122. The Canon Law
Literature: Decretum Gratiani emendatum et notationibus illustratum. Una cum glossis, Gregorii XIII. Pont. Max. jussu editum, 6 vols. Rome, 1582. — Corpus juris canonici, ed. J. H. Böhmer, 2 vols. Halle 1747, with Introductions by Böhmer on Gratian’s Decretum, I. 1-42, and the later collections of decretals, II. 1-34. — Best critical ed. by A. L. Richter, 2 vols. Leip., 1839, revised ed. by E. Friedburg Leip., 1879-1881, 2 vols. (vol. I., Decret. Gratiani, vol. II., Decretalium collectiones). — J. Fr. von Schulte (Old-Cath. Prof. in Bonn): D. Gesch. der Quellen und Lit. des kanonischen Rechts von Gratian bis auf die Gegenwart, 3 vols. Stuttg., 1875-1880. — Dodd: Hist. of canon Law, Oxf., 1884. — T. Hinschius: D. Kirchenrecht d. Katholiken und Protestanten, etc., 6 vols. Berl., 1869-1897. — E. Friedberg: Lehrbuch des kath. und evangel. Kirchenrechts, 6th ed., Leip., 1903. — A. von Kirchenheim: Kirchenrecht, Bonn, 1900. — P. Hergenröther (Rom. Cath.): Lehrbuch d. kathol. Rechts, 2d. ed., Freib., 1905. — Other works by Walter, 14th ed., 1877. — Richter-Dove, 8th ed., Leip., Phillimore: The Eccles. Law of the Ch. of Engl., 2 vols. London, 1873, Supplem., 1876. — F. W. Maitland: Rom. Can. Law in the Ch. of Engl., Lond., 1898. — The artt. in Herzog, vol. X. Kanonen-Sammlungen, Kanonisches Rechtsbuch, Kirchenrecht. — Stubbs: Const. Hist. of Engl., II. 170 sqq., III. 295-388. — For extensive list of works on canon Law, see Friedberg: Kirchenrecht, pp. 3-11, and Hergenröther: Kirchenrecht, pp. 15 sqq.
Not the least of the characteristic and imposing products of the medieval Church was the gigantic fabric of the canon law. It is embodied in a series of collections containing enactments of Councils and papal decretals, beginning with the collection of Gratian in the twelfth century and ending with the decretals of John XXII. in the fourteenth century. The canon law became the legal buttress of the papal theocracy and remained the ruling code till the Reformation.
The science of canon law looks back to Gratian as its father, and Bologna was the chief centre for its study. Although works on the subject were produced in other lands, Italy, through her universities, was far in the lead in their production till late in the fifteenth century.
Under the Roman state, the religious laws — the jus sacrum, jus pontificium — were not a distinct body of legislation. In the Christian Church the conception of a distinct and superior divine law existed from the beginning. The formulation of a written code followed the meeting of Christian synods and their regulations. As the jurisdiction of the hierarchy and the institution of the medieval papacy were developed, this legislation came to include civil obligations and all civil penalties except the death penalty. The Church encroached more and more upon the jurisdiction of the civil court. Conflict was inevitable. Not only was the independence of civil law as a distinct branch of procedure threatened, but even its very existence. It was not till the fourteenth century that the secular governments were able successfully to resist such encroachments and to regain some of the just prerogatives of which the civil courts had been robbed. “Oh, that the canon law might be purged from the superfluities of the civil law and be ordered by theology,” exclaimed Roger Bacon, writing in the thirteenth century. “Then would the government of the Church be carried on honorably and suitably to its high position.”
Gratian’s work was preceded by the Penitential Books and a number of imperfect collections of ecclesiastical decisions, the chief of which were, two books of synodal cases by Regino d. 915, the collections of Burchard, bishop of Worms d. 1025, Anselm of Lucca d. 1086, Cardinal Deusdedit about 1087, and Ivo of Chartres d. 1117. The pseudo-Isidorian decretals also belong to this class and they were much used, especially by Burchard.
The work of Gratian superseded these earlier compilations, and it enjoys the honor of being the monumental work on canon law. Gratian, a Camaldulensian monk, and an Italian by birth, taught at the convent of St. Felix, Bologna, at the same time that Irnerius was teaching civil law in the same city. No details of his life have been handed down. His biography is his great compilation which was made about 1140-1150. Its original title, A Concordance of Differing canons, concordantia canonum discordantium, has given way to the simple title, Decretum, the Book of Decrees. The work was a legal encyclopedia, and at once became the manual in its department, as the Sentences of the Lombard, Gratian’s contemporary, became the manual of theology. This recognition was not due to formal, papal, or synodal sanction, for it never received any. It was issued again and again by learned commentators, the first being one of Gratian’s pupils, Paucapalea. These editors and commentators were called Summists or Glossarists. The official Roman edition was prepared by a papal commission of thirty-five members and issued by Gregory XIII. in 1582. Gregory declared the text to be forever authoritative, but he did not pronounce upon the contents of Gratian’s work.
Gratian’s aim was to produce a work in which all real or apparent contradictions between customs and regulations in vogue in the Church should be removed or explained. This he secured by exclusion and by comments, called the dicta Gratiani, sayings of Gratian. The work is divided into three parts. The first, in one hundred and one sections or distinctiones, treats of the sources of canon law, councils and the mode of their convention, the authority of decretals, the election of the Roman pontiff, the election and consecration of bishops, the papal prerogative, papal legates, the ordination of the clergy, clerical celibacy, and kindred topics. The second, in thirty-six sections or causae, discusses different questions of procedure, such as the ordination and trial of bishops and the lower clergy, excommunication, simony, clerical and church property, marriage, heresy, magic, and penance. The third part is devoted to the sacraments of the eucharist and baptism and the consecration of churches. The scholastic method is pursued. A statement is made and objections, if any, are then formally refuted by citation of synodal acts and the testimony of the Fathers, popes, and other churchmen. The first distinction opens with the statement that the human race is governed by two principles, natural law and customs. Then a number of questions are propounded such as what is law, what are customs, what kinds of law there are, what is natural law, civil law, and the law of nations?
Gratian’s volume was soon found to require supplement. The two centuries following its appearance were most fruitful in papal decrees, especially in the pontificates of Alexander III., Innocent III., and Gregory IX. These centuries also witnessed the Lateran and other important Councils. The deliverances of popes and synods, made subsequently to the age of Gratian, were called extravagantes or fugitives. Five compilations, called “the old compilations,” were made from 1191 to 1226. The third of these, issued by authority of Innocent III. and containing his decretals, was sent by that pontiff to the university of Bologna to be included in its course of instruction. This compilation was the first book of canon law having papal sanction.
The demand for a complete collection of these materials induced Gregory IX. to commit the task of gathering them into a single volume to his chaplain Raymund de Pennaforte. The work, usually called Decretales Gregorii IX, was finished and sent to Paris and Bologna in 1234 with the direction that it be used for purposes of instruction, and in the trial of cases. The preparation of other compilations was strictly forbidden. Gregory’s collection comprises 185 titles and 1871 decretals and follows the fivefold division of Bernard of Pavia’s work.
A new collection, called the Sixth Book, liber sextus — or, as by English writers, the Sext, — was issued by the authority of Boniface VIII., 1298, and carried the collections of Gratian and Gregory IX. into Boniface’s reign. In 1314, Clement V. issued another collection, which included his own decretals and the decrees of the council of Vienne and was called the Seventh Book, liber septimus, or the Clementines. In 1317, John XXII. officially sent Clement’s collection to the universities of Bologna and Paris. Subsequent to the publication of the Clementines, twenty of John’s own decretals were added. In 1500 John Chappuis, in an edition of the liber sextus and the Clementines, added the decretals of John and seventy-one of other popes. This series of collections, namely, Gratian’s Decretum, Gregory IX,’s Decretales, the Sext, the Clementines, and the Extravagantes of John XXII., constitutes the official body of canon law — corpus juris canonici — and was published in the edition of Gregory XllI.
The canon law attempted the task of legislating in detail for all phases of human life — clerical, ecclesiastical, social, domestic — from the cradle to the grave by the sacramental decisions of the priesthood. It invaded the realm of the common law and threatened to completely set it aside. The Church had not only its own code and its specifically religious penalties, but also its own prisons.
This body of law was an improvement upon the arbitrary and barbaric severity of princes. It, at least, started out from the principles of justice and humanity. But it degenerated into an attempt to do for the individual action of the Christian world what the Pharisees attempted to do for Jewish life. It made the huge mistake of substituting an endless number of enactments, often the inventions of casuistry, for inclusive, comprehensive moral principles. It put a crushing restraint upon the progress of thought and bound weights, heavy to be borne, upon the necks of men. It had the virtues and all the vices of the papal system. It protected the clergy in the commission of crimes by demanding that they be tried in ecclesiastical courts for all offences whatsoever. It became a mighty support for the papal claims. It confirmed and perpetuated the fiction of the pseudo-Isidorian decretals and perpetrated new forgeries. It taught that the decisions of Rome are final. As Christ is above the law, even so is the pope. Döllinger closes his examination of the Decretum, by pronouncing it; “filled through and through with forgery and error” and says “it entered like a mighty wedge into the older structural organization of the Church and split it apart.”
The canon law also gave its sanction to the devilish principle of ecclesiastical compulsion, declaring that physical force is to be used to coerce ecclesiastical dissidents. It justified wars against the enemies of religion and the persecution of heretics, even as Sarah, the type of the heavenly Jerusalem, persecuted her handmaid Hagar. And it declared, with Urban II., that he who kills one who is under the sentence of excommunication is not to be dealt with as a murderer. These principles, set forth in clear statements, were advocated by Thomas Aquinas and the other Schoolmen and asserted by the greatest of the popes.
At last the legalistic tyranny became too heavy for the enlightened conscience of Europe to bear, as was the case with the ceremonial law in the days of the Apostles, against which Peter protested at the council of Jerusalem and Paul in his Epistles. The Reformers raised their voices in protest against it. Into the same flames which consumed the papal bull at Wittenberg, 1520, Luther threw a copy of the canon law, the one representing the effrontery of an infallible pope, the other the intolerable arrogance of a human lawgiver in matters of religion, and both destructive of the liberty of the individual. In his Address to the Christian Nobles, Luther declared that it did not contain two lines adapted to instruct a religious man and that it includes so many dangerous regulations that the best disposition of it is to make of it a dung heap.
Even in the Catholic world its enactments have been largely superseded by the canons of the council of Trent, the papal decretals issued since, and the concordats between Catholic princes and the papal see. By virtue of his official infallibility, the pope may at any time supersede them by decisions and dispensations of his own.
The words of Goethe may be applied to the canon law: —
Es erben sich Gesetz und Rechte
Wie eine ewige Krankheit fort
Sie schleppen von Geschlecht sich zum Geschlechte
Und schleichen sich von Ort zu Ort
Vernunft wird Unsinn, Wohlthat Plage.
123. The Papal Supremacy in Church and State
Literature: See the chapp. on Gregory VII. and Innocent III., and the works there cited. — Bernard: de consideratione, Migne, 182. 727-808. — Th. Aquinas: de regimine principum, and contra errores Graecorum. The latter ed. by *F. H. Reusch, d. 1900: D. Fälschungen in d. Tractat. d. Th. v Aq. gegen die Griechen, Munich, 1889. — The writings of Gregory VII., Alexander III., Innocent III., Gregory IX., etc. Corpus juris canonum, Friedberg’s ed. — *Mirbt: Quellen des Papstthums. — C. Lux: Constitutionum Apostolicarum de generali beneficiorum reservatione, 1265-1378, … collectio et interpr., Wratislav, 1904. — Maassen: Primat des Bischofs von Rom, Bonn, 1853. — Schulte: D. Macht des röm. Papstthums, Prag, 2d ed., 1871, — *Döllinger-Friedrich: D. Papstthum, Munich, 1892. — *F. X. Leitner: D. hl. Th. von Aquino über d. unfehlbare Lehramt d. Papstes, Franf., 1872. Leitner wrote in opposition to Döllinger, and his work is of much importance, — *Bryce: Holy Rom. Emp., VI-XI. — G. B. Adams: Civilizat. during the M. A. chap. X. — W. Barry: The Papal Monarchy, 590-1303, N. Y., 1902. — *J. Haller: Papsttum und Kirchenreform, Berlin, 1903. — *A. Hauck: D. Gedanke der päpstl. Weltherrschaft bis auf Bonifaz VIII., Leip., 1904. — Ranke: Weltgesch., vol. VI. — Harnack: Dogmengesch., II. 392-419. The manuals on Canon Law by Friedberg, Hinschius, Hergenröther.
The papal assumptions of Gregory VII. and Innocent III. have already been presented (§ 11, § 36). A large part of the history of this period is occupied by popes in the effort to realize the papal theocracy, from the opening struggle of Gregory VII. with Henry IV. to the death of Conradin, the Hohenstaufen. Their most vigorous utterances, so far as they are known, were not to summon men and nations to acts of Christian charity, but to enforce the papal jurisdiction. It is not the purpose here to repeat what has already been said, but to set forth the institution of the papacy as a realized fact and the estimate put upon it by Schoolmen and by the popular judgment.
Among the forty-one popes who occupied the chair of St. Peter from Gregory VII. to Boniface VIII., some, as has become evident, were men of rare ability, and occupy a place of first prominence as rulers. There were no scandals in the papal household such as there had been during the preceding period. No emperors from the North were required to descend upon Rome and remove pontiffs incompetent by reason of youth or profligacy. On the other hand, Rome had no reputation as a centre either of piety or of letters. Convents became noted for religious warmth, and Bologna, Paris, and other localities acquired a fame for intellectual culture, but Rome’s reputation was based solely upon her authority as a seat of ecclesiastical prerogative.
The sin of the popes was hierarchical pride, and yet we cannot help but be attracted by those imposing figures whose ideals of universal dominion equalled in ambition the boldest projects of the greater Roman emperors, but differed widely from theirs in the moral element which entered into them.
In this period the loftiest claims ever made for the papacy were realized in Western Europe. The pope was recognized as supreme in the Church over all bishops, and with some exceptions as the supreme ruler in temporal affairs. Protest there was against the application of both prerogatives, but the general sentiment of Europe supported the claims. To him belonged fulness of authority in both realms — plenitudo potestatis.
The Pope and the Church
A favorite illustration used by Innocent III. to support the claim of supremacy in the Church was drawn from the relation the head sustains to the body. As the head contains the plenitude of the forces of the body, and has dominion over it, so Peter’s successor, as the head of the Church, possesses the fulness of her prerogatives and the right of rule over her. The pope calls others to share in the care of the Church, but in such a way that there is no loss of authority to the head. Innocent II., in opening the second Lateran Council, had used the same figure, and declared that no ecclesiastical dignity was lawfully held except by permission of the Roman pontiff. According to Gregory VII., he can depose and appoint bishops as he wills. The principle that the Apostolic see is subject to no human jurisdiction, stated by Gelasius, 493, was accepted by Bernard, though Bernard protested against the pope’s making his arbitrary will the law of the Church. The Roman church, said Lanfranc, 1072, is, as it were, the sum of all churches, and all other churches are, as it were, parts of it. The arrangement of all church matters is only authoritative when approved by Peter’s successors.
The Fourth Lateran formally pronounced the Roman Church the mother and teacher of all believers, and declared its bishop to be above the patriarchs of Constantinople, Jerusalem, Antioch, and Alexandria in rank and authority. Leo IX., d. 1054, asserted this pretension against Caerularius, the patriarch of Constantinople. Innocent III. vindicated it by substituting a Latin patriarch for the Greek patriarch in that venerable see. The second council of Lyons, 1274, demanded that the Greeks should sign a document acknowledging the “full primacy” of the Roman pontiff and his right to rule over the universal Church.
This theory of papal absolutism found full theological and canonical recognition from Thomas Aquinas and Gratian. Gratian declared that to disobey the pope is to disobey God. Thomas reasoned that, as the bishop is head of a diocese, so there must of necessity be a supreme head uniting all dioceses and guaranteeing pure morals and teaching within the Church. The Church triumphant has one ruler, so also must the Church militant have one ruler, the pope. To the pope is committed the plenitude of power and the prelacy over the whole Church. To him belongs the right of determining what are matters of faith.
Bonaventura took the same ground. The pope is supreme in all matters pertaining to the Church. He is the source of authority in all that belongs to prelatic administration, yea his authority extends from the highest to the humblest member of the Church. Great bishops might have their disputes with the Apostolic see, but, in the end, they yielded to its claim of supreme jurisdiction. So it was with Robert Grosseteste, bishop of Lincoln. He declared, “I know and know full well, that our lord, the pope, has authority to freely act concerning all ecclesiastical benefices.”
Clement IV. was simply expressing the general opinion of Latin Christendom, when he claimed for the Roman pontiff the “full right to dispose of all churches, ecclesiastical dignities, positions, and benefices.”
Theoretically it is a disputed point whether an ecumenical council or the pope was regarded as supreme. But, in fact, popes controlled the legislation of the general Councils in this period as though they were supreme, and they fixed the legislation of the Church, as was the case with Gregory IX. The relative authority of pope and council did not become an urgent question till the thirteenth century.
The pope also claimed the right to levy taxes at will on all portions of the Church. This claim, definitely made by the popes of the second half of the thirteenth century, led to the scandalous abuses of the fourteenth century which shocked the moral sense of Christendom and finally called forth the Reformatory Councils of Pisa, Constance, and Basel.
Beginning with Innocent III., it became the fixed custom for the pope to speak of himself as the vicar of Christ and the vicar of God. He was henceforth exclusively addressed as “holiness” or “most holy” — sanctitas or sanctissimus.
The Pope and the Individual
For Cyprian’s motto, “there is no salvation outside of the Church,” was substituted, there is no salvation outside of the Roman Church. It was distinctly stated that all who refuse subjection to the pope are heretics. From the pope’s authority to loose and bind no human being is exempted. Nothing is exempted from his jurisdiction.
The Pope and the State
England, Poland, Norway, and Sweden, Portugal, Aragon, Naples, Sardinia, Corsica, and Sicily, not to speak of portions of Central Italy, were in this period, for a longer or shorter time, fiefs of the Apostolic see. In 1299, the same claim was made over Scotland. The nations from Edessa to Scotland and from Castile to Riga were reminded that Rome was the throbbing centre of divinely bequeathed authority. The islands of the West were its to bestow. To Peter was given, so Innocent wrote, not only the universal Church, but the whole earth that he might rule it. His practice, as we have seen, followed his pen. There was a time when the pope recognized the superior authority of the emperor, as did Gregory the Great in 593. Peter Damiani, writing in the age of Gregory VII., recognized the distinction and coordination of the two swords and the two realms. But another conception took its place, the subordination of all civil authority under the pope. To depose princes, to absolve subjects from allegiance, to actively foment rebellion as against Frederick II., to divert lands as in Southern France, to give away crowns, to extort by threat of the severest ecclesiastical penalties the payment of tribute, to punish religious dissenters with perpetual imprisonment or turn them over to the secular authorities, knowing death would be the punishment, to send and consecrate crusading armies, and to invade the realm of the civil court, usurp its authority, and annul a nation’s code, as in the case of Magna Charta, — these were the high prerogatives actually exercised by the papacy. The decision rendered on the field of Roncaglia by the jurists of Bologna, asserting the independent rights of the empire, was only an episode, and popes snapped their fingers at the academic impertinence. Now and then the wearers of the tiara were defeated, but they never ceased to insist upon the divine claims of their office. In vain did emperors, like Frederick II., appeal to the Scriptures as giving no countenance to the principle that popes have the right to punish kings and deprive them of their kingdoms.
The declarations of the popes were clear and positive. The figures employed by Gregory VII., comparing the two realms to gold and lead, sun and moon, soul and body, Innocent elaborated and pressed. Gregory asserted that it rested upon him to give account for all the kingdoms of God. To him had been committed universal dominion — regimen universale. Innocent III. found in Melchizedek, the priest-king, the full type of the pope combining in himself the sacerdotal and regal functions.
Men of less originality and moral power could do no more than reaffirm the claims of these two master rulers and repeat their metaphors. Of these no one had more self-assurance than Gregory IX., who, at an age when most men are decrepit, bravely opposed to Frederick II.’s plans the fiction of the Donation of Constantine. Was not the Roman sceptre committed to the Apostolic see by the first Christian emperor, and did not the Apostolic see transfer the empire from the Greeks to the Germans, Charlemagne and Frederick himself being the successors of Arcadius, Valentinian, Theodosius, and the other Christian emperors of Rome. But Innocent IV., 1254, returned to the position assumed by Hildebrand, that the papacy does not depend upon Constantine for secular dominion, as Peter received it directly from God.
When the struggle with the Hohenstaufen had been brought to a close, and peace established by the elevation of Rudolf of Hapsburg to the imperial throne, Gregory X. wrote to Rudolf: “If the sacred chair is vacant, the empire lacks the dispenser of salvation; if the throne is empty, the Church is defenceless before her persecutors. It is the duty of the Church’s ruler to maintain kings in their office, and of kings to protect the rights of the Church.” This was a mild statement of the supremacy of the Apostolic see. It remained for Boniface VIII., in his famous bull, unam sanctam, 1302, to state exactly, though somewhat brusquely, what his predecessors from Hildebrand, and indeed from Nicolas I., had claimed — supreme right to both swords, the spiritual and the temporal, with the one ruling the souls of men and with the other their temporal concerns.
These claims were advocated in special treatises by Bernard and Thomas Aquinas, two of the foremost churchmen of all the Christian centuries. Bernard was the friend of popes and the ruling spirit of Europe during the pontificates of Innocent II. and Eugenius III. the mightiest moral force of his age. Thomas Aquinas wrote as a theologian and with him began the separate treatment of the papacy in systems of theology. In his Rule of Princes and against the Errors of the Greeks, Thomas unequivocally sets forth the supremacy of the Apostolic see over the State as well as in the universal Church. As for Bernard, both Ultramontane and Gallican claim his authority, but there are expressions in his work addressed to Eugenius III., De consideratione, which admit of no other fair interpretation than that the pope is supreme in both realms.
Bernard’s treatise, filling eighty compact columns in the edition of Migne, summons Eugenius, whom he addresses as his spiritual son, to reflect in four directions: upon himself, upon that which is beneath him, upon that which is around about him, and upon that which is above him. Such a voice of warning and admonition has seldom been heard by the occupant of a throne. The author was writing, probably, in the very last year of his life.
Meditating upon himself, it became the pope to remember that he was raised to his office not for the sake of ruling but of being a prophet, not to make show of power but to have care of the churches. The pope is greatest only as he shows himself to be a servant. As pontiff, he is heir of the Apostles, the prince of bishops. He is in the line of the primacy of Abel, Abraham, Melchizedek, Moses, Aaron, Samuel, and Peter. To him belong the keys. Others are intrusted with single flocks, he is pastor of all the sheep and the pastor of pastors. Even bishops he may depose and exclude from the kingdom of heaven. And yet Eugenius is a man. Pope though he is, he is vile as the vilest ashes. Change of position effected no change of person. Even the king, David, became a fool.
The things beneath the pope are the Church and all men to whom the Gospel should be preached.
The things around about the pope are the cardinals and the entire papal household. Here, greed and ambition are to be rebuked, the noise of appealed judicial cases is to be hushed, worthy officials are to be chosen. The Romans are a bad set, flattering the pontiff for what they can make out of his administration. A man who strives after godliness they look upon as a hypocrite.
The faithful counsellor waxed eloquent in describing the ideal pope. He is one of the bishops, not their lord. He is the brother of all, loving God. He is set to be a pattern of righteousness, a defender of the truth, the advocate of the poor, the refuge of the oppressed. He is the priest of the Highest, the vicar of Christ, the anointed of the Lord, the God of Pharaoh; that is, he has authority over disobedient princes.
Bernard distinctly grants the two swords to the pope, who himself draws the spiritual sword and by his wink commands the worldly sword to be unsheathed. It is true he lays stress upon Peter’s Apostolic simplicity and poverty. Peter wore no gems, was attended by no bodyguard, and sat on no white horse. In adopting such outward show “the popes had followed Constantine, not the Apostle.” It is also true that Bernard follows his generation in making the pope the viceregent of God on earth.
The views of Thomas Aquinas have already received notice (§ 108). His statements are so positive as to admit of no doubt as to their meaning. In the pope resides the plenitude of power. To the Roman Church obedience is due as to Christ. These are assertions made in his treatise against the errors of the Greeks written at a time when the second council of Lyons was impending and measures were being taken to heal the schism between the East and the West. The pope is both king and priest, and the temporal realm gets its authority from Peter and his successors. Thomas went further still. He declared for the infallibility of the pope. In confirmation of this view he quoted spurious writings of Cyril, but also genuine passages from the Fathers.
The popular opinion current among priests and monks was no doubt accurately expressed by Caesar of Heisterbach at the beginning of the thirteenth century when he compared the Church to the firmament, the pope to the sun, the emperor to the moon, the bishops to the stars, the clergy to the day, and the laity to the night.
We stand amazed at the vastness of such claims, but there can be no doubt that they were sincerely believed by popes who asserted them and by theologians and people. The supremacy of the Roman pontiff in the Church and over the State was a fixed conviction. The passage, Render unto Caesar the things that are Caesar’s and unto God the things that are God’s, quoted to-day for the separation of the two realms, was quoted then but with another interpretation. The Church was defined, as it had been defined by Augustine, as the university of believers by Hugo of St. Victor, — universitas fidelium, — or as the congregation of the faithful confessing Christ and the arsenal of the sacraments by Alanus de Insulis. But the idea of the individual liberty of the Christian and his immediate responsibility to Christ, as revealed through the New Testament, had no hold. As a temporary expedient, the fiction of papal sovereignty had some advantage in binding together the disturbed and warring parts of European society. The dread of the decisions of the supreme pontiff held wild and lawless temporal rulers in check. But the theory, as a principle of divine appointment and permanent application, is untenable and pernicious. The states of Europe have long since outgrown it and the Protestant communions of Christendom can never be expected to yield obedience to one who claims to be the vicar of Christ, however willing they may be to show respect to any Roman bishop who exhibits the spirit of Christ as they did to Leo XIII.
124. The Pope and the Curia
Literature: For the election of a pope. — The text of the laws of Nicolas II. and Gregory X. is given in Mirbt: Quellen, 57 sqq., 146, Friedberg’s ed. of Gratian, I. 78 sq. — W. C. Cartwright: The Papal Conclave, Edinb., 1868. — Zöpffel: D. Papstwahlen etc. vom 11-15. Jahrh., Götting., 1871. — T. A. Trollope: The Papal Conclaves as they were and as they are, Lond., 1876. — L. Lector: Le conclave, etc., Paris, 1894. — Hefele-Knöpfler, IV. 800-826; VI. 146 sqq. — Schwane: Dogmengesch., pp. 522-589. — Friedberg: Kirchenrecht, pp. 165 sqq. — Hergenröther, Kirchenrecht, pp. 267-302. — Artt. Papstwahl., in Herzog, XI. 213-217, by Hinschius and Wetzer-Welte, IX. 1442-1461.
For the financial policy of the curia. — B. P. Woker: D. kirchl. Finanzwesen d. Päpste, Nördl., 1878. — Fabre: Le libre censuum de l’église Romaine, Paris, 1892. — *M. Tangl: D. Taxenwesen der päpstl. Kanzlei vom 13. bis zur Mitte des 15. Jahrh., Innsbr., 1892. — *J. P. Kirsch: Die Finanzverwaltung des Kardinalkollegiums im XIII. und XIV. Jahrh., Munster, 1895. — *P. M. Baumgarten: Untersuchungen und Urkunden über die Camera Collegii Cardinalium, 1295-1437, Leip., 1898. — *A. Gottlob: D. päpstl. Kreuzzugssteuern des 13. Jahrh., Heiligens., 1892; *D. Servitientaxe im 13. Jahrh., Stuttg., 1903. — *O. Jensen: D. englische Peterspfennig, Heidelb., 1903. — Haller: Papsttum u. Kirchenreform, Berlin, 1903. — Hurter: Inn. III., IV. 161 sqq. — For add’l lit. bearing on the financial policy of the popes, especially in the 14th century, see Part II. of this vol. under John XXII.
The curia is the designation given to the cardinals and minor officials of the papal household. Its importance increased greatly in this period through the centralization of authority in Rome. The pope was forced to employ an army of notaries, advocates, procurators, and other officials to share, with him the burdens of the vast amount of business brought to his attention.
In a restricted sense, the word “curia” is applied to the college of cardinals. This body came to sustain to the pope a relation similar to the relation sustained by the chapter to the bishop and a cabinet to a prince. At the ecumenical councils of Lyons, 1245 and 1274, its members were given precedence over all other ecclesiastical dignitaries.
The legislation fixing the mode of choosing the pope originated in this period with Nicolas II., speaking through the council of Rome 1059, and Gregory X., speaking through the second council of Lyons, 1274. From the ninth century, the emperor had claimed the right to confirm or veto papal elections, a right set aside under the influence of Gregory VII. The law of Nicolas, conforming to Gregory’s views, confined the right of election to the cardinals, and this became their primary function. It marks an important step in the complete independence of the papacy, though it was not strictly enforced till after its confirmation by Alexander III, at the Third Lateran, 1179. A majority of two-thirds of the cardinals was made necessary for an election. An important provision made papal elections conducted outside the city of Rome valid.
More precise regulations were shown to be necessary by the long pontifical vacancy of nearly three years following the death of Clement IV. (d. 1268). The law, as perfected under Gregory X., is, with slight modifications, still in force. It provides that, within ten days of a pope’s decease and in the same building where he expired, the cardinals shall assemble to choose a successor. The conclave, — from clavis, meaning key, — or room of meeting, has given its name to the assembly itself. During the progress of the vote, the assembled ecclesiastics are kept secluded from the outside world and receive food through a window. If after three days no conclusion has been reached, the fare is reduced to a single dish for supper and a single dish for dinner. Should eight days pass without a choice, the fare is reduced to bread and wine. The secular authorities are intrusted with the duty of guarding the conclave against interruption and violence.
The committees, or congregations, into which the cardinals are now grouped is of late origin. The oldest, the Holy Office or Congregation of the Inquisition, was established 1542. The red hat was conferred upon them, as a sign of their office, by Innocent IV., 1245; the purple mantle, two hundred years later, by Paul II., 1464. They wear a sapphire ring and by the enactment of Urban VIII., 1630, are addressed as “Eminence.” In 1586 their number was limited by Sixtus V. to seventy. The exact membership within this limit is dependent upon the pleasure of the reigning pontiff. The largest number at any time was under Pius IV., 1559, when there were seventy-six. In the latter half of the thirteenth century the number often ran very low and at one time was reduced to seven. Since Urban VI., 1378-1382, none but a cardinal has been elevated to the papal dignity. The pope’s right to abdicate is based upon the precedents of Gregory VI., 1046, Coelestin V., 1294, and Gregory XII., 1415.
The pope’s coronation and enthronement were an occasion of increasing pomp and ostentation and were usually celebrated with a procession through the city from St. Peter’s to the Lateran in which the nobility and civil authorities as well as the pope and the higher and lower clergy took part. The tiara, or triple crown, seems not to have been used till the reign of Urban V., 1362-1372. This crown is regarded as symbolical of the pope’s rule over heaven, earth, and the lower world; or of his earthly power and his power to loose for time and eternity; or of Rome, the Western patriarchate and the whole earth.
To this period belongs the development of the system of papal legates which proved to be an important instrumentality in the extention of the pope’s jurisdiction. These officials are constantly met with from the pontificate of Gregory VII. Clement IV. likened them to the Roman proconsuls. They were appointed to represent the Apostolic see on special occasions, and took precedence of the bishops in the regions to which they were sent, presided at synods, and claimed for themselves the respect due to the pope himself.
Gregory VII., in commending a legate, quoted Luk_10:16, “whosoever heareth you, heareth me also.” He was represented by Cardinal Hugo in Spain and by other legates in Sardinia, France, Denmark, Poland, and England. Hildebrand himself had represented the popes on special missions, and Adrian IV. won distinction by his successful administration of the legatine office in Northern Europe. Papal legates were present at the coronation of William the Conqueror, 1070.
Legates had the reputation of living like princes and depended for their support upon the countries to which they were despatched. Their encroachment upon the prerogatives of the episcopate and their demands for money called forth bitter complaint from one end of Europe to the other. Barbarossa wrote Adrian IV., refusing to receive the papal legates because they came to him as plunderers and not as priests. John of Salisbury and Matthew Paris joined St. Bernard in condemning their assumption and rapacity. Bernard succeeded in finding only two cases of incorruptible legates. One, Martin, who had been sent to Dacia, returned to Italy so poor that he could with difficulty get to Florence and would have had to foot it from there to Rome but for the loan of a horse. Bernard felt his description would be regarded as an idle tale, a legate coming back from the land of gold without gold and traversing the land of silver without possessing silver! The other case was the legate Gaufrid of Aquitaine who would not accept even fish and vegetables without paying for them so that no one might be able to say, “we have made Abraham rich,” Gen_14:23.
Salimbene, the genial Franciscan chronicler, also gives us a dark picture of papal legates of Northern Italy, some of whom he had known personally. He gives the names of twelve, four of whom he specially accuses of unchastity, including Ugolino, afterwards Gregory IX., and mentioning some of their children by name. Two of them were hard drinkers. He makes the general charge that legates “rob the churches and carry off whatsoever they can.”
As the ultimate legal tribunal of Western Europe, the papal court assumed an importance never dreamed of before. Innumerable cases of appeal were brought before it. If the contestants had money or time, no dispute was too trivial to be contested at Rome. Appeals poured in from princes and kings, chapters and bishops, convents and abbots. Burchard of Ursperg says that there was not a diocese or parish which did not have a case pending at Rome, and all parties who went had their hands full of gold and silver. There was a constant procession of litigants to the Eternal City, so that it once more became literally true that all roads led to Rome. The hours of daylight, as Bernard lamented, were not long enough for these disputes, and the hearings were continued into the night. Appeals were encouraged by the curia, who found in them an inexhaustible source of revenue. Bernard, writing to Eugenius, lamented the time the chief bishop of Christendom took from his proper duties, and consumed upon the hearing of common lawsuits and personal complaints. The halls of the papal palace rang with the laws of Justinian rather than the precepts of the Lord. Bernard himself recognized the right of appeal as an incontestable privilege, but would have limited it to the complaints of widows and the poor, and excluded disputes over property.
The expression ad calendas Graecas became proverbial in Rome for delays of justice till one party or the other was dead or, worn out by waiting, gave what was demanded. The following example, given by Bernard, will indicate the extent to which the right of appeal was carried. A marriage ceremony in Paris was suddenly checked by a complainant appearing at the altar and making appeal to Rome against the marriage on the ground that the bride had been promised to him. The priest could not proceed, and bride and bridegroom had to live apart until the case was argued before the curia. So great did the curia’s power become that its decision was regarded as determining what was sound doctrine and what was heresy.
In the thirteenth century, the papal exchequer gained an offensive notoriety through the exactions of the curia, but it was not till the fourteenth century, during the period of the Avignon exile, that they aroused a clamorous protest throughout Europe. The increased expenses of the papal household called for large sums, and had to be met. The supreme pontiff has a claim upon the entire communion over which he presides, and the churches recognized its justice. It was expressed by Pascal II. when he wrote to Anselm of Canterbury, 1101: “You know well our daily necessities and our want of means. The work of the Roman church inures to the benefit of all the churches, and every church which sends her gifts thereby recognizes not only that they are in debt to her but to the whole of Christendom as well.” It was the scandalous abuse of this just claim that called forth bitter complaint.
As bearing on the papal revenues early in the thirteenth century, a ledger account of the income of Innocent III. has come down to us, prepared by his chamberlain, Cencius, afterwards made a cardinal. Of the 633 bishoprics therein listed, 330 paid tribute of one kind or another to Rome. In addition to gifts of money, all sorts of articles are catalogued — vegetables, wine, grain, fish, wood, wax, linen, yokes of oxen, horses. — Convents, churches, and hospitals made contributions to the pope’s wants. The abbot of Reichenau, at his induction, sent two white horses, a breviary, and a book of the Gospels. A hospital in the see of Terouanne sent 100 herrings, St. Basil’s, in Rome, two loads of fish.
In the latter half of the thirteenth century, the administration of the papal finances was reduced to a system, and definite rules were adopted for the division of the revenues between the pope and the college of cardinals. We are restricted to a single tax list for this period, while for the first half of the fourteenth century we have a number of detailed and highly interesting ledger accounts which give the exact prices levied for papal privileges of all sorts. There, we have fiscal contracts drawn up between prelates and papal officials and receipts such as would be expected in a careful banking system. These lists and other sources of information enable us to conclude what methods were practised from 1250-1300.
The sources from which the papal treasury drew its revenues were the annual tributes of feudal states, called census, payments made by prelates and other holders of church benefices called servitia, visitationes, and annates; and the occasional taxes levied upon the Church at large, or sections of it, for crusades and other special movements. To these usual sources of revenue are to be added assessments for all sorts of specific papal concessions and indulgences.
The servitia, visitationes, and annates, originally freewill offerings of the clergy, had come by the end of the thirteenth century to be recognized as obligatory assessments. The annates were payments made by papal appointees of a portion of a year’s income of benefices which the pope reserved to himself the right of filling, such as prebends, canonries, and other livings. The portion was usually one-half. The visitationes were payments made by prelates; that is, archbishops, bishops, and abbots on their visits in Rome. These visits were made at fixed periods, the time being settled by law. The prelates, on taking their oath of office, obligated themselves to make them.
The servitia were gifts of money paid by archbishops, bishops, and abbots at their confirmation in office. They constituted a large source of revenue. The amounts to be paid in each case were computed upon the basis of a year’s income. Once fixed they remained fixed and obligatory until new valuations were made. The levy was usually, though not uniformly, one-third of a year’s income. The exact origin of this form of tribute is not known, but it was recognized as custom, having the force of law before the reign of Nicolas III. (1277-1280), and probably as early as the middle of the thirteenth century. The tax was usually paid by the prelates on their visit in Rome, when the appointment was confirmed. Sometimes the obligation of payment was made through a commercial house.
The census included the taxes paid by the State of the Church, the assessments paid by convents and churches under the special protection of the Apostolic see, the tributes of the vassal-states, Naples, Sicily, Corsica and Sardinia, and England, and the income of Peter’s Pence. The tribute of 1000 marks, promised by John for England and Ireland, was over and above the amounts due from Peter’s Pence. The tribute of Sicily in 1272, amounting to 8000 oz. of gold, was divided into two equal parts by Gregory X., one part going to the cardinals. In 1307, a demand was made upon Charles II. of Naples for back payments on this account amounting to the enormous sum of 93,340 oz. of gold. In 1350, the amount due was 88,852 oz.
The custom of paying Peter’s Pence, or a stipulated amount for every household, was in vogue in England, Sweden, Denmark, Norway, Northern Germany, and Poland, but was never introduced into France though Gregory VII. attempted to collect it there but failed. Robert Guiscard, in 1059, pledged for Sicily twelve denarii for every yoke of oxen to be paid for all time. Far-off Greenland also added its contributions to this tax and it was paid under Olaf, bishop of Gardar, 1246.
During the second half of the thirteenth century, the custom was developed of dividing the revenues from visitationes, servitia, and census between the pope and the college of cardinals. Up to that time the cardinals had depended upon benefices held in their own names and the tributes of castles and towns in the papal territory set aside for them by popes. To these sources of revenue were added during the thirteenth century livings in foreign lands which they administered, if administered at all, through vicars. A number of benefices were often held by a member of the curia, but the abuse of pluralities did not reach its largest proportions till the latter half of the fifteenth century. In 1291, Benedict Gaetani (Boniface VIII.) cardinal of S. Nicolas in Carcere, held, in addition to that living, two archdeaneries and two churches in France, three churches in Rome and prebend stalls in Langres, Chartres, Lyons, Paris, Anagni, Todi, Terouanne, and St. Peter’s in Rome.
The half portion, accruing to the cardinals, was divided equally between those dignitaries. In case a cardinal was suspended his portion was divided equally between the papal treasury and the other cardinals. It became customary at the close of the thirteenth century, in appointing a cardinal, to announce that he was entitled to a share of the servitia.
During the absence of a cardinal on legatine business or for other reasons, he ceased to participate in the fund.
These revenues were handled by two treasurers: a papal treasurer, or chamberlain, and a treasurer for the college of cardinals. The latter held his office for life. The two offices were never vested in the same person. Each treasurer, at least from the time of Benedict XII. in the fourteenth century, kept his own set of books and at times copies of the papal ledgers were made and turned over to the cardinals. To such a system had the finances been reduced that, as early as the reign of Boniface VIII., the Registers of preceding pontiffs were consulted. In the period 1295-1298, the college of cardinals received as their share, coin amounting to 85,431 gold florins, a sum equal in face value to $200,000.
To the pope’s own exchequer went the additional sums accruing from annates as defined above, the special taxes imposed by the pope at will, and the gifts for special papal favors. The crusades against the Saracens and Frederick II. were an inviting pretext for special taxation. They were the cause of endless friction especially in France and England, where the papal mulcts were most frequent and most bitterly complained of. The first papal levy for revenue in France seems to have been in 1188. As early as 1247 such a levy upon church property was met by a firm protest. In 1269, Louis IX. issued the pragmatic sanction which forbade papal taxes being put on church property in France without the sovereign’s consent. One of the most famous levies of medieval England was the Saladin tax, for a crusade against the Saracens.
The curia was already, in the time of St. Bernard, notorious for its rapacity. No sums could satisfy its greed, and upon it was heaped the blame for the incessant demands which went out from Rome. Bernard presents a vivid, if perhaps overcolored, picture of this hungry horde of officials and exclaims: “When has Rome refused gold? Rome has been turned from a shrine into a place of traffic. The Germans travel to Rome with their pack animals laden with treasure. Silver has become as plentiful as hay. It is to Eugenius’ credit that he has turned his face against such gifts. The curia is responsible. They have made Rome a place of buying and selling. The ‘Romans,’ for this was the distinctive name given to this body of officials, are a pack of shameless beggars and know not how to decline silver and gold. They are dragons and scorpions, not sheep.”
The English chronicler, Matthew Paris, writing a century later, has on almost every other page of his chronicle a complaint against the exactions of the papal tax gatherers. One might easily get the impression from his annals, that the English Church and people existed chiefly to fill the Roman treasury. The curia, he said, was like a gulf swallowing up the resources of all classes and the revenues of bishops and abbots. The contemporary Italian chronicler Salimbene has biting words for the luxury and idleness of the cardinals and reports the invectives of Hugh de Digne delivered at the council of Lyons, 1245.
Bernard of Cluny and other poets of the time lashed the Curia for its simony. Everything at Rome had its price. Poems, ascribed to Walter Map, abound in bitter invective against the wide-open mouths of the cardinals which only money could fill. In one of them, the Ruin of Rome, the city is compared to the waters between Scylla and Charybdis, more capacious of gold than of ships.”
“The meeting place of our pirates, the cardinals”
Ibi latrat Scylla rapax et Charybdis auri capax
Potius quam navium, ibi cursus galearum
Et concursus piratarum, id est cardinalium.
There, at that deep gulf, are the Syrtes and Sirens who threaten the whole world with shipwreck, the gulf which has the mouth of a man but the heart of a devil. There the cardinals sell the patrimony, wearing the aspect of Peter and having the heart of Nero, looking like lambs and having the nature of wolves. In a conversation, purporting to have occurred between Thomas Aquinas and the pope, the pope said, as he showed the theologian the papal treasure-room, “Thomas, Peter could now no longer say as he once said to the lame man ‘silver and gold have I none.’” “Nor,” was Thomas’ reply, “has his successor the power now to lay his hand on the lame man and heal him.”