A Bibliographical Guide to the Manuscripts and Literature (Washington, DC, 1999), p. 136. Munich, BSB, clm 11316, fols 117r–120v, which was at some point in St Salvator in Polling: M. Brett (ed.), ‘Preliminary listing of Panormia manuscripts’, p. 7 (siglum Mj), at ivo-ofchartres.github.io/panormia/mslist.pdf (last accessed 1 September 2018); Kéry, Canonical Collections, p. 255; P. Landau, ‘Rubriken und Inskriptionen der Panormie. Die Ausgabe Sebastian Brants im Vergleich zur Löwener Edition des Melchior de Vosmédian und der Ausgabe von Migne’, BMCL, 12 (1982), 31–49 at 48. Robert of Torigny, Chronica, 4.285: cuius decreta . . . apud nos habentur; J. Peltzer, Canon Law, Careers and Conquest: Episcopal Elections in Normandy and Greater Anjou, c.1140–c.1230 (Cambridge, 2008), p. 60. J. Becquet, ‘La bibliothèque des chanoines réguliers d’Aureil en Limousin au XIIIe siècle’, Bulletin de la Société archéologique et historique du Limousin, 92 (1965), 107–34, at 122. No. 76 on the catalogue describes ‘Decreta innouata in concilio Alexandri pape’; Becquet and, following him, Duggan, ‘Conciliar law, 1123–1215’, p. 339, attribute these to Lateran III, but since the manuscript has been lost, there is the possibility that the canons were those of Tours.

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The Dissemination of the 1179 Canons century.77 No copies are known to have survived in Norman Sicily and the sole recorded Levantine copy, that mentioned by William of Tyre, was lost in the fall of the Frankish Kingdom.78 While the destruction of the library of Tyre offers a specific explanation for the loss of the canons in one location outside this nucleus, Sweden is instructive of other reasons behind manuscript losses. Although only one canonical manuscript survives from the early or mid-twelfth century, it has been hypothesised that manuscripts of, for example, the Liber Extra have survived in greater numbers because their size was more conducive to later reuse as wrapping for tax records.79 No Swedish bishop appears on the surviving manuscript lists attending Lateran III, but this may rather reflect the fact that the newer Scandinavian prelates were listed last, in a section now missing.80 It is difficult to argue the same for Sicily, which sent a number of bishops to the council but where few canonical manuscripts survive, but Sicily was – in terms of the laws – a different proposition. Explaining the greater survival of manuscripts of the canons in England, France, and northern Italy is nevertheless an imprecise art. These were the areas of Europe where the influence of the schools had permeated deepest by the late twelfth century, but also the areas which saw a significant survival of manuscripts overall. Most of the copies of the 1179 canons have survived via canonical manuscripts, making it perhaps unsurprising that they have tended to survive in those areas which saw the conjunction of legal training and a greater survival of contemporary writings. The 1179 canons appear most frequently in canonical manuscripts, including twenty-nine of the nascent decretal collections.81 Canonical manuscripts of the 1179 canons range from the nascent decretal collections to other, earlier compilations of legal material: Laborans’ Compilatio Decretorum, for example, has the canons copied into the margin, while they follow an Ivonian Panormia in Munich, BSB clm 11316, alongside other twelfth-century conciliar pronouncements.82 Aside from the 77

78 79

80

81 82

A. J. Duggan, ‘Eystein and the world of the learned law’, in T. Iversen (ed.), Archbishop Eystein as Legislator: The European Connection (Trondheim, 2011), pp. 23–56 at 36, 50–1. William of Tyre, Chronicon, p. 998. T. Schmid, ‘Manuscripts of canon law from medieval Sweden’, Proceedings Boston, pp. 93–8 at 94–8; A. Wolodarski, ‘The collection of canon law fragments in the National Archives of Sweden’, Proceedings Washington, pp. 1061–95 at 1068, 1072; see the use of the 1179 canons in Norway identified by Duggan, ‘Eystein’, pp. 36–7. The Danish bishop of Aalborg was present. Foreville, Latran, p. 389; London, BL, Add. 39646, fol. 155ra–b. See the full list in the Appendix below. Arras, BM 425, fols 68r–79r; Brussels, Bibliothèque royale de Belgique, II 2532, fols 212r–214r; Berkeley, Robbins Law Library 103, fols 163r–169r; Berlin, SPRK, Savigny 3, fols 178ra–181vb; Munich, BSB, clm 11316, fols 117r–120v; Reims, BM 674, fols 154ra–156va. The abbreviation is in Vatican City, BAV, Archivio di San Pietro, C.110, passim. The canons also sit in Tarragona,

140

Dissemination of the Canons canonical material, the decrees were repeated in four English chronicles, a testament to their integration into the everyday fabric of ecclesiastical life in that province, as well as in a small selection of other non-legal manuscripts. All of which raises the question of why the canons were copied out where they were. Their inclusion in legal codices seems self-evident: as statutes they were incorporated into the collections and used as legal texts. For the other thirteen traditions, there is no easy answer. Christopher Brooke observed that, outside the collections, the dissemination of earlier twelfth-century conciliar canons relied on their being copied onto any spare leaf of parchment that happened to be lying around.83 For the 1179 decrees, none of the non-legal manuscripts falls into the category of random pieces of parchment. Inclusion in the English chronicles is comparable to the use of the canons of 1123 and 1163 in Symeon of Durham’s chronicle and William of Newburgh, respectively, and demonstrates the continuing interest in ecclesiastical material in England.84 Other manuscripts have even less happenstantial explanations: the decrees are found in a copy of the Liber Censuum, detailing the income and rights of the papacy, while they are supplemented by a series of accounts of congregations of the Vallombrosan order, two of which repeated selected canons, in Florence, S. Marco 599.85 The two Vatican manuscripts and Tarragona 92 come closest to exemplifying the haphazard approach suggested by Brooke, yet even the Vatican manuscripts can be explained. Both are now compendia with individual quires probably drawn together into a single codex much later. BAV, Reg.lat. 984 begins with the canons in a way that suggests they were the initial contents of what later became the first quire, while in BAV, Reg.lat. 596, the decrees are in a quire alongside the statutes of earlier Norman councils.86 In fact,

83

84

85

86

Biblioteca Pública 92, fols 180r–186v, a manuscript which, despite initially believed to contain the Ivonian Panormia, seems to be a variety of non-canonical, mostly theological, works. C. N. L. Brooke, ‘The canons of English church councils in the early decretal collections’, Traditio, 13 (1957), 472. Councils & Synods, 1.729; William of Newburgh, Historia rerum Anglicarum, ed. R. Howlett, Chronicles of the Reigns of Stephen, Henry II and Richard I, Rolls Series, 82 (4 vols, London, 1884–90), 1.136–9. See also Somerville, Council of Tours, p. 39. William also included the 1179 canons in his text. Florence, Biblioteca Riccardiana 228, fols 320ra–325ra. In Florence, BML, S. Marco 599, fols 49r– 55r the canons follow narratives of the Vallombrosan congregations of 1154 (fol. 44r), 1155 (fol. 44v), 1160 (fol. 44v), 1179 (fols 47r–48r), and 1188 (fol. 48v), the latter two of which mention the council; the Rievaulx Cartulary, London, BL, Cotton Julius D.i, contains a series of letters and other information relating to the abbey. Vatican City, BAV, Reg.lat. 984, fols 2r–7v and above pp. 137–8; Vatican City, BAV, Reg.lat. 596, fols 6v–8v. On the Norman origins of Reg.lat. 596 see M. Brett, ‘A collection of Anglo-Norman Councils’, JEH, 26 (1975), 301–8 at 302, and Appendix below. The confusion stems from whether the first quire (fols 1r–8v) was originally with the rest of the manuscript,

141

The Dissemination of the 1179 Canons the most disorderly inclusion of the canons occurs in two legal manuscripts, the so-called Rommersdorfer Briefbuch and the assemblage of legal excerpts in Oriel 53, where they seem out of sequence compared to the letters of Innocent III and the assorted civil law extracts which surround them, respectively.87 All this suggests coherence in the surviving manuscript copies, reinforcing their perceived legal role at a time when law was changing. This is most clear amongst the canonical manuscripts, where the reception mimics that of Alexander’s earlier council at Tours in 1163. Decrees from Tours survive in the Life of Alexander written by Cardinal Boso, in William of Newburgh, and as a block in ten canonical collections; in a further three, they were mingled with the 1175 canons of Westminster.88 The 1163 canons were also divided between the titles in several systematic collections starting from the Appendix tradition.89 Although the division of the canons into titles did not occur in the Lateran III tradition for some years, it provides a noteworthy parallel. In fact, the Tours canons differ from those of 1179 through the existence of a curial copy in Boso’s Vita Alexandri.90 While two versions of the 1179 decrees from the papal orbit do survive, in the thirteenth-century manuscript of the Liber Censuum and the margins of Laborans’ Compilatio Decretorum, neither is as satisfying a witness as Boso.91 The Liber Censuum in Florence, Riccardiana 228 was copied out at least fifty years after the council, while the use of the canons in the margin of the Compilatio means that it can have no bearing on discovering the canons’ order. Neither contains every canon in full.92 Ironically, the result is that the 1163 council at Tours – which, according to most modern commentators, was not a general council – has a surviving curial account of its canons, while the 1179 Lateran Council does not.

87

88

89 91

92

although the level of damage that fol. 8v has sustained suggests that the balance of opinion lies with Brett and de Bouard. F. Kempf, ‘Das Rommersdorfer Briefbuch des 13. Jahrhunderts’, MIÖG, Erg. Band, 12.3 (1933), 502; Oxford, Oriel College 53, fol. 355va–c. On the canonical material, see Repert. pp. 199–205, 249–50, 295; Holtzmann-Cheney, pp. 127–31. Somerville, Council of Tours, pp. 43–5; William of Newburgh, Historia, 1.136–9; Oxford, Bodleian Library, Tanner 8, pp. 593a–595b; see W. Holtzmann, ‘Die Dekretalensammlungen des 12. Jahrhunderts: 1. Die Sammlung Tanner’, in Festschrift zur Feier des 200jährigen Bestehens der Akademie der Wissenschaften in Göttingen, Phil.-hist. Kl. (1951), pp. 83–145 at 105; H. Singer, Neue Beiträge über die Dekretalensammlungen vor und nach Bernhard von Pavia, SB Wien, Phil.-hist. Kl., 171 (1913), 117–21, 355–6. Somerville, Council of Tours, pp. 45–6. 90 Boso, Vita Alexandri, 2.408–10. Florence, Biblioteca Riccardiana 228, fols 320ra–325ra. See also Le Liber Censuum de l’Église Romaine, ed. P. Fabre (Paris, 1905), 2.17–18; Vatican City, Archivio di S. Pietro C.110, see also N. Martin, ‘Die Compilatio Decretorum des Kardinal Laborans’, Proceedings Berkeley, pp. 125–37, at 133, 136–7. Florence, Ricc. 228 lacks the final clause of c. 8, see below; Laborans’ Compilatio lacks c. 9.

142

Dissemination of the Canons The volume of the canonical witness certainly deserves attention. Twenty-nine surviving decretal collections include the conciliar canons as a block,93 as well as five copies of Gratian’s Decretum,94 six pre-1140 canonical collections,95 and two legal manuscripts containing both canonistic and civilian material.96 In keeping with the idea that some copies were added to existing collections later on, they form an appendix in most of the earlier collections: the Munich Panormia contains not only the canons of 1179 but also those of Pisa in 1135 and more in its final folios, and Berlin, SPRK Savigny 3 ends with the 1179 decrees.97 In the Oenipontana collection, an intriguing Dekretanhang, the canons were added after the Decretum had been copied and are part of a larger group of canonical texts including decretal letters.98 One exception to this rule is Durham C.III.1, where the canons provide the final chapters of the second of three smaller collections that precede a copy of Gratian.99 In later collections, though, the location of the decrees is not as cut and dried.100 For the most part, the systematic collections place the canons either at the beginning or within titles throughout; one exception is Bambergensis, where they appear as the final title. For the primitive collections, an assumption is that canons were added to an already complete archetype finished before the council, but Bambergensis urges caution. While the ur-Bambergensis could have been compiled as early as 1180, the extant manuscript dates to around 1185.101 Consequently, the canons appear to have been added after the compilation of the archetype as part of that particular manuscript, even though it was created well after the council. 93 94

95

96 97

98

99

100 101

See Table 4.1, which gives the locations of the decrees in a variety of decretal collections. See Appendix under Oenipontana, Darmstadt Decretum, Munich 28175, Laborans Compilatio Decretorum, McClean 134; a number of the ‘decretal’ collections also include a copy of Gratian. See Appendix under Arras 425, Robbins 103, Savigny 3, Munich Panormia, Reims 674 and Brussels II 2532, and below, passim. See Appendix under Rommersdorfer Briefbuch and Oriel 53, and below, passim. Munich, BSB, clm 11316, fols 117r–120v; Berlin, SPRK, Savigny 3, fols 178ra–181vb, Kéry, Canonical Collections, pp. 216–17. Innsbruck, Universitäts- und Landesbibliothek Tirol in Innsbruck 90, fols 275ra–vc, 277ra–b. Analysed in F. Maassen, ‘Beiträge zur Geschichte der juristischen Literatur des Mittelalters, insbesondere der Dekretisten-Literatur des zwölften Jahrhunderts’, SB Wien, 24 (1857), 4–84 at 64–7. The canons are on p. 65 n. 1. At some point the manuscript has been rebound and the bifolium on which the first canons occur was reversed, meaning that the final chapters of the Dekretanhang, mostly decretals of Alexander III in this case and in a different hand, now separate the two sections. Durham, Dean and Chapter Library, C.III.1, fols 11ra–12vb. On the rest of the collection see Duggan, Twelfth-Century Decretal Collections, pp. 78–9; Holtzmann-Cheney, pp. 75–99. See Table 4.1. W. Deeters, Die Bambergensisgruppe der Dekretalensammlungen des 12. Jahrhunderts (Bonn, 1956), pp. 1–2; the collection is in Bamberg, Staatsbibliothek Can.17.

143

The Dissemination of the 1179 Canons Table 4.1 Locations of the 1179 canons in manuscripts Opening chapters Dekretanhänge

‘Primitive’

1 Berol. Duac. Flor. 1 Dun. Roff.

Alcob.

Closing chapters

Partway through

Sprinkled throughout Absent

Munich Darmstadt 28175 Decretum Oenipontana Ambr. Cus.

Cant.

[Wig. Alt.] [Belv.] Reg. Font.

Dert. Eberb. Claud.

1 Par.

Brid. Cantab. 1 Vict. Aur. Wig. Trin.

‘Pre-systematic’ Claustr. Chelt. Petr. Cott. ‘Systematic’ App. ‘St John’s Appendix’ Lincoln Appendix Lipsiensis II Erl. Bamb. Lips. Royal 2. D.ix Cass. I, II Tanner Sang. Abrin.

[Various]

Brug. Frcf. 1 Rot. Brev. Liber Extra

‘Later Systematic’

144

Dissemination of the Canons Even when they appear at the beginning of a collection, the canons are not always an integral part of its whole. In Roffensis and Berolinensis I the canons do play such a role, as in Appendix and Cassellana, where the overall number of titles includes those incorporating the decrees.102 In the Petrihusensis and Cottoniana collections, by contrast, the canons form a ‘discrete prooemium’ to the remainder of the collection; their compilers did not therefore consider the canons part of the collection itself.103 In the Cheltenhamensis collection, the canons and the collection appear palaeographically contemporary, but they are in different hands and were combined at a later date.104 Like Bambergensis, Cheltenhamensis does not contain any other mention of the 1179 council, implying that it may have been compiled without recourse to the canons; the archetype of the family, Wigorniensis, omitted the canons, probably deliberately. The key points raised here therefore stress the importance of factors external to the papal curia in the canons’ inclusion in manuscripts. Dating the decretal collections, or indeed any canonical collection, is a scholarly minefield; given that the canons of the 1179 council were omitted from collections that must have been compiled after that date, their exclusion should not be considered strong enough evidence to warrant dating a collection to before 1179. At the same time, the appearance of the 1179 decrees in manuscripts depending on the selection policy of individual compilers means that their dissemination was controlled by those local clerics, rather than the papal curia. While the Compilatio Tertia and Liber Extra were both authorised collections that travelled across Christendom with papal blessing, their twelfth-century ancestors were clearly different.105 Alexander explicitly limited certain of his letters’ ability to ‘make law’, meaning that any gathering of his letters was done unofficially, while the swirling and ever-changing texture of individual collections and their inherently local flavour make it difficult to discern any direct papal involvement in their compilation.106 Nevertheless, these 102

103

104

105

106

London, BL, Royal 10.C. iv, fol. 137r; J. Juncker, ‘Die Collectio Berolinensis’, ZRG Kan. Abt., 13 (1924), pp. 348–56; Appendix: Mansi, 22.249. C. Duggan, ‘Twelfth-century decretal collections and their importance in English history’, unpublished PhD thesis, Cambridge (1955), p. 166. London, BL, Egerton 2819, fols 11ra–16rb, the collection begins on fol. 18ra, with the exception of a rubric in red on fol. 17vb; Duggan, Twelfth-Century Decretal Collections, pp. 98–102 on Cheltenhamensis. See, for example, the discussion in K. Pennington, ‘Decretal collections, 1190–1234’, HMCL, pp. 293–317 at 310, 317. For the equivalent papal bulls, see Rex Pacificus: Friedberg, Corpus Iuris Canonici, 2.1–4; Devotione vestrae: Po. 4157 = Quinque Compilationes Antiquae: nec non collectio canonum Lipsiensis, ed. E. Friedberg (Leipzig, 1882), p. 105; Novae causarum: Po. 7684 = Quinque Compilationes, p. 151. See the discussion above, pp. 26–34.

145

The Dissemination of the 1179 Canons locally compiled collections and their antecedent Dekretanhänge were the principal vehicles for the movement of Alexander’s conciliar canons across Christendom, opening them to the same vicissitudes of circulation that affected contemporary papal decretals. the number of canons These fifty-six manuscripts provide the critical evidence for the canons’ dissemination. Most commentators have stressed the level of uniformity across their broad transmission, but that assumption should be queried.107 It is true that when present, most of the canons appear with the same or similar incipits and explicits, making them easy to recognise.108 Combined with the presence of multiple printed editions reproducing a single version of the canons, the focus upon incipit and explicit as a method of distinguishing between the texts means that a critical point about the 1179 canons has gone unnoticed. While the confusion surrounding the order of the canons is well-attested, there also appears to be little or no uniformity in their number or text across either the narrative or the manuscript traditions.109 Compared to the printed editions, manuscripts of the canons present a thicket of text that reinforces the perception of the decrees being received somewhat haphazardly, reliant on individuals copying out the canons rather than on any centralised authority. The differences between the manuscripts can be explained, but they clearly point to a more haphazard reception of the canons than is normally suggested. A study of the surviving traditions demonstrates the difficulties. In his analysis, Herold discerned thirty-four different traditions from thirty-six manuscripts, and a total of only twenty-three decrees which were nevertheless formed from the whole text as it is known today.110 In both COD3 and COGD, the text is divided into twentyseven canons.111 The Anonymous of Laon talks of forty-four of which twelve were rejected, while the English chronicler Roger of Wendover listed twenty-eight rubrics and his twelfth-century counterpart Roger Howden twenty-six canons.112 The Annales Casinenses agree with COD3, stating that twenty-seven canons were 107 108

109

110 112

E.g. Duggan, ‘Conciliar law’, pp. 338–9. Two good examples are 3 Lat. c. 10 = COD3, p. 217, COGD, 2.135–6; 3 Lat. c. 22 = COD3, p. 222, COGD, 2.143. COD3, p. 210; Decrees, p. 210; Herold, ‘Die Canones’, pp. 34–5; S. Kuttner, ‘Brief note, concerning the canons of the Third Lateran Council’, Traditio, 13 (1957), 505–6. Herold, ‘Die Canones’, pp. 34–5. 111 COD3, pp. 211–25, COGD, 2.127–47. Ex chronico universali anonymi Laudunensis, p. 449; Roger of Wendover, Liber qui dicitur Flores Historiarum ab anno Domini MCLIV annoque Henrici Anglorum regis Secundi primo, ed. by H. G. Hewlett, Rolls Series, 84 (3 vols, London, 1886–9), 2.118–20; Howden, Chronica, 2.171–89.

146

The Number of Canons promulgated,113 while William of Newburgh broke the same text as Howden and COD3 into thirty-four distinct sections.114 The confusion continues in the manuscript sources, where the number of canons varies considerably, as demonstrated in Tables 4.2 and 4.3. One explanation for the variety is the different ways in which the same text was broken down, either through paragraph marks and litterae notabiliores or through more fundamental elements such as line breaks and marginal numbering. For example, in the Petrihusensis collection, the canons are separated into thirty-seven different sections. A new canon begins with a line break twenty-five times, giving the impression of twenty-five different canons. The sixth of these, however, is a lengthy block of text that incorporates cc. 27.1, 27.2, 19, a fragment of c. 7, and cc. 24, 22, 21, and 20 in a constant stream over two sides of the same folio, although each is demarcated by a littera notabilior.115 In Reims 674, by contrast, two different types of separation are used, paragraph marks and litterae notabiliores, but in several places the texts of multiple canons run into one another.116 Even the numbering fluctuates: in Claudiana, for example, twenty-three rubrics are accompanied by marginal numbering from 1 to 28.117 Since there are several canons in COD3 that appear to cover multiple issues, and where numbering exists it was mostly added much later, the variety of the layout in the manuscripts demonstrates the divergence between traditions of the manuscripts and a consequent lack of uniformity. Furthermore, while these choices reflect local scribal practice or, in the case of Claudiana, later emendation, they also suggest that different clerics saw different connections between the same basic text, and that they felt able to subsequently alter the canons according to their individual perceptions of their meaning and use. Several of these manuscripts are incomplete through damage. Cottoniana, the most badly damaged, can be partially reconstructed through comparison with a sister manuscript, but in other cases missing folios prohibit a complete analysis.118 The Berkeley Panormia was obtained via a copy which omits two sides of a folio, while the manuscript of Alcobacensis is missing the opening folio of a quire.119 More confusing is 113 114 115 116 117 118

119

Annales Casinenses, ed. George Pertz, MGH, Scriptores, 19 (Hanover, 1866), p. 312. William of Newburgh, Historia, 1.206–13. Cambridge, Peterhouse 193, fols 223vb–224vb. Reims, BM 674, fols 154rb–155ra, which begins with c. 1 and also includes cc. 21, 6, and 19. London, BL, Cotton Claudius A.iv, fols 204vb–206vb. Duggan, Twelfth-Century Decretal Collections, pp. 103, 105 on the relationship – Petrihusensis was, in his opinion, the later collection. Personal collation of the two manuscripts suggests that the canons are in the same order, but Cottoniana is still classed as a damaged manuscript. Berkeley, Robbins Law Library 103, fols 163r–169r: the missing folio falls as fols 165v–166r; Alcobacensis = Lisbon, BN, Alcobaça 144, fols 1r–8v, with the final folio of the quire missing: see Holtzmann-Cheney, p. 16.

147

Table 4.2 The canons as they appear in select manuscripts, demonstrating the variety of numbers and orders (number corresponds to the canon according to COD3/COGD) BML 7621

BML 5992

McClean 1343

Oriel 534

Pet.5

Claud.6

Cant.7

Claustr.8

Lips.9

Clm 2817510

1 27 3 8+5 12 10 4 7 24 25 18 14.1 14.2 15 9 17 21 22 26 23 6

1 9 2 13 3 4 14.1 25 8 10 23 19 27 6 21 22 18 11 14.2 12 20

1 27 27.1 8 4 7 18 12 10 24 6 25 26 23 11 16 9 19 14.1 14.2 17

1 3 8+5 7 6 27 19 11 21 15 4 9 10 14 14.1 16 18 22 2 23 24

1 2 3.1 3.2 14.2 27.1 27.2 19 15.2 24 22 21 20 7 10 18 4 6.1 6.2 8 5

27 (fr.) 24 (fr.) 22 7.1 7.2 10 18 6 16 25 26 1.1 1.2 3.2 3.3 3.4 21 (fr.) 4 (fr.) 5 12 (fr.) 23 (fr.)

1 3 27.1 27.2 6 4 7 25 26 23 11 16 14.1 15 12 10 20 21 19 14.2 2

1 2 3 27 + (19) + 14.2 17 24 22 21 20 7 10 18 4 6 8+5 16 11 12 14.1 13 15

1 3 27 8+5 4 14.1 19 14.2 14.3 7 18 12 10 24 6 25 15 17 13 11 21

1 20 21 15 12 6 25 26 19 18 11 3 10 27 7 9 24

6.2 11 16 19 20

1 2 3 4 5 6 7 8 9 10

26 16 [1 Lat. c. 13] [1 Lat. c. 14] 17 7 24

15 22 2 20 21

13 17

16 11 12.1 12.2 13 14.1 15.1 15.2 9.1 9.2 9.3 23 25 26 17

Florence, BML, S. Marco 762, fols 49ra–55a. Florence, BML, S. Marco 599 fols 129ra–135vb. Cambridge, Fitzwilliam Museum, McClean 134, fols 1r–8v. Oxford, Oriel College 53, fol. 355va–c. Cambridge, Peterhouse 193, fols 22rb–227ra. London, BL, Cotton Claudius A.iv, fols 204vb–206vb. London, BL, Royal 10.B.iv, fols 62ra–65ra. Klosterneuburg, Stiftsbibliothek 19, fols 36r–40vb. Leipzig, Universitätsbibliothek 975, fols 116r–118v. Munich, BSB, clm 28175, fol. 318ra–vb.

13 + 14.1 18 22 9 24

9 23 25 26

9 26 23 16 22 2 20

The Dissemination of the 1179 Canons Table 4.3 Total number of 1179 canons in different traditions and manuscripts Tradition1 Complete Liber Censuum Rievaulx Cartulary Roger of Howden, Gesta Roger of Howden, Chronica Roger of Wendover, Flores William of Newburgh, Historia Reg.lat. 984 S. Marco 762 S. Marco 599 Gervase of Canterbury, Chronica Rastatt 27 Laborans’ Compilatio Decretorum Arras 425 Reims 674

Savigny 3 Brussels II 2532

Type

No. of sections

Canons missing?

Administrative documents Cartulary Chronicle

28

Sections of c. 8

28 26

-

Chronicle

26

-

Chronicle

28

14.1 (?)

Chronicle

34

-

Compendium Compendium: ?legal Compendium: Vallombrosa? Narrative

27 26 29

13 13 5, 15, 27 [+ adds]

26

-

26

9

28 20

5 2, 4, 5, 8, 13, 15, 17, 20, 22, 23, 24, 27.1 9, 27

Narrative + app. Altered Gratian Decretum Atrebatensis + app. Burchard, Decretum + app.

Collectio XIII librorum + 26* app. Pseudo-Isidore + 24 appendix Decretals 27

Appendix Concilii Lateranensis Appendix – Vienna Bambergensis Cassellana, I Cassellana, II Claudiana

Decretals Decretals Decretals Decretals Decretals

27 25 30 [in 12 titles] 30 [in 12 titles] 23*

Claustroneburgensis Dertusensis I Eberbacensis Erlangensis Lincoln Appendix

Decretals Decretals Decretals Decretals Decretals

24 25 27 26/26 28

150

6, 12, 13, 15, 16, 17, 19 13, 27 [+ adds] 2, 8, 9, 14, 14.1, 15, 17, 19, 20, 27.1 13, 21 13 -/5 -

The Number of Canons Table 4.3 (cont.) Tradition1

Type

No. of sections

Canons missing?

Lipsiensis Lipsiensis II Parisiensis I Petrihusensis Sangermanensis St John’s Appendix Tanner Cantuariensis Roffensis Ambrosiana Berolinensis Darmstadt Decretum Dunelmensis Florianensis Munich, Staatsbibliothek 28175 Oenipontana Oxford, Oriel College 53 McClean 134

Decretals Decretals Decretals Decretals Decretals Decretals Decretals Decretals + Decretals + Gratian abb. Dekretanhang Dekretanhang Dekretanhang Dekretanhang Dekretanhang Dekretanhang

28 27 26 37 28 26 28 25 26 25 27 25 24 24 17

- [+ adds] 5, 8, 13, 17 14 14 2, 22 14.1 2, 4, 5, 8, 13, 14, 16, 17, 22, 23

Dekretanhang Legal Compendium

24 23

13, 17 12, 20, 24, 25

Preface to 1 Comp.

26

3, 5, 13

10P + appendix

24?

4, 5, 17, 27.2

Panormia + appendix

21

Rommersdorfer Briefbuch Reg.lat. 596

Compendium

24

9, 10, 11, 12, 15, 17, 19, 29, 21, 27.1 14, 14.1, 16, 23

Compendium

11

Tarragona 92 Alcobacensis Cottoniana Cheltenhamensis Cusana

Compendium Decretals Decretals Decretals Decretals + Gratian abb. Dekretanhang

24 26 312 27 21

2, 5, 8, 9, 12, 13, 14, 15, 17, 18, 19, 22, 23, 24,26, 27 13, 17, 22 3, 5, 14, 16 [+ adds] 1, 2, 3 2, 16, 22, 23, 26

6

many

Damaged Berkeley, Robbins 103 Munich Panormia

Duacensis 1

2

* indicates a manuscript discussed in chapter 5 below as potentially representing an abbreviated version of the 1179 decrees. For full details, including palaeographical analyses where appropriate, see Appendix below. Assumed to be as Petrihusensis but severely damaged.

151

The Dissemination of the 1179 Canons Reims 674, which twice ends mid-canon.120 After the first scribe stopped copying c. 19 mid-column on fol. 155ra, a second scribe began at the top of the following column, fol. 155rb. He began mid-canon, in this case at Si quis preterea in c. 26, and this second set of the canons ultimately finished midway through c. 9. There is no overlap between the canons, however, suggesting that either the copyist wanted what he believed to be a full text or that different scribes copied from the same, distorted, exemplar. There is no indication, moreover, that they were recognised as incomplete. The implication of Reims 674, therefore, is that specific canons were deliberately omitted from some copies of the 1179 decrees. One potential rationale would be the production, by canonists, of abbreviated versions of the canons.121 Another, and more intriguing, possibility is the selective dissemination of the conciliar canons. A number of traditions show such deliberate pruning. Brussels, Bibliothèque royale de Belgique, II 2532 does not number its canons, but each canon begins on a new line.122 Twenty-four discrete chapters are copied out comprising twenty-one canons of the council. Six are missing. In four places, texts that appear as a single canon in COD3 are split in two; twice the two segments are separated by multiple texts.123 Conversely, one canon in the Brussels manuscript corresponds to two in COD3: cc. 8 and 5 are joined together.124 In the manuscript as it now survives, the final lines of c. 3 and the entirety of c. 18 – the last two canons – are on a partial folio added to the end of the final quire.125 Yet Brussels II 2532 was not a damaged manuscript. The space around the final two canons was deliberately cut to include only the text; it seems improbable that the remaining canons were deliberately cut off. The manuscript does not eliminate non-pertinent legal material, making it unlikely to have been a canonist’s abbreviation of the conciliar decrees. Instead, it represents a partial copy of the canons, where they were believed to be complete but, in fact, they were not. Brussels II 2532 is not the only manuscript to lack canons of the council. In the Cantuariensis manuscript, the canons comprise the final 120

121 122

123

124 125

Reims, BM 674, fol. 155ra (ends with isti vero, 3 Lat. c. 19) and fol. 156va (ends with representent episcopis, 3 Lat. c. 9). See Chapter 5 below, pp. 230–2. The manuscript is ruled in two columns; the canons begin on fol. 212ra following a copy of the False Decretals: Brussels, Bibliothèque royale de Belgique, II 2532, fols 212ra–214A. See also Herold, ‘Die Canones’, p. 9; Kéry, Canonical Collections, p. 101. 3 Lat. c. 27 = Brussels, Bibliothèque royale de Belgique, II 2532, fols 212vb and 213rb; 3 Lat. c. 11 = Brussels, Bibliothèque royale de Belgique, II 2532, fol. 213ra–b, separated by c. 10. Brussels, Bibliothèque royale de Belgique, II 2532, fol. 213vb. Brussels, Bibliothèque royale de Belgique, II 2532, fol. 214Ar.

152

The Number of Canons chapters of the decretal collection; four are absent.126 Other canonical traditions also lack decrees, but the intriguing element is the continuation of such absences into non-canonical manuscripts.127 The Florentine S. Marco 599 is missing cc. 5 and 15, and BAV, Reg.lat. 984 lacks c. 13.128 In comparison to COD3, these manuscripts are all incomplete copies yet all end their text neatly at the end of a decree, or at a recognisable set point: Cantuariensis, for example, ends mid-column and the remainder of the folio recto is ruled but otherwise blank. None appear damaged. Incomplete archetypes can never be ruled out, but these manuscripts omitted specific decrees for some reason. They still ostensibly provided full texts of the canons, just not the twentyseven with which scholars are familiar today. For all that some manuscripts lack canons compared to printed editions such as COD3, others contain additional decrees. Bambergensis includes a pre-Gratian chapter at the end of the canons, possibly taken from the Collectio Duodecim Partium.129 Petrihusensis includes the final clause of c. 15 twice, once on its own and once as part of the whole, distinguished from the remainder by a littera notabilior, so that the same phrase is repeated as two distinct canons.130 S. Marco 599, in contrast, includes two additional canons.131 Both appear in pre-Gratian collections, specifically in one version of Anselm of Lucca’s collection; both are canons of Calixtus II’s 1123 Lateran Council.132 One was ultimately included in Gratian’s Decretum. The best and easiest explanation for the incorporation of these canons is that they entered the text through marginal interpolation when an earlier version was copied out again.133 Even the non-legal copies of the decrees show other material seeping in in this fashion: the 126 127

128 129

130

131 132

133

London, BL, Royal 10.B.iv, fols 62ra–65ra. Bambergensis lacks c. 27: Deeters, Die Bambergensisgruppe, pp. 316, 323, Bamberg, Staatsbibliothek, Can. 17 fols 43rb–47ra; Oxford, Oriel College 53, fol. 355vc ends in a corner at fuerit definitum, the closing words of c. 17, but lacks cc. 12, 20, 24, and 25; Eberbacensis lacks c. 13: London, BL, Arundel 490, fols 218vb–221rb, and Dertusensis cc. 13 and 21: Tortosa, Biblioteca Capitular 144, fol. 30r–37v. Florence, BML, S. Marco 599, fols 49r–55r; Vatican City, BAV, Reg.lat. 984, fols 2r–7v. See D. Summerlin, ‘The reception and authority of conciliar canons in the later twelfth century: Alexander III’s 1179 Lateran canons in context’, ZRG Kan. Abt., 100 (2014), 112–31. The relevant clause reads ‘since in certain parts certain persons called deans ask a price, and for a sum administer the episcopal jurisdiction, by this present decree we declare that he who presumes to do this shall be deprived of his office, and the bishop shall lose the power to confer that office’: Cambridge, Peterhouse 193, fol. 224va and fol. 226rb–va. Florence, BML, S. Marco 599, fol. 54va Quicumque monetas: 1 Lat. c. 13 = COD3, pp. 192–3, Clavis AB04.058 (Anselm A’), Clavis AH4.036 (XIII librorum Vat.lat. 1361). Si quis Romipetas: 1 Lat c. 14 = COD3, p. 193, C.24 q.3 c.23, Clavis PR219, PR285 (Pragensis I), Clavis AB04.059 (Anselm A’), Clavis AH04.037 (XIII librorum Vat.lat. 1361). In the XIII librorum in Vat.lat. 1361, Si quis Romipetas continues templorum rather than apostolorum as in Anselm A’ and COD3. In turn, that pushes the date of the manuscript back, for it to have been copied out at least once already.

153

The Dissemination of the 1179 Canons list of rubrics that Roger of Wendover used instead of the conciliar decrees contains a rubric that does not correspond to any of the 1179 canons, but instead to a section of one of Alexander’s canons from Tours in 1163.134 Wendover was writing in the early thirteenth century, but his primary sources were contemporary, Howden and Diceto. For the 1179 canons, however, Wendover seems to have used neither: Diceto’s canons are incomplete and Howden’s do not contain the additional rubric.135 Interpolations such as these were not uncommon for the canons of papal councils. The canons of Reims in 1148 appear twice in Mansi because English manuscripts confused acta from Reims and the provincial council at Westminster in 1175.136 Tours in 1163 is a confusing example, the number of canons transmitted via the collections differing from the number included in Boso’s Life.137 Yet for such uncertainty to surround the canons of a high-ranking council during the later twelfth century disrupts a standard scholarly narrative that emphasises the growing authority of the conciliar canons. It thus implies what is becoming increasingly apparent: there was no mechanism by which these canons could be disseminated in identical copies across Christendom and so ideas of papal legislation need to be revised. When the bare figures are laid down, it becomes clear that the canons are in a parlous state. Of the fifty-six traditions investigated, forty-six are undamaged and represent, in effect, ‘complete’ versions of the canons.138 Of these forty-six undamaged traditions, only twenty contain all the 134

135

136 137 138

Roger of Wendover, Flores, 1.120: Si quis ab aliquo, commodata pecunia, possessiones in pignus acceperit, si, deductis expensis, sortem suam receperit ex fructibus possessionis, pignus restituat debitori. See also Maragone’s account above, p. 129; Somerville, Council of Tours, p. 49. This supports the contention that an additional compilation was used by Wendover for this section: V. H. Galbraith, ‘Roger Wendover and Matthew Paris’, essay X in his Kings and Chroniclers: Essays in English Medieval History (London, 1982), pp. 5–48 at pp. 11–12, 15; R. Vaughan, Matthew Paris (reissue, Cambridge, 1979), pp. 22–4 remained guarded and noncommittal; A. Gransden, Historical Writing in England, Vol. 1: c. 550–c. 1307, 2nd edn (London, 1996), pp. 359–60. Brooke, ‘Canons of English church councils’, pp. 471–5. See the discussion in Somerville, Council of Tours, pp. 43–8, 49–51. Most of the ten damaged manuscripts are missing a folio or quire: Lisbon, BN, Alcobaça 144 fol. 8v ends with sed infra sex menses, midway through c. 8, and while the catchword for the following quire is personas, fol. 9r begins exceptiones erit (see Holtzmann-Cheney, p. 9); Munich, BSB, clm 11316 ends mid-canon on fol. 120v; Vatican City, BAV, Reg. lat. 596 fol. 8v ends aut in cuiuscumque, midway through c. 6, and the next quire contains different material; Tarragona, Biblioteca Pública 92 also finishes mid-canon at the end of a quire on fol. 186v with sed in proprietatibus suis omnino from c. 9. Meanwhile, London, BL, Cotton Vitellius E.xiii was damaged in the Cotton collection fire; Douai, BM 590, is a fragmentary manuscript, as is its sister collection in Bernkastel-Kues, Hospitalbibliothek 229 (see Holtzmann-Cheney, pp. 64–7); London, BL, Egerton 2819 begins on fol. 11r midway through a canon; Berkeley, Robbins Law Library 103, fol. 166 appears to be missing a folio recto and verso, which may be the result of a bad microfilm, making the missing pages fols 165v–166r. For the purposes of the following discussion, the Rommersdorfer Briefbuch has also been classed as damaged: the canons fall on eight consecutive

154

The Number of Canons canons in COGD/COD3 and only the canons in COGD/COD3, with no additions or absences. For example, while on the one hand Bambergensis is missing one decree and adds another, Wendover contains all of the COD3 canons, but the additional Tours fragment renders his tradition equally unstable. If only twenty traditions contain the COD3 canons, then the clerics who used twenty-five manuscripts did not have the version with which we are familiar today, and would have received a different idea of the events of the council to what is presented in our sources. As far as Lateran III is concerned, the full copies are from a variety of sources, both legal and non-legal, including the Rievaulx Cartulary and four English chronicles. Although William of Newburgh incorporated the canons into his account in a most unusual order, which may indicate some legal influence, overall these five versions were probably not circulated through legal networks.139 Most of the copies containing all twenty-seven canons are therefore canonical, and most of those canonical witnesses number amongst the nascent decretal collections. This predominance of decretal collections may give an important indication as to how the 1179 decrees spread. In contrast with the preGratian collections, whose movement in the later twelfth century is still hazy, the strong interconnections between the decretal collections, both in terms of their contents and the order in which they presented their material, is well-attested.140 These connections allow the collections to be

139

140

folios, and their order as it survives resembles closely that found in the (complete) Erlangensis manuscript, suggesting that it is a stray quire which found its way into the legal compendium. Although the analysis does not indicate an incomplete copy, Herold noted that the final canon ended in a different hand in the margin, so the decrees may have continued onto another quire, since lost: Herold, ‘Die Canones’, p. 17. Despite appearances, Arras BM 425 has not been considered damaged: although it begins mid-text, that decree can be identified as Licet de vitanda, and every other known 3 Lat. canon can be identified somewhere, suggesting that only a fragment was missing. The forty-five other traditions all contain the canons together, and one, Laborans’ Compilatio Decretorum, separated. Discussed above pp. 140–1. For the Rievaulx Cartulary see London, BL, Cotton Julius D.i, fols 7r–18v. For an introduction see pp. 28–34 above, and amongst others: C. Duggan, Twelfth-Century Decretal Collections, passim; C. Duggan, ‘A Durham canonical manuscript of the late twelfth century’, SCH, 2 (1965), 179–85; C. Duggan, ‘English canonists and the Appendix Concilii Lateranensis, with an analysis of the St John’s, Cambridge MS 148’, Traditio, 18 (1962), 459–68; C. Duggan, ‘English decretals in continental primitive collections, with special reference to the primitive collection of Alcobaça’, Studia Gratiana, 14 (1967), 51–71; C. Duggan, ‘Italian marriage decretals in English collections with special reference to the Peterhouse Collection’, in C. Alzati (ed.), Cristianità ed Europa: Miscellanea di Studi in Onore di Luigi Prosdocimi (Rome, Freiburg, and Vienna, 1994), pp. 417–51; C. Duggan, ‘The Trinity collection of decretals and the early Worcester family’, Traditio, 17 (1961), 506–26; Holtzmann, ‘Die Collectio Eberbacensis’, 548–55; Holtzmann, ‘Die Sammlung Tanner’, pp. 83–145; W. Holtzmann, ‘Die Register Papst Alexander III. in den Händen der Kanonisten’, QF, 30 (1940), 13–87; W. Holtzmann,

155

The Dissemination of the 1179 Canons separated into families, which in turn makes it possible to see how one or two copies of the canons could have circulated widely simply through their inclusion in a particular collection.141 When the canons appear as an appendix, it is probable that they were added to a manuscript after its other contents had been gathered together. In such cases it is more likely that they reached the copyist from a source independent to the remainder of the collection. With the decretal collections, by contrast, their strong interrelationships point in the other direction, opening the possibility that copies of the canons moved from location to location as part of the manuscript, but were simply reorganised in each location according to the compiler’s desires. If that is the case, then those copies of the canons appended to pre-Gratian collections could represent copies brought back from Rome while the decretal collections present texts that circulated between different legal centres and whose contents and sequence were affected by that circulation. Even more intriguingly, most of the canons are lacking in at least one tradition. Only cc. 1, 4, 6, 7, 10, 11, 18, and 26 appear in every undamaged tradition.142 Some copies account for a number of omissions, such as Oriel 53, Reims 674, or Claudiana.143 Strikingly, most canons are only absent from a few manuscripts. Canon 21, Treugas a quarta, is absent only from Dertusensis, whilst c. 2, Quod a praedecessore, is lacking in the Darmstadt Decretum, Reims 674, S. Marco 762, and Claudiana. The principal exception to this rule is c. 13, which is missing from eleven traditions or around a quarter of the forty-six which are undamaged.144 If a number of decrees were missing from multiple manuscripts, it would cast doubt on the idea of a programme of canons issued at the council; as it is, the absence of small numbers of canons from certain manuscripts indicates that these copies were selections of useful or relevant texts from a broader pool. It also helps distinguish between the decretal collection families: for example, as

141

142

143

‘Über eine Ausgabe der päpstlichen Dekretalen des 12. Jahrhunderts’, Nachrichten von der Akademie der Wissenschaften in Göttingen, Phil.-hist. Kl., 24 (1945), 15–36; W. Holtzmann, ‘Kanonistische Ergänzungen zur Italia Pontificia, I–IV’, QF, 37 (1957), 55–102; W. Holtzmann, ‘Kanonistische Ergänzungen zur Italia Pontificia, V–X’, QF, 38 (1958), 67–175; Holtzmann-Cheney, passim; Papal Decretals Relating to the Diocese of Lincoln in the Twelfth Century, ed. W. Holtzmann and E. Kemp, Publications of the Lincoln Record Society, 47 (Hereford, 1954); Juncker, ‘Die Collectio Berolinensis’, 284–426; Singer, Neue Beiträge, passim; Quinque Compilationes, ed. Friedberg; Die Canones-Sammlungen zwischen Gratian und Bernhard von Pavia, ed. E. Friedberg (Leipzig, 1897, repr. Graz, 1958). Although this method is far from infallible: see Table 4.1 above for analysis of the decretal collections containing the 1179 canons, separated by family. The number is lower if Karlsruhe, Badische Landesbibliothek, Rastatt 27, fol. 103r is included, which lacks reference to cc. 18 and 26. It appears to be a list of the 1179 conciliar canons in muchabbreviated form, but the chance that it is a set of propositions similar to those Cheney identified for the 1175 council at Westminster cannot be discounted: see above, p. 46. As noted above pp. 151–2. 144 Discussed below, pp. 158–60.

156

The Number of Canons Dertusensis did not contain c. 21, Eberbacensis and Alcobacensis cannot have been dependent on that manuscript since c. 21 is included in both. In turn, this suggests that either the canons come from different places, or the exemplar for Dertusensis was complete and c. 21 was deliberately removed from the text in an act of selection. The Cheltenhamensis manuscript is a very striking case.145 The decretal collection begins on fol. 18ra, originally the first leaf of the manuscript. The canons are on fols 11ra–16ra, a separate quire bound with the collection after its compilation. Following the canons is a series of letters added in a later hand, including several of Innocent III, which demonstrates that additions continued to be made to the quire comparatively late in the life of the manuscript.146 The canons are classed as damaged due to a missing first folio. The first full canon is numbered ‘5’ and enough survives of the fourth canon to identify it as c. 27, Sicut ait beatus.147 Herold supposed that the initial three canons were cc. 1, 2, and 3; although such speculation is probably sound, it is far from secure and in any case the canons’ end is more interesting. On fol. 16r, the hand changes and rubrics vanish. The final canons, cc. 14.2 and 12, are consecutive but different from the earlier decrees. The ink is a different shade, and the Tironian note a different shape. An initial ‘C’ had been inked before being removed and a ‘P’ put in its place – the correct initial for c. 14.2 – while the final rubrics omit the numbering that had previously been commonplace. A change of scribe does not automatically equate to a different time of copying, but it makes it likely. If so, then the Cheltenhamensis canons were initially incomplete, and the final two canons were added as near-contemporary corrections. However, when the rubricator and the initial scribe copied the canons out, they were not aware of these differences, and believed the canons to be complete with the end of canon 17. A more specific example is found with two canons which may initially have been a single canon, c. 5, Episcopus si aliquem, and c. 8, Nulla ecclesiastica. Herold certainly believed so, although COD3 and now the COGD separate the two.148 Such a separation is characteristic of the canons in the Appendix tradition, but is rarely seen elsewhere.149 To complicate matters further, five traditions, including the version of the 145

146 148 149

London, BL, Egerton 2819, fols 11ra–16rb. I am very grateful to Professor Gisela Drossbach for the opportunity to discuss the Cheltenhamensis manuscript with her and her support throughout. See now G. Drossbach, Die Collectio Cheltenhamensis: eine englische Decretalensammlung. Analyse beruhend auf Vorarbeiten von Walther Holtzmann, MIC, B, 10 (Vatican City, 2014), pp. 16–17, 28. For an earlier analysis, see Duggan, Twelfth-Century Decretal Collections, pp. 98–103. London, BL, Egerton 2819, fols 16rb–17vb. 147 London, BL, Egerton 2819, fol. 11ra–b. Herold, ‘Die Canones’, pp. 46–7. Mansi, 22.220, 22.222; 3 Lat. c. 5 = COD3, p. 214, COGD, p. 2.131; 3 Lat. c. 8 = COD3, p. 215, COGD, 2.133; Lincoln, Cathedral Library 121, fols 55v, 56r.

157

The Dissemination of the 1179 Canons canons in the Liber Censuum in Riccardiana 228, omit the final clause of c. 8, suggesting that the canons may not have been combined.150 The absence of the clause from one of the two copies of the canons closest to the curia provides further support to any hypothesis that the canons were not recorded uniformly, as the result is mostly confusion. Canons 13 and 14.1 More important for the history of the council is the anomaly of cc. 13 and 14. Their use across the manuscript tradition varies widely enough to raise questions. Canon 14 has a natural break several lines in, where the content changes dramatically from a prohibition of pluralism to a condemnation of lay involvement in ecclesiastical affairs and culminates in a directive against lay investiture and the censure of lay attempts to force ecclesiastical attendance at their courts and to possess tithes. In those copies of the canons where both canons are included, c. 14 is frequently split into two sections that form additions to cc. 13 and 17. It forms a single canon in only nine traditions: Crabbe’s Appendix and the Lincoln, Vienna, and Leipzig Appendix manuscripts; the Darmstadt Decretum; Tanner and Sangermanensis; and in Howden’s Gesta and Chronica.151 Of these, only the Darmstadt manuscript is unrelated to another manuscript that combines the canons. In a further eight cases, the two sections of c. 14 are distinct but consecutive. In Roffensis, c. 14.1 is omitted while c. 14.2 is present and forms the canon immediately following c. 17; although the two canons remain separate, they are still consecutive.152 Elsewhere, the canons are separated more obviously. In Dunelmensis, c. 14.1 is appended to c. 13 while c. 14.2 follows c. 19 and falls before c. 17.153 Meanwhile, in the St John’s Appendix, c. 14.2 is incorporated into the end of c. 17 and in Oenipontana and Eberbacensis the canons are separated by other canons.154 So although the manuscript tradition is highly varied, it seems unlikely that the two halves of c. 14 were originally a single canon as found in COD3, but instead distinct. What then becomes interesting is the relationship between the first section, henceforth c. 14.1, and c. 13. 150

151 152 153

154

Arras, BM 425, fol. 69r; London, BL, Royal 10.B.iv, fol. 137rb; Brussels, Bibliothèque royale de Belgique, II 2532, fol. 213vb; Florence, BML, S. Marco 762, fol. 130va; Florence, Biblioteca Riccardiana 228, fol. 321rb–va. Herold, ‘Die Canones’, p. 27, e.g. Lincoln, Cathedral Library 121, fol. 56r. 3 Lat. cc. 17, 14.2 = London, BL, Royal 10.C. iv, fol. 138ra–b. 3 Lat. cc. 13, 14.1 = Durham, Dean and Chapter Library C.III.1, fol. 12va; 3 Lat. cc. 19, 14.2, 17 = Durham, Dean and Chapter Library C.III.1, fol. 12ra. 3 Lat cc. 17, 14.2 = Cambridge, St John’s College F.11, fols 76v–77v. For Oenipontana see Maassen, ‘Beiträge’, 65 n.1; 3 Lat. c. 14.1 = London, BL, Arundel 490, fol. 220vb; 3 Lat c. 14.2 = London, BL, Arundel 490, fol. 221rb; 3 Lat. c. 13 = not present in London, BL, Arundel 490.

158

The Number of Canons Canons 13 and 14.1 both rehearse the prohibition of clerical pluralism. Both see pluralism as the result of some form of economic need: Canon 13155 Because some, setting no limit to their avarice, strive to obtain several ecclesiastical dignitaries and several parish churches contrary to the decrees of the holy canons, so that though they are scarcely able to fulfil one office sufficiently they claim the revenues of very many, we strictly forbid this for the future. Therefore, when it is necessary to entrust a church or ecclesiastical ministry to anyone, the person sought for his office should be of such a kind that he is able to reside in the place and exercise his care for it himself. If the contrary is done, he who receives it is to be deprived of it, because he has received it contrary to the sacred canons, and he who gave it is to lose his power of bestowing it.

Canon 14.1 Since the ambition of some now extends so far that they are reported to have not two or three but six or more churches when they cannot provide necessary care even to two, we order that this be corrected through our brethren and most dear fellow bishops, and that the many [benefices held] contrary to the canons, which give rise to dissolute and vagrant lifestyles and cause definite danger to souls, be used to lighten the burden of those who are able to serve the churches.

There is a significant overlap of both content and theme between the two canons. Canon 13 is the more legally precise, yet it forbids pluralism with no real mechanism for implementing that censure. Canon 14.1, considerably looser, emphasises the role of the bishop in prohibiting the holding of multiple benefices. The question is how two canons that are so closely connected but so fundamentally different came to be included in the same set of conciliar acta. Although the 1179 canons do restate the use of maior et sanior pars in both c. 1 and c. 16, they have very different interests: c. 1 concerns elections and c. 16 decisions made in chapter; in any case, both reinforce the use of maior et sanior pars except in papal elections. Assuming that Alexander and his curia directed the agenda for the council, if not the acceptance of the canons themselves, it is difficult to explain the repetition. Even if c. 14.1 was a continuation of c. 13, as it appears to be in some manuscripts, its function is problematic. The repetition would not strengthen the exhortation of c. 13 against pluralism; if anything, its poor quality may have reduced its efficacy. The manuscript tradition may provide the explanation. Eleven of the fortysix versions that represent ‘full’ copies of the canons do not contain 155

3 Lat. c. 13 = COD3, p. 218, trans. Decrees, p. 218, COGD, 2.137.

159

The Dissemination of the 1179 Canons c. 13;156 four do not contain c. 14.1.157 Two of these traditions contain neither. The summary in Rastatt 27 mentions a single canon against pluralism, with no indication of which it represents.158 In total, therefore, thirteen of the forty-six manuscripts, or about a third, contain either no prohibition of pluralism, or only one of the two. S. Marco 762 and Reg. lat. 984 are the only non-canonical manuscripts containing just one of the two canons; both have c. 14.1 rather than c. 13.159 Other copies that do not contain the decrees are those used by canonists, such as Claudiana; two manuscripts, the Dekretanhang in Munich clm 28175 and Reims 674, contain neither canon.160 When the variable dissemination of the canons is considered alongside the textual complications of c. 14.1, it suggests that one or the other of the canons may not have been promulgated at the council. It may represent a draft version that was used as the basis for the later text or, in a similar fashion to the propositions of Westminster identified by Mary Cheney, a résumé of issues that required resolving.161 A number of the manuscripts containing both canons belong to one of the families, such as the ‘Worcester’ or Appendix groups; together, these groups comprise eight manuscripts, or ten if Tanner and Sangermanensis are included, so around half of the total. This implies that the canons’ inclusion was somehow connected to these families. No letter promulgating additional canons has survived to suggest that the two canons represent a draft agreed in the council and an ‘official’ copy circulated afterwards, as would happen at Lyon II a century later. Although the idea of propositions is seductive,162 the presence of a direct command in both canons renders it inadvisable and the most likely explanation for the peculiarity is that the two canons represent different versions of the same decree collected by those who wanted a complete set. It is also difficult to tell which version was original; c. 13, which is far more legally precise, is included in fewer copies, although that is no reason to doubt its authenticity. Combined with the difficulties over the dissemination of Nulla ecclesiastica, it stresses the untidy elements of the 1179 canons’ manuscript tradition, and helps demonstrate that no single version of the canons was disseminated across Christendom.

156

157 158 159 160 161

162

Oenipontana; Bambergensis; Brussels II 2532; Eberbacensis; Cantuariensis; Dertusensis; McClean 134; Reg.lat. 984; Reims 674; Munich 28175; S Marco 762. Alcobacensis I, Reims 674, Claudiana, Munich 28175. Karlsruhe, Badische Landesbibliothek, Rastatt 27, fol. 103r. Florence, BML, S. Marco 762, fol. 132va–b; Vatican City, BAV, Reg.lat. 984, fol. 3v. Weigand, ‘Die Dekretanhänge’, pp. 20–3; Reims, BM 674, fols 154ra–156va. M. G. Cheney, ‘The Council of Westminster, 1175: new light on an old source’, SCH, 11 (1175), 61–8 at 61–2. Also suggested in Engl and Larson, ‘Ein unbeachtetes Zeugnis’, p. 367.

160

The Order of the Canons the order of the canons The order of the canons also creates a quandary, albeit a more recognised one.163 How was a copy of the canons, promulgated in the final session of the council, transmitted so as to survive in an extensive variety of sequences, if the decrees were considered binding legislation? Herold ultimately decided upon twenty-three canons, in a particular order.164 This reproduction needs reconsidering, in part because it emerged before the great leaps that occurred in the 1950s revealing deep relationships between the families of decretal collections, but also because no copy of the canons examined has an order resembling Herold’s, which itself remains heavily dependent on the sequences found in the Appendix Concilii Lateranensis tradition. Canons 20–2, for example, are only to be found consecutively in the Lincoln, Leipzig, Vienna, and printed Appendix traditions; in contrast, they appear reversed in Parisiensis I, Cheltenhamensis, Claustroneoburgensis, Dunelmensis, Cottoniana, Petrihusensis, and the St John’s Appendix.165 Yet Herold decided both that cc. 20–22 were originally consecutive and even that they were in fact a single canon, which appears unlikely when the remainder of the manuscripts are considered. As a result, although Herold’s work must be appreciated in its historical context, it is as false a guide to the use of the canons by contemporaries as COD3 and, now, COGD. Combined, these texts give the impression of a careful, orderly dissemination of the conciliar acta, although, as must now be clear, the reality seems very different.166 Herold discerned thirty-four different traditions in thirty-six manuscripts.167 Despite examining twenty additional traditions, I have identified forty-seven sequences in total. Taking into account known links between manuscripts, the overlaps between the sequences is at times comprehensible, and here the two linked Tanner and Sangermanensis collections provide the best example. According to Herold, the copies of the canons in Tanner and Sangermanensis represented two different sequences.168 While the layout of the canons was different, however, the text was very similar. Sangermanensis c. 13, Cum apostolus se ac suos, was Tanner cc. 13 and 14, while Tanner c. 15, Cum et plantare, was Sangermanensis cc. 14 and 15.169 The two traditions are technically 163 164 165

166 167 168 169

Kuttner, ‘Brief note’, pp. 305–6; COD3, pp. 207–10; Decrees, pp. 207–10; COGD, 2.119. Herold, ‘Die Canones’, pp. 34–5. Herold, ‘Die Canones’, p. 27, and e.g. Lincoln, Cathedral and Chapter Library 121, fols 57v–58r; Cambridge, St John’s College F.11, fols 66v–67v. COD3, p. 210; Decrees, p. 210. COD3, p. 210; Decrees, p. 210; Kuttner, ‘Brief note’, pp. 505–6. Herold, ‘Die Canones’, p. 27; Duggan, ‘Conciliar law, 1123–1215’, p. 333 n. 85. Holtzmann, ‘Die Sammlung Tanner’, p. 106; Singer, Neue Beiträge, p. 123.

161

The Dissemination of the 1179 Canons different, but the differences emanate from the division of the text rather than the text itself. Herold even included the two texts together under the same siglum in his critical edition of the canons.170 Analogous similarities occur between the text in Erlangensis and the (incomplete) text in the Rommersdorfer Briefbuch, which also present the decrees in the same order as the list of titles in London, BL, Royal 2.D.ix.171 Cusana, although incomplete, separates the canons into smaller sections; these blocks are easily compared to the sequence of the canons as it appears in Berolinensis, although the blocks are not positioned in quite the same order.172 Consequently, related or identical sequences exist between Berolinensis I and Cusana; the Rommersdorfer Briefbuch, Erlangensis, and Royal 2.D. ix; Tanner and Sangermanensis; Roger of Howden’s Gesta and Chronica; Crabbe’s lost Appendix Concilii Lateranensis manuscript, the Vienna Appendix, and Lipsiensis II; Cottoniana and Petrihusensis;173 and the two Cassellana collections. Of these, only the Rommersdorfer Briefbuch and Erlangensis contain the canons in the same order despite being otherwise unrelated. All the other copies are linked by family or author: the Gesta and Chronica of Roger of Howden were composed by the same author, while Cottoniana and Petrihusensis are in the same family of decretal collections.174 Of the sixteen traditions listed above, only three are non-canonical and of those one is still a legal manuscript. Such a high proportion of canonical manuscripts was unexpected. Similar, if not exactly identical, orders of chapters frequently occur in the decretal collections, and their existence remains the primary method of identifying connections between the manuscripts.175 Yet for the canonical collections to possess a greater similarity in the order in which the canons were placed than in the noncanonical manuscripts is puzzling. It reinforces the links between certain families of decretal collections, such as within the Anglo-Norman group, and helps understand how the 1179 canons were transmitted between different centres of learning. From a different perspective, however, it is troubling. Only two non-canonical copies of the canons used them in the 170 171

172 173 174

175

Herold, ‘Die Canones’, p. 37; he used the siglum XY. Herold, ‘Die Canones’, p. 27. For Erlangensis, see Deeters, Die Bambergensisgruppe, pp. 315–16; Erlangen, Universitätsbibliothek 342, fols 291ra–292rb plus London, BL, Royal 2.D.ix, fols 21r– 22r, a manuscript unknown to Herold but hypothesised by Deeters to possess a connection with the ‘Bamberg’ group: Deeters, Die Bambergensisgruppe, p. 11. Holtzmann-Cheney, p. 70–4; Juncker, ‘Die Collectio Berolinensis’, pp. 348–56. See the caveats given on above p. 147. D. Corner, ‘The earliest surviving manuscript of Roger of Howden’s Chronica’, EHR, 98 (1983), 297–310; D. Corner, ‘The Gesta Regis Henrici Secundi and Chronica of Roger, parson of Howden’, Bulletin of the Institute for Historical Research, 56 (1983), 126–44, at 144. See, for example, the Berolinensis I, Cusana, and Florianensis collections of Holtzmann’s Italian family: Holtzmann-Cheney, pp. 70–4, esp. at Cusana cc. 78–84.

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The Order of the Canons same order, and those were two chronicles written by the same author. While we can presume that canonists altered the order of the canons according to their own preoccupations, it is more difficult to imagine that those who had not received legal training doing the same. To complicate matters further, no one canon appears in the same place in every tradition. At Lateran IV in 1215, the first two canons were acclaimed individually.176 These canons constituted a declaration of faith. It would not be surprising if the 1179 canons had undergone a similar process, but there is no evidence to prove it. Their sequence is consistently so haphazard that there is no continuity across the traditions: even c. 1 of the council, Licet de vitanda, which appears first in more traditions than any other canon, falls later in the set in some manuscripts. In Oenipontana it is fifteenth and second in Eberbacensis.177 In Munich 11316 and Savigny 3 it is sixteenth and twenty-fifth, respectively; both manuscripts begin their copies of the canons with Cum in ecclesie corpore, c. 7.178 Most of the non-canonical manuscripts begin with c. 1, but Reg. lat. 984 starts with c. 9, Cum et plantare, while Licet de vitanda is c. 23.179 Other canons are similarly scattered across both canonical and noncanonical manuscripts, rarely appearing in the same place. Canon 27 appears as the second chapter in Berolinensis I, Duacensis, and Cusana, the third in Lipsiensis and Dertusensis, the fifth in Ambrosiana, but as the fourteenth in Florianensis and Gervase of Canterbury, and the twentysixth in Roffensis.180 Canon 26, Iudaei siue saraceni, is seventh in Ambrosiana, thirteenth in Brussels II 2532 and Tarragona 92, fourteenth in Dertusensis and Parisiensis I, twenty-first in Oriel 53, twenty-second in Berolinensis, twenty-third in Cheltenhamensis, twenty-fourth in Dunelmensis, twenty-seventh in Eberbacensis, and ninth and nineteenth in Reims 674.181 Canon 2, Quod a praedecessore, is second in several 176 177

178

179

180

181

Kuttner and García y García, ‘Eyewitness’, pp. 127–8. 3 Lat. c. 1 = Maassen, ‘Beiträge’, p. 65 n. 1, Innsbruck, Universitäts- und Landesbibliothek Tirol in Innsbruck, 90, fol. 275vc; 3 Lat. c. 1 = London, BL, Arundel 490, fol. 219ra (Eberb. 19.1). 3 Lat. c. 7 = Munich, BSB, clm 11316, fol. 117r; 2 Lat. c. 7 = Berlin, SPRK Savigny 3, fol. 178ra (frag.). 3 Lat. c. 9 = Vatican City, BAV, Reg.lat. 984, fol. 2r–v; 3 Lat. c. 1 = Vatican City, BAV, Reg.lat. 984, fol. 6r–v. 3 Lat. c. 27 = Berlin, SPRK, Phil. 1742, fol. 287rb (1 Berol. c. 2: Juncker, ‘Die Collectio Berolinensis’, p. 348); Holtzmann-Cheney, p. 64 (Duac. c. 2); Holtzmann-Cheney, p. 71 (Cus. c. 65); Leipzig, Universitätsbibliothek, 975, fol. 116rb–va (Lips. pr. 3: Quinque Compilationes, p. 189); Tortosa, Biblioteca Capitular 144, fols 30v–31v (Dert. c. 77); Holtzmann-Cheney, p. 42 (Ambros. c. 67); Sankt Florian, Stiftsbibliothek III.5, fols 173vb–174ra (Flor. c. 14: HoltzmannCheney, p. 48); London, BL, Royal 10.C.iv, fol. 139va–b (Roff. c. 25). 3 Lat. c. 26 = Holtzmann-Cheney, p. 42 (Ambros. 69); Brussels, Bibliothèque royale de Belgique, II 2532, fol. 213ra; Tarragona, Biblioteca Pública 92, fol. 184v; Tortosa, Biblioteca Capitular 144, fols 34v–35r (Dert. c. 88); Die Canones-Sammlungen, p. 52 (1 Par. c. 14); Oxford, Oriel College 53, fol. 355vc; Berlin, SPRK, Phil. 1742, fol. 289ra (1 Berol. c. 22: Juncker, ‘Die Collectio Berolinensis’,

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The Dissemination of the 1179 Canons manuscripts including Parisiensis I, third in S. Marco 599, ninth in Eberbacensis and Oenipontana, thirteenth in Savigny 3, twentieth in Bambergensis, twenty-first in Cantuariensis, and twenty-eighth in Arras 425, as well as providing the final and apparently only complete canon in Rastatt 27.182 This demonstrates that the sequence of the canons was so haphazard that it becomes difficult to see how the sequence of the ur-text, if it existed, morphed into the many variants that have survived.183 A muddled transmission does not necessarily suggest that there is no explanation for the order of the canons in any manuscript, however. In fact, if the basic contents of the canons in the Appendix tradition are examined, then an interesting pattern emerges. The first two canons are declarations of overall law: the papal election decree and the decree declaring invalid all ordinations by the schismatics and their followers. The next six canons concern the rights, responsibilities, and duties of bishops and their representatives. Included in these is c. 6, which broadly offered protection against unwarranted episcopal excommunication and laid down procedures to be followed in appeals. Then come two canons concerning monks and monastic houses: Cum et plantare, criticising the excesses of the privileged orders, and Monachi non pretio, which condemns the forced payment of gifts when entering a monastic house. Canon 11 follows, prohibiting clerical incontinence. Canons 13–14 concern plurality, while c. 12 forbids clerics standing before secular judges; broadly, therefore, these seem to concern monks and clerics. Canons 15–19 are generally concerned with the alienation of ecclesiastical goods, money, or property and illicit or unjust clerical and lay exactions. The contents of cc. 20–7 are a jumble of issues, most of which fall in the fifth and final book of the Quinque Compilationes under the catch-all heading ‘Crime’. Only c. 23, concerning leper colonies, is omitted from the fifth book: Bernard’s only title concerning lepers focussed on their marriage, so he included the decree in a title of the third book concerning the reconstruction and renovation of churches instead. In fact, the order of the canons in the Appendix tradition fits roughly into several broad categories:

182

183

p. 355); London, BL, Egerton 2819, fol. 15rb–va; Durham, Dean and Chapter Library, C.III.1, fol. 12vb (2 Dun. c. 58); London, BL, Arundel 490, fol. 221rb (Eberb. 25.3); Reims, BM 674, fol. 155rb. 3 Lat. c. 2 = Die Canones-Sammlungen, p. 52 (1 Par. c. 2); Florence, BML, S. Marco 599, fol 49vb; London, BL, Arundel 490, fol. 219va–b (Eberb. 20.2); Innsbruck, Universitäts- und Landesbibliothek Tirol in Innsbruck, 90, fol. 275vc (Maassen, ‘Beiträge’, 65 n. 1); Berlin, SPRK, Savigny 3, fol. 179vb; Bamberg, Staatsbibliothek, Can. 17, fol. 46ra–b (Bamb. 56.20: Deeters, Die Bambergensisgruppe, p. 315); London, BL, Royal 10.B.iv, fol. 64rb–va (Cant. 4.21); Arras, BM 425, fol. 79r; Karlsruhe, Badische Landesbibliothek, Rastatt 27, fol. 103r. See Table 4.2 for specific examples.

164

The Order of the Canons Popes cc. 1–2 Bishops and their officers cc. 3–8 Monks and clerks cc. 9–14.1 Alienations and lay exactions cc. 14.2–19 Assorted other business cc. 20–7

Such a layout does not approach the sophistication of the five-part structure used later in Bologna, with its mnemonic of ‘law, judge, clerics, marriage, crimes’ more memorable in its original Latin form ius, iudex, clerus, connubia, crimen.184 Nevertheless, there is a vague link: the final section contains most of the canons which would, eventually, sit in book five of the Breviarium, and the three final canons in the Appendix tradition are also the three canons found in the latest titles of the Francofurtana.185 If Francofurtana were organised according to roughly the same outline as the Quinque Compilationes, then it would suggest that whoever copied the canons into the Appendix manuscript was already starting to think in that manner, and organised the decrees accordingly.186 At the same time, there is no link between this rough grouping of the canons and the order of the titles in Appendix in any of its forms, or even between the Leipzig, Vienna and Crabbe Appendix manuscripts and that in Lincoln.187 In the Lincoln manuscript, c. 27 appears much earlier, as the fourth canon; intriguingly, Sicut ait beatus appears as the fourth or fifth canons in collections of the ‘Worcester’ group, and Charles Duggan posited a link between the two families.188 Since the Lincoln and Leipzig Appendix manuscripts use the canons in a different order and in different places in the collection – at the end in Lincoln rather than the first title as in Leipzig – it may suggest that the canons were added to the manuscripts later, in order to take into account Landau’s argument that the Vienna Appendix is the earliest surviving member of the family.189 An alternative explanation is that later canonists, fiddling with the collection, simply altered the order of the canons; again, though, this demonstrates that the order of the canons was not perceived as unalterable, and stresses once more the fluidity of canonistic texts at the time. 184

185 186

187 188

189

Pennington, ‘Decretal collections’, p. 297. A similar, secular structure was also found in the Digest. 3 Lat. c. 25 = Frcf. 54.9; 3 Lat. c. 26 = Frcf. 61.2; 3 Lat. c. 27 = Frcf. 62.3. On the link with Francofurtana, see: G. Drossbach, ‘Die Collectio Francofurtana und die fünf Bücher der Compilatio Prima’, in V. Colli and E. Conte (eds.), Iuris Historia: Liber Amicorum Gero Dolezalek (Berkeley, 2008), pp. 145–59 at 147–8. Die Canones-Sammlungen, pp. 64–5. Lincoln, Cathedral and Chapter Library 121, fols 54v–55r; e.g. London, BL, Egerton 2819, fol. 11ra. P. Landau, ‘Studien zur Appendix und den Glossen in frühen systematischen Dekretalensammlungen’, BMCL, 9 (1979), 1–21 at 5.

165

The Dissemination of the 1179 Canons Regardless of how the 1179 canons can reflect the history of a particular decretal collection family, there is a broader point that needs to be made. While the organisation of the decrees points to the deliberate placing of the canons in a particular sequence in the Appendix tradition, the difference between it, the ordering of the titles in Francofurtana, and the quinpartite structure of the Quinque Compilationes also demonstrates how fluid the ideas underpinning canon law were in the 1180s before the widespread dissemination of the Breviarium. These are small differences, but they certainly do not show the expansion of a single line of thought which culminated in the Breviarium. For the primitive decretal collections and non-canonical manuscripts, however, there remains little clue to explain the constantly changing sequences. Uta-Renate Blumenthal has recently suggested that each canon was copied down individually while at the council.190 A further possibility has to be that the canons were held on loose leaves – or wax tablets – that were jumbled together in clerical luggage during the journey home from Rome. This is a more probable explanation for the fundamental confusion present in the canons, and provides a plausible justification for the existence of two different versions of the pluralism canon, now present as cc. 13 and 14.1. In any case, the result was the dissemination of multiple sequences of the 1179 canons which, combined with local selection, produced the canons as they survive today, in an at times haphazard format. textual variances between the traditions Tracing the sequence and number of the decrees is only one way of demonstrating the variety of traditions circulating; the text of the canons themselves presents another opportunity. A degree of textual integrity has always been presumed of the 1179 canons that is not supported by a close examination of the manuscripts; here, the canons in both the COD3 and COGD editions compound preconceptions of an orderly dissemination when the reality is more muddled. Several canons show slight differences, with Joshua Tate only the most recent commentator to note confusion towards the end of c. 17.191 According to COD3, three months were permitted before the bishop should fill the vacancy.192 According to c. 8, 190

191

192

U.-R. Blumenthal, ‘Das Dritte Laterankonzil, seine Beschlüsse und die Rechtspraxis’, in C. Andenna et. al. (eds.), Die Ordnung der Kommunikation und die Kommunikation der Ordnung im mittelalterlichen Europa, Band 2: Zentralität: Papsttum und Orden im Europa des 12. und 13. Jahrhunderts (Stuttgart, 2013), pp. 37–49. J. C. Tate, ‘The Third Lateran Council and the ius patronatus in England’, Proceedings Esztergom, pp. 589–600 at 598–9. 3 Lat. c. 17 = COD3, p. 220: Id [i.e. episcopus] ipsum etiam faciat, si de iure patronatus quaestio emerserit inter aliquos et cui competat infra tres menses non fuerit definitum.

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Textual Variances between the Traditions a six-month vacancy was allowed before a benefice should be filled.193 Herold believed that c. 17 should read ‘within two months’, rather than three, and two months was adopted in the COGD; both nevertheless noted that Appendix stated six months.194 The latter certainly suggests confusion between cc. 8 and 17; although Appendix is the only tradition to confuse the two, other copies of the canons make different mistakes. Cusana, for example, cites a vacancy of twelve months in c. 17 and five months in c. 8.195 It may be scribal error, a mistranscription of ii menses as xii menses; although it cannot be ruled out, it seems a rather tendentious explanation. Instead, Tate suggested that English copyists altered the limit to one that made greater sense to them.196 Interpretation of the conciliar canons will be the subject of the following chapter of this study. For the moment, however, the critical point is that small but significant differences did exist between copies of the canons. In several cases, scribal error provides an insufficient explanation for the divergences between the texts; there, confusion can only be explained by different manuscript traditions. The issue then becomes how far these differences represent local alterations and mistakes rather than traditions that emerged when the canons were under discussion in Rome. While these odd canons will be the focus of the following discussion, it is critical to recall that not every canon has a peculiar textual tradition. Some, such as c. 10 mentioned above, seem to change little across the manuscript tradition. Yet three examples serve to demonstrate the difficulties inherent when presuming a coherent manuscript tradition for the conciliar decrees. Licet de vitanda, c. 1 The first canon of interest is the papal election decree, Licet de vitanda. One of Licet’s key points was the implementation of a two-thirds majority in papal elections. The text mentions the specific majority required for papal election on five occasions: Therefore we decree that if by chance, through the enemy sowing tares, there cannot be full agreement among the cardinals on a successor to the papacy, and 193

194 195

196

3 Lat. c. 8 = COD3, p. 215: Cum vero praebendas ecclesiasticas seu quaelibet officia in aliqua ecclesia vacare contigerit vel etiam si modo vacant, non diu maneant in suspenso, sed infra sex menses personis, quae digne administrare valeant, conferantur; COGD, 2.133. 3 Lat. c. 17 = Herold, ‘Die Canones’, p. 75 l. 12; COGD 2.140. 3 Lat. c. 17 = Herold, ‘Die Canones’, p. 75 l. 12; 3 Lat. c. 8 = Herold, ‘Die Canones’, p. 48, l. 10 n. 5. Tate, ‘Third Lateran and Ius patronatus’, p. 600; cf. 2 Lat. c. 27 = COD3, p. 203, which cited previous decrees that vacancies should be filled within three months.

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The Dissemination of the 1179 Canons though two-thirds are in agreement the third part is unwilling to agree with them or presumes to appoint someone else for itself, that person shall be held as Roman pontiff (without any further problems) who has been chosen and received by the two-thirds. But if anyone trusting to his nomination by the third part assumes the name of bishop, since he cannot accept the reality . . . further, if anyone is chosen to the apostolic office by less than two-thirds, unless in the meantime he receives a larger support, let him in no way assume it, and let him be subject to the foresaid penalty if he is unwilling humbly to refrain.197

The use of the Roman law majority in the canon represents the depth of legal learning in the twelfth century.198 Yet seven manuscripts alter that numerical majority. Four may be linked to a single corrupted archetype. They change only the first four references to the majority, altering them from two-thirds to three-quarters, but leaving the final reference as ‘by less than two-thirds’: If by chance . . . there cannot be full agreement concerning the successor to the Roman pontiff, and while three-quarters agree the fourth part is unwilling to agree or presumes to appoint another for itself, he shall be held as Roman pontiff without problem who has been chosen and received by the three-quarters. But if anyone trusting to his nomination by the fourth part assumes the name of bishop for himself . . . further, if anyone is chosen to [episcopal or] apostolic office by less than two-thirds, unless a greater agreement is reached, let him in no way assume it, and let him be subject to the foresaid penalty if he is unwilling humbly to refrain.199

Two of the manuscripts are now in Germany – the Munich Panormia and Berlin, Savigny 3 – and another is the Florianensis decretal collection in the Austrian Sankt Florian Stiftsbibliothek.200 The final manuscript to make the change is Florence, S. Marco 762.201 Scribal error is the most obvious explanation, but the example is still instructive. It may be that the copyist did not remember the earlier use of the three-quarters majority when copying out the second half of the canon. It may also provide a link between these four otherwise unconnected manuscripts.202 197

198 199

200 201 202

3 Lat. c. 1 = COD3, p. 211; trans. Tanner, Decrees, p. 211, text in round brackets is added in Herold’s edition, ‘Die Canones’, p. 36; COGD, 2.127. See above pp. 116–19. Berlin, SPRK, Savigny 3, fol. 181rb–va; translation based on Tanner, Decrees, p. 211 with changes where necessary according to the text. Text in square brackets is found only in Savigny 3 and S. Marco 762. Munich, BSB, clm 11316, fol. 119r; Sankt Florian, Stiftsbibliothek III.5, fol. 173ra. Florence, BML, S. Marco 762, fol. 129ra. Berlin, Savigny 3 is a copy of the Collection in 13 Books with addenda: see Kéry, Canonical Collections, pp. 216–17. Clm 11316 contains a copy of the Panormia with an appendix of canons from various church councils, deposited in Munich from the monastery of S. Salvator in Polling: see Somerville, ‘The Council of Pisa, 1135’, pp. 104–5. These two, alongside S. Marco 762, both finish with the canons. Conversely, the Florianensis collection begins with the canons, which start

168

Textual Variances between the Traditions Three collections of the Worcester family, Claustroneoburgensis, Petrihusensis, and Cottoniana, also alter the text of c. 1. These manuscripts indicate a more deliberate adaptation, however, as all five mentions of the two-thirds majority are changed: Therefore we decree that if, through the enemy of man sowing tares between the cardinals, there cannot be full agreement concerning a successor to the pontiff, and though three-quarters are in agreement a fourth part is unwilling to agree, or presumes to appoint another for itself, he shall be held as Roman pontiff and received by the whole Church who has been chosen and received by the three-quarters. If anyone trusting to his nomination by the fourth part assumes the name of bishop, since he cannot accept the reality . . . further, if anyone is chosen to the apostolic office by less than three-quarters . . .203

This text is from Petrihusensis, but Claustroneoburgensis shows the same alteration.204 Cottoniana, badly damaged by fire, lacks the first half of the canon and with it the first four mentions of the numerical majority, but the final mention of the majority is altered to ‘three-quarters’.205 Combined with the collection’s reliance upon Petrihusensis, this suggests that the earlier section also originally employed a three-quarters rather than a two-thirds majority. The three collections are strongly linked by their family, and their shared use of the three-quarters majority suggests a common archetype for the canons as well as the individual decretal collections they contained. Shared archetypes explain the similarities in both these cases, without explaining the reasons for the change. There are three reasonable possibilities. The first is simple scribal error. In this case, either two scribes made the same error, or all seven manuscripts share an archetype that was further emended in the Claustroneoburgensis exemplar. The three-quarters majority could have been a deliberate alteration, potentially made to avoid using a Roman law majority. Or the use of the majority could be the result of discussion in the council which left clerics uncertain over the majority used.

203

204

205

immediately after a copy of the Decretum in the manuscript. Holtzmann suggested an Italian provenance between 1200 and 1220, albeit with a strong English influence, but John Wei has now suggested a northern French, Parisian, origin for other collections of the same family: Holtzmann-Cheney, pp. 43–6, 48; J. C. Wei, ‘Gratian in France and Halberstadt’, in P. Carmassi and G. Drossbach (eds.), Rechtshandschriften des deutschen Mittelalters: Produktionsorte und Importwege, Wolfenbüttler Mittelalter-Studien, 29 (Wiesbaden, 2015), pp. 363–83. Peterhouse, Cambridge 193, fol. 223rb–va; translation based upon Tanner, Decrees, p. 211, with emendations as required by the text. Klosterneuburg, Stiftsbibliothek 19, fol. 36ra–b; visible in Schönsteiner, ‘Die Collectio Claustroneoburgensis’, plate facing p. 1. London, BL, Cotton Vitellius E.xiii, fol. 205vb.

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The Dissemination of the 1179 Canons Of these three options, the second seems the least likely. Other canonists had begun to see two-thirds as the standard canonical majority in the twenty years or so prior to the council.206 Roman law was generally accepted and widely studied and used; popes had tried to limit the clerical study and use of civil law, and failed.207 Although the number of manuscripts is not necessarily an indicator of the veracity of a text, in this case scribal error seems a better explanation than the idea that the three-quarters majority was the rule initially employed in the papal conciliar decree. Claustroneoburgensis, Petrihusensis, and Cottoniana belong to a family of manuscripts that all contain similar sequences of the canons; other manuscripts of that family use the two-thirds majority, and when combined with the ease by which a minim can be added to a text, it suggests that a small initial error resulted in the greater change. What the error suggests, however, is that the Roman law majority may have been less well established in local use than in scholarly circles: scribes did not recognise it. Nevertheless, it remains improbable that the same mistake was made for all five mentions of the two-thirds majority. If a mistake was made with only one minim stroke, then the remaining numbers must have been changed to match. Whoever made the change in the Claustroneoburgensis, Petrihusensis, and Cottoniana manuscripts was therefore methodical enough to notice and alter the final, distant, mention of the majority. He must have been reading the canons, rather than copying them out blindly, but was unaware of the significance of the majority. All three decretal collections survive in manuscripts that were essentially display copies, but the exemplar may not have been and is in fact likely to have been in the possession of a canonist. Whether he made the change is uncertain, however. In the S. Marco 762 manuscript, moreover, the rubric notes the three-quarters majority.208 These manuscripts demonstrate that while Roman law was an increasingly important part of legal discourse, it was by no means universal in its use, especially at a local level where the developing ius commune may not yet have taken root.209

206 207

208 209

Peltzer, Canon Law, Careers and Conquest, pp. 41–4. 2 Lat. c. 9 = COD3, p. 198, COGD, 2.134. See also R. Somerville, ‘Pope Innocent II and the study of Roman law’, Revue des études islamiques, 44 (1976), 105–14. Florence, BML, S. Marco 762, fol. 29ra. Many scholars have argued for a deep knowledge of Roman law. See e.g. K. Pennington, ‘Roman law, 12th-century law and legislation’, in G. Drossbach (ed.), Von der Ordnung zur Norm: Statuten in Mittelalter und Früher Neuzeit (Paderborn, 2010), pp. 17–38 at 20, on the extent of Roman law knowledge in Sicily and pp. 27–9 for the interrelation between canon and Roman law; A. J. Duggan, ‘Roman, canon and common law in twelfth-century England: the Council of Northampton (1164) re-examined’, Historical Research, 83 (2010), 379–408 at 407–8.

170

Textual Variances between the Traditions Cum apostolus se ac suos, c. 4 While we can assume that Licet de vitanda was altered as a result of scribal error, such an easy explanation is not possible for c. 4 of the 1179 council.210 Cum apostolus se ac suos provided a series of regulations for episcopal visitations. It is long, but is rarely broken down into sections in any of the collections. Halfway through the canon appear the following three clauses: For they should not set out with hunting dogs and birds, but they should proceed as if they are seeking not of their own, but of Jesus Christ; nor should they seek sumptuous meals, but receive with the action of thanks that which is suitably and honourably supplied. Moreover, we prohibit that bishops should presume to burden their subjects with taxes and exactions.211

The canon presents a significant problem, centred on the clause in bold. This clause is in keeping with the overall tone of the canon, which focusses on the rights and the responsibilities of bishops while they are on visitation. However, the textual tradition of the clause is decidedly odd, with four versions circulating. One version uses the ‘sumptuous meals’ clause; it appears in most printed editions. For all that it was absent from Crabbe’s Appendix manuscript and Binius’ edition, it had been added to the text by the time of the Editio Romana and was used in both COD3 and Herold.212 The second version of the canon lacks the clause. This tradition includes the majority of surviving manuscripts.213 Several of these copies otherwise include the canons in full, such as the Rievaulx Cartulary and Erlangensis; many have no other obvious connection. The third version, present in Roger of Howden’s Chronica and Gesta and the Cantuariensis decretal collection, moves the ‘sumptuous meals’ clause closer to the prohibition on using hunting dogs and birds; the exhortation 210

211 212

213

See now D. Summerlin, ‘The reception and authority of conciliar canons in the later-twelfth century: Alexander III’s 1179 Lateran canons in context’, ZRG Kan. Abt., 100 (2014), pp. 125–30, which considers this example in detail. 3 Lat. c. 4 = COD3, p. 213; COGD 2.130. Conciliorum omnium, 2.836–43; Concilia generalia, 3.1345–50; Concilia generalia Ecclesiae catholicae, 4.27–33. It is likely that the addition came after manuscripts of the Breviarium and Liber Extra were used, see below. E.g. London, BL, Cotton Julius D.i, fols 14r–15r at 14v; London, BL, Royal 10.C. iv, fol. 137rb–va; Durham, Dean and Chapter Library, C.III.1, fol. 12rb; Reims, BM 674, fol. 154ra; Vatican City, BAV, Reg.lat. 596, fol. 7v; Berlin, SPRK, Savigny 3, fol. 179ra; Innsbruck, Universitäts- und Landesbibliothek Tirol in Innsbruck, 90 fol. 277rb; Bamberg, Staatsbibliothek, Can. 17, fol. 46vb; Leipzig, Universitätsbibliothek, 975 fol. 116vb; Oxford, Oriel College 53, fol. 255vb–c; Vatican City, BAV, Ottob. Lat. 3027, fols 19v–20r; Herold, ‘Die Canones’, p. 49. See also Gervase of Canterbury, Chronica, ed. W. Stubbs, The Historical Works of Gervase of Canterbury, Rolls Series, 73 (2 vols, London, 1879–80), 1.291; William of Newburgh, Historia, 1.216; Florence, BML, S. Marco 599, fol. 50va; Tarragona, Biblioteca Pública 92, fol. 182r.

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The Dissemination of the 1179 Canons that bishops should act as though they were looking for the things of Christ appears only after the prohibition of exactions.214 Finally, a further clause is added to the Dertusensis decretal collection, S. Marco 762 and in the margin of the Reg.lat. 984 manuscript; in Dertusensis it appears instead of the ‘sumptuous meals’ clause, and in Reg.lat. 984 and S. Marco 762 as an addition.215 Understanding how the ‘sumptuous meals’ clause functioned is complicated, to put it mildly. Manuscripts containing the clause survive across Europe, including in England, France, and Italy, but there is a particular link to manuscripts connected to the ‘Worcester’ family of decretal collections from England: the St John’s Appendix, Cheltenhamensis, and Petrihusensis.216 Other manuscripts with the clause include Parisiensis I, Alcobacensis I, S. Marco 762 (alongside the additional clause found in Dertusensis), and, critically, the Breviarium of Bernard of Pavia.217 While Bernard’s collection, compiled while he was provost of Pavia, represents an Italian tradition, he is believed to have compiled its contents from collections of the ‘Bamberg’ group of collections. None of these collections include the ‘sumptuous meals’ clause, however, suggesting that he copied the canons from a different source.218 As a result, the geographical spread of the ‘sumptuous meals’ manuscripts is extensive, equal to the distribution of the more numerous manuscripts which lack the phrase. The only two ‘curial’ accounts, in Laborans’ Compilatio Decretorum and the later Liber Censuum, both lack the clause.219 It may have been inserted later, but the likelihood remains that 214

215

216

217

218

219

Howden, Chronica, 2.174: Nec cum canibus venatoriis proficiscantur, et avibus, nec sumptuosas epulas requirant, sed cum gratiarum actione recipiant quod honeste et competenter illis fuerit ministratum. Prohibemus etiam, ne subditos suos talleis et exactionibus episcopi gravare praesumant, et ita procedant, ut non quae sua sunt, sed quae Jesu Christi quaerere videantur; Howden, Gesta, 1.224; London, BL, Royal 10.B.iv, fol. 62vb. Tortosa, Biblioteca Capitular, 144, fol. 32r; Vatican City, BAV, Reg.lat. 984 fol. 2v; Florence, BML, S. Marco 762, fol. 131rb–va. This may be a regional difference, as the three manuscripts in question all appear to have a Provençal or Catalan link: Reg.lat. 984 may be linked to Limoges, Dertusensis has northern Spanish connections and is now in Tortosa, and S. Marco 762 details a local council in the province of Arles. Cambridge, St John’s College F. 11, fol. 70r; Cambridge, Peterhouse 193, fol. 225va; London, BL, Egerton 2819, fol. 13rb. Paris, BnF, lat. 1596, fols 8v–9r; Lisbon, BN, Alcobaça 144, fol. 2r–v; Florence, BML, S. Marco 762, fol. 131rb; Sigüenza, Biblioteca del Cabildo 10, fol. 80rb. Compared to e.g. Leipzig, Universitätsbibliothek 975, fol. 116vb. See also P. Landau, ‘Die Entstehung der systematische Dekretalensammlungen und die europäische Kanonistik des 12. Jahrhunderts’, ZRG Kan. Abt., 65 (1979), 120–48 at 135–7. Florence, Biblioteca Riccardiana 228, fols 321vb–322rb; Vatican City, BAV Archivio del Capitolo di S. Pietro C.110, throughout and for c. 4, fol. 33va, though it is illegible on microfilm: read in N. Martin, ‘Die Compilatio Decretorum des Kardinal Laborans, Eine Umarbeitung des gratianischen Dekrets aus dem 12. Jahrhunderts’, PhD thesis, Heidelberg ([1985] 1994), 2.170 for the text of c. 4.

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Textual Variances between the Traditions these four different versions were all, to a greater or lesser extent, the result of discussion and debate at the council. At the very least, the difference between the canons as found in different manuscripts means that, depending on the particular manuscript version in their possession, clerics in different locations would have had a different idea about the content and extent of the decisions of the 1179 council concerning visitation. On a much narrower scale, as well as potentially indicating debate in the council over the visitation regulations, there remains the possibility that c. 4 demonstrates different versions or drafts of the canon which some clerics later took away from Rome by mistake. Sicut ait beatus Leo, c. 27 More explicit evidence for the circulation of multiple versions of the canon is found in Reg.lat. 984. Canon 27, Sicut ait beatus Leo, represented the council’s action against the Cathars. Nevertheless, it was more than a simple anti-heretical decree. It began by declaring anathema on all heretics in the south of France and required their denunciation and excommunication. Heretics were also forbidden ecclesiastical burial. The canon enacted similar measures against mercenaries, leading to a natural break that occurs around a third of the way through.220 The second section, beginning De Brabantionibus et Aragonensibus, Navarriis, Basculis, Coterellis et Triaverdinis, moves away from the first subjects of the canon to be mentioned by name, the Cathars; they are not mentioned by name or by title elsewhere although ‘they’ are referred to at one point.221 In this second section, the language is strong and pronounced. It speaks of men ‘fired by faith’ (ardore fidei) undertaking ‘to labour for their expulsion’ (eos expugnandos laborem istum). Such incendiary language is easily on a par with the terminology of crusade encyclicals. In fact, the section of c. 27 isolated by the compiler of the Claudiana collection is in essence a crusade indulgence for those who undertake to rid the land of ‘them’, that is those referred to by the eos noted above.222 Indulgences were in a state of flux in the twelfth century, and Brundage has noted the difficulty of imposing modern ideas of the indulgence on sources that predate the thirteenth century.223 While Alexander’s reissue 220 221

222 223

3 Lat. c. 27 = COD3, pp. 224–5; COGD, 2.145–7. Tanner’s English translation uses the term ‘heretics’ where the original Latin uses merely eos: Decrees, p. 225. London, BL, Cotton Claudius A.iv, fol. 204vb. G. Constable, ‘The Second Crusade as seen by contemporaries’, Traditio, 7 (1949), 213–79, republished in his Crusaders and Crusading in the Twelfth Century (Aldershot, 2008), p. 281; J. A. Brundage, Medieval Canon Law and the Crusader (Madison and London, 1969), pp. 145–9;

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The Dissemination of the 1179 Canons of Quantum praedecessores does not use exactly the same terminology as the 1179 conciliar canon,224 the idea of remitting half the penance set by a priest if only a year is spent fighting does appear in his 1166 crusading bull.225 Instead, the closest relation is William of Tyre’s account of Urban II’s sermon at Clermont in 1095.226 Given William’s presence at the council, it may be that the decree provided his model for Urban’s sermon. As already noted, c. 27 was in many ways new. Alexander’s decree at Tours had not anathematised heretics, but their protectors.227 A small textual distinction leads into the problem. In the second half of the canon there is a stray eos. It could refer to either the heretics in the first part or the mercenaries in the second. One approach, exemplified by Tanner’s translation, has been to see the canon as a single text with the eos referring to the heretics. However, in several manuscripts the canon is split into two at De brabantionibus et aragonensibus. If the canon was originally two separate decrees then the stray eos becomes even more confusing, as it could refer to the mercenaries. Herold considered its content in detail before concluding that c. 27 was intended to be a single canon, but the manuscript tradition is complex.228 In twenty-four cases, it is entire and the two sections are not separated.229 In fourteen, the canon is split into two separate but consecutive sections: in Arras 425, for instance, c. 27 is the ninth and tenth sections of the decrees, while in Cantuariensis it constitutes the third and fourth decrees although each section was given a different rubric.230 In the quirky Karlsruhe tradition,

224 225

226 227 229

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see now A. Bysted, The Crusade Indulgence: Spiritual Rewards and the Theology of Crusades, c. 1095–1216 (Leiden, 2014). WH – : JL 11218 = PL 200.383–6; but see also cf. WH – : JL – = PUTJ, 53, p. 253. J. Richard, ‘Urbain II, la prédication de la croisade et la définition de l’indulgence’, in E.D. Hehl, H. Seibert, and F. Staab (eds.), Deus qui mutat tempora: Menschen und Institutionen im Wandel des Mittelalters (Sigmaringen, 1987), pp. 133–4, citing Hiestand, PUTJ no. 53 and distinguishing against the two years’ service required for a full remission of penance. William of Tyre, Chronicon, p. 135, ll. 109–25. Somerville, Council of Tours, p. 50; Mansi, 21.1177–8. 228 Herold, ‘Die Canones’, p. 23. Overall, see Herold, ‘Die Canones’, p. 27, and e.g. Leipzig, Universitätsbibliothek 975, fol. 116r– b (Lips. pr. 3: Quinque Compilationes, p. 189); Berlin, SPRK, Phil. 1742, fol. 287rb (1 Berol. c. 2: Juncker, ‘Die Collectio Berolinensis’, p. 348); Holtzmann-Cheney, p. 71 (Cus. c. 65); HoltzmannCheney, p. 64 (Duac. c. 2); Oxford, Oriel College 53, fol. 255va–b; Tortosa, Biblioteca Capitular 144, fols 30v–31v (Dert. c. 77); Holtzmann-Cheney, p. 42 (Ambros. c. 72); London, BL, Royal 10. C.iv, fol. 139va–b (Roff. c. 26); Lincoln, Cathedral and Chapter Library 121, fols 54v–55r; Sankt Florian, Stiftsbibliothek III.5, fols 173vb–174ra (Flor. c. 14: Holtzmann-Cheney, p. 48); Erlangen, Universitätsbibliothek 342, fol. 291va–b (Erl. c. 14: Deeters, Die Bambergensisgruppe, pp. 315–16); Vatican City, BAV, Archivio del Capitolo di S. Pietro C. 110, fol. 131r, right margin. London, BL, Arundel 490, fol. 219ra–b (Eberb. 19.2–3); Die Canones-Sammlungen, p. 52 (1 Par. 4–5); Cambridge, Peterhouse 193, fols 223vb–224rb (Pet. pr. cc. 6–7) and therefore likely Cottoniana too; Cambridge, St John’s College F.11, fols 63v–65r (St John’s Appendix, cc. 4–5); Herold, ‘Die Canones’, p. 27; Arras, BM 425, fol. 72r–73r; London, BL, Royal 10.B.iv, fol. 62rb–va (Cant. 4.3, 4.4).

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Textual Variances between the Traditions the canon is also separated.231 In four cases, the two sections of the canon are separated from each other by multiple other canons.232 Alcobacensis I includes Sicut ait beatus Leo as c. 13 and De Brabantionibus et Aragonensibus as c. 21.233 Finally, some manuscripts, including Robbins 103, Reg.lat. 596, and Reims 674, omit the canon, either entirely or in part, and either deliberately or through missing folios.234 Reg.lat. 984 is particularly interesting. Its copy of the canon was corrected in a darker ink and a different hand. Although the annotations do change the content of the canon to some extent, its purpose remains clearer in Reg.lat. 984 than anywhere else. In the vulgate, Sicut ait beatus is long-winded and complex. The example of the stray eos given above is only one place where it is confusing; given the overall precision of most of the decrees, it is disconcerting. In Reg.lat. 984, however, the text reads as follows (the text in bold reflects the emendations made by the annotating hand). C. 13. As Leo says, though the discipline of the Church should be satisfied with the judgement of the prince and should not cause the shedding of blood, yet it is helped by the laws of catholic princes so that people often seek a salutary remedy when they fear that a corporal punishment will overtake them. For this reason, since in Gascony and the regions of Albi and Toulouse and in other places the actions of the Cathars and of other heretics has grown so strong that they no longer practise their wickedness in secret, as others do, but proclaim their error publicly and draw the simple and weak to join them, we declare that they and their defenders and those who receive them are under anathema, and we forbid under pain of anathema that anyone should keep or support them in their houses or lands or should trade with them. If anyone dies in this sin, then neither under cover of our privileges granted to anyone, nor for any other reason, is mass to be offered for them or are they to receive burial among Christians. For those princes and catholic men who, fired by their faith, have taken upon themselves the task of driving them out, if by the gift of God they die in sorrow and confession, they should know that they will receive pardon for their sins and the prize of an eternal reward. We, however, trusting in the mercy of God and of the holy apostles Peter and Paul, grant those who, if they devote themselves to their expulsion for one year, or who work for the conversion that we desire, a remission of half the penance imposed on them. Meanwhile, we receive under the protection of the 231 232

233 234

Karlsruhe, Badische Landesbibliothek, Rastatt 27, fol. 103r. Brussels, Bibliothèque royale de Belgique, II 2532, fols 212vb, 213rb; Deeters, Die Bambergensisgruppe, pp. 315–16. Lisbon, BN, Alcobaça 144, fols 5r, 7r. Berkeley, Robbins Law Library 103, fol. 169r; Vatican City, BAV, Reg.lat. 596, fols 6r–8v. The full text in Reims, BM 674, fol. 155vb, reads: Sicut enim ait beatus leo licet ecclesiastica disciplina sacerdotali contenta iuditio cruentas effugiat ultiones catholicorum tamen principum constitutionibus adiuuatur. ut sepe querant homines remedium salutare. dum corporale super se supplitium metuunt euenire. For the text of Claudiana see Chapter 5.

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The Dissemination of the 1179 Canons Church those who have taken upon themselves this task and we decree that they should remain undisturbed from all disquiet both in their property and persons. If any of you presumes to molest them, he shall incur the sentence of excommunication from the bishop of the place, and let the sentence be observed by all until what has been taken away has been restored and suitable satisfaction has been made for the loss inflicted. Bishops and priests who do not resist such wrongs are to be punished by loss of their office until they gain the pardon of the apostolic see. C. 14. With regard to the Brabanters, Navarrese, Basques, Aragonese, and all such men, who practise such cruelty upon Christians that they respect neither churches nor monasteries, and spare neither widows, orphans, old, or young nor any age or sex, but like pagans destroy and lay everything waste, we likewise decree that those who hire or keep them, in the districts where they rage around, should be publicly and frequently denounced in the churches, and that they should be struck in every way by the same sentence and penalty as those abovementioned, and that they should not be received into the communion of the Church, unless they abjure that pernicious society and heresy. As long as such people persist in their wickedness, let all who are subject to them by any pact know that they are free from all obligations of loyalty, homage, or any other obedience. On princes and on all the faithful we enjoin, for the remission of sins, that they oppose this scourge with all their might and by arms protect the Christian people against them. Their goods are to be confiscated and princes are free to subject them to slavery. Those who in true sorrow for their sins die in such a conflict should not doubt that they will receive forgiveness for their sins and the fruit of an eternal reward. We too, trusting in the mercy of God and the authority of the blessed apostles Peter and Paul, grant to faithful Christians who take up arms against them, and who on the advice of bishops or other prelates seek to drive them out, a remission for two years of penance imposed on them, or, if their service shall be longer, we entrust it to the discretion of the bishops, to whom this task has been committed, to grant greater indulgence, according to their judgement, in proportion to the degree of their toil. We command that those who refuse to obey the exhortation of the bishops in this matter should not be allowed to receive the body and blood of the Lord.235 235

Vatican City, BAV, Reg.lat. 984, fols 4r–5r. Bold text represents marginal or interlinear additions in a later, darker hand. Translation based on Decrees, pp. 224–5, with additions and emendations where required according to the text: C. 13. Sicut ait leo. licet ˛ecclesiastica disciplina sacerdotali contenta iudicio cruentas effugiat ulciones catholicorum tamen principium constitutionibus adiuuatur. ut sepe querant homines [fol. 4v] salutare remedium, dum corporale super se metuunt supplicium euenire. Ea propter que in gasconia albigesio et partibus tolosanis. et aliis locis. ita catharorum et aliorum hereticorum inualuit dampnanda perseueritas. ut iam non in occulto sicut aliqui nequiciam suam exerceant. sed errorem suum publice manifestent. et ad consensum suum simplices attrahant et infirmos eos et defensores et receptatores eorum anathemati decernimus subiacere. et sub anathemate prohibemus. nequis eos in domo uel terra sua tenere. aut negotiationem cum eis exercere presumant. Si autem in hoc peccato decesserint. neque sub priuilegiorum nostrorum obtentu et quibuscumque indultorum. neque sub alia quoque occasione aut oblatio pro eis fiat. aut inter christianos accipiant sepulturam. Principes autem et uiri catholici qui ardore fidei ad expugnandos eos laborem assumpserint. si donante deo in penitencia et confessione decesserint, peccatorum suorum ueniam. et premium mercedis eterne˛ se nouerint accepturos. Nos autem de misericordia dei et

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Textual Variances between the Traditions The differences between the canon in Reg.lat. 984 and the COD3 text are considerable. If the later additions are removed, then the contrast becomes even more striking. To begin with, the two sections of the decree are almost entirely separated. The Brabanters, Navarrese, and other mercenaries were not called heretics until the annotator of the manuscript made his changes. The principal link is a comment surrounding ‘those above-mentioned’, which is not sufficient evidence to suggest that the two were originally part of the same canon. It is still made clear that neither group was welcome in Christian society, but the separation of mercenaries and heretics is far more effective than in the version found in most manuscripts. There is also a considerable difference between the indulgences put forward in the two canons. Elsewhere in the 1179 tradition, penance was remitted for two years for those who fought against both heretics and mercenaries. In Reg.lat. 984, those who fought heretics were given a different remission on their penance from those who fought mercenaries: half their penance in total, rather than all their penance for two years. The annotator also inserted the anathema on the heretics; as a result, the text of the canon in Reg.lat. 984 resembles the canon that Alexander had promulgated at Tours in 1163, which is more in keeping with his temperament and the evidence of other canons of 1179.236 Even taking into account the aims of anathema and

236

beatorum apostolorum Petri. et pauli. auctoritate confisi. eis qui unum annum si opus fuerit in eorum expugnatione. aut quod magis obtamus in eorum conuersione compleuerint, medietatem eis penitencie relaxamus. Interim autem eos qui laborem istum assumpserint sub ecclesie˛ defensione, recipimus. et ab uniuersis inquietationibus tam in rebus quam in personis statuimus securos manere. Si uero quisquam interim molestare eos presumpserit, per episcopum loci excommunicationis sentencia feriatur. et tam diu ab omnibus sentencia obseruetur. donec et ablata reddantur. et de illatis dampnis congrue satisfaciat. Episcopi uero siue presbyteri qui talibus fortiter non restiterint, officii sui periculum paciantur. donec apostolice sedis misericordiam obtineant. C. 14. De bramansonibus ˛etiam nauariis. basculis. arragonis. et aliis conductiis gentibus. qui tantam immanitatem in christianos exercent. ut non ˛ecclesiis aut monasteriis deferant. non uiduis et pupillis. non pueris aut senibus nec cuilibet parcant etati uel sexui. sed more paganorum omnia perdant et uastent. similiter constituimus. ut ipsi qui eos conduxerint uel tenuerint. per regiones in quibus taliter debacantur. frequenter per ˛ecclesias excommunicati publice denuncientur. et eadem omnino sententia et pena cum his qui predictis sunt feriantur, nec ad communionem recipiatur ecclesie nisi societate illa pestifera et heresi abiuratis Relaxatos autem se nouerint a debito fidelitatis seu hominii ac totiis obsequii. donec in tanta inquietate permanserint, quicumque illis aliquo pacto tenentur astricti. Principibus autem cunctis fidelibus in remissionem peccatorum iniungimus. ut tantis cladibus uiriliter se opponant. et contra eos armis tueantur populum christianum. Confiscentur quoque bona eorum et liberum sit principibus huius pestilentes homines subicere seruituti Qui autem in uera penitentia ibi decesserint. et pec- [fol. 5r] catorum indulgentiam. et fructum mercedis eterne˛ non dubitent se habituros. Nos etiam de misericordia dei et beatorum apostolorum petri et pauli. auctoritate confisi. fidelibus christianis qui contra eos arma susceperint. et ad episcoporum siue aliorum prelatorum consilium decertauerint expugnandos. biennium de iniuncta penitentia relaxamus. aut si ibi longiorem moram habuerint, episcoporum discretioni committimus. ut ad eorum arbitrium secundum modum laboris maior indulgentia tribuatur. Illos autem qui ammonitioni episcoporum in huiusmodi parere contempserint, a perceptione corporis et sanguinis domini iubemus fieri alienos. Mansi, 21.117–18.

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The Dissemination of the 1179 Canons excommunication, to bring people back to the Church, anathematising heretics seems counter-intuitive. When all these changes are considered, c. 27 in Reg.lat. 984 makes more sense, is more streamlined and less confusing, and is more legally precise than the copy of the canon available elsewhere. The Reg.lat. 984 text could be either an anomalous tradition or, given that multiple versions seem to have circulated, an early copy. Individual copies of twelfth-century conciliar canons cannot be rejected from consideration purely because they are attested nowhere else. Consequently, c. 27 in Reg.lat. 984 deserves detailed consideration. The hand dates to the late twelfth century while the manuscript seems to come from the abbey of Saint-Martial in Limoges, or was copied from an exemplar with such links.237 If so, it represents a close geographical copy to the Languedoc: Limoges is around two hundred miles from Toulouse. Since both Catharism and the use of mercenaries are commonly seen as southern French traits, this geographical proximity is a critical factor.238 Furthermore, a locally specific preface to the canons suggests that some additions were made when the canons were copied out.239 The preface appears to be in the same hand as the canons. Thus, any changes made to the canon either took place at Saint-Martial, or were executed by a member of the community or a cleric with origins in the vicinity. If the canon was altered locally, then a canon lawyer was involved. Deliberately adapting a canon that was incoherent at best and dividing it into two separate, more streamlined canons would have taken considerable skill. Limoges is approximately equidistant from Toulouse and the nearest potential law school, which in the twelfth century was either Poitiers or, more likely, Tours.240 Yet there may have been a local interest in canon law. Gérard Fransen drew scholars’ attention to two discrete collections of late twelfth-century canonical questiones that belonged, at one point, to the abbey of Saint-Martial. The first of these are five questiones that are included in a quaternion of Paris, BnF lat. 3454; excerpts from Sicard of Cremona and Bernard of Pavia are also present.241 Fransen thus dated it to the 1190s. The second manuscript, 237 238

239 240

241

See above pp. 137–8. E. Graham-Leigh, The Southern French Nobility and the Albigensian Crusade (Woodbridge, 2005), p. 96; W. Wakefield, Heresy, Crusade and Inquisition in Southern France 1100–1250 (London, 1974), pp. 85–6; L. Macé, Les comtes de Toulouse et leur entourage, XIIe–XIIIe siècles. Rivalités, alliances et jeux de pouvoir (Toulouse, 2000), pp. 355–9. Vatican City, BAV, Reg.lat. 984, fol. 1v. S. Kuttner, ‘The revival of jurisprudence’, in R. Benson and G. Constable (eds.), Renaissance and Renewal in the Twelfth Century (Cambridge, MA, 1982), pp. 299–323 at 319. G. Fransen, ‘Questiones Vaticanae, Urgellenses, Lemovicenses’, ZRG. Kan. Abt., 55 (1969), 437–48 at 438–9.

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Textual Variances between the Traditions Paris, BnF lat. 4270A, comprises some thirty-one questiones of varying dates which have survived in multiple manuscripts and include several questiones believed to date to the 1170s or potentially the 1160s. Alexander III’s letter WH 194 provides the most recent datable material cited in the questiones, although Fransen thought it was an addition.242 It was dated by Holtzmann to 1159–79, based on its inclusion in two early French collections.243 This second manuscript also contained other canonical and civilian legal material, as well as a partial grammar. Fransen was clearly uncertain about the original provenance of either manuscript, although both were ultimately in Saint-Martial. Concerning lat. 4720A, he noted, ‘I have found no conclusive evidence whether the school is French or Italian, but the manuscript does not seem Italian to me, no more so than that in Barcelona’.244 Even if the manuscripts were compiled elsewhere, then two canonical fragments together in Saint-Martial late in the twelfth century would demonstrate a legal presence in the abbey itself. To these manuscripts can also be added the fragmentary evidence from the SaintMartial library catalogue, which in the early thirteenth century included summae legum and decretorum,245 as well as a Gratian, a ‘Decretales’, and the majority of the Corpus Iuris Civilis.246 That still leaves us no closer to identifying our canonist, however. Aside from uncertainty over the existence of a monk with canonical learning in Saint-Martial, this hypothesis presumes that a cleric working away from the curia would not only edit the canon of a general council, but also extensively rewrite it. As is becoming clear, the 1179 canons were not held in any especial esteem as a result of their character as general decrees, but making such extensive changes could be classed as forgery. Papal opposition to forgery was strong in the twelfth century, helpfully demonstrating that it was a significant problem, but most forgeries are letters, created to support claims to property or exemptions that the forgers ‘knew’ (i.e. believed) to be correct, but for which they lacked proof.247 It is difficult to see any immediate use that could have been 242

243

244 246 247

G. Fransen, ‘Questiones Lemovicenses II’, ZRG Kan. Abt., 76 (1990), 156–71 at 158: ‘Cette allusion, précédée de “Hodie” me paraît due à un copiste et ne pas faire partie du text original’; WH 194: JL 14071 = 1 Comp. 2.20.18. www.kuttner-institute.jura.uni-muenchen.de/kartei/whv0215.gif (last accessed 1 September 2018). Fransen, ‘Questiones Lemovicenses II’, p. 160. 245 Chroniques de Saint-Martial, p. 337. Chroniques de Saint-Martial, p. 338. C. N. L. Brooke, ‘English episcopal acta of the twelfth and early thirteenth centuries’, in M. J. Franklin and C. Harper-Bill (eds.), Studies in Medieval Ecclesiastical History in Honour of Dorothy M. Owen (Woodbridge, 1995), pp. 41–56 at 49–53; J. Barrow, ‘Why forge episcopal acta? Preliminary observations on the forged charters in the English Episcopal Acta series’, in P. Hoskin, C. N. L. Brooke, and B. Dobson (eds.), The Foundations of Medieval English Ecclesiastical History: Studies Presented to David Smith (Woodbridge, 2005), pp. 18–39 at 24–6.

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The Dissemination of the 1179 Canons found for an altered conciliar canon, unless it was altered to clarify the situation.248 If that was the case for Reg.lat. 984, then why not ask and receive a papal responsum? Hugh du Puiset, bishop of Durham did.249 At the same time, there is little further evidence that canonists in the later twelfth century undertook such delicate reconstruction work. The Trecensis Dekretanhang used a curious combination of decretals to Roger of Worcester and William of Sens.250 Yet, in Trecensis, understanding is hindered by the alteration: Duggan termed the chapter ‘a garbled conflation’.251 Several of the Ineditae are preserved in two different versions, one short and one long, but they do not significantly change the contents. In Reg.lat. 984, the opposite is true. Interpretation of the canon is made easier than it would be elsewhere, and the difference between the remission of penance in the two canons represents a significant change between the two versions. What if Reg.lat. 984 represents the first version of the canon, and the widely disseminated version either a later draft or a distorted text? SaintMartial was a large and important ecclesiastical institution; it would certainly have warranted a presence at the council. It is also difficult to date the hand to later than 1200, due to the presence of a tagged ‘e’; it is thus earlier than a number of manuscripts of the canons. The manuscript does not incorporate c. 13, but does include c. 14.1; c. 4 also lacks the ‘sumptuous meals’ phrase. These all correspond to the most widespread versions of the respective canons. It has already been suggested that cc. 4, 13, and 14 indicate confusion between different traditions of the canons. So does Reg.lat. 984 preserve an earlier version of the decrees, whose c. 27 represents an initial iteration subjected to significant modifications later? While this provides an elegant and plausible solution, it would be difficult to prove; the coherence of Reg.lat. 984 is nevertheless difficult to explain otherwise. conclusions Whether the version of c. 27 in Reg.lat. 984 represents the canon promulgated during the final session of the council, a draft that was discussed there, or a canonist’s attempt to make sense of a confusing precedent, it adds to a growing picture of the textual instability of the canons. Such an idea is at odds with their portrayal as legislative acta 248

249 251

The exception being the Pseudo-Isidorian forgeries: H. Fuhrmann, ‘The Pseudo-Isidorian forgeries’, in H. Fuhrmann and D. Jasper (eds.), Papal Letters in the Early Middle Ages (Washington, DC, 2001), pp. 155, 159–69. See Chapter 5, using WH 207c: JL 13868 = 1 Comp. 1.8.7. 250 Troyes, BM 103, fol. 265va. Duggan, ‘Decretal collections’, p. 256.

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Conclusions disseminated from the council with minor changes, but with the substantive content remaining the same – whoever was reading them. What this chapter has demonstrated, however, is that two clerics in different parts of Latin Christendom could read canons from the same council and receive a profoundly different idea of their contents on a number of substantive issues. What is more, the resultant differences emerged because of scribal error, later interpolation and alteration, and maybe even fundamental differences in the canons’ texts that were there from the outset. For each of the canons mentioned above, therefore, at least two versions circulated, while the variety of sequences and texts makes it easy to see how the canons became so confused. Consequently, it appears that no one ‘official’ copy left Rome to be broadly disseminated. Those present were no doubt partially responsible for the variety of versions that left the council. That said, copies of the canons also circulated locally without any papal involvement, a fact best demonstrated by later members of the ‘Worcester’ group of decretal collections. The variety of texts, therefore, and the strong local circulation of the decrees suggests that even if William of Tyre had copied out an ‘official’ version of the canons, it was of little or no importance once the canons left the conciliar environment. The most obvious conclusion from the preceding discussion – that COD3 or, in fact, any printed edition is unrepresentative of the manuscript tradition – is, on its own, neither surprising nor helpful. Instead, deeper questions need to be asked of the canons’ nature as sources of law. Even though they were promulgated in council, there was no mechanism by which the canons could be disseminated that would ensure that every cleric used the same – or even a closely similar – text, and Alexander certainly did not introduce one. Not even the authority of a general council, such as Lateran III, could guarantee the canons’ reception. Were the canons legislative? In the modern sense, certainly not; in the medieval, potentially so. They provided an extensive selection of general principles that were copied across Europe and incorporated into multiple manuscripts, legal and otherwise. Yet the divergence between the two aspects of the canons – their intention and their reception – suggests that the canons were not necessarily considered of immediate importance by all clerics. While some, particularly the canonists, were keen to collect as many authorities as possible and to present them as law, many other clerics were only interested in such canons as provided them with usable comments on problems of local significance. In short, the canons’ promulgation in council was a sign of general approval for the ideas they contained rather than the publication of a set, legislative, text. The evidence for the canons’ dissemination therefore suggests that the hypothesis that the mid-twelfth century immediately changed everything 181

The Dissemination of the 1179 Canons in legal terms is misguided. Alexander III could not force the circulation of the 1179 conciliar decrees. In their transmission and their promulgation, the 1179 canons looked back to methods and approaches used for centuries, and the result was a series of conciliar canons that represent not only a variety of sequences, but also a number of different drafts. As noted earlier, Blumenthal argued that the use of conciliar canons in the eleventh century was the result of ‘episcopal impetus’, which she implied had vanished by the mid-twelfth century.252 In fact, it seems that the local relevance and use she noted regarding the acta of Leo IX, Nicholas II, and Urban II were as important for the transmission of the 1179 canons as for their eleventh-century predecessors.

252

Blumenthal, ‘Conciliar canons and manuscripts’, p. 379.

182

5

USE OF THE CANONS, CA. 1179–CA. 1191

Their dissemination was only the first stage in the canons’ life. Ultimately, the 1179 canons would enter Gregory IX’s Liber Extra, and thence be considered binding law of the Catholic Church until the revision of its canon law code in 1917. Yet, if their dissemination as blocks or segments of text across the manuscript traditions represents one way of measuring how the decrees were accepted as statutes, another, more illuminating way of understanding contemporaries’ perception of their legislative character is to analyse the use to which the decrees were put. Such employment, by the papacy, local bishops and clerics, and canonists, represents a deeper engagement with the decrees’ meaning and purpose, in contrast to the replication of exemplars. Copies of the canons could have been – and, as shown above, were – transcribed with little concern for their contents, something which cannot be said for those circumstances where the canons were employed in other contexts. Analysing how far contemporaries’ use of the 1179 canons corroborated content or whether they were altered, interpreted, or in some way changed after the council demonstrates how they were viewed and the authority they were perceived to hold. When, by whom, and in what circumstances could the texts and ideas of these conciliar decrees, promulgated by the assembled fathers in 1179, be changed? Specific studies of how conciliar canons were used are rare for the twelfth century and earlier, although some exist for the thirteenthcentury councils and especially Lateran IV.1 Even then, the focus is more likely to be whether conciliar decrees were used at all, rather than necessarily how they were used, making councils a routine and therefore relatively uninteresting part of papal government. The exception is, as 1

The focus on Lateran IV is evident in, for example, the instructive study of A. A. Larson, ‘Archiepiscopal and papal involvement in episcopal elections: the origins and reception of Lateran IV cc. 23–24 from the Third Lateran Council to the Liber Extra’, ZRG Kan. Abt., 102 (2016), 73–98, which hinges on the 1215 conciliar decrees.

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Use of the Canons, ca. 1179–ca. 1191 always, the four general councils held at the Lateran, which hold a particular fascination due to their perceived role as ‘ecumenical’ councils; especial interest is taken in Lateran II, in 1139, as several of its canons were incorporated into Gratian.2 While its manuscript tradition has only recently been mapped,3 certain canons were cited as authorities in councils, including the Council of Westminster in 1143, and the legatine synod held at Valladolid in the same year repeats a number.4 More generally, the canons of 1215 entered into canonical collections shortly after their promulgation. They clearly mimicked the five-part structure employed in the Quinque Compilationes Antiquae from Bernard of Pavia on;5 whether that was a deliberate ploy on the part of Innocent III and the conciliar fathers, designing the layout so that the statutes better fit the structure of existing collections, or whether it is the result of the influence of lawyers, and particularly Johannes Teutonicus, remains hazy. Lateran IV encapsulates the debates surrounding the dissemination and use of conciliar canons, particularly over who would have possessed copies. The decrees were incorporated into both Johannes’ Compilatio Quarta and the Liber Extra, and heavily glossed, showing a strong link to canonical collections and implying a broad dissemination through such collections.6 Episcopal copies of the canons are more problematic: although Gibbs and Lang argued that only those bishops present at the council took copies back to their provinces, Kuttner and García y García suggested that the anonymous author of the ‘eyewitness’ account of the council sent a set of the constitutions to his abbot alongside his letter.7 2

3

4

5

6

7

T. Lenherr, ‘Die Summarien zu den Texten des 2. Laterankonzils von 1139 in Gratians Dekret’, AKKR, 150 (1981), 528–51 at 529–30, n. 6; A. Winroth, The Making of Gratian’s Decretum (Cambridge, 2000), pp. 136–9; A. A. Larson, ‘Early stages of Gratian’s Decretum and the Second Lateran Council: a reconsideration’, BMCL, 27 (2007), 21–56 at 21–7; M. Brett and R. Somerville, ‘The transmission of the councils from 1130 to 1139’, in J. Doran and D. J. Smith (eds.), Pope Innocent II (1130–43). The World vs the City (London, 2016), pp. 226–71. C. Leonardi, ‘Per la tradizione dei concili di Ardara, Lateranensi I-II, e Tolosa’, Bullettino dell’istituto storico italiano per il medio evo e archivio muratoriano, 75 (1963), 57–70 at 65–70, but see now Brett and Somerville, ‘Transmission of the councils’, pp. 256–71. Councils & Synods, 1.799–804: Westminster (1143) c. 2 = 2 Lat. c. 15; Westminster (1143) c. 4 = 2 Lat. c. 3. On Valladolid, see the passing remark in P. Linehan, ‘The synod of Segovia (1166)’, BMCL, n.s. 10 (1980), 31–44 at 36; PUP no. 40, pp. 198–203; now A. J. Duggan, ‘Jura sua unicuique tribuat. Innocent II and the advance of the learned laws’ in J. Doran and D. J. Smith (eds.), Pope Innocent II (1130–43). The World vs the City (London, 2016), pp. 272–308 at 300–1. A. J. Duggan, ‘Conciliar law, 1123–1215: the legislation of the four Lateran councils’, HMCL, pp. 318–66 at 353. A. García y García, ed., Constitutiones concilii quarti Lateranensis una cum commentariis glossatorum, MIC, A, 2 (Vatican City, 1981). M. Gibbs and J. Lang, Bishops and Reform, 1215–1272, with Special Reference to the Lateran Council of 1215 (Oxford, 1934), pp. 105–13, quote at 111 and see 105 for the number of manuscripts; P. B. Pixton, The German Episcopacy and the Implementation of the Decrees of the Fourth Lateran

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Use of the Canons, ca. 1179–ca. 1191 Assuming that is true, those prelates who did not attend the council could also have seen a copy of the 1215 decrees; more importantly, Kuttner and García y García also showed an extensive canonical diffusion.8 In his study on Germany, Pixton identified twenty-three manuscripts that may have been used in Germany. Seventeen were canonical manuscripts, of which one contained only the canons and their gloss apparatus.9 The canonical manuscripts underline the close connection between lawyers and conciliar canons in the thirteenth century while leaving open the question of local use outside of the canonical diffusion. For Lateran IV, for example, Stephen Langton’s council at Oxford and Richard Poore’s statutes of Salisbury both brought the 1215 decrees to a wider audience than simply those who had travelled to Rome as both Stephen and Richard had.10 Within this context, the use of the 1179 canons assumes some significance. The council occurred at a time when the schools, and especially the law schools in Bologna and France, were consolidating their status in Europe. Repeated copying of canonical manuscripts does little to suggest how both local and papal approaches to the canons altered over time. Nevertheless, it should not be surprising that local clerics communicating with the papacy, canonists linked to the schools, and the papacy each used the canons in different ways and with different objectives, even though the personnel often overlapped. This chapter therefore examines how the 1179 conciliar canons functioned in ‘legal’ sources during the ten to twenty years immediately afterwards. Moralists and theologians certainly used the canons.11 Echoes of fourteen of the twenty-seven canons exist in various authors’ works, although only Peter the Chanter, Alan of Lille, and Raymond of Peñafort explicitly cited the canons.12 Furthermore, as with the canonical material, amongst theologians the 1179 council was, in effect, the first

8 9

10

11

12

Council, 1216–1245: Watchmen on the Tower, Studies in the History of Christian Thought, 64 (Leiden, 1995), p. 193; S. Kuttner and A. García y García, ‘A new eyewitness account of the Fourth Lateran Council’, Traditio, 20 (1964), 115–78 at 163 and 164, respectively. Pixton cites the reference as p. 164, which corresponds to details of the canons’ promulgation but makes no mention of the number of copies. See also García y García, n. 6 above. Kuttner and García y García, ‘Eyewitness’, p. 164. Pixton, The German Episcopacy, p. 193 n. 43, correlated with Repert., passim, suggests that most canonical manuscripts also contained Compilationes Prima, Secunda, or Tertia. Gibbs and Lang, Bishops and Reform, pp. 108, 111–12; Councils & Synods, 2.57, 2.59–96 for Salisbury and 2.100, 2.106–25 for Oxford. J. Longère, ‘L’influence de Latran III sur quelques ouvrages de théologie morale’, in J. Longère (ed.), Le troisième concile de Latran (1179): sa place dans l’histoire (Paris, 1982), pp. 91–110 at 91–103. Longère’s study was brief but remains important; however, the focus here is to be the legal reception of the canons. Longère, ‘L’influence de Latran III’, p. 101, and details pp. 104–10.

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Use of the Canons, ca. 1179–ca. 1191 Lateran council for contemporary clerics.13 Instead of focussing on such literature, this chapter represents a survey of those places where the 1179 canons were employed as authorities in papal and episcopal letters and decrees, and in canonical sources. It cannot and does not pretend to be an exhaustive survey of all the available evidence: the number of post-1179 Gratian glosses alone makes such a study unachievable given the current state of knowledge. Yet analysis of certain elements of the canons’ transmission and use provide balance to the previous discussion of their circulation. The focus is citation, meaning that some reference to either the text or the council has been considered a prerequisite. Given that individual concepts emerged from existing practice and concerns, and following from earlier sections which demonstrate how closely the 1179 canons reflected practices present before the council, the use of individual ideas or stipulations without any explicit reference to the canons is not sufficient evidence for their employment. All told, this evidence will be used to answer the key historical questions: Who used the canons, and how did they use them? When and, if possible, where did that use take place? And why were the canons used in those circumstances by those people at that time – or, as the case may be, why not? papal use of the canons, 1179–1191 Papal use of the canons is in part an investigation of their practical use, and in part an investigation of papal intentions for their use. Papal citation of the decrees can suggest how Alexander and his successors felt they should be implemented or interpreted at a local level, while illuminating how local clerics began to employ them.14 Explicit citation of a council is, moreover, not unusual: Alexander and his successors referred to a generic ‘holy canons’ precedent a number of times, but a more specific authority was also employed. Urban III’s Quesitum est cited Alexander’s council at Tours,15 while Alexander cited both his council at Tours and canons and decisions from Innocent II’s 1139 Lateran Council prior to 1179.16 That particular Innocentine council also had a demonstrable impact, in large 13

14 15 16

C. R. Cheney, ‘The numbering of the Lateran councils of 1179 and 1215’, in his Medieval Texts and Studies (Oxford, 1973), pp. 203–8 at 205–8. On the concept of papal decretals as responsive texts, see pp. 33–6 above. WH 796: JL 15754 = X 3.19.5. WH – : JL 11411 = PL 200.491, on a dispute between the abbot of Nonantula and the bishop of Modena brought to the 1139 council; WH – : JL 12181 = Martène-Durand, 2.737, citing 2 Lat. c. 6 on the matter of a married clerk raised to the subdiaconate; WH – : JL – = PUE 3, 317, p. 433, cites Si quis suadente; WH – : JL 12009 = Martène-Durand, 2.901 cites Tours 1163 c. 1 against the division of benefices; WH – : JL 12425 = Martène-Durand, 2.842 cites Tours 1163 c. 5 against the sale of the sacraments.

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Papal Use of the Canons, 1179–1191 part thanks to the continued use of Si quis suadente.17 The decree’s importance stemmed in part from its incorporation into the Decretum Gratiani but a constant stream of letters between local bishops and the curia shows that its strictures were maintained, albeit mostly in a nuanced form.18 Si quis suadente provides significant evidence of the interpretation of conciliar decrees, but opens the question of whether it took place at the council or afterwards. Helmholz demonstrated the organic modification of the principle over a period of time in response to multiple local questions.19 Katherine Christensen, by contrast, focussed on interpretation shortly after the decree’s promulgation.20 Using the correlation between the contents of Sicut dignum est, Alexander III’s decretal to Bartholomew of Exeter, and an account in John of Salisbury’s Historia pontificalis where John noted that ‘the pope interpreted this canon, declaring that the bishops and all the faithful ought to apply these interpretations, for he had promulgated it with that intention’, she argued that overlap between the contents showed how Sicut dignum est emerged from the terms of Eugenius’ interpretation as reported by John.21 At the very least, John reports that the 1148 decrees were promulgated ‘with their interpretations and explanations’, implying some immediate alteration or nuance.22 Urban II similarly expanded a canon from his council of Melfi when he wrote to the bishop of Toul, a process seen by Somerville as Urban ‘amplifying’ the canon.23 Since conciliar canons were frequently curt statements of intent, even when they were as extensive as in the 1179 council, it should not be surprising that the papacy later indicated its desired implementation of individual decrees. In the case of Si quis suadente, Eugenius obviously felt able to nuance the decree on his own authority despite its conciliar provenance. This then opens the question of whether papal interpretation of conciliar canons represented a process when guidance was given to their use and 17 18 19

20

21 22

23

See e.g. WH – : JL 11459 = Aguirre 5.85, and cf. the comment regarding Graviter oculos below. C.17 q.4 c.29. Si quis suadente was initially promulgated by Innocent II, but continued to be employed. On its interpretation, see R. H. Helmholz, ‘Si quis suadente: theory and practice’, Proceedings Cambridge, pp. 425–38, who at 427–31 outlines the gaps and at 432–7 gives examples from the later Middle Ages. K. Christensen, ‘The “lost” papal gloss on Si quis suadente (C.17 q.4 c.29): John of Salisbury and the canonical tradition in the twelfth century’, BMCL, 18 (1988), 1–11; John of Salisbury, Historia pontificalis, ed. and trans. M. Chibnall (Oxford, 1986), pp. 9–10. WH 929: JL 12180 = X 5.12.6, X 5.39.1–3; John of Salisbury, Historia Pontificalis, p. 10. John of Salisbury, Historia Pontificalis, p. 8: Decreta demum promulgata sunt cum interpretationibus et causis suis. R. Somerville, The Councils of Urban II, Volume 1: Decreta Claromontensia, AHC, Supplementa, 1 (1972), 30–1.

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Use of the Canons, ca. 1179–ca. 1191 enforcement, or whether specific papal mandates could overrule the provisions laid down by conciliar decrees.24 John of Salisbury’s narrative is nevertheless rare enough that papal letters remain the principal source for papal employment of the 1179 canons. Ad abolendam, promulgated at Verona in 1184, refers vaguely to ‘ecclesiastical constitutions’,25 but of the six thousand or so letters sent in the twenty years from 1179 to 1198, when Jaffé ended his Regesta, a number explicitly reference or cite the 1179 canons.26 Even more are concerned with themes that are included in the canons, but these merit only tangential commentary here; once again, those letters contained in the decretal collections provide the principal sources for the discussion. The concerns surrounding the dating and texts of the letters mentioned in Chapter 2 above apply equally to post-1179 decretals; most of the same precautions have been taken, with one significant addition. Alexander III’s letters frequently hint at subjects or themes included in the 1179 conciliar decrees without explicitly citing the council. If there is no more specific date than Alexander’s pontificate, they have been considered in Chapter 2 above and will not be re-examined here. Since Alexander died in 1181, it is more likely that undated letters were sent in the first twenty years of Alexander’s pontificate, between 1159 and 1179, than after the council. A case in point is WH 49, sent by Alexander to Øystein, archbishop of Trondheim.27 Chodorow and Duggan dated the letter to 1164–81 based on the dates of Øystein’s archiepiscopate and Alexander’s pontificate; noting that it concerns the disposal of clerical goods after death, they linked it to c. 15 and speculated that it could be dated more specifically to 1179–81. It does not cite the council. They also noted differences between the approaches of WH 49 and WH 872, which was a response to an appeal or consultatio from Montecassino and which does cite the council as an authority. While the former forbids all alienation of goods 24 25

26

27

For a lucid discussion, see Somerville, Urban II, p. 31. WH 13: JL 15109 = X 5.7.9, 3.38.23. See also WH -: JL 15377 = PUF n.F., 3, 154, pp. 207–10; cf. P. Diehl, ‘“Ad abolendam” (X 5.7.9) and imperial legislation against heretics’, BMCL, 19 (1989), 1–11 at 4. R. Hiestand, ‘Die Leistungsfähigkeit der päpstlichen Kanzlei im 12. Jahrhundert mit einem Blick auf den lateinischen Osten’, in P. Herde und H. Jakobs (eds.), Papsturkunde und europäisches Urkundenwesen. Studien zu ihrer formalen und rechtlichen Kohärenz vom 11. bis 15. Jahrhundert, Archiv für Diplomatik, Beiheft, 7 (1999), pp. 1–26 at 23, gives a total of 5,135 for 1178–91, although around four or five hundred of these were probably sent before the council; P. Nowak, ‘Die Urkundenproduktion der päpstlichen Kanzlei, 1181–1187’, Archiv für Diplomatik, 49 (2003), 91–122 at 93 gives 3,213 letters for 1181–7 ‘with no end in sight’ to the increasing number. Following the boundaries laid out in the Introduction, my own survey does not go beyond ca. 1191. WH 49: JL – = Ineditae, no. 88, p. 153–4.

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Papal Use of the Canons, 1179–1191 received through the Church, the latter allows movable goods to be transferred to individuals or the poor. Because of these differences, Chodorow and Duggan felt unable to definitively date the decretal to post-1179 even though they believed that WH 49 represented the more accurate portrayal of the 1179 council’s decree than the relatively lenient WH 872.28 For this study, therefore, WH 49 has been considered as sent before 1179, rather than after. Fifteen pre-1191 decretals explicitly refer to Lateran III, alongside multiple letters that had no legal circulation. Most mentions take the form of general references to the decrees, although in some cases the reference is to disputes considered at Rome.29 In most of the letters, a combination of the location of the council and the name of the pope allows for easy identification of the council in question. In two cases, however, it is more difficult, and one of these deserves closer attention.30 Graviter oculos is an intriguingly complex text.31 On the one hand, it is difficult to know who sent the letter. Cheltenhamensis attributed it to Alexander III; Crabbe, the Breviarium, and the Lincoln Appendix to idem, referring back to earlier letters of Alexander III. Yet the printed Appendix refers explicitly to Alexander in the text as ‘our predecessor, Pope A. III of holy memory’, suggesting that the decretal must be later.32 The Breviarium, edited due to the confusion, makes even less sense: Friedberg’s edition omitted the name of any pope, reading simply ‘since it was decreed in the Lateran Council by our predecessor pope of holy memory’, while the manuscripts themselves vary.33 Friedberg’s notes make it clear that he assumed it was Alexander. The phrasing is formulaic 28

29 30

31 32

33

Although Anne Duggan has argued that it cannot have been sent before 1177 due to civil war in Norway: A. J. Duggan, ‘Decretals of Øystein of Trondheim (Nidaros)’, in Proceedings Washington, pp. 491–530 at 497. But see P. Landau, ‘Canon law in the periphery of Europe: the example of Eystein’, in T. Iversen (ed.), Archbishop Eystein as Legislator: The European Connection (Trondheim, 2011), pp. 57–71 at 58–9. WH – : JL – = PUS, 2, 166, p. 513. The other is WH 322: JL 14093 = X 5.19.5, which considers usury and cites a canon of Alexander’s which could either be Tours or the Lateran: quod nuper in concilio promulgatum est. The letter refers to all usurers and not just clerical usurers, making it clear that the canon in question is that of the Lateran, but for the texts see Tours c. 2 = Boso, Vita Alexandri, ed. L. Duschesne, Le Liber Pontificalis, 2.408. See also R. Somerville, Alexander III and the Council of Tours (Berkeley, 1977), pp. 49–50; 3 Lat. c. 25 = COD3, p. 223; Decrees, p. 223; COGD, 2.144–5. WH 537: JL 13743 = App. 14.6. Conciliorum omnium tam generalium quam particularium, ed. P. Crabbe, 2nd edn (2 vols, Cologne, 1551), 2.837; Holtzmann suggested Lucius III: www.kuttner-institute.jura.uni-muenchen.de /kartei/whr0605.gif; www.kuttner-institute.jura.uni-muenchen.de/kartei/whv0605.gif (last accessed 1 September 2018). Quinque compilationes antiquae necnon collectio canonum Lipsiensis, ed. E. Friedberg (Leipzig, 1882), p. 64 n. 3; Bamberg, Staatsbibliothek Can. 19, fol. 76ra, names Innocent, while Sankt Gallen, Stiftsbibliothek 715, p. 188 reads Alexander.

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Use of the Canons, ca. 1179–ca. 1191 and requires the name of the pope; what is uncertain is who the pope was, and this was a problem that faced contemporary canonists as well. The second complication of Graviter oculos concerns its contents. Whoever the pope responsible for the letter, it clearly changes Si quis suadente and attributes the alteration to a conciliar canon. It denounced violence against the Hospitallers, and cited as its source a Lateran council which excommunicated all who laid violent hands on clerics or monks, Hospitallers or Templars, or other religious men: since it was decreed in the Lateran Council by our predecessor Pope [Alexander] of holy memory, that any who laid violent hands on clerics or monks, Templars or Hospitallers, or other religious men, should be subject to excommunication, we, wishing to enforce the strong and established statute of our predecessor, order and command of you, that if any of your parishioners lay violent hands on the brothers of the Hospital of Jerusalem, you will publicly denounce them as excommunicate without right of appeal, and you will announce that they are to be avoided by all.34

Neither Innocent’s Lateran council in 1139, nor Alexander’s in 1179, explicitly prohibited laying violent hands on clerics in the military orders.35 In Gratian, Si quis suadente did not include the military orders in its term ‘clerks and monks’ but since they were ecclesiastical persons in a similar fashion to conversi, Graviter oculos could thus be another example of a conciliar canon being interpreted or misremembered.36 There are tantalising hints elsewhere of a similar enhancement to that found in Graviter oculos. The 1143 Council of Valladolid, held by Guy, cardinal-deacon of Sts Cosmas and Damian, rehearsed versions of a number of canons from the 1139 Lateran Council and added two new decrees.37 One of the decrees repromulgated was a version of Precipimus etiam slightly altered to include the Templars and Hospitallers.38 When the canon was repeated in 1179, the Templars and Hospitallers were again absent, suggesting that whatever source Guy used for his decrees was not 34 35

36

37

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WH 537: JL 13743 = 1 Comp. 5.34.13. 2 Lat. c. 11 = COD3, p. 199; 2 Lat. c. 15 = COD3, p. 200; 3 Lat. c. 9 = COD3, pp. 215–17, COGD, 2.134–5; 3 Lat. c. 22 = COD3, p. 222, COGD, 2.143. Decretum, C.17 q.4 c.29. But see J. A. Brundage, ‘Crusades, clerics and violence: reflections on a canonical theme’, in M. Bull and N. Housely (eds.), The Experience of Crusading, Volume 1: Western Approaches (Cambridge, 2003), pp. 147–56 at 154–6. PUP, 40, pp. 199–202. On Guy, see B. Zenker, Die Mitglieder des Kardinalskollegiums von 1130 bis 1159 (Wurzburg, 1964), pp. 146–8. He died in ca. 1149. PUP, 40, pp. 201–2: Precipimus etiam, ut presbyteri, clerici, monachi, milites Templi dominici et homines eorum atque homines Hospitalis domus Iherosolimitani, peregrini, mercatores et rustici euntes et redeuntes et in agricultura persistentes et animalis, cum quibus arant, boues omni tempore sint securi. Si quis autem contra hoc institutionem fecerit, excommunicationi subiaceat. Emphasis added.

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Papal Use of the Canons, 1179–1191 reused in 1179.39 A curial cardinal, Guy was involved in at least five legations, including three to Spain. His only legatine activity in 1139 was in the summer, so he may have been in the curia during the 1139 council, and the synodal decrees do refer to Innocent’s council, although only briefly.40 Had he needed a copy of the 1139 decrees, he would have had access to one. Although Guy was probably responding to local concerns over the military orders, the evidence of the 1143 council remains instructive in how far small changes could be required and implemented. Alexander certainly acted throughout his pontificate as if the military orders were included in Precipimus etiam.41 He or Lucius may have genuinely thought that they were, although the evidence of the 1179 canons, which repeated Precipimus etiam without the strictures, suggests otherwise for that canon at least. At the very least, therefore, Graviter oculos points to uncertainty in the papal curia over the exact phrasing of certain conciliar canons; to go further, it could suggest that the canons were open to alteration within the curia. More likely, Alexander – or Lucius – was making clear that members of the military orders were included within the vague definition of ‘clerics’, meaning that the letter demonstrates interpretation of the canons in the vein referred to above. In either case, it seems unlikely that Graviter oculos referred to the 1179 Lateran Council, but rather to that of 1139. Overall, references to the 1179 canons in papal letters fall into three rough categories. The first, and most widespread, was the direct citation of the canon as an authority for the letter’s contents. In WH 873, for instance, Alexander III ordered Roger, archbishop of York to follow the strictures of the council. Alexander stated that ‘since according to the Lateran council, promises made concerning [the next occupant of] churches which are not vacant are void’, Roger should ordain suitable people only when churches fell vacant, despite the appeals of those to whom the benefices had been promised.42 WH 287, sent by Alexander to the bishop of Worcester and the archbishop of Canterbury, begins in the Wigorniensis collection with the explicit statement that ‘since all diaconal and archidiaconal taxes were forbidden at the Lateran council, we are amazed to think . . . ’ before listing the complaints made.43 Lucius III, meanwhile, absolved the abbess of St Mary’s, Soissons, from complying with a previous abbess’ promise of benefices to clerics from the church of 39 40

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3 Lat. c. 22 = COD3, p. 222, COGD, 2.143. S. Weiß, Die Urkunden der päpstlichen Legaten von Leo IX. bis Coelestin III. (1049–1198) (Cologne and Vienna, 1995), pp. 118–23, esp. 119–20; Valladolid (1143) c. 8 = PUP, 40, p. 200. E.g. Cartulaire générale des hospitaliers de S. Jean de Jerusalem, ed. J. Delaville le Roulx (4 vols, Paris, 1894–1906), 290, 1.212–13. WH 873: JL 14350 = X 3.8.3. 43 WH 287: JL – = Wig. 3.40.

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Use of the Canons, ca. 1179–ca. 1191 St Peter, Soissons, because the benefices had not been vacant when the promise was made. Lucius justified his decision by noting that ‘the holy Lateran council condemned such promises, lest one seem to wish for a neighbour’s death’.44 In WH 1039, in contrast, the council was only one authority that was used to justify the pope’s ruling, the other being reason.45 The letter, sent to John of Oxford, bishop of Norwich, was a response to an episcopal consultatio and is all the more interesting since John’s presence at the 1179 council is recorded.46 It concerned pensions claimed from clerics by their bishops. Canon 7 of the 1179 council had prohibited the increase of episcopal dues above ancient levels, a position that Lucius maintained in his letter. Lucius also used the 1179 council to order an investigation into reports that Herbert, archdeacon of Canterbury had taken unwarranted exactions from the nuns of St Mary Magdalene in Davington.47 WH 820, from Clement III to an unknown recipient, shows the pope using c. 24 of the 1179 council as an authority to prohibit the sale of goods and ships to the Saracens.48 WH 259 was sent by Clement or Celestine III to the archbishop of Lund.49 A number of clerics had appealed to the archbishop against the sentence of the bishop of Linköping. Thanks to that appeal, these clerics had evaded justice and the bishop had turned to the pope for arbitration. Clement – or Celestine – chastised the archbishop, reminding him that the 1179 Lateran Council had limited appeals and ordering him to turn the clerics back to the bishop. At first glance, therefore, these examples demonstrate the 1179 canons fitting neatly into a pattern where they provided a generally accepted authority on which the papacy based its actions, even if they were not the sole authority thus employed. But the use of the canons in papal privileges and confirmations of privileges also suggests that at times the recipients were responsible for the canons’ use, rather than the papacy, especially given that most papal letters emerged from requests sent to the curia. A privilege for the Premonstratensian order, again issued by Lucius III, cited Lateran III three times and mentioned stipulations of the council once more.50 The first explicit statement prohibits appeals to a superior against the 44 46 47 48 49

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WH – : JL 14517 = PL 201.1078. 45 WH 1039a: JL 14209 = X 2.24.11. Fasti, 2.56; London, BL, Add. 39646, fol. 155rb. WH – : JL – = PUE, 3, 356, p. 461. Herbert would become bishop of Salisbury in 1194, Fasti, 2.14. WH 82: JL 16634 = X 5.6.12. WH 259: JL 16579 = X 2.28.38. Rem. and 1 Rot. give Celestine; 2 Comp. and X give Clement. In any case, it was taken from the registers for the first year of the pontificate, meaning it can be 1192 at the latest, and has thus been considered here. See www.kuttner-institute.jura.uni-muenchen.de /kartei/whr0287.gif (last accessed 1 September 2018). WH -: JL 15000 = PL 201.1238–1244. Other privileges include WH – : JL – = PUF n.F., 4, 314, pp. 468–9; WH – : JL 15364α = PUF n.F., 4, 286 p. 441.

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Papal Use of the Canons, 1179–1191 abbot’s sentences over matters of discipline.51 The second forbade bishops and other prelates from benefitting from the order’s hospitality when accompanied by a retinue greater than that ordained by the 1179 canon. The third banned novel exactions. Furthermore, the order was allowed a tithe exemption on all land tilled by its own labour which it had possessed before the council, as well as an exemption on novalia. Here the 1179 canons are the authorities upon which the privilege’s stipulations hang, a situation also seen in a privilege of Urban III to the Benedictine monastery at Tegernsee which allowed for priests presented by the monastery to be appointed by the bishop without objections, ‘saving the constitution of the Lateran council’.52 Who introduced these stipulations is open to debate. While the example of Tegernsee is less clear, the strongest likelihood remains that the Premonstratensians asked Lucius to incorporate these elements into their privilege when they requested its confirmation, suggesting that they were at least aware of the conciliar precedents. In these letters, a number of canons appear regularly. Canon 4 appears on multiple occasions, as do cc. 6, 7, 8, and 16. WH 287, a commission of Alexander III to the bishop of Worcester and the archbishop of Canterbury to act as judges-delegate on a case that has survived only in the Wigorniensis decretal collection, employed c. 4.53 In its partial form in the Wigorniensis collection, the letter is an interesting specimen. As a commission, it was a papal response to a complaint against archidiaconal exactions. The cleric who had overstepped his authority was Robert, archdeacon of Essex, a relative of Gilbert Foliot.54 The name of the plaintiff has not survived, but the list of charges has. Robert stood accused of making undue exactions on the parishes in his archdeaconry, demanding payment for chrism and breaching the rules laid out in the council concerning his retinue when on visitations. The archbishop and bishop were to examine the case; if the complaint against Robert were proven, he was to be suspended from office. Alexander’s reference appears to be to c. 4 even though he notes that Robert had come close to simony, and selling chrism was specifically forbidden in c. 7.55 Canon 4 was the more 51 53

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WH – : JL 15000 = PL 201.1241–3. 52 WH – : JL 15576 = PL 202.1383. WH 287 : JL – = Wig. 3.40, London, BL, Royal 10.A.ii, fols 27vb–28ra. Although Duggan argued that the bishop in question was Roger of Worcester, it seems more likely to have been sent to Roger’s successor, Baldwin of Forde, as Roger died at Tours having fallen ill while travelling to Rome for the 1179 council: C. Duggan, Twelfth-Century Decretal Collections and their Importance in English History (London, 1963), p. 113; M. G. Cheney, Roger, Bishop of Worcester, 1164–1179: An English Bishop in the Age of Becket (Oxford, 1980), pp. 221–4, 336; Fasti, 2.100; English Episcopal Acta, 33: Worcester, 1062–1185, ed. M. G. Cheney et al. (London, 2007), p. liii. Robert was in this position from 1167–8 to 1190. Fasti, 1.13. 3 Lat. c. 4 = COD3, pp. 213–4, COGD, 2.129–31.

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Use of the Canons, ca. 1179–ca. 1191 novel of the two canons, while cc. 6, 8, and 16 mentioned above all relate to new ideas introduced by the 1179 council. That novelty, combined with relevance in a specific situation, seems to be the common thread that links these letters. Particularly under Alexander, the papacy also cited the canons even when changing or interpreting their meaning or content. Such interpretation characterises the second subset of papal letters and is seen most clearly in JL 13427, a letter sent to the master and brothers of the Hospitallers immediately after the council on 4 June 1179 and therefore clearly representing a reaction to events there.56 The letter glossed the terms of c. 9, condemning abuses by the military orders, and one of the few canons where the pleas of wider Christendom were explicitly cited as a motivation.57 In his letter Alexander interpreted the phrase de moderno tempore used in the council. He made it more specific, stating that it referred to the last ten years, and ordering that the Hospitallers return churches and tithes that they had received within that period. In a slightly later letter, he interpreted the phrase in the same way for the Templars.58 Alexander was not changing the content or wording of the canon, but explaining what was meant by a vague term that could, and not doubt would, otherwise have resulted in confusion and uncertainty. His actions brought a stinging rebuke from Walter Map, who railed against the lack of success achieved by the intensive lobbying during the council and noted ironically that ‘as soon as the council broke up my lady Purse opened her wrinkled mouth . . . and again we became prey to [the military orders], for their privileges were confirmed more strongly than ever’.59 Papal letters concerning leper colonies also demonstrate flexibility with the terms of the 1179 canons. Avril noted the variety of local practice without commenting on the critical factor that some privileges that follow the 1179 canons’ stipulations reduced lepers’ tithe exemptions.60 He did, however, note that there was not necessarily immediate local application of the decree. On the one hand, not all privileges or confirmations of privileges to leper colonies bestowed after 1179 mention the 56 57

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WH – : JL 13427 = PUTJ, 104, p. 293. 3 Lat. c. 9 = COD3 p. 216, COGD, 2.134: Fratrum autem et coepiscoporum nostrorum vehementi conquestione comperimus, quod fratres Templi et Hospitalis, alii quoque religiosae professionis, indulta sibi ab apostolica sede privilegia excedentes, contra episcopalem auctoritatem multa praesumunt, quae et scandalum faciunt [generunt COD3] in populo Dei et grave pariunt periculum animarum. WH – : JL – = PUTJ, 107, p. 296. Walter Map, De nugis curialium: Courtier’s Trifles, ed. M. R. James, rev. and trans. C. N. L. Brooke and R. A. B. Mynors (Oxford, 1983), pp. 70–1. J. Avril, ‘Le IIIe concile de Latran et les communautés de lépreux’, Revue Mabillon, 60 (1981–4), 21–76, at 37.

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Papal Use of the Canons, 1179–1191 council. A privilege of 26 February 1181, sent to the leper colony of StLazare in Cambrai, makes no mention.61 A confirmation of the rights and privileges of the leper colony of St Mary Magdalene in Le Quesne, in northern France, cites a canon of the 1179 council; a confirmation written to the same leper colony five months earlier does not. Both confirmations provide for the presence of a chapel for the lepers, but the critical difference between the two concerns the lepers’ tithe exemption. In JL 14674, sent 30 June 1182, the lepers are exempted from tithes on novalia, on the fruits of their gardens and trees, and on animals belonging to themselves and their families.62 By 16 November, the lepers had only a tithe exemption on ‘their gardens and the fruits of their trees, and on the food for their animals’.63 The first of these confirmations did not cite the canon and allowed an extensive tithe privilege, while the second accorded the Le Quesne lepers a tithe exemption far closer to the 1179 canon to which it referred. Although the canon was designed to help leper colonies, in this case it would have been relatively damaging, with the colony losing their tithe exemption on novalia. Here, it is difficult to see the motivation for this change coming from the leper colony itself rather than something imposed on the lepers. Unlike Lucius III, Urban III appears to have been happy to expand the provisions of the canon. A letter of Rudolf of Zähringen, bishop of Liège cites a now-lost privilege of Urban. According to Rudolf, Urban ‘specially’ granted to the lepers of Liège a protection for their houses, their families, and ‘all things that they currently possess or which they will be able to acquire in the future by the grace of God through just means’ in addition to the church, cemetery, and priest awarded by the 1179 council.64 Urban’s approach in this situation seems to have been adopted more widely. Bearing in mind that even the privilege for the Le Quesne lepers cited greater tithe rights than in the canon, adding as it did an exemption on fruit trees, it suggests that this particular stipulation of the conciliar decree was not considered universally binding. While the church, priest, and cemetery were constants, the tithe privilege could be modified, the exemption put forward by the council representing, in effect, a minimum standard which should not be undermined but could be extended by specific grants. WH 380 provides a further example of a decretal modifying conciliar canons.65 The letter is a responsum sent to an unnamed archbishop of 61 63 64

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WH – : JL 14372 = PUNL, 231, pp. 373–5. 62 WH – : JL 14764 = PUF n.F., 4, 257, p. 410. WH – : JL 14699 = PUF n.F., 4, 258, p. 412. E. Schoolmeesters, ed., ‘Les regesta de Raoul de Zaehringen, Prince-Évêque de Liège, 1167–1191’, Bulletin de la sociéte d’art et d’histoire du diocèse de Liège, 1 (1881), 97, pp. 196. J. C. Tate, ‘The Third Lateran Council and the ius patronatus in England’, Proceedings Esztergom, pp. 589–600 at 598–9; WH 380abcd: JL 14349 = X 1.14.4, 3.38.22, 2.28.27, 2.1.5.

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Use of the Canons, ca. 1179–ca. 1191 Canterbury by Alexander after the 1179 council, so 1179–81; the archbishop must have been Richard of Dover. The first section of the decretal, WH 380a, spoke at length about the qualifications required to be ordained to a church in the archbishop’s diocese, as well as pluralism; multiple decrees of the 1179 council were explicitly cited alongside the ‘ancient sanctions of the holy canons’.66 WH 380c focussed on appeals, and WH 380d concerned clerics holding lands from laity who were under a sentence of excommunication. The interesting section is WH 380b, where the archbishop is informed that he may fill a church subject to an advowson dispute after six months.67 In c. 17 of the 1179 canons, a vacancy of either two or three months was permitted as a result of advowson disputes, depending on which copy of the canons was used.68 Six months was the time within which any vacant benefice must have been filled, given in c. 8. The English canonists – and Alexander – may have given the six months’ vacancy greater authority, despite the ‘decrees of the fathers’ mentioned in the 1139 Lateran Council requiring benefices to be filled within three months.69 However, it is tempting to see Alexander’s approach in this case as a precursor to Urban’s in the case of the Liège lepers: the canon sets out a guide that can be altered in response to individual cases by specific grant. Speculation concerning the speed with which the canons entered into local practice is only further fuelled by WH 207c. The decretal, written to Bishop Hugh du Puiset of Durham, provided clarification for one of the conciliar decrees. A cleric had ‘been granted’ a church before the Lateran council, but when under the age specified there; Hugh wondered whether the cleric should be deprived of his benefice if it had been approved by the diocesan bishop after the council.70 Alexander replied in the negative as long as there were no additional impediments or objections: the benefice was to remain in the cleric’s possession. Hugh had travelled to Rome, so would have known about the decree at first hand having thus been one of the fathers who approved the canon at its 66 67 68

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WH 380a: JL 14349 = X 1.14.4. WH 380b: JL 14349 = X 3.38.22. See e.g. Lincoln, Cathedral and Chapter Library 121, fol. 61r. 3 Lat. c. 17 = COD3, p. 220; W. Herold, ‘Die Canones des 3. Laterankonzils’, Inauguraldissertation, Bonn (1952), p. 75 l. 12 now at COGD, 2.140. 2 Lat. c. 28 = COD3, p. 203; Brett and Somerville, ‘Transmission of the councils’, p. 171. WH 207c: JL 13868 = 1 Comp. 1.8.9 [= Roff. 59]: Item a nobis tua discretio requisivit, utrum is, cui ante uicesimum V. annum etatis suae nondum concilio, quod nuper Laterani fecimus celebrato, magisterium ecclesiae concessum fuerit, occasione decreti, quo in eodem concilio clericis minoris etatis conferri ecclesias prohibuimus, possit ecclesia spoliari quam ante concilium obtinuerat, presertim cum ipsa concessio fuerit a diocesano episcopo post concilium approbata: super quo consultationi tibi taliter res[pondemus]. quod nisi alia causa rationabilis obstet, occasione minoris etatis uel decreti, quod in concilio promulgauimus, nolumus eum a percepto uel ante beneficio remoueri.

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Papal Use of the Canons, 1179–1191 promulgation.71 It is unlikely that Hugh was the bishop considered in the canon; if so, Alexander referred to him obliquely when he talked of the ‘diocesan bishop’ who had approved the appointment. Scammel’s portrait of Hugh does not suggest a man of deep legal learning who would have sent Alexander a learned consultatio unless compelled, although his description of the canon law selection of the chapter library as ‘weak’ can no longer be sustained.72 Instead, it appears that Hugh was questioning the application of the 1179 canon. Finally, there are the attempts by popes to enforce the conciliar canons, including those cases where Alexander ‘had to intervene personally so that the council was observed’.73 WH 533, to the Patriarch of Grado, is a good example.74 The letter concerned the trade between Christians and Saracens, forbidden in c. 24 of the 1179 council.75 In WH 533, Alexander expressed his dissatisfaction with the city of Grado’s contravention of the canon. He acknowledged that permission had originally been given for the city to trade with the Saracens, but forbade further trade ‘lest that which we decreed by consultation in the Lateran council for the good of Christianity be dishonoured through greed’.76 The canon is providing an authority for Alexander, but he is also deliberately enforcing its contents. This episode thus demonstrates a profound lack of compliance at a local level. A far more striking example is found in WH 715, Pervenit ad nos. Sent to William, archbishop of Reims, the letter concerned Laon and Tournai. It had been reported that the chapters were contravening c. 18 of the 1179 council ordaining that masters of cathedral schools possess a prebend in order to support themselves and provide free education for the poor and clerics.77 Alexander was concerned about the example that the two schools were setting, and particularly that ‘the decrees, which are right, should seem voided if they are not observed through us and the earnestness of [our] bishops’.78 The letter demonstrates that Alexander felt the 71 72

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London, BL, Add. 39646, fol. 155rb. G. V. Scammel, Hugh du Puiset, Bishop of Durham (Cambridge, 1956), pp. 104–5, citing S. Kuttner and E. Rathbone, ‘Anglo-Norman canonists of the twelfth century’, Traditio, 7 (1949), 279–358 at 295; R. A. B. Mynors (ed.), Durham Cathedral Manuscripts to the End of the Twelfth Century (Oxford, 1939), pp. 67–8, 77; and Catalogi veteres librorum Ecclesiae cathedralis Dunelm, Publications of the Surtees Society (1838), p. 1, which suggest that the library included a number of canonical manuscripts in the early twelfth century. Fransen, ‘Les canonistes et Latran III’, in J. Longère (ed.), Le troisième concile de Latran (1179): sa place dans l’histoire (Paris, 1982), p. 38, using the examples of WH 872: JL 14347 = X 3.26.12; Alexander III to the abbot-elect and the monks of Montecassino, 1179–81 and WH 380: JL 14349 = X 1.14.4, 3.38.29, 2.28.27, 2.1.5. WH 533: JL 14351 = Lips. 55.6. 75 3 Lat. c. 24 = COD3, p. 223, COGD, 2.144. WH 533: JL 14351 = Lips. 55.6. 77 3 Lat. c. 18 = COD3, p. 220, COGD, 2.140–1. WH 715: JL 13504 = 2 Comp. 5.3.un.

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Use of the Canons, ca. 1179–ca. 1191 need to rigorously enforce certain of the canons and that he believed their use locally was critical to their eventual acceptance. It also suggests that bishops and potentially even archbishops were wont to perceive the enforcement of the canons as optional, and that Alexander knew, appreciated, and disliked this dilatoriness. One underlying theme of this study concerns the extent and importance of papal responses to external ideas, and how conciliar canons functioned within a responsive papal government. The letters described above provide compelling evidence that such responses entailed the use of the canons. In some cases, the prompts for the letters are unclear, but it should be assumed that they are responses to questions or queries. Alexander gives no indication how he knew of the problems addressed in WH 533 and WH 715, for example, although as WH 715 includes the phrase pervenit ad nos, it seems to be responding to some form of appeal. WH 872, to the monks of Montecassino, is however an explicit response to a question they had posed. The abbot-elect and his monks had obviously received the canon and wondered whether it referred to fixed or movable goods. They put a direct question to the pontiff: ‘you have asked to be led by our response, as to whether the aforementioned goods should be transferred to the jurisdiction of the bishop or of him who succeeds the deceased cleric, or if they ought to be applied to the use of the community of the church’.79 Alexander then nuances the canon, ordaining that clerics may leave movable property to others. WH 207 above is also demonstrably a response to an episcopal consultatio sent by Hugh du Puiset. A representative of Montecassino was probably at the 1179 council, while Hugh is recorded as having attended. These papal letters suggest, therefore, that recipients of the 1179 decrees – who attended the council – were beginning to implement them at a local level in its immediate aftermath, yet faced real questions about how to proceed. That both WH 207 and WH 872 were included in the decretal collections also suggests that canonists were interested in their contents, and believed that they created important precedents.80 Both WH 207c and WH 872, however, also show Alexander adding depth to the conciliar canon when prompted to do so by a query. They thus demonstrate responsive papal government in action, but in such a way 79

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WH 872: JL 14347 = X 3.26.12. Fransen, ‘Les canonistes’, p. 38, may have underestimated its importance. It is also worth noting that this query came from the abbot-elect of the abbey, implying that the deceased may well have been his predecessor. WH 207c: JL 13868 = Roff. 59; also, according to Holtzmann, Wig. 3.30; Chelt. 11.11; Cott. 6.34; App. 25.4; Bamb. 20.7; Cpd. 20.8; Erl. 20.8; Lips. 19.7; Cass. 30.7; Tann. 3.8.6; Brug. 14.8; Frcf. 32.10; 1 Comp. 1.8.7; Sang. 4.4.6; www.kuttner-institute.jura.uni-muenchen.de/kartei/whr0229 .gif (last accessed 1 September 2018). WH 872: JL 14347 = 2 Comp. 3.14.2; X 3.26.12; www .kuttner-institute.jura.uni-muenchen.de/kartei/whr0980.gif (last accessed 1 September 2018).

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Local Use of the Canons as to undermine the idea that papal conciliar canons were automatically accepted: they became part of the same dialogue between the papacy and local clerics as papal decretals. local use of the canons Known attendees querying the specific implementation of individual precepts is one thing; finding significant evidence of local adoption or reference to the decrees, particularly by bishops and clerics who did not attend the council, is very much another. The examples of Hugh and the monks of Montecassino have already demonstrated that local clerics interacted with the canons when they had reason to do so and imply local access to the canons themselves. That point is supported by Simon of Meaux’s citation of the 1179 canons when attempting to use c. 8 of the council as an excuse not to institute a priest to a benefice, a move with which Alexander disagreed forcefully.81 It is equally telling that the letter to Montecassino was written by the abbot-elect: the previous abbot had recently died, implying that the monks were wondering how to incorporate the conciliar decree into their custom and practice. Nevertheless, local use of the canons was of necessity varied. As demonstrated already, there was no guarantee that the available local copies contained a ‘full’ set of canons, or one which replicated the canons as promulgated at the council. Nevertheless, looking at the use of the canons away from the curia provides a snapshot of how they penetrated into local law and influenced individual bishops and clerics in their cases and litigation. Although they were employed in a variety of locations, the canons are particularly notable where they appear in local synods and in episcopal letters and acts, both of which demonstrate who used the canons and, more importantly, how they used them. Local Synods One obvious medium for the repetition of the decrees was (arch)bishops’ synodal decrees. Alexander may have requested that bishops repromulgate the conciliar canons locally rather than attempting to publish them in his council, but such a directive left no visible signs in the later twelfth century and, if anything, the number of local councils seems to have 81

K. Pennington, Pope and Bishops: The Papal Monarchy in the Twelfth and Thirteenth Centuries (Philadelphia, 1984), pp. 117–19; K. Pennington, ‘Epistolae Alexandrinae: a collection of Pope Alexander III’s letters’, in F. Liotta (ed.), Miscellanea Rolando Bandinelli, Papa Alessandro III (Siena, 1986), pp. 339–53 at 346–50. For Simon’s presence in Rome in 1179, see London, BL, Add. 39646, fol. 154rb.

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Use of the Canons, ca. 1179–ca. 1191 declined.82 No synodal decrees survive in England for councils held between the 1175 Council of Westminster and the 1195 York council convened by Archbishop Hubert of Canterbury, despite three archiepiscopal elections and a legatine council called by William Longchamp in October 1190.83 The number of recorded synods in the province of Rouen fell drastically from around 1120, with twenty-four between 1047 and 1128 followed by only four between 1129 and 1214, three of which took place under the supervision of legates; it is possible that councils took place but their records did not survive.84 Research on the Reims diocesan and provincial synods suggests that the survival of the acta is the most pressing problem: papal and general councils excluded, thirtynine took place between 1047 and 1128 and twenty between 1129 and 1159, including an almost annual synod under Archbishop Samson between 1140 and 1159.85 Of this extensive synodal activity, only the seven canons from the 1157 synod of Reims have survived.86 In fact, for the twenty years preceding the 1179 Lateran council only four further sets of local synodal acta are attested: Nidaros in ca. 1163,87 Segovia in 1166,88 Avranches in 1172,89 and Westminster in 1175.90 Although Mansi’s Nova et amplissima collectio is a very imperfect source, his work remains the most comprehensive, covering all of Europe rather than a specific region, and consequently forms the starting point for any 82

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88 89

90

See above, p. 131. See also J. Avril, ‘L’évolution du synode diocésain, principalement dans la France du Nord’, Proceedings Cambridge, pp. 305–25 at 318, for a commentary on the relative numbers of surviving local councils. Councils & Synods, 1.1042–52, with the canons at 1.1048–52. R. Foreville, ‘The synod of the province of Rouen in the eleventh and twelfth centuries’, in C. N. L. Brooke, D. Luscombe, G. H. Martin, and D. M. Owen (eds.), Church and Government in the Middle Ages (Cambridge, 1976), pp. 19–39 at 22; R. Kay, ‘Mansi and Rouen: a critique of the conciliar collections’, Catholic Historical Review, 52 (1966), 155–85 at 155–68. P. Demouy, ‘Synodes diocésains et conciles provinciaux à Reims et en Belgique seconde aux XIeXIIIe siècles’, in G. Clause, S. Guilbert, and M. Vaïsse (eds.), La Champagne et ses administrations à travers le temps. Actes du colloque d’histoire régionale, Reims – Châlons-sur-Marne, 4–6 juin 1987 (Paris, 1990), pp. 91–112 at 111–12. Mansi, 21.843–6; Martène-Durand, 7.74; O. Pontal, Les conciles de la France capétienne jusqu’en 1215 (Paris, 1995), p. 335. W. Holtzmann, ‘Krone und Kirche in Norwegen im 12. Jahrhundert’, DA, 2 (1938), 341–400 at 376–82; A. J. Duggan, ‘The English exile of Øystein of Nidaros (1180–83)’, in L. Napran and E. van Houts (eds.), Exile in the Middle Ages: Selected Proceedings of the International Medieval Congress, University of Leeds, 8–11 July 2002 (Turnhout, 2004), pp. 109–30 at 123–4; cf. A. Winroth, ‘Decretum Gratiani and Eystein’s Canones Nidrosienses’, in T. Iversen (ed.), Archbishop Eystein as Legislator: The European Connection (Trondheim, 2011), pp. 73–86 at 84–5, arguing that the papal legate, Stephen of Orvieto, was responsible for the Gratian references in the Canones. Linehan, ‘Synod of Segovia’, pp. 42–4. See Howden, Chronica, 2.39; Foreville, ‘The synod of Rouen’, pp. 32–3; Pontal, Conciles de la France capétienne, pp. 357–8; Weiß, Die Urkunden, pp. 249–53. Councils & Synods, 1.965–93; M. G. Cheney, ‘The Council of Westminster, 1175: new light on an old source’, SCH, 11 (1975), 61–8.

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Local Use of the Canons investigation.91 Kay highlighted, correctly, the problems inherent in using the old conciliar collections. Yet he was writing from the perspective of the thirteenth century, when records of provincial synods have survived on a greater scale, even if most were only discovered in the last century. As Kay himself noted, the differences between the councils in Mansi and those identified from other sources, such as Archbishop Eudes Rigaud’s Register, ‘only suggest that we have perhaps gained a distorted picture of conciliar activity from the old collections’.92 The latter tend to omit councils where no statutes were promulgated; for the purposes of this study, however, the statutes and similar disciplinary measures are of greater interest than the settling of ecclesiastical disputes, and the archiepiscopal register that Kay uses is a source that rarely if ever survives for the twelfth century. Caution is, as always, necessary but that does not preclude Mansi’s use as a source for details of twelfth-century local councils. That said, most of the councils in Mansi survive in narratives. The Council of Limoges of 1182 is known principally through a letter of Henry, cardinalbishop of Albano to Abbot Arnaud and the brothers of the abbey of the Holy Cross at Bordeaux. One purpose of the council was to judge a dispute between that abbey and the abbey of St-Sever; Henry had been tasked with settling the dispute and following its conclusion in 1180 included his judgement in a letter.93 He also, however, held a council; following a brief mention of that assembly, Abbot Geoffrey of Vigeois gave a list of issues, some of which are reminiscent of the 1179 decrees.94 An account of a council held in Ireland in 1186 survived only in Gerald of Wales.95 The Council of Mouzon in 1186 has also survived through a contemporary chronicle, which relates disputes at the council if not the decrees.96 A series of councils took place in England in the 1180s with the intention of providing a levy to fund a new crusade; one of these is represented in Mansi. Although these councils promulgated a number of decrees, their concern was predominantly the crusade levy rather than the correction of abuses.97 Accounts of episcopal synods using the 1179 canons therefore survive from several locations. Most, however, are later in the twelfth century: 91

92 93 94

95 97

Mansi, 22.xi–xii and 468–594 inclusive of the papal letters of Lucius III, Urban III, Gregory VIII, and Clement III; Kay, ‘Mansi and Rouen’, pp. 155–68. Mansi was at times over-sympathetic to his sources, as noted by C. N. L. Brooke, ‘The canons of English church councils in the early decretal collections’, Traditio, 13 (1957), 471–90 at 471, and P. Classen, ‘Das Konzil von Toulouse 1160: eine Fiktion’, DA, 29 (1973), 220–3, tells of a council which was mistakenly included in the collections. Kay, ‘Mansi and Rouen’, p. 163. Mansi, 22.467–72; Pontal, Conciles de la France capétienne, pp. 353–4. Geoffrey of Vigeois, ‘Chronique’, in L. Délisle, ed. and rev., Recueil des Historiens des Gaules et de la France, 12 (Paris, 1877), pp. 449–51. I am most grateful to Jessalynn Bird for reminding me of this council, and pointing me towards an alternative version to that found in Mansi. Mansi, 22.523–8. 96 Mansi, 22.509–12. Mansi, 22.493–6; Councils & Synods, 1.1022–9.

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Use of the Canons, ca. 1179–ca. 1191 Anne Duggan cites some nine local synods held from 1190 on.98 Four earlier synods unrecorded in Mansi and the other early modern collections can be added to these: two at Vallombrosa in 1179 and 1188, a council in Split in the late 1180s, and an undatable council in the province of Avignon, as well as a set of episcopal decrees produced by Bishop Roger of Cambrai.99 For only two of these does Mansi identify any decrees: the 1186 council at Aquileia and Walter of Coutances’ 1190 synod in Rouen, although the Aquileia decrees did not incorporate any from Lateran III.100 A letter of Urban III to the archbishop of Split affirming the latter’s synodal decrees alludes to their contents.101 In addition, a number of decrees, attributed to Rudolf of Zähringen, bishop of Liège, were issued at some time between 1167 and 1189; a link between a decree prohibiting arson and an imperial decree on the same topic in 1187 led Schoolmeesters to date these decrees later in Rudolf’s episcopate than Mansi, who believed that they originated in 1166.102 That year is, in any case, impossible as Rudolf was not elected bishop until 1167.103 Meanwhile, the Florence, S. Marco 599 manuscript which also contains the 1179 conciliar canons provides evidence of their use in a non-episcopal synod at Vallombrosa.104 Most of these are narrative sources rather than copies of synodal decrees which prevents the elucidation of the exact wording of the synodal decrees. Yet there is enough evidence that the canons were employed locally, and between the Cambrai and Liège decrees and those of Walter of Coutances’ Council of Rouen, three sets of synodal canons survive which can be examined. Walter of Coutances’ council is the most striking. It took place in February 1190, when Walter was in his archdiocese before leaving on crusade with Richard I of England.105 The synod promulgated thirty-two decrees, including in that swathe of issues a mandate concerning the material used to make vessels for the consecration of the Eucharist 98

99

100 102 103

104 105

Duggan, ‘Conciliar law, 1123–1215’, pp. 339–40 listing Rouen (1190), Montpellier (1195), Westminster (1200), the statutes of Odo de Sully (undated), Stephen Langton (1213–14), Robert de Courçon at Paris (1213), Rouen and Bordeaux (1214), and Peter of Benevento (1215). Florence, BML, S. Marco 599, fol. 47r–48v; WH – : JL 15690 = MHH, 11.159–61; Florence, BML, S. Marco 762, fols 135vb–136v; J. Avril, ‘Les “Precepta synodalia” de Roger de Cambrai’, BMCL, 2 (1972), 7–16 at 10–11. Mansi, 22.493–4, 22.581–88. 101 WH – : JL 15690 = MHH, 11.159–61. Mansi, 22.7–10. Schoolmeesters, ‘Les regesta’, p. 197. J.-L. Kupper, ‘Rudolf, Bischof von Lüttich (1167–1191): Ein Zähringer im Maasraum’, in K. S. Frank (ed.), Die Zähringer in der Kirche des 11. und 12. Jahrhunderts (Zürich, 1987), pp. 54–63 at 54; J.-L. Kupper, ‘Rudolf von Lüttich’, in H. Schadek and K. Schmid (eds.), Die Zähringer: Anstoß und Wirkung (Sigmaringen, 1986), pp. 198–219 at 198. Florence, BML, S. Marco 599, fol. 47r. Richard met Philip Augustus at Vézelay on 2 July, having visited Normandy earlier in the year. J. Gillingham, Richard I (New Haven and London, 1999), pp. 124–7; Foreville, ‘Synod of Rouen’, p. 22 and Pontal, Conciles de la France capétienne, p. 360 both date the council to 11 February based on the capitulary of Rouen.

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Local Use of the Canons (c. 2), a condemnation of forgeries and arson (cc. 27 and 28), and the protection of crusaders’ goods (c. 17).106 As both Walter and Richard spent the early months of 1190 preparing their respective domains for their absence, it is unsurprising that the archbishop included in his statutes a number of disciplinary measures designed to limit the effects of his journey. Condemnation of forgeries, and particularly forged seals, would easily fall into this category. Similarly, c. 30 excommunicates ‘those, clerics, priests, and rebelles, who against the prohibition of their bishop shall presume to celebrate divine office’, while c. 31 carries a ringing proscription of anyone who attempts to deprive the archbishop of Rouen of his lands.107 Only one of the 1190 synodal decrees cited Lateran III as an authority. Canon 12 decreed that archdeacons should only travel with six or seven horses, specifying that the limitation on retinues was ‘as stipulated in the Lateran council’.108 In comparison, the other canons that attempted to rectify abuses also singled out by the 1179 council are silent on their origins. Rouen c. 4 ‘ordained that no cleric, of whichever order, should presume to have a woman in his home’, following a long tradition of prohibiting clerical fornication.109 The prohibition matches exactly the one ordered by the 1179 council, but nevertheless the canon was not cited as an authority. Presumably, c. 11 was not referred to because it repeated earlier prohibitions rather than being a novel mandate or a reinterpretation, although Roger of Cambrai did cite the canon in his decrees.110 Lateran III had also decreed that the goods of clerics who died intestate or who chose to redistribute their goods to laity were to be reassigned within the Church, to avoid the alienation of church property.111 In direct contrast, and making no mention of the 1179 decrees, Walter’s council ordered that ‘clerics’ wills be inviolably observed, and that the goods of clerics who die intestate be assigned to good uses by their bishops’.112 Not all of Walter’s alterations were as severe. Canon 10 of 1190 forbade clerics to take secular office; again it did not cite the 1179 canons, despite c. 12 from 1179 specifying that clerics should not ‘suppose to take upon themselves the management of towns or even secular jurisdiction under princes or seculars so as to become their ministers of justice’.113 Ironically, the archbishop was to become Justiciar of England himself between 1191 and 1193, although as Turner and Heiser noted, all his writs were issued in the name of the 106 109 110 111

Mansi, 22.582–6. 107 Mansi, 22.586. 108 Mansi, 22.583. Mansi, 22.583. See e.g. 1 Lat. c. 7 = COD3, p. 191; 1 Lat. c. 21β = COD3, p. 194. Cambrai decrees, c. 7 = Avril, ‘Les “Precepta synodalia”’, p. 10. 3 Lat. c. 15 = COD3, p. 219, COGD, 2.138–9. 112 Mansi, 22.583. 113 Mansi, 22.583.

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Use of the Canons, ca. 1179–ca. 1191 king.114 Walter obviously displayed the same ability to balance ecclesiastical and secular responsibilities demonstrated by his predecessors at Rouen.115 Walter is as likely as any prelate to have had a copy of the canons. His predecessor at Rouen, Rotrou, attended the 1179 council and it is possible that BAV, Reg.lat. 596 was Norman in origin.116 Peltzer located a copy of the canons in a manuscript of the Francofurtana collection ‘which had reached Rouen soon after 1185’; this date seems ambitious, but the manuscript reflects the dissemination of the canons through a potentially incomplete canonical collection, and not the dissemination of the canons as promulgated in 1179.117 In addition, Walter was a skilled administrator who had at least a familiarity with canon law and may well have been a magister; Lincoln, where he was elected bishop in 1183, has been suggested as the location for an early school of law and the origin of the influential Appendix Concilii Lateranensis.118 Neither is easy to prove: Walter was referred to as a magister, but Turner believed his training to have been in Paris, which may suggest that his education was in the arts rather than law,119 while the Appendix manuscript now in Lincoln Cathedral Library is not included in a continuation of the twelfth-century booklist.120 Circumstantial evidence can never be absolute, but the weight of possibilities here would make it surprising had the 1179 114

115 116 117

118

119

120

R. V. Turner and R. R. Heiser, The Reign of Richard Lionheart. Ruler of the Angevin Empire, 1189–99 (Harlow, 2000), pp. 123–7, 129–36. Gillingham refers to Walter as ‘one of the great fixers of the time’: Gillingham, Richard I, p. 111. J. Peltzer, ‘Henry II and the Norman bishops’, EHR, 119 (2004), 1202–29 at 1217. Though Mostert argued for its compilation in Fleury: see p. 250 n. 9. J. Peltzer, Canon Law, Careers and Conquest: Episcopal Elections in Normandy and Greater Anjou, c. 1140–c. 1230 (Cambridge, 2008), p. 61. See also the discussion on pp. 222–3 below. A. J. Duggan, ‘Eystein and the world of the learned law, with special reference to the Fragmentum Asloense: Oslo, Riksarkivet, Latin fragment 152, 1–2v’, in T. Iversen (ed.), Archbishop Eystein as Legislator: The European Connection (Trondheim, 2011), pp. 23–56 at 38; P. Landau, ‘Walter von Coutances und die Anfänge der Anglo-Normannischen Rechtswissenschaft’, in O. Condorelli (ed.), Panta Rei: Studi dedicati a Manlio Bellomo (5 vols, Rome, 2004), 3.183–204, at 3.198–9, 3.203–4, and esp. 3.199–201 on Walter and Paris, BN lat. 3922A. R. V. Turner, ‘Coutances, Walter de (d. 1207)’, Oxford Dictionary of National Biography (Oxford University Press, 2004), https://doi.org/10.1093/ref:odnb/6467 (last accessed 1 September 2018). R. M. Thomson (ed.), Catalogue of the Manuscripts of Lincoln Cathedral Library (Lincoln, 1989), p. 95. The catalogue does, however, list five legal books: a Decretum of Ivo of Chartres; three books, also present in around 1160, described as Canones Romanorum Pontificum, Decreta Romanorum Pontificum, and Decreta Pontificum; and a Decretum Gratiani gifted to the abbey by Hugh de Barre, archdeacon of Leicester: Giraldi Cambrensis Opera, ed. J. S. Brewer, J. F. Dimock, and G. F. Warner, Rolls Series, 21 (8 vols, London, 1861–91), 7.164–71; Fasti, 3.33; M. Brett, ‘English law and centres of law studies in the later twelfth century’, in T. Iversen (ed.), Archbishop Eystein as Legislator: The European Connection (Trondheim, 2011), pp. 87–102 at 100–2.

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Local Use of the Canons canons not been familiar to Walter or his advisors in 1190. Consequently, Walter’s canons from Rouen were highly selective when repeating Alexander’s 1179 decrees: that council was only used as an authority once, and never repeated verbatim. He obviously felt no great need to either repromulgate or refer to the canons in his own synodal decrees, except in that one, novel, case. Florence, S. Marco 599, mentioned in the previous chapter, also provides an illuminating source. It narrates two general congregations of the Vallombrosan order that took place in 1179 and 1188. A copy of the 1179 canons follows these two narratives.121 One congregation was held in 1179 upon the return of the monastic delegation from Alexander’s council; the abbot of Vallombrosa cited an order of Alexander to repromulgate the conciliar canons locally as the reason for convoking the gathering.122 The second congregation follows, and the canons of the 1179 Lateran Council begin immediately after that account.123 Gérard Fransen, who originally examined the manuscript, linked the local synods to the copy of the canons.124 In fact, it appears unlikely that the same scribe copied both at the same time. Litterae notabiliores dotted through the text are subtly different; while the hands are similar, that of the canons is neater than that which narrates the 1179 congregation. Different inks are used for the two texts. It could theoretically be the same scribe, but the canons appear to have been copied into the manuscript at different times. Such a hypothesis is strengthened by similarities between the writing used in the account of the 1188 congregation and that used in the canons. There, similarities abound, including and particularly with regard to the ink. As the account of the 1188 congregation immediately precedes the 1179 Lateran canons and contains a similar tale of repeating the papal conciliar acta to that found in the 1179 congregation, it is not far-fetched to believe that the canons are more closely linked to the narrative of 1188 than that of 1179. Even then, only two of the conciliar canons can be identified in the S. Marco text. Both are of direct relevance to a monastic house: c. 10, Monachi non pretio, and c. 25, Quia in omnibus fere locis.125 These prohibited monks possessing or giving money on entrance and usury respectively. Canon 16, which insisted on the use of maior et sanior pars in decisionmaking, and c. 6, which specifically referred to monks submitting to ‘the regular discipline of their superior or chapter’, do not appear.126 That 121 123 124

125 126

Florence, BML, S. Marco 599, fols 49r–54r. 122 Florence, BML, S. Marco 599, fols 47r–48r. Florence, BML, S. Marco 599, fol. 48v, fols 49r–54r. Fransen, ‘Les canonistes’, pp. 39–40. Fransen appears to have used an incomplete microfilm, meaning that he missed the slight palaeographic differences. 3 Lat. c. 10 = COD3, p. 217, COGD, 2.135–6; 3 Lat. c. 25 = COD3, pp. 223, COGD, 2.144–5. 3 Lat. c. 6 = COD3, p. 214; trans. Decrees, p. 214, COGD, 2.132.

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Use of the Canons, ca. 1179–ca. 1191 suggests a degree of selection: either selective reporting in the narrative or selective repromulgation in the congregation, and potentially both. Even more interesting is a comparison of the narrative describing the 1179 council with the description of the 1188 council. In 1188, although the synodal directives appear to be briefer than those of 1179, there is more coherence with the actions of the 1179 council. Acts of the 1179 congregation were confirmed.127 Further on in the narrative, however, issues of hospitality arise. It is restated that the election and ordination of the abbot must be approved by all, yet no mention is made of the 1179 canons. Overall, the S. Marco narratives demonstrate the same element of selection as that demonstrated by Walter of Coutances in his 1190 synod at Rouen. Although these two synods are the most revealing, the few surviving narratives of other councils suggest that it was not uncommon to repeat only select canons. At Cambrai some time between 1181 and 1187, Bishop Roger issued twenty-one decrees, only one of which cited the 1179 Lateran Council.128 Rudolf of Liège’s decrees make no mention of the 1179 council at all, despite including issues of contemporary relevance such as arson.129 Urban III’s letter confirming the acts of the provincial council at Split mentions canons against clerical marriage, receiving churches from the laity, the promise of benefices before vacancy, and supporting the use of maior et sanior pars when making decisions in chapter alongside decrees that had no place in the 1179 council. At the same time, Urban made no mention of the 1179 council, and a number of the decrees instituted by Archbishop Peter had had no clear ancestor at the Lateran.130 The one tantalising hint of extensive use of the 1179 canons locally in the 1180s, Geoffrey of Vigeois’ account of the synod of Henry de Marcy at Limoges, is directly linked to a curial cardinal on a legatine mission, in a striking parallel with the actions of Guy at Valladolid in 1143.131 When left to their own devices, therefore, local synods rarely reproduced the 1179 canons on a large scale during the 1180s. Instead, the decrees provided authorities for individual canons, and no more. Even had Alexander requested that his conciliar decrees be repromulgated locally, the surviving evidence suggests that the bishops of Latin Christendom paid him little heed. 127

128 129 130

131

Florence, BML, S. Marco 599, fol. 48v: Deceteris etiam uestibus uel que constitutum est insupradictis precedentibus capitulum omnio laudantes firmauerat. Cambrai decrees, c. 7 = Avril, ‘Les “Precepta synodalia”’, p. 10. For Rudolf’s decrees, see Schoolmeesters, ‘Les regesta’, p. 197. WH – : JL 15690 = MHH, 11.159–61. See esp. p. 160 for a number of decrees which Urban wanted to be changed. Geoffrey of Vigeois, ‘Chronique’, 449–51. On Valladolid, see the discussion on pp. 190–1 above.

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Local Use of the Canons Episcopal Acta The evidence from the synods, therefore, does not suggest that the 1179 canons were considered particularly noteworthy early on in their lifespan. They were used, which is important, and used more than the acta of earlier papal councils, but not explicitly promulgated locally as new law from an early stage; only subjects of direct relevance were incorporated into local synodal decrees. What, then, of the evidence from episcopal acta?132 Only evidence from the archbishoprics of Canterbury and York has been investigated in depth, but a brief diversion into continental evidence suggests that the canons’ immediate inclusion was again varied. Jörg Peltzer noted an increasing use of the canons in Anjou from the late 1180s, pointing to their use as an authority by Henry of Bayeux at an unspecified point between 1179 and 1205.133 The surviving charters of the bishops of Limoges do not mention the 1179 canons at all;134 neither did Peter of Celle, bishop of Chartres from 1181–3, who as abbot of StRemi had written to Alexander III begging to be excused from attending the council.135 Some time between 1186 and 1191, an episcopal charter of William of Saltmarsh, bishop of Llandaff, referred to the 1179 canons.136 It took Gloucester Abbey’s churches and goods under episcopal protection, and permitted the monks to establish a vicarage at the church of Newburgh. William had clearly been petitioned by the Gloucester monks to permit the change.137 At first sight, it seems that the monks, rather than the 132

133

134

135 136

137

Episcopal registers may not have survived for the twelfth century, but locally preserved letters and charters often have. The English Episcopal Acta project that was inaugurated under Christopher Cheney’s stewardship is particularly valuable: C. N. L. Brooke, ‘English episcopal acta of the twelfth and thirteenth centuries’, M. J. Franklin and C. Harper-Bill (eds.), Studies in Ecclesiastical History in Honour of Dorothy M. Owen (Woodbridge, 1995), pp. 41–56. Scattered evidence remains from the Continent in published letter collections such as those of Stephen of Tournai, Lettres d’Étienne de Tournai, ed. J. Desilve (Valenciennes-Paris, 1893), XII, p. 29, who mentions the council; Peter of Celle, The Letters of Peter of Celle, ed. J. Haseldine (Oxford, 2001), and Rudolf of Zähringen, Schoolmeesters, ‘Les regesta’, pp. 128–203. Here, however, they have provided a supplement to those letters preserved from England: these exist in good modern editions which now cover most English dioceses for the period 1179–91. Since England is recognised as a location of considerable legal innovation, it provides a useful case study for the canons’ local use. Episcopal charters are skewed towards those held by monastic houses, but overall the surviving acta provide evidence of the canons’ assimilation in the minds of the bishops, abbots, and clerics who were confronted by the changing law. Peltzer, Canon Law, Careers and Conquest, p. 69, citing Chartes de Saint-Julien de Tours (1002–1227), ed. L.-J. Denis, Archives historiques du Maine, 12 (Le Mans, 1912), 119, pp. 146–7. Actes des évêques de Limoges, des origines à 1197, ed. J. Becquet, Documents, études et répertoires des Institut de recherches d’histoire des textes, 56 (Paris, 1999). Letters of Peter of Celle, 80, pp. 350–1. Llandaff Episcopal Acta, 1140–1287, ed. D. Crouch, South Wales Record Society, 5 (1988), 34, pp. 32–3, confirmed by Bishop Henry, Llandaff Episcopal Acta, 42, pp. 40–1. Llandaff Episcopal Acta, 34, pp. 32–3.

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Use of the Canons, ca. 1179–ca. 1191 bishop, were referring to the canon in order to avoid its sanctions. The case continued, and a later composition of Giles de Braose certainly indicates episcopal use of the canons by 1204. As bishop of Hereford, Giles was one of three judges-delegate appointed to a case between the bishop of Llandaff and the monks of Gloucester concerning Newport.138 Giles described the resolution of a controversial situation. The bishop would visit Newport with only the ‘moderate number’ of riders ‘that was limited at the Lateran council’ and when he required assistance the church at Newport would provide it ‘moderately . . . according to the stipulation of the Lateran council’. In return, the bishop would accept Gloucester’s appointments for the church without any hindrance.139 Nevertheless, overall, it seems more likely that the monks of Gloucester, rather than Bishop William, were using the 1179 decrees. Gloucester Abbey was one of the greatest monastic houses in England in the twelfth century. Mid-century, it underwent a scholarly rebirth and a majority of the identifiable manuscripts present at Gloucester in the early fourteenth century date palaeographically to the mid- or late twelfth century.140 Three of these have slight canonical links, but it is unknown whether the abbey possessed a copy of Gratian. William of Saltmarsh, too, seems not to have been particularly learned, but Giles de Braose did surround himself with learned clerics.141 Consequently, it is interesting to note that Giles’ composition mentions the 1179 canon in a much more purposeful manner than William’s charter; it suggests that Giles’ decision was made using the knowledge of his familia, while William was referring to the 1179 council almost by rote. The earliest reference to the 1179 decrees, however, is from Canterbury, and refers to a dispute concerning the leper house at Maiden Bradley. Between 1179 and 1181, Archbishop Richard wrote to Jocelin, bishop of Salisbury, ordering him to enforce a ‘papal decree’ that ‘our lord Alexander [instituted]’.142 Christopher Cheney, who 138

139

140

141 142

Historia et cartularium monasterii sancti Petri Gloucestriae, ed. W. H. Hart, Rolls Series, 33 (3 vols, London, 1863–7), 2.57–8. Giles’ fellow judges were the dean and the precentor of Hereford. See also The Letters of Pope Innocent III (1198–1216) Concerning England and Wales: A Calendar with an Appendix of Texts, ed. C. R. Cheney and M. G. Cheney (Oxford, 1967), 546, p. 89, for the lost mandate of Innocent III. Calendared in English Episcopal Acta, 7: Hereford, 1079–1234, ed. J. Barrow (Oxford, 1993), 275, p. 210; printed in Historia et cartularium monasterii sancti Petri Gloucestriae, 2.58. R. M. Thomson argues for a strong liberal arts focus at the abbey: ‘Books and learning at Gloucester Abbey’, in J. Carley and C. Tite (eds.), Books and Collectors 1200–1700: Essays Presented to Andrew Watson (London, 1997), pp.3–26 at 5–6, and a possible manuscript listing at 14–22. EEA, 7, pp. lix, lists eight magistri. English Episcopal Acta, 2: Canterbury, 1162–1190, ed. C. R. Cheney and B. E. A. Jones (Oxford, 1991), 165, p. 137: S[atis i]nnotuit discretioni vestre [quod] dominus noster papa Alexander [constituit] . . .

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Local Use of the Canons edited the acts, believed that the decree to which Richard was referring was ‘presumably’ c. 23 of the 1179 canons, although the letter is badly damaged and the text incomplete.143 However, in a move reminiscent of an earlier discussion, the canon does not give the same tithe exemption that Richard granted.144 Richard granted the leper women of Maiden Bradley a tithe exemption on ‘all the proceeds of their labours and their rents’. His charter specifically stated that ‘if any person should presume to exact tithes from the aforementioned leper women and their agents against the Roman decree, he shall be struck by the pain of anathema until he makes full satisfaction over the tithes’.145 Yet the 1179 canon very specifically and, as argued earlier, deliberately gave leper houses exemptions on only their animals’ food and the produce of their gardens. Either Richard is referring to a different papal decree or decretal, which is certainly a possibility, or he was overstating or misquoting the conciliar canon. Tempting though it is to see this as a further example of different texts of the canons emanating from Rome, no copy of the canons of which I am aware changes the tithe exemption for leper colonies in c. 23. Richard’s charter gave rise to a lengthy case and Notley Priory, the ecclesiastical lord of the church of All Saints in Bradley, ultimately appealed to the pope. The original charter of Manasser Bisset, Maiden Bradley’s founder, had stated that All Saints would not suffer from the presence of the leper colony. That was confirmed by Jocelin of Salisbury in 1155–77.146 If the church did not receive tithes from the leper colony, as Richard’s later charter demanded, then it would have suffered from their presence, in violation of the original charter. Two letters survive from the resultant case. Herbert Poore confirmed that the leper colony was not to prejudice the church of All Saints in any way, as was stated in the charter of his predecessor Jocelin.147 Then, in a papal mandate dated between 8 January 1198 and March 1202, Innocent III ordered that a case between Notley and the leper colony be heard.148 The composition that resulted from the case has survived as a confirmation issued by Hubert Walter. The leper women contended that they had been granted an exemption on novalia and on the food of their animals.149 Ultimately, the judges-delegate – William, abbot of Thame; Master Walter, subprior of St Frideswide’s, Oxford; and Bartholomew, rural dean of

143 146 147 149

Quod siquis contra decretum romanum predictas le[pro]sas et procuratores earum in exigendis decimis vexare presumserit. EEA, 2, 165n p. 137. 144 See pp. 86–91 above. 145 EEA, 2, 165, p. 137. English Episcopal Acta, 18: Salisbury 1078–1217, ed. B. Kemp (Oxford, 1999), 92, pp. 66–7. EEA, 18, 217, pp. 175–6. 148 Letters of Innocent III, 400, pp. 65. English Episcopal Acta, 3: Canterbury 1193–1205, ed. C. R. Cheney and E. John (Oxford, 1991), 560, p. 214.

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Use of the Canons, ca. 1179–ca. 1191 Donnington – gave the women a tithe exemption on their yards and gardens.150 It was presented as a compromise, with the abbot and canons of Notley granting the leper women the exemption ‘by divine observation of charity and piety’. Cheney and John noted that the exemption ‘appears to run counter to III Lateran Council c. 23’; although their grounds for this observation were mistaken, as the canon did not provide for an exemption on the young of animals but instead upon those animals’ fodder, the apparent absence of an animal fodder exemption does hold true.151 In the later episcopal acta and in the composition of the judgesdelegate, no mention is made of the 1179 conciliar canon. It is as if it did not exist. It is not used as an authority for the judgement and while the compromise may have been based upon the canon’s terms, it certainly did not replicate them exactly. At the same time, the section of c. 23 concerning tithe exemptions for leper colonies was repromulgated by Hubert Walter in a local council at Westminster in 1200.152 Arguing from silence is difficult, particularly when the survival of the original documents is as arbitrary as in the later twelfth century. It is impossible to know why the canons were not cited more extensively. It is, however, possible to note that they were not and, in the case of the Maiden Bradley case, that where a canon was used it was not used as a hard and fast rule. It seems, therefore, that the canon played a role as a general rule, which could be emended according to specific local circumstances or needs. A change occurred around 1190, after which the conciliar canons appear to have been cited more extensively. Councils that took place in Montpellier in 1195 and Westminster in 1200 quoted a number of the canons verbatim. Hubert Walter had already convened a provincial council in York in 1195 as papal legate, but held another, larger, meeting in Westminster in 1200 for all the bishops of the province of Canterbury.153 The 1195 council in Montpellier was a legatine council. Held by the shadowy ‘Master Michael’, about whom no further concrete information can be established, it incorporated elements of cc. 19, 21, 22, 24, 25, 26, and 27 from the 1179 council, as well as canons from Tours in 1163, and provides the sole source for the content of a conciliar canon promulgated at Montpellier in 1162.154 Neither bishop of Montpellier nor archbishop of Narbonne in 1195 was named Michael, suggesting that he was a legate a latere. Any legatine mission that had as its aim the routing 150 152 153 154

EEA, 3, 560, p. 214. 151 EEA, 3, 560n, p. 214. See pp. 211–12 below; Councils and Synods, 1.1068. C. R. Cheney, Hubert Walter (London, 1967), pp. 66; Councils & Synods, 1.1042–52. Mansi, 22.667–71. From that account, it seems that versions of 3 Lat. c. 19 and Tours c. 2 were promulgated at the 1162 council.

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Local Use of the Canons of heresy in southern France and Catalonia, which Baluze believed to be Michael’s goal, would very probably have been headed by prelates from outside the region.155 Michael cannot be linked to any known magister, nor can the extent of his legal learning be ascertained. But it is unlikely that an otherwise obscure magister chosen by the pope to be a legate a latere would not have close links to Celestine III’s curia. Hubert Walter’s extensive use of the 1179 decrees is therefore all the more striking because the archbishop did not have that close connection with the papacy. The 1195 conciliar canons cited explicitly one canon of the 1179 council, c. 7, but the synodal acta used other canons too.156 Canon 8 was cited by the dean and chapter of York when claiming that Geoffrey, archbishop of York would not appoint Master Peter of Dinan as archdeacon of the West Riding.157 Once again papal involvement can be seen: the row over Peter’s appointment was one of many involving Geoffrey during his time as archbishop, and a mandate of Celestine III was also cited.158 At the council convened by Hubert Walter in 1200, more canons were then repeated. Canons 5, 6, 7, 8, 10, 13, 14, and 15 are repetitions of sections from 1179: cc. 4, 5, 6, 7, 8, 9, 10, 11, and 23. Most of these texts are explicitly attributed to the 1179 council.159 In the case of c. 8 of the 1200 council, which uses ideas from three different canons of 1179, the precedent is only cited once. As this reference occurs in the opening sentence of the canon, it is likely that it was considered sufficient authority for the entirety of its text.160 Intriguingly, c. 8 of the 1179 council, which had been one authority for the dispute in 1195, was repeated verbatim at the Westminster council. From around 1200, reference to the 1179 canons also became more widespread in England. It is impossible to attribute this entirely to Walter’s council. Although John of Norwich did cite c. 7 of the council when refusing a compromise agreed by judges-delegate and confirmed by Innocent III, other records of local use employ decrees from Lateran III that were not repeated by the archbishop.161 Three bishops collated 155 157 158

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Mansi, 22.671. 156 Councils & Synods, 1.1045, 1.1050. Roger of Howden, Chronica, 3.298, printed in Councils & Synods, 1.1047. Councils & Synods, 1.1047. On Geoffrey, see M. Lovatt, ‘Geoffrey Plantagenet’, in English Episcopal Acta, 27: York, 1189–1212, ed. M. Lovatt (London, 2005), pp. xxix–lviii at pp. xlii–li. Councils & Synods, 1.1060–70. For example, Westminster (1200) c. 5 = Councils & Synods, 1.1062: Cum inter ea que statuta sunt a modernis patribus Latranense concilium celeberrimum sit et omnimoda observacione dignissimum, nos ipsius instituta humiliter ac devote sequentes decernimus ut . . .; Westminster (1200) c. 10 = Councils & Synods, 1.1067: Statuta eciam Lateranensis concilii reverenter amplectentes, decernimus ut . . . Councils & Synods, 1.1065–6. The canon uses sections from 3 Lat. c. 7 = COD3, pp. 214–5, COGD, 2.132–3 and 3 Lat. c. 8 = COD3, p. 215, COGD, 2.133, and an idea but no quote from c. 18 = COD3, p. 220, COGD, 2.140–41. English Episcopal Acta, 6: Norwich, 1070–1214, ed. C. Harper-Bill (Oxford, 1990), 332n, p. 264.

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Use of the Canons, ca. 1179–ca. 1191 priests to vacant benefices, Giles de Braose,162 Richard Poore,163 and William of Blois, and Giles referred to c. 17 of the council, omitted in 1200.164 In the Rochester acta, the first mention of the 1179 council is a mandate of Celestine III repeated verbatim in a notification of Bishop Gilbert and two abbots. The only other use of the council is in a potentially spurious letter dated between 13 July 1205 and November 1206.165 When these various references to the 1179 canons are combined, it appears that their local use increased significantly from the late 1180s. In the context of the synods, there was a change from reference to individual canons to the repromulgation, often verbatim, of a number of the canons. It is also instructive to compare episcopal use of the canons with the papacy’s reference to their contents: of the popes in the 1180s, Lucius III was the most reluctant to embroider or interpret the canons’ contents, but his successors and their staff began once again to refer to the canons in a rather elastic fashion. Papal curia and episcopal familiae were very different environments, but one of the key commonalities between the two is the increasing use of trained legal personnel during the later twelfth century. A significant number of the magistri who were employed in both papal and episcopal government during the last decade of the twelfth century would have been either students or teachers in the 1180s. They would have been among the first generation of magistri to encounter the 1179 canons in the schools and to learn how to use them. Hubert Walter’s familia contained numerous canon lawyers, including at least John of Tynemouth and potentially Simon of Sywell, Master Honorius, and Ricardus Anglicus as well.166 Honorius and Ricardus both used the 1179 canons themselves, while John and Simon were key figures in the group of Anglo-Norman canonists that emerged in the 1190s. It is therefore difficult to imagine that they were unfamiliar with Alexander’s 1179 decrees. It is also likely that they drafted the 1200 canons using a canonical collection of some sort, although this is not the place to investigate the sources of the 1200 synodal decrees. Ultimately, however, the verbatim repetition of the decrees appears to represent a change in outlook during the 1190s that, most 162 163

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Letter to Brecon Priory dated 24 September 1200 x 9 April 1214, EEA, 7, 245, p. 183. Notification on behalf of Michael the clerk, dated 9 Nov. 1218. English Episcopal Acta, 19: Salisbury 1217–1228, ed. B. R. Kemp (London, 2000), 328, pp. 306–7. Reference in Hugh of Wells’ Rolls, English Episcopal Acta, 4: Lincoln 1186–1206, ed. D. M. Smith (Oxford, 1986), 55, p. 207. English Episcopal Acta: Rochester, 1076–1235, ed. M. Blount and M. Brett (forthcoming), nos. 79 and 110. Cheney, Hubert Walter, pp. 164–6; C. E. Lewis, ‘Ricardus Anglicus: a “familiaris” of Archbishop Hubert Walter’, Traditio, 22 (1966), 469–71.

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The 1179 Decrees ‘in the hands of the canonists’ probably, emerged from the increased use of the 1179 canons in the schools and the consequent engagement of magistri and students alike with their content, form, and authority. the 1179 decrees ‘in the hands of the canonists’ Finally, there is the use of the decrees ‘in the hands of the canonists’ (i.e. by those who attended the schools and by magistri).167 The significance of learned lawyers in embedding the canons into common ecclesiastical use is demonstrated on a simple level by the disproportionate number of copies which survive in legal manuscripts. That use varied, however, from the copying already discussed to abbreviation, citation, reference, and discussion. Previous studies of the employment of conciliar canons in late twelfth-century canonical manuscripts have demonstrated that conciliar enactments were not always considered discrete, complete bodies of text.168 Canonists’ views can, therefore, help to demonstrate how contemporaries viewed and interpreted such statements. In particular, the canonists play a vital role in linking local clerics and the papacy, for all that during the later twelfth century, that role was in the process of solidifying. A common tenet amongst historians of canon law is that the 1179 canons entered the canonical tradition shortly after the council ended and, since they possessed an elevated authority as the canons of a general council, they stayed there. That idea is then employed for the dating of canonical collections169 and commentaries,170 and is linked to a general belief that a collection can be dated with precision by the latest datable material it contains.171 While that approach provides a working hypothesis for dating, it should not be the only means by which a work is dated. For all that the 1179 council was considered the ‘first Lateran’ for clerics of the 1180s and 1190s, it has already been established that the circulation of the 1179 canons does not conform to scholarly expectations of 167

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W. Holtzmann, ‘Die Register Papst Alexanders III. in den Handen der Kanonisten’, QF, 30 (1940), 13–87. Brooke, ‘Canons of English church councils’, 471–80. See also Fransen, ‘Les canonistes’, pp. 33–40 for a commentary on the 1179 canons’ use which, although short, remains instructive. W. Holtzmann, ‘Die Collectio Eberbacensis’, ZRG Kan. Abt., 17 (1928), 548–55 at 551; Holtzmann-Cheney, p. 12. E.g. the dating of Ordinaturus Magister to post-1179 due to its citation of the 1179 canons. See p. 101 n. 46 above. For this perspective, see e.g. G. Drossbach, ‘Decretals and the schools? The Collectio Francofurtana’, BMCL, 24 (2000), 65–77 at 65; P. Landau, ‘Die Entstehung der systematischen Dekretalensammlungen und die europäische Kanonistik des 12. Jahrhunderts’, ZRG Kan. Abt., 65 (1979), 120–48 at 139; G. Dolezalek, ‘A series of papal decretals from the late 12th century and its usefulness for the dating of manuscripts of Roman law’, RIDC, 15 (2004), 77–95 at 77; Holtzmann-Cheney, p. 5 for the link between Lateran III and the dating of decretal collections.

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Use of the Canons, ca. 1179–ca. 1191 contemporary conciliar canons, and at least two different groups of canonical collections compiled after 1179 had archetypes where the canons were absent.172 The first is the Bambergensis group of collections.173 Landau dated the oldest collection, Bambergensis, to ca. 1185, and Deeters the (now-lost) urBambergensis to the early 1180s, but both seem to have been expanded later to include the canons and other members of the group employed local traditions.174 In Bambergensis, the canons follow the collection, in the fifty-sixth and final title.175 The tradition of the canons in Oriel 53 matches the Bambergensis sequence in large part although not entirely; in Oriel 53 the decrees are separated from ‘Bamberg O’ by a series of civilian questiones and the Collectio Orielensis fragment and it is implausible, although not impossible, that they were related.176 Both Erlangensis and Lipsiensis begin their collections with the canons as a distinct preface.177 The sequence of the canons in Lipsiensis closely resembles that found in primitive collections of the Italian family, and Berolinensis in particular; although Lipsiensis is no longer believed to have been compiled by Bernard of Pavia, there are a number of Italian decretals common to both Lipsiensis and collections of the Italian family, especially Cusana, meaning that a link between the two groups of collections is possible or even likely.178 Equally, Erlangensis includes the canons in exactly the same order as the Rommersdorfer Briefbuch, suggesting a common archetype of some form; enough textual differences are shared between the two copies to suggest that they are linked.179 To say that no links exist between the 172

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174 175 176

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C. R. Cheney, ‘The numbering of the Lateran councils of 1179 and 1215’, in his Medieval Texts and Studies (Oxford, 1973), pp. 203–08. See also Longère, ‘L’influence de Latran III’, p. 103. Five of the family contain the canons: Bambergensis, Erlangensis, Lipsiensis, and the two Cassellana collections. The remaining collections are fragmentary: W. Deeters, Die Bambergensisgruppe der Dekretalensammlungen des 12. Jahrhunderts (Bonn, 1956), passim; Holtzmann-Cheney, pp. xxi. Oxford, Oriel College 53 contains both a fragmentary collection of the ‘Bamberg’ group and a copy of the canons on fol. 355v, but they do not appear to be connected. Deeters, Die Bambergensisgruppe, p. 33–4; Landau, ‘Die Entstehung’, pp. 125, 133–4. Bamberg, Staatsbibliothek, Can. 17, fols 43rb–47ra; Deeters, Die Bambergensisgruppe, pp. 315–16. Oxford, Oriel College 53, fol. 355va–c; Deeters, Die Bambergensisgruppe, p. 7 gives Bamberg ‘O’ on fols 240–249; Repert., p. 295. Erlangen, Universitätsbibliothek 342, fols 291ra–292rb; Leipzig, Universitätsbibliothek 975, fols 116ra–118ra; Deeters, Die Bambergensisgruppe, p. 43; Quinque compilationes, p. 189. Deeters, Die Bambergensisgruppe, p. 32 points to an Italian origin for the manuscript; C. Duggan, ‘Decretal collections from Gratian’s Decretum to the Compilationes antiquae: the making of the new case law’, in HMCL, pp. 246–92 at p. 281 states that Bernard compiled the collection but there seems little evidence to support that contention; Landau, ‘Die Entstehung’, pp. 133–7. For the canons in Berolinensis I, see J. Juncker, ‘Die Collectio Berolinensis’, ZRG Kan. Abt., 13 (1924), 348–56. Herold, ‘Die Canones’, pp. 36–97; Deeters, Die Bambergensisgruppe, pp. 315–16; F. Kempf, ‘Das Rommersdorfer Briefbuch des 13. Jahrhunderts’, MIÖG, Erg. Band, 12.3 (Innsbruck, 1933), 502–71 at 504 compared to the Erlangen manuscript.

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The 1179 Decrees ‘in the hands of the canonists’ decrees as found Bambergensis, Erlangensis, and Lipsiensis would be to overstate the case. Herold analysed all three; while they are the same in several key respects, such as all lacking the ‘sumptuous meals’ clause in c. 4, there is nothing to suggest that they are close relatives and he could only connect the traditions by a tenuous link.180 When these small textual differences are combined with the similarities between the collections and other, local, traditions, it implies that the canons were not part of the Bambergensis familial archetype but became embedded in the tradition at a later date. The absence of the 1179 canons in the archetype of the semi-systematic ‘Worcester’ family of decretal collections seems more concrete.181 Only four collections of the family contain the canons: Claustroneoburgensis, Cheltenhamensis, Cottoniana, and Petrihusensis.182 Even then, Cheltenhamensis does not incorporate the canons into the collection. The earliest members of the family, Wigorniensis and Trinitatis, lack the canons; Trinitatis is, however, a fragment from the central section of the collection where the 1179 decrees are unlikely to have been preserved.183 Duggan certainly believed that the three eldest collections in the family, Trinitatis, Wigorniensis, and Claustroneoburgensis, emanated from a common archetype that was compiled around or shortly after 1181, so after the council.184 Two further letters in Wigorniensis must post-date the 1179 council since they cite the conciliar canons as authorities. One, WH 207 to the bishop of Durham, is attested in multiple other locations and may be part of a larger letter which enjoyed an even broader circulation.185 The other, WH 287, survives only in Wigorniensis.186 Its recipients are given as the bishop of Worcester and the archbishop of Canterbury; it 180 181

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183 184

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Herold, ‘Die Canones’, pp. 31, 36–97. On ‘sumptuous meals’, see Chapter 4. Duggan, Twelfth-Century Decretal Collections, pp. 95–110 where, at 96, he notes that ‘all six collections are technically primitive’; C. Duggan, ‘The Trinity collection of decretals and the early Worcester family’, Traditio, 17 (1961), 506–26; Duggan, ‘Decretal collections’, pp. 271–7, where he defines them as systematic. The distinction has little relevance here. Klosterneuburg, Stiftsbibliothek 19, fols 36r–41r; London, BL, Egerton 2819, fols 11ra–16ra; London, BL, Cotton Vitellius E.xiii, fols 205vb–210va; Cambridge, Peterhouse 193, fols 223rb– 227ra. See Duggan, ‘The Trinity collection’, passim. Duggan, Twelfth-Century Decretal Collections, pp. 97–8, based on the presence of WH 846, Recepimus litteras, in all three of the collections; a further letter, WH 110, was also probably written after the council: WH 846: JL14365 = X 2.22.4, Holtzmann dated the letter to 23 January 1181 based on evidence in the Cartulary of St Augustine’s Canterbury: Kartei, www .kuttner-institute.jura.uni-muenchen.de/kartei/whr0951.gif (last accessed 1 September 2018); WH 110: JL – = Cl. 197, Kartei, www.kuttner-institute.jura.uni-muenchen.de/kartei/whr0124 .gif and www.kuttner-institute.jura.uni-muenchen.de/kartei/whv0124.gif (last accessed 1 September 2018). London, BL, Royal 10.A.ii, fol. 26rb–va, WH 207c: JL 13868 = 1 Comp. 1.8.7, which is Wig. 3.30. WH 207ab: JL 13868 = X 1.36.3, 1 Comp. 3.38.28, and see pp. 196–7, 198–9 above. London, BL, Royal 10.A.ii, fols 27vb–28ra; WH 287; JL – = Wig. 3.40.

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Use of the Canons, ca. 1179–ca. 1191 was sent by Alexander III. Both of these letters are in the third title of the collection. They were described by Duggan as additions to the archetype and are omitted from Claustroneoburgensis.187 However, while WH 287 is in a different hand to earlier chapters of the title and seems to be an addition to the original compilation, WH 207 was copied by the original hand and is integrated within the earliest text. It was thus copied into the collection at the same time as the rest of the title. So Wigorniensis too must have been copied out after the council and, significantly, after a responsum to an episcopal consultatio had not only reached the bishop in Durham to whom it was addressed, but then also travelled to the compilers of the collection in the south of England and was chosen by them for incorporation in their work, yet the conciliar canons were not included. The collections of the Worcester family also demonstrate the difficulties in tracing and comparing the decrees’ use across manuscript traditions. Later collections of the same family did include the conciliar canons, but all appear to be additions. Although the Claustroneoburgensis collection cannot be a direct ancestor of Petrihusensis and Cottoniana, the presence of the distinctive textual anomaly in Licet de vitanda demonstrates that the three traditions of the canons in their manuscripts emerged from the same archetype.188 The canons in Egerton 2819 were not originally part of the Cheltenhamensis collection, however,189 while in Cottoniana and Petrihusensis the canons are separate and were possibly conceived as discrete from the collections. Combined, the manuscript evidence suggests that all the collections from the Worcester archetype initially omitted the conciliar canons. It could be that the canons had simply not arrived when the collections were compiled, but on testing that hypothesis is fallible. While bishops from the two probable compilation locations of the Bamberg and Worcester families – Tours and southern England, respectively – did not attend the council,190 the presence of WH 207 in the Wigorniensis collection effectively demonstrates that the canons could have been included. As mentioned already, not only was the letter a responsum sent 187 188

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Duggan, Twelfth-Century Decretal Collections, p. 50, n. 2. See Chapter 4; Cambridge, Peterhouse 193, fol. 223rb; London, BL, Cotton Vitellius E.xiii, fol. 205vb; F. Schönsteiner, ‘Die Collectio Claustroneoburgensis’, Jahrbuch des Stiftes Klosterneuburg, 2 (1909), plate facing p. 1; Klosterneuburg, Stiftsbibliothek 19, fol. 36r. On the relationship between Claustroneoburgensis and other collections of the ‘Worcester’ family, see Duggan, Twelfth-Century Decretal Collections, p. 96; Duggan, ‘Decretal collections’, p. 273. London, BL, Egerton 2819, fols 11ra–16rb. London, BL, Add. 39646, fols 154va, 155rb. The bishop of Tours was apparently taken ill and could not attend the council, although his claim could be viewed with scepticism, given the anticipated discussions concerning Dol. WH – : JL – = PUF n.F., 5, 256, pp. 361–3.

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The 1179 Decrees ‘in the hands of the canonists’ to a bishop after a query, but that bishop was Hugh du Puiset, who attended the council.191 If he did not take a copy of the canons back to England with him, then the canons’ dissemination was more restricted than previously suggested, and WH 207 shows him interacting with the decrees’ contents, demonstrating some knowledge of them. As the letter to Hugh was circulating, it is difficult to imagine that a copy of the canons linked to his familia would not have been available to the compiler of Wigorniensis alongside Alexander’s letter had the canons been of interest. There are further hints that the omission was deliberate. The ‘Worcester’ collection begins each of its titles with a rubric that makes no mention of conciliar canons and stipulates purely decretals. The rubric to the third title, for example, states that ‘here begin the decretal letters of Alexander III concerning the status of clerics, of which the first was sent to the archbishop of Canterbury’, compared to Claustroneoburgensis’ decreta, or ‘decrees’.192 Only two fragments of conciliar canons appear in the collection; in both cases, they are incorrectly ascribed to papal letters rather than to a council.193 When the presence of WH 207 is combined with the omission of prior conciliar canons from Wigorniensis, except for those wrongly identified as papal letters, and rubrics which explicitly limit the collection’s contents to decretal letters, it does seem that the compiler deliberately excluded conciliar decrees from his collection. While the ‘Worcester’ archetype appears to have shunned conciliar canons altogether, the ‘Bamberg’ archetype did include canons from the Council of Tours. Both compilers were demonstrably canon lawyers; in the case of the ‘Worcester’ family, it has even been suggested that these can be found in the familia of the archbishops of Canterbury or bishops of Worcester.194 There, the conciliar canons may have been excluded because conciliar decrees were considered too broad and generally prescriptive for a compiler more interested in specific cases. But this argument is not possible in the case of the systematic collections such as the Appendix or the ‘Bamberg’ family. The Appendix Concilii Lateranensis collection, also of English provenance and compiled slightly later than Wigorniensis but possibly from a variant of its archetype, includes canons of Tours, the Lateran, and three lone canons from different councils, 191 192

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London, BL, Add. 39646, fol. 155rb. London, BL, Royal 10.A.ii, fo. 22ra: Incipiunt decretales epistole. A. pape. iii de statu clericorum quarum prima destinata Cantuariensi archiepiscopo. Wig. 2.13(f) = H.-E. Lohmann, ‘Die Collectio Wigorniensis (Collectio Londoniensis Regia): Ein Beitrag zur Quellengeschichte des kanonischen Rechts im 12. Jahrhundert’, ZRG Kan. Abt., 22 (1933), 36–187 at 94, 161; Brooke ‘Canons of English church councils’, 12, p. 478. Duggan, Twelfth-Century Decretal Collections, pp. 110–14; H. Mayr-Harting, ‘Master Silvester and the compilation of early English decretal collections’, SCH, 2 (1975), 186–96 at 192–3.

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Use of the Canons, ca. 1179–ca. 1191 although these were misattributed elsewhere.195 Similarly, the Bambergensis archetype presumably included the canons of Tours, which appear in Bambergensis as different chapters spread through the text.196 For Bambergensis, therefore, the probability remains that the conciliar canons had simply not reached the scriptorium when the collection was copied in the mid-1180s. They were included at some point, but that might suggest that Tours, one of the principal archdioceses in France, did not have a copy of the canons available for use in its canon law school for some time after the council. While neither of the families detailed here provides conclusive evidence for the inclusion or otherwise of the conciliar decrees, they do demonstrate that the inclusion of the canons in decretal collections was not automatic. One argument for the growing prevalence of decretals is that compilers did ‘not differentiate between the authority of conciliar decrees and rescripta’, implicitly giving decretals higher status as a consequence.197 Yet often the canons seem to have been late additions to pre-existing collections of letters, which may or may not have been viewed in some circles as separate from the decretals. More pertinently, ten of the surviving primitive collections do not include the 1179 conciliar canons, even as later additions.198 These early collections provided the sources for later works and writings. If they did not contain the conciliar canons, then the decrees would not have been transmitted into works which relied on the contents of these collections. It would be unreasonable to suggest that every canonist had and used a completely up-to-date decretal collection when working, but the inclusion of new texts adds a time delay to the circulation of any new principles. While new copies of these canonical collections were compiled frequently, the fact that ten early collections do not contain the 1179 canons effectively demonstrates that at least some canonists of the 1180s had no access to the decrees. 195

196 197

198

Die Canones-Sammlungen zwischen Gratian und Bernard von Pavia, ed. E. Friedberg (Leipzig, 1883), pp. 67–70. Die Canones-Sammlungen, p. 87. A. J. Duggan, ‘Making law or not? The function of papal decretals in the twelfth century’, in Proceedings Esztergom, pp. 41–70 at 61. The ‘French’ Cantabrigiensis, Victorina I, and Aureavallensis, the ‘English’ Wigorniensis altera, Belverensis, Fontanensis, and Regalis, the ‘Bridlington’ Bridlingtonensis, the ‘Worcester’ Trinitatis and Wigorniensis as already discussed above. See Holtzmann-Cheney, pp. 26–30; Duggan, Twelfth-Century Decretal Collections, pp. 69–73, 81, 91; W. Holtzmann, ‘Beiträge zu den Dekretalensammlungen des zwölften Jahrhunderts’, ZRG Kan. Abt., 16 (1927), 83–97. Fontanensis is of particular interest as it too post-dated the council: P. Landau, ‘Collectio Fontanensis: a decretal collection of the twelfth century for an English Cistercian Abbey’, in K. Pennington and M. H. Eichbauer (eds.), Law as Profession and Practice in Medieval Europe: Essays in Honor of James A. Brundage (Aldershot, 2011), pp. 187–204 at 190–1, suggests a date prior to 1190 and at p. 191 comments on the collection’s contents.

218

The 1179 Decrees ‘in the hands of the canonists’ Consequently, how the canonists used the conciliar canons during the critical decade of the 1180s becomes of significant interest. Such broad use can be divided into three distinct categories. Of most immediate interest is the canons’ inclusion in the systematic decretal collections, which separated the canons as a whole into individual thematic titles. Supplementing that are those occasions where the canons show some sign of significant emendation or abbreviation and, finally, the citation and reference of the canons in canonical glosses, summae, and quaestiones. The Systematic Decretal Collections The canons would ultimately enter the Liber Extra, and become codified law in 1234. The first stage in that journey was their incorporation into the titles of the systematic decretal collections, the sophisticated descendants of earlier, ‘primitive’, compilations which divided their sources thematically.199 Given the diverse versions of the 1179 canons circulating, simply describing their dismemberment is unhelpful, yet the division of the canons between different titles distinguishes later systematic collections from their earlier brethren. In the Liber Extra, for example, c. 18 of the 1179 council, concerning teaching and the licentia docendi, was included as the first chapter of Book 5, title 5, ‘De magistriis et ne aliquid exigatur pro licentia docendi’.200 Other contents of the title include two letters of Alexander III, Quanto Gallicana and a fragment of Nuntios et litteras, and the canon of Innocent III’s Fourth Lateran Council that repeated the precept of free teaching found in the 1179 decree.201 In Brugensis the same canon, Quoniam ecclesia Dei, constituted the first chapter of title 20, ‘De reditibus scolaribus reformandis’, again preceding Quanto Gallicana as well as two additional letters to the archbishop of Reims that never entered the Liber Extra.202

199

200 201

202

There are differences in definition. Duggan argued for a ‘thorough dismemberment of the individual decretals’, although he lamented that collections of the Worcester family were consequently classed as primitive: Duggan, Twelfth-Century Decretal Collections, pp. 57–63, at 60. More recently, Landau adopted the simpler distinction that a systematic collection was one divided into books or titles: Landau, ‘Die Entstehung’, p. 124; P. Landau, ‘Typen von Dekretalensammlungen’, in V. Colli (ed.), Juristische Buchproduktion im Mittelalter, Ius Commune, Sonderhefte, 155 (Frankfurt am Main, 2002), pp. 269–83 at 274–8. See J. Hanenburg, ‘Decretals and decretal collections in the second half of the twelfth century’, Tijdschrift voor Rechtsgeschiedenis, 34 (1966), 552–99 at 591. X 5.5.1: ‘Concerning masters, and that nothing should be claimed for the licence to teach’. Prohibeas autem attentius: WH 691b: JL 14157 = X 5.5.2; Quanto Gallicana: WH 766: JL 11925 = X 5.5.3; 4 Lat. c. 11: X 5.5.4. Die Canones-Sammlungen, p. 151; Quanto Gallicana: WH 766: JL 11925 = X 5.3.3; Gratum Deo: WH 526: JL – = Brug. 20.3; Pervenit ad nos: WH 715: JL 13504 = 2. Comp. 5.3.un.

219

Use of the Canons, ca. 1179–ca. 1191 The first extensive dismemberment of most letters came in the early systematic collections and in particular in the Appendix Concilii Lateranensis.203 The systematic collections of the 1180s onwards dispersed smaller sections across a greater number of titles; Bernard of Pavia’s great innovation was to then separate those titles further, into five thematic books.204 Meminimus nos, for example, appears in the Appendix Concilii Lateranensis collection as ten fragments, two of which are repeated, meaning that the letter is present as twelve different chapters.205 For the 1179 canons, however, the process of placing the canons into thematically defined titles can only be identified in five collections: Francofurtana, a collection from northern France dating from around 1185 and surviving in four manuscripts;206 Brugensis, a collection in all probability compiled in Reims in the mid- or late 1180s that survives in three manuscripts;207 Rotomagensis I, a variant of and probably supplement to Francofurtana that survives in a single manuscript, probably compiled in the province of Rouen in the early 1200s;208 the Breviarium of Bernard of Pavia that survives in four versions and over 140 manuscripts;209 and the Liber 203

204

205 206

207

208 209

Letter fragments do appear in earlier collections: In litteras quas is dissected in both the Regalis and Cantuariensis collections (WH 557: Reg. 1, 2, 126, 137, 138), while Sicut Romana ecclesia was swiftly split into two letters before these were dissected even further: WH 944: Reg. 1, 39, 48–50, 99; www .kuttner-institute.jura.uni-muenchen.de/kartei/whv1061.gif (last accessed 1 September 2018) demonstrates the split between the first three sections (WH 944abc) and the second group of three (WH 944def). On Bernard of Pavia, see K. Pennington, ‘Decretal collections, 1190–1234’, HMCL, pp. 293–317 at 296–300. The five-part division, according to the mnemonic Ius, Iudex, Clerus, Connubia, Crimen, was arguably foreshadowed in both the Francofurtana and the Bambergensis: G. Drossbach, ‘Die Collectio Francofurtana und die fünf Bücher der Compilatio prima’, in V. Colli and E. Conte (eds.), Iuris Historia: Liber Amicorum Gero Dolezalek (Berkeley, 2008), pp. 145–59 at 147–8, 151–2; Daudet, ‘Collectio Bambergensis’, DDC, 2.87; Landau, ‘Die Entstehung’, p. 133; see above p. 165. WH 649: JL 13162 = App. 5.5, 6.9, 7.14, 8.5, 10.8, 10.9, 10.10, 12.1, 21.3, 28.9, 29.3, and 39.1. Francofurtana: Frankfurt, Stadt- und Universitätsbibliothek, Barth. 60; London, BL, Egerton 2901 (consulted); Paris, BN, lat. 3922A; Troyes, BM 961. Analysis: Repert., pp. 295–6; S. Kuttner, ‘Collectio Francofurtana’, ZRG Kan. Abt., 22 (1933), 370–80 at 370–6. The analysis undertaken by Landau and Drossbach from Holtzmann’s papers is invaluable: P. Landau and G. Drossbach (eds.), Die Collectio Francofurtana: eine franzözische Decretalensammlung. Analyse beruhend auf Vorarbeiten von Walther Holtzmann, MIC, B, 9 (Vatican City, 2007). Bruges, Bibliothèque de la ville 378; Bruges, Bibliothèque de la ville 379; Vatican City, BAV, Ottob.lat. 3027 (consulted). Analysis: Repert., pp. 297–8; Die Canones-Sammlungen, pp. 136–70; W. Holtzmann, ‘Über die vatikanische Handschrift der “Collectio Brugensis” (Ottob.lat. 3027)’, in Collectanea Vaticana in honorem Anselmi M.Card. Albareda, Studi e testi, 219 (Vatican City, 1962), pp. 391–414; L. Falkenstein, ‘Zur Entstehungsort der Collectio Brugensis’, Proceedings San Diego, pp. 117–44. Here the analysis by Friedberg was used, supplemented by BAV Ottob.lat. 3027 where further detail was required. Paris, BN, lat. 3922A (unseen). Analysis: Repert., p. 297; Holtzmann-Cheney, pp. 160–207. G. Fransen, ‘La tradition manuscrite de la “Compilatio prima”’, Proceedings Boston, pp. 55–62 at 55 noted 130 manuscripts, of which Fransen had analysed ninety-eight. A revised study of the Breviarium is long overdue. See also Repert., pp. 329–44; G. Fransen, ‘Les diverses formes de la Compilatio prima’, in Scrinium Lovaniense: Mélanges historiques Étienne van Cauwenbergh, Université de Louvain, Recueil de travaux d’histoire et de philologie, 4th Series, 24 (Louvain, 1961), 235–53

220

The 1179 Decrees ‘in the hands of the canonists’ Extra of Gregory IX, compiled by Raymond of Peñafort.210 The Extra is interesting: it represents what the collections would become in their fully mature form, and would become pivotal in changing the process and use of canon law. While not being representative of twelfth-century law, as the end point of the canons’ life its inclusion is required. Overall, these five collections were the only ones to separate the canons by content. In some earlier copies of the canons, such as in the Eberbacensis211 and Cassellana collections,212 they are broken into pseudo-titles but these represent an attempt to continue the layout of the remainder of the collection, rather than any specific desire to separate the canons out thematically. Equally, while some of the canons in the Cassellana tradition are split into smaller sections, the titles into which they are arranged have no recognisable thematic link.213 In Francofurtana, Brugensis, Rotomagensis I, and the Breviarium and the Extra, however, the canons were placed in different chapters according to their contents. Canon 10, Monachi non pretio, is a good example of how the decrees move between different collections. In Francofurtana, it is 15.4, part of the title ‘What is prohibited for the religious’, following a canon of the Council of Tours divided into two sections, and a canon from the Council of Mainz of 813.214 Brugensis places it in a section reserved for the treatment of schismatics and simoniacs.215 It constitutes 3.30.2 in the Breviarium, ‘Concerning the place of monks and of their monasteries’.216

210

211 212

213

214

215

216

at 236 gives 125 mss, of which twenty-eight were examined. For the recensions, see Fransen, ‘La tradition manuscrite’, pp. 56–7; Fransen, ‘Diverses formes’, pp. 239–40 lists the manuscripts. For this study, Friedberg’s analysis was used initially, despite its deficiencies: Quinque Compilationes, pp. 1–65. It was then checked with reference to Sigüenza, Biblioteca del Cabildo 10 in manuscript form, one of the group isolated by Fransen as the earlier version of the Breviarium: Fransen, ‘Diverses formes’, p. 239. M. Bertram, ‘Dekorierte Handschriften der Dekretalen Gregors IX (Liber Extra) aus der Sicht der Text- und Handschriftenforschung’, Marburger Jahrbuch für Kunstwissenschaft, 35 (2008), 31–65 at 59–60, cited two of the earliest datable versions of the Liber Extra as Florence, Biblioteca Nazionale Centrale, Pal. 157 and Florence, BML, Plut.sin.9. These supplemented Friedberg’s edition in Decretales Gregorii IX, ed. E. Friedberg, Corpus Iuris Canonici, 2 (2 vols, Leipzig, 1891). London, BL, Arundel 490, fols 218vb–221rb. Corpus Iuris Canonici, ed. J. H. Böhmer (2 vols, Magdeburg, 1747), Appendix 2, 2.185–340. Some of the titles are a single canon. Corpus Iuris Canonici, ed. Böhmer, 2.185ff. The first title begins with Licet de vitanda, before continuing with the first section of c. 3 to habeat facultatem, c. 27.1, c. 8 complete, and ends with c. 4 to querere videantur. 3 Lat. c. 10 = Frcf. 15.4: Die Collectio Francofurtana, p. 134. The title is Que religiosis sunt prohibita. It follows Tours (1163) c. 8 and Mainz (813) c. 14. One manuscript inserts ‘men’ after ‘religious’: Die Collectio Francofurtana, p. 133. 3 Lat. c. 10 = Brug. 4.13: Vatican City, BAV, Ottob. lat. 3027, fol. 8r–v, Die Canones-Sammlungen, ed. Friedberg, p. 142. 3 Lat. c. 10 = 1 Comp. 3.30.2: Sigüenza, Biblioteca del Cabildo 10, fol. 74rb–va, Quinque compilationes, p. 39.

221

Use of the Canons, ca. 1179–ca. 1191 The Liber Extra, following Bernard’s lead, included the canon as 3.35.2 under the same title as the Breviarium.217 The similarities between the canon’s appearance in Francofurtana, the Breviarium, and the Extra are immediately apparent. All three focus the relevant title on monks or other religious. In comparison, Brugensis is at once both more specific – indicating that the canon deals with simony – and grounded in the older perspectives that viewed simony as heresy and simoniacs as schismatics. The difference between these works demonstrates the difference between what became the mainstream of canonical thought – represented by the Breviarium and the Extra – and the multiple approaches that existed before such a mainstream emerged. Whilst Bernard of Pavia incorporated all twenty-seven canons now recognised into his collection, other collections are not so consistent. The Liber Extra cuts away non-important legal material from several canons; of particular importance is the deletion of all but a fragment of c. 27, Sicut ait beatus.218 However, Raymond is renowned for scything through all nonrelevant legal material, and the reliance of the Liber Extra on the Breviarium is well known.219 In his edition of Brugensis, Friedberg’s concordance of the canons with the relevant chapters erroneously suggests that cc. 5, 9, 17, and 20 were missing.220 As so often happens, c. 5 is hidden away, present in 15.1: Friedberg gives the incipit and explicit as ‘Nulla ecclesiastica – habere’, but most versions of c. 8 end with the third person singular disponat. In contrast, c. 5 ends with possit habere, and inspection of the manuscript confirms its presence.221 The absence of cc. 17 and 20 can similarly be explained by oversights in Friedberg’s analysis. Canon 17 is in fact 14.11 which Friedberg lists as being the second half of c. 23,222 while he mistakenly believed that c. 20, Felicis memorie, was part of c. 15 and thus overlooked its location at 23.2.223 Nevertheless, Brugensis does lack c. 9, Cum et plantare. Francofurtana presents an interesting example of both the omission and the incorporation of the 1179 decrees. Its oldest manuscript, T, omitted cc. 6, 16, 21, 22, and 23 from the main body of its text. All five were either added to the Frankfurt manuscript or included in its appendix.224 The 217 218 219

220 221 222 223 224

3 Lat. c. 10 = X 3.35.2: Florence, Biblioteca Nazionale Centrale, Pal. 157, fol. 118ra. 3 Lat. c. 27: X 5.7.8 = Florence, Biblioteca Nazionale Centrale, Pal. 157, fols 153vb–154ra. See pp. 54–5 above and p. 236 below, but e.g. 3 Lat. c. 6 = X 2.28.16: Florence, Biblioteca Nazionale Centrale, Pal. 157, fol. 61vb; 3 Lat. c. 23 = X 3.48.2: Florence, Biblioteca Nazionale Centrale, Pal. 157, fol. 130va–b, both of which dissect the conciliar canons. Die Canones-Sammlungen, p. 137. 3 Lat. c. 8 + 5 = Brug. 15.1: Vatican City, BAV, Ottob. lat. 3027, fol. 33v. 3 Lat. c. 17 = Brug. 14.11: Vatican City, BAV, Ottob. lat. 3027, fol. 31r–v. 3 Lat. c. 20 = Brug. 23.2: Vatican City, BAV, Ottob. lat. 3027, fol. 49r–v. Die Collectio Francofurtana, pp. 302–3, pp. 384–5, and passim.

222

The 1179 Decrees ‘in the hands of the canonists’ Francofurtana variant known as Rotomagensis I represents an even more selective reproduction of the canons: only eight were incorporated into the collection, albeit alongside canons from Tours, Reims, and the English provincial council of Westminster.225 Holtzmann characterised it as an ‘Appendix’ to the Francofurtana. His suggestion provides a clue to understanding Rotomagensis I’s use of the canons: the canons and sections of c. 4 absent from Francofurtana were incorporated into Rotomagensis I, alongside a fragment of c. 15 that was therefore repeated in both collections.226 In Francofurtana, the majority of c. 4 is 23.4, but that only contains the text from grave nimis to eis auxilium postulare.227 Rotomagensis I overlaps slightly, beginning a clause earlier than Francofurtana ends, with Prohibemus etiam, and ending at potestatem indultam, the end of the canon in COD.228 This suggests that whichever canonist compiled Rotomagensis I had a full copy of the canons from which to work, and that part of his aim was to supplement the Francofurtana by adding canons originally missing from it. It is unlikely that copies of the canons from which the compiler of Francofurtana and Brugensis were working were incomplete. Instead, there is strong evidence of deliberate selection. Brugensis, for example, lacks only c. 9, also missing from two other contemporary canonical copies.229 The canon, which focussed on the Templars and Hospitallers, was particularly unwieldy and fell outside the structure of Gratian. This suggests an explanation for its omission supported by the Liber Extra, where large sections of excess material were removed.230 The omission of canons which fall outside the layout of the titles can also be seen in 225

226

227 228 229

230

3 Lat. c. 23 = 1 Rot. 10.16: Holtzmann-Cheney, p. 183; 3 Lat. c. 16 = 1 Rot. 10.17: HoltzmannCheney, p. 183; 3 Lat. c. 4 = 1 Rot. 14.10: Holtzmann-Cheney, p. 188; 3 Lat. c. 15 = 1 Rot. 16.1: Holtzmann-Cheney, p. 189; 3 Lat. c. 22 = 1 Rot. 19.2: Holtzmann-Cheney, p. 192; 3 Lat. c. 16.2 = 1 Rot. 22.15: Holtzmann-Cheney, p. 197; 3 Lat. c. 21 = 1 Rot. 24.11: Holtzmann-Cheney, p. 199; 3 Lat. c. 6 = 1 Rot. 31.8: Holtzmann-Cheney, p. 204. Examples from Westminster include 1 Rot 5.3: Holtzmann-Cheney, p. 177 and 1 Rot. 15.1: Holtzmann-Cheney, p. 188. Canons of Tours are at 1 Rot. 15.2 = Holtzmann-Cheney, p. 188–9; Reims (1148) at 1 Rot. 9.1 = Holtzmann-Cheney, p. 180; 1 Rot. 9.10 = Holtzmann-Cheney, p. 181. Holtzmann-Cheney, pp. 160–8, esp. at 168. Holtzmann’s published analysis of the entire manuscript was representative of his incomplete reflections, but his views on Rotomagensis I are both coherent and complete: see Holtzmann-Cheney, pp. 135, 160. Charles Lefebvre’s brief analysis is more comprehensible despite lacking Holtzmann’s deep learning: ‘L’École canonique rouennaise de la fin du XIIe siècle: la collection dite de Rouen et ses rapports avec les collections contemporaines’, RHD, 4th series, 31 (1953), 324–5. 3 Lat. c. 4 = Frcf. 23.4: Die Collectio Francofurtana, p. 180. 3 Lat. c. 4 = 1 Rot. 14.10: Holtzmann-Cheney, p. 188. London, BL, Cotton Claudius A.iv, fols 204vb–206vb, see Holtzmann-Cheney, p. 132 n. 2, although this understates the importance of the text, see pp. 230–1 below; Laborans’ Compilatio Decretorum also lacks c. 9, see N. Martin, ‘Die Compilatio Decretorum des Kardinals Laborans’, Proceedings Berkeley, p. 133, and p. 21 above. 3 Lat. c. 9 = X 5.33.3: Florence, Biblioteca Nazionale Centrale, Pal. 157, fol. 165ra, Florence, BML, Plut.sin.9, fol. 181ra–b.

223

Use of the Canons, ca. 1179–ca. 1191 Francofurtana, one of the collections not to include a title for leprosy.231 It cannot be a coincidence, therefore, that it omitted c. 23.232 In both Liber Extra and Breviarium, c. 22 on the Peace and Truce of God fell under the title ‘Concerning truces and the Peace’; again Francofurtana had no such title and again in its earliest incarnation it lacked the decree.233 Canon 6 of the 1179 council was later incorporated into the collection, but into two different titles: the compiler of the St Maximilian manuscript placed it as 51.8, under the title of appeals, while the compiler of the Frankfurt manuscript instead included the canon as 49.18 as an authority on excommunication, demonstrating how it straddled both issues.234 All twenty-seven canons are present in only the Frankfurt manuscript; that manuscript of Francofurtana, although the first to be identified by Kuttner, is the latest of the four that survive.235 Where present in Francofurtana, however, the canons show evidence of being included from early in the collection’s life. In the oldest surviving version, a Troyes manuscript, a decretal was twice misidentified as a conciliar decree by a scribe; both of these occasions suggest marginal interpolation of the letter after the completion of the archetype. For example, Frcf. 12.8 is c. 2 of the 1179 council.236 Its preceding chapter, 12.7, is Alexander’s decretal Dignum est to the archbishop of York; a marginal comment in the Paris manuscript, it is attributed to the Lateran council in the other three manuscripts, suggesting that Dignum est achieved its inaccurate inscription by accident. Consequently, it appears that while not all the 1179 canons were included in the initial Francofurtana, those that were formed part of the earliest identified recension. Something similar can be said for the Breviarium, where all the canons can be found in a representative of the earliest grouping.237 Aside from the deliberate exclusion of certain canons, the principal difference between the use of the canons in the Breviarium and in the two northern French collections is the order in which the authorities were placed. Edward Reno has argued that Raymond of Peñafort made no 231

232 233 234

235

236 237

The other was Erlangensis: S. Kuttner (ed.), Index titulorum decretalium ex collectionibus tam privatis quam publicis conscriptus, Ius romanorum Medii Aevi, Subsidia, 2 (1977), p. 136. The Breviarium, Bambergensis, and Lipsiensis focussed on leprous marriage, while Brugensis, Appendix Concilii Lateranensis, and Sangermanensis included letters on leprosy more generally. See the list in Drossbach, ‘Collectio Francofurtana und Compilatio Prima’, pp. 155–9. De treuga et pace: X 1.34; 1 Comp. 1.24. 3 Lat. c. 6 = Frcf. F 49.18α: Die Collectio Francofurtana, pp. 302–3; 3 Lat. c. 6 = Frcf. M 51.8α: Die Collectio Francofurtana, p. 311. According to the analysis in Landau and Drossbach, Die Collectio Francofurtana; on the dating of the surviving manuscripts, see pp. 12–15. 3 Lat. c. 2 = Frcf. 12.8: Die Collectio Francofurtana, pp. 104–5. Fransen, ‘La tradition manuscrite’, p. 56; Fransen, ‘Diverses formes’, p. 239; checked against Sigüenza, Biblioteca del Cabildo 10.

224

The 1179 Decrees ‘in the hands of the canonists’ attempt to deliberately place the 1179 canons before Alexander’s decretals within the titles of the Liber Extra, and he links that to the Breviarium.238 Of the thirty-seven chapters into which the 1179 canons were split in the Breviarium, however, only seven are preceded by Alexandrine letters; one of those is not obviously a letter, a second was sent to a cardinal legate, and a third amounts to a declaration of faith which leaves only four occasions when an Alexandrine decretal preceded a canon of 1179 in Bernard’s organisation. At the same time, the Breviarium tends to order its material roughly chronologically, especially in comparison with the French collections, where no such deliberate approach can be identified. Canon 7 of the 1179 council provides a convenient example. It was split into two parts. One became 3.34.7;239 the other 5.2.8.240 Incidentally, the debt owed to the Breviarium by Raymond of Peñafort is readily demonstrated: the canon is in the Extra as 3.39.7 and 5.3.9. In both titles of the Breviarium, pre-Gratian extracts are first, followed by canons from Tours (1163), the Lateran (1179), and then relevant decretals of Alexander, Lucius, Urban, Gregory, and Clement, mostly in that order. Although 1 Comp. 5.2 is more confused than 1 Comp. 3.34, the priority given to conciliar canons and older or patristic texts over papal letters is still present. Table 5.1 1 Comp. 3.34, De censibus et exactionibus et procurationibus, and the inscriptions given in the text according to Friedberg241 1 Comp.

Inscription

WH

3.34.1 3.34.2 3.34.3 3.34.4 3.34.5 3.34.6 3.34.7 3.34.8 3.34.9 3.34.10

From the Council of Worms Augustine in the letter to the Romans Gregory to Bishop Lucillus of Melita The same to Stephan Casterium Paschal II to the Countess Matilda From the Lateran council The same Alexander III to the bishop of Worcester The same to the bishop of Chartres The same to the bishop of Chartres

3 Lat. c. 4 3 Lat. c. 7 WH 649 c WH 551 c WH 1036c

238

239 240 241

E. A. Reno III, ‘The authoritative text: Raymond of Penyafort’s editing of the Decretals of Gregory IX (1234)’ (unpublished PhD dissertation, Columbia, 2011), pp. 163 n. 357, 185. 3 Lat. c. 7.2 = 1 Comp. 3.34.7: Sigüenza, Biblioteca del Cabildo 10, fol. 81rb. 3 Lat. c. 7.1 = 1 Comp. 5.2.8: Sigüenza, Biblioteca del Cabildo 10, fol. 107ra–b. Quinque Compilationes, pp. 42–3. Regardless of the actual recipient, the important fact here is who Bernard thought the text had been addressed to.

225

Use of the Canons, ca. 1179–ca. 1191 Table 5.2 1 Comp. 5.2, De Simonia et ne aliquid pro spiritualibus exigatur vel promittatur, and the inscriptions given in the text according to Friedberg242 1 Comp.

Inscription

WH

5.2.1 5.2.2 5.2.3 5.2.4 5.2.5 5.2.6 5.2.7 5.2.8 5.2.9 5.2.10 5.2.11 5.2.12 5.2.13 5.2.14

Gregory in general synod Council of Mainz Pope Deodatus The same [i.e. Deodatus] The same [i.e. Deodatus] Pope Lucius Alexander III at the Council of Tours From the Lateran council Alexander III to the bishop of Veglia The same to the archbishop of Toledo Alexander III to the archbishop of York The same to the bishop of Chichester The same The same to the venerable brothers the bishop of Worcester and the abbot of Pentney The same Deusdedit Alexander III to the archbishop of Canterbury and his suffragans Lucius III to the archbishop of Split Alexander III to Baron Richard The same to the archbishop of Esztergom Lucius III

Tours c. 6 3 Lat. c. 7 WH 310 WH 193b WH 235 WH 568 WH 784

5.2.15 5.2.16 5.2.17 5.2.18 5.2.19 5.2.20 5.2.21

WH 377a WH 225 WH 1008b WH 407 WH 387 WH 645

In Brugensis and Francofurtana, there is no evidence of such care being taken over the sequence of authorities. Papal letters are intermingled with conciliar decrees. In the case of c. 7 of the 1179 council, this is demonstrated through Brugensis, where Cum in ecclesie corpore is 4.9, and Francofurtana, where it is 23.7 and 29.2. In the Breviarium, the chapters of these titles are ordered, beginning with pre-Gratian material and continuing on. That was evidently not the case in the Francofurtana or Brugensis collections. It suggests that an element of care was taken over the compilation of the titles. Consequently, although the Breviarium is a systematic collection, the arrangement of its chapters represents something of a return to the chronological ordering characteristic of some pre-Gratian collections. 242

Quinque Compilationes, pp. 54–5.

226

The 1179 Decrees ‘in the hands of the canonists’ Table 5.3 Brugensis title 4, De scismaticis et simoniacis et de his qui prohibitas tam in excessibus corrigendis quam in spiritualibus administrandis venalitates exercent, and the inscriptions according to Friedberg243 Brug.

Inscription

WH

4.1 4.2

Item, from the same [i.e. Lateran council]244 Alexander to I, cardinal-priest of the Basilica of the Twelve Apostles Lucius III to the bishop of Tours The same to the dean of Reims The same to the bishop of Lucca The same to the archbishop of Reims Alexander to the archbishop of Susa To the bishop of Worcester and the abbot of Pentney From the Lateran council Alexander to the archbishop of York and the abbot of St Luke’s From the Council of Tours From the same From the Lateran council Alexander to the abbot of Stratford Alexander at the Council of Tours The same to the bishop of Worcester The same to the archbishop of Canterbury The same to the bishop of Exeter The same to the archbishop of Canterbury From the Council of Tours From the Council of Tours

3 Lat. c. 2 WH 818

4.3 4.4 4.5 4.6 4.7 4.8 4.9 4.10 4.11 4.12 4.13 4.14 4.15 4.16 4.17 4.18 4.19 4.20 4.21

WH 645 WH 50 WH 379 WH 583a WH 784 3 Lat. c. 7 WH 235 Tours c. 6 WH 377 3 Lat. c. 10 WH 173 Tours c. 1 WH 516 WH 55 WH 46 WH 615 Tours c. 5 Tours c. 7

It is not universally true, but the contrast with the other collections is stark. There, papal letters are freely intermingled with conciliar decrees. In Brugensis title 4 in particular, three different canons of Lateran III appear as well as four canons from Tours in 1163, all separated by letters from a variety of popes including Alexander III and Lucius III. There are many inaccuracies, and letters were not necessarily sent by the pope named to the bishop named. In Brugensis, a decretal is attributed to the 1163 Council of Tours (WH 377 as 4.12) while WH 55 was sent by Alexander to the bishop 243 244

Die Canones-Sammlungen, pp. 141–2; title from Kuttner, Index titulorum, p. 234. I.e. 3 Lateran, as the inscription refers back to 3.2.

227

Use of the Canons, ca. 1179–ca. 1191 Table 5.4 Francofurtana title 23, Ne prelati ecclesias gravent, and the inscriptions according to Landau and Drossbach245 Frcf.

Inscription

WH

23.1 23.2

Alexander to the archbishop of Canterbury Alexander to the regular canons and monks of the archbishop of York The same to the same From the Lateran council Alexander The same to the bishop of Winchester From the Lateran council Gregory Alexander to the bishop of Veglia

WH 615 WH 102

23.3 23.4 23.5 23.6 23.7 23.8 23.9

WH 702 3 Lat. c. 4 WH 649 WH 649 3 Lat. c. 7 JE 1112 WH 310

Table 5.5 Francofurtana title 29, Ne novi census ecclesiis imponantur, and the inscriptions according to Landau and Drossbach246 Frcf.

Inscription

WH

29.1 29.2 29.3 29.4 29.5 29.6

Alexander Lateran council Alexander to the bishop of Le Mans [None given] [None given] [None given]

WH 649 3 Lat. c. 7 WH 1036 WH 224 WH 99 WH 102

of Winchester, not the archbishop of Canterbury.247 Overall, the critical point is that the provenance of a chapter as perceived by the compiler of the collection does not appear to have affected the ordering of the canons in Brugensis and Francofurtana while it did inform the sequences in both the Breviarium and consequently in the Liber Extra. Additional complications are raised by the Parisiensis secunda collection.248 It includes five canons from Tours in 1163, but none is 245 247

248

Die Collectio Francofurtana, pp. 178–83. 246 Die Collectio Francofurtana, pp. 202–5. WH 55: JL 14158 = 1 Comp. 3.33.19; WH 377: JL 14172 = X 5.3.16, X 3.39.12 (complete in Brug.). Compiled ca. 1177–9: Duggan, ‘Decretal collections’, pp. 270–1; Pennington, ‘Decretal collections, 1190–1234’, p. 296.

228

The 1179 Decrees ‘in the hands of the canonists’ identified as a conciliar canon, a circumstance reminiscent of the way in which Innocent II’s Lateran decrees are employed in Gratian.249 They are referred to as ‘decrees’ and incorporated within the titles in the same way as the 1179 canons are incorporated into Brugensis and Francofurtana, with seemingly little care for the canons’ conciliar nature. For example, 2 Par. 56.11 is c. 2.2 from Tours. It followed letters from Gelasius I, Adrian IV, Alexander III, Paschal II, and Gregory I, and preceded further letters of Alexander III.250 Only a single manuscript survives of Parisiensis II, making it difficult to know how it was composed and whether individual chapters represent later interpolations. Nevertheless, it appears that in the late 1170s the compiler of Parisiensis II did not distinguish between conciliar canons and papal decrees. Since such a distinction was therefore a product of the 1180s, it is tempting to suggest that the appearance and circulation of the 1179 canons helped mould canonists’ ideas about the status of conciliar decrees, or at the very least presented them with a problem that required solving. The evidence from the 1179 canons further suggests that more attention was paid to the authority of conciliar decrees in the Breviarium than in any other contemporary collection. It is not a hard and fast rule, yet it also suggests that by the late 1180s, the role of conciliar canons in the ius novum was beginning to solidify. A trait shared by Francofurtana, Brugensis, and Rotomagensis I, which also seem not to deliberately order the canons, but not by the Breviarium, however, is the location of their compilation. Bernard was working, as far as we know, in northern Italy; the other three collections were all compiled in northern France. This demonstrates a further distinction between the approach taken by canonists in these two areas which emphasises the transmontane canonists’ easy reception of new or different genres of text. The French school of canonists was characterised by André Gouron as unusual for receiving both the Decretum and the assorted books of the Corpus Iuris Civilis at around the same time, while England was the origin of the earliest decretal collections.251 North of the Alps, therefore, there seems to have been a greater propensity among canonists to accept the authority of conciliar canons and papal decretals as equal. 249 250 251

See Brett and Somerville, ‘Transmission of the councils’, p. 243. 2 Par. 56, see Die Canones-Sammlungen, pp. 41–2; Paris, BnF, lat. 1566, fols 36v–40v. A. Gouron, ‘Canon law in Parisian circles before Stephen of Tournai’s Summa’, Proceedings San Diego, pp. 497–503 at 502–3.

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Use of the Canons, ca. 1179–ca. 1191 Editorial Selection As well as their incorporation into the systematic collections, the 1179 canons were subject to editorial selection in two forms. In at least three short collections, individual canons from the 1179 council were incorporated into thematic selections of material. In his analysis of Tanner, Holtzmann characterised the material on pp. 591–2 as a selection from decretals of Innocent III, following the Tanner catalogue.252 However, it appears to be a selection of excerpts from mid- or late twelfth-century conciliar canons and decretals that has thus escaped analysis. Amongst these are a fragment of c. 2 of Eugenius III’s 1148 Council of Reims and c. 11.2 of the 1179 council.253 A thirteenth-century hand in BL, Add. 24659 includes c. 10, Monachi non pretio, in a short list of legal authorities that also includes c. 2 of the 1163 council at Tours.254 In the flyleaves to a twelfth-century Panormia now at Vic, c. 14.3 of the 1179 council was included as an authority concerning tithe privileges, following WH 777, WH 470, and WH 895.255 These represent only three examples, but there are likely to be more such repetitions in the short thematic collections that have rarely been analysed. They demonstrate the interpolation of the 1179 canons into specific collections alongside decretals, giving further support to the suggestion that the canons were incorporated into thematic groups of canonical material and providing evidence for the use of the canons and decretals alongside each other. A far more illuminating example of editorial selection is found in the removal of excess information. Raymond of Peñafort’s excision of nonrelevant material from the decretals he included in the Liber Extra is one of his enduring editorial achievements. He also removed additional material from the 1179 canons. Whenever he knowingly omitted clauses, he gave the incipit of the canon from his source (apparently the Breviarium), followed by et infra. In the case of the 1179 canons, for example, he removed most of c. 27, ending it at Christianos accipiat sepulturam.256 Raymond’s work is mirrored elsewhere, and two copies of the 1179 canons demonstrate such incisions. One falls in the Claudiana collection, noted by Holtzmann to represent ‘an original revision’, and described by 252

253

254 255

256

W. Holtzmann, ‘Die Dekretalensammlungen des 12. Jahrhunderts: 1. Die Sammlung Tanner’, in Festschrift zur Feier des 200jährigen Bestehens der Akademie der Wissenschaften in Göttingen, Phil.-hist. Kl. (1951), p. 105; the Bodleian Library’s Tanner Quarto catalogue describes it as Leges sive epistolae decretales Innocentii III. aliorumque. Reims (1148) c. 2 = Oxford, Bodleian Library, Tanner 8, p. 592; 3 Lat. c. 11.2 = Oxford, Bodleian Library, Tanner 8, p. 592. 3 Lat. c. 10 = London, BL, Add. 24659, fol. 43v. 3 Lat. c. 14.3 = Vic, Archivio Capitular 145, fol. ir (reference from Martin Brett); WH 777: JL 14015 = 1 Comp. 3.26.1; WH 470: JL 14117 = X 3.30.10; WH 895: JL 14173 = 1 Comp. 3.26.12. Florence, Biblioteca Nazionale Centrale, Pal. 157, fol. 154ra.

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The 1179 Decrees ‘in the hands of the canonists’ the Cheneys as ‘peculiar in form, and possibly derive[d] from drafts or agenda’.257 Confusingly, twenty-three rubrics are given but accompanied by red Roman numerals counting from i to xxviii, yet the text corresponds to only nineteen of the canons.258 Omitted are cc. 2, 8, 9, 14, 15, 17, 19, and 20. Of those that are included, only nine are whole beneath the relevant rubric; in the remainder, imprecise or superfluous sections are missing. Only a fragment of c. 27 remains, comprising nine lines that compare the opponents of heresy to pilgrims to Jerusalem and the papal protection for their goods and persons, while the initial narrative of c. 23 was removed.259 In c. 11, the prohibition of sins ‘against nature’ has been removed; c. 14, noted above for its imprecision, is represented by a single sentence tacked on to c. 13.260 Rather than the canons representing drafts or agenda, therefore, it seems that only their legally relevant sections have been selected for inclusion in the collection. A similar observation can be made for the canons in Berlin, SPRK Savigny 3. There, however, the canons are dealt with in a far more ruthless fashion. Savigny 3 is mostly a copy of the pre-Gratian Collectio 13 librorum, itself a variant of the collection of Anselm of Lucca, to which the canons are appended.261 Savigny 3 lacks only c. 17 from the common stock, but those canons that appear in the manuscript are far from complete. Twenty-three are shortened; although they are numbered 1–26, the numbering is not consistent with the canons as we know them. Canon 11, Clerici in sacris ordinibus, is split into three sections, while Quoniam in ecclesia Dei (c. 18) is the second section of a canon that begins with c. 23, Cum dicat Apostolus. Canons 1, 3, 4, 6, 7, 9, 16, 19, 20, 23, 25, and 27 all omit sections from the opening passage of the canon that serves the same purpose as a decretal arenga or narratio; cc. 4, 6, and 7 are also missing later passages. Canons 8, 10, 11, 12, 14.2, 18, 24, and 26 are all confused: clauses corresponding to information that may have been considered unnecessary or superfluous are missing at various intervals. Reprehensibilis valde, c. 6 of the 1179 council, is one example of this: all 257

258 259 260 261

Holtzmann-Cheney, p. 132 n. 2. Duggan suggested half the material was taken from an archetype compiled before 1182; while the canons fall in this section, they are not incorporated in Bridlingtonensis, Claudiana’s sole surviving relation. His only comment on the canons was their appearance as nos. 1 to 28 of chapter 84: Duggan, Twelfth-Century Decretal Collections, pp. 86 n. 3, 91. London, BL, Cotton Claudius A.iv, fols 204vb–206vb. London, BL, Cotton Claudius A.iv, fol. 204vb; 206va–b. London, BL, Cotton Claudius A.iv, fol. 206va–b. Berlin, SPRK, Savigny 3, fols 178ra–181vb; L. Fowler-Magerl, Clavis Canonum: Selected Canon Law Collections before 1140, MGH, Hilfsmittel, 21 (Hanover, 2005), pp. 206–7; L. Kéry, Canonical Collections of the Early Middle Ages (ca. 400–1140). A Bibliographical Guide to the Manuscripts and Literature (Washington, DC, 1999), p. 279. See Appendix below.

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Use of the Canons, ca. 1179–ca. 1191 narrative has been removed.262 It reads prelati sine canonica – competentem illi recompensationem faciat expensarum and then precipue in locis – sua fuerit eis iniunctum, missing most of the opening of the canon as well as the clause ‘in this way, at least by fear, a person may be deterred from lightly making an appeal to the injury of another’.263 With the narrative removed, only the regulations contained in the canons are preserved. Despite superficial similarities, Claudiana, Savigny 3 and the Liber Extra represent three different traditions in which excess material has been removed. Each version contains phrases absent from the others. Raymond appears to have worked from an earlier decretal collection; it seems likely that that collection was the Breviarium.264 Consequently, where he has removed material, the canon begins with the incipit. As an example, c. 23 in the Liber Extra starts Cum dicat Apostolus et infra. Constituimus. Neither Claudiana nor Savigny 3 includes the canon’s incipit.265 Raymond cannot, therefore, have taken the shortened canons from either manuscript. While Savigny 3 excerpts a limited selection from the same canon, Claudiana only removed a section from the very beginning of the canon, and so cannot be a descendent of the Berlin manuscript.266 In turn, Savigny 3 includes a large section of c. 27, beginning In Gasconia Albigesio et partibus Tolosanis et aliis locis, while Claudiana only includes a fragment from later on, meaning that Savigny 3 cannot be copied from Claudiana.267 What we have, therefore, are two anonymous canonists and Raymond of Peñafort, all three of whom felt able to prune non-legally relevant matter from a set of conciliar canons while preserving purely the canons’ sanctions. The presence of three separate clerics who felt able to edit the conciliar canons shows that the canons were not universally perceived as unique and unalterable authorities. In all three cases, their principal tenets were incorporated and their legal relevance streamlined, but in at least two cases local clerics removed material from the canons. Decretals were treated in a similar fashion, and to compare the two suggests that some canonists in the later twelfth century viewed conciliar canons and decretals in the same manner: as a group of precepts, from which the legally important information could be extracted. 262 263 264

265 266 267

Berlin, SPRK, Savigny 3, fol. 178ra–b. 3 Lat. c. 6 = COD3, p. 214, ll. 15–27, and 29–34, COGD, 2.131–2. C. Lefebvre, ‘Alexandre III et des décrétales insérées dans les “Compilationes Antiquae” ou recemment edités’, in F. Liotta (ed.), Miscellanea Rolando Bandinelli: Papa Alessandro III (Siena, 1986), pp. 291–300 at 299–300. Florence, Biblioteca Nazionale Centrale, Pal. 157, fol. 130va. London, BL, Cotton Claudius A.iv, fol. 206va–b. Berlin, SPRK, Savigny 3, fol. 181ra; London, BL, Cotton Claudius A.iv, fol. 204vb.

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The 1179 Decrees ‘in the hands of the canonists’ Outside the Decretal Collections The decretal collections thus imply that the canons did not automatically enter the contemporary legal consciousness. They were certainly used en masse, but in some circumstances their acceptance was gradual, and even then they were not universally treated as absolute authorities as a result of their conciliar status. While the picture beyond these collections remains hazier, similar elements can be detected where the canons are included in glosses or mentioned in summae or other canonical works. The transmontane summae Permissio quedam268 and Reverentia sacrorum canonum, for example, both contain references to the 1179 Lateran Council,269 and they are found in many canonical quaestiones as well as in the glosses that form the apparatus Ordinaturus Magister.270 One of the first mentions of the 1179 council in a canonical work was a comment in Sicard of Cremona’s Summa on Gratian. Both manuscripts of Sicard now in England contain the same reference.271 Sicard references the canon in an interesting way. Rather than referring to Lateran III, towards the end of his commentary to C.10 q.3 he speaks of a ‘new constitution’ by which archbishops, bishops, cardinals, archdeacons, and deacons were limited to 40–50, 20–30, 20–25, 5–7, and 2 horses respectively.272 This can only be a reference to c. 4 of the 1179 council, although neither Alexander III nor the conciliar setting of the decree are mentioned. Sicard was probably writing between 1179 and 1181. A known transmontane canonist, he became bishop of Cremona in 1185.273 Since he does not make use of a standard citation style, it may be that Sicard was writing before those styles were developed. Simon of Bisignano’s work is, as has already been debated, more complicated. In his summa, the council is cited once; since that reference does not appear in the oldest manuscripts, McLaughlin conjectured that it 268

269

270

271 272

273

Repert., pp. 192–4. My thanks to Professor Tatsushi Genka, who is currently compiling an edition of this summa, for this observation. Repert., pp. 194–5. Once again, I owe this reference to the current editor of this summa, Professor John Wei. Gérard Fransen noted references to the canons in the Quaestiones Mediolanenses, the Quaestiones Barcinonenses, the Quaestiones Cassinenses I, and in the Glosa Urgellensis: Fransen, ‘Les canonistes’, pp. 37–8; Gérard Fransen, ‘Glosa Urgellensis’, BMCL, 21 (1991), 11–24 at 16. On Ordinaturus Magister, see e.g. Hereford, Cathedral and Chapter Library, P.VII.3, fol. 55vb, at D.85 c.1. London, BL, Add. 18367, fol. 36vb; Oxford, Corpus Christi College 154, fol. 34ra. Oxford, Corpus Christi College 154, fol. 34ra: Hiis autem euectionis, noua constitutione taxatur, ut archiepiscopi xl uel l, episcopi xx. uel xxx, cardinales xx uel xxv, archidiaconi v uel vii, decani duobus sint equis contenti. P. Landau, ‘Simon von Bisignano, Sikard von Cremona und die Mainzer Kanonistik der Barbarossazeit: Zur Biographie des Simon von Bisignano und zur Forschungsgeschichte’, BMCL, 28 (2008), 119–44 at 139 n. 12.

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Use of the Canons, ca. 1179–ca. 1191 was a later addition, and there is no reason to doubt his conclusion.274 The most recent edition of Simon’s Summa has thus omitted all mention of the 1179 canons from his extravagantes. Pier Aimone, the editor, also advanced the theory that Simon had access to a collection close in content to the either the Italian group or part of the Dunelmensis collection found in Durham C.III.1.275 The links between copies of the canons in the Italian group of collections suggest that they formed part of at least one strand of the family, to which Simon may have had access.276 Weigand noted three mentions of the council in glosses he attributed to Simon. Two are found only in a manuscript from Zwettl, while one is also in Berlin Phil. 1742.277 In the gloss common to both manuscripts, the conciliar canon is cited as in extravaganti Cum in cunctis; at one point, Lateran III is cited as in extrau. Judei in Zw, but the citation is lacking in other manuscripts. In the third gloss, also found only in Zw, the council is referred to as infra in concilio Romano, suggesting that the text was recognised as a conciliar canon, unlike the other two references, while also suggesting that the comment was initially written in the margin of a manuscript that also contained the canons.278 If these glosses were written by Simon – and there is nothing to say that they were not adapted by later canonists who knew of the 1179 canons – then the most obvious answer is that, like Rufinus, Simon continued to teach after the appearance of his summa and thus employed the 1179 canons, albeit through terms of reference that changed over time. The citations employed for the canons varied elsewhere as well. The Glosa Urgellensis referred to the 1179 canons in multiple different ways, including ex. in lateran. con., in con. lat., and extrauag. c.i. in extra latran con.279 References to the council in gloss layers that also contain the Ordinaturus Magister apparatus demonstrate some confusion over whether the canons belonged to a council or not. Some simply use extra or its equivalents, while others specify that a decree was from either a ‘Roman’ or a ‘Lateran’ council. Alexander is mentioned several times. Erlangen, Universitätsbibliothek 342 refers to the conciliar canons mostly as 274

275

276 277

278

279

3 Lat. c. 12, cited at C.12 q.1 c.29. See T. McLaughlin, ‘The Extravagantes in the Summa of Simon of Bisignano’, Mediaeval Studies, 20 (1958), 167–76 at 169. For the discussion, see pp. 99–100 above. P. V. Aimone-Braida, ‘Some remarks on a critical edition of the Summa of Simon of Bisignano’, Proceedings Washington, pp. 191–206 at 199–200. See p. 162 above. Gloss to D.23 c.1 v. disponendi at J. Juncker, ‘Die Summa des Simon von Bisignano und seine Glossen’, ZRG Kan. Abt., 15 (1926), 326–500 at 403; again, there is a connection with the Italian family mentioned above. R. Weigand, ‘Die Glossen des Simon von Bisignano’, AKKR, 161 (1992), 362–95, 81 at p. 378, 42 at p. 371, 76 at p. 377. Fransen, ‘Glosa Urgellensis’, p. 16.

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The 1179 Decrees ‘in the hands of the canonists’ extravagantes without reference to a council.280 Canon 8, for example, is I. extra nulla ecclesiastica.281 At D.47 c.4, however, c. 16 is referred to as ex co R. cum in cunctis.282 Differences exist elsewhere too. In Munich, clm. 10244, c. 1 and c. 6 were both cited at D.23 c.1, but in different fashions, with c. 1 referred to as Concilium romani Licet and c. 6 as Extra cum in cunctis.283 Within the myriad of references, the canon was also used to argue against Gratian’s conclusions in various gloss layers. In Clm 10244 c. 6 was a contra argument at D.74 c. 5, Episcoporum etiam and D.74 c.6, Quorundam ad nos relatione.284 The lack of consistency is extensive, across multiple manuscripts and individual glosses. In a marginal gloss attributed to Bazianus, found at C.10 q.3 c.10 v. occasionem in Autun, BM 80a (100), c. 4 of the 1179 council is cited as ut extra Cum apostolus.285 Combined, this evidence shows that there was no standardised citation method for the canons in the 1180s, which may suggest that references to the decrees were added gradually during the compilation of multiple gloss layers, or from different sources. This demonstrates, moreover, the different ways in which the canons were perceived. For some canonists, the canons were extravagantes, contained in the collections of extraneous material that ‘wandered outside’ Gratian and no different from the papal letters that constituted the bulk of such material; for others, they were conciliar canons, implicitly distinct and possessing a different authority. It was not until the mid-1180s that the 1179 canons were incorporated wholly into the canonists’ commentaries. Simon and Sicard used the canons as relatively new texts, and in Simon’s case sparingly if at all. Huguccio, in contrast, used the canons more extensively, citing them five times in the Treatise on Laws alone, and consistently referring to them canons of ‘the Roman council’.286 A bridge between Simon and 280

281

282 283

284 285

286

To give some examples, c. 1 is mentioned in the gloss to D.23 c.1, as is c. 16; c. 12 is referred to at C.15 q.2 c.1, while c. 18 is in the apparatus at D.37 c.12: Erlangen, Universitätsbibliothek 342, Ordinaturus Magister to D.23 c.1, v. cunctis, at fol. 25vb; Ordinaturus Magister to D.23 c1, v. et disponendi, at fol. 26ra; Ordinaturus Magister to C.15 q.2 c.1(un), v. secularium, at fol. 161rb; Ordinaturus Magister to D.37 c.12 at fol. 38ra. Ordinaturus Magister to D.50 c.11 v. ultra tres menses: Erlangen, Universitätsbibliothek 342, fol. 48ra. Erlangen, Universitätsbibliothek 342, Ordinaturus Magister to D.47 c.4 v. sensum quo at fol. 45ra. Canon 1 is cited at Munich, BSB, clm 10244, fol. 11vb: D.23 c.1 v. deponatur; canon 6 at D.23 c.1 v. et disponendi. Munich, BSB, clm 10244, fol. 38ra. R. Weigand, Die Glossen zum Dekret Gratians, Studia Gratiana, 25–6 (Rome, 1991), p. 679: Scilicet inhonestam. Si enim esset honesta occasio, puta quia pro negocio sue ecclesie debet uisitare limina apostolica, caritatiue preter cathedraticum a clericis suis posset exigere episcopus ut extra Cum apostolus ea temperamenti equitate seruata ut sibi solatium magnum non tribuat et cui aufert grauia dampna non infligat ut infra C.12 q. ii Bone rei [c. 74]. b. W. Müller, Huguccio: The Life, Works and Thought of a Twelfth-Century Jurist (Washington, DC, 1994), pp. 153–4; e.g. Huguccio, Summa to D.8 c.5, v. non dixit, at 1.139 [= in extra, non satis i.e.

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Use of the Canons, ca. 1179–ca. 1191 Huguccio is provided by the Anglo-Norman school of canonists. Both Master Honorius and the Summa Lipsiensis used the 1179 canons. At D.60 pr., the Summa Lipsiensis cites c. 3 concerning the appointment of ecclesiastical personnel to minor orders. According to the commentary, 1179 c. 3 and D.60 c.3 supported Gratian’s solution to the problem of appointments to minor orders, since ‘in these it is said that one elected to a minor order ought to be deprived of the honour if he acts unbecomingly after ordination’.287 At another point in the summa, c. 24 also provides support for the author’s, and Gratian’s, conclusion: ‘similarly, the Lateran council subjects to servitude those who give arms to the Saracens, as in its canon Ita quorundam’.288 Nevertheless, the author’s accuracy occasionally leaves much to be desired. Twice the Summa Lipsiensis cites c. 4, Cum apostolus se ac suos, as prohibiting clerical hunting when the canon in fact forbids bishops on visitation to be accompanied by hunting birds and dogs. Although the difference between the two is slight, it still exists.289 At D.34 c.1, v. venatorem non legimus, the author states that hunting was prohibited ‘in the New and Old Testaments, as explained at D.86 c. In scripturam. Note that clerics are forbidden to hunt, as here and in the Lateran council Cum Apostolus’.290 The same proscription of clerical hunting is noted at D.86 c.8.291 This nuance could be the result of clumsiness, but equally it could demonstrate the compiler nuancing the canon for his own purposes. The Summa Lipsiensis twice used a canon of the 1179 council as the critical authority in a discussion. At D.37 c.12, it discussed whether a student may possess a benefice while studying. The author demonstrated the depth of the debate, and potentially also a level of personal interest in his account of the difficulties. Canon 18, Quoniam in ecclesia Dei, is the final authority cited and thus drew the debate to a conclusion consistent with the canon’s stated intention to provide a benefice for the magister scolarum.292 At D.70 c.2, however, the discussion is much more

287

288

289 290

291 292

Tours c. 6]; D.8 c.2, non congruens at 1.135: et in concilio romano, Cum in cunctis, citing 3 Lat. c. 16; Huguccio, Summa to D.10 c.1, v. mutabilitatem, at 1.162, citing 3 Lat. c. 17; Müller, Huguccio, p. 172, v. Treugas a quarta. Summa Lipsiensis to D.60 pr., at 1.279: per illud c. Innouamus et per capitulum Lat. conc. Cum in cunctis. In hiis dicitur quod potest eligi in minoribus ordinibus, set si post ordinari contempserit, honore suscepto priuari debet. Summa Lipsiensis to D.32 c.10, at 1.129: Similiter et concilium Lateranense seruituti subicit eos qui ad Sarracenos arma portant, ut in illo c. Ita quorundam. See pp. 112–14 above. Summa Lipsiensis to D.34 c.1 v. venatorem non legimus, at 1.136: in ueteri uel nouo testamento, et ita exponantur in lxxxvi. In scripturis. Et nota uenationem clericis interdictam, ut hic et in conc. Lat. Cum Apostolus. Summa Lipsiensis to D.86 c.8 v. Qui venatoribus, at 1.361. Summa Lipsiensis to D.37 c.12, at 1.154–5.

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The 1179 Decrees ‘in the hands of the canonists’ intensive. Can a cleric possess more than one church? Yes, if a church is very poor (defined as possessing fewer than ten serfs), then he may possess more than one. Another reckoning was by income. If a cleric had an income of twenty marks, then he could not take another benefice. No more than one church could be held without the consent of the bishop, but also, by custom, without the consent of the pope too. This consent does not seem to be present ‘since at the Lateran council it was restated that no one should have two [churches], and the same is prohibited today through decretal letters’.293 Yet the author concludes that it is permitted for a cleric to possess more than one church, in no small part as a result of papal nepotism: ‘and it seems that all can freely hold two [churches] because, as I said, the implied consent of the pope seems to derogate from this statute, since every day the popes ask on behalf of their family, and write to many bishops, asking them to assign incomes’.294 When weighing the authorities, therefore, recent papal practice overruled the conciliar canon. In all, across the Summa Lipsiensis’ commentary on the Distinctiones, the 1179 Lateran canons are cited as authorities, misinterpreted, and even overruled. The author of the Summa accepts the canons’ authority automatically if implicitly, but when presented with papal actions that contradict the canon, he chose to attribute greater authority to the pope than to the canon of a general council. Master Honorius did not cite c. 4 of the canons, but he did use others. The Summa Lipsiensis provided a formal source for his work.295 In comparison, however, the summa of Honorius used fewer canons less frequently, and referred to them sometimes as in extra and sometimes as in concilio.296 In his commentary to Part One, Honorius used ten canons a total of twenty-seven times, while the Summa Lipsiensis used fifteen canons a total of thirty-five times in the same text. Where the Summa Lipsiensis misinterpreted the 1179 canons or, as at D.70 c.2, queried the authority of the canon, however, Honorius did not follow.297 Unlike the Summa Lipsiensis, he did cite c. 5 in the prologue to D.70 alongside the discussion of pluralism.298 A further interesting point is Honorius’ use of 293

294

295 296

297 298

Summa Lipsiensis to D.70 c.2, v. in duabus at 1.314: Set hoc non uidetur: tum quia in conc. Lat. renouatum est ne quis duas habeat et cottidie per decretales epistolas idem prohibetur. Summa Lipsiensis to D.70 c.2, v. in duabus at 1.314: Et uidetur quod omnes licite duas habere possunt, quia ut dixi tacitus consensus summi pontificis uidetur huic statuto derogare, cum cottidie pero nepotibus suis rogant summi pontifices et ad plures scribunt episcopos pro redditibus eis assignandis, ut fecit Alexander III. pro nepote suo et Lucius III pro suo. Honorius, Summa, 2.xxxiii–xxxiv. For examples of the latter, see Honorius, Summa to D.25 c.1 at 1.86 referring to c. 3: in extra ex Romano concilio Cum in cunctis; Honorius, Summa to D.87 pr. at 1.244 citing 3 Lat. c. 12, referring to ut in extra. Romano concilio Clerici in. Honorius, Summa to D.70 c.2, at 1.210. Honorius, Summa to D.70 pr., at 1.208: ut in extra. ex Romano concilio Episcopus si.

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Use of the Canons, ca. 1179–ca. 1191 c. 2 of Tours, Non satis, twice, both times as an extravagans.299 He obviously preferred it to c. 25 of the 1179 council, which promulgated a similar yet wider condemnation of the same crime, usury, and even used the latter decree as a contra argument countermanding Tours at one point.300 As discussed earlier, for all that the late twelfth-century canonists are often portrayed as belonging to a uniform school of thought, each possessed and elaborated upon his own opinions, but there is again the suggestion that the decrees of the 1179 council did not automatically serve as authorities purely because they were the decrees of a general council. Moreover, it may be that while their authority as conciliar canons was accepted, the years immediately following the canons’ promulgation saw confusion as to their specific legal role that coincided with the emergence of the ius novum. conclusions Particularly in the first decade after their promulgation, the use of the 1179 canons varied widely. While the papal use of the 1179 canons was remarkably consistent, it took time for the canons to filter into legal use outside of those connected with the papal curia, as demonstrated by the diverse ways in which the canonists referred to the conciliar canons. Were they extravagantes? Were they conciliar canons? Although there is not always a clear division between the two, referring to the 1179 canons as extravagantes alone removes any distinction between their authority and that of the decretals. In reality, each canonist had his own opinion, and referred to the canons in a different way based on that and on his source material. Nevertheless, greater consistency within the references does seem to emerge from the late 1180s on. Secondly, the examination of episcopal and papal use of the canons has demonstrated that the canons were broadly conceived as precepts or guidelines rather than set rules. In part, this was a result of the decentralised system of ecclesiastical government combined with the lack of any means by which the papacy could enforce the conciliar canons, except through decretals. It also suggests that in their practical use, the canons had more in common with papal decretals; although decretals were mostly particular rather than general, they were treated in much the same manner.

299 300

Honorius, Summa to D.8 p.c.1, at 1.28, and then on its own at D.46 c.10, at 1.144. Honorius, Summa to D.8 d.p.c.1, at 1.28: Ab illo, Turonense concilium in extra. de usuris Plures, Lateran. contra Iudei.

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Conclusions From about 1190, however, there appears to have been a growing consensus over both the use and authority of the canons. By the late 1190s, the archbishop of Canterbury felt comfortable enough to repeat a number of the conciliar canons verbatim in his provincial council. At the same time, the example of Bernard of Pavia may be critical to understanding the change. Unlike the systematic collections of the 1180s, and even Parisiensis II, Bernard’s Breviarium appears to have attributed greater authority to conciliar canons than to decretal letters. Titles in his collection were organised roughly chronologically, rather than thematically or didactically. While it is tempting to think that the broader use of the 1179 canons in the decades following the Breviarium was a direct result of the collection’s influence, until the formal sources underpinning this later use are identified, there is insufficient evidence to arrive at any firm conclusion. If the increased use of the canons in the 1190s represents a broader influence than simply the Breviarium, then why did it happen? The answer, quite simply, has to be the schools, which link the papal curia and the episcopal familiae. Consequently, the 1179 canons stand as testament to the importance of the schools in the development of the ius novum. The schools did not all produce men who thought the same, but they did provide men who approached texts in the same fashion. The final point that should be drawn from this survey of how the canons of the 1179 council were employed is the novel nature of those that were consistently cited. They introduced principles which had not been adopted in the agenda of the reform papacy, or drew on tenets which had been expanded in the intervening period: the inclusion of archidiaconal exactions or the limitations on episcopal retinues on visitation, for example. Consequently, the 1179 canons testify to the development of that ‘new law’ in the fifty years following Gratian. They were accepted gradually and, through their use by magistri trained in the schools, were able to assume a practical legislative role that resulted in their repetition in local synods from the mid-1190s on. At the same time, the conciliar canons do not demonstrate the overwhelming papal superiority that accompanies most traditional interpretations of twelfth-century conciliar canons. They were different to decretals and possessed a different authority. But the striking feature of the 1179 canons is that they were treated in a very similar fashion. Claims that decretals were considered of equal authority to conciliar canons, because they were included in the same collections, are based on the presumption that conciliar canons held an elevated authority because of their general status. It is not impossible, however, that there 239

Use of the Canons, ca. 1179–ca. 1191 was little consensus among contemporaries of how to treat the canons of papal councils in practice. As a result, that presumption of equality can also be read in the opposite direction. Rather than raising decretals to the same level as conciliar decrees, at times both were treated with the same uncertainty.

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CONCLUSIONS

This study had two aims. The first was to investigate the composition of the twenty-seven canons of the Lateran Council of 1179, or Lateran III, and to try to understand how their ideas were formulated before the texts were drafted. The second was to trace their use and dissemination in the years immediately following the council in order to elucidate how contemporaries viewed the canons, and the uses made of their contents and texts. These two queries touch upon questions of power and authority and the ability of the Roman Church to legislate and rule during the twelfth century, as well as more specific considerations concerning the role of conciliar canons within contemporary legal thought. It seems prudent to first summarise the results of the two fundamental questions, before moving on to those broad issues. The canons of Alexander III’s Lateran Council were deeply embedded in the events of the years preceding its convocation. A number of appeals and consultationes sent to the curia during those years demonstrate that the ideas in the canons responded to issues of significant contemporary relevance. In some cases, such as clerical marriage or fornication and the prohibition of simony, Alexander’s letters were largely uniform and adhered to an approach that had developed under the papacy of the eleventh century. Given the council’s well-known reforming agenda, it should come as no surprise that the 1179 canons rehearsed these earlier strictures. Several, such as c. 11, expanded the contents of these earlier conciliar canons, reflecting contemporary problems and debates in both the schools and in local practice. A further example of such expansion can be found in c. 10, Monachi non pretio, while c. 27, Sicut ait beatus Leo, appears to have resulted directly from the legation of Peter of Pavia, Henry de Marcy, and their companions. In other cases, Alexander’s letters and the later conciliar canons restated a number of measures first put forward under Innocent II in the 1130s. Proscribing Christian burial for the tournament dead, for example, continued the approach initiated by Innocent. In this case, the renewal of a conciliar canon first 241

Conclusions promulgated less than fifty years earlier at Clermont in 1130 appears to have been a direct response to that canon’s omission from Gratian combined with its obvious contemporary relevance. Several canons from the 1179 council provide particularly interesting examples of curial engagement with ongoing debates. An obvious example here is c. 26, Iudaei siue saraceni. When discussing the relationship of Christian servants to their non-Christian masters, especially in the context of Christian wet nurses for Jewish children, the queries to Alexander addressed problems of long-standing significance in the Church that had been revived due to a combination of political, economic, and social changes that saw greater interaction with the Jewish and Islamic faiths. Canon 18, Quoniam in ecclesia Dei, provides a second example. Its consideration of the licentia docendi and cathedral schools demonstrates Alexander responding to several cases – from northern France as much as from Bologna – and suggests that the need for free education was considered pressing by the curia. One final ‘novel’ canon is Cum dicat apostolus, regulating the nascent leper colonies. While the need to separate – a more accurate term, perhaps, than segregate – lepers from society was widely accepted in custom, c. 23 of the 1179 council explicitly restated the Levitical law but combined that restatement with provision for a tithe privilege and the care of the lepers’ souls reflecting the development in contemporary papal approaches to leprosy and the perceived importance of pastoral care. The development of the novel and expanded canons, of obvious interest, is not always as clear-cut as in c. 23. Here the influence of the schools becomes explicit. Certain canonical questiones demonstrate that the problems informing the 1179 canons were debated as much in the schools of the late twelfth century as in episcopal households. What was the role of the Hospitallers and Templars? How could the new, often privileged, orders conform to the existing ecclesiastical hierarchy? More evidence is offered by those comments that emerged from debates within the schools, particularly when these comments demonstrate the growing importance of Roman law in contemporary canonistic works. Canon 1, Licet de vitanda, has long been recognised as containing juristic ideas. It is, intriguingly, not alone. Canon 8, Nulla ecclesiastica, prohibited the promise of benefices before they were vacant and was influenced more by Roman law than by canon law, a fact acknowledged in the canon itself when it refers to ‘the laws of the heathens’.1 Taken apart, these two canons imply the increasing use of 1

3 Lat. c. 8 = COD3, p. 215: Cum enim id etiam in ipsis gentilium legibus inveniatur prohibitum; COGD, 2.138.

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Conclusions Roman law in late twelfth-century canon law. Taken together, they may suggest a link between the Summa Coloniensis and the 1179 canons. Alone of the summae, it referred to both the two-thirds majority incorporated into c. 1 and the civilian codes that condemned promising benefices. Although these two links cannot demonstrate conclusively that the canons were drafted with an eye to the Summa Coloniensis, they certainly suggest that a cleric familiar with the work, its ideas or its sources played a role in the decrees’ composition. Overall, however, it is demonstrable that the 1179 conciliar canons were the result of the questions and debates occupying Latin Christendom in the years leading up to the council. As ecclesiastical law, they responded to the difficulties faced by numerous local and papal clerics over the course of Alexander’s pontificate, but with a particular relevance to problems encountered and communicated to the pope during the 1170s. The second aim of this study was to understand how the canons functioned as part of ecclesiastical government after their promulgation. The most obvious conclusion is that while the canons were promulgated by the council, any attempt to circulate a single version of their text was unsuccessful. It is uncertain whether Alexander even tried to publish the canons: while the Vallombrosan congregation in Florence, S. Marco 599 mentioned a mandate in passing, William of Tyre makes no mention of either such a command or a subsequent provincial council in the Levant and there is no surviving evidence of the immediate repromulgation of the decrees elsewhere. When the absence of any wholesale repetition of the conciliar canons is combined with their problematic dissemination across the manuscript tradition, it shows as conclusively as can be hoped that the 1179 canons were not disseminated across Christendom in a single, ‘official’ form and suggests that such an idea is profoundly unhelpful in understanding how and why they were transmitted. On balance, it seems that the canonists had the deepest impact on the canons’ diffusion. Decretal collections provided the canons with their broadest transmission, with well over a hundred twelfth- and early thirteenth-century copies of the Breviarium alone. The canons’ incorporation into a number of collections predating the Breviarium also helped to ensure their dissemination. But their form in these canonical manuscripts should not be seen as the ‘official’ or even the only version of the canons. Canonists had their own agenda, and could also only work from the texts in their possession. In the case of cc. 13 and 14.1, the appearance of both canons in a number of significant canonical manuscripts such as the Appendix tradition demonstrates how those manuscripts helped first generate and later perpetuate a confused tradition. These two canons are unlikely to have been promulgated at the same council, yet the fact that 243

Conclusions both were used in, first, the Breviarium and, later, the Liber Extra shows how they became part of the canons’ received text. Early in this book, the curious absence in Gratian of any mechanism for the dissemination of papal conciliar canons was commented on. The Magister tells us when councils are general, and when they are not. He tells us the seating plan for provincial councils, and points to the Council of Toledo when commanding diocesan bishops to repeat the canons of provincial synods within six months or face suspension.2 But nowhere do Gratian or his commentators prescribe mechanisms for disseminating the canons of papal councils. Most scholars have interpreted this lacuna by presuming that the canons must have been broadly disseminated because they were the canons of general councils. Here it has been suggested that the reception of papal conciliar canons was as much a part of their acceptance as their acclamation in the conciliar session. For many twelfthcentury clerics, the general councils of overarching authority were the councils of the distant past: Nicaea, Constantinople, Ephesus, and Chalcedon. Their pre-eminence had been determined by their reception, despite the circulation of a variety of manuscript versions of their canons. In the 1180s, the canonical collections, and particularly the decretal collections, ensured that the conciliar canons from 1179 were broadly received. The importance of the decretal collections is emphasised by English evidence showing the number of references to the canons rising from about a decade after their promulgation. The only surviving synodal decrees to replicate a significant proportion of the conciliar canons postdate the widespread use of the systematic collections and, although caution is required, it seems that the use of the 1179 decrees in the schools had the greatest impact on their adoption and use by local clerics. Before such initial conclusions can be consolidated, research on the canons’ use in, for example, Italy or France would be useful. The decretal collections, after all, have a peculiarly English flavour. For the present purposes, however, the suggestion that local bishops relied on the canons as found in decretal collections and not those transmitted by other means is beguiling. It inverts the argument that Lateran III engendered the decretal collections: it was not the council that ordered their compilation, but the collections that ensured the conciliar decrees’ dissemination. That said, both local clerics and even the papacy appear to have regarded the conciliar canons as broad, universal guidelines. The examples presented by cc. 8, 13, 14.1, and 23 all suggest that the canons were valuable precedents which could nevertheless be altered and adapted 2

Decretum, D.18, passim and esp. c. 18.

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Conclusions when they came to be used in real cases concerning real people and their real-life problems. That the decrees fell on deaf ears appears to have been anticipated in the curia, as demonstrated by WH 715, making the curious lack of a mechanism for the canons’ accurate dissemination all the more striking. A further critical point demonstrated by this study, therefore, is the flexibility inherent in later twelfth-century canon law. While one canonist would prune the 1179 canons of their excess non-legal verbiage,3 another would add those canons omitted from a systematic decretal collection as an appendix to his copy.4 This serves to support the arguments of many earlier scholars that, in the twelfth century, the ius novum was still new: it had yet to find its way. While the 1179 canons are a group of twenty-seven particularly interesting and important texts, they were not treated in the same way by every canonist. In turn, this suggests that more attention should be paid to the canons in canonical collections and in particular in the decretal collections. Since we have a relatively good idea of the texts of these canons, they may be helpful in elucidating the relationships between the decretal collections. But what of the big questions? Were the 1179 canons legislative? Do they represent the deliberate creation and enforcement of some papal agenda? How general was the general council called in 1179, and does it deserve its epithet Lateran III? And, critically, what was the relationship between the conciliar canons and papal decretals? The 1179 canons were as legislative a set of decrees as could have been promulgated in the specific legal circumstances of the later twelfth century. Enough care seems to have been taken over their drafting, both in terms of the language used and in the ideas and problems they addressed, to suggest that the decrees were compiled with the intention of providing general, rather than particular, precedents. Their intent alone does not provide proof that the canons were accepted as legislative texts, however, and since different copies of the canons ascribed their promulgation to Alexander III, to the Lateran council, or to a combination of the two, it seems that there was no one preconceived idea of what they represented. The lack of any recognisable mechanism for ensuring their promulgation also casts doubt on the conciliar canons’ position as part of a deliberately enforced papal ‘agenda’. While the ideas that underpinned their contents were surely representative of the broad tenets of papal thinking in the later twelfth century, the specifics of the canons – i.e. the legally precise punishments and criteria that differentiate the 1179 conciliar canons from the canons of earlier or later papal councils – were 3

See pp. 230–2 above.

4

See pp. 222–3 above.

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Conclusions responses to particular problems that had appeared either through local correspondence with the curia or through the discussions and arguments that occurred in the schools. When their situation as specific ideas is considered alongside the apparent curial insouciance concerning the canons’ dissemination, it appears increasingly unlikely that the 1179 canons were representative of a particular papal ‘agenda’ that Alexander had deliberately and determinedly imposed on Latin Christendom over the course of his pontificate. Instead, they were reactions to issues believed to be important and in need of resolution. The 1179 conciliar canons were, fundamentally, responsive texts that existed as part of a responsive papal government in the later twelfth century. The final two questions are, arguably, the most important. The history of the twelfth-century ecumenical and general councils is difficult to establish, but scholarly debate over the contemporary status of the 1123 and 1139 Lateran councils does not automatically mean that Alexander’s 1179 council was equally toothless. In fact, the citation of the 1179 conciliar decrees in the works of canonists from 1179 on demonstrates that in legal writings at least it had a significant impact. Eventually, its decrees would become part of the standard law of the Church. No one canon of 1179 had the constant impact of Innocent II’s Si quis suadente, for example, but the body of texts medieval clerics believed to have been promulgated at the council still represented law. At the same time, a constant, if implicit, presence in this study has been the 1163 council at Tours. This was also cited by twelfth-century popes and canonists, and included in a number of decretal collections including, ultimately, the Liber Extra. Yet few modern commentators have acknowledged that it was a general council. What is now necessary is a combined analysis of both of Alexander’s councils, for they seem to have been viewed by contemporaries as near equals in importance. What of the decretals? The later twelfth century was the time of the ius novum and the beginning of the age of decretals. What was the relationship between the conciliar canons promulgated by the council and the late twelfth-century decretals? The fundamental point here is that the canons were apparently different to decretals in the eyes of the papacy alone. Both popes and bishops referred to the 1163 and 1179 canons as authorities for their actions, even when those actions did not match the exact provisions of the canons. But Richard of Canterbury also referred to three decretals in his 1175 Westminster decrees; later, in 1200, Hubert Walter would do the same.5 Both men used decretals alongside other precedents in these canons, including, in Walter’s case, canons of the 1179 5

C. Cheney, Hubert Walter (London, 1967), p. 66; Councils & Synods, 1.1056.

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Conclusions council. Since both the decrees and the decretals provided bishops with precedents and authorities, therefore, it suggests that the bishops too viewed both in a relatively similar fashion. For the canonists, the conciliar canons were used in much the same manner as the decretals. At the same time, while an unknown number of letters have not survived, at least one Alexandrine conciliar canon, promulgated at Montpellier in 1162, has also disappeared, suggesting that the mere presence of conciliar authority was not enough to guarantee that conciliar canons would be received, and helpfully demonstrating that the canons of papal councils could also be lost. Consequently, it is interesting that Bernard of Pavia gave the 1179 canons some precedence in his Breviarium, while the compilers of the Francofurtana and Brugensis collections did not.6 The difference between these uses highlights an important point. When scholars speak of the twelfth-century papacy, there is a tendency to emphasise the close relationship between the canonists and the curia for the obvious reason that the canonists preserved so many papal decisions and records. When the ius novum was being compiled, however, such parallels should be drawn carefully, if at all. Each school of canonists had subtly different perspectives on the world and on the hierarchy of sources, and consequently a tendency to preserve certain texts at the expense of others. Overall, this study has demonstrated how the 1179 conciliar canons were used in the later twelfth century. Their eventual inclusion in the law books of the thirteenth century means that modern scholars have perceived the canons as widely accepted papal legislation from the outset. In fact, such a perception is misguided. Although the canons were intended to act as universal authorities, it was their reception that cemented their position as important conciliar decrees and their incorporation into canonical collections that established their position as legislation. They are thus representative of all the texts that constituted later twelfthcentury canon law: precise, complex precedents whose use was ultimately determined by their reception and exploitation beyond the papal curia. For twelfth-century canonical texts, intent and reception are thus two sides of the same coin. Both exist, but neither can openly affect the other – and there will always be just enough of a gap between them to mean that they never can. Just as Alexander III’s attempts to stop the use of certain decretals as precedents failed, so did any attempt he made to 6

Since there are only thirty-seven surviving conciliar decrees for Alexander’s pontificate, and well over 700 decretals, a statistical survey based on letters or canons now presumed lost would be unhelpful.

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Conclusions disseminate the conciliar canons promulgated in 1179 in a single, official form. Instead, their transmission relied fundamentally on prelates and canonists, and it was the influence of the latter that demonstrates most clearly how the 1179 canons emerged from the post-Gratian canon law to become deeply embedded in the nascent ius novum.

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APPENDIX: MANUSCRIPT LISTING OF THE 1179 CANONS

The following list contains all analyses and manuscripts consulted, alongside any information known about their provenance. Each tradition is identified by the title used in this book, underlined. The manuscripts given are those consulted; if the manuscript was not consulted, it is given alongside the analysis in square brackets. Where applicable, Herold’s reference is given, as well as the sigla he used to identify the manuscripts. An asterisk (*) denotes a manuscript where the 1179 canons are classed as ‘damaged’. non-canonical 1. Gervase of Canterbury, Chronica (G) = Gervase of Canterbury, Chronica, ed. William Stubbs, The Historical Works of Gervase of Canterbury, Rolls Series, 73 (2 vols, London, 1879–80), 1.206–13.1 One of the attempts at writing history by Gervase, a monk of Christ Church, Canterbury.2 2. Liber Censuum (- = absent from Herold) = Florence, Biblioteca Riccardiana 228, fols 320ra–325ra.3 A copy of the Liber Censuum in a thirteenth-century hand. The 1179 canons can be found amongst extraneous material, including letters of Gregory IX. 3. Rastatt 27 (-) = Karlsruhe, Badische Landesbibliothek, Rastatt 27, fol. 103r.4 A copy of Manegoldi ad Gebehardum liber, linked to Salzburg in the eleventh century. A necrology on fol. 103 suggests that the manuscript was at Blaubeuren at some point. 1 2 3

4

W. Herold, ‘Die Canones des 3. Laterankonzils’, unpublished PhD thesis (Bonn, 1952), pp. 20–1. A. Gransden, Historical Writing in England Vol. 1: c. 550–c. 1307, 2nd edn (London, 1996), pp. 263–8. Le Liber Censuum de l’Église Romaine, ed. P. Fabre (2 vols, Paris, 1905), 2.17–18, describes the text as ‘well known’ at 2.17; COD3, p. 209 incorrectly gives the manuscript as Florence, Riccardiana 288. G. Fransen, ‘Les canonistes et Latran III’, in J. Longère (ed.), Le troisième concile de Latran (1179): sa place dans l’histoire (Paris, 1982), pp. 33–40, at 38.

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Appendix Mostly written in a late twelfth- or early thirteenth-century hand. Contains an odd version of the 1179 conciliar canons, which seems to be purely the titles. The copy has a definite imperial slant, being the only one where any mention of the Treaty of Venice is made. 4. Rievaulx Cartulary (Ri) = London, BL, Cotton Julius D.i, fols 7r–18v.5 Twelfth-century cartulary of the Cistercian abbey of Rievaulx. Described by Jamroziak as ‘a practical tool, rather than a showpiece object’, the cartulary was well used; the canons are the first item.6 Twelfth-century script, and dated 1179–89 in the revised Medieval Cartularies of Great Britain and Ireland.7 5. *Reg.lat. 596. (-) = Vatican City, BAV, Reg.lat. 596, fols 6v–8v.8 Potentially late twelfth-century manuscript. Provenance unknown; later quires in the same manuscript are from Fleury, but Brett has argued that the first quire is Norman in origin.9 Contains copies of other Norman councils; the 1179 decrees are the final items in the first quire. 6. Reg.lat. 984 (-) = Vatican City, BAV, Reg.lat. 984, fols 2r–7v.10 A compendium codex; the canons are in the first quire. It appears to have been added to the remainder of the manuscript at a later date, and may have a western or central French provenance, as there are links to the abbey of St-Martial in Limoges. 7. Roger of Howden, Gesta (Bp) = Howden, Gesta, 1.222–38.11 Chronicle composed by Roger of Howden between ca. 1177 and ca. 1192.12 8. Roger of Howden, Chronica (Rh) = Howden, Chronica, 2.172–89.13 Chronicle composed by Roger of Howden from ca. 1192, based on material already used in his Gesta. 5 6

7

8 9

10 12

13

Herold, ‘Die Canones’, p. 21. E. Jamroziak, ‘How Rievaulx Abbey remembered its benefactors’, in E. Jamroziak and J. Burton (eds.), Religious and Laity in Western Europe: Interaction, Negotiation, and Power (Turnhout, 2006), p. 65. Medieval Cartularies of Great Britain and Ireland, ed. G. R. C. Davis, rev. C. Breay, J. Harrison, and D. M. Smith (London, 2010), # 811–12, pp. 162–3. COD3, p. 209. M. Brett, ‘A collection of Anglo-Norman Councils’, JEH, 26 (1975), 301–8 at 302; M. de Bouard, ‘Sur les origins de la Trève de Dieu en Normandie’, Annales de Normandie, 9 (1959), 169–89 at 180. On its potential links to Fleury, see Die Konzilsordines des Früh- und Hochmittelalters, ed. H. Schneider, MGH, Ordines de Celebrando Concilio (Hanover, 1996), 5, p. 244; M. Mostert, The Library of Fleury: A Provisional List of Manuscripts (Hilversum, 1989), pp. 272–3. COD3, p. 209. 11 Herold, ‘Die Canones’, p. 20. D. Corner, ‘The earliest surviving manuscript of Roger of Howden’s Chronica’, EHR, 98 (1983), 297–310; D. Corner, ‘The Gesta Regis Henrici Secundi and Chronica of Roger, parson of Howden’, Bulletin of the Institute for Historical Research, 56 (1983), 126–44, at 144. Herold, ‘Die Canones’, p. 20.

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Appendix 9. Roger of Wendover, Flores Historiarum (-) = Roger of Wendover, Liber qui dicitur Flores Historiarum ab anno Domini MXLIV annoque Henrici Anglorum regis secundi primo, ed. Henry G. Hewlett (3 vols, London, 1886–9), 1.118–20. Chronicle compiled in the early thirteenth century from twelfth-century sources, which provides a list of titles of the canons.14 10. S. Marco 599 (-) = Florence, BML, S. Marco 599, fols 49ra–55ra.15 A compendium of texts, including accounts of five congregations of the Vallombrosan order. The canons are the final item, but are followed by a number of blank folios. The hand appears to be late twelfth-century. 11. S. Marco 762 (-) = Florence, BML, S. Marco 762, fols 129ra–135vb.16 The canons are in a new quire that was originally the last in the manuscript: it is worn and damaged. Following the canons is an account of a synod held in Avignon. It was given to the Biblioteca Medicea Laurenziana when S. Marco was suppressed; the manuscript had previously been in the possession of Vespasiano da Bisticci.17 12. *Tarragona 92 (-) = Tarragona, Biblioteca Pública 92, fols 180r–186v. The final quire of a miscellany. Initially believed to be a copy of the Ivonian Panormia, this now seems unlikely.18 Most of the contents are non-legal. 13. William of Newburgh, Historia (W) = William of Newburgh, Historia, ed. Richard Howlett, Chronicles of the Reigns of Stephen, Henry II, and Richard I, Rolls Series (4 vols, London, 1884–90), 1.206–23.19 Chronicle composed by William, canon of Newburgh, that ends abruptly in 1198, possibly at his death.20 14

15 16 17

18

19 20

V. H. Galbraith, ‘Roger Wendover and Matthew Paris’, in his Kings and Chroniclers: Essays in English Medieval History (London, 1982), pp. 5–48 at 11–12, 15; R. Vaughan, Matthew Paris (Cambridge, 1979), pp. 22–4 remained non-committal; Gransden, Historical Writing c. 550–c. 1307, pp. 359–60. G. Fransen, ‘Latran III et les canonistes’, pp. 39–40. My thanks to Professor Martin Bertram for directing me to the manuscript. Florence, BML, S. Marco 762, fol. 1v: Hic libre est conuentus sancti Marci de flor. ordinis predicatorum, quem sibi donum Vespasianus philipi cuius florentinus librorum diligentissime inuestigatore. dedit aut illam mihi fy . . .. de flor. die xxi octobris 1490. L. Kéry, Canonical Collections of the Early Middle Ages (ca. 400–1140): A Bibliographical Guide to the Manuscripts and Literature (Washington, DC, 1999), p. 255; M. Brett, ‘Table of Panormia MSS’, at https://ivo-of-chartres.github.io/panormia/mslist.pdf (last accessed 1 September 2018). According to the catalogue, the manuscript contains a variety of noncanonical, mostly theological, works. Brett and Kéry used a reference made by G. Fransen, ‘Varia ex manuscriptis’, Traditio, 21 (1965), 515–20 at 517, where the Tarragona manuscript is included in a list of Ivonian works. I do not know of any reference before Fransen to the manuscript being Ivonian and his list has no recognisable order: the only reason the manuscripts are grouped together is the presence of canons from a variety of different councils, suggesting an error of transcription. Herold, ‘Die Canones’, p. 21. Gransden, Historical Writing in England Vol. 1, pp. 253–60.

251

Appendix legal compendia 14. *Rommersdorfer Briefbuch21 (Rb) = [Koblenz, Staatsarchiv 701 A vii n. 124, fols 129r–136v]; Herold, ‘Die Canones des 3. Laterankonzils’, Inauguraldissertation, Bonn (1952), p. 27. Collection of letters from various sources.22 15. Oriel 53 (O) = Oxford, Oriel College 53, fol. 355va–c. Herold used Oriel 53, but it is oddly absent from his manuscript list. A compendium beginning with sermons of Stephen Langton, its contents are legal from fol. 291ra with Innocent IV’s Novellae although other sections are in an earlier hand. The final item is the Summa In nomine Domini.23 The manuscript contains two pre-Breviarium decretal collections, the so-called Orielensis I (Bamberg ‘O’) and Orielensis II.24 Both are fragmentary. The canons are on fol. 355v, an unruled folio divided into three columns of different sizes. Folio 355 is the final in a six-folio quire also containing a number of civilian questiones and the Orielensis II collection. The early thirteenth-century date is the same for all three columns containing the canons, but a few addenda are present in the lower margin.

decretal collections where the canons are consecutive 16. Appendix Concilii Lateranensis (Ep) = [unknown manuscript], Concilia omnia, tam generalia quam particularia, ed. P. Crabbe, 2nd edn (2 vols, Cologne, 1551), 2.836–43.25 Editio Princeps of the 1179 canons, the manuscript of which has now been lost. From Crabbe, this passed into all the conciliar collections through until Mansi. 17. *Collectio Alcobacensis (Al) = Lisbon, BN, Alcobaça 144, fols 1v–8v.26 Stand-alone decretal collection of the primitive type. Posited by Charles Duggan to have strong links to England, while Holtzmann conjectured that the Dertusensis collection, on which Alcobacensis was dependent, was a ‘curial’ collection.27

21 22

23

24

25 27

Herold, ‘Die Canones’, pp. 18–19. Friedrich Kempf, ‘Das Rommersdorfer Briefbuch des 13. Jahrhunderts’, MIÖG, Erg. Band, 12.3 (1933), p. 502. On the canonical material, see Repert. pp. 199–205, 249–50, 295; Holtzmann-Cheney, pp. 127–31. Repert., p. 295; Holtzmann-Cheney, pp. 127–9. Orielensis I is a member of the ‘Bamberg’ family of collections; Orielensis II one of the Appendix group. Repert., pp. 290–1. 26 Repert., pp. 277–8; Holtzmann-Cheney, pp. 16–25. C. Duggan, ‘Decretals of Alexander III to England’, in F. Liotta (ed.), Miscellanea Rolando Bandinelli, Papa Alessandro III (Siena, 1986), pp. 88–9; Holtzmann-Cheney, p. 12.

252

Appendix 18. Collectio Ambrosiana (A) = Milan, Biblioteca capitolare di Sant’Ambrogio, M 54, fols 315va–319ra; Holtzmann-Cheney, p. 42.28 Primitive decretal collection in the form of an appendix to a copy of Gratian’s Decretum; the canons are the final chapters of the collection. Holtzmann believed it to be Italian and dated the collection to ca. 1200. There are now suggestions that the ‘Italian’ family, of which Ambrosiana is part, have links instead to northern France. 19. Collectio Bambergensis (Bb) = Bamberg, Staatsbibliothek, Can. 17, fols 43rb–47ra; Deeters, Die Bambergensisgruppe, pp. 315–23.29 Systematic collection of the ‘Bamberg’ group, dating to ca. 1185 and probably compiled in the vicinity of Tours.30 20. Collectio Berolinensis I (Be) = Berlin, Staatsbibliothek, Phil. 1742, fols 287r–289r; Juncker, ‘Die Collectio Berolinensis’, pp. 348–56.31 Primitive decretal collection of the ‘Italian’ family, appended to a glossed Decretum. The canons form the first section of the manuscript. Early thirteenthcentury hand. 21. Collectio Cantuariensis (Ca) = London, BL, Royal 10.B.iv, fols 62ra–65ra.32 The canons are the final chapter of the third of three collections compiled at different times but all in the late twelfth century. Although there is no element of Gratian in the manuscript, it is a legal compilation including the works of Peter of Blois the younger, amongst other things. The collection follows an ordo iudiciarius that ends with a number of texts directing the collection of precedents.33 22. Collectio Cassellana I (C1) = [Kassel, Landesbibliothek Jurid. 2º 15, fols 1r–(?)3v]; J. H. Böhmer, Corpus Iuris Canonici (2 vols, Magdeburg, 1747), Appendix 2, 2.185 ff; Deeters, Die Bambergensisgruppe, pp. 315–23.34 Systematic collection of the ‘Bamberg’ group, commencing with the canons divided into twelve titles with no obvious systematisation. 28

29 30

31

32

33

34

Repert., p. 292; Herold, ‘Die Canones’, p. 12; Holtzmann-Cheney, pp. 34, 37–42. This manuscript is often listed as M 57, but during a visit to the Basilica in September 2013, the archivist corrected the reference to M 54. Repert., p. 292; Herold, ‘Die Canones’, pp. 10–11. P. Landau, ‘Die Entstehung der systematischen Dekretalensammlungen und die europäischer Kanonistik des 12. Jahrhunderts’, ZRG Kan. Abt., 65 (1979), 125; Deeters, Die Bambergensisgruppe, p. 2. Repert., p. 278; J. Juncker, ‘Die Collectio Berolinensis’, ZRG Kan. Abt., 13 (1924), 348–407; Herold, ‘Die Canones’, p. 10. Repert., p. 282; C. Duggan, Twelfth-Century Decretal Collections and their Importance in English History (London, 1963), pp. 73–6; Herold, ‘Die Canones’, p. 9. London, BL, Royal 10.B.iv, fols 33r–41r; printed in L. Fowler-Magerl, Ordo iudiciorum vel ordo iudiciarus. Begriff und Literaturgattung, Ius Commune, Sonderheft, 19 (Frankfurt am Main, 1984), pp. 273–89. Repert., pp. 293; Herold, ‘Die Canones’, pp. 19–20; Deeters, Die Bambergensisgruppe, pp. 7–9 and passim.

253

Appendix 23. Collectio Cassellana II (C2) = Bamberg, Staatsbibliothek, Can. Bambergensisgruppe, pp. 315–23.35 Sister collection to Collectio Cassellana I.

18,

fols

25ra–26va;

Deeters,

Die

24. *Collectio Cheltenhamensis (Ch) = London, BL, Egerton 2819, fols 11ra–16ra.36 Semi-systematic decretal collection of the ‘Worcester’ family. Free-standing, with the canons in the quire preceding the collection itself. 25. Collectio Claudiana (Cd) = London, BL, Cotton Claudius A.iv, fols 204vb–206vb.37 Primitive decretal collection of the ‘Bridlington’ family.38 26. Collectio Claustroneoburgensis (Co) = Klosterneuburg, Stiftsbibliothek 19, fols 36r–41r; Schönsteiner, ‘Die Collectio Claustroneoburgensis’, pp. 26–30.39 Primitive decretal collection of the ‘Worcester’ family. Closely related to Petrihusensis and Cottoniana, but more distant relation to Cheltenhamensis. 27. *Collectio Cottoniana (Ct) = London, BL, Cotton Vitellius E.xiii, fols 205vb–210va.40 Semi-systematic decretal collection of the ‘Worcester’ group and sister collection to Petrihusensis. Badly damaged in the Cotton fire of 1731, but its canons can be identified as following the same order as in Petrihusensis. Holtzmann suggested a link to Bury St Edmund’s for the later members of the family, due to the inclusion of letters to Øystein of Trondheim.41 28. *Collectio Cusana (Cu) = Bernkastel Kues, Hospitalbibliothek 229, throughout fols 67r–123v; HoltzmannCheney, pp. 70–4.42 Primitive decretal collection following an abridged Decretum Gratiani. Holtzmann dated it to the twelfth century, on the basis of the tailed ‘e’, and hypothesised that it could be Germanic in origin, albeit based on an Italian exemplar.43 The 1179 decrees are unusual since they are separated into smaller blocks of text. 29. Collectio Dertusensis (De) = Tortosa, Biblioteca Capitular 144, fols 29v–37v.44 35 36 37 38 39

40

41 42 43 44

Repert., pp. 293; Herold, ‘Die Canones’, p. 20; Deeters, Die Bambergensisgruppe, pp. 7–9 and passim. Repert., p. 298; Herold, ‘Die Canones’, p. 13; Duggan Twelfth-Century Decretal Collections, pp. 98–103. Repert., p. 279; Herold, ‘Die Canones’, p. 13; Duggan, Twelfth-Century Decretal Collections, pp. 85–95. See also Holtzmann-Cheney, pp. 132–4. Repert., p. 278; Duggan, Twelfth-Century Decretal Collections, pp. 96–8; Herold, ‘Die Canones’, pp. 13–14. Repert., p. 297; Duggan, Twelfth-Century Decretal Collections, pp. 103–8, esp. pp. 107–8; Herold, ‘Die Canones’, p. 15. W. Holtzmann, ‘Krone und Kirche in Norwegen im 12. Jahrhundert’, DA, 2 (1938), 341–400 at 375 n. Repert., p. 291; Holtzmann-Cheney, pp. 70–4; Herold, ‘Die Canones’, p. 10. Holtzmann-Cheney, p. 67. Repert., p. 279; W. Holtzmann, ‘Beiträge zu den Dekretalensammlungen des 12. Jahrhunderts’, ZRG Kan. Abt., 16 (1927), 39–77.

254

Appendix Primitive decretal collection of the ‘Dertusensis’ group, believed by Holtzmann to be a curial composition from papal registers disseminated after the 1179 council. 30. *Collectio Duacensis (Do) = [Douai, Bibliothèque de la ville 590, fols 1r–2v, 247r–248v]; Holtzmann-Cheney, pp. 64–5.45 Incomplete primitive collection of the ‘Italian’ group preserved as flyleaves to a Decretum Gratiani. 31. Collectio Dunelmensis (Du) = Durham, Dean and Chapter Library C.III.1, fols 11ra–12vb.46 Primitive decretal collection of the ‘English’ family, split into three parts in different hands. Now prefaces a copy of the Decretum Gratiani. The canons at the end of the second part. 32. Collectio Eberbacensis (Eb) = London, BL, Arundel 490, fols 218vb–221rb.47 Primitive decretal collection of the ‘Spanish-curial’ group, split into numbered sections without titles or clear content. Dated to 1170–80 by Palmer, who also suggested a northern French, Cistercian origin.48 33. Collectio Erlangensis (Er) = Erlangen, Universitätsbibliothek 342, fols 291ra–292rb; Deeters, Die Bambergensisgruppe, pp. 315–23.49 Systematic collection of the ‘Bamberg family’, in which the canons provide the preface. The entire collection is appended to a glossed Decretum Gratiani which, according to Weigand, used the apparatus Ordinaturus Magister in its first and earliest recension.50 Written in a thirteenth-century hand.51 34. Collectio Florianensis (F) = Sankt Florian, Stiftsbibliothek III.5, fols 173ra–174vb; Holtzmann-Cheney, p. 48.52 Primitive decretal collection of the ‘Italian’ group appended to a Decretum Gratiani with the apparatus Ordinaturus Magister. In Sankt Florian by the fifteenth century; of unknown but potentially Italian provenance in the early thirteenth century.53 Holtzmann believed that the collection had an English exemplar at some point, for all its otherwise Italian origin. 45 46 47

48

49 50 51

52 53

Repert., p. 279; Herold, ‘Die Canones’, p. 10; Holtzmann-Cheney, pp. 64–5. Repert., pp. 280–1; Duggan, Twelfth-Century Decretal Collections, pp. 78–9; Herold, ‘Die Canones’, p. 14. Repert., p. 281; W. Holtzmann, ‘Die Collectio Eberbacensis’, ZRG Kan. Abt, 17 (1928), 548–55, at 555. N. F. Palmer, Zisterzienser und ihre Bücher: die mittelalterliche Bibliotheksgeschichte von Kloster Eberbach im Rheingau unter besonderer Berücksichtigung der in Oxford und London aufbewahrten Handschriften (Regensburg, 1998), p. 75. He further suggests that it was not written for students, but for a Cistercian abbey itself and was possibly commissioned by Clairvaux for one of its German daughter houses. Repert., p. 294; Herold, ‘Die Canones’, p. 18. R. Weigand, ‘The development of the Glossa Ordinaria to Gratian’s Decretum’, HMCL, pp. 55–97 at 67. Repert., p. 294; Deeters, Die Bambergensisgruppe, pp. 9–10. The Erlangen manuscript remains the principal systematic decretal collection to lack a systematic and detailed study. Repert., p. 281; Herold, ‘Die Canones’, p. 18; Holtzmann-Cheney, pp. 44–5. Holtzmann-Cheney, p. 43.

255

Appendix 35. Collectio Lipsiensis I (Li) = Leipzig, Universitätsbibliothek 975, fols 116r–118v; Deeters, Die Bambergensisgruppe, pp. 315–23.54 Systematic collection of the ‘Bamberg’ family, with the decrees providing a preface. Baluze hypothesised that Lipsiensis was used as a source for the Breviarium, although this theory should probably be disregarded.55 Probably copied in the early thirteenth century, the canons follow a Decretum Gratiani. 36. Collectio Lipsiensis II (L2) = Leipzig, Universitätsbibliothek 1242, fols 73v–76r; Herold, ‘Die Canones’, p. 14.56 Version of the Appendix Concilii Lateranensis, where the decretal collection differs only slightly from Crabbe’s printed version. 37. Collectio Oenipontana (J) = Innsbruck, Universitätsbibliothek 90, fols 275r–277r; Friedrich Maassen, ‘Beiträge zur Geschichte der juristischen Literatur des Mittelalters, insbesondere der Dekretisten-Literatur des zwölften Jahrhunderts’, Sitz. Akad. Wien, Phil.-hist. Kl., 24 (1857), pp. 64–6 n. 1.57 Appendix to Gratian. 38. Collectio Parisiensis I (P) = Paris, BN lat. 1596, fols 4r–11r; Die Canones-Sammlungen zwischen Gratian und Bernhard von Pavia, ed. E. Friedberg (Leipzig, 1897), p. 52.58 Primitive decretal collection of the ‘French’ family. The only one of the family to include the canons, which Herold conjectured were taken from an English archetype. 39. Collectio Petrihusensis (Pe) = Cambridge, Peterhouse 193, fols 223rb–227ra.59 Semi-systematic decretal collection of the ‘Worcester’ family.60 Early thirteenth-century hand, but copied from an exemplar that was probably late twelfth-century in origin.61 40. Collectio Roffensis (R) = London, BL, Royal 10.C.iv, fols 137ra–139vb.62 Primitive decretal collection of the ‘English’ family. Preceded in the codex by a copy of Omnebene’s Abbreviatio Decretorum by the same scribe. 41. Collectio Sangermanensis (S) = Paris, BN lat. 12459, fols 3v–6v, Singer, Beiträge, pp. 121–4.63 54 55

56 58 59 61

62 63

Repert., pp. 292–3; Herold, ‘Die Canones’, p. 11; Deeters, Die Bambergensisgruppe, pp. 10–11. Deeters, Die Bambergensisgruppe, p. 11; Duggan, ‘Decretal Collections’, pp. 281–2; Pennington, ‘Decretal Collections’, p. 296 n. 9. Repert., pp. 290–1. 57 Repert., p. 286; Herold, ‘Die Canones’, p. 11. Repert., p. 286; Herold, ‘Die Canones’, p. 11. Duggan, Twelfth-Century Decretal Collections, pp. 103, 106–7. 60 Herold, ‘Die Canones’, p. 25. M. R. James, A Descriptive Catalogue of the Manuscripts of Peterhouse, Cambridge (Cambridge, 1899), pp. 224–6, at 225 noted that ‘the first and last quires are of cent. xiii, from the beautifully written volumes of Cistercian ordinances which have been used in several other MSS’. See R. M. Thomson, A Descriptive Catalogue of the Medieval Manuscripts in the Library of Peterhouse, Cambridge (Cambridge, 2016), pp. 65 on the collection as a whole and 116 for these sections. Repert., p. 282; Herold, ‘Die Canones’, p. 12; Duggan, Twelfth-Century Decretal Collections, pp. 76–8. Repert., pp. 298–9; Herold, ‘Die Canones’, p. 17.

256

Appendix Systematic decretal collection with the 1163, 1179, and 1148 canons as its first title. Dependent on Tanner. 42. Collectio Tanner (T) = Oxford, Bodleian Library, Tanner 8, pp. 596a–602a.64 Systematic decretal collection that incorporates some decretals of Celestine III, dating it to no earlier than 1191–8. The 1179 canons form the first section, following those of Tours in 1163. 43. Darmstadt Decretum (Da) = Darmstadt, Hessisches Landes- und Universitätsbibliothek 542, flyleaves, Herold, ‘Die Canones’, pp. 15–16.65 Gratian’s Decretum with additions, including Ivo’s Prologue. 44. Laborans’ Compilatio Decretorum (-) = Vatican City, BAV, Archivio S. Pietro C. 110, throughout in margin. A transformation of Gratian’s Decretum, composed by a cardinal in the curia.66 45. Lincoln Appendix (L) = Lincoln, Cathedral and Chapter Library, 121, fols 54r–58v. Copy of the Appendix Concilii Lateranensis now found in Lincoln.67 Possibly descended from an early recension of the collection, without the fiftieth title that may have developed from the papal registers.68 46. McClean 134 (-) = Cambridge, Fitzwilliam Museum, McClean 134, fols 1r–8v. The only free-standing copy of the conciliar canons. On a flyleaf is the thirteenthcentury contents list which lists the canons before Johannes glosatus, which may refer to a Glossa Ordinaria.69 47. Munich 28175 (-) = Munich, BSB, clm 28175, fols 318ra–318va. Dekretanhang that begins with the 1179 canons, analysed by Weigand.70 64

65 66

67

68 69

70

Repert., pp. 294–5; Holtzmann, ‘Die Sammlung Tanner’, pp. 106–7. Herold places the canons on pp. 594–600. Since the 1950s, the pages have been renumbered and the current numbering is given. Repert., p. 260. Repert., p. 267; N. Martin, ‘Die Compilatio Decretorum des Kardinal Laborans’, Proceedings Berkeley, pp. 125–37, on the canons at 133–4 and a short concordance at 136–7. See also N. Martin, ‘Die Compilatio Decretorum des Kardinal Laborans: eine Umarbeitung des Dekrets aus dem 12. Jahrhundert’, PhD thesis, University of Heidelberg ([1985] 1994) for a general commentary on the Compilatio. See R. M. Thomson, Catalogue of the Manuscripts of Lincoln Cathedral Library (Lincoln, 1989), p. xiii–xvi for the twelfth-century catalogue, which does not mention the manuscript, and p. 95 for the manuscript itself. Although seen as an important representative of an early school of law, it is contentious whether the volume was present in the Lincoln library before 1200, although it was certainly there by 1300. For a discussion, see M. Brett, ‘English law and centres of law studies in the later twelfth century’, in T. Iversen (ed.), Archbishop Eystein as Legislator: The European Connection (Trondheim, 2011), pp. 87–102 at 100–2, and p. 204 above. Repert., p. 291; Holtzmann-Cheney, pp. 119–27; Herold, ‘Die Canones’, pp. 14–15. Councils & Synods, 1.1014; M. R. James, A Descriptive Catalogue of the McClean Collection of Manuscripts in the Fitzwilliam Museum (Cambridge, 1912), pp. 281–2. R. Weigand, ‘Die Dekretanhänge in den Handschriften Heiligenkreuz 44, Pommersfelden 142 und München 28175’, BMCL, 13 (1983), 1–26 at 20–2.

257

Appendix 48. Royal 2.D.ix (-) = London, BL, Royal 2.D.ix, fols 21r–22r. Abbreviated version of a collection of the ‘Bamberg’ family, including the 1179 canons, also in abbreviated form. 49. St John’s Appendix (-) = Cambridge, St John’s College F.11, fols 61v–77v. The canons preface a late twelfth-century systematic canonical collection, surmised by Charles Duggan to be an early variant of the Appendix Concilii Lateranensis group.71 50. Vienna Appendix (-) = [Vienna, Österreichische Nationalbibliothek 2172]. Copy of the Appendix Concilii Lateranensis, bearing close similarities to Crabbe’s lost manuscript.

appendices to early medieval or ‘reform’-era collections 51. Arras 425 (-) = Arras, BM 425 (1009), fols 68r–79r. The canons are appended to the so-called Collectio Atrebatensis, a collection that may be of the later eleventh century from Arras.72 52. Brussels II 2532 (Br) = Brussels, Bibliothèque royale de Belgique II, 2532, fols 212r–214r.73 Canons appended to a Pseudo-Isidore manuscript. Kéry gives the provenance as Flanders, and dates the Pseudo-Isidore component to the twelfth century.74 The canons are late twelfth century. 53. *Munich Panormia (-) = Munich, BSB, clm 11316, fols 117r–120v. Panormia copied in the mid- or late twelfth century. Kéry, following Landau, gives St Salvator in Polling as the provenance of the manuscript.75 54. Reims 674 (-) = Reims, BM, 674, fol. 154ra–156va.76 71

72

73 74 75

76

M. R. James, A Descriptive Catalogue of the Manuscripts in the Library of St John’s College, Cambridge (Cambridge, 1913), pp. 182–3 (James 148), dates s. xii–xiii; C. Duggan, ‘English canonists and the Appendix Concilii Lateranensis, with an analysis of the St John’s, Cambridge, MS 148’, Traditio, 18 (1962), 459–68. L. Fowler-Magerl, Clavis Canonum: Selected Canon Law Collections before 1140, MGH, Hilfsmittel, 21 (Hanover, 2005), pp. 206–7; Kéry, Canonical Collections, p. 279. Herold, ‘Die Canones’, p. 9; Kéry, Canonical Collections, p. 101. Kéry, Canonical Collections, p. 101. Kéry, Canonical Collections, p. 255; P. Landau, ‘Rubriken und Inskriptionen der Panormie. Die Ausgabe Sebastian Brants im Vergleich zur Löwener Edition des Melchior de Vosmédian und der Ausgabe von Migne’, BMCL, 12 (1982), 31–49 at 48. Kéry, Canonical Collections, p. 136; Fransen, ‘Les canonistes’, pp. 38–9.

258

Appendix Canons appended to a copy of Burchard of Worms Decretum. The Decretum contains a colophon that dates it to 1152. Probably copied in Reims.77 55. *Robbins 103 (-) = Berkeley, Robbins Law Library, 103, fols 163r–169r.78 The canons are appended to a manuscript of the Collectio decem partium. 56. Savigny 3 (-) = Berlin, SPRK, Savigny 3, fols 178ra–181vb.79 The canons are at the end of a curious late eleventh-century canonical collection known as the Collectio XIII librorum, related to both Anselm of Lucca A ‘Aucta’ and the Collectio VII librorum.80

dispersed throughout a systematic collection Breviarium Extravagantium, or Compilatio Prima (-) = Sigüenza, Biblioteca del Cabildo 10.81 Collection compiled by Bernard of Pavia sometime between 1189 and 1191.82 The Breviarium exists in three recensions. According to Fransen, the Siguenza manuscript is representative of the earliest, ‘Σ’ recension. Collectio Francofurtana (-) = London, BL, Egerton 2901; Landau and Drossbach, Die Collectio Francofurtana, passim.83 Systematic collection, compiled in northern France in the early or mid-1180s. Collectio Brugensis (-) = Vatican City, BAV, Ottob.lat. 3027.84 Systematic collection, compiled in or around Reims in the mid- or late 1180s.85 Collectio Rotomagensis I (-) = Paris, BN 3922A, fols 148r–167v, 245, Holtzmann-Cheney, pp. 167–209.86 77

78 79 81

82

83

84 85

86

P. Landau, ‘Die Dekretsumme “Tractaturus Magister” und die Kanonistik in Reims in der zweiten Hälfte des 12. Jahrhunderts’, ZRG Kan. Abt., 100 (2014), 132–52 at 145–7. My thanks to Martin Brett for drawing my attention to this manuscript. Kéry, Canonical Collections, pp. 216–17. 80 Fowler-Magerl, Clavis, pp. 155–6. G. Fransen, ‘Les diverses formes de la Compilatio prima’, in Scrinium Lovaniense: Mélanges historiques Étienne van Cauwenbergh, Université de Louvain, Recueil de travaux d’histoire et de philologie, 4th Series 24 (Louvain, 1961), pp. 235–53 at 239. Quinque Compilationes antiquae: nec non collectio canonum Lipsiensis, ed. E. Friedberg (Leipzig, 1882), p. vi; Repert., pp. 322–44, at 322 n. 1. For a recent if brief commentary on Bernard of Pavia, see Kenneth Pennington, ‘Decretal collections, 1190–1234’, HMCL, pp. 296–300. Repert., pp. 295–6; Die Collectio Francofurtana, ed. Peter Landau and Gisela Drossbach, MIC, B, 9 (Vatican City, 2007). Die Canones-Sammlungen, pp. 136–7; Repert., pp. 297–8. W. Holtzmann, ‘Über die vatikanische Handschrift der Collectio Brugensis (Ottob.lat. 3027)’, in Collectanea Vaticana in honorem Anselmi M.Card. Albareda, Studi e testi, 219 (Vatican City, 1962), pp. 391–414; L. Falkenstein, ‘Zur Entstehungsort und Redaktor der Collectio Brugensis’, Proceedings San Diego, pp. 117–44, with appendices. Repert., p. 297.

259

Appendix Collection compiled in or around Rouen in the late twelfth century. In a manuscript that contains a copy of the Francofurtana, to which Rotomagensis I is an appendix, and the Collectio Rotomagensis II, a collection of excerpts from the Breviarium Extravagantium. Liber Extra (-) = Florence, BML, Plut.sin.7; Florence, Biblioteca Nazionale Centrale, Pal.lat. 157.87 Systematic collection, with the titles divided into five books. It was edited in the early 1230s by Raymond of Peñafort for Gregory IX, who officially sanctioned the collection in 1234 with his bull Rex pacificus.

fragmentary copies Avranches, BM 149, fol. 79vb.88 London, BL, Add. 24659, fol. 43v. Oxford, Bodleian Library, Tanner 8, p. 592. Vic, Archivio Capitular 145, fol. ir.

87

88

M. Bertram, ‘Dekorierte Handschriften der Dekretalen Gregors IX (Liber Extra) aus der Sicht der Text- und Handschriftenforschung’, Marburger Jahrbuch für Kunstwissenschaft, 35 (2008), 31–65 at 59–60. H. Singer, Neue Beiträge über die Dekretalensammlungen vor und nach Bernhard von Pavia, SB Wien, Phil.-hist. Kl., 171 (1913), pp. 355–6 n. 8 on the two canons.

260

BIBLIOGRAPHY

manuscript sources Arras, Bibliothèque Municipale 425 (1009) Avranches, Bibliothèque Municipale 149 Bamberg, Staatsbibliothek Can. 17 Can. 18 Can. 19 Berkeley, Robbins Law Library 103 Berlin, Staatsbibliothek, Preussischer Kulturbesitz, Phillips 1742 Savigny 3 Bernkastel-Kues, Hospitalbibliothek 229 Brussels, Bibliothèque royale de Belgique II 2532 Cambridge, Fitzwilliam Museum McClean 134 Cambridge, Peterhouse 193 Cambridge, St John’s College

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295

MANUSCRIPT INDEX

Manuscripts cited here may not have been consulted in the original. Libraries and manuscript numbers in bold. For fuller details on the manuscripts of the 1179 canons, including their names and the shortened titles used to refer to them in the text see Appendix. Arras, Bibliothèque municipale 425 (1009), 140 n. 82, 155 n. 138, 158 n. 150, 174 n. 230, 258 964, 52 Autun, Bibliothèque municipale 80a (100), 235 Avranches, Bibliothèque municipale 149, 260 Bamberg, Staatsbibliothek Can. 17, 153 n. 127, 164 n. 182, 171 n. 213, 214 n. 175, 253–253 Can. 18, 254 Berkeley, Robbins Law Library 103, 140 n. 82, 147 n. 119, 175, 259 Berlin, Staatsbibliothek Phil. 1742, 101, 163 n. 179,180, 174 n. 229, 234, 253 Savigny 3, 140 n. 82, 143 n. 97, 143, 163 n. 178, 168, 171 n. 213, 231–232, 259 Bernkastel-Kues, Hospitalbibliothek 229, 154 n. 138, 254 Bruges, Bibliothèque de la ville 378, 220 n. 207 379, 220 n. 207 Brussels, Bibliothèque royale de Belgique, II 2532, 136, 137 n. 61, 140 n. 82, 152, 158 n. 150, 163 n. 181, 175 n. 232, 258 Cambridge, Fitzwilliam Museum, McClean 134, 149, 257 Cambridge, Peterhouse 193, 147 n. 115, 149, 153 n. 130, 153, 169–170, 172 n. 216, 174 n. 230, 215 n. 182, 216 n. 188, 256

Cambridge, St John’s College F. 11, 137 n. 63, 158 n. 154, 161 n. 165, 172 n. 216, 174 n. 230, 258 Darmstadt, Hessisches Landes- und Universitätsbibliothek 542, 156, 257 Douai, Bibliothèque municipale 590, 154 n. 138, 255 Durham, Dean and Chapter Library, C.III. 1, 143 n. 99, 143, 158 n. 153, 164 n. 181, 171 n. 213, 234, 255 Erlangen, Universitätsbibliothek 342, 101 n. 46, 113 n. 113, 118 n. 141, 136 n. 57, 136, 174 n. 229, 214 n. 177, 234, 255 Florence, Biblioteca Medicea Laurenziana Plut.sin. 9, 221 n. 210, 223 n. 230, 260 S. Marco 599, 141 n. 85, 141, 149, 153 n. 131, 153, 164 n. 182, 202 n. 99, 104, 202, 205–206, 251 S. Marco 762, 149, 156, 158 n. 150, 160 n. 159, 160, 168, 170, 172 n. 215, 216, 202 n. 99, 251 Florence, Biblioteca Nazionale Centrale, Pal. 157, 221 n. 210, 222 n. 217, 218, 219, 223 n. 230, 230 n. 256, 260 Florence, Biblioteca Riccardiana 228, 141 n. 85, 142 n. 91,92, 142, 158 n. 150, 158, 172 n. 219, 249 Frankfurt, Stadt-und Universitätsbibliothek, Bart. 60, 224

296

Manuscript Index Hereford, Cathedral and Chapter Library, P.VII. 3, 101 n. 46, 113 n. 113, 118 n. 141, 233 n. 270 Innsbruck, Universitäts- und Landesbibliothek Tirol in Innsbruck 90, 143 n. 98, 163 n. 177, 164 n. 182, 171 n. 213, 256 Karlsruhe, Badische Landesbibliothek, Rastatt 27, 156 n. 142, 160 n. 158, 160, 164 n. 182, 175 n. 231, 249 Kassel, Landesbibliothek Jurid. 2º 15, 253 Klosterneuburg, Stiftsbibliothek 19, 137 n. 62, 149, 169–170, 215 n. 182, 216 n. 188, 254 Koblenz, Staatsarchiv 701 A vii n. 124, 252 Leipzig, Universitätsbibliothek 1242, 256 975, 136 n. 57, 136, 149, 163 n. 180, 171 n. 213, 172 n. 218, 174 n. 229, 214 n. 177, 256 Lincoln, Cathedral and Chapter Library 121, 157 n. 149, 158 n. 151, 161 n. 165, 165 n. 188, 174 n. 229, 257–257 Lisbon, Biblioteca Nacional, Alcobaça 144, 147 n. 119, 154 n. 138, 172 n. 217, 175, 252 London, British Library Add. 18367, 112 n. 101, 233 Add. 24659, 230, 260 Add. 39646, 135 n. 54,55, 136 n. 56,59, 140 n. 80, 192 n. 46, 197 n. 71, 216 n. 190 Arundel 490, 136 n. 60, 153 n. 127, 158 n. 154, 163 n. 177, 164 n. 181, 181, 174 n. 230, 221 n. 211, 255–255 Cotton Claudius A.iv, 137 n. 63, 147, 149, 156, 223 n. 229, 230–231, 232, 254 Cotton Julius D.i, 137 n. 64, 141 n. 85, 171 n. 213, 250 Cotton Vitellius E.xiii, 147, 154 n. 138, 169–170, 215 n. 182, 216 n. 188, 254 Egerton 2819, 145 n. 104, 154 n. 138, 157, 164 n. 181, 165 n. 188, 172 n. 216, 215 n. 182, 216 n. 189, 216, 254 Egerton 2901, 224, 259 Royal 10.A.ii, 137 n. 62, 215–217 Royal 10.B.iv, 137 n. 63, 139 n. 71, 149, 152, 153, 158 n. 150, 164 n. 182, 172 n. 214, 174 n. 230, 253 Royal 10.C.iv, 136 n. 60, 139 n. 71, 145 n. 102, 158 n. 152, 163 n. 180, 171 n. 213, 174 n. 229, 256 Royal 2.D.ix, 162, 258 Milan, Archivio capitolare di S. Ambrogio, M 54, 253

Munich, Bayerische Staatsbibliothek clm 10244, 101 n. 46, 235 clm 11316, 137 n. 63, 139 n. 74, 140, 143 n. 97, 143, 154 n. 138, 163 n. 178, 168, 258 clm 16084, 99 n. 33 clm 28175, 149, 160, 257 Oxford, Bodleian Library Bodley 357, 55 n. 58, 65 n. 129 Tanner 8, 55 n. 57, 142 n. 88, 230 n. 253, 257, 260 Oxford, Corpus Christi College 154, 233 Oxford, Oriel College 53, 142 n. 87, 142, 149, 153 n. 127, 156, 171 n. 213, 174 n. 229, 214 n. 176, 252 Paris, Bibliothèque nationale de France lat. 1566, 32, 54 n. 54, 229 n. 250 lat. 1596, 172 n. 217, 256 lat. 3454, 178 lat. 3922A, 220 n. 208, 223, 259 lat. 4270A, 179 lat. 12459, 256 lat. 14664, 135 n. 54, 136 n. 58,59 lat. 14938, 135 n. 54, 136 n. 56,58,59 lat. 17656, 135 n. 54, 136 n. 56,59 Reims, Bibliothèque municipale 674, 26, 139 n. 73, 140 n. 82, 147, 152 n. 120, 152, 156, 160 n. 160, 161, 164 n. 181, 171 n. 213, 175, 258 Salzburg, Stiftsbibliothek, A.XI. 9, 26, 113 n. 108, 122 n. 156 Sankt Florian, Stiftsbibliothek III. 5, 163 n. 180, 168, 174 n. 229, 255 Sankt Gallen, Stiftsbibliothek 673, 28 Siguenza, Biblioteca del Cabildo 10, 172 n. 217, 221 n. 209,216, 225 n. 239,240, 259 Tarragona, Biblioteca Pública 92, 141 n. 82, 141, 154 n. 138, 163 n. 181, 171 n. 213, 251 Tortosa, Biblioteca Capitular 144, 137 n. 61, 153 n. 127, 156, 163 n. 180,181, 172 n. 215, 174 n. 229, 254 Troyes, Bibliothèque municipale 103, 55 n. 56, 77 n. 193, 180 n. 250 961, 222, 224 Vatican City, Biblioteca Apostolica Vaticana Archivio del Capitolo di S. Pietro C. 110, 140 n. 82, 142 n. 91, 172 n. 219, 174 n. 229, 257

297

Manuscript Index Vatican City (cont.) Ottob.lat. 3027, 171 n. 213, 220 n. 207, 221 n. 215, 222 n. 221,223, 222, 259 Reg.lat. 596, 137, 139 n. 72, 141, 154 n. 138, 171 n. 213, 175, 204, 250 Reg.lat. 984, 137 n. 61, 137, 138, 139 n. 72, 141, 153, 160, 163, 169–170, 172 n. 215, 173, 175–178, 250

Vat.lat. 2494, 101 n. 46, 105 n. 67, 111 n. 98, 113 Vic, Archivio Capitular 145, 230 n. 255, 260 Vienna, Österreichische Nationalbibliothek 2172, 258 Zwettl, Stiftsbibliothek 31, 100, 234

298

GENERAL INDEX

This index includes people, places, themes, and letters cited, as well as the canons of the 1179 Lateran Council and the location of those discussions concerning their contents. For manuscript references, see the separate manuscript index. Letters are cited intially by JL-number, with WH-number after. Those letters which appear in neither sequence can be found at the beginning of the ‘letters’ section below. 1179 Lateran Council, canons of c. 1, 54, 56–57, 117–119, 134, 156, 157, 159, 163, 167–170, 231, 235 n. 280, 235, 242 c. 2, 57, 120, 156, 157, 163–164, 224, 231, c. 3, 92, 152, 157, 196–197, 231, 236 c. 4, 54, 67–69, 112–116, 156, 171–173, 180, 191, 192–194, 203, 211, 215, 231, 233, 235, 236 c. 5, 104–105, 152, 157–158, 211, 237 c. 6, 75–77, 156, 164, 194, 196, 211, 224, 231–232, 235 c. 7, 54, 147, 156, 163, 192, 193, 211, 225–228, 231 c. 8, 54, 77–79, 116, 152, 157–158, 166–167, 191–192, 194, 211, 222, 231, 235, 242, 244 c. 9, 79–86, 109, 152, 163, 164, 194, 211, 222, 223, 231 c. 10, 102, 156, 164, 167, 205, 211, 221–222, 230, 231, 241 c. 11, 92, 102, 156, 164, 203, 211, 230, 231, 241 c. 12, 100, 157, 164, 203, 231, 235 n. 280 c. 13, 67–69, 105–108, 153, 156, 158–160, 164, 180, 196, 231, 236–237, 243, 244 c. 14, 67–69, 105–108, 157, 158–160, 164, 180, 230, 231, 236–237, 243, 244 c. 15, 153, 164, 198, 203, 231 c. 16, 54, 117–119, 159, 164, 194, 231, 235 n. 280, 235 c. 17, 62–63, 157, 158, 164, 166–167, 212, 222, 223, 231

c. 18, 63–67, 152, 156, 164, 197–198, 231, 235 n. 280, 236, 242 c. 19, 147, 152, 158, 164, 210, 231 c. 20, 55, 69–71, 120–121, 147, 161, 164, 222, 231 c. 21, 102, 120–121, 147, 156–157, 161, 164, 210 c. 22, 102, 120, 147, 161, 164, 191, 210 c. 23, 54, 86–91, 110–112, 164, 194–195, 208–210, 211, 219, 223–224, 231, 242, 244 c. 24, 147, 164, 192, 197, 210, 231, 236 c. 25, 153, 164, 205, 210, 231, 238 c. 26, 71–75, 102, 152, 156, 163, 164, 210, 231, 242 c. 27, 58–62, 102, 147, 157, 163, 164, 165, 173–180, 210, 222, 230, 231, 241 Adam of St Asaph, bishop, 133 Adrian IV, pope, 47, 53, 89, 90, 229 Alan of Lille, theologian, 185 Alberic of Ostia, cardinal, 49 Albert de Summa, cardinal, 15 Alberto di Morra, canonist and pope, 21, 96 Alexander III, pope, 4, 11–13, 19, 46, 47, 78, 89, 118, 129–130, 159, 179, 187, 189, 191, 193–194, 208, 216, 217, 225, 229, 234 and interpreting the 1179 canons, 195–199 and Lateran III canons, 138 and marriage law, 34–35 curia, 95–96 decretals, 30 education and training, 21, 94–95 election, 13

299

General Index Alexandrine Schism, 56 aftermath, 12, 120 origins, 13–14 Treaty of Anagni and Peace of Venice, 18, 39, 57 Amiens, bishop of, 71 Annales Senenses, 16 Anonymous of Laon, chronicle, 132–133, 134, 146 appeals, 75–77, 192–193, 196, 224 Arras, bishop of, 129 Arras, cathedral chapter of, 53–54 arson, prohibition of, 202 Aureil, canons of, 139 Baldwin of Forde, lawyer and archbishop, 22 Bartholomew of Exeter, bishop, 79, 187 Bartholomew, dean, 209 Bazianus, canonist, 235 benefices, 66, 67–69, 103–108 absolute ordination to, 104–105, 157–158 papal provision of, 67 pluralism, 67, 68–69, 105–107, 158–160, 196, 236–237 promise of, 53, 77–79, 116, 206 Bernard of Clairvaux, abbot, 76, 82 Bernard of Pavia, canonist and archbishop, 29, 178 Bertram of Metz, canonist and erstwhile bishop, 123 bishops election and appointment of, 21 familiae, 22–23, 24, 212 Boso, cardinal, 16, 40 Life of Alexander III, 12, 142, 154 Bremen, archbishop of, 91, 134 burial of lepers, 88 Calixtus III, (anti-)pope, 70 canon law and forgery, 179–180 collections as ‘living texts’, 25, 27, 32 gloss layers, 234–235 marriage law, 34–35, 92 narratives of change, 24–26 schools Anglo-Norman, 236 Bologna, 29 northern French, 27 transmontane, 98–99 canonical collections dating of, 213 decretal collections, 25, 26, See decretal collections

origins, 28–33 Ivonian collections, 25 canonical collections, individual Anselm of Lucca, Collectio Canonum, 153 Bernard of Pavia, Breviarium Extravagantium, 7, 29, 30, 51, 73, 76, 84, 151, 172, 189, 220, 221–222, 224–226, 239, 243, 259 Burchard of Worms, Decretum, 25, 26, 258 Collectio Abrincensis, 73 Collectio Alcobacensis I, 147, 151, 157, 172, 175, 252 Collectio Ambrosiana, 151, 163, 253 Collectio Appendix Concilii Lateranensis, 19, 29, 31, 41, 54, 68, 73, 74, 142, 145, 157, 158, 161, 164–165, 167, 204, 217, 220 Crabbe, 83, 126, 150, 161, 162, 171, 189, 252 Leipzig, 151, 161, 162, 256 Lincoln, 150, 161, 189, 204, 257 St John’s, Cambridge, 151, 161, 172, 258 Vienna, 150, 161, 162, 258 Collectio Atrebatensis, 258 Collectio Bambergensis, 29, 73, 143, 150, 153, 155, 164, 214, 216, 253 Collectio Berolinensis I, 145, 151, 162, 163, 253 Collectio Bridlingtonensis, 55 Collectio Brugensis, 73, 83, 219, 220, 221–222, 223, 226, 227–228, 259 Collectio Cantabrigiensis, 31 Collectio Cantuariensis, 137, 148, 151, 152, 153, 164, 171, 174, 253 Collectio Cassellana, 73, 126, 145, 150, 162, 221, 253 Collectio Cheltenhamensis, 73, 145, 151, 157, 161, 163, 172, 189, 215, 254 Collectio Claudiana, 44, 137, 147, 148, 150, 156, 160, 173, 230–231, 232, 254 Collectio Claustroneoburgensis, 137, 148, 150, 161, 169–170, 215, 216, 254 Collectio Cottoniana, 145, 147, 151, 161, 162, 169–170, 215, 216, 254 Collectio Cusana, 151, 162, 163, 167, 214, 254 Collectio Dertusensis I, 55, 137, 150, 156, 157, 163, 172, 254 Collectio Duacensis, 151, 163, 255 Collectio Dunelmensis I, 41, 64, 143, 151, 158, 161, 163, 234, 255 Collectio Duodecim Partium, 153 Collectio Eberbacensis, 136, 150, 157, 158, 163, 164, 221, 255 Collectio Erlangensis, 137, 150, 162, 171, 214, 255 Collectio Florianensis, 151, 163, 168, 255 Collectio Francofurtana, 73, 165, 204, 220, 221–224, 226–228, 259

300

General Index Collectio Lipsiensis I, 54, 73, 137, 148, 151, 163, 214, 256 Collectio Oenipontana, 143, 151, 158, 163, 164, 256 Collectio Orielensis, 151, 214, 252 Collectio Parisiensis I, 80, 151, 161, 163, 164, 172, 256 Collectio Parisiensis II, 32, 228–229 Collectio Petrihusensis, 145, 147, 148, 151, 153, 161, 162, 169–170, 172, 215, 256 Collectio Roffensis, 136, 145, 151, 158, 163, 256 Collectio Rotomagensis I, 220, 259 Collectio Sangermanensis, 151, 158, 160, 161–162, 256 Collectio Tanner, 55, 73, 151, 158, 160, 161–162, 230, 257 Collectio Trinitatis, 215 Collectio Victorina I, 80, 136 Collectio Wigorniensis, 145, 193, 215–216 Collection in 10 Parts, 259 Collection in 13 Books, 231, 259 Compilatio Prima. See Bernard of Pavia, Breviarium Extravagantium Compilatio Secunda, 29 Compilatio Tertia, 29, 145 Compilatio Quarta, 184 Compilatio Quinta, 31 Gratian, Decretum, 6, 19, 24, 25, 28, 37–38, 94, 121–122, 124, 130, 151, 156, 158, 187, 229, 234–235, 253, 255, 257 abbreviations and manipulations, 25, 254, See also Laborans, Compilatio Decretorum; Omnebene, Abbreviatio Decretorum composition, 26 early use of, 27 Ivonian Panormia, 25, 137, 140, 230, 258 Laborans, Compilatio Decretorum, 21, 109, 140, 142, 150, 172, 257 Liber Extra, 19, 24, 28, 29, 30, 54, 70, 74, 76, 84, 140, 145, 183, 184, 219, 220, 221–222, 223, 224, 230, 232, 260 Omnebene, Abbreviatio Decretorum, 20, 256 Pseudo-Isidorian collections, 258 Quinque Compilationes, 29, 184 Trecensis Dekretanhang, 180 canonical commentaries, 38, 97–98 Honorius, Summa, 237 Huguccio, Summa, 7 manuscripts of, 99 Rolandus, Summa, 97, 104 Rufinus, Summa, 98, 104–105, 114–115 Sicard of Cremona, Summa, 111–112, 233 Simon of Bisignano, Summa, 26, 99–101, 105, 109, 111–112, 113, 115, 118, 233–234 Stephen of Tournai, Summa, 20, 104, 113, 114

Summa Coloniensis, 99, 105, 115, 118–119, 123, 243 Summa Lipsiensis, 68, 236 Summa Monacensis, 99, 113 Summa Parisiensis, 99, 105, 113 Summa Permissio quedam, 233 Summa Reverentia sacrorum canonum, 233 canons travelling, 53 Canterbury, archbishop of, 191, 193–194, 208–210, See also: Theobald of Bec; Thomas Becket; Richard of Dover; Baldwin of Forde; Hubert Walter familia, 23, 27 Canterbury, Herbert, archdeacon of, 192 Cardinalis, canonist, 21 Celestine III, pope, 88, 192, 211, 212, 257 Châlons-en-Champagne, bishop of, 68 Christian of Mainz, archbishop and archchancellor, 57 churches and chapels, construction of, 53, 85, 86, 88, 195 Cistercian Order, 23, 47, 82, 89 privileges of, 84 Clarembald of Faversham, abbot, 79 Clement III, pope, 192, 225 clergy and hunting, 236 behaviour of, 236 celibacy of, 203, 206 dying intestate, 203 education of, 19–22 Collectio Jacques Sirmond, 52–53 conciliar decrees drafts of, 46 Conciliorum Oecumenicorum Decreta, 126, 177 Concordat of Worms, 2 Conrad of Wittelsbach, archbishop and cardinal, 15, 58 Constitutions of Clarendon, 2 Councils and synods Aquileia (1190), 202 Avranches (1172), 132, 200 Clermont (1095), 42, 128–129, 174 Clermont (1130), 69, 130, 242 Cremona (1148), 130, 131 Ireland (1186), 201 Lateran I (1123), 39, 41, 128, 153, 246 Lateran II (1139), 38, 39, 40, 41, 57, 69, 119–122, 123, 128, 130, 139, 184, 186, 190–191, 196, 229, 246 c. 15, Si quis suadente, 186–187, 190–191, 246 in Gratian’s Decretum, 121–122 Lateran III (1179), 39, 40, 41, 44, 45, 225

301

General Index Councils and synods (cont.) and responsive papal government, 245–246 as legislation, 245 attendees, 140, 196–197 canons, 126–127 events, 16–19, 132–138 manuscripts of, 26 post-medieval reception, 11 promulgation, 131–132 summons, 11, 14–16, 44, 129–130 witness lists, 135 Lateran IV (1215), 11, 15, 19, 39, 125, 132, 134, 139, 163, 219 reception, 184–185 summons, 16 Liège (1131), 130 Limoges (1182), 201 London (1102), 103 London (1138), 65 Lyon (583), 86 Lyon I (1245), 129 Lyon II (1274), 129 Mainz (813), 221 Melfi (1089), 38, 187 Montpellier (1162), 127, 210 Montpellier (1195), 210–211 Mouzon (1186), 201 Nidaros (1163/4), 27, 200 Orléans (549), 86 Oxford (1222), 185 Piacenza (1134), 130 Pisa (1135), 42, 130, 143 Reims (1049), 103 Reims (1119), 132, 134 Reims (1131), 69, 130 Reims (1148), 2, 6, 57, 70, 78, 121, 130, 131, 132, 154, 223, 230, 257 Reims (1157), 200 Rome (1079), 65 Rouen (1190), 202–205 Salisbury (1217x1219), 185 Segovia (1166), 200 Split (1180s), 206 Tours (1163), 40, 57, 61, 62, 70, 78, 121, 139, 142, 154, 155, 174, 177, 186, 210, 217, 221, 223, 225, 227, 228, 230, 238, 246, 257 Turin (1162), 14 Valladolid (1143), 130, 184, 190–191 Venice (1177), 12 Verona (1184), 129, 188 Westminster (1143), 184 Westminster (1175), 22, 38, 44, 46, 78–79, 87, 111, 142, 154, 160, 200, 223 Westminster (1200), 210, 211 York (1195), 210, 211

councils, local, 201–202 councils, papal, see papal councils Dampierre, hospital at, 88 darrein presentment, 63 decretal collections, 129, 143–146, 155–156, 218 and the 1179 canons, 219–232, 243–244 and the use of papal registers, 31 Bambergensis family, 214, 216, 217–218 dating of, 213 origins, 24, 220 Worcester family, 172, 215–216 Eckbert of Schönau, abbot, 60 Ecloga, Byzantine law code, 103 elections, 53 and maior et sanior pars, 53, 56, 117–119 papal, 56–57, 117–119 two-thirds majority, 117–119 Eudes Rigaud, archbishop, 201 Eugenius III, pope, 70, 89, 121, 130 exactions episcopal, 53–54, 79–80, 85, 112–116, 192–193 excommunication, 224 and burial, 84–85 excommunication latae sententiae, 75 forgery, 203 Four Doctors, lawyers, 23 Frederick I (Barbarossa), emperor, 23, 46, 59 Gelasius I, pope, 229 Genoa, archbishop of, 68 Geoffrey, archbishop, 211 Gerald of Wales, chronicler, 81 Gérard Pucelle, canonist and bishop, 20, 22, 57, 96, 99 Gerhoh of Reichersberg, canon, 82 Gervase of Canterbury, monk and chronicler, 163 Chronica, 150, 249 Géza II, king, 12 Gilbert Foliot, lawyer and bishop, 22, 57, 117 Gilbert, bishop, 212 Giles de Braose, bishop, 208, 212 familia, 208 Glosa Urgellensis, 234 Gloucester, abbey of, 207–208 Grado, patriarch of, 197 Gratian of Pisa, cardinal, 95, 96 Gregory I, pope, 118, 229 Gregory VII, pope, 129 Gregory VIII, pope, 33, 35, 225, See also Alberto di Morra, canonist and pope

302

General Index Gregory IX, pope, 183 Gregory X, pope, 129 Guy de Crema, cardinal, 190–191 Henry de France, archbishop, 52, 59, 61, 66, 73, 75, 88 Henry de Marcy, abbot and cardinal, 18, 49, 61, 91, 201, 206, 241 Henry II, king, 2, 13, 59, 60, 138 Henry of Bayeux, bishop, 207 Henry de France, archbishop, 21, 70–71 Heraclius of Caesarea, patriarch, 15 Herbert Poore, bishop, 209 heresy, 58–62, 173–180, 211 Waldensianism, 18 Holy Cross, Bordeaux, abbot and brothers of, 201 homosexuality, prohibition of, 102–103 Honorius III, pope registers of, 31 Honorius, canonist, 212 hospitals, 88 Hubert Walter, archbishop, 209, 210, 211, 246 familia, 212 Hugh du Puiset, bishop, 180, 196–197, 215, 217 Huguccio, canonist and bishop, 20, 33, 235 indulgences for crusading, 173–174, 177 Innocent II, pope, 38, 42, 69, 89, 121, 246 councils of, 128, 130–131 Innocent III, pope, 1, 5, 29, 157, 184, 209, 211, 230 education, 20 Innocent IV, pope, 129 ius patronatus, 62–63, 166–167, 196 Jerusalem, Patriarch of, 83 Jewish-Christian relations, 71–75 Johannes Teutonicus, canonist and bishop, 33, 184 John of Oxford, bishop, 192, 211 John of Salisbury, courtier and bishop, 23, 79, 82, 130, 133 Historia Pontificalis, 187 John of Tynemouth, canonist, 23, 212 Jocelin of Salisbury, bishop, 209 Justinian, Corpus Iuris Civilis, 179, 229 Code, 57, 116, 117, 118–119 Digest, 22 Laborans, canonist and cardinal, 21, 96 law schools, 94, See also canon law, schools Bologna, 97–98, 119, 129, 165 northern Italy, 229 Tours, 178

transmontane, 123, 229 Leo IX, pope, 42 leper houses Abbeville, 90–91, 93 Albert, 90 Brentford, 90 Cambrai, 90 Épernay, 88–89, 90, 91, 93 Liège, 195 Maiden Bradley, 208–210 Moreil, 90 Sens, 88, 90 St Jacob’s, Châlons-en-Champagne, 90 St Lazare, Cambrai, 195 St Mary Magdalene, Le Quesne, 195 lepers, 86–91, 110–112 as priests, 88 in canon law, 223–224 leper chapels, 88 marriage of, 87 privileges of, 88, 194–195 tithe exemption for, 89–90, 194–195, 208–210 tithe exemption on novalia, 90 letters JL – (WH –), 18 n. 44, 40 n. 167, 53 n. 44, 53, 61, 85 n. 252, 85, 86 nn. 253, 254, 255, 89 nn. 278, 279, 281, 282, 90 n. 285, 186, 189 n. 29, 192 n. 50, 192, 194 n. 58, 216 n. 190, JL – (WH 16), 73, 75 JL – (WH 28), 51 n. 36 JL – (WH 49), 188–189 JL – (WH 94), 33 n. 131 JL – (WH 230), 51 n. 36 JL – (WH 236), 36 n. 148 JL – (WH 287), 191, 193–194, 215–216 JL – (WH 353*), 90 n. 284 JL – (WH 409), 53 n. 45 JL – (WH 441), 36 n. 148 JL – (WH 452), 53 n. 45 JL – (WH 526), 66, 219 JL – (WH 558), 58 JL – (WH 597), 51 n. 36 JL – (WH 638), 64, JL – (WH 652), 83 JL – (WH 847), 51 n. 36 JL – (WH 920), 51 n. 36, 80 n. 217 JL – (WH 922), 80 JL – (WH 1087), 54–55, 65 JL 7401 (WH 563), 33 n. 131 JL 10444 (WH 664), 109 JL 10450 (WH –), 53 JL 10633 (WH –), 84 JL 10645 (WH –), 14 n. 19

303

General Index letters (cont.) JL 10929 (WH –), 70–71 JL 11329 (WH –), 64 JL 11411 (WH –), 186 JL 11452 (WH –), 90 n. 288, 90 JL 11459 (WH –), 187 JL 11484 (WH –), 73 JL 11574 (WH –), 88 JL 11669 (WH –), 90 n. 288 JL 11835 (WH 692), 36 JL 11841 (WH –), 88 JL 11898 (WH –), 80 JL 11925 (WH 766), 64, 219 JL 11934 (WH –), 66 JL 11974 (WH –), 79 JL 12009 (WH –), 78, 186 JL 12020 (WH –), 76–77 JL 12074 (WH –), 61 JL 12076 (WH –), 88 JL 12180 (WH 929), 187 JL 12181 (WH –), 186 JL 12261 (WH –), 88 JL 12265 (WH –), 90 n. 287 JL 12293 (WH 944), 54 n. 54 JL 12315 (WH –), 88 JL 12342 (WH –), 89 n. 280 JL 12355 (WH –), 89 JL 12397 (WH –), 65 JL 12421 (WH –), 88 JL 12423 (WH –), 66 JL 12425 (WH –), 186 JL 12448 (WH 69), 84–85 JL 12576 (WH –), 80 JL 12587 (WH 377), 227 JL 12632 (WH 818), 58 JL 12636 (WH 184), 63 JL 12785 (WH 223), 61 JL 12864 (WH –), 66 JL 12974 (WH –), 91 JL 13032 (WH –), 57 n. 76 JL 13070 (WH –), 11 n. 1, 15 n. 22, 16 n. 28, 44 JL 13097–9 (WH –), 11 n. 1, 15 n. 22, 16 n. 28, 129 JL 13162 (WH 649), 49, 50, 77, 220 JL 13170 (WH –), 79–80 JL 13427 (WH –), 194 JL 13452 (WH –), 18 n. 41 JL 13478 (WH 738), 53 n. 45 JL 13504 (WH 715), 197–198, 219, 245 JL 13538 (WH 836), 77 JL 13574 (WH –), 82 JL 13587 (WH 132), 68 JL 13635 (WH –), 53 n. 44 JL 13733 (WH –), 71

304

JL 13743 (WH 537), 189–191 JL 13744 (WH 871), 33 n. 131 JL 13749 (WH 229), 53 n. 45 JL 13750 (WH –), 53 JL 13751 (WH –), 53, 66, 90 n. 285 JL 13752 (WH –), 54 JL 13755 (WH –), 53 JL 13760 (WH –), 54 JL 13790 (WH 191), 68 JL 13794 (WH 713), 87 JL 13800 (WH 867), 67–68 JL 13859 (WH 31), 109 JL 13868 (WH 207), 196–197, 198, 215–217 JL 13873 (WH 518), 109 JL 13952 (WH 42), 78 JL 13962 (WH 707), 85 JL 13963 (WH 355), 85 JL 13966 (WH 274), 68 JL 13973 (WH 624), 72 JL 13973 (WH 941), 36, 73, 74 JL 13974 (WH 624), 36 n. 144, 73, 74 JL 13976 (WH 255), 74 JL 13976 (WH 673), 74, 75 JL 13994 (WH 317), 68–69 JL 14015 (WH 777), 230 JL 14071 (WH 194), 179 JL 14093 (WH 322), 189 JL 14109 + 14206 (WH 833), 49 JL 14117 (WH 470), 35, 82 n. 228, 83, 89, 230 JL 14140 (WH 813), 36 n. 148 JL 14157 (WH 691), 64, 219 JL 14158 (WH 55), 227 JL 14168 (WH 858), 68 JL 14173 (WH 895), 51 n. 37, 51, 230 JL 14174 (WH 844), 90 JL 14183 + 13897 (WH 346), 224 JL 14209 (WH 1039), 192 JL 14256 (WH –), 88, 90 n. 285 JL 14345 (WH 195), 73 JL 14347 (WH 872), 188–189, 197 n. 73, 198 JL 14349 (WH 380), 195–196, 197 n. 73 JL 14350 (WH 873), 78, 191 JL 14351 (WH 533), 197 JL 14365 (WH 846), 36 n. 148 JL 14372 (WH –), 195 JL 14517 (WH –), 191–192 JL 14674 (WH –), 195 JL 14699 (WH –), 195 JL 14965 (WH 61), 88 JL 15000 (WH –), 192–193 JL 15109 (WH 13), 73 n. 173, 188 JL 15377 (WH –), 129, 188 n. 25 JL 15576 (WH –), 193 JL 15634 (WH –), 192 n. 50

General Index JL 15754 (WH 796), 186 JL 16579 (WH 259), 192 JL 16607 (WH 1035), 88 JL 16634 (WH 820), 192 Liber Censuum, 141, 142, 150, 158, 172, 249 Limoges, bishop of, 207 Linköping, bishop of, 192 Lombard, master and cardinal, 123 Louis VI, king, 69 Louis VII, king, 13, 59, 138 Lucius III, pope, 78, 88, 129, 190, 191–193, 212, 225 Lund, archbishop of, 192 Magdeburg, archbishop of, 70 maior et sanior pars, 159, 205, 206 Mansi, Giovann Domenico Sacrorum Conciliorum, Nova et Amplissima Collectio, 154, 200–201 Martin I, pope, 118 Matthew of Angers, master and cardinal, 96, 123 mercenaries, 59–60, 173–180 Meulan, hospital at, 88 Michael, master and legate, 210–211 military orders, 80–86, 223 criticism of, 82–83 privileges of, 81, 84, 85–86, 109–110, 190–191, 194 burial, 84–85 celebrating office under interdict, 85 ringing bells, 82, 85 tithes, 86 Montecassino, monks of, 198 Moses, master, 22 Nicholas II, pope, 129 Notley, priory at, 208–210 Nottingham, clerics of, 80 Omnebene, canonist and bishop, 20 Ordinaturus Magister, gloss apparatus, 101, 118, 233, 255 Osdayn, hospital at, 88 Øystein of Trondheim, archbishop, 188 papacy authority of, 32–34 curia, 21 papal councils and papal policy, 45 as legislation, 127 authority of, 33, 134–138, 180–182 interpretation of, 194 modification of, 195–196

promulgation of acta of, 128–132 theory of, 37–39, 127–128 papal letters, 46–50 appeals, 47–48 decretals authority of, 33–36 definition of, 50–52 survival, 30–31 promotion of a papal agenda, 34–35 recipients of, 33–36 Paschal II, pope, 42, 229 Peace and Truce of God, 224 Peter Comestor, master, 65, 66 Peter Lombard Sentences, 18, 19, 133 Peter of Blois, master and cleric, 253 Peter of Celle, abbot and bishop, 207 Peter of Pavia, cardinal, 53, 60–61, 65, 92, 96, 241 Peter of St Agatha, cardinal, 15 Peter the Chanter, theologian, 133, 185 Philip II, king, 69 Premonstratensian Order, 192–193 privileges, abuses of, 82 protections of non-combatants, 120 Rainald of Dassel, arch-chancellor and archbishop, 56 Rainier, master and cardinal, 96 Ralph Diceto, chronicler, 16, 154 Ramon Berenguer IV, king, 14 Raymond des Arènes, cardinal, 21 Raymond of Peñafort, canonist and theologian, 185, 225, 230, 232 Reims, archbishop of, see Samson, archbishop; Henry de France, archbishop; William Whitehands, archbishop and cardinal familia, 23 Reims, province of, 200 Ricardus Anglicus, canonist, 212 Richard I, king, 69 Richard of Coventry, bishop, 90 Richard of Dover, archbishop, 44, 65, 74, 78–79, 91, 195–196, 208–210, 215, 246 Richard of Ilchester, bishop, 64 Richard Poore, bishop, 212 Rievaulx Cartulary, 16, 137, 150, 155, 171, 250 Rievaulx, abbey of, 250 Robert de Chesney, bishop, 22 Robert Foliot, bishop, 22 Robert of Torigny, abbot and historian, 134 Robert, archdeacon of Essex, 193 Roger of Cambrai, bishop, 202, 206 Roger of Howden, chronicler, 15, 16, 17, 133, 136, 146, 154

305

General Index Roger of Howden, chronicler (cont.) Chronica, 134, 150, 158, 162, 171, 250 Gesta, 134, 150, 158, 162, 171, 250 Roger of Pont-l’Evêque, archbishop, 191 Roger of Wendover, chronicler, 146, 154 Flores Historiarum, 150, 155, 251 Roger of Worcester, bishop, 20, 22, 48, 79, 180 Rolandus, canonist, 19 Rommersdorfer Briefbuch, 142, 162, 214, 252 Rotrou, archbishop, 18, 204 Rouen, archbishop of, see Rotrou, archbishop; Walter of Coutances, archbishop Rouen, province of, 200 Rudolf of Zähringen, bishop, 195, 202 Rufinus of Assisi, bishop, 97 Rufinus, canonist, 33, 97 Samson, archbishop, 60, 200 Saracens, Christian trade with, 192, 197, 236 schools and the licentia docendi, 63–67, 197–198, 219, 236 Sens, archbishop of, 84, see also William Whitehands, archbishop and cardinal Sicard of Cremona, canonist and bishop, 20, 97, 178, 235 Silvester, canonist, 22, 23 Simon of Bisignano, canonist, 26, 30, 97, 98, 235 Simon of Sywell (Southwell), canonist, 23, 212 simony monastic entrance gifts, 205 St Augustine’s, Canterbury, 79 St Germain-des-Prés, abbot and brothers of, 80 St Martial, Limoges, abbey of, 137, 178–179 and law, 178–179 St Mary Magdalene, Davington, nuns of, 192 St Mary’s, Soissons, abbess of, 191–192 St Pierre sur Dives, abbey of, 90 St Quentin, canons of, 80 St Ruf, canons of, 23 St Sever, abbey of, 201 St Vaast, Arras, abbey of, 84 St Victor, monastery of, 79 Stephen Langton, archbishop, 252 Stephen of Meaux, bishop, 79 Stephen of Tournai, canonist, abbot, and bishop, 20, 33, 98 Symeon of Durham, chronicler, 141 Tegernsee, monastery of, 193 Theobald of Bec, archbishop, 2, 7

Thomas Becket, archbishop, 3, 12, 21, 70–71 Becket dispute, 123 tithe exemptions and privileges, 35, 47, 51, 86, 89, 192–193, 208–210 Toul, bishop of, 187 tournaments, 69–71 Urban II, pope, 38, 128, 174, 187 Urban III, pope, 21, 186, 193, 195, 202, 206, 225 usury, 102, 205, 238 Vacarius, lawyer and master, 23 Valenciennes, hospital at, 88 Vallombrosan order congregations of 1179 and 1188, 141, 205–206 Victor IV, (anti-)pope, 13–14 visitations, 79–80, 193–194 archidiaconal retinues, 79–80, 203 episcopal, 112–116 and hunting, 112–114, 236 retinues, 115, 192–193, 208, 233 sumptuous meals, 171–173 Vivian, master and cardinal, 95 Walter Map, courtier, 17, 82, 134, 194 De Nugis Curialium, 83 Walter of Coutances, canonist and archbishop, 22, 202–205 Walter, master and prior, 209 Walther-Holtzmann Kartei, xxiii, 50 William Longchamp, bishop, 200 William of Blois, bishop, 212 William of Malmesbury, historian, 60 William of Newburgh, canon and historian, 14, 40, 141, 142, 155 Historia, 147, 150, 251 William of Saltmarsh, bishop, 207, 208 William of Thame, abbot, 209 William of Tyre, archbishop, 15, 16, 82–83, 131, 135, 140, 174, 243 William Whitehands, archbishop and cardinal, 18, 21, 79, 180, 197–198 Winchester, bishop of, 228 Worcester, bishop of, 191, 193–194, 215, See also Roger of Worcester, bishop York, dean and chapter of, 211

306