Law and The Illicit in Medieval Europe: Unauthenticated Download Date - 7/11/19 3:00 PM

Law and the Illicit in Medieval Europe
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THE MIDDLE AGES SERIES
Ruth Mazo Karras, Series Editor
Edward Peters, Founding Editor
A complete list of books in the series

is available from the publisher.
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Law and the Illicit in
Medieval Europe
Edited by Ruth Mazo Karras, Joel Kaye,

and E. Ann Matter
University of Pennsylvania Press

Philadelphia
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none of this book may be reproduced in any form by any means without written permission from
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Contents
Preface xi
Introduction: The Reordering of Law and the Illicit in Eleventh-

and Twelfth-Century Europe 1
Edward M. Peters
PA R T I : LEGAL SYSTEMS
1 A Fresh Look at Medieval Sanctuary 17

William Chester Jordan
2 Heresy as Politics and the Politics of Heresy, 1022–1180 33

R. I. Moore
3 Legal Ethics: A Medieval Ghost Story 47

James A. Brundage
4 The Ties That Bind: Legal Status and Imperial Power 57

James Muldoon
PA R T I I : W R I T I N G T H E L AW
5 Licit and Illicit in the Yarnall Collection at the University

of Pennsylvania: Pages from the Decretals of Pope
Gregory IX 71
Robert Somerville
6 Judicial Violence and Torture in the Carolingian Empire 79

Patrick Geary
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viii Contents
7 The Ambiguity of Treason in Anglo-Norman-French Law,

c. 1150–c. 1250 89
Stephen D. White
8 Illicit Religion: The Case of Friar Matthew Grabow, O.P. 103

John Van Engen
9 Marriage, Concubinage, and the Law 117

Ruth Mazo Karras
PA R T I I I : C A S E S A N D T R I A L S
10 Crusaders’ Rights Revisited: The Use and Abuse of Crusader

Privileges in Early Thirteenth-Century France 133
Jessalynn Bird
11 Learned Opinion and Royal Justice: The Role of Paris Masters

of Theology During the Reign of Philip the Fair 149
William J. Courtenay
12 Coin and Punishment in Medieval Venice 164

Alan M. Stahl
P A R T I V : L AW B E Y O N D T H E L AW
13 Licit and Illicit in the Rhetoric of the Investiture

Conflict 183
Alex Novikoff
14 Satisfying the Laws: The Legenda of Maria of Venice 197

Susan Mosher Stuard
15 Canon Law and Chaucer on Licit and Illicit Magic 211

Henry Ansgar Kelly
16 Law, Magic, and Science: Constructing a Border Between Licit

and Illicit Knowledge in the Writings of Nicole Oresme 225
Joel Kaye
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Contents ix
List of Abbreviations 239
Notes 241
List of Contributors 305
Index 307
Acknowledgments 317
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Preface
Although the general public may well associate the medieval pe-
riod with lawlessness, it is rather the case that law, both as practice and as
intellectual discipline, occupied a central and privileged place in medieval
culture. Secular and religious authorities alike proclaimed justice and equity
as their highest social ideals, and popes and kings vied to claim the exalted
title of lawgiver. This deep respect for law and legal procedure cut across
geographical and chronological boundaries, but a number of developments
occurring over the late eleventh and twelfth centuries greatly accelerated the
pace of legal development. The chapters that follow provide various per-
spectives on the dynamic process of legalization that both characterized
medieval society and was instrumental in transforming it.
If the goal of law was to delineate the realm of acceptable behavior and
belief, guided by the ideal of justice, it often advanced to this goal through
a process of negation. Defining what was legal regularly involved the simul-
taneous definition of its contrary, that which was, or had become, illegal.
The definitional boundaries that gave ever more explicit shape to the sphere
of the licit effectively shaped the sphere of the illicit as well. Acts or attitudes
identified with the category of the illicit, even when they were not specifi-
cally outlawed, were marked by the law, and the actual implications of
finding one’s actions or beliefs identified with the illicit, whether in the sec-
ular or the religious sphere, could be profound and painful indeed. While
the story of the growth of medieval law is in large part a triumphant one—
the imposing of order on an unruly warrior aristocracy, the diminishment
of crippling fear and uncertainty, the creation of a ground for institutional,
economic, and intellectual development—historians of the last half century
have become increasingly conscious as well of the negative and punishing
side of law’s powers of definition. The dynamic interchange between the
positive and negative valences of law, between the linked construction of
the lawful and the illicit, is the subject of this volume.
The growth of social history as a field in the late twentieth century
brought with it new perspectives on the forms and uses of law. As legal
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xii Preface
records such as court rolls and notarial documents were discovered to be

an extremely rich trove of data for social historians, the recognition grew
that their proper exploitation required a fuller understanding of the legal
processes that gave rise to these records and the legal principles that under-
lay them. An increased sensitivity to questions of social function marked
the understanding of law that emerged from this project. Similarly, as
medieval historians moved to integrate anthropological methods and in-
sights more fully into their research, legal practices and conceptions were
again revisited and recast.
The following chapters reflect these and related developments in the field
of medieval history as they explore the many points of intersection between
the institution of law in its broadest sense and other aspects of medieval
society and culture. Several of the chapters are by legal historians; most,
however, are by historians whose main field of research is not the law but
who fully recognize its central place and importance in medieval life. The
consequence of this recognition, developed over the last half century, is that
older boundaries separating legal history from ‘‘other’’ histories—social, re-
ligious, political, intellectual, even literary—have been blurred, if not thor-
oughly dissolved. We, the editors and contributors to this volume, believe
that this blurring of boundaries properly reflects the complexity of the his-
torical picture. We are also united in our belief that no historian of the last
half century has been more influential in demonstrating the full scope of
the law’s place and power in medieval society than Edward Murray Peters,
who provides both the inspiration for this volume and its Introduction.
Peters begins the introduction by suggesting the range of institutional
and social structures, both religious and secular, that were transformed by
the development of law from the late eleventh through the twelfth century.
He is careful to stress, however, that the historian of law must look beneath
the level of structure to what he calls the pervasive ‘‘idea of lawfulness,’’ in
order to grasp the centrality of law to historical development in this period.
He then turns to consider a pivotal question in medieval legal studies: how
did the new ascendance of Roman law, with the highly organized and intel-
lectualized content (based on the newly rediscovered texts of Justinian’s
Corpus Iuris Civilis) affect developments in twelfth-century common law
and canon law (the law of the church), and in what fashion did the law that
resulted differ from the law and forms of dispute settlement found in previ-
ous centuries? In the second part of the Introduction, Peters presents a
complex picture of how law—secular and religious, written and oral, intel-
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Preface xiii
lectualized and customary—intersected with political, institutional, and in-

tellectual developments in the twelfth century to produce a vibrant new
culture, one marked by new forms of religious belief and practice, new
forms of affect and intellection, and, inescapably, new categories of the il-
licit and the excluded. With this conclusion, Peters sets the foundation for
the rest of the volume, which is then divided into four sections, each of
which touches on aspects of law and the boundary between the licit and the
illicit.
Part I, ‘‘Legal Systems,’’ examines the formation of diverse forms and struc-
tures of law. Since the work of the great legal and institutional historians of
the late nineteenth century, it has often been argued that the profound re-
spect for law in medieval culture, which was linked to the actual develop-
ment of law in its myriad forms (Roman law, canon law, common law,
customary law, feudal law), was the base upon which many of our most
important modern institutions and legal conceptions were built: trial by
jury, courts of appeal, forms of representative government, written consti-
tutions, and other characteristic organs of state formation. Although the
search for the origins of modern institutions no longer drives the field, it
remains true that the medieval period was an unusually fruitful one for the
growth of institutions of governance. The chapters in this first section echo
this older yet still vital historical tradition, asking not so much (as in the
past) how we got where we are today but what role law and its determina-
tion played in the formation of the central institutions of the European
Middle Ages.
In Chapter 1, William Chester Jordan analyzes a form of law that grew
in the very intersection of licit and illicit: the law of sanctuary. In analyzing
the legal forms of sanctuary and the particularities of its application, Jordan
treats a number of subjects, including the range of illegal acts that might be
covered by it, the conditions imposed by both secular and religious law
upon its exercise, and the actual terms and penalties it enforced in lieu of
the penalty of death. In doing so, he elucidates the social functions per-
formed by this peculiar form of ‘‘institutionalized mercy’’ in making the
legal system more flexible and in moderating its severity. By staying close
to the medieval sources, Jordan rescues sanctuary from modern distortions
concerning its character and application—primarily the notion that it rep-
resented an essential opposition between religious and secular authority—
and, equally important, he challenges the received wisdom that the gradual
erosion of sanctuary resulted from the growing assertion of the secular
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state’s authority over and against that of the church in the later Middle
Ages.
In Chapter 2, R. I. Moore continues to criticize the simplistic notion
of an essential opposition between secular and religious law or secular and
religious authority in the eleventh and twelfth centuries. Rather, through
his study of early heresy trials, which took place at the courts of powerful
aristocrats and not in strictly ecclesiastical settings, Moore comes to ques-
tion the existence of any clear distinction in this period between the standard
modern categories of ‘‘the political’’ and ‘‘the religious.’’ He demonstrates
that an equally tenuous and penetrable boundary existed between the cate-
gories of heresy and sorcery and, in a larger sense, between the realms of
the illegal and the illicit. Rather than the fixed terms and categories often
applied by modern historians to these circumstances, Moore finds, in the
period preceding the thirteenth century, relative indeterminacy, ambiguity,
and overlapping at every level of jurisdiction and analysis.
James Brundage examines the practice of law and the history of legal
ethics in the medieval period from the perspective of lawyers and the legal
profession. To what extent, he asks, did medieval legal ethical requirements
(the chief of which was the single-minded attention to the interests of the
client, which in turn spawned numerous related ethical demands) derive
from guidelines embedded in Roman law, and to what extent were the law-
yer’s ethical obligations shaped by the mores proper to the period of their
practice? In answering this question, Brundage emphasizes the existence of
a legal and professional continuity, grounded in Roman law, whose trajec-
tory has continued into the modern day, but at the same time he describes
a continuity that has continually adapted to the particular needs of the soci-
ety employing it.
Questions of continuity are also central to James Muldoon’s discus-
sion of the legal justification for empire, in which he argues that the legal
ideas developed in the course of the English conquest of Ireland in the
twelfth century were later deployed in the colonization of the New World.
In showing the similarities between legal texts applied to medieval Ireland
and eighteenth-century Massachusetts, Muldoon makes a forceful case for
the multiple uses of law and legal precedent (both secular and religious)
that span the licit/illicit divide: as an instrument of intellectual and concep-
tual order; as an instrument well suited to justify and enforce the exercise
of colonial power; and still further, because of the memory it encodes, as
an instrument that could be used by the American colonists to justify their
rights of rebellion.
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Preface xv
* * *
The chapters in Part II, ‘‘Writing the Law,’’ are based on close readings of
texts pertaining to law, though not always law texts per se. In the case of
the Decretals, discussed by Robert Somerville, the text in question did con-
stitute the law of the church, to be applied by judges in individual cases.
Somerville raises a number of practical questions concerning the extant
sources in medieval law, their physical transmission, and the conditions
under which we can recover the raw materials from which medieval law can
be studied.
Patrick Geary takes us back to the Carolingian era to discuss the use
of ‘‘judicial violence,’’ that is, torture, both as an evidentiary procedure and
as corporal punishment. Geary argues that the lack of explicit violence in
surviving judicial documents should not be taken as evidence that Carol-
ingian justice was innocent of torture, as it often has been, because surviv-
ing narrative accounts tell a different story: that torture and extreme
violence were integral to judicial procedure in the period. In support of this
assertion, Geary brings to bear two poems by Theodulf of Orléans, which
contain a sharp critique of extreme judicial violence and reveal a deep dis-
comfort with the frequent use of torture and corporal cruelty in contempo-
rary trials.
Stephen D. White seeks to assess the power of kingship in the twelfth
and early thirteenth centuries and the strength of resistance to it through
an analysis of competing legal definition(s) of treason. Was any act in dero-
gation of the king’s person or authority universally assumed to be treason?
Or were certain such acts, including outright rebellion, recognized by some
as licit and justifiable in certain situations? The answers here will help to
determine whether in this period the king’s authority was abstract and ab-
solute, contractual and conditional, or a subject of continuing contestation.
Faced with a paucity of clear evidence on these points in legal sources and
with conflicting interpretations in modern scholarship, White turns to con-
temporary epics, romances of antiquity, and Arthurian romances. As White
convincingly demonstrates, these texts provide a surprisingly thorough and
nuanced treatment of these legal questions, sufficient to show that the
broadest definitions of treason and of royal power were resisted.
John Van Engen approaches the extremely complex question of how,
where, and by whom boundaries were to be drawn between the licit and
the illicit in the realm of religion. He does so through the use of a single
case study centered on a treatise by the fifteenth-century Dominican friar
Matthew Grabow and its contemporary reception. Grabow clearly thought
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himself in a position of sufficient authority to draw the line, and believing

so, he attacked a popular lay religious movement in his town, the Modern
Day Devout, as an illicit religious group. But because of a complex of legal,
doctrinal, and political factors, Grabow’s treatise itself came under attack as
heretical. Van Engen’s study indicates the many areas of overlap between
theology and law, with law, in essence, the battleground on which questions
of licit belief and practice were played out.
Law was also, as Ruth Mazo Karras shows, the arena for the negotia-
tion of gender relations in medieval society. Karras’s analysis of a consilium,
or opinion, by the fifteenth-century jurist Gui Pape shows how lawyers
could take received Roman law concepts like concubinage and adjust them
to the social structures of their own time. What emerges from her study is
the conclusion that the exercise of law, rather than being unidirectional,
involves a relationship with the subject in which both the subject and the
law itself are modified in the process of application.
Part III, ‘‘Cases and Trials,’’ deals with instances in which the survival of
rich judicial documents permits a detailed analysis of the operation of
courts and the law in practice. Each of the chapters in this section uses par-
ticular cases as a window on a larger set of questions and concerns. The first
two deal with French kings and university scholars. Jessalynn Bird returns
us to the thirteenth century and the conflicts that arose between the French
crown and the church over the legal privileges granted to crucesignati, those
who had taken the sign of the cross in order to go on crusade. Under a
king, Philip Augustus, who was particularly wary of the expansion of eccle-
siastical authority, judges had to tread carefully in interpreting and enforc-
ing papal bulls on crusaders’ privileges. The cases of Hervé of Nevers and
Erard of Brienne provide examples of how the rights of crusaders func-
tioned as just one part of a complex negotiation that was based on political
power as much as on legal principle.
William J. Courtenay’s chapter demonstrates the breadth of informa-
tion that can be revealed through the analysis of a single legal situation. In
late 1307, after having begun his judicial attack on the religious order of the
Templars, the French king Philip IV sent a series of questions to the faculty
of theology of the University of Paris, seeking clarification concerning the
extent of his royal judicial authority over this particular order and over reli-
gious determinations in the larger sense. Courtenay asks why these essen-
tially legal questions were posed, for the first time, to the theology faculty
rather than to the faculty of canon law. In answering, he goes beyond theo-
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Preface xvii
retical questions of jurisdiction to sketch a vivid history of the theology fac-

ulty at Paris, illuminating a series of relationships in the process: between
king and university, between politics and doctrine, between theology and
law.
Alan M. Stahl, too, investigates the connections between law, politics,
and institutional structures. He does so by delving into the State Archives
of Venice to determine the different ways in which threats to the integrity
of the Venetian coinage—and thus to the economic integrity of the state—
were treated and punished. Utilizing a wealth of case studies, Stahl sheds
light on the administrative and judicial culture of the great city. The evi-
dence he provides for extreme inconsistency in the application of punish-
ment exposes the often ad hoc nature of Venetian justice and brings into
question the Venetian state’s reputation for administrative efficiency and
harmony.
While no one studying the medieval period can fail to be impressed by the
exuberant growth of institutional structures in this period and the role
played by law and the respect for law in that growth, governmental struc-
tures and actual legal proceedings represent only a small portion of the cul-
tural field that historians now examine when they seek to uncover the
effects of law. Part IV, ‘‘Law Beyond the Law,’’ addresses this wider field
and provides some sense of its dimensions: social, religious, political, intel-
lectual, and literary. Alex Novikoff examines the development of a rhetoric
of licit and illicit conduct in the literature of the investiture conflict. Bypass-
ing explicitly legal texts, Novikoff exploits the considerable polemical litera-
ture of the period to sketch how supporters of the pope and supporters of
the emperor wrestled over which party could claim to speak for the law and,
as a result, which party could gain the authority to formulate the boundary
between licit and illicit. Focusing particularly on the writings of the propa-
pal polemicist Bonizo of Sutri, Novikoff illustrates just how clearly the par-
ties to this struggle understood the stakes involved in this rhetorical
conflict.
Susan Mosher Stuard writes about the Dominican Tommaso di Anto-
nio da Siena’s life of Maria of Venice, showing how even in the realm of
hagiography knowledge of the law (both municipal and canon law) gave
shape to the writing. In making the case for Maria’s holiness, Tommaso had
to explain away some of her actions that were technically in violation of
legal norms, including sumptuary and dowry codes, in order to make the
Vita conform to canon law and the Dominican Penitent Rule. While Tom-
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maso’s biography was not a legal document and his main concern was to
demonstrate Maria’s holiness, the centrality of law to medieval culture was
such that legal issues of necessity found a place in his work.
Legal issues also echoed through literature. Henry Ansgar Kelly focuses
on the understandings of magic in canon law and Chaucer. The Ordinary
Gloss, the standard interpretation of Gratian’s Decretum in the Middle
Ages, had no comment on Cause 26. Kelly shows how two canonists—John
of God and Guy of Baisio, known as ‘‘Archdeacon’’—filled this gap. The
English canonist William Lyndwood in the fifteenth century followed their
lead in explicating the prohibition of illicit magic issued by Archbishop
John Peckham, especially in the realm of medicinal lore. Herbs and gem-
stones, and even words, were thought to have healing powers and were al-
lowable as long as there was no resort to demons or superstitious beliefs.
These views are reflected in various works of Chaucer, notably the Miller’s
Tale, where John the Carpenter’s night-spell would appear to fall within the
limits of licit practice.
Joel Kaye also considers the licit-illicit divide through the lens of atti-
tudes toward magic. Through his analysis of Nicole Oresme’s writings from
the later fourteenth century, Kaye reveals that Oresme’s innovative position
on where to draw the border between magic and science (which is to say,
between licit and illicit knowledge) was deeply influenced by the legal tradi-
tion. Particularly important in this regard were the strong links between law
and the ideals of open argumentation, public judgment, and the common
good, all of which Oresme took to be defining characteristics of licit knowl-
edge. By locating elements of the legal tradition within the rarefied disci-
pline of scholastic natural philosophy, and by showing how central those
elements were to protoscientific speculation in the fourteenth century, Kaye
provides further evidence for the extensive intellectual reach of the law in
the Middle Ages.

Authenticated
Introduction: The Reordering of Law and
the Illicit in Eleventh- and Twelfth-
Century Europe
Edward M. Peters
The subject of law and the illicit in medieval western Europe is

broader than any single academic discipline and requires the study in com-
bination of subjects that have usually been considered separately, from for-
mal legal history and the academic and governmental structures that
taught, defined, and applied the law to those social (including gender) rela-
tions, types of behavior, forms of thought, and individual consciences that
were affected by it. The subject ranges from the law itself through the theol-
ogy and canon law of sin to the psychology of the passions and affections
as these were worked out in moral theology and pastoral care, especially in
the literature on vices and virtues and understood by laity and clergy alike.
It also requires consideration of the nature of varying publics and institu-
tions, not only monasteries, houses of canons regular, cathedral chapters,
schools, universities, and towns, but also methods, languages, media, and
networks of communication, jurisdiction, and influence. Ideas of the illicit
may begin with changing ideas and institutions of law, may privilege law,
and may model themselves on law, but the subject of the illicit reaches out
into many other aspects of society and culture, some ostensibly quite dis-
tant from the law.
The problem of law and the illicit indicates the absolute centrality, not
only of various kinds of law, but also of the idea of lawfulness itself in most
aspects of early European life. When moral order, propriety, reason, and
the administration of justice seemed to fail or absent themselves from any
early European society, then anxiety, scandal, unrest, and fear of imminent
divine retribution often replaced them.1 The illicit is a far broader category
than the illegal, with broader consequences in society and culture. The elev-
enth and twelfth centuries, because of their respect for the often conflicting
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2 Edward M. Peters
traditions and texts of the past and their need to force these to regulate a
very different and rapidly changing world, are a useful place to begin. The
beginnings of the process took place in Carolingian Europe in the ninth
century, but the continuity of the process can be more easily traced from
the later period. From the eleventh century and for several centuries later,
law, pastoral theology, the formation of new and interested publics, and
lines and institutions of communication created a continuum of instruction
and discipline that allowed legal institutions of various kinds to reach out
into ever more areas of everyday life ever more consistently. The circum-
stances of everyday life then looped back into the formation of legal institu-
tions, as people more regularly went to law—or to confession. I consider
first, some changes that occurred in the formalizing of law itself, and then
those occurring in methods of ecclesiastical definition and discipline—
chiefly penance and moral theology, and finally the networks of communi-
cations that linked these specialized worlds with wider publics and created
the continuum just mentioned.2
At some point in the late 1180s in England, a jurist generally known as Ra-
nulf de Glanvill produced a work that he called the Tractatus de legibus et
consuetudinibus regni Anglie. In his Prologue, after lavishly praising King
Henry II for defending the realm against both external and internal enemies
and establishing consistent and impartial justice throughout the kingdom,
Glanvill makes a point that offers a convenient perspective on the vast legal
changes of the eleventh and twelfth centuries:
Although the laws of England are not written, it does not seem absurd to call
them laws—those, that is, which are known to have been promulgated about prob-
lems settled in council on the advice of the magnates and the authority of the
prince—for this is also a law, that ‘‘What pleases the prince has the force of law.’’
For if, merely for lack of writing, they were not deemed to be laws, then surely
writing would seem to supply to written laws a force of greater authority than either
the justice of him who decrees them or the reason of him who establishes them.
It is, however, utterly impossible for the laws and legal rules of the realm to
be wholly reduced to writing in our time, both because of the ignorance of scribes
and because of the multiplicity of those same laws and rules. But there are some
general rules frequently observed in court which it does not seem to me presumptu-
ous to commit to writing, but rather very useful for most people and highly neces-
sary to aid the memory.3
For all his apologetic tone, Glanvill’s text contains a number of learned
scholarly allusions, long considered a characteristic sign of twelfth-century
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Introduction: The Reordering of Law and the Illicit 3
legal learning. His opening sentence is a paraphrase of the opening sentence

of the Proemium to Justinian’s Institutes, the opening phrase Regiam potes-
tatem in Glanville substituting for and clearly paralleling the phrase Impera-
toriam maiestatem that opens the Institutes. Glanvill later refers to Inst. 1.2.6.
‘‘What pleases the prince has the force of law’’ (echoed in Dig. 1.4.1, which
Glanvill may not have known). Glanvill is nevertheless rhetorically aware
that not everyone in late twelfth-century Europe would put the structure
and learned character of law in England on a par with that of Justinian’s
Roman Empire—in either learning or coherence—or with that of other
parts of western Europe.4 Glanvill was also testily aware of late twelfth-
century learned criticisms of unwritten law and custom, and the paragraphs
cited above are disarming and contrast sharply with the preceding lavish
praise of Henry II and his council—and their juridical effectiveness.
Glanvill’s defense of the dignity and effectiveness of English law, in
spite of its ostensible shortcomings according to some twelfth-century crite-
ria, offers a useful measure of the great changes that had taken place in
European law over the course of the eleventh and twelfth centuries, at dif-
ferent rates in different places, producing an expanded range for law in the
demographically, socially, and economically changing agroliterate polities
of western Europe.5 First, law is a fundamental attribute of a legitimate soci-
ety, and law should be written. Second, whether written or not, law is the
product of the activity of legitimate lawmakers—in Glanvill’s case the ideal-
ized king and the magnates acting in council, promulgating laws with the
king’s approval, a view also found in other contemporary or near-contem-
porary English and other texts.6 Only in this way can law be made according
to justice and reason (two terms that also occur frequently in twelfth-
century learned law). Hence Glanvill’s understanding of the phrase ‘‘What
pleases the prince . . .’’: only justice and reason, deriving from consultation
with the leading men of the kingdom, can possibly please a legitimate
Christian prince. Glanvill’s insistence upon justice and reason leads to his
lame rhetorical turn of professing otherwise to find authority only in the
written script of the laws, as if the bald fact of script alone validated law, a
sentiment not unique to Glanvill during a period that often uneasily wit-
nessed the transition in law and government from memory to written re-
cord.7
Third, recording all the laws in writing may be impossible, as Glanvill
professed it to be in England, where there were so many laws and so few
scribes (and by implication royal justices) who knew them all. Glanvill,
however, seems to mean here not the simple textual accumulation of prom-
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4 Edward M. Peters
ulgated law but the absence of an analytically assembled and rationalized

text like Justinian’s Code, rather than collections, as in Carolingian capitu-
laries and early canon law texts, organized according to genre, chronology,
source, at random, or another equally user-unfriendly principle. In spite of
these drawbacks, however, Glanvill insists that there are some general rules
in England that can be written to aid the memories of those who need to
know about them, and that is his purpose. He goes on to do a remarkably
intelligent and successful job, not along the lines of explaining promulgated
law, but on the classification of writs—not on what the laws and customs
are, but on how they operate. Their methods of operation were crucial: only
a royal writ could bring a dispute into a royal court, and only a royal court
could profess to offer quick, certain, cheap, and attractive justice. Glanvill
wrote one of the great how-to books in legal history.
Glanvill’s concerns reflect some of the distinctive features that histori-
ans have recently identified as characteristic of the legal transformation of
the eleventh and twelfth centuries. In a masterful essay, Peter Landau em-
phasizes that ‘‘Formally, [the new direction in law] could be seen as the
definitive espousal of written forms of law and a renunciation of previous
approaches which depended extensively on the continual adaptation of oral
traditions.’’8 Glanvill knew well where England stood on the sliding scale of
twelfth-century legal change; it had shaped a unique and effective kingdom-
wide legal culture in his own lifetime, and he doggedly asserted that En-
gland held a respectable position in these matters, as indeed it did.9 Al-
though Glanvill had little to say about crime (and that, too, only on the
basis of the few relevant writs), he had a great deal to say about the look
and presence of the law in late twelfth-century England.
Behind Glanvill’s terms of legal art and his stout confidence in the co-
herence of English law lay a century and a half of legal change, much of it
signaled by Landau. But written law had long existed in western Europe,
and in considerable volume. Not only the various versions or segments of
Roman law and their local adaptations and the diverse sources and collec-
tions of canon law, but also the laws of early monarchs and peoples and
those of the Carolingian rulers of the ninth century, their assemblies and
church councils, were available, although rarely in toto anywhere, often un-
known, and never coordinated.10 The possession of a textual folklaw might
confer prestige on a people, but it did not necessarily imply an analytically
arranged body of laws in a legal system that could be consistently used and
thought about.11 Nor was this textual legacy easy to use, since the question
of the authority of any particular collection could be challenged by con-
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flicting laws or canons cited from another or by the presence or absence of

particular laws or canons in different collections. The authority of any sin-
gle collection was uncertain, since these were often privately compiled for
local or polemical use, as was the vast treasure trove of Pseudo-Isidore.12
One of the great eleventh- and twelfth-century changes in this respect was
the working out of principles that served to reconcile apparently conflicting
(and equally authoritative) canons—the principle that canonical texts were
diverse, but not adverse. The reconciliation of apparently conflicting legal
texts derived in part from the formal study of logic and depended on tech-
niques laid out and applied in prologues to logical and legal collections,
from Burchard of Worms at the beginning of the eleventh century to those
of Ivo of Chartres and Peter Abelard (to his Sic et non) a century later.
Just as important, however, as writing alone was the need to reduce
this mass of material to a few distinct compilations of authoritative texts,
arranged according to analytical categories, to expand the limited social role
of law, to establish a human agency to decide and administer the laws, to
make jurisdiction coincide with a defined territory (or, in the case of canon
law, with universal Christendom, eventually directed by the bishop of
Rome, but much less at first as a legislator, and then chiefly at infrequently
held church councils, than as the court of highest appeal), and to enforce
law equally according to different jurisdictions among clergy and laity in
keeping with their separate and now more clearly defined statuses. The
definition of clerical exemption from secular jurisdiction is one significant
sign of the latter.
Historians have noted that there also operated many kinds of satisfac-
tory procedures in both speech and gesture, including those effecting prop-
erty transfers, local custom based on memory or what was agreed to be
memory, ad hoc practices of dispute settlement, and forms of ritualized and
socially acceptable humiliation and reconciliation that people also spoke of
as law.13 In these, too, most people considered lawfulness to be at work.
That is, the changes signaled by Landau describe the transition not from an
absence of law to law’s presence but from the predominance of one set of
ideas and practices of law and justice and their attendant procedures to an-
other, one closer, as Landau says, ‘‘to concepts based on modern law,’’ since
those of modern law are often derived from them and have been used ever
since to measure them.
Recent scholarship on dispute settlement has become critical of such
a set of polarized differences, and historians have emphasized instead the
continuum rather than any disjuncture from an imagined elaborate Carol-
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6 Edward M. Peters
ingian legal culture to the alleged lawlessness of the later tenth century and
the need for new law to rectify it.14 An even longer continuum can be traced
in the idea of certain kinds of offense that could not be resolved without
the intervention of a superior authority—the excepted crimes from Roman
law into the twelfth and thirteenth centuries, continuously identified in
texts, even when there seemed to be no authority that could or would en-
force the laws against them—or too often tempered their punishment with
mercy, whimsy, or greed. Others have examined the long run of earlier doc-
trines that appear to have reached a flash point in the eleventh and twelfth
centuries: clerical celibacy, relations with lay patrons and protectors, or the
importance of reputation, eventually graded by a far more complex calculus
than simple polarized honor and dishonor.15 The recent emphasis on the
slower and more drawn-out character of the emergence, study, and applica-
tion of a learned and professional canon and secular law rather than its
sudden, explosive arrival has also allowed chronological room for such
change to have occurred at different rates in different milieux during the
eleventh and twelfth centuries—and for people to become accustomed
more gradually to their implications in more and more areas of life.16
The frequency of dispute settlement and composition also indicates a
world of limited disciplinary sanctions but also great concern for social sta-
bility. Gallo-Roman and Merovingian church councils could inflict anath-
ema, excommunication, limited corporal punishment, penitential acts, very
restricted imprisonment, and exile.17 Secular law added compurgation,
composition, the ordeal, infrequent capital punishment, mutilation, and
exile. Carolingian kings and bishops attempted to stiffen these sanctions by
expanding the inquest, but repeated Carolingian denunciations of human
sin and wickedness indicate that the legal coercive component of social dis-
cipline remained weak: all but the most serious punishments might be con-
verted to a monetary fine, and even the most serious offenses might be
pardoned when it was politically prudent to do so. The heaviest hand of
punishment usually fell on those who could least afford to allay it.
Abbots of monasteries had a far smaller repertoire of sanctions than
bishops, especially outside the cloister proper: they might curse offenders,
close their churches (and relics) to them and their community, or humiliate
saints, but any more substantial enforcement power here depended upon
the intervention of powerful patrons, the outraged local population, or a
vengeful and perhaps coerced saint.18 Bishops had wider powers over the
laity when they were inspired and able to use them: the imposition of public
or private penance, anathema, interdiction, excommunication, and prohi-
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bition of Christian burial. But all these sanctions were limited in number
and effect, and they were often ineffective—either because they were often
believed to be abused by those who inflicted them or because of public in-
difference or skepticism.19 The classification of different but not necessarily
competing jurisdictions became an important problem as the appropriate
jurisdictional domain of each was slowly sorted out in the course of the
twelfth century.
The domain of canon law became clearer during the twelfth century,
thanks to the work of Gratian and his commentators in the law schools,
but secular laws kept pace, particularly Roman law, now containing all of
Justinian’s sixth-century texts, including the theoretical jurisprudence of
the Digest, to the intellectual complexity of which jurists of both laws had
to attend.20 Although Roman law could not be applied readily to most of
twelfth-century life, it existed as a set of intellectual and technical standards
to which any other law might be compared and often found wanting—as
Glanvill recognized in his Prologue. It also required understanding and ex-
planation, and the jurists of Bologna and elsewhere created their own dis-
tinctive and highly original literature until a common consensus of
interpretation was reached in the thirteenth century. The so-called ordinary
glosses to collections of canon law and to the Corpus Iuris Civilis provided
the basic teaching tools of the jurists and the learning tools of their stu-
dents. As Landau observes, this meant that jurisdiction at the highest levels
of the church was largely exercised as the response to legal appeals rather
than as legislation (with the occasional exception of church councils and
the rare papal command issued motu proprio) and that the schools, not the
popes, controlled the understanding and application of law, as they also did
of theology. Although Gratian’s Decretum is an instance of a private law-
book creating its own canonical status because of its acceptance by teachers,
the first two collections of decretals by popes—the Compilatio Tertia of In-
nocent III in 1210 and the Liber Extra of Gregory IX in 1234—were both
sent directly to the law faculty at Bologna. The fourth book of the Liber
Extra was devoted exclusively to marriage, the fifth to crime—significant
room for an expansion and definition of the illicit.
By 1234, both secular and canon law had built up a distinctive criminal
law, more technical in many ways than that of classical Roman law alone—
indeed, the origin of subsequent criminal law. It was based not on an aggre-
gate of particular offenses but on a concept and definition of crime and the
canon law doctrine of criminal sin.21 The jurists had worked out the argu-
ment that the law, not the judge, punishes criminals and that it does so
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8 Edward M. Peters
for medicinal purposes, because of its love of justice, without a thirst for
vengeance. They had defined crimes that could not be compounded for,
distinguished between civil and criminal law, and created a specialized liter-
ature that became an essential and one of the most original creations of the
twelfth century.
Canon law could develop as it did because of the structural reorganiza-
tion of the church, the creation of a distinctive clerical identity and status,
and the increasing recognition of the hierarchical position of the popes at
its head. Most secular jurisdictions were not as neatly articulated as this.
The many points at which secular and canon law touched, however,
whether as a ‘‘mixed forum’’ or in treating different aspects of the same act,
a learned ‘‘common law’’—ius commune—emerged throughout western
Europe by 1200.22
The fact that efficient and usable forms of canon and various secular laws
existed side by side and often overlapped after the late eleventh century
meant that virtually all human actions fell into a context of estimation that
descended from the greatest offenses to the most quotidian litigation, from
treason to king or God (after 1200 the latter included heresy) down to pri-
vate sins and domestic or neighborhood reputation. The eleventh- and
twelfth-century changes in theology and canon law derived from a height-
ened awareness of a distinctive, expanded, and independent clerical status
and the insistence that ecclesiastical reform and renewal direct the piety and
efforts of both clerical and lay society.
The original diverse impulses of reform were launched in monastic
and occasional episcopal contexts in isolated centers in France, Lorraine,
and Italy, and some of their concerns were taken up in several of the local
church councils dealing with the peace.23 Their purpose was to protect ec-
clesiastical property and to produce a purified practice in liturgy and forms
of monastic life that reflected the apostolic life of the early church as it was
thought to be enshrined in the Benedictine Rule, one that would attract and
assure anxious patrons of its spiritual effectiveness and guarantee the status
of ecclesiastical property. Cluny is the conventional poster-monastery of
monastic reform, but the movement spread far wider in monastic and other
circles. The extension of reform principles to the secular clergy affected a
far more varied and differently functioning group, not all of whose mem-
bers were eager to accept the new monastic influences. Finally it spread in
adaptable forms to all Christians, clergy and laity alike.24 As R. W. Southern
once said, ‘‘The identification of the Church with the whole of organized
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society is the fundamental feature which distinguishes the Middle Ages

from earlier and later periods of history.’’25 That process of identification
was achieved in the eleventh and twelfth centuries. The legal aspect of that
process touched the lives of everyone.
Around 1100 a religious in northern Europe produced a text that be-
came attributed to St. Jerome and was included in Gratian’s Decretum as C.
12 q. c. 7, Duo sunt:
There are two kinds of Christians. One kind is free to perform the divine office and
is given to contemplation and prayer, and it suits this kind to cease being troubled
by temporal affairs. These are clerics, devoted to God, that is, converts. Cleros in
Greek, Chosen in Latin. Hence by this means such men are called clerics, that is,
chosen by lot. God chooses them to be among his own. They are therefore kings,
that is, ruling over themselves and others by their virtues, and therefore they will
have a share in the kingdom of God. And this designates the crown on their head.
They have this crown [tonsure] by the institution of the Roman church as a sign of
the kingship that they expect in Christ. The shaving of the head is truly the leaving
of all temporal things. They are content with simple food and clothing and have no
[private] property among themselves, since they ought to have everything in com-
mon. There is another kind of Christian, and these are the laity. Laos in Greek
means people in Latin. It is permitted to these to possess temporal things, but only
in order to use them. Nothing is more wretched than to show contempt for God
because of money. To these are conceded the right to take a wife, to cultivate the
earth, to judge between man and man, to inaugurate legal disputes, to place offer-
ings upon the altar, and they may be saved, if they avoid vices by doing good
things.26
The text clearly derives from the movement for clerical reform—its
‘‘clergy’’ are distinctly monastic and ascetic, and tonsured. Its laity are
rather depressingly Augustinian—their life in the world is spiritually risky:
possession of temporal goods except strictly for use triggers avarice, the
rights to marry (a status less perfect than that of the virgins and the conti-
nent), to farm, to judge, and to litigate seem grudgingly conceded and only
essential for the minimal needs of daily life. Only tithing, avoiding the vices,
and doing good deeds (unspecified) will offer the possibility of salvation.
The laity here get not only short space but also short shrift. The redefinition
and enhanced dignity of the lay life was a remote and probably unantici-
pated consequence of those early and often sporadic local movements of
monastic reform. But monks and embattled bishops often needed protec-
tion, and fighting men had to be inspired to provide it—as they were when
the Holy Land needed rescuing, creating in the process a greater legitimacy
for the status of Christian warrior. Layfolk also had a vastly greater variety
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10 Edward M. Peters
of things to do in the late eleventh and twelfth centuries than simply to

take wives, cultivate the land, pay tithes faithfully, and occasionally take one
another to court. They also found more ingenious ways of getting into dif-
ficulties in a society that contained far more than two or three convention-
ally identified orders, sometimes included large numbers of non-
Christians—Jews and Muslims—and resettled itself in newly configured
large towns and cities.
Monks, the spiritual militia Christi, took up the idea of reconstituting
the apostolic life, and secular clergy modeled their own clerical status by
attempting or being commanded to attempt to live in a manner more like
monks.27 In a world in which outward appearance and actions, rather than
or at least as much as interior states, were considered signs of the purity
of a monk or a secular cleric, conduct—including liturgical conduct—was
outwardly visible and could be estimated and criticized by observers. In an
ever more closely crowded and observant world, monks and other clergy
had not only to be pure but to seem pure. Visual representations of the
liturgy in the tenth and eleventh centuries illustrate the point—the hieratic
priest is distinguished not simply by his costume but by his stature, ges-
tures, and remoteness from the viewer.28 In liturgical practice, yet another
way of instructing both clergy and laity, this distancing can be seen in the
administration and understanding of the sacraments, notably the Mass, in
pious biographies of pastoral bishops, in the hagiography of reforming, ac-
tive saints, and in the versatile uses of space in the church building.
The language of monastic and other clerical reform in the tenth and
eleventh centuries was steeped in images of ritual cleanliness and pollution
across a broad range of topics.29 In this context it is important to note the
degree to which much of the rhetoric of reform used the language of sexual
violence in order to assert its own authority. Long ago Gerd Tellenbach in-
dicated the extent to which the imagery used to indict the offenses of nico-
laitism and simony spoke of the degradation of the Church from the Bride
of Christ to a harlot: ‘‘The struggle against simony and the domination of
the laity was never more full of hatred nor expressed in more unrestrained
terms than when the leading thought was the fate of the Bride of Christ and
the low and vulgar crimes that were being committed upon Her body.’’30
The violence of this imagery is clearly intended to horrify, to inspire
disgust, as was much of the other rhetoric of late eleventh-century reform.
With it must be considered the increasingly common designation of heresy
and schism as a disease that must be excised before it contaminates the
body of the faithful. These are hardly legal arguments, but they intensify the
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obligation of those responsible for the law and must be considered as well
as the theological and legal lines that identified nicolaitism and simony as
heresies.
Reform publicists expanded traditional terms to cover entire catego-
ries of behavior and to define these categories as heresy, especially clerical
sexual activity (nicolaitism), the complex tradition of gift exchange in the
acquisition of clerical office and property (simony), and all forms of blood-
shed (and the other signs of secular life in general) by clerics. They crimi-
nalized those who attacked clerics and prohibited the ordination of the
unfree on the grounds that a serf or slave’s obligations to a master were
stronger than his obligations as a priest. Both nicolaitism and simony chal-
lenged old family and kin structures and property rights. So with the con-
demnation of clerical marriage and concubinage, the wives, concubines,
and children of such clergy became a new class of people whose status was
ruthlessly and vastly diminished. Not only was the old and relatively limited
term ‘‘heresy’’ applied to these practices and greatly expanded and intensi-
fied in the process, but condemnations of them as crimes reached widely
out into society. The illicit was spawned by a new definition of the illegal.
Far more than the purely local and uncertain manifestations of popular dis-
sent on the one hand, and the relatively restricted theological disputes of
the learned on the other, the use of the term and expanded concept of her-
esy among now-errant and reform-resistant clergy shaped the category that
took on a new social life and a far wider range of applications after the
eleventh century. But between the often polarized categories of orthodoxy-
heresy lay a broad spectrum of belief, assent, doubt, skepticism, and con-
cern that is often missed.
After the eleventh-century polemics, canon law collections, and slow
routinization of rulership in both secular and ecclesiastical arenas, what
preserved the legacy of reform was the schools. The teaching of the seven
liberal arts, and especially the predominance of the study of logic, provided
a common language and style of thinking that were applied, not only to
legal problems, but also to the text and understanding of Scripture. Some-
times this reached a point so extreme that even devoted reformers found
worrisome the minute and often contentious analysis of words and theolog-
ical problems that were settled by techniques of logical analysis rather than
the inspiration of the Holy Spirit or the contemplative technology of mo-
nastic study. The emergence of a common and widely accepted body of
running commentary on Scripture, later made clearer by the divisions of
the text into chapters in the thirteenth century, which made subdivision
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12 Edward M. Peters
into verses easier in the sixteenth century, produced a common text, under-
standing, and method of teaching of scripture that narrowed the possibili-
ties of interpretation into a manageable canonical range that established the
outer parameters of orthodox belief. The inner parameters were defined in
the schools.31 The movement from there to the growth of the teaching of
moral theology, especially at Paris, constituted the establishment of the
canon of orthodox Latin Christian belief, applied it in sermon and confes-
sion, and made clear the difference between the licit and the illicit in scrip-
tural understanding and interpretation.
Lay status too had to be revalued, clearly if reluctantly, at the expense
of relaxed strictures on sexual activity, marriage, the uses of violence, and
the widening range of forms of secular life, including commercial and polit-
ical activity. An expanded evaluation of the lay life had to take place and
some lines between the licit and the illicit redrawn. Moreover, for reform
to succeed, the laity, at least the most important of them, had to support it
(without claiming the right to direct it). Lay support could vary greatly,
from extending patronage and relinquishing proprietary rights to ecclesias-
tical property to being part of the crowd raised by enthusiastic reformers
against the unreformed—who were painted in increasingly violent and re-
pulsive colors as the reform movement encountered resistance or inertia.
Once raised, the crowd was difficult to control and could sometimes claim
a dangerous voice of its own in the affairs of its pastors and spiritual guides,
as did some elements of the First Crusade in 1096 and later. It took the
formation of a new idea of aristocratic conduct to turn the upper levels of
the crowd, at least, into the Christian knight.32 Subsequent canon law pru-
dently afforded the laity no standing whatsoever in the regulation of ecclesi-
astical affairs. But regulating the behavior of the laity was the second major
task, after defining and regulating that of the clergy, of the ecclesiological
transformation of the late eleventh and twelfth centuries.
From one perspective this is the shaping of R. I. Moore’s persecuting
society.33 From another, however, it is the initial shaping of a scrutinizing
and self-informing society, one whose concern for law and the illicit indeed
led to the varieties of social categories and hostility depicted by Moore, but
also one that created an apparatus of regulatory and criminal law and a
public awareness of both in the course of creating those categories. To the
more general categories that Moore discusses—heretics, Jews, lepers, and
male homosexuals—need to be added Muslims, criminous clerks and lay-
men, excommunicates, and schismatics, entire categories that were increas-
ingly created and addressed by secular or canon law, a point that Moore
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significantly fails to make. John Bossy has also signaled a kind of trade-off
to the persecuting society: the social miracle of Christian fraternity and
community and the enhanced prospect of the legitimacy of lay life and of
salvation for the laity.34
The ordinary layman or -woman will in theory have been instructed
by liturgy, preaching, confession, and performing of penance. That instruc-
tion shaped not only a sense of the self, but also a sense of society, of family,
kin, and neighborhood—and perhaps a sense of the internal constitution
of others. It also shaped conscience, which was expected to recognize sin
and to repent by confessing in the internal forum, the forum internum of
the confessional (made mandatory, utriusque sexus annually, by Canon 21
of the Fourth Lateran Council of 1215). The confessor could assess the sin
and either treat it privately or recognize that it was sufficiently serious as to
require the determination of a higher clerical authority. If the offense
reached the bishop’s court, the forum externum, it would be treated by spe-
cialists whose decisions were routinely approved by the bishop. In the thir-
teenth century those specialists could employ an expanded range of trial
procedure, including inquisitorial procedure, first against criminous clerics,
and only later against heretics.
In the case of some offenses, the best known but not the only one of
which is heresy, the bishop’s court had to invoke secular authority, the
point at which ecclesiastical and secular jurisdictions combined in a mixed
forum with its own strained etiquette and sets of rules.35 It is rather in the
cooperation of ecclesiastical and secular authorities than in their often over-
dramatized opposition that the reordering of law and the illicit took place
in the eleventh and twelfth centuries.
The changes in law and the illicit briefly discussed here were mobilized and
given an institutional basis that guaranteed their continuity by two events
and two institutional changes in the period 1200–1250: the pontificate of
Innocent III (1198–1216) culminating in the Fourth Lateran Council (No-
vember 1215); the compilation of the Liber Extra by Raymond of Penafort
and its dispatch to the masters at Bologna by Gregory IX in 1234; the domi-
nance of the scholastic method and the vast work of moral theology and
law at the new universities at Bologna, Paris, and elsewhere; and the emer-
gence of the mendicant orders, initially as papally commissioned specialist-
preachers and confessors. All of these are signs of an immense and continu-
ing pastoral and social revolution. Taken together, these four were both the
products of eleventh- and twelfth-century change and the forces that guar-
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14 Edward M. Peters
anteed its results for centuries. Unlike the extensive attempts at reform of
the Carolingian period, the changes of the eleventh and twelfth centuries,
building on the Carolingian legacy, also provided ways to invent the means
of their own communication throughout Christian society and thus their
continuity for centuries to come.

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Chapter 1
A Fresh Look at Medieval Sanctuary
William Chester Jordan
One meaning that attached to the word ‘‘sanctuary’’ in the thir-

teenth century was that of a refuge for criminals trying to avoid legitimate
and illegitimate attempts at vengeance.1 For a thousand years ecclesiastics
had been routinely claiming that churches, because of their holiness, should
be recognized as such places. This tradition paralleled an even more ancient
tradition among non-Christians that certain sites—temples or designated
cities—should be considered sanctuaries. The various secular governments
of the Middle Ages that recognized sanctuary developed, by the thirteenth
century, an extraordinary body of law on the extent or, put differently, the
limits of sanctuary. Indeed, it was in the thirteenth century that sanctuary
really began to flourish. I have two aims in this chapter: first, to address,
but unfortunately not to solve, the problem of the jurisdictional and territo-
rial extent of the enforcement of the law of sanctuary in thirteenth-century
Europe and, second, to describe a few aspects of the application of the law
that raise troubling historical issues in the later Middle Ages as a whole, in
particular, the general absence of criticism of sanctuary as a system (despite
quibbles about details) and the discourse about sanctuary in the alleged at-
tempts of late medieval rulers to establish their jurisdictional supremacy
over the church. A brief conclusion points to areas of needed future re-
search on the social implications of the existence of relatively large numbers
of successful sanctuary seekers in parts of Europe.
The Territorial Extent of Sanctuary
Broadly speaking, the secular law or process of sanctuary and the ecclesias-
tical law and process, part of the ius commune of Catholic Europe, are dis-
torted images of each other.2 Princes sometimes had more expansive and
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18 William Chester Jordan
sometimes less expansive understandings of sanctuary’s conceptual param-

eters than the canonists had. In the best studied case, thirteenth-century
England, for example, rulers and churchmen in the kingdom enforced the
law of sanctuary in a somewhat more liberal manner than that prescribed
by the Church Universal.3 The principle, expressed in writ after writ from
rulers to the enforcers of secular law, was that suspected felons (even in-
cluding categories of men and women who would be denied sanctuary
under ecclesiastical rules) could not be seized and taken into custody on
holy ground: ut eum capiatis, ubicumque extra loca sacra.
By convention, scholars distinguish two forms of sanctuary in Britain,
one called general (the focus of this chapter) and the other known as special
or chartered. General sanctuary was the privilege that attached to churches
to receive suspected felons for a fixed interval (the establishment of a time
limit was not required under canon law), during which the government de-
termined whether they were legally entitled to the church’s protection. If
they were and were willing to go into exile, the Crown forwent capital pun-
ishment. A chartered or special sanctuary, as the two names imply, on the
contrary, was characterized by a charter issued by a prince giving the insti-
tution in control of a church additional privileges beyond those understood
to pertain to its asylum for suspected felons. Chartered holy places therefore
became special, in the sense of distinct from ordinary sites of sanctuary.
Chartered or special sanctuaries were never very numerous: Westminster,
Saint-Martin-Le-Grand (London), Durham, Beverley, all in England; Ho-
lyrood in Scotland; and contested Cistercian claims throughout the island.
Each chartered sanctuary, the refuge of lesser offenders, tended to be geo-
graphically large, however, and by the thirteenth century they were well on
their way to becoming little more than permanent debtors’ settlements, for
there was no obligation to depart. The management and policing of these
upscale counterparts of debtors’ prisons were at times annoying to church-
men, and their very existence was occasionally a cause for criticism from
lay officials. Like debtors’ prisons, however, they served a useful economic
purpose in the absence of bankruptcy laws, and, in any case, churchmen
were unwilling to alienate their rights.4
If mainstream canon lawyers had had their way, every church in Cath-
olic Europe and its political hinterland, like the Crusader States, would have
enjoyed the privilege of general sanctuary in the thirteenth century, but this
wish was hardly fulfilled even by the end of the century. The number of
parish churches and consecrated churches and chapels in monasteries, lep-
rosaria, hospitals, and almshouses in England and northern France, where,
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A Fresh Look at Medieval Sanctuary 19
it is clear, sanctuary applied and was enforced, would have exceeded 30,000.5
But for several reasons it is uncertain how many churches in other princi-
palities of Europe should be added to this figure. In the first place, other
jurisdictions, even those where abundant records have survived, have not
been investigated with the thoroughness that has been accorded to the En-
glish case or to thirteenth-century northern France. Second, what research
has been done, thorough or not, raises considerable doubts about the
Continent-wide enforcement of the law of general sanctuary.
Consider, for example, the contemporary Iberian kingdoms. There is
tantalizing evidence in favor of both official and popular recognition of the
law of sanctuary. Moreover, the powerful state apparatuses of the Iberian
kingdoms suggest a parallel with England and France in the thirteenth cen-
tury. But the situation is far from certain. Jill Webster did assemble a num-
ber of cases detailing the presence of refuge-seeking fugitives in Franciscan
churches in the Crown of Aragon. From these it is possible to deduce that
churchmen (or, at least, Franciscans) acted as if sanctuary attached to their
churches, and that some criminals acted in this manner too. Prisoners in
Aragon who escaped medieval jails also thought it was worth trying to seek
and claim sanctuary. But these same cases also appear to show that the royal
government was inconsistent in its support or enforcement of the law of
sanctuary, the universalizing impulses of the spokesmen for the ius com-
mune notwithstanding.6
Italy provides almost no evidence of the application of the law of sanc-
tuary, so far as I have been able to discover. There is a single index entry to
‘‘sanctuary’’ in Augustine Thompson’s magisterial Cities of God: The Reli-
gion of the Italian Communes, 1125–1325, but the page to which it directs the
reader has nothing on sanctuary, and there is nothing on it anywhere else
in the book.7 The exquisite thoroughness of Thompson’s research suggests
the absence of the phenomenon. One possible explanation is that the gov-
ernments of Italian urban centers created municipal institutions that
achieved the goals that sanctuary elsewhere accomplished, like gracious re-
leases of convicts on feast days.8 Italian cities were also precocious in adopt-
ing, despite learned juristic opposition, punitive imprisonment in the
thirteenth and especially the fourteenth century as an alternative to exile
for felons.9 However, these explanations, if true, would apply principally to
northern and urban coastal Italy, not to most of the south or to the great
Romance-speaking islands of the Mediterranean, like Sicily. To repeat, the
issue (the mirror image of that of punitive imprisonment) is not whether
formal legal codes or treatises, secular or ecclesiastical, recognized the valid-
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ity of sanctuary or threatened those who would violate it. In the kingdom
of Sicily in the thirteenth century the law enjoined the death penalty on
violators.10 But whether royal authorities at the local level routinely granted
claims of sanctuary is a question that, as far as I can tell, remains open.
The Scandinavian and central European principalities also provide
scanty evidence of any general enforcement of the law of sanctuary.
Whether more will come to light as investigation continues is uncertain,
partly because the documentary base for some regions is relatively thin.
Moreover, many of these principalities lacked the relative jurisdictional ho-
mogeneity and central control that characterized thirteenth-century En-
gland and northern France (and the Iberian kingdoms and Sicily) with their
powerful state apparatuses that at least made the systematic application of
the law of general sanctuary possible, although not necessarily inevitable
(pace Iberia). Wolfgang Müller is of this opinion, based on parallels drawn
from his work on the medieval criminalization of abortion, where canonis-
tic claims far exceeded adoption and enforcement by secular jurisdictions
in central Europe.11
Aspects of the Law of General Sanctuary
The law of general sanctuary is often characterized as distinctively ‘‘medie-

val,’’ that is to say, exotic by modern ‘‘enlightened’’ commentators. Other-
wise excellent scholars have often been uncritical in its study, but the
popular understanding of sanctuary (expressed in novels, on television, and
in films) has engendered a positively gross distortion of its technical charac-
ter and application. Thus, it is absolutely essential to set out the general
parameters of the law in the thirteenth century as reconstructed from can-
onistic writings, secular law books (like Bracton’s De Legibus et consuetudi-
nibus regni Anglie, Fleta, and Beaumanoir’s Coutumes), and other normative
texts, as well as from legal proceedings and stories.
General sanctuary attached itself in theory to every church. Princes
often extended immunity to churchyards, as far as thirty or forty paces, and
to clerical residences like episcopal palaces, although not all canonists
thought this appropriate.12 Authorities carefully distinguished among the
dependencies of monasteries. If a priory, cell, storage house (domus), or
hermit’s lodging dependent on a monastery had a chapel or church, sanctu-
ary applied to these chapels and churches. But if the cells or the like served
merely as lodging for monks and estate workers at, say, planting, harvest,
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or market time, clerics and secular officials agreed that these were not places
of sanctuary. Clerics and princes also denied the beatitude of sanctuary to
private chapels and private oratories, to churches in regions under interdict,
and in France to fortified churches, especially during the early period of the
Peace of God movement, say, the eleventh and twelfth centuries, when they
were likely to be sites of bloodshed.
By the thirteenth century, despite looser earlier practice, one could
only seek general sanctuary for felonies (for nearly all felonies, despite mis-
givings about some in canon law), crimes that could upon conviction have
incurred the death penalty.13 A person, however, could not claim general
sanctuary for a felony committed in a church. This was sacrilege, whether
the crime was committed against a cleric, nun, or layperson, or against the
sacred objects or environs, say, by urinating on an icon as an act of desecra-
tion.14
Minors were not typically admitted to sanctuary because they could
not incur criminal responsibility in capital cases, but the protection did
apply to most lay adults—men and women (married women with the con-
sent of their husbands)15 —unless they brought weapons with them when
they entered the church or churchyard, which was an act of sacrilege. Typi-
cally, clergy were ineligible for sanctuary, because extending eligibility to
them would give secular authorities what canonists regarded as improper
jurisdiction over them. In England, this was certainly the case, and the ac-
tions of the few local authorities who occasionally granted sanctuary to
churchmen were regularly repudiated by higher authorities.16 But in Nor-
mandy not only was sanctuary extended to felonious clerics, but secondary
processes, authorized by the secular authority, were imposed, albeit after
canonical degradation.17
Other categories of people ineligible for sanctuary included Jews, serfs,
excommunicates, and heretics. Canonists at least thought about the possi-
bility that sanctuary might be extended to Jews, with the holiness of the
place trumping the infidelity of the Jews, but this opinion had no practical
consequence.18 As for serfs, in both canonistic texts and in secular contexts
like Sicily, the principle extrapolated from the Roman law of slavery was
that a man (the serf’s lord) could not be deprived of his property or, rather,
his right (ius suum). Serfs who sought sanctuary were supposed to be pun-
ished and returned to their masters.19 Finally, barred by their status from
entering a Catholic holy place until they were reconciled with the church,
excommunicates and heretics could not be granted sanctuary. In November
1312, after Pope Clement V suppressed the Templar Order at the Council of
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Vienne, a Knight fearing for his life fled to a hospital for sanctuary. His
claim was denied because of the papal condemnation, the presumption
being that he had incurred automatic excommunication. Royal officials
claimed him as a result, but King Philip IV the Fair, enemy and chief perse-
cutor of the Order of Knights Templars though he was, couched his claim
in language that otherwise explicitly confirmed hospitals as sanctuaries.20
Far more men than women appear in the sources as seekers of sanctu-
ary, at least according to English records, a gender breakdown that mirrors
that of criminal indictment and conviction.21 There was a strong, but not
universal, sentiment against extending sanctuary to those already convicted
or for whom formal trial process had begun.22 Ideally, only allegations
could lie against sanctuary seekers, although local authorities may have had
trivially differing opinions about what actually marked the beginning of
formal process. Because the legal establishment in the Middle Ages took
suspects’ reputations into account, people who had once been formally ac-
cused or convicted of a serious crime were notorious. That they were alive
at all implied that they had benefited from the mercies of the legal system,
like commutation of sentences, pardons, or the evident preference of
medieval (English) juries to acquit, once the criminal trial jury system was
firmly in place and exile no longer followed acquittal.23 Their abuse of these
acts of grace by committing additional felonies made them ineligible for
sanctuary.24
To ensure that the conditions required for the successful seeking of
sanctuary were met, officials were informed by letters of the fugitives’ desire
for sanctuary.25 In one such letter from Westminster Abbey, the sheriff and
barons of Sussex were notified that one Turbern of the Weald ‘‘requested
the mercy of God and the altar of Saint Peter and the tomb of King Edward
for his freedom. For it is the custom and privilege and dignity granted by
the kings of England of old that the fugitive for the crime of which he is
accused should lose neither his life, nor members, nor any of his prop-
erty.’’26 The phrase ‘‘any of his property’’ would become anachronistic by
the thirteenth century. The Westminster archive also preserves a set of oaths
from the early thirteenth century and in continuous use until the close of
the Middle Ages, which seekers of sanctuary took.27 The first three oaths
would have been more or less common to those seeking general sanctuary
and chartered/special sanctuary. They required fugitives to give the true
cause of their flight, the circumstances under which they fled, and the pre-
cise names of the persons injured; to behave appropriately as long as sanc-
tuary was afforded them and to do their best to defend the privileges and
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customs associated with sanctuary; and to obey the keepers of the sanctuary
in all their legitimate commands.
Villagers and townsfolk kept watch over the buildings in order to fore-
stall lynch mobs’ and overzealous lay officials’ attempts to violate sanctuary
and also to prevent those in sanctuary from escaping before the process was
complete. Attempts to escape were especially likely by people who were not
entitled to sanctuary. Once it was discovered that they were ineligible, they
lost protection and were liable for criminal process and judgment, and
probably execution, since earlier mercies had obviously failed. If their at-
tempts were successful, they became outlaws in the legal sense.28 Some com-
munities successfully negotiated for immunity from the burdensome
service of guarding sanctuaries, in which case it was shifted onto secular
officials.29
Within the sanctuaries the clergy, on pain of excommunication, pro-
tected and provided food for the sanctuary seekers until their situation was
resolved.30 Claimants of sanctuary had to confess their crimes before magis-
trates who came to receive them and, it is presumed, also had to undergo
the sacrament of confession. Laypersons in France and England granted
sanctuary, and in Normandy churchmen as well, once defrocked, under-
went a secondary process (described below) leading to exile. There were
two different sets of time limits for the primary and secondary processes.
Sanctuary per se could not extend beyond eight days in Normandy and
forty days in England, measured ordinarily, though possibly not always,
from the first day of entry rather than from the arrival of the official to
interrogate the fugitive.31 The secondary process commenced in France
after the legitimacy of the claim to sanctuary was determined. Successful
claimants then had to appear before lay magistrates who assessed the miti-
gating or compounding circumstances of the crimes, the claimants’ reputa-
tions (although by definition they were not notorious before, otherwise
sanctuary would have been denied), and their origin (were they outsiders
or foreigners). Taking into account all these factors, the magistrates could
banish them perpetually or for a term of years. (Canonists were iffy on the
justness of exile, presumably since they saw it as a form of punishment.)32
Banishment made grantees of sanctuary notorious for the future and was
signified by branding with a red-hot iron fleur-de-lys.33 Fugitives claiming
sanctuary who were discovered to be baniti were denied it, a rule noted, for
example, in the records of the Parlement of Paris in 1254.34
Similar but more elaborate was the postconfession process in England
and Normandy, abjuration, literally ‘‘forswearing.’’ The most thorough his-
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torian of abjuration, André Réville, argued that the process adopted a num-
ber of practices that flourished long before the thirteenth century, including
the treatment of those who succeeded at the ordeal and aspects of the proc-
ess known as outlawry. Success at the ordeal formally established inno-
cence, but suspected felons were not sent to the ordeal except by the
powerful suspicions of the community that they were guilty; they had lost
their good reputation. Consequently, those who succeeded at the ordeal
were commanded to leave the realm. If they tried to avoid exile or ever
returned from exile, they became outlaws. In the metaphorical language of
the time, they bore the wolf’s head and could be beheaded with impunity
by any of the king’s subjects.35
It was lay officials, generally speaking coroners, who administered the
oaths of abjuration, taken in front of local representatives, groups identical
with or drawing on the same pool of men as local juries.36 There the ab-
jurers promised to leave the kingdom for ever.37 The process was not always
smooth, because there were efforts to persuade the fugitives to stand trial
rather than go into exile. Circumstances may have changed and tempers
cooled to the potential abjurers’ benefit. Or, some may have had crises of
conscience for not paying for their crimes. But those who decided to abjure
came forward in the garb of penance; some thirteenth-century texts use the
word ‘‘sackcloth,’’ emphasizing the enduring religious overlay of the rit-
ual.38 If fugitives had confessed to theft, any stolen goods recovered were,
with the proper royal writ, returned to the rightful owners.39 By the thir-
teenth century, whatever earlier practice might have been, it was good law
that abjurers’ chattels went to the Crown in England or the duke in Nor-
mandy, while their lands escheated to their direct overlords.40 In England
by 1290, it had become recognized legal practice, however, not to penalize
the innocent wives of abjurers by confiscating their marriage portions.41
In England abjurers expressed their willingness to go to a seaport and
seek passage from the realm.42 Law writers of the time say that the abjurers
chose the seaports. Record evidence, however, suggests overwhelmingly that
the coroners chose them, or perhaps heard requests but then rejected or
accepted them as they thought right.43 Higher-ups rarely admonished, let
alone punished, these literalist deviations from the spirit of law-book
norms. Consequently, the seaports of debarkation were almost never the
ones nearest to where the abjurers originally claimed sanctuary.44 Alterna-
tively in England, abjurers from sanctuaries in the north of the country
could choose to leave or be ordered to leave the realm at a town or port
bordering with Scotland. The exile was not, in any case, from all the juris-
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dictions the king of England held but from the one (provincia) in which the
crime and abjuration took place. Thus, abjurers of England might go to the
Channel Islands, which did not fall under specifically royal jurisdiction in
the thirteenth century or later Middle Ages.45
After taking the oath, abjurers, as remarked earlier, had a limited time
to get to the departure point.46 There was always the danger that victims or
victims’ kin and friends would risk their lives to lay hands on abjurers on
their way to the point of exile. Out of fear some abjurers refused to leave
sanctuary. What could be done? In the mid-thirteenth century, legal au-
thorities—in writings and in practice—differed about what kind of action
officials could take to force them out. Clergy wished to avoid bloodshed,
since the pollution of sanctuaries required their reconsecration.47 A typical
way was to cut off food from being brought in from the outside.48 True,
churchmen expressed dislike at being complicit in starvation.49 But the tac-
tic mirrored another common law practice in England. When captives held
in jail refused to plead and accept trial by jury, which was technically a vol-
untary option offered after unilateral ordeals ceased to be used in English
courts in the early thirteenth century, they were induced to do so by prison
(peine) forte et dure, that is, by being semistarved, served bread and water
on alternate days, or crushed by weights.50
In any case, far and away the principal point of embarkation for ab-
jurers of England was the port of Dover.51 Though other ports show up in
the record evidence, the overwhelming preponderance of Dover suggests
the primary role of royal officials in choosing the destination point, pre-
sumably because of the need to coordinate the numerous exiles. (The exact
number is an issue to be addressed momentarily.) This is further empha-
sized by the distances involved. Documentation has survived that shows ab-
jurers traveling from sanctuary in Yorkshire to Dover, up to two hundred
ninety-nine miles.52
Given the conditions of travel and the territorial distribution of ab-
jurers, Dover could not often have been the first choice for embarkation.53
True, abjurers were allowed to retain some travel expenses from their chat-
tels (or have them provided if they had no chattels), but otherwise they
departed sanctuary, whatever the weather, bareheaded, barefooted, and in
the simplest clothing.54 They carried wooden crosses to identify themselves
as abjurers under the protection of the church. Later in the Middle Ages,
the English appropriated the French practice of branding, with abjurers get-
ting an A on one of their thumbs to prevent them from being taken for
pilgrims.55 They were ordered to stay on the king’s highway and therefore
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in his peace, also an inheritance from Anglo-Saxon law.56 If they veered off,
it was presumed that they were seeking to escape, and they bore the wolf’s
head and could theoretically be beheaded without fault. I believe it was cus-
tomary for a constable or guard to accompany each individual or group,
since they were in the king’s peace.57 R. F. Hunnisett’s idea that they almost
always proceeded on their own, despite a few documented examples to the
contrary, is hard to accept. Indeed, it may be that discrepancies in the time
of abjuration and departure for exile, which have long troubled historians,
reflect royal officials’ coordination of abjurers into groups, thus reducing
the number of trips that they had to supervise. The frequently repeated as-
sertion that because of poor enforcement most abjurers never actually went
into exile goes back to another of Hunnisett’s unsubstantiated guesses.58 In-
deed, anything about enforcement and rates of escape must remain unsub-
stantiated, given the almost total absence of relevant evidence on this phase
of the process.
Despite the evidentiary problems of making general and comprehen-
sive statements about enforcement and rates of escape, there are neverthe-
less numerous examples of individual escapes and attempted escapes. A
number of abjurers did try to flee to woodlands, and some undoubtedly
succeeded, adding in England to what Ralph Pugh regarded as the vast pool
of outlaws.59 It was expected, however, that if everything went smoothly and
they arrived at the point of departure and embarked, they would never re-
turn unless they received the prince’s pardon. I do not assume that those
who abjured committed all the felonies they confessed to.60 But guilty or
innocent in truth, they were guilty in law, and if they dared to return to
England without being pardoned they bore the wolf’s head.61
Abjurers at Dover and other seaports were to take passage on the first
available ship.62 (There must have been captains operating out of Dover for
whom this was a more or less regular part of their transport business; yet
on this no evidence has been found.) Until the ships allowed them to board,
they waited in full sight on the beach. Daily, as testimony to their willing-
ness to fulfill their oaths, they entered the water—some writers and docu-
mentary evidence suggest they went in until the water lapped their knees;
others, their necks.63 Again, keeping our eyes on England, for which the
most thorough—yet still a very unthorough—count has been made, one
can imagine every year approximately one to two thousand abjurers, ac-
cording to one count, or hundreds, according to another, or about two
hundred, according to R. F. Hunnisett.64 Of course, if the majority really
did escape before going into exile, as Hunnisett asserted, the number of
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those who actually took ship for the Channel Islands or France or went over
the border into Scotland would have to be reduced by at least half. Either
way, every year anywhere from one hundred to two thousand (the extreme
range) men and women left England for new lives elsewhere as abjurers.
And these numbers were augmented by those who succeeded at the ordeal
(before its abolition) and by exiles for other causes.
Réville believed there were far fewer exiles from Normandy, where,
even after the French reconquest of 1204, abjuration was also practiced. Of
course, the duchy with 1.5 million people had perhaps only a quarter of
the kingdom’s population.65 But Réville thought that sanctuary was simply
appealed to less in Normandy and thus produced fewer abjurers. My sense
of the lower rate of survival of evidence from medieval Normandy than
from England prevents me from endorsing this conclusion.
In any case, the rituals and legal practices attached to sanctuary,
whether followed by abjuration, banishment, or simple freedom and im-
munity from prosecution for felonious churchmen, were something pre-
cious in the universe of discourse and practice in the High Middle Ages.
The scribes of Westminster Abbey always adopted particularly florid styles
when they wrote charters that dealt with important matters or that they
sent to particularly important people. They were very deliberate in this
practice. Emma Mason has noticed that sanctuary was a matter that evoked
these styles in letters, say, addressed to sheriffs notifying them of the pres-
ence of fugitives.66 Moreover, the monks vigorously defended sanctuary,
preparing numerous copies of the charters that confirmed their privileges
in this matter when it came under a frontal assault from Protestants in the
sixteenth century.67
The Problem of Social Realities
In the heat of pursuit of a suspected felon, even people who in cooler mo-
ments would affirm the hallowed character of sanctuary might violate it.68
Churchmen complained of occasional violations.69 In 1303 the dean and
chapter of the cathedral of Sens, for example, denounced five members of
the town watch for seizing and beating an alleged miscreant (in fact, a sub-
deacon) and taking him off to the communal prison after he claimed sanc-
tuary. The churchmen complained to the king. Parlement deprived the five
men of their offices, forbade them to hold similar offices in the kingdom
again, and sentenced them to public humiliation and two large fines, 120
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pounds tournois payable to the chapter and 100 payable to the Crown. Until
their guarantors made good on the fines, the five men were held in prison.
The mayor and communal government of Sens were exonerated in the ab-
sence of evidence that they had condoned the breach.70 Invoking incidents
like this, churchmen also periodically issued decrees in synods and councils
warning against violations of sanctuary.71 No doubt violators wanted secu-
lar judicial authorities to empathize with their hot-blooded desire to bring
felons to justice, but in a number of cases violations of sanctuary or lax
enforcement, like that in Sens, incurred punishment, not leniency.72
Sanctuary, along with banishment and abjuration, might well have
been resented in the societies that received confessed felons. The abjurers
who escaped into the woodlands on their way to Dover or some other point
of exile and bloated the numbers of English outlaws must have engendered
resentment when criminal gangs were apprehended and they were found to
be among their members. The French presumably resented English abjurers
and other exiles, while the English feared and loathed French baniti. I sus-
pect that these resentments, unless magnified by the recent memory of war,
ordinarily remained mental and verbal rather than violent because most of
the exiles would have drifted to already established, ethnically similar immi-
grant subcommunities or joined large roving work gangs, rather than out-
law gangs, which provided seasonal labor to help repair damage done by
spring floods, bring in crops at harvest time, and so forth, much like legal
and illegal immigrant labor today. But just as immigrants today who com-
mit crimes or are suspected of doing so often receive rough treatment, the
same would have been true of escapees from sanctuary, exiles, and baniti,
who joined the ranks of ‘‘vagrants.’’ In France it was precisely these people
who were most likely to be tortured and executed if they came under suspi-
cion of criminal activity.73 In England strangers were always at risk, like two,
in a rather vivid example, who were arrested, imprisoned, and branded on
their members (!), evidently without sufficient cause, in Surrey in 1235. An
investigation was ordered.74 But the point is the peril of rootlessness.
When the alleged crime was sedition, and when pursuit into or the
forcible taking of a fugitive out of sanctuary or other breaches of clerical
immunity occurred, those acting directly in the king’s interest were likely
to be the perpetrators. A great deal has been written on these causes célèbres
and ultimately the formal exclusion of treason from the protection of sanc-
tuary and benefit of clergy.75 These do make dramatic cases, but high
churchmen and aristocratic fugitives were the extreme rarity among seekers
of sanctuary. The annual exodus of one thousand or one hundred abjurers
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from England mostly consisted, insofar as one can tell, of a rather sad lot
materially speaking. I suspect that many were ashamed, many despondent
at leaving their families, and many almost paralyzingly and quite rightly
fearful of a future in hostile foreign lands, where if they got into any trouble
at all, the punishment would almost certainly be death.
The observations above raise many questions, but, as Helmholz observes,

they do not fit neatly into the usual scenario scholars and antiquaries have
constructed to explain the demise of sanctuary, namely, that it was a casu-
alty of a longstanding church-state struggle for political supremacy.76 This
explanation draws on snippets of complaints about the unfortunate behav-
ior of a few sanctuary seekers, abjurers and baniti, the occasional violation
of sanctuary by hotheads, and particularly the way prosecution for treason
in England came to trump sanctuary. It presumes that the complaints and
violations indicate that statesmen were merely biding their time until the
state achieved the power to abolish sanctuary. It should come as no surprise
that this argument held sway first in Protestant countries and later, during
the Enlightenment, in Catholic ones.77 One had to have a caricatured Mid-
dle Ages—papist, priest-dominated, and superstitious for radical Protes-
tants; obscurantist and irrational for philosophes and their intellectual
descendants—in order to read the evidence this way.
Defenders of this thesis have also argued that emergent clarifications
in the law of sanctuary are evidence of statesmen chipping away at the con-
ceptual edifice of sanctuary continually from the very beginning of the time
one can describe its complex legal and practical instantiation in the thir-
teenth century.78 The assumption is that every time an aspect of sanctuary
was clarified in the Middle Ages, it had as a subtext the intent to destroy
the entire institution. This scholarly tradition speaks of a steady—and de-
liberate—erosion of sanctuary. The emergent state slowly but ever so stead-
ily washed away the top soil of the unspeakable ecclesiastical privilege that
was sanctuary, first and most dramatically with respect to treason and then
with respect to every kind of high crime.
In fact, there is a much more persuasive, if perhaps still partial, expla-
nation of what was going on. The twelfth, thirteenth, and fourteenth centu-
ries witnessed the systematization of many legal systems, concepts, and
practices, including those concerning sanctuary. Yet, sanctuary remained a
living, breathing system. As one pushed the envelope (to mix metaphors),
clarifications were necessary. One of the earliest, with respect to spatiality,
was the decision not to regard fortified churches as sites of sanctuary. But
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there are others. Did sanctuary extend thirty or forty paces from the sacred
building? It is not that churchmen insisted that sanctuary extended a set
number of paces—in excess of thirty or forty—and that lay administrators
in the thirteenth century only cut it down because they did not yet possess
the power to restrict it completely. It makes more sense to regard such spec-
ifications as contingent on circumstantial disputes, such as when the legiti-
macy of a fugitive’s claim to sanctuary was in dispute. Was he sufficiently
near when he claimed the protection? Or, to give another example: a fugi-
tive hides in a barn on a parson’s glebe land. Can he claim sanctuary? It is
not that the pristine system allowed sanctuary before in such a place. The
decision—as a practical matter of adjudication—followed the claim with
acceptance or rejection. The same can, finally, be said of the specifications
that emerged with respect to the crimes, including treason, and the sorts of
persons that sanctuary applied to. It never applied to all crimes and was
then reduced steadily and prophetically until it was limited to only a few
crimes and ultimately no crimes, and it never extended to all people only
to be reduced incrementally over time and by deliberate projection to a few
people and then to no one. The metaphor of erosion, let alone deliberate
erosion, as Rosser agrees, is wholly misleading.79
The post-medieval attack on the legitimacy of sanctuary did draw fuel
from some of the earlier arguments in the long history of its clarification,
but it is inappropriate to read the medieval history of sanctuary from the
early modern assault on it. A more interesting set of questions might focus
on its apparent vigor in the medieval period, by which I mean its universal
articulation in normative texts and its significant, though apparently patch-
work, enforcement regionally from the thirteenth to the early sixteenth cen-
tury. According to Gervase Rosser, speaking specifically about England, a
communitarian-based theory offers the most powerful explanation. The
fact is that the English legal system and, one might add, the many other
territorial legal systems that were steadily centralized in the thirteenth cen-
tury became in the process far more draconian. Just as ordeals—at least the
ordeal of fire and the ordeal of hot water—had given communities time to
reach consensus about the fates of members who were suspected felons in
the three days during which their burned or scalded hands were permitted
to show signs of healing, so, too, sanctuary offered time, forty days in En-
gland, during which, as Rosser argues, ‘‘negotiations’’ occurred.80 One can-
not always know why negotiators sometimes tried to persuade sanctuary
claimants not to abjure but to face the music. Perhaps on occasion it was
because community sympathy was with the fugitives, and conviction was
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unlikely. But full abjuring, as Krista Kesselring argues, was also a way for a
community and magistrates to resist the draconian punishments increas-
ingly imposed by law.81 A great many people succeeded at the ordeal and
suffered therefore not death but exile.82
A glance at eighteenth-century England and the routine and extensive
employment of the death penalty there is suggestive.83 Transportation to
colonial Australia finally helped reduce the number of gibbeted men in the
metropole. In our own time, it is a commonplace that plea bargaining keeps
a great many minor repeat drug felons free from the mandatory life sen-
tences written into New York state law during the governorship of Nelson
Rockefeller. Sanctuary seems more or less to fit this paradigm. It appealed
to orthodox medieval religious notions of mercy, to the prevalent belief in
the immanence of God in daily life, to the widespread contemporary Cath-
olic sensibility that certain places were endowed with a very special holiness,
and finally to the reluctance to execute members of one’s own small com-
munity.
Sanctuary was harsh and punitive in its sequel, loss of property and
exile. It did not always function well. Lynch mobs sometimes violated sanc-
tuary, and princes abrogated it when it was a matter of state. But ‘‘no
[medieval] king chose wilfully to disregard proven privilege of sanctuary.’’84
When every year in thirteenth-century England one hundred felons or two
thousand or some number in between, most pretty ordinary as far as one
can tell, were spared a trial that could have cost them their lives, they owed
this to the institutionalized mercy one calls sanctuary. They may not have
remembered walking into the sea on the Channel Coast in a cold wind
while awaiting a departing ship as a pleasant experience, but they were alive
to remember it. And this is just England. Sanctuary was available not just
as a legal theory of the ius commune in many other jurisdictions. Just how
many in the thirteenth century, given the importance of the system, will
demand of future scholars concerted, intensive research. Moreover, for
those jurisdictions where the law of sanctuary was not applied in the thir-
teenth century, research is necessary into alternatives that might have been
functionally parallel in their basic result.
For the fundamental outcome of sanctuary was the saving of the lives
of vulnerable people. That is why the word has had such powerful reso-
nances down the years—for slaves during the abolitionist and Under-
ground Railroad movement in the antebellum United States and for victims
of political violence from Central America in contemporary American
churches, both Protestant and Catholic. Books on modern sanctuary move-
Authenticated
ments or tracts in their support always begin with the invocation—often

radically idealized and fantastic—of medieval practice.85 And that is how,
as life-saving and liberty-affirming, sanctuary has entered popular culture
and how it has been fictionalized in stories, novels, movies, and television
shows. And yet, for all the technical misunderstandings of medieval sanctu-
ary by abolitionists, compassionate political liberals, romantic novelists,
and Hollywood fabulists, they have got this right. It saved lives.

Authenticated
Chapter 2
Heresy as Politics and the Politics of
Heresy, 1022–1180
R. I. Moore
‘‘Of the three great twelfth-century institutions that trans-

formed the whole of European life,’’ Edward Peters remarked in The Magi-
cian, the Witch, and the Law, ‘‘the court has been discussed the least. Cities
and universities, perhaps because they have survived into the modern
world, have undoubtedly received far more attention.’’1 Though courts and
court life have been the subject of much distinguished work since 1978, this
aperçu, like so many in that wonderfully perceptive and still refreshing
book, remains underexploited, not least in relation to heresy. Discussion,
of which there has been a great deal, has invariably been conducted on the
Aristotelian (or Glanvillian) premise that heresy was either ‘‘popular’’ or
‘‘learned,’’ categories that correspond to Peters’s cities and universities. And
(Heinrich Fichtenau honorably excepted2) the distinction has been taken as
a hard and fast one, with little significant overlap or interchange between
the two kinds of heresy. They have been treated in quite different con-
texts—the one in relation to the evangelical movements, popular dissent,
and the path to inquisition and persecution, the other as intellectual his-
tory, part of the development of scholasticism and the rise of the universi-
ties—and generally by different people.
Yet a significant proportion of eleventh- and twelfth-century heresy
accusations originated and were played out in royal or princely courts and
must be understood in that context. Moreover, courts themselves, like ev-
erything else in this period, underwent a process of differentiation and spe-
cialization, which is reflected in, and which reflected on, not only the ways
they dealt with heresy accusations, but also the ways heresy itself was con-
ceived and charges of it deployed. In particular, the separation of the secular
from the spiritual sphere was juridically expressed by the treatment of her-
esy exclusively in ecclesiastical courts. This was not, as we shall see, a simple
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34 R. I. Moore
once-for-all development, but one that came about gradually during the
middle decades of the twelfth century. It was necessary not because anyone
had ever denied that heresy was a spiritual matter, but because the court
itself, in the eleventh century and before, was differentiated neither in
function nor in composition from the collectivity of the prince’s leading
subjects, what a later age might call the political nation. That is one rea-
son—not the only one—why the accusation of heresy was inescapably,
whatever else it might be, a political matter. When, in Vergentis in senium
(1199), Innocent III equated heresy with treason, he followed the code of
Justinian—but he also institutionalized in contemporary form what had al-
ways been perceived as its essential character.
As Peters showed, the courtly and political contexts of heresy accusa-
tions shaped some of our most influential sources. The understanding of
popular heresy presented by the monastic writers on whom we depend for
the eleventh and twelfth centuries was heavily influenced not only by their
scriptural and patristic reading but also by a specific rhetorical tradition of
invective associated with the skills of the courtier. Peters illustrated the
point with a close analysis of the famous story, usually dated to c. 1180,
which the Cistercian chronicler Ralph of Coggeshall heard from the court-
ier Gervais of Tilbury, of the young woman in Reims who had betrayed
herself as a heretic by refusing Gervais’s sexual advances on the ground that
the loss of her virginity would bring her to damnation. ‘‘That the story as
it stands is a rhetorical fabrication cannot be doubted,’’ Peters concluded—
though without certainty as to how credit for the elements of the fabrica-
tion should be divided between the chronicler Ralph and the courtier
Gervais—‘‘Its greatest importance lies precisely as an illustration of the
manner, not the accuracy, in which the depiction of heretics was accepted
in the late twelfth century.’’3 Fabrication is not the same as invention. Some
of the elements of the story, like the escape of the girl’s instructress from
the archbishop’s palace where she was being interrogated by throwing a ball
of string for spirits hovering outside the window to haul her out, are obvi-
ously fictional, but others—perhaps including the admiration of the on-
lookers for the courage the girl herself displayed in the flames4 —exhibit
aspects of the behavior and belief of twelfth-century heretics that can be
documented from other sources. One of the functions of the story, there-
fore, over and above the instruction of the Cistercian novices whom Ralph
doubtless had immediately in mind, was to weld into some kind of coherent
account the miscellaneous, disparate, and often disturbing reports and ru-
Heresy as Politics and Politics of Heresy 35
mors of heretics and heresy that were circulating widely in northern Europe
by the last quarter of the twelfth century.
Peters finds another courtier of Henry II, Walter Map, similarly con-
flating elements of fantasy with generalized rumors of contemporary her-
esy, and another leading Angevin chronicler, William of Newburgh, uses
the same technique in his account of the heretic Eon de stella.5 In due
course, responsibility for warning the world of the dangers of heresy would
be taken over altogether more systematically by Dominican friars, but in
the meantime the role of the courtiers, in conjunction with the monastic
chroniclers, was indispensable. In this context the distinction between
‘‘popular’’ and ‘‘learned’’ becomes less clear-cut, the categories themselves
less meaningful, than we have usually supposed: the story of the virgin of
Reims simply is not susceptible to deconstruction in those terms.
Probably the best known and certainly the most controversial heresy
trial of our period took place at Orléans in 1022. R. H. Bautier showed that
the charges that resulted in the burning of some fourteen clerks of the royal
household and others, including the queen’s chaplain, Stephen, were con-
trived by the faction aligned with the interests of the count of Blois to un-
dermine Constance of Arles, third wife of Robert I, and her connection.6 In
doing so he vindicates Peters’s analogy between accusations of heresy and
of sorcery, for a sorcery charge would have served the purpose in just the
same way. Peters’s case is further illustrated by the construction of the nar-
rative of Paul of St. Père of Chartres to add intimations of sorcery to the
accusations brought against Stephen and his fellows.7 Although it was writ-
ten about fifty years after the event, Paul’s account has been widely accepted
as a leading source because it comes from the house in which Herfast, who
was said to have uncovered the heresy, took vows in 1024. When it is com-
pared with those of John of Ripoll, written immediately after the burnings,
and André of Fleury, the biographer of Gauzlin of Bourges, who conducted
the examination, and himself very possibly an eyewitness,8 we can see that
Paul’s elaborations are largely structured by the need to establish the secrecy
on the part of the accused which Peters identified as essential to a charge of
sorcery, but which is plainly at odds with the canonical definition of heresy
as openly avowed and publicly defended.
According to Paul, the group was exposed by Herfast, a senior mem-
ber of the Norman ducal family.9 He heard of it when a clerk of his house-
hold was converted by the heretics while visiting Orléans. Herfast himself
went there anonymously and (acting on the advice of sacristan Everard of
Chartres) infiltrated the sect, learned its secrets, and dramatically de-
36 R. I. Moore
nounced its members before the royal court. The earlier accounts, regretta-
bly silent on how the group came to be uncovered, offer no hint of this
cloak-and-dagger melodrama. However, the assertion of one of them, Ro-
dolfus Glaber, that the heretics had drawn attention to themselves by send-
ing someone to Rouen to convert a certain priest there suggests a possible
inspiration for it and reinforces suspicion of a link between Norman politi-
cal interests and the attack on Stephen and his circle.10 Finally, with its de-
scription of orgiastic ritual, the invocation of the devil, and the ointment
made from the ashes of burned babies that fixed people irrevocably to the
sect, Paul’s text clearly conforms to Peters’s account of monastic invective
as a literary form which provided a model for describing the activities both
of heretics and of sorcerers.
We are unlikely ever to achieve a complete understanding of what lay
behind the burnings at Orléans.11 In general terms, however, it seems fairly
clear that a group of enthusiasts for the spiritual, or neoplatonist, reading
of Scripture in the late Carolingian manner, probably quite well known and
with connections among the pupils and protégés of Gerbert of Aurillac,
made a convenient vehicle for an attack on its members’ patrons through
the allegation that there was a sinister and hitherto secret aspect of its activi-
ties. In its form and procedures the Orléans trial illustrates the undifferenti-
ated character of the court. Paul of St. Père says that the heretics were
‘‘arrested by royal officials at the house where they met and brought before
the king and queen and an assembley of clerks and bishops at the Church
of Ste. Croix.’’ It is to the king that Herfast addresses his accusation, de-
scribing his infiltration of the group and concluding, ‘‘let the bishops who
sit with you decide and judge whether I committed any crime in that.’’ The
examination of the accused is led by Bishop Guarin of Beauvais, but at its
conclusion, according to Ademar, ‘‘King Robert ordered them first to be
deprived of priestly orders, then expelled from the Church, and finally
burned by fire.’’ Then ‘‘they were all commanded to put on the holy vest-
ments of their order and immediately stripped of them again with full cere-
mony by the bishops,’’ expelled from the church—that is, the building
itself, also standing for the church as a spiritual body—and taken outside
the city to be burned. In short (and irrespective of the accuracy of their
accounts in other respects), while they describe the participants as perform-
ing their allotted roles, Adémar and Paul are indifferent to any distinction
between the secular and the ecclesiastical aspects of the matter as such: for
them it is both a religious and a political affair.12
Sorcery accusations were part of the repertoire of intrigue in the
princely courts of this period, marking the fault lines of discrepancy be-
tween ascribed status and actual power.13 At Le Mans in 992, a convert
named Sehok ben Esther had been convicted of trying, by planting a wax
figure representing himself in the synogogue, to incriminate his former co-
religionists of plotting against the count of Maine.14 In 1028 four women
were burned at the stake at Angoulême not as heretics but as witches: they
were the victims, as Richard Landes has shown, of a plot by the count’s son
and successor to cover up the murder of the count.15 As the first in the
medieval west be burned as heretics, the clerks of Orléans are traditionally
regarded as opening a path that led to Cathars, crusade, and inquisition.
Yet by molding their story to make it look and feel more like sorcery, thus
averting the possibility of lingering sympathy for the victims on the basis of
their reputations for good lives or learning, Paul effectively reminds us that
they had less in common with Leutard of Champagne or Henry of Lau-
sanne than with Sehok’s intended victims or the women burned at An-
goulême.
The affair at Orléans was, as far as I can see, the only occasion in the
period considered in this chapter when the accusation of heresy was used
by one faction to discredit another within a single court. In this respect it
served a purpose usually associated with sorcery charges, whereas the cases
that remain to be considered concern rivalries between different courts or
their members. However, another case, which ended with the hanging at
Goslar in 1052 on the orders of the emperor, of some people accused by
Duke Godfrey of Lower Lorraine and condemned by their refusal to kill a
chicken, may have shared both the neoplatonist background and the
courtly setting.16 The scantiness of the evidence here underlines the improb-
ability that in cases of this kind even the trace of intrigue, let alone the detail
that allows us to recognize it as such, will have reached a surviving record.
The enmities that erupted at Orléans originated in the seizure of the
throne by Hugh Capet in 987. The involvement of Herfast, as well as of the
house of Blois, makes the affair an occasion of inter- as well as intracourt
rivalry, and politically a forerunner of the celebrated series of confronta-
tions, culminating in the Council of Reims of 1148, that arose from accusa-
tions of ‘‘learned’’ heresy, and contested the great issues of realism and
nominalism, and their theological implications. The connections that inter-
est us here lie not in the intellectual substance of those issues, or the dialec-
tical method of those who engaged in them, but in their role in conflicts
which regularly mirrored the struggle for hegemony between the Capetians
and the houses of Blois-Champagne, Normandy, and Anjou that domi-
38 R. I. Moore
nated the politics of northern Francia throughout the eleventh and twelfth
centuries. We have grounds for suspecting that the charges against at least
two of the best-known heretics (or alleged heretics) of the period used them
to at least some extent as surrogates for their prominent patrons. Certainly
neither Berengar of Tours nor Peter Abelard could be accused of shrinking
from controversy or of undue emollience. Nevertheless, though in Bereng-
ar’s case the evidence is entirely circumstantial, and in Abelard’s very nearly
so, personal rivalry and the intellectual anxiety aroused by their teaching
are insufficient to account for the difficulties that dogged both their careers.
The extra ingredient, it is suggested, is that a heresy accusation was a chal-
lenge that precipitated a confrontation, formally played out, between the
representatives or champions of political rivals. Since the heretic sets him-
self apart from the community by defying lawful authority, the issue was
one well adapted to challenge or assert the legitimacy of the authority of the
respective patrons. The appropriate forum, therefore, was the assembly of
the community itself, embodied in the court whose composition and proce-
dures changed with the world whose structures they reflected.
As a pupil of Fulbert of Chartres, Berengar must have been well aware
of the burnings at Orléans and the tensions from which they arose. He came
from a prosperous family of canons of Tours, where he was earning his own
reputation as a teacher by the 1030s; by 1040 he had joined the court of
Count Fulk Nerra and become archdeacon of Angers.17 Fulk’s successor
Geoffrey Martel was intent (from 1044) on the annexation of Maine, whose
count was a child under the guardianship of Bishop Gervase of Le Mans. In
1048 Geoffrey imprisoned Gervase, and Berengar, now treasurer of Angers
cathedral, wrote in defense of his action. Threatened with excommunica-
tion by the Council of Reims, Geoffrey released Gervase, who was promptly
elevated to the archbishopric of Reims. The first attacks on Berengar’s
teachings on the Eucharist, by Hugh of Langres and John of Fécamp, seem
to have come at about this time. Berengar was called to Rome to defend his
opinions at the Easter Synod of 1049, and later in the year, having failed to
appear, at the Synod of Vercelli, where he was condemned in absentia. In
1050 Duke William of Normandy convened at Brionne the first of a series
of councils in Normandy and France to consider Berengar’s teachings,18 his
principal opponents apparently being John of Fécamp and his cross-bearer
Durand of Troarn.
The continuing attacks on Berengar during the 1050s coincided with
the gradual decline of Geoffrey’s power vis-à-vis his Norman and French
rivals. Their political significance is difficult to assess: the materials are
scanty and focus on Berengar’s alleged views rather than the circumstances
in which they were debated. Nevertheless, it must be weighed, as at Orléans,
in the context of fora that, summoned and presided over by secular princes,
cannot be thought of simply as ecclesiastical councils. Nor do they appear
to have responded to pressure from wider ecclesiastical opinion specifically
from Rome, which does not seem to have become involved until after
Cardinal Humbert of Moyenmoutiers took a hand, to secure a condemna-
tion by the Lateran Council of 1059; at Tours, in 1054, Cardinal Hildebrand
had been content to allow Berengar to affirm his orthodoxy with a state-
ment of his own devising.
That Abelard’s fortunes throughout his career were intimately con-
nected with those of the shadowy but formidable figure of Stephen de Gar-
lande has always been recognized, but has not featured prominently in
popular accounts of his intellectual and other exploits. It is unnecessary to
dwell on how Abelard presents, in terms plainly evocative of knightly prow-
ess, the rivalry with Garlande’s enemy William of Champeaux which
shaped his early career and whose reverberations followed him to the end.19
Whether or not it was his success against William that attracted Garlande’s
patronage, as we tend to assume, we know, thanks once more to Bautier,20
that every subsequent step in Abelard’s career, both forward and back, co-
incided directly with the vicissitudes of Garlande’s, until the final eclipse of
Garlande at the death of Louis VI opened the path that led to the council
of Sens. We also know that Abelard’s friends were Garlande’s friends, and
his enemies, headed by Suger of St. Denis and Bernard of Clairvaux, Gar-
lande’s enemies.
The question is not simply whether Berengar and Abelard depended
on their patrons; that is obvious. It is, rather, how far they owed their diffi-
culties to that dependency and encountered their troubles not just as their
own undoubtedly provocative and irascible selves, but as surrogates of the
great men behind them. That is to ask why they enjoyed the patronage.
Berengar was seemingly from Angevin noble stock—it looks as though his
canonry of Tours was hereditary—and as a letter writer occasionally placed
his rhetorical skills at the count’s disposal, as in the matter of the imprison-
ment of Gervase of Le Mans. The ordinary expectations and obligations of
lordship may be enough to account for his connection with the court,
though that would in no way detract from the political reverberations of
his theological controversy. But we can be as nearly certain as possible that
Abelard, from a Breton family of merely local importance, had no claim of
kinship or connection on the Garlandes or (unless it was through Heloise21)
40 R. I. Moore
on the counts of Champagne, whose protection he also enjoyed. Nor is

there anything to suggest that he made himself useful to them in any obvi-
ously practical way, apart from attacking the teaching of their rivals’ proté-
gés. Indeed, it is tempting to wonder whether he was brought to Paris for
that purpose,22 just as Clanchy conjectures that he may have been sent to
Laon by Garlande to undermine Master Anselm’s influence in the city in
the aftermath of the murder of Bishop Gaudry in 1112 and the consequent
intrigues for the succession.23 Abelard’s misfortunes paralleled in some ways
those of his first important teacher, Roscelin of Compiègne, who had se-
cured the protection of the Count of Anjou, having been driven from the
French and then the Anglo-Norman kingdom after being denounced
(though not actually condemned) as a heretic at Soissons in 1092.24
John of Salisbury’s account of how St. Bernard tried, and failed, to
repeat against Gilbert de la Porrée at Reims in 1148 his triumph over Abe-
lard at Sens in 1141 is rightly regarded as describing a landmark in establish-
ing the capacity (I do not say the right) of the masters to debate ‘‘academic’’
issues in their own terms and within their own conventions.25 The crucial
moment was the refusal of the cardinals to allow Bernard to predefine the
issue in private, as he had done at Sens. Gilbert would have the opportunity
of defending himself that had been denied to Abelard, and since ‘‘once
given the chance of speaking he almost always made his will prevail,’’ his
victory was assured. His case was that he was not responsible for his stu-
dents’ lecture notes; the book on which the charges against him were
founded was not his; and he joined the assembly in anathematizing the er-
rors it contained. Accordingly, at the pope’s command, ‘‘the subdeacon cut
the book into tiny fragments and scattered them. But as a great crowd of
laity was present the pope explained in the vernacular [Gallica lingua] on
the bishop’s [Gilbert’s] behalf that this had not been done to his discredit,
for the book was not his; and indeed he had been found orthodox on all
points and faithful to apostolic doctrine, and was at one with the Roman
church in condemning these and all other heresies.’’26
Here we are at the interface of two political and legal worlds. We think
of this Council of Reims, summoned and presided over by Pope Eugenius
III, attended by the cardinals and an impressive list of higher clergy, resolv-
ing a long list of issues and disputes, as one of the milestones of twelfth-
century church government. When the Council was over a group of senior
prelates from the region—prudentiores et viciniores27—stayed behind, meet-
ing in a chamber in the archiepiscopal palace, to settle the issue between
Bernard and Gilbert. But laymen were present—multitudo laicorum ad-
erat—and not only present, but of such significance to the proceedings that
Eugenius felt obliged to account to them, Gallica utens lingua, for the out-
come of Gilbert’s case.28 His doing so contrasts with the habitual reluctance
of churchmen dealing with ‘‘popular’’ heresy to discuss in the vernacular
matters relating to it. In short, this meeting still retained to an important
extent the character of councils and assemblies in the old world, not gov-
erned by formal rules and distinctions as to their composition and func-
tions, least of all by any absolute distinction between the secular and the
spiritual, but drawing their power and purpose from the principle not so
much that they represented as that they embodied the political community.
That this was the character of Abelard’s trials at both Soissons and Sens is
confirmed, not only by the presence at both of numerous and important
secular as well as ecclesiastical magnates, but by the public and intensely
melodramatic nature of the proceedings.29 Though we lack similarly vivid
descriptions of the trials of Berengar and Roscelin, there can be little doubt
that they too conformed to Timothy Reuter’s description of such assemblies
at this period as staged and ritualized occasions ‘‘for celebration and per-
suasion,’’ at which open conflict or opposition was a profoundly serious
and potentially dangerous matter, implying insult and threatening feud.30
It is not only the deficiencies of the evidence that prevent us from cate-
gorizing these councils more precisely. Some of the same ambiguities and
uncertainties attended the occasions themselves. None of those mentioned
here is susceptible to characterization in terms of the familiar polarities.
They were not simply either ‘‘secular’’ or ‘‘ecclesiastical,’’ ‘‘public’’ or ‘‘pri-
vate‘‘; the issues at stake were not simply either ‘‘religious’’ or ‘‘political.’’
It was, of course, always to be expected that the ecclesiastics present would
determine any issue of heresy and communicate their verdict to the secular
magnates for enforcement, as Eugenius III did at Reims. But how and by
whom it was determined precisely what was at stake and on what basis it
was to be decided is another question. Notoriously, the proceedings at Sois-
sons in 1121 and even more at Sens in 1141 were much influenced, and the
outcome arguably confused, by different understandings among the partici-
pants about the nature of the occasions, the authority by which they were
conducted and to which they were responsible, and the appropriateness of
the procedures. In showing how the letters with which Bernard deluged the
Roman curia after Sens were carefully constructed to present what had
taken place there as a judicial process, as opposed to the disputatio to which
Abelard had looked forward, Wim Verbaal has confirmed Abelard’s reason
for halting the proceedings by appealing to Rome immediately the charges
42 R. I. Moore
began to be read; in pointing out that it can only have been at that moment,
and not sooner, that Abelard realized what was happening, he illustrates the
formal fluidity of all these occasions, for it means either that there had been
no clear general or public understanding of what the nature of the meeting
was to be, or that (as seems probable), if there was such an understanding,
it was vulnerable to hijacking.31
Another element of uncertainty about the status of these confronta-
tions is injected by Abelard’s report that at Soissons ‘‘I and the few pupils
who had accompanied me narrowly escaped being stoned by the people on
the first day we arrived for having preached and written (so they had been
told) that there were three Gods.’’32 The implication is that his enemies,
lacking confidence in their capacity to better him in debate, tried to settle
the matter by inciting a mob against him before the formal proceedings got
under way. Clanchy points out that Roscelin had been stripped and stoned
at Chartres and physically assaulted in England, and that these actions had
been condoned, the former certainly by Bishop Ivo of Chartres, and the
latter apparently by Anselm of Canterbury.33 In coupling these events with
the burning of Everard and Clement of Bucy at Soissons in 1114, however,
as ‘‘the lynching of heretics,’’ Clanchy begs an important question, as I did
above in using the phrase ‘‘political community.’’ Who constituted these
crowds, and what was the relationship between their action, or threatened
action, and the councils or assemblies in question? How far did their ac-
tions constitute or imply a claim for jurisdiction in accusations of heresy,
which appeared as a repudiation not of the church alone but of the whole
community?
In his fine discussion of ‘‘assembly politics’’ in this period34 Reuter
made an important pragmatic distinction, as he put it, between ‘‘general
assemblies’’ and ‘‘assemblies by invitation.’’ I have not noticed anything of
the kind made explicit in the accounts of any of the meetings discussed
here. Clearly at each of them many of those present were there by personal
invitation or by virtue of their offices, but that does not exclude the possi-
bility that others attended by right, or as free men, without having been
specifically invited. The latter case, however, would raise the further ques-
tion how far any such right had been eroded in northern Francia, certainly
by the twelfth century, and even in the early eleventh.35 Guibert of Nogent
makes it quite clear that the burning of Clement and Everard by ‘‘the faith-
ful people,’’ of which he approved so warmly, took place after they had been
convicted by ordeal, and after Bishop Lisiard of Soissons had then decided
that their case should be put to an ecclesiastical council.36 Burnings of here-
tics at Liège in 1135 and 1145 and Cologne in 1143 seem to have occurred in
similar circumstances and to have resulted from a clash in which clerics
were perceived as usurping traditional communal jurisdiction.37 But these
local confrontations were much smaller affairs than the magnificent assem-
blies of grandees at Soissons and Sens, just as the ‘‘heretics’’ they dealt with,
whatever they may have taught, were humbler figures by far than the celeb-
rities, princely favorites, or favorites of princely favorites, who have been
our protagonists here—and, indeed, just as stoning is a different matter
from burning, uncertain though we may be as to the precise protocols and
symbolism of either at this period.
It is only to be expected that the business and procedures of meetings
and assemblies should have become more clearly defined and differentiated
in the world in which they functioned, and that they should have been
shaped increasingly by two processes of exclusion of which we usually know
little in terms of day-to-day and region-by-region specifics—of laymen
from ecclesiastical business, and of the formerly free from public business
of every kind. Accusations of heresy followed a similar course. From the
middle of the twelfth century the distinction between learned and popular
heresy does hold and (whatever occasional connections or influences be-
tween them there may have been) corresponds to the legal personal status
constructed by the new social order. The Council of Reims of 1148 marked
not only, following the triumph of Gilbert de la Porrée, a retreat of learned
heresy—that is, of heresy accusations against acknowledged masters—from
the public arena, but also an escalation of concern about heresy among the
unlearned, in the condemnation of the Breton Eon de stella. Eon himself
was spared the stake as obviously insane, but some of his followers were
not.38
From this time forward, claims that heresy was spreading among the
rustici feature ever more prominently in the proceedings of ecclesiastical
councils at all levels, and in most parts of Latin Europe. The frequency and
scale of executions, both of those accused of spreading it and of the recalci-
trant among their converts, increases markedly. Whatever the truth of those
claims, whatever the nature and degree of heterodox opinion and activity
among the people of Europe, their continuing centrality to the development
of European culture and institutions, secular no less than ecclesiastical, and
including legal institutions, is not in doubt. This review suggests, however,
that before the middle of the twelfth century the categories of ‘‘popular’’
and ‘‘learned’’ heresy correspond much less closely to the circumstances in
which heresy accusations actually arose.
44 R. I. Moore
The common factor in the cases we have considered is that (irrespec-

tive of other motives, which we have not excluded) the accusation was used
as a political weapon, capable of deployment in a wide variety of circum-
stances and through a variety of legal or quasilegal mechanisms. These may
be contrasted with the cases that arose from the classic, even the defining
source of ‘‘popular’’ heresy, namely unlicensed preaching, including those
of Leutard of Vertus, the ‘‘manichees’’ of Aquitaine, the people examined
by Gerard of Cambrai in 1024, and those reported to Wazo of Liège c. 1042,
and in the twelfth century Tanchelm of Antwerp, Henry of Lausanne, and
Peter of Bruys.39 The two strands were joined, in principle, when the anxiety
about heresy, which had been stimulated at court, or the technique of ex-
ploiting it, was turned outward not just against rival elite groups but as a
vehicle of repression against the population at large. It seems that this first
happened in Aquitaine, in the second and third decades of the eleventh cen-
tury, culminating in 1028 when Duke William ‘‘summoned a council of
bishops and abbots to Charroux to wipe out the heresies which the Manic-
haeans had been spreading among the people.’’40 Unfortunately, we know
nothing else about that council or its aftermath. Anselm of Liège, writing
some fifteen years later, refers to ‘‘the usual hasty frenzy of the Franks’’ as
a result of which ‘‘heretics had been identified only by the paleness of their
faces, as though anybody who was pale was undoubtedly a heretic, and
many Catholics had been killed as a result of this hysterical mistake.’’41
Some have taken this as referring to a recent period of widespread and vio-
lent repression, but if so it has left no other unambiguously visible traces.
About the years before the Council of Charroux in 1028 we are better
informed, but not much more satisfactorily. Each individual piece of evi-
dence is capable of being read either as showing that heresy was indeed
being preached among the people, ‘‘causing many to wander from the
faith,’’ as Ademar claimed, or as rationalizing the repression of popular en-
thusiasm aroused by the movement for the Peace of God but thought to be
getting out of hand, or as part of a rhetorical strategy to bolster the ideologi-
cal claims of the ecclesiastical hierarchy, with little reference to anything
that actually happened.42 This is not the place to review the arguments
again,43 but it is worth noticing how they illustrate a problem that continues
to dog every attempt to assess the reality that lay behind assertions of dan-
ger lurking among the people. It arises from the difficulty of allowing for
two rhetorical conventions, both familiar in the tradition of invective that
Peters described in The Magician, the Witch, and the Law, and both capable,
like the cases he examined there, of generating confusion between rhetorical
constructs and straightforward assertions of fact. There is the topos that

heresy is brought by strangers, rootless people from far away, which some
of us think exemplified by the Italian woman whom Rodolfus Glaber de-
scribes as bringing heresy to Aquitaine in the 1020s, and by the Italian Gun-
dolfo, who is named as the master of the sectaries arraigned before Bishop
Gerard of Cambrai in 1024–25.44 And there is the topos drawn from the
conventional structure of the sermon, the requirement that a discourse de-
signed for general admonition should be presented as arising from or
prompted by a particular occasion. Hence Guy Lobrichon thinks that those
sectaries themselves, together with the synod at which they were ques-
tioned, may have been no more than Gerard’s device to introduce the
lengthy treatise presented as the sermon he preached that day. On the same
grounds Lobrichon doubts the reality of the heretics of the Périgord whose
description by an unknown Cluniac monk he has redated from the 1160s to
the 1020s.45 Some, it need hardly be said, prefer to regard all of these as
references to real heretics, at real times and places.
Whatever the scale of popular heresy or its repression in the first dec-
ades of the eleventh century, this review confirms that it did not inaugurate
a continuous history. Following Peters in distinguishing clearly between as-
sertions of heresy arising in courtly—that is, essentially political—contexts
and those arising from unauthorized preaching reinforces the case I have
made elsewhere that before c. 1140 the impact of true ‘‘popular’’ heresy was
both local and limited.46 The emergence of such heresy in the 1130s and
1140s as a major anxiety of leading churchmen, and increasingly of the
church as an institution, had much less to do with the heresy itself than
with the need of an emergent clerical intelligentsia to define itself, establish
its collective identity, and in asserting its exclusive right to distinguish be-
tween licit and illicit religious activity, to enforce with a new degree of clar-
ity its claim to the cultural leadership of Latin Christendom.47
In the 1160s and 1170s, however, the history of heresy returns to the
princely court—especially the Angevin court. Once again the imputation of
sheltering heretics was leveled at a great lord, but this time the ostensible
target was not a single overconfident master intoxicated by the exuberance
of his own dialectic, but a whole province, host to a teeming heresy, now
‘‘spreading like a cancer from Toulouse through Gascony and neighbouring
regions.’’48 In the following decades the foundations were laid for the Albi-
gensian crusade and all that followed from it. An indispensable part of the
work—on what foundation of truth remains hotly in dispute—was to dis-
play the County of Toulouse before a terrified Christendom as a nest and
46 R. I. Moore
breeding ground of heresy, its rulers at best helpless in the face of it, at
worst its covert but powerful protectors and fomenters. As Edward Peters
showed, the image of popular heresy that beguiled and titillated late
twelfth-century Europe to sustain that sinister legend owed much to the
rhetorical and legal skills of courtiers. It was not by coincidence that they
were mostly Angevin courtiers.

Chapter 3
Legal Ethics: A Medieval Ghost Story
James A. Brundage
Sir Paul Vinogradoff (1854–1925) nearly a century ago described

the twelfth-century renewal of interest in Roman law as a ghost story on
the grounds that it dealt with ‘‘a second life of Roman law after the demise
of the body in which it first saw the light.’’1 Later scholars have questioned
Vinogradoff’s metaphor. Did Roman law really disappear from the em-
pire’s former provinces once Germanic kings had replaced Roman gover-
nors in the West? Might one not more accurately speak instead of a
lingering presence of Roman law, enfeebled perhaps, but still functioning
among the ‘‘Roman’’ subjects of Visigothic, Frankish, Burgundian, and
Lombard kings?2 Alan Watson and others are unconvinced by Vinogra-
doff’s further assertion that ‘‘Within the whole range of history there is no
more momentous and puzzling problem than that connected with the fate
of Roman Law after the downfall of the Roman State.’’ After all, legal sys-
tems routinely borrow ideas and institutions from one another, and Watson
finds it perfectly natural that medieval law teachers and lawyers appro-
priated Roman practices on such a vast scale that the medieval ius commune
resembled a resurrection of late ancient Roman law.3
Here I examine one facet of these larger questions that seems particu-
larly significant for the history of the legal profession. Since at least the sec-
ond century of the common era, Roman lawyers had clearly constituted a
profession.4 In the wake of the fifth-century barbarian migrations, however,
professional lawyers disappeared from what had formerly been the Western
Roman Empire.
Roman law schools in the classical period trained jurists systemati-
cally.5 The public treasury still supported law professors at Rome around
the middle of the fifth century. Evidence of formal legal training in the West
fades away thereafter and vanished during the sixth century.6 From the early
seventh until the late eleventh century, only some shreds of Roman legal
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48 James A. Brundage
learning occasionally surfaced in schools that primarily trained monks or

clerics. Those schools valued legal texts for the study of rhetoric. Rigorous,
systematic legal teaching for the practice of law seems to have vanished alto-
gether for roughly half a millennium.7
‘‘Law schools make tough law,’’ Frederick William Maitland (1850–
1906) observed.8 Without schools that taught the subject rigorously, the
barbarian kingdoms could not produce lawyers with truly professional
skills. This is not to say that clever and gifted legal advisers were unknown
during the early Middle Ages, but rather that those men did not constitute
a profession in any strict sense of the term.
Renewed interest in Roman law reappeared toward the close of the
eleventh century. The circumstances remain controversial. Some connec-
tion with the eleventh-century church reform movement seems certain, al-
though scholars disagree about the form that connection took and about
how critical it was.9 The reformers’ vigorous insistence on the church’s ju-
risdictional rights seems clearly responsible, however, for a startling rise in
the number of disputes referred to bishops and popes for resolution.
Church authorities accordingly sought to improve the efficiency and regu-
larity of their judicial procedures to cope with the growing volume of judi-
cial business.10
These developments in turn produced a demand for the services of
skilled lawyers. It is no coincidence that around the beginning of the twelfth
century a market for thorough and systematic training in Roman law, train-
ing that would prepare lawyers to practice effectively in the courts of popes,
bishops, and archdeacons, began to reappear in the West and grew rapidly
thereafter.11 By the mid-twelfth century we begin to see a completed text-
book, the Decretum of Gratian, which presented students not only with a
comprehensive collection of legal texts drawn from both ecclesiastical and
Roman sources, but also with a method for resolving the inconsistencies
and contradictions in those texts.12
This in essence was what Vinogradoff’s ghost story was about. The
ghost story I want to tell concerns the resurrection of Roman ideas about
legal ethics. Although Vinogradoff passed this over in silence, it was essen-
tial for the development of a medieval legal profession.
By the third quarter of the twelfth century, men trained in Roman and
canon law were numerous enough to form a visible occupational group in
a handful of cities in northern Italy and southern France.13 As they grew
increasingly prominent and prosperous, these lawyers also became con-
cerned about their collective identity. Beginning around the 1180s law
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Legal Ethics: A Medieval Ghost Story 49
teachers commenced to pay increasing attention to what the texts they

studied had to say about the rights and obligations of advocates in the
courts. Those texts told them that legal knowledge was sacred. Jurists, they
read, were priests of the law and belonged to a social and political elite.14
They also knew that legal knowledge and skill were valuable. As a contem-
porary verse put it:
Galen gives you wealth and so does Justinian’s law;

From these you gather grain, from the others only straw.15
With prestige and prosperity, however, came ethical obligations both

to their clients and to the courts in which they practiced. Jurists taught
would-be lawyers that they were morally bound to use all their strength,
skill, learning, ingenuity, and energy to advance their clients’ interests. They
were obliged to keep secret the confidential information that clients en-
trusted to them. They must be faithful to the client, even when that ran
counter to their own interests. Charges for their work must be reasonable
and moderate, depending on the value of the stakes at issue, the difficulty
of the case, the amount of work they put into it, and their skill and reputa-
tion, as well as the customary fee levels in the region where they worked.16
They owed an even longer list of obligations to the court. Lawyers were
the court’s gatekeepers and must screen the cases they brought before it.17
They should not waste the court’s time with frivolous or unwarranted liti-
gation. Should a lawyer discover that a case was groundless, he must imme-
diately abandon the client and inform the judge of his reasons for doing so.
He must be unflinchingly honest in his dealings with the court, so that the
judge could rely upon the truth of the representations he made. A lawyer
must never coach clients or witnesses about their statements to the court,
produce perjured witnesses, or introduce fraudulent documents in evi-
dence. He must avoid causing unnecessary delays in litigation, whether by
making tardy appearances at court sessions or by proposing frivolous ex-
ceptions to opponents’ arguments. He must sacrifice some of his profes-
sional time and energy to the public welfare by acting free of charge for
impecunious litigants. He must treat the judge with the utmost respect and
deference.
The admissions oaths that lawyers swore when they were admitted to
practice enumerated these basic principles of professional ethics. Their au-
thority rested either on the libri legales, the authoritative texts that law stu-
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dents studied, or on other Roman writings about legal matters used in the
liberal arts curriculum.
Requiring advocates to take an admissions oath was a Roman practice
reintroduced in the West during the early 1230s by French church councils
as a condition for receiving the right of audience, that is, the right to be
heard in court.18 When he swore that he would observe a set of ethical prin-
ciples, an advocate became an officer of the court. Clients employed him
and paid him for his work, but he was answerable for his actions to the
presiding judge and his deputies.
The provisions of these admissions oaths derived mainly from the cal-
umny oath that litigants and their advocates in late antiquity took when
they had answered one another’s pleadings and defined the matters at issue.
Roman law labeled this stage of a process litis contestatio because it marked
the formal beginning of a lawsuit.19 The calumny oath required a lawyer to
pledge that he would use all his strength and skill to secure what was right
and just for his client, that the case he was about to present was genuinely
worth the court’s time, that it was grounded on solid proof, and that he
would produce no false evidence or arguments to support it. He further
swore that if he became aware that the case he was presenting was unsound,
he would immediately abandon his client and resign from the case.20
The Roman calumny oath fell out of use during the fifth and sixth
centuries as the rulers of the new barbarian kingdoms in the West intro-
duced other means of discouraging baseless or malicious lawsuits. Thereaf-
ter only the few with access to Roman law books were aware of the
sacramentum de calumnia vitanda.
Early eleventh-century records show the calumny oath beginning to
reappear in northern Italy and southern France. Why this happened is not
clear.21 References to the calumny oath grew increasingly common until by
the middle of the twelfth century its use was routine in the French Midi
and in some regions of northern Italy.22 Around 1159 John of Salisbury de-
scribed it as a normal element of ecclesiastical civil procedure.23
No surviving evidence prior to the beginning of the 1230s shows either
ecclesiastical or secular courts requiring advocates to go through a formal
admissions process. Then in 1231 two church councils, at Rouen and Châ-
teau-Gontier, commanded that thenceforth every advocate must take an
admissions oath before he could practice in the courts within their jurisdic-
tion. These oaths largely reproduced the Roman calumny oath.24 In that
same year Emperor Frederick II (1197–1250) promulgated the Liber Augusta-
lis, a set of constitutions for his Sicilian kingdom. Its provisions required
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prospective advocates to be examined by a judge in order to determine their

fitness to practice. Those who passed must take an admissions oath before
they could begin practice and renew it annually thereafter. The Sicilian
oath, like those of the two French councils, was largely based upon the
Roman calumny oath. It also required advocates to promise that they would
not raise their fees during litigation and would refrain from demanding
what we now call contingent fees. Both requirements stemmed from provi-
sions in Justinian’s Code. The judge had the right to ban advocates who
violated these undertakings from further practice and to impose hefty fines
on offenders.25
Authorities elsewhere soon began to require practitioners to take simi-
lar admissions oaths. In 1237, for example, a papal legate, Cardinal Otto da
Tenengo (d. 1251), insisted that advocates in English church courts take an
admissions oath based on the calumny oath; English diocesan councils and
synods soon adopted statutes to implement his demand.26 Other French
councils adopted similar provisions during the next few years, as did courts
in Barcelona, Valencia, and Mallorca.27 Finally in 1274 the Second Council
of Lyon’s constitution Properandum required advocates and proctors
throughout the Latin church to swear an admissions oath.28
Let us now look more closely at three of the most basic obligations to
clients, ones that remain at the center of modern notions about legal ethics
and the professional responsibilities of a lawyer: loyalty to the client, pre-
serving confidentiality, and avoiding conflict of interest.
Medieval admissions oaths invariably required advocates to serve their
clients faithfully, as their modern counterparts still do. Twelfth- and thir-
teenth-century jurists lived in societies where access to economic, social,
and political power commonly involved vassalage relationships based on a
pledge by one person to render faithful service to another. When medieval
jurists wrote about the loyalty that an advocate owed to his client, they did
so within that context. Faithful service to clients meant that a lawyer under-
took to fight on his clients’ behalf, not with weapons made of steel, but with
words and arguments. Legal writers described the advocate not only as a
priest of the law, but also as a soldier (miles):
Laws are called weapons and soldiers are called advocates, nor do we believe that
the only fighters in our realm are those who employ swords and breastplates, but
also advocates who boldly defend hope, life, and future generations of workers be-
hind the bulwark of their glorious voices.29
The voice is the voice of Azo, writing around 1210, but the words are the
words of the Emperor Leo I (457–474) almost 800 years earlier.
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Fidelity in Azo’s world meant first and foremost that the advocate
must do everything he ethically could in order to protect the interests of his
client. Once he had agreed to plead a case for a client, he must strive to
secure that client’s interests until the matter was resolved. It would be a
gross breach of duty to abandon one client’s case in order to take on a dif-
ferent, perhaps more profitable, case for someone else. If an advocate at-
tempted to do this—and they sometimes did—the original client could sue
to recover compensation for the resulting expense and inconvenience.30
Lawyers knew, however, that a client’s chances of securing an adequate
judgment in this way were slim. Ulpian (d. 223) had told them so in a pas-
sage from Justinian’s Digest that they studied in law school. Other disciplin-
ary mechanisms offered more effective deterrents to dissuade advocates
from abandoning inconvenient clients. An advocate who deserted a client
became legally disreputable (infamis), which entailed serious disabilities,
both legal and social.31 In principle infamia resulted from public knowledge
that a person had behaved disgracefully. Scandalous actions themselves cre-
ated infamia, while the community as well as the courts enforced the penal-
ties attached to it. As Edward Peters once put it, ‘‘The doctrine of infamy
existed in the streets and squares of early Europe, as well as in its law
books.’’32
The consequences of incurring infamia could be devastating for an ad-
vocate. If an adversary brought an exception of infamia against him and
proved the exception, the advocate forfeited his right of audience. In conse-
quence he could no longer practice his profession unless or until he purged
himself of the disgrace, which entailed among other things making repara-
tions to the client he had abandoned.33
Far worse than simple desertion was betrayal by an advocate who
joined the opposing party either overtly or covertly and revealed secret in-
formation that the original client had confided to him. Jurists of the medie-
val ius commune called this praevaricatio, or collusion.34 In common law the
usual term for this is ambidexterity, because the treacherous lawyer takes
fees from both sides in a dispute. If convicted of this heinous transgression
he could be held criminally guilty of fraud (dolus) or forgery (falsum),
which not only produced infamia but also subjected him to more severe
punishments.35
Faithful service to the client was, and is, an admirable goal, but imple-
menting it in practice was neither easy nor straightforward, then or now.
Prelates and lay magnates, for example, frequently employed one or more
lawyers on long-term retainers to assure that their services would be avail-
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able when required. These arrangements sometimes paid an annual fee in

cash. Even more commonly they involved an appointment to some position
that would generate a regular income, although the appointee need not nec-
essarily perform its duties in person. For clerics this typically meant a bene-
fice or cathedral canonry, while lay advocates might receive a fief or a public
office of some sort.
Successful advocates often had several such arrangements at any given
time. But what if two of those clients decided to sue each other? Which was
he obliged to help? How could he avoid alienating the other client, with a
consequent loss of steady income? Law professors debated these questions
in law schools because they often arose in practice.36 When academic jurists
dealt with this problem, they normally based their arguments on a constitu-
tion of Emperor Caracalla (r. 211–17) that forbade advocates employed by
the imperial treasury to undertake any action against the treasury on behalf
of a private client.37 Gratian incorporated this passage in the vulgate version
of his Decretum, but added, ‘‘Nowadays, however, [former treasury advo-
cates] can take private clients, even against the treasury, although they de-
clined to accept those cases while they were treasury advocates.’’38 Medieval
jurists reasoned that by analogy an advocate who acted for an opponent
against a current client was guilty of gross misconduct and deserved to for-
feit any fief or benefice he held from that client.39
Yet opinions on the matter were not unanimous. One anonymous
Anglo-Norman glossator at the end of the twelfth century, for example, de-
clared that an advocate faced with this situation ought to take the side of
the defendant. Bernard of Parma (d. 1266) more cautiously maintained that
he should remain neutral and not act on behalf of either litigant.40 Vincent-
ius Hispanus (d. 1248) distinguished between the situation of an advocate
who held a fief or benefice gratuitously and one who received it as compen-
sation for his services. If it was gratuitous, an advocate who acted for an
opponent of the person or institution from whom he held the fief or bene-
fice should forfeit the holding. If it represented compensation for services,
however, he could accept a brief against his benefactor, who would have no
legal grounds for reclaiming the property. Pope Innocent IV (r. 1243–54),
in contrast, preferred the first come, first served approach to this problem,
while Cardinal Hostiensis (d. 1271) advised an advocate in this situation to
try to mediate between the parties and thus avoid litigation altogether. Wil-
liam Durand (1241–96), the preeminent proceduralist of the later Middle
Ages, reported Vincentius’s opinion, but added that the advocate would do
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better to refuse the opponent’s case, ‘‘because not everything that is permit-
ted is honest.’’41
Loyalty and conflict of interest issues became still more complicated
for an advocate retained by a corporate client, such as a monastery or a
church. Although the law treats a corporation as a person, the legal interests
and goals of its members can readily clash with the corporation’s. The
abbot of a monastery, for instance, might wish to use a cash surplus to build
a new church, while the prior and the monks might prefer to use the money
to put more and better wine on the table. If they decided to sue each other,
the monastery’s advocate must decide who his client was. Did his profes-
sional obligations require him to assist the abbot whose interests conflicted
with those of the community? But did the community have no claim on his
skill and assistance in this situation? Likewise, when a bishop paid his advo-
cate by granting him a prebend in his cathedral chapter, as often happened,
the advocate could face a quandary if the chapter should decide to sue the
bishop—also a not uncommon occurrence. Which party should he assist?
Hostiensis thought that he should act for the chapter unless he believed that
the lawsuit was unjust, in which case he should go to the bishop’s aid. But
what if taking the bishop’s side would leave the chapter without a skilled
advocate? Then, according to Hostiensis, he should act for the chapter—
unless the bishop gave him a direct order not to do so, in which case he
was obliged to obey the bishop.42
Similar issues arose when an advocate who represented a client in an
action was later approached to act for the opposing party on appeal. Dur-
and argued that although the law might allow this, he really ought to refuse
the brief. Johannes Andreae (ca. 1270–1348) declared that this was the gen-
eral opinion among the learned doctors of law at Bologna and went on to
explain his own reasons for adopting it: ‘‘I would not appear for any reason
against a client to whom I had given paid advice, especially if I had done so
in writing. If I gave him proper advice, I should not attack it unjustly; if I
was in error, I ought to spare my reputation.’’43
Pierre de Belleperche (d. 1308) looked at the situation from the client’s
point of view. The advocate, he declared, should by this point know all the
secrets of his former client’s case. If he opposed the client on appeal, the
client would almost certainly suspect him of betraying confidential infor-
mation—information that the advocate’s oath of office obliged him not to
reveal. During the initial hearing of the case, moreover, the advocate must
have sworn that he believed that the client’s contentions were well
grounded in law and in fact. During appeal, however, he would have to
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argue that they were not, thus contradicting his earlier sworn statement.
Rather than leave himself open to accusations of betrayal and perjury, ei-
ther of which could disqualify him from practice, he must refuse to repre-
sent the opponent on appeal.44
Law professors expounded these rules to their students and elaborated
on them in their lectures. But professional lawyers were not the only ones
who knew the rules. Medieval theologians and pastors regularly dealt with
the moral and spiritual pitfalls of legal practice. Pastoral handbooks in-
structed priests to raise questions concerning the ethical conduct of advo-
cates, proctors, judges, and other legal functionaries when they came to
confession in order to discover whether they had departed from their pro-
fession’s moral standards and how frequently they had done so.45
Ordinary laymen untrained in law or theology likewise knew about the
elements of legal ethics from the exempla that preachers used to enliven
their sermons and drive home moral lessons.46 Litigants sometimes used
this knowledge. A crafty plaintiff, for example, might consult many, per-
haps even all, of the advocates who practiced in the court where he planned
to bring a lawsuit. As William Durand explained: ‘‘I have often seen people
seek a legal opinion, not in order to use it, but so that [the lawyer they
consulted] would blush to furnish advice to an opponent. If I were the ad-
vocate in that situation, I could not side with the opposing party because
otherwise I would be guilty of the crime of praevaricatio.’’47 Of the four au-
thorities Durand cited to support this statement, incidentally, three cited
Roman law texts, while the fourth referred to a statement in Gratian’s De-
cretum based on a passage in Justinian’s Digest. This ancient ploy was nei-
ther difficult nor even extravagantly costly, since few medieval courts had
more than a tiny number of advocates—seldom more than four or five—
practicing at any given time.48
The practice of law in medieval Europe inevitably produced conflicts
of interest, mixed loyalties, and ethical dilemmas of the kinds touched upon
here. Medieval lawyers were acutely aware that how they dealt with these
matters might have grave consequences for their livelihood and reputation.
When medieval popes, bishops, judges, or law professors needed to pre-
scribe solutions to problems in legal ethics, they routinely adapted models
from Roman law sources to cope with analogous situations in their own
day. The writings of second- and third-century Roman legislators and ju-
rists, to be sure, seldom furnished tailor-made solutions for the ethical di-
lemmas that arose in legal practice a thousand years later. Too much had
changed for that. But they could and did contain principles that clever law-
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yers could adjust to fit the changed circumstances. Medieval lawgivers and
lawyers found resort to Roman precedents particularly attractive because
their venerable authority gave special weight to their solutions.
The ethical questions that medieval lawyers confronted have not gone
away. Conflicts of interest and the difficulties involved in maintaining con-
fidentiality and loyalty to clients’ interests still raise many of the same ethi-
cal choices for modern lawyers that their predecessors faced centuries ago.49
As a historian I am struck by how closely the solutions that the legal profes-
sion in our own day prescribes to meet those challenges resemble conclu-
sions that their opposite numbers in the Middle Ages arrived at by
following the directions signaled by their still earlier counterparts in late
antiquity.50
The ghost story, it seems, still continues.

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Chapter 4
The Ties That Bind: Legal Status and
Imperial Power
James Muldoon
To speak of the legal history of European expansion would seem

to express an oxymoron. How could the expansion of Europe and the cre-
ation of the great overseas empires of the early modern world have anything
to do with legality?1 While expansion does call up images of heroic feats of
arms, it is also true, as the Habsburg experience demonstrates, that empires
can begin with fortunate marriages, dowries, and unexpected inheritances.
Furthermore, even when conquest leads to the acquisition of new lands, it
is only the first stage in the creation of an empire, because an empire is not
simply an agglomeration of territory and peoples held together by force.2
To survive in the long term, an empire requires not only garrison com-
manders, it needs tax collectors, customs officials, clerks, and lawyers, espe-
cially lawyers. The lawyers provide formal justifications for conquest and
empire building and then they create a legal structure that transforms a se-
ries of combat actions, inheritances, and other territorial acquisitions into
a functioning imperial administrative system. In addition, it is obvious that
the long-term survival of an empire inevitably requires the creation of
bonds of common interest between the imperial rulers and the conquered
or colonized people. The conquered must give at least some minimal level
of assent to the imperial rulers if there is to be a stable imperial order. There
must also be some ties that bind the conquerors, colonizers, and local rep-
resentatives of the imperial power to the central governing powers of the
empire, particularly after the newcomers are well established and the impe-
rial power secure. Will the descendants of the original conquerors and colo-
nizers remain loyal to the interests of the imperial mother country or will
they seek goals befitting their own interests, even at the expense of imperial
goals?3
In this chapter I examine the development of ties linking the English
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58 James Muldoon
king to important segments of two colonial societies, twelfth-century Ire-

land and eighteenth-century Massachusetts, focusing on the way in which
English governmental policy regarding the status of English settlers abroad
evolved.
The history of the British Empire from twelfth-century Ireland to
eighteenth-century North America illustrates the ways in which imperial of-
ficials confronted the situation of those royal subjects who went abroad as
conquerors or as colonizers, even as potential autonomous rulers, and then
tested the strength of the ties that joined them to the royal government.
Eighteenth-century American revolutionaries, the descendants of the origi-
nal colonists, saw their situation in broad terms of imperial jurisdiction,
arguing that their situation was similar to that of the English in Ireland. The
Americans deployed the history of the English in Ireland in the polemical
warfare that preceded the battles at Lexington and Concord. From the
American perspective, there was a continuous history of English overseas
expansion stretching from twelfth-century Ireland to eighteenth-century
North America, and therefore a history of the development of the legal
status of those who were engaged in the imperial project. Furthermore, the
Americans asserted that in spite of this long history, the legal position of
colonizers was not as yet satisfactorily defined.4
The English entry into Ireland is an oft-told tale, but one that has to
be understood carefully. Writers often refer to it as the English conquest of
Ireland, but this is quite misleading.5 As Gerald of Wales, a member of one
of the Anglo-Norman families that went to Ireland, pointed out in his his-
tory of Ireland, the coming of the English into Ireland was complicated.
The immediate cause was not an English royal desire for expansion but the
need for mercenaries by one of the participants in a local war in tribal Ire-
land. According to Gerald of Wales, Dermot MacMurrough, the chief who
ruled the area around Dublin, had sought the assistance of two English
mercenaries already in Ireland, offering ‘‘each of them in turn his first-born
daughter with the right of succession to his kingdom,’’ an offer that each
refused because he was already married.6 Subsequently, in 1166, MacMur-
rough was ousted and, while in exile, sought military support from abroad
in order to regain his throne. He approached Henry II, who, it turned out,
had no interest in engaging in the Irish wars. MacMurrough apparently
swore an oath of allegiance to Henry, however, and received permission to
recruit troops in England from among the Normans settled on the Welsh
border.7 He offered the troops lands in Ireland if they were victorious, and
he offered to their leader, Richard of Clare, Strongbow, his daughter in
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The Ties That Bind: Legal Status and Imperial Power 59
marriage and succession to his kingdom as his reward. According to Gerald

of Wales, Richard of Clare only agreed to accept Dermot’s offer after re-
questing Henry to grant him ‘‘leave to trust himself to Fate and Fortune in
foreign parts,’’ that is to seek his fortune abroad without endangering his
possessions and status in Henry’s domains.8
It is difficult to determine exactly what each party to these agreements
understood by them. Ireland was not organized along feudal lines, so it is
quite possible that Dermot saw his oath of fealty to Henry II only as a per-
sonal oath and not one that surrendered his lands to Henry.9 It is also possi-
ble that Richard of Clare was unaware that Irish rulership was not
hereditary and that Dermot had no right to promise it to him.10 In any
event, even before Richard of Clare went to Ireland, the first troops that
Dermot recruited in England were successful in restoring him to possession
of Leinster and even extending his power by invading adjoining lands. In
1170, Richard entered Ireland, defeated Dermot’s enemies, and married
Dermot’s daughter.11
At this point, the situation in Ireland became of interest to Henry II.
It was one thing to authorize Dermot to recruit English mercenaries to fight
in Ireland. If the leader of these soldiers became a local ruler, however, what
would be his relationship to the English monarch? Henry II was certainly
aware of the problem, given the fact that he was not only king of England
but also duke of Normandy and lord of several other parts of France as
well. A king in England, he was a subject of Louis VII of France for his
possessions on the continent, a situation fraught with great difficulties as
the various conflicts between the French and English kings over the centu-
ries demonstrated. Henry’s youngest son, John, was eventually to lose the
duchy of Normandy in 1204 because he refused to accept judgment in the
court of his overlord, Philip II of France, in a case involving his treatment
of one of his Norman vassals.12
The question of the relationship between Ireland and England was not
a new one in 1171 when Henry II arrived in Ireland with a formidable army,
and it was not based solely on the presence of English mercenaries there.
The archbishops of Canterbury had for at least a century claimed jurisdic-
tion over the bishops of Dublin and asserted a vague primacy over the
church in Ireland.13 The fact that the Gregorian reform of the church had
not made much headway in Ireland apparently encouraged Theobald, arch-
bishop of Canterbury, to obtain from Pope Adrian IV the bull Laudabiliter
(1155), authorizing Henry II to enter Ireland in order to reform the church.14
In this, Henry II had a formidable predecessor, William of Normandy, who
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60 James Muldoon
had entered England in 1066 bearing a banner blessed by the pope as a re-
sult of having promised to assist in the reform of the church there. Victori-
ous, he appointed the monk Lanfranc as archbishop of Canterbury with
responsibility for imposing the Gregorian reforms on the English church,
as subsequently Laudabiliter authorized Henry to enter Ireland in order to
reform the church.15 The bull outlined what the pope believed to be the
problems with the Irish church and indicated what reforms should be im-
plemented. The pope explained that Henry II had
Expressed to us your desire to enter the island of Ireland in order to subject its
people to law and to root out from them the weeds of vice . . . you shall enter that
island and execute whatsoever may tend to the honour of God and the welfare of
the land; and also that the people of that land shall receive you with honour and
revere you as their lord.16
Ireland presented Henry II with three distinct but related problems

about legal status: relations with Richard of Clare and the Anglo-Normans
now established in Ireland; relations with the Irish clergy as they strove to
implement the Gregorian reforms under English direction; and relations
with the Irish rulers and their subjects. In other words, in spite of claims
to have conquered Ireland, English power there depended largely on the
establishment of lines of jurisdictional authority that would link the mem-
bers of each of these three groups to the English crown. Henry II faced a
set of problems and relationships that eventually were to be characteristic
of European overseas expansion.
The first demonstration of Henry II’s jurisdiction over the adventurers
in Ireland had been to forbid Richard of Clare from leaving England for
Ireland to join the troops already there. Richard ignored this order, went to
Ireland, and campaigned successfully. In the summer of 1171, however, with
Henry II preparing to go to Ireland, Richard returned to England, met with
the king, begged forgiveness for disobeying the original order, and swore
homage for his lands in Ireland. Irish historian Michael Dolley pointed out,
‘‘Rightly Strongbow had diagnosed Henry’s fear of too great subjects, and
even more of tenants-in-chief passing out of his jurisdiction, and so escap-
ing liability for service in the wars on the continent that were ever the An-
gevin preoccupation.’’ In addition, according to Katherine Simms, Richard
of Clare probably recognized that Henry II could not have favored ‘‘an in-
dependent Norman kingdom on his western seaboard’’ either.17 The En-
glish in Ireland were thus to remain subject to the English monarchs in
order to prevent the creation of such a kingdom. The problem that required
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a solution concerned the status of the Anglo-Norman adventurers within

what might be termed the emerging Angevin Empire.18
The second action Henry II took to ensure his control of Ireland was
to hold a church council at Cashel (1172), where the clergy were informed
of the pope’s demand that the Irish adhere to the Gregorian reforms. The
opening lines of the Constitutions of Cashel identified Henry as ‘‘king of
England and conqueror of Ireland’’ who had ‘‘obtained the dominion of
that island’’ from the pope, a phrase that exaggerated the nature of the En-
glish presence. The stated aim of the English in Ireland was to ‘‘bring the
blessings of peace and the growth of religion’’ to Ireland and to abolish ‘‘all
sorts of wickedness [that] had prevailed among this people for a long series
of years.’’ The council then issued a series of statements regarding the law
of marriage, tithes, the making of wills, and other points of canon law that
the Irish had long failed to obey, thus initiating the papal reform program
in Ireland.19
Subsequently, Pope Alexander III issued three letters confirming Hen-
ry’s occupation of Ireland. These letters stress that the Irish are ‘‘barbarous,
. . . uncivilized and ignorant of the Divine law,’’ a people who ‘‘destroy
themselves in mutual slaughter,’’ ‘‘a race uncivilized and undisciplined’’
and who dwell in the ‘‘enormity and filthiness of their vices.’’20
Laudabiliter did not explicitly state that Henry II gained permanent
possession of Ireland by virtue of a papal grant, but the king’s making his
son John lord of Ireland in 1177 reinforced the notion that the entry of the
English into Ireland was to be a permanent occupation, not a temporary
arrangement to last only until the Irish church was reformed along Grego-
rian lines and the population raised to a civilized level of existence.21
The final element in Henry II’s program of asserting jurisdiction over
all of Ireland was to receive homage from Rory O’Conor, high king of Ire-
land, in 1175. According to the text of the Treaty of Windsor, ‘‘the king of
England [Henry II] has granted to Roderick [Rory], his liegeman, king of
Connaught, as long as he shall faithfully serve him, that he shall be king
under him, ready to his service, as his man.’’22 In theory, Ireland would be
brought presumably into the English feudal order. Whether O’Conor and
the other Irish chiefs understood what they were doing in those terms is
debatable. Irish society was not, after, all organized feudally in the way En-
gland was, even though to the English it might have appeared to be.
One important issue that was not resolved and continued to affect En-
glish government in Ireland was the status of the native Irish below their
kings and subkings. Specifically, were they subjects of the king of England
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62 James Muldoon
and, if they were, were they subject to and beneficiaries of the English com-
mon law or were they to remain under their own rulers and subject to tra-
ditional Irish law? From the English perspective throughout the Middle
Ages, law was the key to shaping control of the Irish and fulfilling the re-
sponsibility imposed on them by Laudabiliter to transform the Irish from a
people that was ‘‘barbarous . . . uncivilized and ignorant of the divine law’’
to one that was Christian and civilized. In 1277, there was a proposal to
extend English Common Law to the Irish on the grounds that ‘‘the laws
which the Irish use are detestable to God and contrary to all law so much
so that they ought not to be deemed law’’ at all.23 The proposed extension
was not acted on at that point, but throughout the Middle Ages, English
officials saw in the law the vehicle for securing English rule and improving
the life of the native Irish.24 By the end of the thirteenth century there was
an Irish parliament representing the interests of the Anglo-Norman settlers,
but it did not include the native Irish, reinforcing the sharp distinction be-
tween the settlers and the Irish. This move suggests that the English had
given up on the initial goal of reforming the Irish church and civilizing the
Irish people and, presumably, incorporating them within the English legal
structure. The immediate goal now was the limited one of strengthening
the identity and the position of the Anglo-Norman colonists in the face of
continuing opposition from the Irish.
When Henry II proclaimed his youngest son, John, lord of Ireland he
appeared to have set Ireland on a path that would lead to some sort of in-
corporation into the Angevin Empire. The subsequent history of the En-
glish in Ireland, however, demonstrates that the situation in Ireland was
more complex than Henry II appears to have appreciated. Only a part of
Ireland was conquered and occupied, as opportunities elsewhere, such as
the wars in France, drew the attention of the warriors who might otherwise
have been employed in the conquest of Ireland. One consequence of this
partial conquest was that there emerged in Ireland two categories of people
whose status in the English order was not well defined. The first group con-
sisted of the native Irish who lived outside the region the English controlled,
the Pale, and continued to function according to their own laws and cus-
toms, including religious ones. The second consisted of those Anglo-
Norman families that had gone native, in contemporary terms—adopted
Irish dress and speech, and employed Irish law in their disputes among
themselves and with the native Irish, a sign that English rule was not effec-
tive in controlling and transforming the native Irish.25 Instead, English fam-
ilies in Ireland that wished to secure possession of the lands that English
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kings had granted them in Ireland had to come to terms with the existing
culture, creating what one early fourteenth-century observer termed a
‘‘middle nation’’ or the Degenerate English, a body of people who claimed
to be English yet looked and acted more like the native Irish.26 Where did
these people fit in the English scheme of things?
The part of Ireland under direct English control had shrunk steadily
throughout the Middle Ages, leaving the Anglo-Norman families in a diffi-
cult position. One possibility that appears to have occurred to members of
the dominant Anglo-Norman family in Ireland, the FitzGeralds, was to ob-
tain supreme power within Ireland: perhaps as permanent viceroys of the
king, perhaps, according to their enemies, as kings of Ireland, independent
of England.27 The public execution of the leaders of the FitzGerald family
at Tyburn in 1537 and Henry VIII’s subsequent adoption of the title King of
Ireland in 1541 settled the status of Ireland and ended the possibility of cre-
ating an independent Kingdom of Ireland ruled by the descendants of those
who came with Richard of Clare.28
Therefore, by the mid-sixteenth century, at the point when the English
were beginning to move into North America, they had almost five centuries
of experience with the settlement and conquest of an overseas territory. The
subsequent Irish wars by the Tudors, the Stuarts, Oliver Cromwell, and, fi-
nally, William III, which led to the complete conquest of the island, were a
consequence of that experience. These wars aimed at completing the con-
quest of Ireland, subduing the native population permanently, bringing in
additional colonists to occupy the land taken from the Irish, and creating
an effective imperial administrative structure. At the same time, the English
were moving into North America, facing similar problems and often re-
sponding to them along lines suggested by their experience in Ireland. In-
deed, a number of the early English explorers and colonists in the New
World had been active in the Irish wars as well.29 Consequently, it should
not be surprising that when eighteenth-century Americans sought to assert
their position within the British Empire they looked to the example of the
English in Ireland, seeing their position as quite like that of the Anglo-Nor-
mans.30
When we examine the initial English attempts at colonizing North
America five centuries after the Anglo-Norman entry into Ireland, we find
a pattern similar to that found in the earlier experience. A private group was
incorporated for the purpose of colonization and received a royal charter
authorizing the establishment of a colony in a defined region.31 The mon-
arch formally authorized the colonists to leave England in order to protect
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64 James Muldoon
from confiscation the property of those who left, which would have oc-
curred if they had left without permission.32 The charter did not, however,
grant land in North America to the colonists, only the right to acquire land
and settle in the specified area under the protection, that is the jurisdiction,
of the English king. The settlers would have to make their own arrange-
ments about acquiring land. The early charters also contained a statement
about the responsibility of the settlers to convert the inhabitants of the
lands they settled to Christianity and lead them to civility. As long as the
colonists adhered to the terms of the charter, they and their heirs would
retain all the lands, properties, and rights that they possessed in England
itself, the king would retain jurisdiction over them, and they would hold
from the king the lands that they acquired in the New World. By accepting
these terms, the colonists could claim the protection of the English king if
they required it.
As the English experience of expansion, internal and overseas, in the
Middle Ages provided early modern colonizers with five centuries of experi-
ence to guide their efforts, so too did the lawyers who drafted the charters
and other documents related to overseas colonization possess four centuries
of legal texts from which to draw the language they employed. In effect,
the early modern charters encapsulated this experience, expressing in legal
language the various elements of colonial policy that had developed over
time.
A charter began by identifying its author and stating its purpose. The
charter of the Massachusetts Bay Company, for example, (1629) began:
‘‘Charles, by the Grace, of God, Kinge of England, Scotland, Fraunce,
and Ireland, Defendor of the Fayth, &c’’ has awarded a charter to the
‘‘Councell established at Plymouth’’ for the purpose of the ‘‘planting, rul-
ing, ordering, and governing of Newe England in America’’ and described
the specific boundaries of the lands assigned to the corporation for settle-
ment. Furthermore, the colonists could not occupy any land within the as-
signed boundaries ‘‘actuallie possessed or inhabited by any other Christian
Prince or State’’ or within the boundaries of the Virginia colony.33 The ob-
vious intention of these phrases was to prevent conflicting claims to specific
territory. One of the most important functions of colonial charters, treaties,
and other legal documents was to regulate access to the newly discovered
lands in order to avoid wars among the emerging European overseas em-
pires, wars that were rooted in the intra-European wars of the era, as well
as to avert conflicts among English colonies in the New World.
The opening words of the Charter of Massachusetts echoed the lan-
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guage in English borough charters and similar documents, but also in the
papal documents that from the fifteenth century outlined the Portuguese
and Spanish occupation of the islands of the Atlantic and the discovery and
division of the world between them by the terms of Alexander VI’s Inter
caetera (1493). As Supreme Head of the Church in England, Charles I was
acting as the pope claimed to act with regard to Europeans in the New
World. He claimed the right to authorize his subjects to enter and occupy
a part of the New World that no Christian ruler effectively claimed for his
own subjects, just as the pope had authorized the Spanish and the Portu-
guese to do.
The Charter of Massachusetts made no reference to any rights of the
Indian population of Massachusetts in the lands they occupied. The as-
sumption seems to be that the land was terra nullius, that is, land formally
possessed by no one.34 From this perspective, the Indian population only
moved over and through the land but did not farm it on a regular basis.
Furthermore, the death from disease of a large percentage of the Indian
population before the Puritans actually landed in 1630 meant that the Puri-
tans could see themselves as repopulating an empty land.35 Once the colo-
nists established themselves in New England, they would hold their land as
from the king ‘‘in free and comon Soccage,’’ in effect bringing themselves
and their lands under the king’s jurisdiction.36 This gave the English colo-
nists a claim to English protection in the event that the French, Spanish, or
other European colonizers attempted to occupy the lands that the English
colonists occupied.
The charter mentioned the Indians only in connection with the re-
sponsibility of the colonists for their spiritual and moral elevation. The col-
onists should live ‘‘soe religiously, peaceablie, and civilly governed, as their
good Life and orderlie Conversacon, maie wynn and incite the Natives of
Country, to the Knowledg and Obedience of the onlie true God and Sauior
of Mankinde, and Christian Fayth,’’ a task that ‘‘is the principall Ende of
this Plantacion.’’ Here again the charter echoed the language of the papal
letters that had authorized the occupation of the Canary Islands and the
Americas by the Spanish in the fifteenth century as well as that of Laudabi-
liter.37
Finally, the Charter of Massachusetts also set out the outlines of colo-
nial local government. There were to be a governor and deputy governor,
18 assistants, all ‘‘constituted, elected and chosen out of the Freemen of the
saide Company . . . for the best disposeing and ordering of the generall
buysines’’ of the colony. The assembled officials are authorized ‘‘to make
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66 James Muldoon
Lawes and Ordinances for the Good and Welfare of the saide Company . . .
soe as such Lawes and Odinances be not contrarie or repugnant to the
Lawes and Statuts of this our Realme of England.’’ The colonists were, so
to speak citizens of the Massachusetts Bay Colony and subjects of the king
as well. As in Ireland, self-government in Massachusetts included only the
English colonists, not the native population.
During the seventeenth and eighteenth centuries, the English colonists
and their descendants in both Ireland and North America complained
about their status within the emerging British Empire.38 In both places, the
issue of representation in Parliament was central. There was a Parliament
in Ireland but its actions were constrained by Poynings’ Law (1495), which
required its acts to receive the approval of the English government first.39 If
they were the legal equals of Englishmen, why should the actions of the
Irish parliament be subject to English parliamentary supervision and why
did not the American colonists have a parliament of their own? Underlying
the debates about parliamentary representation was the fear that if the En-
glish parliament was seen as the sole parliamentary body within the empire
then the colonists and their descendants who had no direct representation
in the English parliament would be reduced in status to the level of subject
peoples, like the Irish and the Indians.
The threat of incursions by other European rulers, especially the
French, encouraged the British colonists to emphasize their relationship to
the imperial government from which they sought protection. The subse-
quent success of the British in the eighteenth-century imperial wars with
the French that ended in 1763 ironically made it easier for the Americans to
seek a fuller role in the governance of British North America by removing
the greatest external threat to their survival.
At the same time, the growing pressure for a more centralized state
power at home and pressures to systematize the collection of lands that
comprised the empire, led to English efforts to bring the American colonies
under tighter royal control even before 1763. The revocations of colonial
charters, the attempts to rationalize the administration of the North Ameri-
can colonies during the seventeenth century, the creation of an imperial
trade policy by the series of Navigation Acts, and the general thrust of En-
glish policy in the seventeenth and especially the eighteenth century echo
the increasing interest of the London government in the administration of
overseas colonies and control over those who dwelled there.40 One impor-
tant difference was that in British North America the native population had
died off, had been defeated in battle, or had moved away from English set-
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tlement so that, unlike the situation in Ireland, where the native population
was belligerently present. In North America the English government had
only to concern itself with the English colonists.
From the perspective of the American colonists, they were Englishmen
with the rights, liberties, and privileges pertaining to them. They claimed
what James Otis termed ‘‘the rights of freeborn Englishmen,’’ rights that
stemmed from the ‘‘ancient constitution,’’ the common law, and the Magna
Carta.41 These rights and privileges were guaranteed by the colonial charters
and could not be taken away by subsequent acts of Parliament, according
to the colonists. While the English officials saw the Americans as subjects
of the central government, especially of Parliament, the Americans tended
to see themselves as subjects of the king and sought some form of represen-
tation, even an American parliament, as they believed was their due. The
king of England was, after all, king of Ireland, and there was an Irish parlia-
ment. If the English in Ireland could enjoy such a form of government, why
could not the English in North America? There were even those who argued
that as the king of England was also king of Scotland and king of Ireland,
he was also king of Massachusetts, Connecticut, and so on.42 That is, some
Americans saw the British Empire as a collection of separate territories,
joined only by the fact that they shared a common king. Others, however,
saw it as a hierarchical structure with the king in Parliament at the summit.
The American Revolution broke that deadlock.
The problems that the Angevins had faced in ruling Ireland in the late
twelfth century foreshadowed the problems that the Tudors, Stuarts, and
Hanoverians faced in ruling British North America in the seventeenth and
eighteenth centuries. Overseas expansion was less a matter of dramatic con-
quest and more a matter of accommodation and adaptation to new circum-
stances. In both cases those who would adventure abroad, whether as
mercenaries or as peaceful colonizers, did so at their own risk. The ruler
who authorized their going risked nothing, only legitimating their endeavor
and guaranteeing that they would not lose their status in England as a con-
sequence of leaving. As the Charter of Massachusetts also pointed out, the
descendants of the colonists would possess English legal status as well and
could reclaim it by returning to England.
Once the adventurers had succeeded, however, the monarchs took a
different stance with regard to the settlements. Henry II went to some
lengths to ensure the permanent subordination of the English in Ireland by
obtaining the fealty of Richard of Clare and then obtaining oaths of fealty
from the Irish chiefs. By then making John lord of Ireland, Henry II created
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68 James Muldoon
the outlines of a legal structure that could administer Ireland if the English
in Ireland and the chiefs of the Irish tribes played the roles that contempo-
rary lawyers assigned them.
In both Ireland and North America, the English government also faced
the problems posed by an indigenous population that did not immediately
accept English rule except in the most nominal way. That is, the Irish chiefs
may have sworn allegiance to Henry II and their successors to other English
rulers as late as Elizabeth I, but the practical significance of this submission
appears minimal. What the Irish did not voluntarily give, the English were
in no position to coerce until the late sixteenth and seventeenth centuries
when the conquest of the native Irish took place. In North America, English
policy pushed the Indians to the outer fringes of colonial settlement and
focused almost entirely on the English colonists. Any expectation that the
Indians would become civilized Christians and perhaps enter into the En-
glish political order soon ended.
In the final analysis, over a period of several centuries the colonizing
and settlement experience of the English, beginning with the occupation of
Ireland, was reduced to some basic legal principles that could then be em-
ployed in the formation of new colonies. Several centuries of English colo-
nizing experience had not provided, however, a satisfactory solution to the
question of the legal status of those who went abroad to colonize, a situa-
tion made more dangerous for the long-term survival of the empire by the
failure to develop strong ties with the native populations of Ireland and
North America. British imperial control of North America depended al-
most entirely on rapidly fraying bonds of tradition and affection with the
descendants of the original colonists. As late as 1775, the British Empire
lacked a concept of imperial citizenship and an imperial parliament that
would have satisfied the members of the increasingly powerful English par-
liament, the American colonists, the English in Ireland, and the other En-
glishmen who were establishing colonies around the world. The ties with
the English colonists that had been created over the centuries turned out
not to be strong enough to withstand the pressure that the colonists’ de-
mands for equal status in legal theory and participation in representative
institutions created.43 The American Revolution was the result as the frayed
ties finally gave way.

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Chapter 5
Licit and Illicit in the Yarnall Collection at
the University of Pennsylvania: Pages from
the Decretals of Pope Gregory IX
Robert Somerville
By the early thirteenth century the Latin church possessed two

collections of papal letters that were in some sense considered to be official.
The compilation of letters of Pope Innocent III (1198–1216), prepared by
Peter of Benevento in 1209–10, was endorsed by a papal bull from Innocent;
the collection of Pope Honorius III’s (1216–27) letters, assembled by the
canonist Tancred in 1226, was prefaced by a bull from Honorius. Both col-
lections were responses to the flood of questions and litigation engulfing
the courts of the church as the papacy struggled in the first part of the thir-
teenth century to define a centralized canon law for Latin Christendom.
Throughout its long history the church ‘‘requires norms according to
which it is defined and constituted, and procedures by which it operates,’’
and papal enactments are among the most important forms of law in the
Western tradition.1 Decisions from the bishops of Rome were important
even in pre-Constantinian times, and from the fourth century onward
papal letters survive that present responses to questions that were posed
from outlying areas. Such responses are called ‘‘decretals,’’ a word derived
from the past participle of the verb decernere, meaning ‘‘to decide, to judge,
or to decree.’’2 Despite their antiquity, it is especially from the mid-twelfth
century that decretals play a leading and even a dominant role in medieval
church law, and the specific types of letters that should be designated as
decretals, and their scope, were questions debated by scholastic canonists.
Peter of Benevento’s collection was, as far as is known, the first canon
law book to be promulgated with a papal bull attached guaranteeing its au-
thenticity. It can only be wondered that the papacy had not felt the need to
take some such an authoritative step earlier. But exactly what Pope Inno-
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72 Robert Somerville
cent’s intention was in approving Peter’s work has been a matter of debate.
The pope is not explicit about it, noting only that the texts of the collection
were contained in the papal registers, and thus they could be used without
any hesitation (about their authenticity, presumably) in judgments and in
the schools.
Honorius III, in contrast, offered details about the problems inherent
in the burgeoning canon law of the early years of the thirteenth century and
also showed an awareness of the need to come to grips with those problems.
From the mid-twelfth century onward, with the appearance of Gratian’s
Decretum and an increasing number of papal decisions that circulated
throughout the church, new opportunities were at hand for the study and
use of canon law. The result was an intensified interest in ecclesiastical law
and the concomitant appearance of a number of new collections, especially
of recent papal rulings. Not all churchmen of the time applauded those
trends, and one late twelfth-century writer likened the growing volume of
new law to an ‘‘unmanageable forest.’’3
In his bull authorizing Tancred’s collection, Pope Honorius III stated
that new cases required new legal remedies, and his intention was to offer
a book of papal laws that dealt with such emerging issues. Echoing Innocent
III, Honorius went on to say that these decisions could be used without any
doubt about their authenticity, but he then expanded on what he hoped to
accomplish. These texts, he indicated, had been formally published, pre-
sumably by the prefatory bull, and Tancred was to make an effort to have
other scholars use them in judgments and in the schools. The same cover-
ing letter was addressed to the masters at Padua, emphasizing Pope Honor-
ius’s intention to have the new compilation circulate.4 Leonard Boyle
demonstrated that Tancred worked directly from Honorius III’s papal reg-
isters in preparing his compilation, as opposed to Peter of Benevento, who
used earlier collections for texts of Innocent III’s enactments.5 The
thirteenth-century papacy thus was increasingly active in both shaping and
controlling the church’s law.
Nonetheless, there simply was too much law bounding around in
church courts, and the potential confusion within that law is exemplified
by an anecdote concerning the early years of Gregory IX’s pontificate (1227–
41). As the story goes, a decretal that could not be found in various earlier
compilations, including the collections of Innocent III and Honorius III,
was cited before the pope. Losing patience, Gregory ordered that the book
of decretals—presumably the volume where the vagrant ruling finally was
located—should be destroyed, and, furthermore, he decreed cessation of
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Yarnall Collection Pages from the Decretals 73
the study of decretals until he could make a decision about how to handle
their proliferation.6 Whether that account is true or not, early in his reign
Pope Gregory engineered a massive reshaping of the Latin church’s canon
law. All earlier compilations of decretals were superseded by a great new
work that was assembled by the Dominican master, Raymond of Peñafort.
The bull of promulgation for the Gregorian Decretals, where an outline of
the enterprise is given, was addressed first to Bologna, but, as with Honor-
ius III’s collection, copies were transmitted elsewhere.7
The new collection was organized into five books, with each book sub-
divided into titles, using a model that had been developed for decretal com-
pilations in the late twelfth century. Gregory gave Raymond great latitude
in editing the texts from earlier collections; and Raymond also inserted a
series of new items, presented under Gregory’s name, which were meant
to clarify matters that required more than editorial manipulation of earlier
rulings. As did Innocent III and Honorius III, Gregory IX wrote that his
new work was to be used in both judgments and schools. But Gregory and
Raymond went farther, stating at the end of the bull of promulgation that
‘‘we firmly prohibit that anyone presume to make another [compilation]
without the express authority of the apostolic see.’’8
The Decretals of Gregory IX were promulgated in 1234 and had a very long
life as an official law book in the Roman Catholic Church. Together with
later official collections, the work remained in effect until 1917. This section
of the study moves far beyond the world in which the Decretals were prom-
ulgated, but deals with a world where they still could be living law. The
remarks to follow center on nineteenth- and early twentieth-century Phila-
delphia and focus on textual threads from the thirteenth century.9
Ellis Hornor Yarnall (1839–1907) was a native of Philadelphia and a
graduate of both Haverford College and the University of Pennsylvania Law
School. Yarnall was an anglophile and a convert to the Episcopal Church
who had been baptized in 1864 in the newly founded parish church of St.
Clement’s.10 Throughout his life, he ‘‘was devoutly and steadfastly commit-
ted to the Anglo-Catholic expression of religious life,’’ and St. Clement’s
was a center of a High Church faction in the Episcopal Church in Philadel-
phia.11
Yarnall’s will, written in 1898, provided for the establishment in Phila-
delphia of an endowed ‘‘Library of Theology’’ at the parish church of St.
Clement’s. The history of this unusual arrangement and the unusual library
thus established, and the developments that brought the Yarnall Collection
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to the University of Pennsylvania, were studied by Joyce L. White in 1979.

She characterized the library as ‘‘a library of books relating to the history,
doctrine, and worship of the Catholic Church as treated by the early
Fathers, the Doctors of the medieval period and current Anglican theolo-
gians . . . for the benefit of both clergy and students.’’ Although the books
were the property of St. Clement’s, the library was from early on housed at
the Philadelphia Divinity School in West Philadelphia. The collection grew
and included major research tools for church history such as volumes of
the Monumenta Germaniae Historica, Migne’s Patrologia Graeca, and ‘‘five
folio volumes of Nicolaus de Lyra’s Postillae in their original bindings as
published in 1501–02.’’12 At the point of its removal to the University of
Pennsylvania, a move that will be described in the following paragraph, the
Yarnall Collection included 20,000 volumes.13
In 1973 the Philadelphia Divinity School was merged with the Episco-
pal Theological Seminary in Cambridge, Massachusetts, and the school’s
operations in Philadelphia were closed. Despite pressure to move the Yar-
nall Collection to Cambridge, the board of managers of the library was
committed to following the provisions of the founder’s will for maintaining
such a library of theology in Philadelphia.14 At that point, Richard De Gen-
naro, director of libraries at the University of Pennsylvania, stepped in and
invited the library’s board to consider Penn as a possible home. On the con-
ditions that the collection be separately housed within the main library and
that its catalogue be separately maintained, arrangements were made to
house the Yarnall Library of Theology in the Dietrich Graduate Library
Building at Thirty-Sixth and Walnut Streets. The collection was to be freely
accessible in the building for use by scholars; items deemed ‘‘rare books’’
were deposited in Penn’s Annenberg Rare Book and Manuscript Library
but shelved separately.
The author was a faculty member at Penn in 1975–76 and quickly be-
came acquainted with the riches in the Yarnall collection. In the course of
that academic year, a colleague alerted me to an interesting discovery in the
aforementioned volumes of Nicholas of Lyra’s Postillae.15 Nicholas (1270/
75–1340) was a Franciscan theologian at Paris whose Postillae were very
popular throughout the late Middle Ages and influential on Luther.16 The
Yarnall copy contains the six-volume edition by Sebastian Brandt, printed
in five folio tomes at Basel in 1498–1502 by Johannes Froben (vols. 5 and 6
are printed in one book).17
Early modern printers’ use of pages from medieval manuscripts as
backing and binding material is well known. The boards that make up the
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front and back covers of the Yarnall copy of the Postillae are the originals,
here and there restored. They contain a group of pastedowns from medieval
philosophical and legal manuscripts, including parts of pages from the De-
cretals of Gregory IX. Those medieval fragments have been trimmed to fit
the printed books’ boards, but the Roman and canon law texts can be iden-
tified.
Tomes 1–2, front and back covers: mutilated pages from an unglossed
thirteenth-century copy of Aristotle’s Topics, specifically identified in
the fragments at the back of tomes 1 and 2.
Tome 3, front cover: late thirteenth-century, with marginal glosses, X
2.24 (‘‘On Oaths’’ [De iureiurando]), cc. 25–26, both of which are from
decretals of Pope Innocent III.18
———, back cover: twelfth/thirteenth century, mutilated page from
the Codex Iustinianus (9.49.1–9), with a marginal gloss at the bottom
of the inner column but most of the extensive gloss that once sur-
rounded the text on all sides appears to have been erased.
Tome 4, front cover: late thirteenth century, with marginal glosses, X
5.12 (‘‘On willful and accidental homicide’’ [De homicidio voluntario
vel casuali]), cc.19–22; 19–21 are from Innocent III, and 22 from Hon-
orius III.
———, back cover: late thirteenth century, with marginal glosses:
(i) X 5.17 (‘‘On plunderers, arsonists, and violators of churches’’
[De raptoribus, incendiariis et violatoribus ecclesiarum]), cc. 5–7; 5
is from Alexander III, 6 from Lucius III, and 7 from Innocent III.
(ii) X 5.18 (‘‘On thefts’’ [De furtis]), cc. 1–5; 1 is from the Book of
Exodus, 2 from the Council of Tribur (895),19 3 from the ‘‘Peni-
tential of Theodore’’(‘‘vere,’’ the Excarpsus Bedae-Egberti),20 4 is
from ‘‘Jerome on Proverbs’’ (‘‘vere,’’ the Glossa ordinaria on
Proverbs),21 5 is from a decretal of Alexander III.
Tome 5, front cover: late thirteenth century, with marginal glosses, X
2.26 (‘‘On prescriptions’’ [De praescriptionibus]),22 cc. 9–13; 9 is from
Alexander III, 10 from Lucius III, 11–13 from Innocent III.
———, back cover: late thirteenth century, with marginal glosses, X
2.23 (‘‘On presumptions’’ [De praesumptionibus]),23 cc. 12–15; 12 is
from Alexander III, 13 from Clement III, cc. 14–15 from Innocent III.
These fragments seem to derive from two different late thirteenth-

century Italian manuscripts.24 The pieces from the Decretals are accompanied,
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as would be expected, by the standard commentary known as the Ordinary

Gloss. This apparatus was assembled by Bernard of Parma in the early 1240s
and revised up to the time of his death in 1266.25 The specific provenance
of the pages under discussion is uncertain. Basel was an international city
and manuscripts from throughout Europe would have been available there.
The history of the Yarnall copy of Nicholas of Lyra is unknown prior
to its arrival in Philadelphia. A bookseller’s stamp on the back of the front
board of tome 1 (also on the front of 3) reads: ‘‘John M. Stark / Bookseller /
64 Market Place / Hull.’’ A handwritten note in the outer margin of tome 1
reads: ‘‘H. L. Hastings Bought These Books of Segatt Books N.Y.’’26 Horace
Lorenzo Hastings (1831–99) was a publisher and Christian pamphleteer. A
Millerite and First-Day Adventist, Hastings was interested in study of the
Bible and was an opponent of Higher Biblical Criticism.27 He was active in
New England and New York state, and his interest in the Bible could have
brought Nicholas of Lyra to his attention in one way or another. The trail is
not a very clear one. The whereabouts of the five books of Nicholas between
Hastings’s day and their arrival in Philadelphia is uncertain. The Postillae
seem to have been added to the Yarnall Library only in 1944; the acquisition
was especially noteworthy, it seems, because the work survived in its origi-
nal binding.28
Of the ten medieval fragments used as backing material in the Yarnall
Nicholas, six were from legal manuscripts. These fragments of manuscripts
placed in the Nicholas bindings surely were inserted at random, simply be-
cause the manuscripts were at hand and were deemed no longer of intellec-
tual interest. Pieces from legal texts are very prominent among the
parchment used in the bindings and boards of early printings. Codices of
those works were plentiful in the Late Middle Ages. There are, for example,
approximately 700 surviving medieval manuscripts of the Gregorian Decre-
tals, and in the year 1500 there would have been many more.29 Gratian’s
Decretum and the Gregorian Decretals were among the first works to be
printed, and Friedberg noted 45 fifteenth-century printings of the Decretals,
nine of them produced in Basel.30 Important, numerous, but also in some
sense dispensable in the late fifteenth century, such manuscripts were thus
more likely targets for dismembering and trashing than other sorts of
medieval books.
This section returns to the medieval setting of the Yarnall fragments. The
discussion at the beginning of the chapter outlined the developments that
led to the great compilation of decretals by Raymond Peñafort on behalf of
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Pope Gregory IX, and the subsequent tabulation lists the specific texts from
the Decretals that are included in those fragments. Details about individual
readings would need to be sought in the texts themselves, for a modern
critical edition of the Decretals is not at hand nor likely to be available any
time soon.31 That being the case, medieval manuscripts in this collection,
including fragments of the work, could yield variations from the printed
versions, and the value of such readings can only be assessed in conjunction
with examination and classification of the manuscripts. Thus the Yarnall
fragments of the Gregorian Decretals retain a potential textual significance
for the history of canon law. Those thirteenth-century ‘‘membra dis-
iecta’’—castoffs from Frobin’s printing house in Basel and now preserved
in Philadelphia—are isolated remains of an official legal tradition that
stretched beyond the Middle Ages. As such, these fragments can be said to
represent discrete, medieval elements of ‘‘the licit and the illicit.’’
With an eye, therefore, on that theme, it might be interesting, in con-
clusion, to look at one decretal from among those embedded in the Yarnall
fragments. Title 12 of book 5 of the Decretals is, as noted above, ‘‘On willful
and accidental homicide’’ (De homicidio voluntario vel casuali) (Nicholas of
Lyra, Postillae, tome 4, front cover—see above). Canon 20 of title 12 con-
cerns abortion. This is a text of Pope Innocent III, issued in 1211 and sent
to the prior and to the Carthusian Brothers. The text was included in one of
the important pre-1234 decretal collections, the so-called Compilatio quarta,
assembled by the canonist Johannes Teutonicus early in 1216.32 Wolfgang
Müller, in his magisterial monograph on abortion, notes that Raymond of
Peñafort probably included this decretal in his compilation, not because of
the subject matter per se, but rather with a desire to use the text as one
in a series that emphasized editorial and legal questions about homicide.33
Notwithstanding such a scholastic perspective on Raymond’s part, X 5.12.20
in and of itself reveals an interesting and tangled set of circumstances, full
of human drama, where the boundaries between licit and illicit are very
much to the fore. The decretal will be presented here both through Fried-
berg’s Latin text and in an English translation. In this instance collating the
Yarnall fragment with the text of the decretal in Innocent III’s Register, and
with Friedberg’s text printed in the Liber extra, yielded only a very small
number of insignificant variants.34
Idem Priori et Fratribus Carthusiensibus.35

Sicut ex literarum vestrarum tenore accepimus quum quidam presbyter vestri ordi-
nis, qui prius fuerat niger monachus, quandam mulierem praegnantem, cum qua
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contraxerat consuetudinem inhonestam, et quae asserebat, se concepisse ex eo, per

zonam arripuerit, quasi ludens, ipsa36 . . . per hoc sic se asseruit esse laesam, quod
occasione huiusmodi abortivit; propter quod idem presbyter, proborum virorum
usus consilio, se ipsum duxit ab altaris ministerio sequestrandum. . . . Nos vero
devotioni vestrae insinuatione praesentium respondemus, quod, si nondum erat vi-
vificatus conceptus, ministrare poterit; alioquin debet ab altaris officio abstinere.37
The same [Pope Innocent III] to the Prior and Carthusian Brothers.
We have learned from your letter that a certain priest of your order, who previously
had been a black monk, playfully grabbed by the girdle a certain pregnant woman,
with whom he had been bonded together in an indecent intimacy and who asserted
that she was carrying his child. As a result of this [grabbing] she claimed to be in-
jured, consequently suffering an abortion. For this reason the priest, on the advice
of prudent men, decided to refrain from ministry on the altar. Et infra.—[There
follows a report of a plea on the part of the Carthusians for papal mercy, a line that
was excised from the text in the Decretals—hence the words Et infra.—and Inno-
cent III then continues.]38 But we are responding to you by the present letter that if
the fetus was not yet animated, he can minister; otherwise he ought to abstain from
duty on the altar.

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Chapter 6
Judicial Violence and Torture in the
Carolingian Empire
Patrick Geary
Medieval scholars of judicial procedure, particularly those con-

cerned with the Early Middle Ages, have in the past two generations
brought enormous clarity to our understanding of how the operation of
Frankish justice was deeply embedded within the context of Frankish soci-
ety. A primary goal of this scholarship has been to demonstrate the prag-
matic and ‘‘rational’’ nature of early medieval judicial procedure. In the
immediate postwar period, scholars such as François Louis Ganshof studied
Carolingian justice with an emphasis on rational institutional procedure
and institutions.1 More recent scholarship, drawing on the processural
school of legal studies, tends to present Carolingian justice as though it were
primarily concerned with fines and financial settlements rather than with
blood and torture.2 This is in marked contrast to the approach of legal his-
torians in the first half of the twentieth century, who viewed early medieval
justice as ‘‘arbitrary and irrational,’’ emphasizing such practices as the or-
deal that threatened physical pain, mutilation, or death to those who under-
went it.3 Physical violence in the early Middle Ages has not been neglected,
but recent studies tend to focus on violence as though it existed outside and
opposed to the formal apparatus of the courts. The emphasis has been on
legal procedures as means of eliminating violence, specifically the feud, and
keeping peace, rather than exploring the violence the Carolingian state itself
exercised in the course of performing justice.4
As important as this corrective has been, however, as a result in recent
decades virtually nothing has been written about the use of what might be
generally termed judicial violence, that is, torture and corporal punishment
inflicted to elicit confessions from those accused or to punish those con-
victed. Instead, recent scholarship has emphasized that such relatively
pacific procedures as oath helping, the use of written evidence, and interro-
Brought to you by | Stockholm University Library
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80 Patrick Geary
gation of witnesses were integral to Frankish legal procedure. The result has
been, as Barbara Rosenwein has suggested, that two generations of histori-
ans have developed an image of justice that might rightly be called irenic.5
A notable exception to this approach is Edward Peters’s Torture, a bold
and important book that, in a concise treatment, traced the history of tor-
ture in Western judicial tradition to the twentieth century.6 Not surpris-
ingly, the early Middle Ages is a period to which Peters devotes only a few
pages in his powerful book: he is clearly after bigger game. At the time of its
publication the book was one of those rare monographs by a professional
medievalist that succeeded in reaching a wider audience, not only of schol-
ars and students, but also of educated men and women concerned with the
historical dimensions of an important, if somber, aspect of the judicial tra-
dition. Recently and sadly, world attention has again been directed to the
question of torture and judicial cruelty, not only in those many parts of the
world where they never disappeared and continue to be an integral part of
daily life, but also in Western democracies. To what extent American jus-
tice, with its death penalty, permits ‘‘cruel and unusual punishment’’ and
whether the ongoing, transnational struggle against violent anti-Western
terrorism requires incorporating torture have once more become publicly
debated issues.
And yet, while such debates about contemporary violent justice domi-
nate headlines and although scholars are aware that torture and excruciat-
ing corporal punishment existed in early medieval judicial proceedings to
some extent, medieval torture is generally said to have become common
only in the thirteenth century. Robert Bartlett has perceptively discussed
the reappearance of torture in the context of the decline of the ordeal and
has emphasized that torture, when it reappeared in the High Middle Ages,
was explicitly regarded as an alternative to the ordeal.7 In what follows, I
would like to reconsider the Carolingian uses of judicial violence, including
corporal punishment and torture employed to elicit confessions, to correct
the image of Carolingian justice that has developed in recent decades. I also
wish to put forth as a hypothesis that one might extend Bartlett’s thesis by
suggesting that not only did the disappearance of the ordeal contribute to
the increased use of judicial torture but also the ordeal may have replaced
judicial torture in parts of post-Carolingian Europe.
In spite of the relatively abundant extant records of Carolingian courts
or placita, we know very little about the torture or physical punishment
exercised in the course of Carolingian justice. This is in part because virtu-
ally all the surviving placita concern property disputes or claims of free
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Judicial Violence and Torture in the Carolingian Empire 81
status on the part of individuals or groups of peasants. In such cases, which

today would be considered issues of civil rather than criminal law, remedies
are the surrender of real property or the submission of individuals to the
authority of their masters rather than fines or physical punishment. By their
nature, what we would term criminal cases are unlikely to have left docu-
mentary evidence—punishment would have been immediate and defini-
tive—and even if such records did exist, there would be little reason for
them to have been preserved after the death of the parties involved. As for
torture, the protocols of Carolingian placita provide no place for the de-
scription of the circumstances under which individuals gave testimony. If
pressure or even torture was indeed employed, it is absent from the formal
record. As a result, the image written sources provide of Carolingian justice
is remarkably pacific: cases held by counts or missi, whether resolved by
clear judgments or settled through amicable compromise, provide no evi-
dence of physical pain, suffering, mutilation, or death.
To some extent, this is also the image presented in the so-called ‘‘Ger-
manic’’ or ‘‘barbarian’’ laws that continued to be copied, amended, and
thus, we can infer, applied in the later eighth and ninth centuries. In these
various legal compilations, drawn up under the influence of Roman vulgar
legal practice, and by the eighth century more territorial than personal, the
vast majority of offenses can be atoned for by the payment of wergild. Only
if the offender and his kindred are unable to make this payment is a corpo-
ral penalty, usually death, the alternative. Only the unfree are regularly sub-
ject to corporal punishment rather than payment for their offenses.8
Corporal punishment is more present in the capitularies, specifically
in those directed toward the Saxons, for whom a wide range of behavior
merits death. Two capitularies in particular, that of Herstal and the capitu-
lare de Latronibus,9 do address the punishment of theft. The former in par-
ticular prescribes specific punishments: for the first offense, the loss of an
eye; for the second, the loss of a nose; and for the third, death.10 Such ex-
plicit references to violent punishment are rare, however, and generally
penalties tend to include fines and, more rarely, exile.
But it would be hopelessly naive to believe that Carolingian justice
functioned without judicial torture or without corporal punishments, rang-
ing from beatings to mutilation to death in a variety of excruciating man-
ners. Narrative sources mention blindings, drownings, and execution with
sufficient frequency, even if only in connection with elites caught up in po-
litical conflict, to make us cognizant of the ever-present possibility of cor-
poral punishment in Carolingian justice.
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82 Patrick Geary
Nor is this in any way surprising. Much of Carolingian law and legal
practice derives from Roman law, in which torture, mutilation, and execu-
tion were prescribed both for the interrogation of unfree witnesses and as
punishment for a wide range of offenses.11 Thus it would be a grave error
to imagine that these penalties are evidence of ‘‘barbarian’’ tradition—they
are inherited from Roman tradition. Torture was a normal and even neces-
sary part of the interrogation of unfree witnesses or accused, and the public
infliction of pain, mutilation, and execution as penalties meted out on less
privileged members of the community had long characterized the exercise
of Roman justice. Such measures, largely restricted in the Republic and the
Principate to slaves and noncitizens, became increasingly common in their
application to all but the honestiores in Late Antiquity. Such practices were
incorporated into Visigothic legal practice and into other ‘‘barbarian’’ codes
as well.12
The threat of physical pain at the hands of judges was thus a normal
expectation for the vast majority of the inhabitants of the late empire and
its successor kingdoms. Such violence in the pursuit of justice was an inte-
gral part of Carolingian justice, both in regions largely under Roman law
and in areas where Germanic laws predominated, even if its exercise has left
relatively little evidence in the written record.
Those few who have addressed the question of criminal justice in the
Carolingian period have concentrated less on the harshness of the justice
meted out by judges than on their failure to provide justice at all. This is
indeed the focus of Paul Fouracre’s excellent summary of the rhetoric of
judicial reform in the Carolingian world.13 Fouracre notes that the capitu-
laries of Charlemagne that most address the problems of criminal justice,
primarily Herstal and the capitulare de Latronibus,14 focus specifically on
‘‘the failure to accuse criminals and the failure to deliver criminals up to
the count for justice.’’15 Certainly the corruption of judges and their failure
to prosecute criminals vigorously are recurrent issues in Carolingian reform
language, but they are not the only ones addressed by reformers. At least a
few were concerned not simply with judges who did not pursue criminals
but also with those who did so with excessive or arbitrary violence.
Three Carolingian texts shed particular light on the use of corporal
punishment in the courts of the ninth century. They are poems rather than
records of courts, but all three purport to describe the proper exercise of
justice by royal officers. The anonymous Carmen de Timone comite, pro-
duced in Bavaria sometime in the mid-ninth century, presents what might
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be seen as the majority image of the proper use of violence in Carolingian

court proceedings:
Therefore, when the count arrives, he orders that thieves be hanged,

And that the cheeks of robbers be forever branded.
That criminals be disgracefully maimed by having their noses cut off;
This one loses a foot, and that one loses a hand.16
This image of comital justice accords well with Fouracre’s description of

how a judge ought to act: to punish thieves with severity and not to be
swayed by bribes or external considerations.
Such a view of Carolingian justice, however, is only part of the story.
If unjust judges fail to enforce the law with proper severity, others, accord-
ing to Theodulf of Orleans, do so with too much cruelty. Theodulf develops
this other critique of Carolingian justice in two poems, his Paraenesis ad
judices, also known as his Address to Judges,17 and his Comparison of Ancient
and Modern Laws, a poem that contrasts human and divine law.18 In what
follows, I will attempt to speculate on how Theodulf’s poems, besides docu-
menting extremes of cruelty as a judicial punishment, may also suggest the
widespread use of torture in obtaining testimony in certain cases involving
questions of free status, uses that may have contributed to the subsequent
use of threats of ordeal, which, in turn, may have replaced torture as a coer-
cive measure between the tenth and thirteenth centuries.
In order to understand Theodulf’s criticism of corporal punishment
and of the use of torture to obtain testimony, one must consider the struc-
ture and organization of the Paraenesis as a whole. Theodulf’s long poem,
because of the detailed description of an antique vase offered to Theodulf
if he would find in favor of a party, has been the focus of a great amount
of scholarship on the knowledge of classical mythology in the Carolingian
renaissance.19 However, its essence is a systematic critique of the work of a
royal judge that incorporates his own experience as a royal missus in
Provence and Septimania at the end of the eighth century, and is an ex-
tended exhortation to royal judges to act with justice and mercy. Much of
the poem is devoted to the universal problem of bribery and concentrates
on the temptations facing a judge to accept gifts from parties in lawsuits to
favor their cause. However, while much of the poem is an exhortation to
judges and others involved in the administration of justice to resist bribery
and to act with honesty in court, the poem also outlines the steps of a judi-
cial proceeding: the entry of the judges into a city; their arrival at the
thronged court; the admission of litigants by the (normally corrupt) door-
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84 Patrick Geary
keeper; the proper seating of litigants and judges; the investigation of the
individual case by hearing the arguments of the litigants; the interrogation
of witnesses; the taking of oaths; the judgment; and the meting out of pun-
ishments. The poem then ends with a plea to judges to show mercy.20
It is in the final sections, the description of punishments and the plea
for mercy, that Theodulf addresses judicial violence both in the use of cor-
poral punishment and in torture to elicit confessions. Discussing punish-
ments, he describes the penalties permitted by law and contrasts, on the
one hand, the demands that these be applied and, on the other, an exhorta-
tion to clemency. ‘‘The law commands that the evil heads of the con-
demned be cut off, their legs, genitals, eyes, backs, hands; to burn their
limbs, to fill their mouths with molten lead, or whatever else human laws
demand.’’21 Still Theodulf is uncomfortable with such punishments which,
he contends, contradict the Christian obligation of compassion.
In Theodulf’s second poem, the Comparison of Ancient and Modern
Laws, he expands on his critique of human justice, contrasting the penalties
demanded by modern law with those of the Bible. Theodulf argues that if
‘‘In early times punishments were severe, in our times they are even more
cruel.’’ Theodulf contrasts biblical punishments that demand restitution
and compensation with contemporary punishments that, he contends, de-
mand death or mutilation even for theft. To Theodulf, biblical punishments
better fit the crime than do the human penalties of his day: if the Bible
commanded that ‘‘he who steals a beautiful lamb from the flock restore it
twice over to him who took it,’’ then ‘‘it is unknown except in our day that
the apprehended thief is punished by death.’’ He goes on to enumerate the
penalties prescribed by contemporary law for thieves: ‘‘Modern law takes
away eyes, the source of begetting beautiful offspring, a leg and hand at the
same time. They order that backs be cut with brands, lead be poured into
the mouth, that ears, noses and all that is beautiful be cut off. They order
that swift feet be amputated and that with a rope around it, the neck, sus-
pended from a high pole, should bear the weight of a thief.’’22
In only one area does he see modern law as less severe than that of the
Bible: biblical law required, he writes, an eye for an eye and a life for a life,
while modern law requires that human blood pay for that of animals. And
yet, if someone strikes and kills another in rage, the price for this offense is
cheap: money, livestock, or fear of imprisonment.23
Theodulf’s objection to mutilation and other forms of corporal pun-
ishment are not simply based on the disparity between biblical and modern
justice. In his Comparison of Ancient and Modern Laws, he contrasts what
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he considers the cruelty of the modern law with the Gospel admonition to
return good for evil. ‘‘The Lord did not order to return evil for evil, re-
proach for harsh reproach, attack for attack.’’ In the Paraenesis, however,
his opposition to mutilation and execution is more sociologically grounded.
First, in response to those who might insist that Theodulf is opposing the
restraint of evil, he urges that judges be neither too lenient nor too savage.
Neither should law make one cruel nor pity, soft. He urges that the guilty
be enchained, that they be beaten, but he urges, ‘‘do not stain your blade
with wretched blood.’’24 He would rather be known as a judge who saves
lives and whose sight returns strength to the weakened body of the throng.
These thoughts of mercy are encouraged by a further consideration:
the plight of the poor oppressed by the rich. Pauper in Carolingian Latin is
often opposed to potens, the poor being those who are without power, not
simply without wealth.25 This is clearly the case in Theodulf’s poem, in
which pauper, miser, or inpos designates one unable to purchase justice.
‘‘What a poor man loses, he is said to lose justly; What a rich man grabs,
he is thought to take justly.’’26 Here, in Theodulf’s experience, is the crux
of the problem in the administration of justice. He presents bribery and
corruption not simply as general evils affecting justice but most particularly
as leading to the tyranny of the powerful over the weak.
This tyranny is most painfully evident in the practice of judicial tor-
ture to elicit confessions. For it is here alone that he broaches the question
of the inflicting of physical pain not as punishment but to extract confes-
sion. He suggests a series of accusations that the rich bring against the poor:
‘‘he is a thief, he is ready to flee; his mind is deceitful; he is deceptive, he
steals and robs, he plots to avoid our service, he has been fleeing our neigh-
bor for a long time. Bind them to a post, chain their arms, make them con-
fess their evil, make them bear the lash of whips.’’27
This list of accusations is more than simply a random series of re-
proaches. The suggestion that the pauper is fugax (inclined to flee), that he
attempts to avoid services owed the dives, and that he has fled the accuser’s
neighbor, are all accusations brought by a landowner who is claiming that
peasants who assert their freedom are in fact servile. The specific instance
of abuse, then, is one commonly observed in Carolingian placita: a group of
peasants refuse compulsory services demanded by a local landowner; they
attempt to elude his authority and that of other local landowners. They de-
clare that the lands that they work are their own, not those of a lord. Theo-
dulf’s statement that the lords then demand that these paupers be subjected
to torture so that they might ‘‘confess their evil’’ is consistent with this
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claim of servile status: if indeed servile, they are subject to corporal punish-
ment to force them to testify. The demand on the part of their accuser that
they be chained and beaten in order to reveal their legal status is thus a
demand that they be treated from the start not as freemen but as servi. Little
wonder, then, that Theodulf comments that those making these demands
do so because ‘‘they wish to strip them of their property, not of their
vices.’’28
Within Theodulf’s critique of judicial cruelty, then, is a critique not
only of torture as punishment but also of the torture of individuals in-
tended to coerce confession to the accusations of the powerful.
Theodulf’s concern that powerful landowners are urging judges to use
judicial torture, permitted, as we have seen in both Roman and Barbarian
law only on the unfree, to prove the unfree status of peasants, resonates
with a general issue remarked upon by Janet Nelson. Talking about West
Frankish dispute settlement, she pointed out that ‘‘Lords were clearly short
of manpower, and used the courts to impose their demands on refractory
peasants, sometimes putting the machinery in motion to secure a judgment
on the servile status of a single man or woman.’’29 Nelson cites a number
of placita and formulary texts that indicate the relative frequency of such
actions.30 Disputes concerning servile status were indeed an important issue
in the ninth century. Among the Formulae Senonenses recentiores from the
reign of Louis the Pious, for example, one finds a series of protocols for
judgments in which men lose court cases denying their status as servi or
coloni.31 The procedures in all of these cases seem so simple that if one were
to take them as literal descriptions of the cases, one would wonder why the
peasants had brought them at all: a man claims that he is not the servus or
colonus of a monastery or of a lord. He is unable to provide evidence, but
the individual or institution claiming him produces testimony from wit-
nesses to his servile status, and he loses his case. This is quite similar to the
case examined by Janet Nelson of some twenty-three named men of St.
Denis who in 861 claimed that they were free coloni by birth and were being
unjustly forced into inferior service.32 The abbey produced its witnesses and
the peasants promptly lost their case.
Do such formulaic accounts of the proceedings tell the whole story?
Are the plaintiffs or even the witnesses tortured or threatened with torture?
It is impossible to say: to do so would be to argue from silence. Certainly
some cases in which peasants were forced into servitude were deemed un-
just: two formulas from the reign of Louis the Pious provide for the restitu-
tion of the freedom of which they had been unjustly deprived.33 The first
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specifically states that the individual had had his liberty taken from him by
the count.34 Accusations that such judicial proceedings to determine free-
dom were settled by force certainly appear. In a placitum held at Turin in
880, for example, one Maurinus and his son Ansevertus claimed that the
monastery of Novalesa wrongly held them in servitude even through they
were free men. The monastery’s advocate responded by presenting a notice
of a previous judgment in which they had been declared serfs of the monas-
tery. The claimants’ response, ultimately rejected for lack of evidence, was
that the judgment was invalid because ‘‘all that had been done had been
done by force and not by [proper] judgment.’’35
What sort of force might be brought to bear on peasants claiming lib-
erty is impossible to determine. One might nevertheless suspect that one
possibility was real or threatened torture or possibly its later analogue, the
ordeal.
No Carolingian placita indicate that peasants claiming free status were
tortured or threatened with torture as part of legal proceedings to adjudi-
cate their cases. By the twelfth century, however, as we shall see, the ordeal
had become a common form of proof in such cases. Can one demonstrate
that the ordeal, demanded of peasants claiming free status, was the succes-
sor of the judicial torture applied to or threatened for those who claimed
free status? Certainly not. However it is worth considering the circumstan-
tial evidence connecting the practice of trial by ordeal, either unilateral or
bilateral, with the demonstration of servile status from the post-Carolingian
period.
The evidence from the Liber de Servis of the monastery of Marmoutier
is particularly suggestive in this regard. This extraordinary manuscript,
which contains charters and documents relating to the monastery’s serfs
from the tenth and eleventh centuries, contains a number of cases in which
peasants unsuccessfully contested their servile status. In one mid-eleventh-
century case, one Turbatus denied his servile status and was granted a hear-
ing at a placitum before Count Tibald. However, when at the placitum, the
monks presented one of his relatives who affirmed that he was a serf and
offered to prove it by judicial combat, Turbatus ended his case and ac-
knowledged his unfree status. Similarly, when a claim was presented to the
monastery that a tailor and his son had been given to the monastery not as
serfs but as colliberti, the monks arrived at a placitum at Vendôme with a
champion named Teelus who was ready to prove by ordeal the monastery’s
case, upon which the claim was dropped.36
A different, but perhaps related form of pre-judgment punishment
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was meted out to one Gandelbert, who denied that he was a serf of the
monastery. He was not tortured, but the prior took him to the monastery
and imprisoned him until he admitted his servile status.37
A shepherd Otbertus and his wife Plectrude were forced into servitude
because Otbertus had burned one of the monastery’s barns and was unable
to pay for the damage. When the monks also claimed as a serf their son
Vitalis, his mother offered to undergo a trial by hot iron to prove that he
had been born before his parents had been reduced to servitude. However,
just as the iron had been heated for the ordeal, she withdrew her offer.38
The monks alleged that one Stephan Dogleg (Gambacanis) became a
serf of Marmoutier by marrying a serf of the monastery. After his wife’s
death he married a free woman and claimed that he was himself free. He
prepared to prove his freedom by ordeal by battle. However, when the ap-
pointed time for the ordeal arrived, he surrendered his claim and under-
went the traditional ritual of recognition of his servitude: he placed four
denarii on his head and through them offered himself to Saint Martin and
his monks.39
The parallels between these threats of painful or even deadly ordeal or
imprisonment without trial used on peasants claiming free status to force
them to renounce their claims certainly echo Theodulf’s complaint that
peasants claiming free status were chained or tortured in order to coerce
them into surrendering their claims. If Robert Bartlett is correct that the
judicial torture of the High and later Middle Ages did indeed replace the
ordeal, one might argue that at an earlier period the ordeal had replaced
judicial torture. But whether or not this was the case, the violence of early
medieval justice, not only as punishments of those found guilty, but as
means to extract confessions from those accused, must be recognized as an
integral if disputed element of early medieval justice.

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Chapter 7
The Ambiguity of Treason in Anglo-
Norman-French Law, c. 1150–c. 1250
Stephen D. White
In a celebrated and much-quoted passage on treason in England

before the late thirteenth century, F. W. Maitland called it ‘‘a crime which
has a vague circumference, and more than one centre.’’ Drawing primarily
on a close analysis of the Latin legal texts Glanvill and Bracton’s De legibus,
as well as on his reading of late Anglo-Saxon law codes, Maitland usefully
highlighted the ambiguity of the concept of treason and identified several
disparate and equally elusive ideas that were somehow bound up in it. One
of these, which he characterized as ‘‘primarily indicated by the word be-
tray,’’ Maitland took to encompass ‘‘a betraying of the army or of the
realm,’’ aiding the king’s enemies, and also flight from battle. Another idea
was infidelity to a lord, which he construed to entail perjury because it in-
cluded ‘‘offences . . . regarded as the vilest breaches of the vassal’s troth’’—
that is, the oath of fidelity customarily sworn to kings and to other lords as
well. Treason also had, in Maitland’s words, ‘‘a Roman element,’’ namely
the crimen laesae maiestatis or lèse-majesté, which ‘‘the royal lawyers,’’ as
he called them, construed as something akin to ‘‘treason against the state.’’
Finally, Maitland discerned yet another idea associated with treason when
he wrote that ‘‘in marked contrast to the general drift of our old criminal
law, the crime was in this case found, not in a harmful result, but in the
endeavour to produce it [through] ‘‘machination, ‘compassing,’ [or] ‘imag-
ining’.’’ In other words, treason was somehow connected, Maitland be-
lieved, to plotting, scheming, and treachery. It was, as he noted, ‘‘the crime
of Judas,’’ whom Dante placed along with other traitors in the lowest
reaches of Hell.1
In 1352, the statute 25 Edward III, stat. 5, c. 2, which was drafted in
French, clarified the meaning of treason (treson) by specifying the offenses
that fell under it, including the levying of war (guerre) against the king,
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which previous statements about the law of treason had not mentioned.2
Before this statute’s enactment, according to Maitland’s line of reasoning,
treason had been such an unstable, ideological, contested, and overtly polit-
icized category of wrongdoing that there could have been no firm consen-
sus even about what offenses the term covered, much less how they were to
be defined or proven or who should suffer the ‘‘peculiarly ghastly’’ punish-
ments reserved for traitors, namely mutilation and/or execution and forfei-
ture of all property to the king.3 In particular, Maitland believed that it was
unclear, prior to 1352, whether rebellion against the king was necessarily
treason. Those who understood treason as a crime against the state, he im-
plied, surely saw rebellion in this way. But as long as treason could also be
understood as ‘‘infidelity,’’ Maitland argued, ‘‘men would not have been
brought to admit in perfectly general terms that the subject who levies war
against the king is a traitor’’4 because they had not fully abandoned the idea
that ‘‘if a lord persistently refuses justice to his man, the tie of fealty is bro-
ken, the man may openly defy his lord and, having done so, may make war
on him.’’ Besides, if an essential element of treason was not the ‘‘harmful
result, but . . . the endeavour to produce it’’ through plotting or other kinds
of underhanded behavior, then it would have been difficult to cast an hon-
orable man who justifiably defied the king in the dishonorable role of the
traitor.
Instead of pursuing Maitland’s argument about the ambiguity of trea-
son during the twelfth and early thirteenth centuries in England, subse-
quent writers engaged in a sharply polarized debate about whether
aristocratic rebellion—that is, ‘‘levying war’’ against the king—was treason
by definition before 25 Edward III, stat. 5, c. 2. J. E. A. Jolliffe insisted that
it was not, because treason was ‘‘infidelity’’ under feudal law. H. G. Rich-
ardson and G. O. Sayles countered that since ‘‘treason’’ was lèse-majesté,
not infidelity, rebels must have been deemed traitors. J. G. Bellamy thought
it ‘‘probable that [before the late thirteenth century] the feudal law [pro-
tected] those who levied war on the king in his realm.’’ More recently, how-
ever, John Gillingham has contended that ‘‘rebellion was always treason’’
in medieval England, but that kings chose ‘‘not to execute aristocratic re-
bels’’ from the late eleventh to the late thirteenth century because of a post-
Conquest reception of a culture of ‘‘chivalry’’ designed ‘‘to limit the brutal-
ity of conflict by treating prisoners . . . of ‘gentle’ birth, in a relatively hu-
mane fashion.’’ Matthew Strickland, too, maintains that levying war against
the king must have been treason because ‘‘contemporaries . . . repeatedly
stress that rebellion was a violation of sworn fealty and homage,’’ while
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Ambiguity of Treason in Anglo-Norman-French Law 91
kings ‘‘consistently claimed the right to execute or mutilate rebels.’’ Their

failure to exercise this right regularly Strickland attributes to political con-
siderations, rather than to cultural inhibitions on treating aristocratic rebels
inhumanely or legal constraints on punishing nobles who renounced their
fidelity to the king before making war on him.5
Gillingham and Strickland demolish the doctrinaire position that there
was once a universally recognized right to levy war against a king who de-
nied justice to his men. But the contention that rebellion must have been
legally defined as treason as early as the twelfth century depends on two
dubious assumptions: first, that law at this time is neatly distinguishable
from politics and political culture; and, second, that kings of England, their
lawyers, and other royal partisans unilaterally imposed a very broad con-
struction of treason against the king and totally squelched resistance to it.
In this scholarly impasse, the best starting-point for reexamining treason in
twelfth- and thirteenth-century England remains Maitland’s nuanced view
that it long remained such a vague, politicized, and malleable concept that
legitimate grounds could be found for resisting the application of broad
interpretations of it, including the totalizing principle that any man of the
king’s who makes war on him was necessarily a traitor.6 According to Mar-
tin Aurell, nobles in the Angevin Empire did not always view rebellion un-
favorably because they saw it as ‘‘the riposte to royal coercion’’ and
therefore contested the broad definitions of it that Angevin rulers favored.
Similarly, Robert Bartlett notes that a ‘‘tradition of justified aristocratic vio-
lence could invest resistance to the king with a kind of acceptability.’’ Ap-
parently such resistance was relatively easy to justify, at least in the Angevin
period, when kings themselves, as Natalie Fryde emphasizes, were vulnera-
ble to being denounced as traitors as well as tyrants. Many nobles obviously
considered John in particular a legitimate target in conflicts that even royal
records, according to Clare Valente, sometimes represented not as rebel-
lions but as ‘‘wars’’ (guerrae) waged by the king’s ‘‘enemies,’’ who claimed
to have just grounds for breaking off their ties of fidelity to him in cere-
monies such as diffidatio.7
There are other signs of resistance to broad constructions of treason
against the king in accounts of the treason trials of Wealtheof and Henry of
Essex, which raise doubts about whether these two condemned traitors
were really traitors. Similarly, in The History of William Marshall, King
John’s two efforts to prosecute William for treason fail partly because the
acts of William that John construed as treason could plausibly be interpre-
ted differently and partly because the king’s credentials as a traitor were so
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much stronger than the earl’s.8 Further evidence of treason’s ambiguities

and of firm resistance to broad interpretations of it in the Anglo-Norman-
French world of the twelfth and early thirteenth centuries can be found in
vernacular literature of this period, which illuminates not only legal ideas
about kingship, as Edward Peters amply demonstrated in his classic study of
‘‘the shadow king,’’ but also, as I have argued elsewhere, the law of treason.9
Chansons de geste, romans d’antiquité, verse and prose romances, and
shorter narratives written in several other genres thematized treason and
included prominent characters identified as ‘‘traitors.’’10 Some of these
texts, both Anglo-Norman and French, also contain trial scenes in which
appellants accuse defendants of forms of treason that are virtually identical
to ones that lawbooks or the statute of 1352 classified as treason against the
king.11 The offenses include conspiring or attempting to kill the king, killing
his eldest son and heir, aiding the king’s enemy and levying war against
him, harboring the children of his mortal enemy, debauching his eldest un-
married daughter, seeking the love of the king’s wife, and, in cases where
the defendant is the king’s wife, sexual infidelity.12 Although the creators of
these episodes uniformly expressed a horror of treason, they did not con-
struct ‘‘show trials’’ that dramatized its iniquity and celebrated the awesome
power of kings to take horrific vengeance on traitors. On the contrary,
twelfth- and early thirteenth-century literary texts produced for the Franco-
phone nobility of England and France almost always characterized appeals
of treason pejoratively, by demonstrating in one of two ways that the defen-
dant was accused of treason unjustly.
In literary texts that depict an accusation of treason as a particularly
shameful way of attacking an enemy and gaining power at court, a traitor
makes a false ‘‘appeal’’—to use the term customarily used in both literary
and legal texts—against a loyal baron for trying to kill the king, who is
thereby duped into threatening to execute the accused as a traitor.13 The
defendant ultimately wins an acquittal but only by steadfastly contesting
the false accusation, securing support from the king’s loyal counselors, and
defeating his vile accuser in battle.14 Other literary trial scenes document a
more legally sophisticated form of cultural resistance to treason prosecu-
tions. Here, the appellant’s charge that the defendant betrayed his royal lord
provokes a debate, not about whether the accused committed the allegedly
treasonous act imputed to him, but about whether that act truly constituted
treason. Similar debates that are relevant to the present discussion take
place in literary trials where the defendant is accused of betraying a lord
who is not a king. In trials of this type, the narrative has already provided
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grounds for the accusation by showing that the defendant did something
that brought ‘‘harm’’ to the king or lord. Nevertheless, arguments for the
defendant’s acquittal are made on the grounds that his conduct did not
meet other criteria for proving treason.
These criteria are similar if not identical to the ones used in late
thirteenth-century vernacular legal texts that Maitland and other writers on
treason largely ignored, namely Britton and The Mirror of Justices, both
written in England, and the Coutumes de Beauvaisis of Philippe de Beauma-
noir.15 Whereas Glanvill and Bracton’s De legibus discuss treason against the
king under the name of lèse-majesté and simply specify examples of it, these
texts, by contrast, explain the meaning of the French word traisun—the
term for treason that must have been used in the Francophone courts of
Angevin England and that also appears in 25 Edward III, c. 2. The late thir-
teenth-century Anglo-Norman lawbook Britton cites the harm (damage)
that the traitor did or had others do and accordingly identifies treason
against the king with compassing his death and disinheriting him of his
kingdom, but makes no mention of levying war against the king. Like other
vernacular lawbooks, Britton defines treason by referring to what Maitland
called ‘‘the manner’’ of achieving or trying to achieve ‘‘a harmful result.’’ It
specifies that the ‘‘harm’’ must have been done or procured ‘‘knowingly’’
(a escient), while Beaumanoir calls it treason ‘‘when you show no sign of
hatred and yet you harbor a deadly hatred.’’ Britton also says that treason
involves a breach of faith between ‘‘friends,’’ a category in which The Mirror
of Justices explicitly includes those allied by ‘‘homage’’ or ‘‘oath.’’ In the late
thirteenth century, treason could be identified with ‘‘infidelity’’ to any lord,
just as it was in the early twelfth century, when the Leges Henrici Primi used
infidelitas as a synonym for proditio and stated that ‘‘Every man owes fidel-
ity to his lord for life and limb and earthly honour and the keeping of his
counsel, in matters which are honorable and expedient, saving the fidelity
owed to God and the prince of the land.’’ However, since the same text cites
circumstances in which a lord could ‘‘forfeit his lordship over [his man],’’
it did not exclude the possibility that a man might wage war on his lord—or
former lord—without being judged a traitor.16
These ideas about treason come into play in literary treason trials,
which equate treason against a king or other lord with infidelity but show,
as Maitland could have predicted, that it was ambiguous and thus open to
at least two constructions: a broad one resembling lèse-majesté and a nar-
row one that minimizes the differences between infidelity to a king and
other kinds of treason, especially infidelity to a lord, and associates treason
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with underhandedness and plotting. Under the broad interpretation, which

appellants, kings, and royal supporters deploy in literary treason trials, the
overriding consideration is whether the defendant caused harm to the king,
in which case accusers reflexively impute treasonous conduct and a breach
of fidelity to the accused and brand him a traitor. However, the authors of
trial scenes repeatedly privilege a narrow view of treason, according to
which causing harm to a king or other lord counts as treason only if the
defendant acted knowingly and underhandedly and breached a relationship
of faith, love, and trust that overrode other such relations.
Accused of killing Charlemagne’s son Charlot ‘‘knowingly’’ and by
treason, the eponymous hero of Huon de Bordeaux (1225–34) acknowledges
the homicide but denies treason by swearing that he did not know his vic-
tim was Charlot, who was in disguise. In Yvain by Chrétien de Troyes, when
the seneschal of the lady Laudine accuses her maid, Lunete, of betraying her
mistress for Yvain by advising her to marry him, Lunete cannot deny that
her advice caused harm to Laudine, whom Yvain betrayed after marrying
her. But because she gave her advice, not for the purpose of deceiving or
harming Laudine, but in the sincere belief that it would benefit her even
more than it would Yvain, Lunete’s defense is that ‘‘Never have I done or
conceived of treason against my lady.’’
In other literary law cases, the defendant rebuts a charge of betraying
his lord by contending for one of the following reasons that when he know-
ingly and perhaps even underhandedly caused the harm cited by his ac-
cuser, he did not owe fidelity—or at least not overriding fidelity—to the
king or other lord he was accused of betraying. First, he had never sworn
fidelity to him and had no obligation to do so. In a case analyzed below
from Thomas de Kent’s Le roman d’Alexandre (c. 1160), a Persian soldier
who has tried to kill Alexander contests the king’s accusation of treason by
arguing that he did not owe faith to him because he was not one of his
people. A second defense to an accusation of treason is that, although the
accused had sworn fidelity to the lord he was accused of betraying, it was
superseded by the fidelity he owed to another lord. Accordingly, in the non-
cyclic Prose-Lancelot, when a knight of King Claudas accuses another man
of the king called Pharien of betraying the king by harboring the two sons
of Claudas’s mortal enemy, the late king Ban, Pharien acknowledges having
the boys in his custody but insists that because Ban had been his lord, his
obligation to care for Ban’s sons overrode the fidelity he later swore to
Claudas on becoming his man. In Raoul de Cambrai Bernier uses a third
defense when he denies that he killed Raoul by treason because he killed
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him rightfully (a mon droit), having previously defied him justifiably. Fi-
nally, in another case analyzed below, this one from Le roman de Thèbes, a
judge called Othon denies that Daire le Roux betrayed his lord, King
Eteocles of Thebes, by aiding his lord’s enemy, because previously Eteocles
had lost all power over his man Daire by striking him.17
By favorably representing the defenses just mentioned, every literary
trial scene in which treason is debated rejects the broad view of it in favor
of the narrow one, except for Ganelon’s case in the Oxford version of La
chanson de Roland, where the defendant is condemned as a traitor and then
drawn and quartered. Scholars who have studied this famous episode in
isolation from other literary trials have often found reasons for treating its
outcome as a momentously important endorsement of royal and even state
power.18 But one can see it in a different light after considering two other
cases with totally different outcomes, the Persian soldier’s in Le roman
d’Alexandre and the trial of Daire from Le roman de Thèbes.
Initially, the Persian soldier’s attempt on Alexander’s life looks to be a
clear-cut case of treason against the king. The soldier, who belongs to the
army of Alexander’s enemy Darius, plots what Thomas de Kent calls ‘‘fel-
ony’’ and ‘‘high treason.’’ Infiltrating Alexander’s army while disguised as a
Greek, he approaches the king from behind, strikes him in the back with a
lance, but fails even to wound him.19 The king charges the Persian with
striking him shamefully and by treason and says that for this, he will die in
torment. Though acknowledging that he struck Alexander and knowingly
(par le mien escient) tried to kill him, the soldier insists that he violated no
trust by doing so because he was not one of Alexander’s people (ne suy de
vostre gent). Moreover, since he decided to kill Alexander only for the pur-
pose of winning the reward that Darius had promised to anyone who did
so, he did not act, he says, in the manner of a traitor with secret hatred for
his would-be victim.20
At the Persian’s trial, Alexander asks his barons for a judgment on his
appeal that the Persian had shamed and almost killed him. After repeating
his defense, the Persian undertakes to fight a duel to prove that he does not
deserve to be quartered, burned or crucified for attempting to kill the king.
The first baron to speak, Antiochus, offers to fight the Persian to prove that
he was a traitor because he struck Alexander from behind like a hired thug
(cum felon soduiant) and, in the presence of all, had just admitted to com-
passing the king’s death. A second baron, Tholomé, denies that the manner
in which the Persian struck Alexander is evidence of treason. Because the
soldier’s purpose was to liberate his own country from the Greeks and take
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vengeance on his enemy Alexander, he could have used any method of kill-
ing without being judged a traitor and, in fact, had refrained from using
the most odious ones, killing the king in his sleep or poisoning him. To be
sure, the Persian tried to do to Alexander what a fidelis swore not to do or
try to do to his lord, such as cause him shame, death, or other harm. But
he did not owe the king faith and did not even do wrong (mesprision) to
him. Tholomé concludes that Alexander has the power to have him hanged,
burned, or thrown to the dogs and lions, but not the right to do so by the
barons’ judgment. Mark of Rome counters that the Persian’s impersonation
of a Greek soldier made his attack wicked and treasonous. Implicitly identi-
fying treason with lèse-majesté, Mark also declares that Alexander has the
right as well as the power to execute the Persian because the prince’s will
has the force of a judgment. The remaining judges all advise Alexander to
hang the Persian. But the king suddenly reverses himself by endorsing the
arguments made in the Persian’s defense. Praising him for acting boldly,
Alexander rewards him with gold and silver before returning him to the
Persian king under escort.21
In Daire’s trial, as in the Persian soldier’s, the underlying issues are
whether the defendant harmed the king in a manner that was treasonous
and whether he owed faith to him. However, by incorporating an intricate
account of Daire’s alleged treason into a complex story about the downfall
of Thebes, Le roman de Thèbes sets the stage for a debate on treason of re-
markable legal sophistication. Daire commits his act of alleged treason dur-
ing a war between his lord Eteocles, king of Thebes and son of Oedipus,
and Eteocles’s brother Polynices, who, with support from the Thebans’ ene-
mies the Greeks, is trying to capture Thebes. Polynices has the right to the
city under a sworn agreement with his brother to alternate each year as king
of Thebes, but Eteocles has broken this accord by ruling the city for more
than a year and rejecting Polynices’s rightful claim to it. Among Eteocles’s
sureties for the agreement is Daire le Roux, a fidelis of the king’s who com-
mands an important tower near the city for him. Daire is thus caught be-
tween two sworn obligations: to uphold the agreement under which
Polynices has the right to Thebes and to keep faith with his lord Eteocles,
who, however, has perjured himself (and made Daire and the other sureties
perjurers in turn) by breaking the agreement with his brother.
Daire comes under additional pressure to support Polynices against
Eteocles when Polynices captures Daire’s son and agrees to release him only
if Daire surrenders the tower he commands to Polynices’s Greek allies.
Daire fears the shame he will incur by breaking faith with Eteocles, but his
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wife persuades him to do so. She argues that by surrendering the tower to
Polynices, he can secure their son’s release from captivity. Moreover, he can
absolve himself of perjury by upholding his oath as a surety to Eteocles’s
agreement with Polynices and breaking faith with Eteocles, who has vio-
lated the agreement. Daire agrees, but to make sure he has grounds for
breaking with his lord, he devises a plan. At a royal council, Daire aims to
provoke Eteocles’s anger by acknowledging Polynices’s right to rule Thebes,
advising Eteocles to make peace with him and stating that by breaking his
previous agreement with his brother, the king has become a perjurer and
made perjurers of his sureties, Daire included. The plan works. The king
first responds by insulting Daire for trying to liberate his son without pay-
ing ransom. Next, he contemptuously gives Daire permission to do his
worst to him and consents to whatever action Daire might take against him.
Finally, he strikes him.
Fleeing to his house, Daire now thinks he will be in the right if he
turns over the tower he commands to Eteocles’s enemy. After he allows Po-
lynices’s Greek allies to take the tower, however, Eteocles’s forces subse-
quently retake it. They capture Daire and deliver him to the king, who
charges him with treason and, though he wants him executed immediately,
grudgingly allows him a hearing in his court.22 There, Daire contests the
king’s accusation of treason by arguing that Eteocles had wronged him by
striking him unjustifiably and then had explicitly given him leave to do his
worst.23
In the ensuing debate, the judges of Thebes all agree at least superfi-
cially on ‘‘the facts’’ of the case, but argue about their meaning. To show
that Daire committed a great felony for which he should forfeit his life, Itier
maintains that by trying to turn over the tower to Polynices he violated his
oath of fidelity to Eteocles. However, Daire’s lone defender, Othon, notes
that Daire tried to surrender the tower only after Eteocles gave him leave to
do so and told him to do his worst. Sicart contends that Daire could not
justify himself by citing the blow he received from Eteocles, because he had
intentionally provoked the king. Salin adds that because Daire had shamed
the king by calling him a perjurer, he must have been trying to anger the
king, not persuade him. However, Othon interprets Daire’s conduct differ-
ently, arguing that Eteocles had wronged Daire by striking him for loyally
giving him good advice and that Daire was right to call him a perjurer. Yet
another judge, Alis, cites Daire’s twin failures, to defy Eteocles before leav-
ing him or to observe the customary forty-day waiting period before mak-
ing war on him, to show that Daire’s only purpose in advising Eteocles to
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98 Stephen D. White
make peace was to provoke his lord and create a pretext for betraying him.
Again Othon protests, this time arguing that if Daire had tried to follow the
customary procedures just mentioned, Eteocles would have executed him.
Bypassing Othon’s point, Creon maintains that Daire could not justify
his abandonment of Eteocles or the harm he inflicted on him because prior
to taking these actions, he had not protested his lord’s treatment of him or
asked for justice. Even if he had received no justice from the king after forty
days, Creon continues, he would have been entitled to do no more than
leave Eteocles’s service. By seeking vengeance against his lord immediately,
Daire therefore committed a great felony and should lose his life and limbs.
However, Othon contests this entire line of reasoning on the grounds that
a lord who strikes his man loses all rights over him. A blow of this kind, he
declares, is unamendable; the only appropriate redress for it is vengeance
by the sword. Now Eteocles’s mother Jocasta intervenes and persuades him
to make an accord with Daire, who in return is to bear faith to him in the
future and give him his beautiful daughter in marriage. The queen, the nar-
rator interjects, wishes to save Daire from death, and anyone blaming her
for this would be wrong. Daire admits to committing an act of folly but still
denies that he did treason or felony. At the barons’ request, the king returns
Daire’s fief and takes hostages to guarantee his fidelity.24 Though not for-
mally acquitted, Daire is obviously not judged a traitor, as Eteocles obvi-
ously is near the end of the story, when he murders his brother Polynices.
When compared with the other literary treason trials already consid-
ered, particularly Daire’s case, Ganelon’s trial in the Oxford version of La
chanson de Roland stands out because here, for once, a debate about
whether the defendant’s alleged treason was truly treason is resolved by his
condemnation and execution as a traitor. But in the light of the preceding
analysis, the trial cannot plausibly be read in the conventional way as a le-
gally compelling argument for a royalist or statist ideology that legitimated
a broad view of treason as opposed to an archaic ideology of early feudalism
or lineage solidarity that might once have justified Ganelon’s treason as le-
gitimate vengeance. As will become evident, there was nothing archaic
about the arguments that were made or could have been made in Ganelon’s
defense, which were virtually identical to the ones endorsed in other literary
trials dating from the mid-twelfth century, when the Oxford Roland was
probably composed, or later. Moreover, the creator of Ganelon’s trial did
not justify the defendant’s condemnation as a traitor by staging a full-scale
debate on treason that conclusively rejected the narrow view of treason and
validated the broad one. Instead, he legitimated this outcome by means of
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an idiosyncratic rhetorical strategy of inverting and subverting the script

followed in other literary treason trials such as Daire’s.25
At his court in Aix, Charlemagne accuses Ganelon of taking from him
20,000 Franks who were in the rearguard of his army, including his nephew
Roland, Oliver, and the other peers of France, whom Ganelon betrayed for
money.26 The preceding narrative has already provided grounds for this ac-
cusation by describing Ganelon’s pact with the Saracen king Marsile to pro-
cure Roland’s death; the gifts he receives in return; his fulfillment of his part
of the bargain by engineering Roland’s appointment to lead 20,000 Franks
(including the other peers) who make up the rearguard of Charlemagne’s
army; and the execution of the plot by Marsile, whose army ambushes and
massacres the entire rearguard.27 Nevertheless, an early scene in the story
also corroborates the defense made at the trial by Ganelon, who acknowl-
edges causing the harm cited by his accuser but argues that it was not trea-
son against Roland but legitimate vengeance, which he sought after Roland
had condemned him to certain death by nominating him to carry a message
from Charlemagne to Marsile.28 Implicitly invoking the principle that trea-
son must involve both a breach of fidelity and underhanded behavior, Ga-
nelon argues that he could not have betrayed Roland because he openly
challenged him, along with the other peers, in the presence of Charlemagne
and all the Franks. Since he thereby announced both his hatred of Roland
and the other peers and his intention of acting on it by treating them as
enemies, not friends, the harm he caused them involved no breach of trust,
nor did he act out of secret hatred. He simply took vengeance on Roland,
as he said he would.29 This defense carries weight with almost all of the
king’s barons, who acknowledge that Ganelon is no traitor by judging him
capable, if acquitted, of serving Charlemagne ‘‘in faith and love,’’ just as he
had done previously.30
Up to this point, Ganelon’s trial bears a curious resemblance to
Daire’s. With both parties citing events already narrated, the appellant as-
sumes the defendant’s treason in referring to the harm he caused, while the
defendant acknowledges the harm but denies the treason by showing that
his conduct did not meet customary criteria for proving it. A further point
of similarity between Ganelon’s trial and Daire’s is evident when Charle-
magne denounces his barons as traitors for favoring Ganelon’s acquittal,
just as Eteocles, at several points, condemns Othon for defending Daire.
However, the Oxford Roland accords Charlemagne’s denunciation rhetori-
cal force that Le roman de Thèbes denies to Eteocles’s attacks on Othon.
Why? First, because Roland, in contrast to the story of Thebes, has already
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100 Stephen D. White
marked the defendant as the traitor in the story, his treason is already noto-
rious and should be imputed to his duplicitous defense that his treason was
really ‘‘vengeance.’’ The story has also shown that the harm resulting from
Ganelon’s ‘‘vengeance,’’ unlike Daire’s, is totally incommensurable with the
harm he claimed to be avenging. By engineering Roland’s appointment as
leader of Charlemagne’s rearguard, Ganelon seemingly achieves perfectly
balanced retaliation for what Roland did to him, since each has now at-
tempted to send the other to his death. However, it is unthinkable to see
the harm resulting from Ganelon’s pact with Marsile, namely, the ambush
and massacre of 20,000 Franks, as legitimate vengeance for Roland’s wrong
to Ganelon. Finally, by showing that Ganelon achieved his vengeance, not
by aiding mere enemies of his lord, as Daire arguably did, but rather by
conspiring with God’s enemies against God’s chosen people, the Franks, the
poem portrays him as a Judas-like figure incapable of love and fidelity to
any Christian or to God.
For all these reasons, Ganelon’s defense against Charlemagne’s accusa-
tion must be read as sheer sophistry. The same goes for the defense that
could have been made to the accusation of treason against Ganelon that is
later formulated by Thierry, the lone dissenter against the barons’ judgment
to acquit the defendant. When Thierry charges Ganelon, not with betraying
Roland, but with committing treason against Charlemagne and with per-
jury, too, for violating his oath of fidelity to the emperor, the appeal is le-
gally vulnerable to the following defense. Since the preceding narrative
provides ample grounds for arguing that Charlemagne wronged and be-
trayed Ganelon, just as Roland did, by sending him to Marsile’s camp with
no indication that he would avenge him, Thierry’s contention that Ganelon
violated his oath of fidelity to Charlemagne is open to the defense that by
wronging Ganelon the emperor lost all power over him and all claim on his
fidelity. However, the entire story is constructed so as to make this obvious
legal defense unthinkable, as one can see from the fact that modern scholars
hardly ever think of it. Because the poem has already cast Charlemagne in
the role of God’s instrument in wreaking vengeance on all infidels and trai-
tors, it has left no rhetorical or moral space for the mundane legal argument
that Ganelon the traitor, whose treason led to the deaths of thousands of
Christians and who later boasted of it, had no obligation to bear faith to
the Christian emperor of the Franks, who was really a traitor. The best that
Ganelon’s champion Pinabel can do in response to Thierry’s accusation is
to put the lie to it. When Thierry defeats Pinabel, his victory simply con-
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firms what the story has shown all along, while Ganelon’s subsequent death
by drawing and quartering must reveal the truth of his crime.
Though retaining the main outlines of the ordinary literary treason
trial, which shows that a defendant should be acquitted of a plausible but
ultimately unfounded accusation of treason, Ganelon’s trial inverts the
script so as to reach a different outcome, the defendant’s condemnation as
a traitor. Instead of showing in advance of the trial that the appellant is a
traitor (as Eteocles obviously is) and the defendant is honorable or at least
relatively honorable (as Daire is), the author of Roland repeatedly identifies
the defendant Ganelon as a traitor and felon who will commit treason and
treats both appellants, Charlemagne and Thierry, as men of honor who
have God on their side. Instead of casting the one dissenter from the judg-
ment of the king’s barons in the role of the defender of the accused, Roland
makes Thierry the character who argues most persuasively that the defen-
dant committed treason against the king.
Particularly important for the present argument is the poet’s demon-
stration that when Ganelon contests the accusation of treason on grounds
very similar to the ones that defendants and/or their supporters use in other
literary treason trials such as Daire’s to show that they did not commit trea-
son, he does not ultimately prevail, as do the defendants in other literary
treason trials. When Charlemagne’s barons decide, with only Thierry dis-
senting, that Ganelon should go free and ground this award on the implicit
judgment that he is not a traitor (if he were, he could not serve Charle-
magne in faith and love), the author presents in a favorable light the emper-
or’s charge that they have betrayed him, whereas similar charges by kings
such as Eteocles in Daire’s case are ordinarily presented as signs of a king’s
treacherous, tyrannical nature. Finally, the character who presents the most
ingenious legal argument in the case, Thierry, argues not for the defendant’s
acquittal but for condemning him as a traitor, while the person who takes
up the defendant’s cause makes no counter-argument at all beyond calling
Thierry a liar and is soon shown to be a liar himself by God’s judgment.31
Nevertheless, because the author of the Oxford Roland, unlike the cre-
ator of Daire’s trial, can justify the outcome of Ganelon’s trial only by rhe-
torical means and not by force of compelling legal argument, the trial is
best read, not as a powerful statement of a newly ascendant legal ideology,
but as a brilliantly idiosyncratic exercise in the cultural politics of treason
at a time when other poets represented prosecutions for betraying kings
with deep suspicion if not outright disfavor. As an intervention in twelfth-
century debates about the meanings of treason, the Oxford Roland appears
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102 Stephen D. White
to have been a dismal failure, at least among producers of French epics and
romances, who never emulated it. Whatever the Oxford Roland or lost ver-
sions of the poem may have done to establish Ganelon as the archetypal
traitor in French literature, it failed to resolve the ambiguities of treason in
favor of the broad interpretation because it did not subvert the practice of
creating trial scenes that portrayed appeals of treason against the king unfa-
vorably, represented alleged traitors as honorable or at least relatively hon-
orable men, and sometimes depicted kings as well as appellants as traitors.
Although the poem’s purpose in articulating or almost articulating these
arguments against condemning Ganelon as a traitor is to dramatize their
rejection by God, it still documents the possibility of resistance to a broad
view of treason as a violation of the traitor’s oath of fidelity without refer-
ence to questions about the traitor’s motives or his treatment by his lord.
The poem therefore confirms, rather than undercuts, Maitland’s insight
about the ambiguity of treason during the twelfth and early thirteenth cen-
turies because it shows that treason was open to different, politically inter-
ested interpretations, one of them privileging the harm that Ganelon did to
Charlemagne and the other organized around the idea that only harm that
is committed in a certain manner and that constitutes a breach of faith is
treason.

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Chapter 8
Illicit Religion: The Case of Friar Matthew
Grabow, O.P.
John Van Engen
Medieval religion acted inherently as a monopoly. For contem-

poraries this seemed broadly self-evident, a part of the cultural landscape,
the Christian church claiming truth in matters divine and human, the
Roman church authenticity in upholding it. We today may find those who
dissented more interesting, and so seek out evidence of resistance on the
micro level even while conceding the macro. But medieval Christendom
was defined only in part by notions of center and periphery. This was a
socioreligious complex rife with internal rivalries, multilayered and multi-
regional. That sprang from a fundamental reality. Since the Christian reli-
gion laid claim to all, even indirectly to Jews, all had a stake in its definition,
even if all were not equally positioned to compete for its rights and privi-
leges. At nearly every social level, then, what counted as licit or illicit reli-
gion counted enormously, and became contested ever more self-
consciously from the twelfth century onward, be it a university teaching or
a devout practice. Equally contested, or even more, were monopolistic
claims to represent or regulate religion, whether by a bishop, a guild of
masters, a religious order, or a pious society. This chapter explores one such
contestation at the turn of the fifteenth century. The Modern-Day De-
vout—active in the Low Countries from the 1380s, made up of women and
men, laypeople and secular clerics, canons and canonesses—strove to emu-
late anew the early Christian community of Jerusalem, especially in its com-
munity of goods. They established communal households independent of
the formal poverty professed in corporate religious orders.1 They met resis-
tance from local churchmen and aldermen and an inquisitor. One critic, a
Dominican friar, deployed monopolistic claims to declare their religion il-
licit, only to have his own stance finally declared illicit.
Those who formally separated from society by taking vows had
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104 John Van Engen
claimed for centuries to represent religion in its perfection; hence the pro-
fessed were said to enter ‘‘religion’’ and be ‘‘the religious,’’ a wordplay re-
tained in most Continental languages. In a society, however, with nearly all
christened at birth and so obliged by religious duty, church lawyers came
to see things more complexly, suggesting a layered definition, here as it ap-
pears in Antonino of Florence in the mid-fifteenth century, going back at
least to Johannes Andreae in the early fourteenth. Religion referred, they
said, to all who offered up the worship owed the true God, thus all the
christened (totam christianitatem); but more especially those who acted
upon it with deeds, all good Christians (uniuersitatem bonorum christian-
orum); then even more specially the clerical estate, persons so dedicated;
and strictly (strictissimo) those who submitted by vow to a superior and
dedicated themselves wholly to God. They inhabited the estate of religion
(status religionis).2 These categories corresponded to widespread social and
cultural perceptions, namely, of all the baptized, the specially virtuous,
clerics, and the professed, the first two subject to civil law, the last two to
ecclesiastical. But already in the thirteenth century Cardinal Hostiensis rec-
ognized that some laypeople lived more religiously (arctiorem et sanctiorem)
than others, meaning not just more virtuously but in a more religion-like
form—thus widows or hospitalers or recluses, all present in Italian towns.
These too, he opined, might be called ‘‘religious’’ in an extended sense
(largo modo dicitur religiosus).3
In northern Europe ‘‘beguines’’ (meaning in actuality religious women
of varying persuasions and practices) tested this notion, their entire estate
banned c. 1317 in Cum de quibusdam, along with any who ‘‘set up conventi-
cles’’ (Ad nostrum), only to have the ‘‘worthy’’ among them given a reprieve
by Ratio recta in 1318 in the face of large-scale protests. Aided by these con-
fusions in papal law and protected by local patrons, beguines, despite narra-
tive commonplaces to the contrary, persisted throughout the fourteenth
century in hundreds and thousands, 636 houses (!) in Reichstein’s Germany
and more than 200 in Simon’s southern Low Countries (‘‘Belgium’’).4 Two
generations later, between the 1360s and 1410s, a cadre of Dominican in-
quisitors in the German Empire pursued anew groups they reckoned long
since banned, now including women seeking cover as Franciscan tertiaries.5
Allied with bishops, parish rectors, and town aldermen, these friar-inquisi-
tors sometimes gained the upper hand,6 in part a result of mounting dis-
content with ‘‘able-bodied beggars,’’ meaning healthy women (and a few
men) who lived off alms. A new burgher outlook may also have been at
work here, impatient with any not laboring to support themselves. In any
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Illicit Religion: Friar Matthew Grabow 105
case, beguines in several cities, most notably Basel, were placed under
stricter bans.7 At the other end of the Rhine, however, and at the same time,
women and men gathered in astonishing numbers to form new religious
households, what we call the ‘‘Devotio Moderna.’’ By 1410 towns of any size
in the county of Holland, the duchy of Guelders, and the Sticht and Overs-
ticht (territories subject temporally to the bishop of Utrecht) had at least
one house, some several. Here Dominican friars were losing ground. One
of their men, Eylard of Schoeneveld, proceeding against the Devout in the
later 1390s, was blocked by an alliance of Devout supporters, university ju-
rists, and eventually the bishop of Utrecht.8
Friar Matthew Grabow appeared on the scene in the immediate after-
math of his fellow Dominicans’ advances in Basel and failures in Utrecht.
From the convent of Wismar in Saxony, he took up the post of lector (prin-
cipal teacher) at the Dominican house in Groningen around 1410.9 Aware
of his confreres in the upper Rhine, also in possession of materials gener-
ated by their main disputant, Friar John Mulberg, he must have been
shocked by what he found in the Low Countries. In time he penned a tract
to prove these multiplying Devout and tertiary women illicit, as falsely
aping the lifestyle of the professed; laypeople, he argued, could not adopt
true poverty apart from vows. A legal confrontation followed in the same
years that the Lollard and Hussite fights boiled over. The Devout case was
eventually appealed to the Council of Constance, where it drew in European-
wide luminaries such as Jean Gerson and Pierre d’Ailly, and later the Dom-
inican Johannes Nyder. In the end Grabow was himself found in the wrong.
While the broad lines of this story are known, new documents have
emerged,10 and the story is newly reconstructed here, revealing for fifteenth-
century debates about what constituted licit religion.
The town of Groningen, key politically and commercially to the far
north of the Low Countries, was subject temporally to the bishop of
Utrecht. Grabow arrived to find Devout households expanding across the
diocese, including the ‘‘Olde Convent,’’ one of three former beguine houses
in the city, more or less across the street from his convent.11 It had come
under Devout influence early and then moved to tertiary status about
1399.12 Its women obtained a legal advisory from a jurist in Cologne (Gerard
Radink) supporting a right to choose their own ‘‘visitor,’’ presumably to
ally with Devout priests and keep Franciscans at bay.13 In Groningen Gra-
bow proceeded more or less as Mulberg had in Basel, with public argu-
ments, aware that an inquisitorial investigation could not easily be
reopened, yet incensed by what he referred to as the Devout’s ‘‘bad and
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106 John Van Engen
enormous doings.’’ What he saw was converts gathering in communal

households, some as tertiaries, some apart from any vows, forming ‘‘con-
venticles,’’ assuming a kind of habit, choosing superiors, drawing people to
them in a ‘‘pretense of piety,’’ building large houses with lay gifts, entering
them with self-made rites14 —and, though he does not say it, the local
bishop passive or approving and a friar-inquisitor blocked. A trained scho-
lastic and teacher by trade, Friar Matthew wrote a think piece referred to as
a little book (Libellus). According to its incipit he meant to query the issue
in the manner of a schoolman (tantum scolastice inquirendo procedere), a
dense disputation, now gone, that ended with ‘‘through this is evident the
response to the tenth [proposition or objection].’’15 Such tracts were fast
becoming the ordinary way for educated men publicly to pursue contested
issues and policies, as Hobbins has argued.16 With it Friar Matthew may
have hoped to rally others throughout the diocese to his cause. The Devout
saw it as a tough-minded attack and supplied a title, a ‘‘tract against the
brothers and sisters of the third order,’’ a rubric Friar Matthew indignantly
called ‘‘invented.’’17
Friar Matthew thought hard about these communities, in his own
words, and put forward seven principal ‘‘conclusions.’’18 What survive are
twenty-four ‘‘propositions’’ or ‘‘articles’’ excerpted by his Devout adversar-
ies, seventeen subsequently defended by Grabow as more or less his, seven
discounted as their doing.19 The excerpting, and especially their ordering,
he complained, destroyed the inner logic of his case.20 Much later he com-
posed an apologia in which he reconfigured the seventeen sentences into a
précis of his ‘‘seven principal conclusions,’’ our only access to the original
tract on his terms.21 Where Friar Eylard, and Mulberg too, had gone after
these groups legally as in violation of anti-beguine legislation, Grabow at-
tacked them theologically. For him it all turned on socioreligious estates.
He rigorously deduced from vows the legitimacy of religion as an estate,
building on his fellow Dominican Thomas Aquinas. The fundamental
point, Grabow asserted,22 was (⳱ their ‘‘article’’ no. 15) that no one could
licitly and meritoriously, indeed truly, fulfill the counsels of obedience, pov-
erty, and chastity outside professed religion. These were so bound together
by the Saviour, his concluding point (⳱ no. 16), that one (say, chastity or
poverty) could not truly exist apart from the others. With this he intended
to destroy any pretense to ‘‘religion’’ on the part of beguines, tertiaries or
the Devout. Accordingly, while an individual might laudably give away
goods or abstain from sexual intercourse as a ‘‘particular vow,’’ only sworn
religious made a total offering, a true sacrifice of themselves in three com-
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prehensive vows—and only such a total offering constituted true religion.

Grabow may have had tertiaries specially in mind here, for they took a par-
ticular vow of chastity.23 He constructed his case on arguments and texts
taken from Thomas’s quaestio in the Summa on ‘‘what pertains to the estate
of religion,’’ a pithy defense of mendicants written under fire, to face down
the secular clergy’s attempt in the mid-thirteenth century to shut down
friars.24
With the principles of ‘‘religion’’ and ‘‘religious estates’’ in place, Friar
Matthew went on the attack. For a layperson to act in such ways would
constitute no less than sin, indeed a mortal sin, even a form of murder, for
it would cut the person off from carrying out the tasks essential to his or
her estate, namely, bearing children and caring for material needs. It made
a ‘‘lay’’ person (secularis) like a ‘‘religious,’’ thus inherently contradictory.
Like Mulberg at Basel, Grabow also turned on the able-bodied poor, an-
other ‘‘principal conclusion.’’ It was simply heretical to cast off all for Christ
and yet stay in the world. The other of his three main conclusions may be
surmised. One struck at the heart of Devout households: resigning all goods
as a layperson was wrong, even a mortal sin and heretical, because inimical
to the lay estate. That resignation was the key formal act in joining a com-
munal household. But property, he asserted, was ‘‘essentially’’ attached to
the lay estate (⳱ no. 1), an article the Devout listed first; this marker could
not willfully be cast off. Wherefore, a drastic claim (⳱ nos. 5, 6), the pope
could not dispense laypeople from owning property, for it would be com-
parable to dispensing them from sustaining life, thus licensing murder. This
unusual point may have been aimed obliquely at recent papal recognition
of ‘‘tertiaries living a common life’’ in the Chapter of Utrecht, documents
from 1399, 1401, 1402, and 1414.25 The seven articles not acknowledged by
Grabow turned mostly on communal life, which he declared sinful and
even heretical outside sworn religion; these were probably discontented
asides in his original tract.
Friar Matthew completed this little tract about 1414/15 and later
claimed to have lent it to others for reading and discussion, whereupon
someone swiped it (furtiue rapuit) from the room of a learned man. The
Devout tell a different story, in fact two (both written more than a genera-
tion after the events). Johan Busch, the major Devout chronicler and a rea-
sonably well-informed storyteller, has Grabow show it to the parish rector
in Deventer—a fact to which Grabow himself may allude26 —in hopes of
bringing him onto his side and getting him to preach publicly against the
Devout. But this rector handed it on for reading to Godfrey, head of the
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108 John Van Engen
men’s house there (1410–50), who that same night had it unbound, distrib-
uted in pieces for copying, copied, rebound, and returned, their copy then
sent on to the prior of canons at Frenswegen in Bentheim, part of the regu-
lar branch of the movement.27 An in-house chronicle at Zwolle describes
Grabow as a friar of wandering life who publicly preached and wrote
against their estate. Some Devout and their partisans had secured a copy
through mediaries (per interpositas personas), then handed it off to Dirk
(rector of the men’s house, 1410–57), who had a copy made in one night (et
cetera, as above).28 However the tract came to circulate in Devout hands—
Grabow alludes to it as well—this pirating of the text presumed their skill
as professional copyists. It also set the scene for their dragging Friar Mat-
thew into local court, a strategy they had employed successfully fifteen years
earlier against Friar Eylard.
Prior Henry Loder of Frenswegen, a product of the Devout movement
but now with the standing of a canon regular, read the tractate as ‘‘blas-
phemy’’ against their estate. He gathered witnesses and a notary public to
confront Friar Matthew in his convent in Groningen, first of all on author-
ship (suggesting it had circulated as a disputed question without title or
author), and then cited him to episcopal court at Utrecht, pressing for a
judicial sentence of heresy.29 Grabow noted only that he was pulled into the
bishop’s court for heresy. Loder and Grabow appeared together, shouting
charge and countercharge. Friar Matthew, himself not of those parts, as he
put it later, found the climate hostile, the bishop causing him trouble, most
people siding with the Devout and decrying him, a friar and a foreigner. So
he resolved to appeal to a higher level, to pope and council—merely to es-
cape charges, Busch sniped forty years later. Grabow described the move as
submitting his ‘‘conclusions’’ elsewhere for more balanced judgment.30
After the flight of Pope John XXIII on 20 March 1415, and his deposition
on 29 May, however, there was no pope (or rather, two leftover popes of
the Roman and Avignon obediences). The council assembled at Constance
(1414–18) was effectively running the church, Jean Gerson, master and
chancellor from the University of Paris their intellectual leader.
Grabow had lost at the diocesan level (in his mind, as an ‘‘outsider’’)
and would ultimately lose at the conciliar/papal level as well. But that was
not at all clear to either party in 1415/16. A general council of the church
with a fractured or vacant papacy represented an entirely different level of
decision making. Bishop Frederick of Utrecht (1393–1423) had declined to
attend the council, citing age. Grabow pressed his case at Constance as one
petitioning (sollicitator) for a hearing and action.31 In the spirit of a long
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line of Dominican inquisitors, his sollicitatio called repeatedly on council

fathers to banish utterly beguines and beghards, long since condemned by
the church, especially those now hiding as third-order Franciscans. He par-
aphrased papal laws from Cum de quibusdam and Sancta Romana to Sedis
apostolicae (1395) and echoed Mulberg on goods given to the able-bodied
instead of the honest poor. He charged the Devout with deluding simple
people, proffering an appearance of holiness, fogging things over with
claims that their religion, namely tertiaries, was a recognized estate ap-
proved by fathers and popes. So long as this rule and their conventicles
stood, ‘‘infinite heresies’’ spreading among the ‘‘simple’’ would not cease.
Council fathers, he said, must insist on action from local bishops—an indi-
rect allusion to his frustrations in Utrecht. Word of this sollicitatio reached
the Devout roughly at the end of May in 1416. So he must have acted in
early 1416, if not late 1415, given time for news of all this to reach back to
Utrecht.
The Devout learned, by rumor and eyewitness report, that the council
was to air charges against ‘‘people living together outside religion.’’ They
also grasped the threat that it attacked an entire estate, not just individu-
als.32 They assembled seven priors from the regular branch of their move-
ment to attest formally to their own uprightness, a circular stratagem first
deployed in 1395–96. This testimonial they drew up focused on the legiti-
macy of communal life. They spoke at length (five paragraphs) about men’s
households and briefly (one paragraph) about women’s, likely the real ob-
ject of Grabow’s indignation. They noted that the Devout way of life had
been found acceptable by learned masters of law (advisories procured by
the Devout to defend themselves against Friar Eylard in 1397/98), and that
the Modern-Day Devout, rather than fostering heresy, had renewed reli-
gious life in their region. They begged the reformers and luminaries gath-
ered in council not to cut off healthy members of the church when so many
diseased patently existed all about—an appeal that, for all its cleverness, be-
trayed their fear, even panic, that the council might shut down the Devout
as an illicit estate. This document was then sealed by all seven priors, proba-
bly at Windesheim. Three days later Bishop Frederick agreed to ratify the
document with his seal, responding to their petition and affirming that he
had heard of no heresy among these ‘‘devout people dwelling in gather-
ings.’’
Grabow’s petition meanwhile was referred to the commission on mat-
ters of faith, and it was there that the Devout had to respond. We possess
two texts that appear to have addressed Grabow’s sollicitatio, whether in
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110 John Van Engen
committee or full council. One may have come from Master John of Ga-
lecop, a Paris-trained master of arts and theology sent by Bishop Frederick
to represent him at council in 1417, later an important figure in the tertiary
movement.33 This person, himself not a canon or prior or Devout, was inti-
mately familiar with the Low Countries and Bishop Frederick and under-
stood Grabow’s attack as aimed at an entire ‘‘estate.’’ He undertook to
describe for the council ‘‘many and large congregations’’ living holy lives
without vows in the Low Countries, so many that housing could hardly be
found, and pleaded rhetorically for sense and good judgment in the face of
this most iniquitous petitioner.34 A second person spoke against Grabow,
first offering a bit of gossip, that his petition had arisen at the bidding of
no prelates or priests but of ‘‘private individuals’’ (perhaps hostile alder-
men) with ‘‘hopes’’ (presumably of turning the local tide against the De-
vout).35 He noted that ‘‘good and bad might be found in all estates’’ and
called the sollicitatio itself poisonous and wildly extreme. A Parisian master
named William of Lochem, later pastor of the main parish in Deventer and
a friend to the Devout, served as the bishop’s administrative official and
may have been responsible for this intervention.
The matter was referred to the committee on faith, along with still
more supporting materials, and then things stalled out, in the end for nearly
two years. Grabow complained that even though he had leveled charges at
no specific person he was required to stay in Constance should they wish
him to appear in person. Reduced to ‘‘extreme poverty,’’ never called upon,
he finally left, thinking the council itself would never end. In November
1417 Martin V was elected and enthroned, ending the schism, and Grabow
petitioned to have his case entrusted to a cardinal for action and decision,
the pope assigning it to the cardinal of Verona, Angelus Barbadicus. Some-
one from the Devout side, possibly Master William, likewise now petitioned
for a decision. As he presented the story, Friar Matthew had already fled
twice, once from Bishop Frederick when turning to the council, again when
he left the council in secret. This petitioner treated the entire matter now
as a case against the friar (reversing the original situation and the fears it
had engendered), the friar himself in need of punishment—this too then
referred to the same cardinal and commission.36 In sum, Grabow had peti-
tioned the council to banish the beguine-Devout-tertiary estate as illicit and
fomenting heresy; the Devout and their partisans now charged that his Li-
bellus and its conclusions were theologically illicit. Master William, in
Busch’s telling, sought judgment against Friar Matthew for ‘‘heresy.’’37
The official managing the commission for the cardinal, a Master Olaf
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Jacobi, had at his disposal various reports, texts, and assertions (inquisiti-
ones, positiones, et articulos facto realiter et in scriptis). From the Devout side,
Evert Swane (the fourth named in their delegation) presented testimonials,
privileges, and juridical opinions that the Devout had mustered over the
past twenty years, with a demand now that Friar Matthew be made to speak
to them.38 The twenty-four ‘‘articles’’ excerpted from the Libellus were like-
wise in play, whether drawn up initially for the episcopal court in Utrecht,
or as part of a Devout dossier, or after November 1417. Grabow was asked
to respond under oath to these ‘‘positions and articles,’’ the sentences ex-
cerpted from his ‘‘little book.’’39 He did so between December 1417 and
March 1418, summarizing his original Libellus by way of an expositio of
those seventeen articles he admitted as his own (presented above).40 Master
Olaf then asked others for opinions on these articles and the expositio, all
examined as a ‘‘matter of faith,’’ Grabow’s Libellus included, though the
consultants seem to have had little access to it. He also asked how they
should proceed, perhaps reflecting all the charges and countercharges that
had gone on for two years. In the end thirteen masters of theology or law
wrote advisories, primarily on the twenty-four excerpted articles.
Jean Gerson’s opinion, originally written in his own hand at Con-
stance, was dated 3 April 1418. By then he had already seen d’Ailly’s and
concurred with it41—thus placing in March or earlier Master Olaf’s injunc-
tion and Grabow’s expositio. D’Ailly, a former chancellor at the university
of Paris, was striking in his advice on procedure. The cardinal should con-
voke all masters of theology present at council to hold a free and open dis-
cussion, to learn from one another and determine what here conformed to
Scripture, this matter to be settled not in the dark and by individuals but
in the light and by all. That was how he handled ‘‘matters of faith’’ assigned
to him at council, he says42 —a striking instance of free university debate
appropriated as the model for conciliar debate on issues of faith. An un-
known scribe at Deventer noted later that the matter was discussed in full
session with arguments heard on both sides (a claim we cannot verify).43
D’Ailly himself reacted briefly and negatively to Grabow, finding it scandal-
ous and perverse to say that laypeople could not live rightly without owner-
ship—the article the Devout had cunningly put first in their list of excerpts.
In the cardinal’s opinion the book itself should be burnt, with the fate of
its author left to jurists44 —a harsher side of university theologians!
Gerson’s proved the tone-setting opinion. He argued that the only ‘‘re-
ligion’’ properly speaking was that which Christ had observed, the religio
christiana. This Christian religion (the implied contrast here was with ‘‘Ben-
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112 John Van Engen
edictine’’ or ‘‘Franciscan’’ or ‘‘Dominican’’ religion) did not require the

counsels of perfection (otherwise these would have been given as com-
mands). Moreover, this religion could be observed perfectly apart from
vows, as the apostles and disciples did in the early church, many of whom
were married or had property; in short, it required no ‘‘added-on’’ or
‘‘made-up’’ religion (religiones facticias). Gerson further held that ‘‘made-
up religions’’ were improperly and arrogantly called an ‘‘estate of perfec-
tion,’’ since they were, following Thomas himself, only ‘‘ways’’ or ‘‘instru-
ments’’ toward perfection. Indeed popes, cardinals, and prelates could also
‘‘perfectly’’ observe this ‘‘Christian religion’’ apart from any vows. Gerson
amplified on Thomas, who had tactfully placed prelates as well in an ‘‘estate
of perfection.’’ But he penned in effect a lengthy diatribe against Grabow
and broadly defended a religion more foundational than orders.45 A secular
priest, the writer of devotional treatises in French for women, he repudiated
the monopoly claim on religion of the professed, particularly of mendi-
cants. This redefinition, ironically, was something Wyclif had argued for as
well, and in much the same way.46 Gerson and Wyclif each made the reli-
gion exemplified by Christ and the Jerusalem community foundational and
that of orders secondary, the first thus open to all, though bearing tones
associated with the second. Gerson’s move, and Wyclif’s too, represented
in part the revenge or return of the secular clergy, on behalf of the whole
Christian people, over against the centuries-old overweening claims of the
professed, especially mendicants.
Eleven other masters were consulted for advice, their names and opin-
ions not preserved as such. The deliberations, together with the advisories,
turned decidedly against Grabow, finding his propositions heretical or bra-
zen.47 The advocate for the Devout thereupon petitioned the cardinal to de-
clare the tractate ‘‘in error’’ as well as ‘‘scandalous’’ and to be burned, and
Friar Matthew himself imprisoned until he returned to the faith and his
senses, also banned from any preaching in the province of Cologne and
diocese of Utrecht.48 If this were accepted, the tables would be utterly
turned: from banning the Devout way of life to banning Friar Matthew and
his book. In August the cardinal died, and the pope then referred the matter
first to one and then another cardinal, the matter going into limbo for an-
other nine months. By then the papal court had moved to Florence, where
the matter was definitively settled on 26 May 1419. Both Master Olaf, advo-
cate of the commission, and Friar Matthew appeared before Cardinal An-
thonius of Acquileia, who referred to Grabow, interestingly, as someone of
good reputation but uncommon stubbornness, unwilling to take advice.
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The cardinal claims to have reviewed all the material generated by this case,
a ‘‘large mass’’ of legal, theological, and ecclesiastical opinion.49 Cardinal
Anthonius found for Master Olaf, the commission’s advocate, and against
Friar Matthew. He declared the book contrary to Scripture and good prac-
tice, quite particularly the seventeen conclusions, the core arguments from
his ‘‘little book’’ originally drafted in Groningen. The cardinal pronounced
as his own, and now the final judgment, that recommended by the advocate
for the Devout, namely, the burning of the book and incarceration of the
friar. A subsequent report, found in Devout materials, claims that Grabow
died in prison in Rome two years later, never released, never relenting. His
passionate rejection of tertiaries and communal Devout households cost
him his liberty and in a sense his life.
For the Devout, what began as a threat of closure ended in affirmation,
or so they chose to remember it. Its key documents were copied out for
them by a notary public from the diocese of Münster present at the final
proceedings.50 They kept copies of the impeached articles and Gerson’s ad-
visory as well, and these reputedly were to be found in every household.51
More than a generation later an apologist, also from Deventer, cited this
controversy as decisive for their movement.52 For the Modern-Day Devout
the council’s ruling against Grabow was taken as public authorization.
Transmission of this material outside their communities, however, was vir-
tually nonexistent. For the theologians and jurists who dealt with this mat-
ter at Constance, it turned primarily on a Dominican friar whose opinions
they judged erroneous and extreme, only secondarily on the Modern-Day
Devout or tertiaries, about whom some may have had their own worries.
Grabow, though standing in a long line of Dominican critics of beguines
and tertiaries, was judged to have gone too far with his theological rationale
for the wholesale elimination of their socioreligious estate.
To understand how it went too far we need to recognize first that the
understanding of religion—medieval society’s first estate, those privileged
here and hereafter by vowing the counsels of perfection—underwent steady
rethinking in the later Middle Ages. Friar Matthew Grabow’s views touched
a raw nerve in the 1410s–20s. Observants, Lollards, Hussites, and anti-men-
dicants—not to say the Devout—all vied to say what religion was or was
not. Gerson returned to it explicitly five years later in a work called De per-
fectione cordis. In Dominican ranks, Johan Nyder, influential at the Council
of Basel, himself active in towns with large nonprofessed groups (including
Basel), fretted about the positions taken by his confreres John Mulberg and
Matthew Grabow. He sought to think through for himself, as he put it in
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114 John Van Engen
the title of one work, ‘‘the practices of laypeople living as religious’’ (De
secularium religionibus).53 He tackled first, about 1433, the issues raised by
Mulberg, namely, whether there was a ‘‘perfect poverty observed by lay-
people’’ (De paupertate perfecta secularium). Nyder tried to find a way be-
tween, as he put it, ‘‘religious persecutors’’ of poverty on the one hand and
able-bodied beggars on the other, those people who abused the notion itself
and their ‘‘republics’’ (towns).54 He concluded this unpublished tract by re-
viewing—scholars have not yet noted this—the Grabow case in his last two
books (19, 20), offering a summary of the thirteen advisories delivered at
Constance. Nyder concurred in the condemnation of Grabow (his con-
frere), presenting first (19) the ‘‘general principles’’ emerging from the con-
troversy, then (20), brief summaries of objections made to each of the
articles excerpted from the original Libellus. Nyder looked back on the affair
as very troubled (notabilis difficultas) but insisted, against Grabow, that a
person could in fact observe or even vow one or all three counsels while
remaining in the world.55 Moreover, we learn, of the other eleven masters
offering opinions, some were mendicants, like Nyder himself. So the re-
sponse had not divided along the lines of rivalries between orders (as often
happened).
The theologians and lawyers at Constance, as summarized by Nyder,
reduced the distinctions to two, a religion that embraced everyone in the
Christian church, perfect in itself as ‘‘Christian religion,’’ and a religion by
which persons bound themselves to the estate of perfection through vows.
Grabow, in trying to avoid one problem, ‘‘the invention of new religions
and a pullulation of new sects,’’ had fallen into another, denying that the
counsels of perfection could be vowed or kept in any way outside professed
orders. As for the ‘‘great fuss’’ over practicing poverty, the early church in
Acts 4:32 spoke directly and definitively to this. For d’Ailly, a secular priest,
the Jerusalem community was made up of people unbound by vows keep-
ing a common life. Indeed, the consultants repeatedly cited the primitive
church to refute Grabow, something medieval theologians and lawyers gen-
erally did not spend a great deal of time thinking about. But the Devout
had cited it repeatedly as their point of departure, and this entered the con-
sultants’ thinking. Beyond Christ they noted Alexias, an unusual choice but
one the Devout had also cited in their apologetic works. In sum, the pro-
fessed could not claim absolute ownership of the Jerusalem paradigm or
indeed a community of goods. The Devout in effect forced a broad rethink-
ing of what was entailed by the notion of religion, as Wyclif had tried in his
way to do a generation earlier.
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In general, though, these responses tell us more about the responders,

or their reaction to Grabow, than about the Devout. To say that property
was ‘‘essentially attached’’ to the lay estate was, in the minds of the council’s
theologians and lawyers, to risk Wycliffite heresy. To make property an es-
sential marker of the lay estate could provide a ‘‘subversive’’ opening for
disendowment, the church too, they said, being ‘‘divinely tied to property.’’
To say that it was a deadly sin for a layperson not to own property, or to
give it all up, was, if not patent nonsense, to fly in the face of the Jerusalem
community. To hold that persons could not empty themselves of this sup-
posed essential attribute (laypeople ⳱ property) without committing
deadly sin was to contradict Christ, who emptied himself of his godhead to
become man. Many—Christ’s injunction to the rich young man, the Jeru-
salem community, Alexias, Francis—had sworn off all goods without mak-
ing a formal profession of religion. And to say that the pope could not
dispense from lay ownership was to contradict Peter’s condemnation of
Ananias and Saphira. Finally, to call it tantamount to murder for a layper-
son voluntarily to give up his or her subsistence failed to recognize that
people lived decently, often in community, from the work of their hands,
also that Christ did not say ‘‘sit in a religious cloister’’ but go out into the
world (Matt. 28). As for the whole series of propositions to the effect that
the counsels of perfection could be kept only under vow, this went against
Christ’s own practice. It confused the second definition of religion (the pro-
fessed) with the first (all those following the way of Christ), the latter in-
cluding his mother and the apostles. These were strong assertions, directed
against Grabow’s claims, in effect elicited by the Devout.
At issue were groups of ‘‘laypeople living as religious’’ and the resis-
tance they met from privileged professed who made monopolistic claims to
religion and the estate of the perfect. It does not go too far, in my judgment,
to say that the Grabow affair drove Nyder, himself an Observant Domini-
can, to start thinking about the issues, which then yielded a second (also
unpublished) work, reviewing eight distinct groups beginning with the De-
vout and tertiaries.56 The basic issue unsettled people, and not just friars:
what were they to make of beguines, tertiaries, Devout, recluses, hermits,
secular canonesses, and all the rest? Were they lay or clergy? Secular or reli-
gious? Under civil or ecclesiastical law? Licit or illicit? Grabow, representing
the fervor of a Dominican inquisitorial corps suspicious of all nonprofessed
groups claiming religion, tried to formulate the objection theologically
where earlier confreres had mostly presented themselves as simply enforc-
ing papal legislation. In stubbornly defending an utterly exclusive claim for
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116 John Van Engen
religion and the counsels of perfection, along with an equally extreme

definition of the lay estate as necessarily propertied and properly married,
he in a sense pushed the socioreligious system to its definitional breaking
point.
In a world that aligned privilege and social estate with degrees of reli-
gious perfection, Grabow’s defense potentially threatened the received so-
cial order just as disconcertingly as households of beguines or tertiaries or
indeed Lollards claiming true religion. His stance provoked a severe reac-
tion from Gerson and d’Ailly, partly driven by secular resentment of the
professed and their privileged claims, but negative reactions as well from
eleven other university masters, and then Nyder a decade later. Its extremity
in a sense provoked clarity, or new attempts at clarity. They looked for ways
(Nyder by way of canon law) to include and even sanction ‘‘laypeople living
as religious,’’ to see them as embodying licit, not illicit, forms of religion,
as Gerson and Wyclif in their different ways both argued. Such ‘‘people in
the world living as religious,’’ the Devout argued, not necessarily followers
of Dominic, lived what Christ and the Jerusalem community instituted;
they too, not the formally professed, embodied what Alexias and Marie
d’Oignies and Francis represented. Most of the consultants, and Nyder’s
own tract, did not go that far. But on one point they agreed: Friar Matthew
Grabow’s vision of religion was illicit—even if it represented in fact only an
extreme theological rendering of religious attitudes and social outlooks that
had largely dominated medieval life.

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Chapter 9
Marriage, Concubinage, and the Law
Ruth Mazo Karras
It took modern American society from the late 1960s to the turn
of the millennium to come up with a term for the person with whom one
lives outside marriage, finally settling on ‘‘partner.’’ Medieval society, on
the other hand, did have a term: the woman in such a relationship was a
concubina, the man a concubinarius. Medieval society acknowledged these
people’s existence and had a known category into which to fit them, even
if it did not encourage such unions. Unlike the corresponding relationship
in the late twentieth century, the union had a legal status, albeit a complex
one. Also unlike the comparable modern relationship, the medieval one was
inherently imbalanced in terms of gender. Often the two parties were of
different social classes, the man higher; even when they were of the same
class, the relationship marked the woman much more than it did the man.
Concubinage was a legally recognized status in Roman law. Over the
course of the Middle Ages the term underwent a number of semantic shifts,
but the technical definition from Roman law never entirely disappeared and
was revived by jurists in the later Middle Ages. The status of the concubine
can thus serve as a case study of how the application of Roman law inter-
acted in complex ways with medieval social structures that had changed a
good deal since antiquity.
The concubine of Roman law was a woman attached to an unmarried
man by a bond that was less than that of marriage, yet not just a casual
union.1 A variety of literary and other texts from the Republic differentiated
the concubine from the prostitute or loose woman. As the jurist Paulus (fl.
c. 210 c.e.), excerpted in the Digest, explained, a woman who ‘‘lived with a
man although she was not a wife’’ was once called a pellex but was now (in
Paulus’s time) called amica or ‘‘a bit more honorably’’ concubina; he cited
Granius Flaccus (mid-first century b.c.e.) stating that in the common par-
lance of his time pellex meant a woman who had sexual relations with a
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118 Ruth Mazo Karras
married man but formerly was used for a woman ‘‘who is in a man’s home
in place of a wife, without marriage,’’ following Greek usage.2 Aelius Marci-
anus (early third century c.e.) recognized concubinage as a legal institution
in his discussion of the Lex Iulia de adulteriis coercendis of 18 c.e.: ‘‘Nor does
he commit adultery by concubinage, for since concubinage takes its name
from the laws, it is not punished by laws.’’3 Modestinus (fl. c. 250) similarly
excluded concubinage from the category of stuprum punishable under that
law: ‘‘He commits stuprum who keeps a free woman for intercourse but not
in marriage, except a concubine.’’4
A man who took a concubine might be legally unable to marry her
because marriages between people of different social classes were forbidden
under the Lex Julia et Papia Poppaea (9 c.e.); or he might simply not wish
to. Where a marriage between the parties would have been licit, the distinc-
tion between wife and concubine was basically one of the man’s intent and
the way they lived their lives together.5 If marital intent were lacking, the
woman was a concubine and received few of the rights of a wife, although
she might be subject to punishment for adultery if she were unfaithful.6
In Rome the concubine could be either freeborn or freed, although it
was expected that the concubine of a free man would often be a freed-
woman, whom a senator or the son of a senator could not legally marry,
and whom other elite free men might hesitate to marry as well.7 If a man
wanted to have a respectable freeborn woman as a concubine, the relation-
ship had to be stated before witnesses; in other words, a freedwoman part-
ner might be assumed to be a concubine, but a freewoman was assumed to
be either a wife or a whore unless formally noted otherwise.8 Roman sol-
diers, before the year 197, were also not permitted to marry, but the women
with whom they formed partnerships were not often called concubinae. Sara
Elise Phang argues that these unions, although not valid conubium, differed
from concubinage because marital intent was present: people understood
them as marriages, and children, albeit illegitimate, were an important part
of the union.9
Roman law was quite clear that the concubine was in place of a wife
and that the extramarital partner of a married man did not rise to the status
of a concubine. This distinction, however, was lost in the early Middle Ages.
It is by no means clear what constituted formal marriage among the pre-
Christian ‘‘barbarian’’ peoples, but it is clear that the newly Christian
Franks did not necessarily practice monogamy. Gregory of Tours, for exam-
ple, refers to kings who had uxores and concubinae, but there could be more
than one uxor at a time, or an uxor and a concubina at the same time.10
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Marriage, Concubinage, and the Law 119
Gregory’s distinction is not that a man can have either a concubine or a

wife, nor that a man can have only one wife but more than one concubine;
the distinction is between free women, who could be wives, and unfree
women, who were concubines.11
Over the course of the early Middle Ages the church came up with
different rules to determine who could be considered a wife and who a con-
cubine. The distinction had to do primarily with the payment of a dos; the
notion of the formation of marriage by words of consent between the par-
ties alone was a later (twelfth-century) development. The term ‘‘concubine’’
thus came to mean any woman who had not been married with appropriate
publicity, including a dowry; the term did not have the same specificity as
in ancient Rome. The Council of Mainz in 852 declared that a concubine
with no contract of betrothal was not a wife: ‘‘If anyone has a concubine
who was not legitimately betrothed, and afterwards marries a girl betrothed
according to the rite, having put aside the concubine, let him have her
whom he legitimately betrothed’’12 —the Annales Bertiniani, for example,
called Charles the Bald’s second wife Richildis a concubine until he held a
betrothal ceremony and paid a dos. In this case it is clear that he did intend
her to be his wife, and she was considered a concubine not because of his
intent but because there had been no official ceremony.13 Hincmar of
Reims, in the famous divorce case of Lothar and his queen Teutberga, called
Lothar’s previous partner Waldrada a concubine—not a good indication of
Lothar’s intent, marital or otherwise, but an indication that the term no
longer referred to slaves or women of low status (Waldrada was from a
noble family).14
In the high to late Middle Ages the term ‘‘concubine’’ developed two
basic strands of meaning. It could be used for any woman who was not a
wife who lived in domestic partnership with a man, or even who was ‘‘kept’’
by a man with whom she did not live. The partners of priests, notably, fell
into this category. In this sense the term was used fairly loosely, in a variety
of textual genres. For example, the exempla of Jacques de Vitry, in the thir-
teenth century, refer to priests’ concubines.15 A chronicler could use the
term to refer to the fourteenth-century English magnate John of Gaunt’s
partner Katherine Swynford, with whom he had several children during his
second wife’s lifetime (and whom he married after his wife’s death); it ap-
pears in this sense, as the partner of a married man, in fifteenth-century
French letters of remission.16 The partner of a priest could be called a con-
cubine not only in common parlance but also in a legal context, for exam-
ple, in the records of church courts that punished these relationships.17
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Other terms could also be used with the same meanings: for example, a
woman in a relationship with a priest could be called a meretrix (whore or
prostitute), or focaria (hearth-mate).18
But ‘‘concubine’’ could also be used in a more specific and technical
sense. Some jurisdictions recognized concubinage as an official status, giv-
ing the concubine and her children some subset of the rights of a wife and
legitimate children. Canon law also gave concubines some rights, Gratian
holding that concubinage involves conjugal intent (maritalis affectio) but
no legal instruments.19 Subsequent canonists followed him in treating con-
cubinage as an inferior form of marriage, one that needed to be remedied
by regularizing the union. The consensual theory of marriage meant that if
marital intent existed, then the union was a marriage, even if it was called
concubinage under the civil law because it involved parties of differing
status. Yet, as James Brundage points out, ‘‘At the same time, however, the
canonists also continued to use the term concubinage in the sense of a
temporary, non-marital union. The canonists’ ambivalent terminology in
dealing with concubinage was rooted in their even more fundamental am-
bivalence about the morality of sexual relations.’’20 Since a priest and his
partner could not legally marry, it was not possible for them to have marital
intent, and thus not possible for her to be a concubine in the stricter sense.
We cannot assume that every time someone used the term, even within a
legal context, it referred to a specific legal status, nor can we assume that
every time it meant to call into question the woman’s sexual honor. Often,
however, particularly in Italian towns, the term would have carried both
sets of connotations.
There were a variety of reasons why medieval people would have
formed long-term domestic partnerships that might have been labeled as
concubinage in the looser sense. One or both partners may have been mar-
ried to someone else. Particularly among the aristocracy, men who married
for reasons of politics and property often had other relationships, without
leaving their wives; these, of course, tended to be with women of lower so-
cial status. Sometimes these relationships were for political reasons as well,
for example to ensure the loyalty of the subordinate whose female relative
was involved; at other times they were matters of personal preference.21
However, many of the unions between partners who could not legally
marry must have been between people of similar social standing. In a legal
system in which marriage was indissoluble and even the worst of marital
abuses led only to a legal separation and not to the dissolution of the mar-
riage,22 there would have been a number of people who were legally married
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to someone with whom they no longer lived. If these people formed subse-
quent unions it would technically have been adultery, although they might
remarry elsewhere without anyone knowing. It could as easily be the
woman as the man who was in a dysfunctional marriage, although it may
be that the woman would come in for more opprobrium than the man for
leaving it. Nor could people of different religions legally marry, although
we do not know how many people were in this situation.
The evidentiary situation is a bit better for priests living in domestic
partnerships. It is not often possible to know whether the numerous forni-
cating priests in ecclesiastical records represent casual encounters or quasi-
marriages.23 However, an examination by Ludwig Schmugge of 37,916 dis-
pensations from church rules against the ordination of bastards turned up
a number of siblings who were children of a priest by the same woman,
indicating an ongoing relationship.24 Frequent denunciations, from the pul-
pit and elsewhere, of priests’ concubines indicate that these unions were
quite common.25 A stable relationship with a priest with a steady income
might well have been appealing to a woman. Although defamation cases
record the use of ‘‘priest’s whore’’ as a term for such women, these partner-
ships were common enough to indicate that they must have been widely if
not universally accepted.
Another set of nonmarital unions involved people who could legally
have married but chose not to. These situations often involved men who
married late in life (in Italian towns, for example, men tended to marry in
their thirties) and prior to marriage formed a relationship with a woman
they did not intend to marry. A widower might decide he had enough legiti-
mate children already and choose to form a looser union rather than re-
marry.26 The Florentine merchant Gregorio Dati had a son with a Tartar
slave, a year and a half after the death of his first wife and a year and a half
before he married his second.27 The unions of this sort that have left a trace
in the sources tend to be those involving elite men and women of lower
standing. However, there may also have been a great many long-term rela-
tionships between partners of roughly comparable standing (low in both
cases), who chose not to marry because they preferred flexibility or because
they could not afford the obligations that went with the commitment.28 For
the most part these unions seem not to have been experimental marriages.29
Because they were not based on a legal contract, however, these appear in
court records only when one party was claiming that the union was actually
a marriage. If both parties were content with a less formalized relationship,
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it might never appear in our sources, unless the partners were disciplined
by the church courts for it.
When these unions do find their way into the sources, we can some-
times see how jurists thought about these unions and how they reconciled
the rules inherited from Roman law with the changed circumstances of a
gender system constructed quite differently under Christian influence. Con-
silia written by eminent civil lawyers, which included references to Roman
law, other jurists, and occasionally canon law, provide a way into elite un-
derstandings of the position of the concubine. Some of the consilia were
written for hypothetical cases (often marked by stereotypical names used in
them; Titius was their equivalent of our John Doe). Some are on abstract
points of the law and not related to specific cases. Many if not most, how-
ever, seem to have been written in response to actual cases. Jurists were
asked to consult, usually by a judge, sometimes by one of the parties to a
case (a consilium does not normally state who retained the author).
The consilia were consultative opinions, originally not binding, al-
though there was a tendency for them to become so;30 still, even if binding
in a particular case, they were later cited as authoritative but not as prece-
dential. Civil law did not rely on precedent as English common law did;
rather, the opinions of legal authors counted to give a certain weight of
consistency and historical tradition. Each medieval jurisdiction had its own
law (ius proprium), but civil law and its traditions were crucially important
to the legal system throughout much of southern Europe and the German-
speaking regions, and very influential elsewhere.31 The ius commune, the set
of legal traditions common to much of Europe, included both canon and
civil law. Marriage was within the realm of the canon law, but many aspects
of inheritance were in the realm of civil law. Civilians were not reticent
about commenting on issues of canon law when they came up on the
course of a case.
I begin with the following question posed in a consilium of the French
jurist Gui Pape (Guido Papa, c. 1402–87):
Dom. John Comberius, a priest, left Antonia, his ancilla and concubine, 100 florins,
and many other bequests. He left Hugh, the son of the said Antonia, his son, food
and clothing until the twenty-fifth year of his age. Master Hugh Comberius, the
brother and heir of the said Dom. John Comberius, claims that the said Antonia
was the concubine of the said testator and thus the legacy made to her is not valid.
And further, with regard to the son of the said Antonia, the said heir claims that
this son is a spurious son of the said Dom. John, the testator; in response, it is said
that even if the said Antonia was the concubine of the said Dom. John, the testator,
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still, three years before his death, he was the compater [fellow godparent] of the said
Antonia his concubine, since he held at the sacred font the said Hugh, son of the
said Antonia. Now it is asked whether the legacies made to the said Antonia and
her son are valid and should be given effect.32
There are a number of interesting features of this case. It is quite typi-

cal of the kinds of cases involving quasimarital unions that are likely to find
their way into the legal records, because it involves the status of the off-
spring of the union. In civil law jurisdictions, a distinction was made be-
tween two sorts of illegitimate children, the natural and the spurious.
Natural children were born to parents who could have been married to each
other, while spurii were born from incestuous, adulterous, or other forbid-
den relationships. Spurii could not be legitimated and therefore did not
have even the possibility of inheritance from the father.33 In practice, of
course, many clerics and other fathers of spurii did give legacies or inter
vivos gifts to their children; if the heirs challenged the bequest, however,
the matter might be complicated. The case of Hugh Comberius, son of the
concubine Antonia, depends on whether he was a filius spurius; in theory,
as his parents could not marry because of to his father’s clerical orders, it
would seem that he would have been.
Hugh’s mother Antonia was termed a concubine; as discussed above,
in its looser sense this was a common term for the partner of a priest, but
a priest could not have a concubine in the stricter sense. The civilian jurists
commonly accepted this stricter meaning: ‘‘Concubinage is correctly said
to be that which exists between an unmarried man and an unmarried
woman; for since concubinage takes its name by law . . . that cannot be
called concubinage which is prohibited and punished by law.’’34 Yet the
term could also be used by the civilians for couples who could not marry,
referring to the concubine of a married man or of a priest.35
The statement of the facts of the case also called Antonia an ancilla. It
is not clear exactly what Gui Pape meant by this term. In Italy, where he
had studied law at Pavia and Turin, it would have meant ‘‘slave’’ at the
time.36 However, he more likely wrote this consilium when he was living in
the Dauphiné from 1430 to 1487, and there, where slavery was not as com-
mon, it more likely meant ‘‘servant.’’37 It is not clear from the consilium
where the parties were located; no particular jurisdiction is mentioned for
the legal points involved. But her personal status as enslaved or free does
not come up at all in the consilium.
According to some of the other jurists Gui might have cited, her status
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should have mattered. A servant and more especially a slave, even if she did
live in the home and had a sexual relationship with the master, was not
legally considered a concubine in Florence.38 Had Antonia been a slave, her
sons could have been considered spurious for that reason. Classical Roman
law held that the children of a slave woman are slaves. Yet Sally McKee has
recently shown that in practice, first in Crete and by the beginning of the
fifteenth century in most of Italy, the children of slave women who were
acknowledged by their free fathers were frequently legitimated (implying
that a prior step of manumission was not necessary, that they were already
free).39
It was not only slave status, though, that could put a stain on the status
of Hugh, son of John Comberius: even had his mother been a free servant,
the law might have had a problem with legitimating him. The jurist Angelo
degli Ubaldi (1323–1400), who spent most of his career in Perugia but the
last several decades of his life in Florence, wrote that the children of servants
were not blood relatives:
There are two types of natural children, whom we call bastards. Some are conceived
from serving maids [fantolastris] who daily run about and live in different places . . .
those conceived in such a way cannot point to a father, and consequently neither a
paternal grandfather nor a paternal grandmother. Hence laws and statutes that
speak of children or grandchildren do not include such natural children . . . and
such natural children are not said to be of the household, nor of the blood, nor of
the agnatic patrimony.40
Bartolo de Sassoferrato (1314–57) held that anyone acknowledged as a son

should be considered legitimate unless the father specifically calls him ‘‘nat-
ural,’’ except the child of a servant: ‘‘for example if some noble or other
honorable citizen should join with a woman who served him or another,
by those words [naming him in a will] the son cannot say he is legitimate;
because marriage cannot take place with that woman, at least honorably.’’41
Franciscus Curtius the younger (d. 1533) followed Bartolo’s argument, add-
ing that those children who can be legitimated by subsequent matrimony
‘‘are born of a concubine, kept in the manner of a concubine with marital
affection, and with whom matrimony could be contracted according to
good civic customs, such that such a man contracting matrimony would
not contract it with a woman who is unseemly and of bad reputation and
of low condition.’’42 Thus the category of those with whom legal marriage
could take place, those women who could be considered concubines in the
narrower sense and who could give birth to ‘‘natural’’ children, is narrowed
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even more than required by the canon law strictures on incest and indissol-
ubility of marriage.
Other jurists, however, disagreed: Francesco Accolti (Franciscus de Ar-
etio, 1416/17–1488) wrote that a female slave or servant (ancilla sive serva or
ancilla vel sclava) could legally be her master’s concubine, as long as she was
called by that term and lived in his home. Her children would then not be
considered spurious.43 Benedictus Capra (Benedictus de Benedictis of Peru-
gia, 1390s–1470) argued that a woman could be a concubine who could not
be a wife. A certain Renodellus had instituted as his heir a woman, Jaco-
butia, whom he ‘‘held as his concubine, keeping her as a wife at table and
in his bed. But indeed she was such that marriage could not be appropri-
ately [digne] contracted with her by Renodellus.’’ Benedictus referred
throughout the consilium to ‘‘a concubine such that matrimony could not
be contracted with her.’’44 It is possible that the marriage could not be con-
tracted because there was some canonical impediment, but the digne seem
to imply that it was a question of social status. It is clear in this case, though,
that the writer continued to call her a concubine even though she (like An-
tonia) was not a woman who could have been a wife. Of course, although
in the classical Roman law, status was a barrier to some marriages, canon
law held that inequality of status did not matter to the validity of a mar-
riage, and the civil lawyers generally accepted this.45
In cases that did not turn on the question of whether a given woman
could be considered a concubine, jurists tended to assume that a concubine
would be free and thus that her children would be ‘‘natural’’ and capable
of being legitimated. Bartolo wrote that ‘‘according to natural law all coitus
is equal’’ and that the distinction between the wife and the concubine was
one of ‘‘dignitas.’’46 While marriage was legally established and adultery, in-
cest, and so forth were expressly forbidden, ‘‘there is a certain kind of union
[coniunctio] that is neither approved nor disapproved by the law, that is
concubinage. This remains under natural law, and therefore the children
born from it are called natural.’’ These children could be legitimated by the
subsequent marriage of the parents.47
The question of the status of the children of a cleric’s concubine, such
as Antonia’s son Hugh, however, was a bit different. Bartolo went on to
discuss whether the children of a cleric in minor orders were considered
natural. Some previous authors had denied this, on the grounds that the
relationship was illicit; others had held that clerical concubinage was a
crime under canon law but not civil law, and therefore the children were
natural. Bartolus agreed that the children were natural, and if the cleric
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were unbeneficed and later married the concubine, the children would be
legitimated.48 This required, however, that marriage had been a possibility
at the time that the children were conceived, so it applied only to clerics in
minor orders. A priest by this time period could never marry, so he could
never legitimate his children by subsequent matrimony.
Of course, John Comberius was not attempting to legitimate his son
by marrying Antonia, nor did he try to legitimate him by will or institute
him as heir; he only left him a legacy. This was not permissible with a spuri-
ous son. Strangely, however, Gui never considers in this discussion whether
Hugh should be considered a natural son. Rather, he points out that this
legacy was only alimentary, that is, sufficient to feed him. This was permis-
sible under civil law, even required under canon law, even if the child is
admitted to be spurious.49
As far as a legacy to a concubine is concerned, Gui cites authorities to
the effect that gifts may not be made to a concubine, but says that they do
not apply in this case: ‘‘I believe, on the contrary, that the legacy made to
the said Antonia is valid in the case under consideration, especially because
at the time of the death of the said testator and for three years before, she
had ceased being his concubine because of the said co-godparenthood. It is
the situation at the time of the death and the legacy that must be investi-
gated. For even if she was a concubine, she can cease being a concubine, as
we see in the case of a concubine with whom one contracts matrimony:
because as a result of matrimony the children previously born are legiti-
mated, and the mother ceases to be a concubine.’’50
The basic canon law textbook, the Decretum, makes it quite clear that
a man who stands as godparent to his own child must cease sexual relations
with the mother, even if she is his wife, because it would then be incest
under canon law.51 Gui here assumes that after the baptism of their son
John and Antonia did cease relations accordingly. If this was in fact the
case, it could mean that they knew and respected the provisions of canon
law on this subject and that the godparenthood was intentional. Church
authorities might have ordered them to cease relations after the godparent-
hood; concubinage was often tolerated, but the godparenthood could have
gone too far. However, John apparently referred to her in his testament as
his concubine (although the consilium does not contain the actual text of
the will), so it seems that he still considered her as such.
Gui’s argument here is that the relationship has become irrelevant.
Antonia was no longer a concubine at the time of John’s death, so rules
against leaving a legacy to a concubine do not apply, and she may be given
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a legacy like anyone else. In fact, juridical authorities disagreed on whether

a priest could leave a legacy to his concubine.52 It is a bit strange that Gui
turns to the argument that she was no longer his concubine, rather than
citing authorities to the point that she could be given a legacy anyway, an
argument he does not make.
But after arguing that Antonia was no longer John’s concubine, and
that even if Hugh was a spurious son it was still legal, even required, for
John to provide for his basic support, Gui then argues that Hugh was not
John’s son anyway. This too is a very strange argument for him to make.
The facts of the case as stipulated at the beginning say that he was his son,
and Gui is not suggesting that Antonia was unfaithful to him. The pre-
sumption of paternity for a married woman’s child applied to a concubine
as well: ‘‘A child born in a man’s home is presumed to be his child; thus a
child born of a concubine in the home of the concubinarius is presumed to
be his child.’’53 However, Gui now says that Antonia and John had been
together only for the three years preceding John’s death (precisely the time
since which, he just said, she has ceased to be his concubine!) and Hugh is
ten and a half years old. The implicit point here is that a legacy to an unre-
lated person was licit. Since there was no claim that John was attempting to
legitimize the boy, there was no advantage to treating him as a son.
This case indicates that the law could be flexible. The fact that ‘‘priest’s
concubine’’ was not a legally recognized or respected relationship did not
stand in the way of a priest providing for his loved ones. (Interestingly,
given that the dissipation of the goods of the church is a reason often given
for the prohibition of clerical marriage, it is not the church but the testa-
tor’s brother and universal heir who contested the legacies, and one as-
sumes therefore that it was family rather than church property at issue.)
Gui seems to be trying out a number of twists on the facts of the case—
either Antonia is not a concubine or else her son is not John’s—in order to
allow the legacies. It is tempting to speculate about whether a servant with
a relatively small legacy was able to get an eminent jurist involved in the
case on her side, or whether Gui was consulted by someone other than one
of the parties.
Besides indicating the law’s adaptation to the facts, the case also dem-
onstrates the way that Roman law was and was not applied to the medieval
situation. When Gui considers the position that a man may not leave a leg-
acy to his concubine, he cites not a ruling about a priest’s concubine but
one about a miles—in medieval Latin a knight, but in classical Latin a sol-
dier. Some jurists, however, considered whether a miles could make a gift
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to his concubine and concluded that the medieval knight was sufficiently
different from a Roman soldier that Roman law did not apply: ‘‘Laws speak-
ing of milites do not refer to the milites of our times . . . they are not Roman
milites and therefore do not accord with the name milites either in the privi-
leges or the obligations, notwithstanding that they are commonly called mi-
lites.’’54 Philip Decius (1454–1536), however, extended the provision to
priests: ‘‘a fortiori this applies to a priest, who is called a knight [miles] of
God.’’55
But the jurists do not exhibit the same level of awareness of the way
the concubine of the later Middle Ages differed from the Roman concubine.
They could apply the body of law on concubinage without really consider-
ing the issues of the different functions of concubinage in the two cultures.
In ancient Rome, unions between people of certain social levels were not
marriage (iustae nuptiae) but concubinage (although other relationships,
such as those between soldiers and women they treated as wives, were inius-
tiae nuptiae rather than concubinage). The medieval law of marriage had
no prohibitions on marriage by social status, and therefore it was possible
to say that natural children were born of parents who could have been mar-
ried, and a concubine (in the stricter sense) was a woman who could have
been a wife but had not been officially married. The jurists were well aware
of the technical Roman law meaning of the term, and could apply it, but at
the same time (in the same paragraph if not in the same sentence) could
use it in the much more general sense of any female domestic partner who
was not a wife. At the same time, however, the choice of a concubine in-
stead of a wife carried moral consequences in medieval culture that it did
not in Roman; Roman soldiers’ marriages were not legally recognized but
were perfectly respectable, not considered sinful and punishable like unions
involving priests.
The deployment of particular terms did not take place in a vacuum.
In Antonia’s case, whether or not she was a concubine had consequences
for whether she could receive a legacy, and whether her son could do so.
Being considered a concubine seems to have been working to Antonia’s det-
riment, so Gui Pape argues that she was not one. In other cases, though, it
could work in favor of a woman and her children. If she were a concubine,
her children were capable of being legitimated (by the subsequent marriage
of the parents or by a legal act on the part of the father), and therefore of
inheriting. If she were not—if she were just a meretrix—the children were
spurious and could not, at least in theory, be legitimated and claim an in-
heritance: a son whose mother was a meretrix ‘‘cannot be simply said to be
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‘natural,’ because the only one who can be such is one who is born of a
single man, and a single woman kept as a concubine . . . and even if the
coitus out of which he was born is not punishable [under civil law] it is still
illicit and shameful [improbatus], since only matrimony and concubinage
are seen to be licit, or at least not shameful under civil law.’’56
Being considered a concubine did not automatically confer economic
benefits such as the legitimation of a woman’s children and an inheritance
for them; it only opened up the possibility. If the father did not choose to
legitimate the children, they had few rights. A concubine had no dowry to
fall back on if she were widowed or abandoned. Nevertheless she was not
the equivalent of a prostitute. The fact that the domestic partner of a priest
was called by the same term could accord her some measure of respect
under the law, even though her partner was not exactly a ‘‘single man’’ (so-
lutus). Roman law did not take into account the ineligibility of priests for
marriage, and there was thus potential for slippage between the civil law
concubine and the clerical concubine.
Given that potential, it is curious that Gui Pape chose the strategy of
arguing that Antonia was not in fact a concubine. But this strategy exhibits
something else about the status of priests’ concubines. Although preachers
fulminated against them, although they had no official legal rights, never-
theless the relationship was a socially accepted one. The law could be
stretched when a priest wanted to support his partner and their child be-
cause society accepted these partnerships as normal, if not desirable.
‘‘Priest’s whore’’ might be a common insult for one woman to throw at
another in late medieval towns,57 but people nevertheless recognized that in
practical terms these partnerships existed, and the law reacted accordingly.

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Chapter 10
Crusaders’ Rights Revisited: The Use and
Abuse of Crusader Privileges in Early
Thirteenth-Century France
Jessalynn Bird
Although the legal and spiritual privileges theoretically accorded

to crucesignati have long been mapped out, their practical implementation
in the late twelfth and early thirteenth centuries remains far less explored.1
Enforcing the privileges claimed by individual crusaders required the col-
laboration and interaction of multiple ecclesiastical and secular authorities
during a period marked by crucial developments in governmental appara-
tuses, law, and church-state relations. Often presented as an exceptional
and urgent project that ought to have enabled secular and ecclesiastical au-
thorities to put aside traditional rivalries and long-simmering conflicts to
cooperate in defending Christendom, the organization of the crusade tested
the effectiveness of governance and the parameters and conditions of
church-state relations, creating precedents and habit patterns that influ-
enced quotidian interactions in crucial matters such as taxation, keeping
the peace, and law enforcement.
Christopher Tyerman has argued that in this period royal govern-
ments in England and France collaborated with local ecclesiastics in defin-
ing and enforcing privileges often vaguely outlined in crusade bulls. Despite
occasional tensions, these authorities typically respected each other’s pre-
rogatives. Provided that individuals did not attempt to (ab)use crusader
privileges for political, legal, or financial advantage, their rights were gener-
ally upheld, although in certain instances personal or political interests dic-
tated otherwise. However, he also unearthed haunting evidence of the
difficulties royal and ecclesiastical judges faced in guaranteeing English cru-
saders’ rights during the close of King John’s reign and the minority of
Henry III (1216–27), despite unusual secular-ecclesiastical cooperation at
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134 Jessalynn Bird
the highest levels; both kings had become papal vassals and had taken the
crusader’s cross seeking papal protection against rebellious barons sup-
ported by Louis VIII of France and some prelates. Individuals from both
sides of the conflict soon sought the coveted privileges granted to crucesig-
nati, complicating and facilitating the labors of papal legates granted carte
blanche authority to promote the Fifth Crusade (1216–21) and the crusade
of Frederick II, create peace, and restore the authority of papal, royal and
prelatial governance after a long interdict and civil war.2
The enforcement of crusaders’ rights would prove even more prob-
lematic in France. Philip Augustus had not taken the cross and tenaciously
opposed any extension of prelatial or papal authority at the expense of royal
or baronial prerogatives. In this climate, Paris-educated reformers and their
colleagues in the episcopate, diocesan clergy, and monastic orders were ap-
pointed as crusade preachers, legates, and judge delegates and became re-
sponsible for defining the amorphous rights granted to crusaders in papal
letters. Faced with reconciling and implementing the often contradictory
demands of the papacy and Philip Augustus, they also engaged in delicate
negotiations with the local authorities ultimately entrusted with enforcing
crusader privileges. Many used their legal expertise and personal networks
to navigate potentially conflicting jurisdictions and legal systems, balancing
promoting reform and protecting individual crusaders’ rights with organiz-
ing a viable crusade, keeping the peace, and preventing abuses.
Yet the crucial function these men played in defining crusaders’ privi-
leges has received relatively little attention compared to that lavished on
legal treatises, popes, kings, and certain papal legates. Masters educated in
Paris and other centers of higher learning were employed as judges, asses-
sors, and arbiters by papal, secular, and episcopal administrations anxious
to expand the influence of their courts and thereby their authority and reve-
nues.3 Delegated judges’ consultation of previous compositions and decre-
tals, their queries to Rome, and their decisions on individual cases not only
immediately affected the implementation of crusader rights in France and
other regions but generated important legal precedents and material. One
of the most influential was Robert Courson, a Paris master appointed pro-
tector for crucesignati (c. 1208 ff) and papal legate for the crusade (1213–15).4
Trained in canon law and previously involved in key cases regarding the
respective jurisdictions of feudal, royal, and episcopal courts over persons
of ambiguous status (including clerics, widows and orphans, heretics, and
usurers), Robert and his colleagues would be faced with interpreting and
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Use and Abuse of Crusader Privileges 135
enforcing the rights promised to crusaders in Quia maior (1213) and Ad lib-
erandam (1215) in France.
Prior to Robert’s appointment, Philip Augustus and Henry II of En-
gland had utilized preparations for the royally led Third Crusade (1188–91)
to increase their jurisdiction. However, the privileges hypothetically granted
to crusaders in Quia maior (including freedom from taxation, protection of
person and possessions, and the right to interest-free loans) threatened to
erode feudal and royal prerogatives. Although secular authorities were
urged to help enforce these privileges and often did so, Philip Augustus
clearly feared that Innocent III’s mandate to give the cross and its attendant
privileges to all who desired them would mean that masses would attempt
to escape the military and financial obligations due to himself, his vassals,
and his Jews during a crucial period in his struggle against John of England.
John’s alliance with certain disaffected noblemen in France and Otto of
Brunswick, one of two claimants for the German emperorship, led Philip
to back the papally approved Frederick II; the two axes’ chronic conflict
would culminate at the battle of Bouvines (1214).5
Philip’s concerns were exacerbated by Robert Courson’s attempts to
broker a truce between Philip and John to enable the departure of many of
France’s most powerful noblemen, whom Robert had recruited for the cru-
sade. Moreover, Robert, Innocent III, some bishops, and other reformers
preaching the crusade soon seized upon Quia maior’s grant of immunity
from interest on loans to those who had taken the crusade vow (crucesig-
nati) to wage a much wider-ranging campaign against all interest taking by
Christian and Jewish moneylenders. They urged secular rulers to collabo-
rate with local prelates in using ecclesiastical excommunication, the threat
of violence, and a ban on business dealings to force all usurers to restitute
extorted interest and to arrange for crucesignati unable to immediately
repay their debts to defer doing so. These demands conflicted with Philip’s
prior ordinances for the Third Crusade. To prevent widespread defaulting
on debts owed to the Jews and townsmen he taxed to fund his own crusade
participation, Philip had required crucesignati to arrange for the repayment
of the principal owed and interest accumulated on debts contracted before
they had taken the cross by setting aside lands and revenues from which
their creditors would be repaid in three installments. Lords with jurisdic-
tion over the debtors and/or creditors concerned were to enforce the stat-
ute’s provisions; local prelates might excommunicate secular authorities
who refused to implement it only after due warning. The episcopal tribu-
nals organized by some reformers to prosecute Christian usurers directly
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136 Jessalynn Bird
challenged Philip’s earlier mandates, while their general assault upon inter-
est taking endangered a prime source of tax revenue.6
Philip and many of his vassals, including Blanche of Champagne and
the crucesignatus Odo III, duke of Burgundy, were concerned that Quia
maior’s provisions would enable ecclesiastical intrusion into areas they con-
sidered reserved to secular courts: taxation, military service, moneylending,
contracts, and lawsuits regarding land and feudal obligations.7 Some local
churches had also been angered by Robert’s forceful reforms, and although
Innocent III defended Robert’s actions, he advised him to respect honest
customs and reserve revolutionary changes for a planned ecumenical coun-
cil. Robert therefore agreed to a composition limiting his powers over the
French episcopate and to the joint royal and legatine appointment of two
royalist prelates commissioned to resolve issues pertaining to crusaders’
rights. After investigating how the church customarily defended crusaders,
Peter, bishop of Paris, and Guérin, bishop of Senlis, drafted a composition
in 1214 meant to ensure cooperation between secular and ecclesiastical au-
thorities until the Fourth Lateran Council (1215) should meet. Copies were
forwarded to the French episcopate now entrusted with defending crusad-
ers; unclear cases were to be referred to Guérin and Peter rather than
Robert.8
Guérin and Peter had worked with Robert and other masters on cases
involving multiple jurisdictions, including the trial of the Amalricians
(1210), where judges balanced respect for the hard-won right of clerics to be
tried in church rather than secular courts with the ability to surrender con-
victed heretics to secular courts for capital punishment.9 The definition of
crusaders’ rights presented similar possibilities for jurisdictional collabora-
tion or competition. Although Ad liberandam would renew Quia maior’s
promise of exemption from taxes and tolls from the moment individuals
took the cross until their return from the crusade, Guérin and Peter quickly
limited the tax-exempt status of French crucesignati to one year and decreed
all liable for military service, probably at Philip’s insistence. Philip clearly
also feared crucesignati exploiting their temporary quasi-clerical status to
avoid answering to secular courts. Aware of previous compositions regard-
ing the prosecution of usurers, criminous clerks, and heretics, as well as the
recent division of cases between ecclesiastical and secular courts in Nor-
mandy, the committee ruled that church courts were not to defend crucesig-
nati arrested by royal officials and found guilty of a crime meriting death
or mutilation. In cases involving lesser crimes, crucesignati were to answer
to church courts, although the guilty must make amends according to local
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customary law, and if convicted of a serious crime, were to be surrendered

to secular courts for sentencing. Crucesignati involved in civil lawsuits con-
cerning debts, mobile property, or bodily injury could choose either secular
or church courts. Cases involving feudal dues, rents, and fees were reserved
to secular courts, although crucesignati could appeal to their local bishop.
These compromises influenced the legal treatment of crucesignati through-
out the thirteenth century.10
Many of the composition’s provisions were consistent with Robert’s
prior rulings, and he quickly approved it to further the enforcement of cru-
saders’ rights. However, he and other recruiters’ hopes that Quia maior’s
more extensive protections would be reconfirmed at the Fourth Lateran
Council would be disappointed, despite the council’s pledge to appoint leg-
ates to aid crusader contingents by arranging for their orderly departure,
protecting them from taxation and imprisonment, dispensing the unfit
from their vows, and offering spiritual guidance. When Robert’s legation
ended in 1215, Philip Augustus and some magnates appear to have de-
manded the extension of the 1214 composition, which curtailed crusaders’
rights and made an episcopate with limited powers and divided loyalties,
rather than a papal legate, responsible for crusade preparations in France.11
Robert’s colleagues James of Vitry and Gervase of Prémontré quickly
decried the ensuing abuse of lesser crucesignati’s rights by the very secular
and ecclesiastical magnates who had promised them money, counsel, and
leadership. They grimly prophesied that crusade preachers’ inability to en-
force the spectacular privileges they offered would undermine recruiting. In
many regions, crusade funds had been entrusted to magnates instructed to
subsidize local crusaders. Warned by some Paris-trained recruiters that if
they did not adhere to the departure date of the spring of 1217 announced
at Lateran IV, they would forfeit the privileges attached to their vow while
retaining the onus of fulfilling it, many humble crusaders protested that
most French magnates were not planning to leave until a year later, thereby
depriving them of funding and leadership. Some were being taxed; bishops
were excommunicating and fining others for not departing by the original
deadline.12
Gervase urged Honorius III to appoint another legate to coordinate
the crusade effort in France or at least to commission special ordinatores to
collaborate with the episcopate in collecting and distributing crusade mon-
ies to local crucesignati, defending their rights, and other crusade prepara-
tions. A definite departure date ought to be publicized and enforced by the
French episcopate, the year’s delay previously requested by Odo of Bur-
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138 Jessalynn Bird
gundy, Walter of Avesnes, Hervé of Nevers, and other magnates formally

confirmed. Some of the men Gervase nominated as ordinatores became in-
volved in protecting crusaders’ privileges and the collection and distribu-
tion of crusade funds, yet jurisdictional conflicts continued to hamper
crusade preparations. Although Honorius urged adherence to the original
departure date and appointed Simon, archbishop of Tyre, as papal nuncio
for France, Gervase portrayed Simon as an outsider bereft of a support base,
hesitant to depart from or enforce Ad liberandam’s mandates and deadlines,
with the result that the main French crusading contingent departed only in
1218.13
Despite these circumstances, certain high-ranking crusaders possess-
ing the resources to appeal and ties to Robert Courson or other judges dele-
gate were able to exploit their privileges relatively effectively, among them
Hervé of Nevers and Walter of Avesnes. Excommunicated for failing to ful-
fill a crusade vow, Walter appealed to Rome in 1211. His case was referred
to Robert, then one of two papal appointees handling all cases involving
French crucesignati, together with specific instructions that, previous nego-
tiations notwithstanding, Robert and his fellow judges were to allow at most
the delay of Walter’s vow. Walter pled that the depredations of his brother
Burchard, a cleric, meant that his lands would suffer irreparable damage if
he departed on crusade. In return for sending what aid he could to the Holy
Land, Walter was granted papal protection, permission to delay his depar-
ture until Burchard’s molestations ceased, and financial subsidy. Although
his case concerned matters traditionally reserved to feudal law (immobile
property and, more debatably, a criminally violent cleric), Walter used his
crucesignatus state to appeal to ecclesiastical courts. Scion of a crusading
family and a potentially substantial contributor to the crusade, he probably
hoped that, given his brother’s clerical status, papal judges delegate would
prove more effective than secular courts, although their rulings and papal
grants of protection were ultimately enforced by local ecclesiastics via often
disregarded ecclesiastical sanctions. The diversion of Burchard’s ambitions
via his marriage to Margaret of Flanders may have ultimately freed Walter
to fulfill his vow. However, Walter still considered obtaining another per-
sonalized papal letter of protection worthwhile before departing as one
leader of the main French crusade contingent. Its implementation was en-
trusted to diocesan officials from Noyon either already acting as crusade
ordinatores or nominated by Robert Courson, formerly a canon at Noyon.14
As part of broader peacemaking initiatives intended to enable partici-
pation in the Albigensian and Fifth Crusades, Robert also brokered a truce
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between Philip Augustus and John of England in 1214. During negotiations,

John requested that as legate for the crusade and defensor crucesignatorum,
Robert prevent Philip from punishing John’s former ally, the crucesignatus
Hervé of Nevers.15 Robert knew Hervé and his father-in-law, Peter Cour-
tenay, count of Namur, Auxerre, and Tonnerre, from their involvement in
previous anti-heresy campaigns and the Albigensian crusade. Robert’s asso-
ciate, Fulk of Neuilly, and other reformers had exploited popular resent-
ment of moneylenders caused by famine and preparations for the Fourth
Crusade to persuade some noblemen, probably including Peter and Hervé,
to temporarily expel Jews from their lands. Yet despite papal, episcopal, and
popular pressure for secular rulers to aid ecclesiastical prosecution of Chris-
tian and Jewish moneylenders, Philip Augustus, Odo of Burgundy, the
crucesignatus Thibaud of Champagne, and others stubbornly sheltered usu-
rers for fear of forfeiting crucial income. Hervé’s and Peter’s support also
faltered when Bishop Hugh of Auxerre cracked down on ‘‘excessive’’ usury
in his diocese. Hugh’s chronically competitive relations with local secular
authorities meant that Innocent III soon complained that the very lords
who had pledged to enforce Hugh’s anti-usury statutes were threatening
those implementing them with fines and imprisonment to preserve their
revenues. Although fostering Jews and usurers was one charge leveled
against Raymond of Toulouse, Hervé and Peter proved loth to permit Hugh
to expand his jurisdiction literally at their expense; their participation in
the Albigensian and eastern crusades was aided by taxes exacted from these
groups.16
The very noblemen who resisted clerical meddling in contract law
nonetheless respected ecclesiastical courts’ jurisdiction and competence in
marriage suits. Hervé and Peter requested Robert as judge for a case con-
cerning the legitimacy of Hervé’s union to Peter’s daughter Mathilda, heir-
ess to the county of Nevers. Hervé’s overlord and rival, Odo of Burgundy,
had initiated the suit in 1206 by swearing that the couple had concealed
their relationship within the forbidden degrees.17 Robert simultaneously
judged a long-festering dispute over the counts of Nevers’s claim to exten-
sive procurations from the monastery of Vézelay. As legate for the crusade,
Robert rewarded Hervé’s compliance and plans to take the cross for the
Holy Land with a papal dispensation for his marriage; the cessation of
Hervé’s depredations simultaneously earned Robert Vézelay’s gratitude and
facilitated local crusade participation.18 Robert’s colleague Oliver of Pader-
born soon appealed to Peter’s indebtedness, urging him and his wife to take
the cross and support the judges he had instituted for crusaders in Namur.19
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140 Jessalynn Bird
Because Robert and other Paris-trained reformers had long sought to

reduce the complexity of marriage laws and prevent the use of prohibited
degrees of relation to obtain divorces, Robert may have offered Hervé a
quid pro quo. If Hervé followed his comital predecessors in combining the
face-saving expiation implied in the prestigious crusade vow with tempo-
rarily mitigating procurations exacted from Vézelay, he would be recom-
pensed with crusader privileges and a dispensation enabling him to retain
Nevers.20 Robert’s precedent would be followed by Cardinal Romanus, leg-
ate for the Albigensian Crusade, and James of Vitry, who, while cardinal
of Tusculanum, granted William of Dampierre a similar dispensation for
aiding the Holy Land and supporting Gregory IX against Frederick II. In
both instances, papal letters stressed that the offer was open to others. Yet
judges associated with Robert and James had blocked William’s projected
marriage to Henry of Champagne’s daughter, Alice of Cyprus, on grounds
of consanguinity, largely to prevent their claim to Champagne and endan-
gering Frederick II’s crusade.21 In contrast, Frederick II was dispensed
from consanguinity with the king of Jerusalem’s daughter, in the hope that
their union would move him to fulfill his crusade vow. Pioneered in the
early thirteenth century by Paris reformers and their associates, these dis-
pensations would become a common reward for crusade participation; de-
pending on an individual’s usefulness to the crusade, an illicit marriage
could be made licit, or vice versa.22
The crusade also provided a means of exculpation for behavior de-
clared illicit because it threatened the peace crucial to crusade organization.
Hervé, Odo, and many others benefited from Gervase of Prémontré’s pro-
posal that those excommunicated for aiding Louis VIII’s invasion of the
crucesignatus Henry III’s lands be absolved in return for reparations and
participation in the Holy Land or Albigensian Crusade.23 Hervé was also
permitted to free eight retainers from their crusade vows to guard his pos-
sessions and was granted crusade monies to subsidize crusaders accompa-
nying him. However, the prelates and diocesan clergy responsible for
collecting and forwarding these funds resented money derived in part from
taxes on ecclesiastics being granted to a nobleman notorious for troubled
relations with local churches, and they stonewalled despite papal pressure.24
Hervé and other magnates obtained these privileges because Robert
and Rome considered them potential leaders of the French crusade contin-
gent. Grateful for Robert’s zealous defense of crusaders’ rights despite the
unique limitations he faced, Hervé, Walter, and other noble crucesignati re-
quested his reappointment as legate. Due to the compositions discussed
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above and the prior selection of Cardinal Pelagius as legate for the entire
crusading army, Honorius specified that Robert would accompany the
French as a spiritual rector only. However, Hervé and other magnates were
permitted to delay their departure and sailed with Robert from Genoa,
where James of Vitry had mustered money, ships, and men in preparation
for their arrival.25
Like many other crusaders, Hervé and Peter Courtenay also sought to
resolve or stave off legal disputes prior to their departure and appointed
procurators to guard their interests. Robert helped them to obtain charters
confirming their rights to various properties and to resolve a conflict with
Bishop William of Auxerre over several castra. Despite these precautions,
Peter’s presumed death reopened the affair. Hervé’s daughter Agnes soon
invoked her widowed state to plead feudal matters in church courts and
complained to Rome that William and Peter’s son Philip had injured her
rights over these castra and other properties.26
Ironically, Hervé proved completely undeterred by the privileges
claimed by other crucesignati. Rumors of his father-in-law Peter’s capture
and purported decease while Latin emperor of Constantinople led Hervé to
hastily depart the crusader camp. Aware that the protection accorded to
Peter’s lands would lapse with confirmation of his demise, Hervé violently
appropriated Auxerre and Tonnerre in the absence of their appointed
guardians, leading Honorius to demand that he respect Peter’s crusader
privileges, forfeit the seized lands, and pay reparations on pain of excom-
munication and interdict imposed by several judges delegate. Cognizant
that Hervé might ignore these penalties, Honorius also urged Peter’s cousin
Philip Augustus to intervene. The threat of combined ecclesiastical and
royal sanctions eventually led Hervé and Mathilda to appeal to Rome. They
pled that they had gone to Auxerre, which belonged to them by hereditary
right, only after hearing of Peter’s death, and had entered into litigation
with Peter’s son, Philip of Namur. They justified their seizure of Auxerre
by Philip’s refusal to adhere to due legal process and pledged to accept the
ruling of Honorius’s judges.27
Philip’s legal advisors countered by invoking crusader privileges out-
lined in papal bulls and the ordinances of 1188 and 1214. Innocent III and
Frederick II had taken the crucesignatus Peter and his lands under protec-
tion until his return or certain decease. After spreading false rumors of Pe-
ter’s death, Hervé had appropriated and despoiled lands that Philip had
held from Peter in peace. Robbed of his just rights, Philip was now unable
to pay the debts his father had incurred before departing for Constantino-
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142 Jessalynn Bird
ple. Yielding to Philip’s insistence that Peter was alive and merited protec-
tion, Honorius finally commissioned the bishop of Auxerre and three
additional judges to force the widowed Mathilda to return the seized lands
and purloined revenues.28 Clearly, crusaders’ families remained vulnerable
unless the amorphous privileges granted to crucesignati were defined by ap-
peals to Rome and the rulings of judges delegate and were enforced by local
authorities. However, the claims of a crucesignatus and imprisoned Latin
emperor and his relations believed essential for retaining Latin Romania
ultimately won out over those of an unruly returned crusader who had
clashed with many of the authorities commissioned to settle the case.
Hervé more successfully exploited Alice, the widow of Odo of Bur-
gundy, who had died with his crusading vow unfulfilled despite being as-
signed crusade funds. Hervé claimed that he and Odo had agreed that
whoever died first would pay the survivor a set sum for their crusade jour-
ney. Returned from the crusade, he had found no justice from the feudal
court of his overlord’s widow and so appealed to Rome according to the
1214 composition’s provisions. Honorius appointed several judges to weigh
the claim and fix a deadline for payment.29 The protection accorded to
Odo’s family had lapsed with his death, and while Alice’s widowed status
put her under the purview of church courts, it left her vulnerable to the
papacy’s tendency to favor a crusader who had actually kept his vow, per-
haps in recompense for the difficulties he had faced in obtaining the funds
originally granted to him.
Similar issues would dominate the crucesignatus Erard of Brienne’s
struggle with Blanche of Champagne. Like Odo and Philip Augustus,
Blanche resisted ecclesiastics’ intrusion, in the name of the crusade, into
matters traditionally pertaining to feudal law. Her crucesignatus husband,
Thibaud III, had associated with reformers involved in the Fourth Crusade
and campaigns against usury and heresy, yet had vigorously protected and
taxed Jewish usurers in Champagne, partly to fund his planned crusade par-
ticipation. Reliant upon Philip Augustus and the papacy to protect her son’s
inheritance, Blanche reluctantly joined Philip in partly bowing to papal
concern regarding usury and indebted crusaders by capping the interest
paid on loans owed to their Jews in 1206.30 Yet when the reformer Peter
Corbeil, archbishop of Sens, pressured her to implement Lateran IV’s ap-
peals for authorities to rein in ‘‘excessive’’ usury and compel Jews to com-
pletely remit interest to crusaders, Blanche resisted further encroachment
on her jurisdiction and revenues. She obtained a team of papal judges dele-
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gate to prevent local prelates from injuring her interests by exceeding the
council’s mandates.31
Prior to the composition of 1214, Innocent III had also demonstrated
concern for balancing crusaders’ rights with those of their lords and credi-
tors, despite the protests of local ecclesiastics faced with interpreting ill-
defined crusader privileges. In Lille, one merchant took the crusader’s cross
and invoked its privileges after his creditors sued him. Because the ordi-
nance of 1188 specified that immunity from lawsuits did not apply to cases
initiated before a crusade vow, the town’s justiciar followed local customary
law by surrendering the merchant to his creditors to be imprisoned until
he paid. In contrast, the Paris-educated Alberic, archbishop of Reims, ad-
hered to Quia maior’s more generous provisions regarding debt exemption;
he excommunicated the countess of Flanders and interdicted her lands
until she freed the merchant. Her appeal that she was not under the arch-
bishop’s jurisdiction led Innocent to instruct his judges to annul Alberic’s
sentences unless the case had been referred to him. Otherwise, they were to
settle the case, ensuring that justice was upheld and crusader immunity was
neither diminished nor used to harm another.32
This principle would ensure that while some crucesignati earned mar-
riage dispensations and other privileges by demonstrating their usefulness
to the crusade, the obverse would prove true for Erard and other claimants
to the county of Champagne. For despite Blanche’s intransigence in pro-
tecting her prerogatives, in matters traditionally devolving to church courts,
she routinely solicited and accepted the jurisdiction of ecclesiastical judges
delegate, including Robert Courson and many of his collaborators: the ab-
bots of Saint Victor, Saint Geneviève, Saint Jean-des-Vignes, and Valsecret,
members of the University of Paris, the archbishops of Sens and Reims, and
the bishops of Paris, Auxerre, and Troyes, among others.33 For these judges,
Erard’s claim to Champagne would pose the question of whether an indi-
vidual crusader’s privileges should be preserved to the detriment of the
peace of the realm, the rights of a deceased crucesignatus’s widow and or-
phan and the crusade project itself.
Aware that the immunity accorded to her crucesignatus husband’s
household and possessions had expired with him in 1199, Blanche had mus-
tered pledges of support from neighboring magnates and Philip Augustus
and confirmation of her and her son Thibaud IV’s right, as persones misera-
biles, to papal and ecclesiastical protection and trial in church courts. For
Thibaud IV’s succession hinged on an oral agreement between Henry II of
Champagne and his vassals to recognize his brother Thibaud III as count,
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144 Jessalynn Bird
should Henry fail to return from the Holy Land. Cognizant that Henry’s
daughters by Isabella of Jerusalem possessed hypothetical rights, Blanche
persuaded Philip to temporarily bar challenges to Thibaud’s inheritance in
royal courts, based on the customary legal precedent that no minor be
forced to respond to suits regarding possessions held unchallenged at his
father’s death.34
Yet the crucesignatus Erard soon declared his intention to marry Henry
II’s daughter Philippa and pursue her claim to Champagne. Declaring him
a rebellious vassal for supposedly refusing to answer her representatives and
abandon his scheme, Blanche seized Erard’s fiefs on the pretext that he was
indebted to her Jews. Refusing to acknowledge his debts, Erard appealed to
the current anti-usury campaign: Blanche’s action was illicit, ‘‘intuiti usura-
rum,’’ and violated crusaders’ right to protection. Blanche and Philip Au-
gustus in turn exploited the reservation of crusaders charged with serious
crimes to secular courts in the 1214 composition and earlier decretals to ob-
viate Erard’s theoretical immunity from arrest and right to trial in church
courts. Their agents used charges of manslaughter and treason to obtain his
incarceration at Marseilles and, upon his return, in Genoa and Puy. Al-
though Erard probably invoked crusader privileges to procure his release in
Marseilles and Puy, the individual theoretically meant to guarantee those
rights, Innocent III, supported Erard’s imprisonment in Genoa. He warned
authorities there of the penalties awaiting those who aided the church’s ene-
mies, reinforcing its citizens’ fears of sabotaging the crusade in which they
had heavily invested.35
The abbot of Saint Vincent in Metz and the archbishop of Trier simi-
larly utilized trumped-up charges of forgery to seize, excommunicate, and
jail a poor crucesignatus subdeacon. Released only after promising not to
sue, he fled to Rome and appealed. Three archdeacons from Châlons work-
ing as crusade ordinatores were commissioned to oversee an inquest, and
the abbot was eventually summoned to Rome for sentencing.36 Clearly, un-
less they possessed the resources to lodge appeals, crusaders’ theoretical
right to protection of person and possessions depended almost purely on
the pleasure and effectiveness of the local secular and ecclesiastical authori-
ties ultimately charged with defining and enforcing crusader privileges.37 In
Erard’s case, papal, royal, and legatine commitment to maintaining peace
(and Blanche) in Champagne meant that his appeals to the rights promised
to crucesignati were quashed.
For when some local ecclesiastics challenged Blanche’s seizure of Era-
rd’s lands in 1213, she claimed that individuals holding fiefs from her were
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abusing the protection granted to crusaders to infringe upon her rights. Her
complaint was forwarded to Robert Courson, then legate for the crusade.
After soliciting Innocent’s advice, he was instructed to act as he saw fit and
ruled that unless Blanche had denied them justice, crucesignati who attacked
her or her vassals automatically incurred excommunication and could not
invoke their status to appeal to church courts in cases involving feudal
rights and lands. This decision directly impacted Erard’s appeals, and both
it and Erard’s first arrest influenced similar restrictions imposed on French
crusaders in the composition of 1214.38 It may also have emboldened Blanche
to peremptorily imprison the crucesignatus Hugh of Champlitte and to ap-
peal to Rome when Peter Corbeil, archbishop of Sens, excommunicated her
for violating crusader immunity. Several judges were soon appointed to ab-
solve her, provided that she put forth a legitimate plea or swore that she
was not complicit in Hugh’s maltreatment.39
Blanche also sought to forestall Erard’s claim by challenging the legiti-
macy of his proposed marriage. At her request, Robert Courson oversaw an
inquest that established Erard’s relation to Philippa within the prohibited
degrees and declared their marriage illicit. Acting on Robert’s findings, In-
nocent III wrote prelates in the Holy Land and France forbidding the
union. When the couple clandestinely married in defiance of the prohibi-
tion, Blanche persuaded Robert to hold another inquest to undermine Phil-
ippa’s claim to Champagne by having her parents’ marriage declared
invalid and by rectifying the lack of a written act confirming Henry II’s ces-
sion of Champagne. Based on the testimony of surviving witnesses, Robert
confirmed the transmission of Champagne to Thibaud III and declared the
union and offspring of Henry II and Isabella illegitimate. Blanche then used
this inquest’s findings to confirm the feudal matter of Thibaud III’s succes-
sion in royal courts. In a rare instance of secular-ecclesiastical cooperation,
Philip Augustus seconded Robert, Innocent III, and Honorius III in com-
manding all French prelates to wield excommunication to prevent or pun-
ish Erard and anyone else attacking Blanche or Thibaud, stressing their
status as persones miserabiles devoted to the papacy and the danger violence
represented to peace and the crusade.40
Erard’s proposed alliance with the duke of Lorraine threatened to hin-
der the resolution of the struggle of Philip and Frederick II against John of
England and Otto of Brunswick and therefore crusade participation
throughout Europe. Initially, Erard simply urged Philip to accept his hom-
age for Champagne and lodged two suits against Blanche in ecclesiastical
courts regarding Philippa’s claim to Champagne and Blanche’s seizure of
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146 Jessalynn Bird
his fiefs. However, the joint papal and royal proclamation of Thibaud IV’s
legal immunity soon led Erard to ravage Champagne on the pretext of seek-
ing restitution for damages. His recourse to force meant that two royal as-
semblies composed of Philip’s foremost ecclesiastical and secular vassals
(including Guérin of Senlis and Peter of Paris) scrupulously applied the 1214
composition’s tenet that feudal matters involving crucesignati be tried in
feudal courts. Thibaud’s immunity was confirmed; Erard was barred from
pursuing his case in any court until he made restitution.41
The effectiveness of the threatened ecclesiastical sanctions depended
upon their thorough publication and enforcement by prelates with jurisdic-
tion over Erard and his allies. Some, including Guérin and Arnaud Amaury,
abbot of Cı̂teaux and legate for the Albigensian Crusade, publicized papal
mandates with Robert Courson’s support. Innocent and Honorius none-
theless felt compelled to commission judges to ensure that prelates followed
canonical procedure in warning Erard and his supporters to present proof
of reparations on pain of excommunication and interdict. Many prelates
ignored or actively resisted publishing the judges’ mandate and sentences,
particularly the bishops of Langres, Auxerre, and Troyes, who had clashed
with Blanche or were related to Erard or his partisans.42
Odo of Burgundy soon warned Honorius that as a direct result, some
were beginning to believe that they owed Erard support as count of Cham-
pagne. The crusade participation of himself and other nobles obligated to
defend Thibaud would be indefinitely delayed or cut short, the resources
mustered for the Holy Land squandered on internecine war. Desperate to
secure the departure of crusaders planned for the spring of 1217, Honorius
urged Guérin and other judges to remind prelates that they had sworn to
enforce the universal four-year truce declared for the crusade at Lateran IV.
They must excommunicate Erard and his supporters and persuade Philip
Augustus to intervene with physical force if necessary, a surprising sugges-
tion considering that Philip had opposed past attempts to use the crusade’s
overwhelming moral mandate to enforce peace as ecclesiastical meddling in
feudal matters. Honorius’s appointment of judges empowered to suspend
all incompliant prelates finally persuaded the bishops of Trier and Metz to
bring Erard’s most powerful ally, the duke of Lorraine, to heel, forcing
Erard to accept a temporary truce.43
Blanche’s use of this truce to ally with the crucesignati Odo and Freder-
ick II in the military neutralization of Erard’s remaining supporters pro-
duced the long-sought four-year truce, which enabled the departure of the
French crusading contingent in 1218. Mediated by Odo and witnessed by
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Hervé, the truce required Blanche to obtain absolution for the excommuni-
cate Erard and his allies in a timely fashion, pay him an annuity, return his
fiefs, and refrain from using the debts he purportedly owed her Jews to dis-
train them. Blanche’s insistence that Erard and Philippa be absolved only
after paying reparations was initially accepted by Honorius and his judges,
who were empowered to use the pending question of Philippa’s legitimacy
to pressure Erard to comply. However, they were deprived of their main
bargaining chip when local ecclesiastics ceased treating Erard and his sup-
porters as excommunicate, leading some judges to waive restitution as a
precondition for absolution.44
Erard also appealed directly to Rome for absolution, arguing that the
pope had acted on inaccurate information when excommunicating him for
ravaging Champagne and disregarding his judges’ citations. Blanche’s at-
tempts to arrest Erard, a returned pilgrim, and her attacks had led him and
his allies to defend themselves and to reclaim their unjustly seized posses-
sions. Proper procedure had been violated in the judges’ citations and his
second excommunication. Erard’s tenacity and the uneven local enforce-
ment of ecclesiastical sanctions meant that he and Philippa escaped repara-
tions by formally renouncing their claims in 1221 in return for a generous
financial settlement and freedom from all debts and excommunication.
Contemporaries regarded such settlements as preferable to potentially un-
enforceable sentences imposed by judges. Swiftly confirmed by both parties’
feudal and ecclesiastical superiors, the composition’s terms were to be en-
forced on pain of excommunication by the bishop of Langres.45 Hervé’s bid
to exploit Blanche’s tenuous position by refusing to definitively pronounce
against Erard’s claims and attempting to reclaim three castles was likewise
checked by a successful appeal to his ecclesiastical and feudal superiors. As
head of an inquest investigating Hervé’s rights, Odo of Burgundy refused
to rule until Hervé swore to aid Blanche; Hervé’s compliance was rewarded
with cash useful for his imminent crusade journey.46
Although Hervé and others excommunicated for breaking the peace
in England had won absolution by taking crusade vows, Honorius’s judges
withheld the facilitated absolution often granted to potentially useful
crucesignati from Erard and his followers, even though some, including
Milo of Saint Florentine, appear have taken the cross seeking to win tempo-
rary immunity or an honorable exit from the conflict. Immediately upon
his return from the crusade, Milo was ordered to fulfill the prescriptions
for absolution imposed by papal judges on Erard’s excommunicate allies.
He was finally absolved only because he had committed no further injury
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148 Jessalynn Bird
against Blanche or Thibaud after taking his vow; the judges and local prel-
ates were clearly determined to make an example of Erard’s supporters to
prevent future breaches of the peace.47
In many regions, individuals appointed as crusade preachers, ordina-
tores, judge delegates, prelates, and legates crucially influenced the interpre-
tation and implementation of rights theoretically granted to crusaders in
papal letters and legal treatises. Particularly in France, the most successful
in utilizing their rights as crusaders continued to be magnates with access
to expert legal advice and funds, as well as having the perseverance needed
to negotiate the competing jurisdictions of ecclesiastical and secular courts
and appeals to Rome. The intensely personal nature of medieval governance
and law meant that those with previous ties to those deputed to protect
crusader rights also fared better than the average crusader. The conjoined
nature of canon law and theology in this period ensured that the confes-
sional or pastoral forum often influenced individual crucesignati’s fates in
the legal forum: past relations and scrutiny of an individual’s sincerity
proved crucial for judging whether crusader rights were being abused or
properly used to facilitate a potentially useful contribution to the crusading
cause.
Moreover, the papacy’s and ecclesiastics’ negotiations with secular rul-
ers on the subject of crusader privileges proved to be shaped as much by
larger political or pastoral goals as by strict adherence to legal principles.
The interpretation and enforcement of crusading privileges meant to enable
or reward individuals’ participation were often delimited by the competing
claims of mustering viable contingents, maintaining the peace, and pro-
moting reform projects deemed essential for the crusades’ success. For the
effective implementation of crusaders’ privileges required the complex col-
laboration of secular and ecclesiastical authorities on multiple levels and
tested the limits of cooperation between various authorities and legal sys-
tems: royal, prelatial, papal, and noble. In the late twelfth and early thir-
teenth centuries, the expansion and competition of various secular and
ecclesiastical courts meant that collaboration would prove highly condi-
tional and intensely informed by previous joint action in the prosecution of
groups with ill-defined rights and by the prior histories of local and central
authorities seeking to extend jurisdictions at each other’s expense.

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Chapter 11
Learned Opinion and Royal Justice: The
Role of Paris Masters of Theology During
the Reign of Philip the Fair
William J. Courtenay
In March 1308, masters of theology at the University of Paris

responded to a series of questions posed by the king, Philip the Fair, regard-
ing the nature and extent of royal judicial authority over the Templars. At
first glance it seems strange that the king consulted theologians on such a
matter rather than doctors of canon law, who would seem to be the appro-
priate body to address questions concerning secular power over ecclesiasti-
cal persons and orders. That question has rarely been posed, probably
because historians have assumed that the theologians at Paris in the course
of the thirteenth century had attained the status of a recognized authorita-
tive body on matters of church doctrine and theology, and presumably, by
extension, other spiritual matters. Yet, instead of being an unremarkable,
business-as-usual procedure, Philip’s actions mark a crucial step in the
transformation of the relationship of university and monarchy during his
reign, with important ramifications for the judicial role of the faculty of
theology at Paris.
First, we need to review the relationship of monarch and university
before the reign of Philip the Fair. Throughout the thirteenth century the
University of Paris and its various faculties had two major protectors and
supporters: the king of France and the pope. The transformation around
1200 of relatively independent teachers of philosophy and theology and
their students into a corporate institutional structure known as the studium
of masters and scholars, or the University of Paris, was the result, internally,
of the adoption by teachers, or masters, of an organizational structure bor-
rowed from guilds, and, on the other side, externally, of the protective re-
sponse of public authority, both secular and ecclesiastical, on behalf of that
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150 William J. Courtenay
emerging institution. The latter resulted in documented privileges, not the

least of which was the protection of scholars accorded by Philip Augustus
in 1200 in the aftermath of rioting between students and townsmen and the
beating and imprisonment of scholars by the provost of Paris.1 The royal
privilege acknowledged the limits of secular authority over ecclesiastical
persons—precisely the issue of criminous clerks that lay at the heart of the
conflict of Henry II and Thomas Becket a half century earlier, and which
was again being posed by Philip the Fair in the Templar affair. Yet through-
out the thirteenth century, although there were moments when representa-
tives of royal authority ignored or even encouraged harsh treatment of
disruptive scholars, the overriding attitude of the monarchy, especially
under Philip Augustus and Louis IX, sponsored the protection and flour-
ishing of the university and its members.2 In addition to the economic ben-
efit and enhanced reputation that the university brought to Paris as the
largest and most prestigious center of learning in Europe, it was an institu-
tion that increasingly provided personnel for royal administration and re-
lated branches of government.
Similarly, the papacy extended privileges and protection to university
scholars, even before the crucial pontificate of Innocent III, who had stud-
ied at Paris. The earliest statutes of the university were formulated and
promulgated in 1215 through the authority of the papal legate, Robert of
Courson, who had previously been a regent master of theology at Paris for
a number of years.3 The most important single document for the University
of Paris, sometimes referred to as its constitutional charter, was the papal
bull Parens scientiarum of 1231, which helped end the strike and put the uni-
versity on a new footing.4 Throughout the first half of the thirteenth century
the papacy showered privileges on Parisian scholars as a community, in part
because of the belief that universities, particularly the University of Paris,
were a major resource for church reform and for improving the educational
training of the clergy. And inasmuch as a major concern in the 1150 to 1250
period was the growth of heterodox movements and problems of heresy,
the faculty of theology at Paris and the training of theologians, both mendi-
cants and seculars, were considered a crucial counterforce.
At no point in the thirteenth century did a king or pope ask the Uni-
versity of Paris for anything in return, other than to provide the learned
personnel who were the expected outcome of higher education and the
trained theologians to combat heresy, and to show the deferential respect
that was due to higher secular and ecclesiastical authority. The bishop of
Paris in the thirteenth century occasionally sought help from masters of
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Paris Masters of Theology Under Philip the Fair 151
theology in order to identify false belief, such as occurred in the middle

years of the century and in the response of theologians in evaluating suspect
articles in 1270 and 1277.5 Since the bishop, as ordinary, was primarily re-
sponsible for rooting out heresy within his diocese, often acting through his
chancellor, it was natural for the bishop of Paris to seek learned help from
masters of theology at Paris, just as he and other bishops from time to time
sought help from mendicant theologians. Generally, the papacy played a
supporting role to episcopal authority in such cases, offering advice and
expecting to be consulted in serious matters. And since these were matters
that clearly fell within the purview of the church, French monarchs did not
become directly involved unless instances of false belief erupted into social
conflict, such as occurred with the Albigensians in southern France, or at
the request of a pope.
As a body of learned masters who acted or were consulted frequently
throughout the thirteenth century on matters of orthodoxy, Parisian doc-
tors of theology, on the basis of long years of study and teaching, gradually
came to think of themselves as persons best suited for the interpretation of
Scripture and doctrine.6 As long as they exercised that authority in support
of, or alongside, papal authority, their knowledge was accorded high status,
albeit advisory. When, however, Paris theologians attempted to instruct the
papal curia on scriptural interpretation or matters of policy, as did William
of St-Amour or Henry of Ghent, they were rapidly informed of their proper
place in the hierarchical ecclesiastical order. The famous confrontation of
Henry of Ghent and the papal legate, Benedict cardinal Caetani, over men-
dicant privileges is particularly instructive. Henry firmly believed that
trained theologians, particularly secular theologians such as himself, were
in a position to inform the papacy and reform its policies on certain issues.
The words of Benedict—the future Boniface VIII—were a ringing confir-
mation of the superiority of papal authority in such matters. ‘‘You sit in your
professorial chairs and think that Christ is ruled by your reasonings. . . .
Not so, my brethren, not so! The world is committed to us, and we have to
think of what is expedient for the world, not of what is expedient or agree-
able to you . . . I tell you, before the Roman curia would take this privilege
from the friars, it would rather put the University of Paris in total disar-
ray.’’7 The confrontation resulted in Henry’s suspension from teaching. Yet
Paris masters of theology continued to see themselves—and to be seen by
others—as an authoritative body of expert, learned opinion in matters of
doctrine and belief.
It is against this background that one should view the actions of Philip
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the Fair, which initiated a radically new chapter in the relationship of king
and university. To understand the context and implications of Philip’s ap-
peal to Parisian masters of theology and their response to his questions in
1308, two earlier episodes need to be examined. The first is the purported
action of masters of theology in making a determination in 1297 regarding
the legitimacy of Celestine V’s resignation and thus the validity of Boni-
face’s election as pope. The second is in 1303 when Philip sought the sup-
port of the university and the mendicant houses of study at Paris in his call
for a council to depose Boniface.8
The principal evidence for a collective determination of masters of
theology on the issue of papal resignation comes from the posthumous
process against Boniface in April 1311.9 According to testimony that emerged
from those proceedings, various masters and doctors of theology had deter-
mined that Celestine V could not legally resign the papal office and that the
election of Boniface was therefore invalid.10 The document of 1311 also re-
ported that the bishop of Bayeux referred to a determination of doctors
against the legitimacy of Boniface’s accession to the papal throne.11 The se-
quence of events to be inferred from statements in these proceedings is that
Parisian masters, acting on their own authority, debated and made a deter-
mination in this matter against the legitimacy of Boniface; that they issued
a sealed document with that determination and presented their opinion to
the king; that this determination helped move Philip to the action of publi-
cizing their conclusion; and that hearing of this Parisian determination,
Boniface took action against the two Colonna cardinals who opposed him.
On closer examination, the situation looks different. Apart from the
fact that most of this ‘‘evidence’’ comes several years after the purported
events and comes from one of Boniface’s strongest opponents within the
papal curia, there are factual errors. Two of the three doctors of theology
mentioned by Petrus Colonna as having taken part in this determination—
one a Franciscan and the other a Dominican—were never licensed or
reigned in theology at Paris, so far as we know.12 Had such a determination
taken place, one or more of the letters written by the Colonna cardinals
in May and June 1297 would have mentioned it in their campaign against
Boniface.13 Instead, their third surviving letter denouncing Boniface was
written to the chancellor, masters, and scholars at Paris on 15 June 1297,
attempting to move them to action in a matter on which they had not as
yet taken any position.14
The question whether a pope could resign was debated by theologians,
but not as a collective determination. The issue arose soon after the election
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of Boniface in December 1294, well before Boniface’s bull Clericis laicos in

1296 forbidding royal taxation of the clergy without papal approval. More-
over, several of the theologians who commented on this issue had not been
active at Paris for several years. For example, the disputation of Peter of
John Olivi on the question of resignation was written in the summer of
1295 in southern France, while that of Giles of Rome, already archbishop of
Bourges, was composed at Rome in 1297.15 At least two regent masters at
Paris chose this question for a quodlibetal disputation during the academic
year 1296–97,16 perhaps at the suggestion of royal officials, but there is no
mention before 1311 that masters in theology at Paris debated this issue and
arrived at a collective judgment that invalidated Boniface’s election, as later
alleged. The latter stated that the king had notified the two Colonna cardi-
nals—the main opponents of Boniface within the curia—that such a deter-
mination by Parisian masters had taken place, and that news of that
determination played a role in Boniface’s opposition to the two cardinals.17
The position taken by individual theologians who disputed the issue
acknowledged the legitimacy of Celestine’s resignation and the validity of
Boniface’s election. Such was the conclusion of Peter of John Olivi, despite
the fact that some Spiritual Franciscans joined the Colonna cardinals at
Lunghezza outside Rome in May 1297 in their attempt to depose Boniface.18
Such was also the conclusion of Giles of Rome, former tutor of Philip be-
fore his accession to the throne and someone who had benefited from that
association in the early years of Philip’s reign.19 Godfrey of Fontaines’s
quodlibetal disputation on the subject during 1296–97 is reflective of the
opinion of Parisian theologians. Even though the pope has no superior
from whom he could seek a license to resign his office, if he did so with the
approval of a general council or, as Celestine had done, with the consent of
the College of Cardinals, the abdication was valid according to canon law.20
Godfrey did maintain, however, that the resignation had to be ‘‘for a legiti-
mate cause,’’ which left open one aspect of the question of the validity of
Celestine’s resignation.21
If Philip and his advisers sought confirmation from Parisian theolo-
gians of the view that Celestine could not legally have resigned the papal
office, no such determination was ever made. In fact it is likely that neither
the royal council nor the Colonna cardinals looked to the faculty of theol-
ogy at Paris as the appropriate authoritative body to be approached in this
matter. The Colonna cardinals had addressed their third letter to the chan-
cellor, masters, and scholars at Paris, that is, to the university as a whole,
not regent masters in one faculty. Similarly, the language of the 1311 process,
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regardless of the erroneous conclusion theologians had reached at a collec-

tive determination in 1297, refers simply to Parisian masters and some theo-
logians, not to masters in the faculty of theology. Those attempting to enlist
an authoritative voice at the University of Paris during the crisis of 1296–97
appealed to the university community as a whole, within which the opinion
of theologians carried significant weight. No matter what theological mas-
ters may have thought of themselves, the political value of the University of
Paris for purposes of propaganda was the entire institution, not one of its
constituent parts. As we shall see in the case of 1303 and the early stages of
the Templar crisis, the support of masters and officers in the faculty of arts
was as important if not more important than that of masters in the faculty
of theology.
The next stage in the relationship of the French monarch with the
University of Paris occurred during the second stage in the renewed conflict
with Boniface VIII in 1303.22 Philip was not initially successful in mobilizing
ecclesiastical and baronial support behind his attempt to call a council to
try Boniface for heresy and depose him. His first royal council on the matter
in March 1303 was poorly attended, and thus the second attempt was more
carefully orchestrated. With the support of royal administrators and ecclesi-
astics favorable to his position, Philip first allowed the staging of mass gath-
erings in Paris at which chosen speakers, such as Guillaume de Nogaret,
Guillaume de Plaisians, and Renaud d’Aubigny, harangued the crowds
against the pope and in favor of a call for a council. Philip’s second move
was to require university authorities—we are unsure which ones, but the
most likely persons would have been the rector and prominent masters
from the various faculties—to support his call for a council against Boni-
face.
Although historians have often stated that the university as a whole
supported the king against Boniface, the surviving original document re-
veals a different picture. The king and his advisers settled for what they
could get, namely that the university leadership would allow a document,
prepared by the royal chancery, to be issued in the name of the university
but would not attach any personal names or seals to it, thus supporting the
king but ensuring individual deniability.23 Philip’s next step was to send his
officials and soldiers to the three major mendicant convents, the Domini-
cans, Franciscans, and Augustinian Hermits, to ask each member of those
communities to sign a yes or no list for his call for a council against Boni-
face, with the warning that those who voted no would have to leave France
within the week. It was this event in June 1303 that ended John Duns Sco-
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tus’s first year as sententiarius, since his name on the negative list forced his
return to England. With the king’s claim, however fraudulent, that he had
the full support of the University of Paris and the Dominican, Franciscan,
and Augustinian convents at Paris, he called on the support of bishops, reli-
gious convents, princes, barons, and town leaders across France to fall into
line behind royal policy. In the end it worked.
The important point of the events just described is that not until 1303
had a king successfully asked the University of Paris to issue a document in
support of royal policy. Whatever the merits of the claim that Parisian mas-
ters had made a determination in 1297 that coincided with the views of the
king, this document of 1303 was the first time that royal privileges and pro-
tection of scholars had an effective quid pro quo. Philip sought to use the
reputation of the university as a whole to help marshal support for his pol-
icy. Although he could not get any individuals at the university to sign any
document personally, he managed to get names under threat of exile from
members of the mendicant orders, to discard the negative votes, and to dis-
tribute the favorable signed document from each convent as if it repre-
sented the entire community.
When it came to his move against the Templars in 1307—a case in
which ecclesiastical opinion and judgment rather than wide popular sup-
port was at issue—Philip first attempted to enlist ecclesiastical authorities
in support of royal action already taken, namely, the arrest of the Templars
and the seizing of their property, which he had effectively done in the early
hours of 13 October 1307.24 Describing his actions as necessary for a Chris-
tian king to defend the faith against an immediate danger of heresy and
immorality, and insisting that he was holding the Templars and their prop-
erty on behalf of the church, pending ecclesiastical judgment, Philip ap-
pears to have expected—or certainly hoped—that the pope would accept
the evidence collected against the Templars, denounce them as heretics and
evildoers, and remove their ecclesiastical immunity from secular punish-
ment.
To help Clement V acknowledge the wisdom of royal action, Philip,
acting with or through the Dominican inquisitor Guillaume de Paris, who
was also Philip’s confessor, launched a campaign to shape opinion in favor
of royal action, albeit ex post facto. The day after the arrests, Nogaret pre-
sented the case against the Templars in the cathedral chapter at Notre
Dame; on the next day, a Sunday, various royal officials and several Domin-
icans did the same with crowds in Paris.25 Less than two weeks later Guil-
laume de Paris staged two public confessions at the Templar convent in
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Paris. The first was on 25 October, at which the grand master, Jacques de
Molay, confessed on behalf of himself and other Templars; at a second,
larger gathering on the following day other Templars confessed to the sins
of the order. Both documents portray the audience, those in attendance, as
composed essentially of ‘‘religious and secular masters, bachelors and schol-
ars of the University of Paris.’’26
Surprisingly little attention has been devoted to the identification of
the names of those listed as attending these two gatherings, although the
names were an important element from the standpoint of royal propa-
ganda, just as it had been with the documents in 1303 and documents from
the posthumous trial of Boniface in 1311. Except for Heinrich Finke, who
included editions of the proceedings of the two confessions at the Temple
in Paris in his 1907 study of the Templar affair, subsequent historians have
been content to repeat the claim of both documents that those attending
were primarily members of the university. The purpose of two ‘‘show trials’’
for the Templar confessions on successive days rather than just one has
been described simply as an increase in the size of the audience and in the
number of Templars confessing.
What has not been noticed is that none of those attending the first
meeting were there in their capacity as members of the university, although
several of them were masters, some even regent masters. The nineteen
names, not counting Guillaume de Paris at whose request the others had
assembled, are grouped by category, starting with the abbot of St-Germain-
des-Prés and members of the cathedral chapter at Paris, then leading mem-
bers of the mendicant and religious orders resident at convents in Paris,
some of whom were also masters of theology, and finally four others to
whom the title ‘‘magister’’ is applied.27 As a persuasive piece of propaganda,
however, the document fell short of its aim. Only one Templar, albeit the
grand master, confessed publicly. Moreover, those in attendance were not
precisely disinterested observers. Those from the cathedral chapter, spe-
cifically the archdeacon, chancellor, succentor, penitentiarius, and one other
canon, had attained their positions partially or largely through royal sup-
port, and Philip’s pressure on the mendicant convents in 1303 was still fresh
in the minds of convent leaders in 1307. Finally, the four ‘‘masters’’ men-
tioned at the end of the list were royal clerks or closely connected to the
royal court.28
Thus, in addition to staging more confessions of Templars before a
larger audience, one major purpose of the second meeting was to have the
University of Paris more visibly involved. This was done in two ways. The
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first was to insist, or at least claim, that the officers of the faculty of arts
were present, namely the rector and the procurators of the four nations.
The second was to restructure the listing of names so that they appeared
primarily as masters and bachelors from the university, not as members of
the cathedral chapter or various convents.
Little effort seems to have been made to increase attendance by bish-
ops or abbots. No bishops are noted as present at either gathering, and only
one abbot attended the first gathering but apparently not the second. The
abbots of Ste-Geneviève, St-Magloire, and St-Denis appear not to have at-
tended, nor are the deans of any of the collegiate churches of Paris men-
tioned. For whatever reason, the important constituencies in the eyes of the
royal advisors and the inquisitor were the leadership of the cathedral chap-
ter, the religious convents, and the university.
With the exception of a few persons who may have felt they did not
need to hear the confessions a second time, the first audience returned, now
doubled through the addition of masters and bachelors who clearly repre-
sented the university. To the masters of theology who belonged to the ca-
thedral chapter and mendicant houses, a few additional theologians were
persuaded to attend as well as several bachelors of theology, the rector of
the university, and the procurators of the four nations of the faculty of
arts.29 Although the claim was made that all faculties were represented, no
members of the faculty of medicine were listed, and the only masters of
canon law present were there in their capacity as members of the cathedral
chapter, not the university.
What is of additional interest is that the categories of those attending
were rearranged in the record of this second gathering at the convent of the
Templars. The first group mentioned is composed of nine persons identi-
fied as masters of theology, several of whom appeared in the notarized re-
port of the first meeting as either members of the cathedral chapter (e.g.,
chancellor Simon) or members of religious orders (the Franciscan Alexan-
der of Alessandria, the Augustinian Hermit Henry of Friemar, the Domini-
cans Romeus de Brugaria and Herveus Natalis [Nédelec], the Carmelite
Gerard of Bologna, and Laurence of Vallis Scolarium). To these were now
added two other theologians who belonged to the cathedral chapter, John
of Ghent and William Alexandri. Suddenly theologians are singled out as a
group and placed at the top of the list. Attendees in their capacity as mem-
bers of the cathedral chapter and the religious orders are listed next as the
second and third groups, respectively. The fourth group is composed of
bachelors of theology, almost all of whom belong to the religious orders.
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Then come three Dominicans, one of whom is at the biblical, or beginning

bachelor, stage, including Durand of St. Pourçain. Finally come the names
of the rector of the university, the proctors of the four nations of the faculty
of arts, and then a few others, several of whom were royal clerks.
We need to look more closely at the university-connected persons who
are known to have attended, recognizing that the document only states that
they were present and heard the confession of the grand master of the
order, Jacques de Molay, and other leading Templars; it does not say that
they believed the confessions to be true or that the king had acted rightly
in this matter. Some university masters may have attended out of curiosity,
but the official status of those listed for the university and convents, which
included the prior of each religious house of studies as well as several mas-
ters and bachelors of theology, along with the rector and procurators of the
faculty of arts, suggests that they were required or strongly encouraged to
attend at the request of the inquisitor.30 The only known canon lawyers
among those attending were Hugh de Besançon, in his capacity as a canon
of the cathedral chapter, and Gerardus de Collauduno, also a canon at
Notre-Dame, in his capacity as archdeacon de Josayo for the Paris diocese.
In contrast to the first document, not only was this report on the sec-
ond meeting notarized, but a core group of members of the cathedral chap-
ter and heads of the religious convents attested to the authenticity of the
record in a closing paragraph and attached their seals to the document.31
No members of the University, except for the theologians signing in their
capacity as members of the cathedral chapter or the convents, are part of
this final group.
The notarized reports of the Templar confessions failed to have the
desired effect on the pope. Thanking the king for his help in the matter
(Clement was actually furious over the arrests and imprisonment, not to
mention harsh inquisitorial methods, of persons with ecclesiastical immu-
nity), the pope insisted that the king turn over the Templars to the church,
as he had claimed he wished to do, and allow them to be questioned and
judged by ecclesiastical authority. Philip initially and repeatedly said he was
only holding the Templars on behalf of the church, but that their guilt had
already been established through their confessions, which should be suffi-
cient for the pope and the papal curia. The pope continued to insist on
papal access to the Templars, and in December 1307 Philip allowed Clement
to send two cardinals from Poitiers (where the curia was in residence) to
Paris to question the leading Templars while they remained in royal cus-
tody. The result was that the Templars revoked their confessions and
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claimed innocence and papal adjudication. Clement suspended the author-

ity of the papal inquisitor and demanded that the Templars be turned over
to his court.
At this juncture Philip attempted to circumvent ecclesiastical jurisdic-
tion by obtaining a theological opinion (the equivalent of a legal consilium)
that would allow him to conclude the Templar affair unilaterally. Philip did
so by seeking a response from the masters of theology as a collective body.
Although the matter, as stated earlier, might be thought more appropriate
for deliberation by doctors of canon law, several reasons come to mind as
to why Philip sought instead the opinion of doctors of theology. First, their
reputation as an authoritative body on matters of doctrine and the church
was greater than that of the faculty of canon law at Paris. Second, Philip
may have thought he was more likely to get a favorable answer from the
theologians, especially when the Templars were portrayed as idolaters and
sodomites, than from canonists, who might be more protective of ecclesias-
tical immunity from secular control. Third, a favorable opinion from the
theologians, given their history as advisors to the bishop of Paris and others
on matters of orthodoxy, might help persuade the pope to support the royal
position.
Philip asked the masters of theology for their opinion on a series of
seven questions. Their response in late March 1308 begins with an apology
for the long delay in answering the king, which they claim had nothing to
do with reluctance to become involved but rather was caused by the ab-
sence of certain masters from Paris, which slowed deliberations. Philip
must have been advised, perhaps by masters in the faculty of theology, that
theologians in such matters were used to responding to a series of separate
articles, not just the question of whether the king could act unilaterally
against ecclesiastical persons on grounds of suspected heresy.
The list of seven questions survives in two copies, in addition to their
repetition in the response of the theological masters.32 Briefly, the questions
posed were
1. Whether a secular prince is able to seize, examine, and punish here-

tics.
2. Whether the Templars, because they are knights, can be considered
nonreligious and nonexempt.
3. Whether, on the basis of suspicions obtained through the confes-
sions of some, the entire order can be suppressed.
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4. What is to be done with those who have not confessed or been con-
victed?
5. What is to be done with the additional thirty or forty arrested?
6, 7. What should be done with the possessions of the Templars?
The response of the theologians did not precisely give the king what
he wanted. Although the first question spoke about heretics, not about
those only suspected of heresy, it centered attention on the responsibility of
secular authority to defend the faith. The theologians responded that such
matters should be judged by church authorities, and that only in the case
of compelling danger and the inability of church authorities to act immedi-
ately could secular authority act in order to turn the matter over to ecclesi-
astical authority as soon as possible. The response to the second question
similarly did not support the royal position. The status of knighthood, espe-
cially for purposes of the defense of the faith in the Holy Land, did not
negate the Templars’ status as exempt religious. Third, one cannot suppress
an entire order on the basis of the confessions of a few. In answer to the
fourth and fifth questions, those arrested should be turned over to the
church. The theologians gave a combined answer to the sixth and seventh
questions, which concerned the crucial matter of the goods of the Templars.
The possessions of the Templars were not theirs per se but were for the
defense of the faith; consequently, they belonged to the church for that pur-
pose.
The theologians who responded have sometimes been described as the
regent masters of the faculty of theology. In fact, the group is a mixture of
regent and nonregent masters, and some of the most prominent regent
masters at this time are not among the names of those that appear with
their seals on the bottom of the document. Fourteen masters affixed their
seals to the response, although there were probably some twenty-five or
thirty doctors of theology in Paris at the time. Of those who signed, several
are known to have attended one or both gatherings in October when the
leading Templars confessed. These were the Dominicans Romeus de Bruga-
ria and Herveus Natalis, the Franciscan Alexander of Alessandria, the Au-
gustinian Hermit Henry of Friemar, the Carmelite prior general Gerard of
Bologna, Gerard of St. Victor, Laurence of Vallis Scolarium, and the secular
theologian and canon of Notre Dame, William Alexandri. The other six,
who are not known to have attended the confessions of the Templars, were
the Augustinian Hermit Alexander of Sant’Elpidio,33 the Cluniac master
Gautier de Gamaches, the Cistercian Jacques de Thérines, the regular canon
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Jean de Mont-St-Eloi, and the secular masters Radulphus de Hotot and

Pierre de Saint Omer, this last being also a canon at Notre Dame.34 Missing
in the document are the chancellor, Simon de Guiberville, John of Ghent,
and several other secular theologians, most notably Jean de Pouilly.35
We have no way of knowing why these last individuals did not sign
the response to the king. For some, they may have thought it compromised
ecclesiastical jurisdiction and eroded ecclesiastical immunity to too great an
extent and that the Templars should not be judged or prejudged in any way
by secular authority. Others may have thought that the king acted fully
within his rights and that the response of the theologians did not go far
enough in support of royal action. The latter seems more plausible in that
those who signed the response belonged almost entirely to religious orders.
There were only three secular theologians among the fourteen masters. But
if the seculars wanted to give the king the jurisdictional freedom he was
seeking, why was there no minority report?
There is not room here to address the complex role of Jean de Pouilly
or to include an edition of his quodlibetal question on the right of the pope
to investigate the secrets of a religious order, specifically the Templars. A
few points in Pouilly’s treatment are worth noting and may hold the key as
to why his name and seal do not appear on the document.
Pouilly’s question on whether the secrets of a religious should be re-
vealed to the pope occurs in a quodlibetal question disputed in December
1307 or, at the latest, March 1308.36 His main conclusion is that the pope, in
order to rule the church effectively, must have direct knowledge of the se-
crets of those in religious orders.37 On the surface this would seem to sup-
port the position of Clement V that he should have access to the
imprisoned Templars so that he might question them himself, an access
Philip was reluctant to grant until late December, when he allowed two
cardinals to question a few Templars at Paris, under supervision, which re-
sulted in the Templars revoking their confessions. The concluding part of
Pouilly’s question reveals his approval of Philip’s actions in arresting the
Templars, whose apostasy and immorality were thus brought to light.38 And
although it is the proper role of the pope to inquire into these matters, rules
and practices within an order can change frequently and might differ from
place to place, so that one person, even the pope, is not able to do a com-
plete investigation; otherwise he would not be doing anything else, and the
administration of the church would suffer.39 Pouilly does not intend, how-
ever, for such an investigation to be left to the monarch by default; it be-
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longs to the church. In his view the task is most appropriate for bishops,
who share authority with the pope in such matters.40
In light of Pouilly’s quodlibetal question, he would have given an af-
firmative answer to the first question posed by Philip, namely the correct-
ness of the king’s action in the arrest of the Templars. And his answer to
the second question, namely whether the Templars as knights could be con-
sidered not to be religious or exempt, would have been partially affirmative.
Pouilly was opposed to exemption and thought that all religious and reli-
gious orders in a diocese should be under the authority of the bishop of
that diocese. He did, however, consider the Templars and those in other
orders to be clerics, and therefore under the authority of the church. The
issue of exemption may have been the principal reason that led several secu-
lar masters, including Pouilly, not to join their fellow theologians, most of
whom were in religious orders, in their response to the king.
The reign of Philip the Fair marks a turning point in the relationship
of king and university, and especially that of king and masters of theology.
Before Philip, the king of France did not call upon members of the Univer-
sity of Paris or of its faculties to help implement royal policy. Nor were
masters of theology asked by the king to prepare a learned opinion on a
matter of church doctrine or law, or to judge persons outside the university
community. All the cases in the thirteenth century, including 1270 and 1277,
concerned persons and positions that arose within the faculties of the uni-
versity, and even the case of the disciples of Amaury de Bène at the begin-
ning of the thirteenth century included persons connected with the
university. A new and very different chapter thus begins with Philip the
Fair, one that set an important precedent.
Although the sons of Philip did not make use of this change, it can be
seen as the precedent for Philip VI’s summoning Parisian masters of theol-
ogy to a council late in 1333 to deliberate on the doctrine of the Beatific
Vision, which the tentative pronouncements of John XXII had made a cru-
cial issue of theological debate. Whether or not the theologians’ response to
Philip in January 1334 coincided with Philip’s own views, Paris theologians
were working at the mandate of the king, not under the authority of the
pope, the bishop of Paris, or the archbishop of Sens. And just as the docu-
ments in the Templar affair of 1307 describe the actions of Philip the Fair as
the means by which hidden evils and heretical practices were brought to
light, so too Philip VI’s council in 1333 cast him in the role of the most
Christian king acting on behalf of church and realm to defend the faith. It
is difficult to imagine that Philip VI would have had the courage to assume
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that role—to be the authority under which theologians advised on points

of doctrine just as popes had used theologians on papal commissions or
church councils—without the precedents set by his uncle, Philip the Fair.
Together these royal initiatives in the opening decades of the fourteenth
century not only mark an important transformation in the relationship of
king and masters of theology but were the means by which the authority of
Parisian theologians entered upon a new stage of importance in European
history.

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Chapter 12
Coin and Punishment in Medieval Venice
Alan M. Stahl
On 3 November 1395, a Venetian mint worker named Giovanni

Plaxentio, who went by the nickname Mazorana, was brought before doge
Antonio Venier and confessed to making Venetian torneselli of pure copper
in his home.1 Though it may seem inconceivable to anyone who has visited
the crowded island city, Mazorana had set up his own mint in his home,
where he and two associates beat out ingots of copper with hammers, cut
them into circular blanks, and stamped them with dies he stole from the
mint. By the time the Signori di Notte (Officers of the Night Watch) en-
tered his home and caught him with an ingot of copper and a leather bag
filled with unstruck blanks, he had manufactured between 10,000 and
13,000 of the coins, most of which he sold to Greeks to take to their home-
land, where the colonial coinage circulated. His confession was elicited after
extensive torture and with the testimony of the copper merchant who had
sold him the bullion. In January, Mazorana was brought before the Giudici
di Proprio (Judges of Property), who condemned him to death by fire and
supervised the carrying out of the sentence. One of his accomplices suffered
the loss of his left eye and right hand.
Two decades later, the two noble masters of the silver mint, Fantino
Morosini and Daniele da Canal, were charged with violating the honor of
the state by allowing silver coins to be struck in the mint below the pre-
scribed standard of .952 fineness.2 They were indicted by the Avogadori di
Comun (State Attorneys) and sentenced by their noble peers in the Senate
to a perpetual loss of mint and related offices and a fine of 100 lire di mo-
neta (about 20 ducats).3 Though their crime created a serious threat to the
stability and reputation of Venetian coinage, their punishment was ex-
tremely mild, especially in comparison to that meted out to Mazorana and
his accomplices. One aspect in the leniency in the treatment of Morosini
and da Canal might seem to have been their noble status, but at least when
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Coin and Punishment in Medieval Venice 165
it came to more violent crimes, nobles were generally subject to the same
levels of prosecution and punishment as non-nobles, or even more rigorous
ones.4
In an age when most transactions were covered with physical pay-
ments of coins of precious metal, the reputation of the issues of Venice’s
mint was vital to its prosperity.5 While the integrity of the Venetian coinage
could suffer from a change in the standards of the coins as they left the
mint, either through planned debasement or cheating by mint employees,
the state preferred to cast the blame for such problems on activity outside
its mint. A case in point is the Venetian tornesello, a purposely overvalued
coin produced in enormous quantities for payments in Venice’s overseas
colonies but prohibited from circulation at home. As these coins sank on
the money market to their true intrinsic value, the Venetian authorities
blamed the decline on the influx of imitations made in Greece and lands
under Turkish rule.6 In fact, the number of such imitations seems to have
been relatively modest, and the responsibility for the coin’s fall can be
traced to the great quantities put into production to benefit the state cof-
fers.
Within Venice, the state made a distinction in criminal prosecutions
between those threats to the coinage that could be charged to outsiders and
those that arose out of the actions of its own officials and employees. There
were many prosecutions of counterfeiters and others who threatened the
soundness of the Venetian monetary circulation, and some of these resulted
in public, theatrical punishments. Crimes by mint officials and employees,
in contrast, were less frequent, were subject to endless appeals and argu-
ments of jurisdiction, and often resulted in fines, deprivation of office, or
other minor and nonpublic penalties.
Crimes Against the Coinage in Circulation
Three classes of acts by individuals outside the mint could disturb the value
of the circulating coinage and threaten its reputation. Counterfeiting was
the most serious, as counterfeit coins could be of significantly lower alloy
than the products of the mint, and few individuals had the equipment or
expertise to distinguish true Venetian coins from their imitations.7 Clip-
ping, the shearing of metal off the edge of coins, and culling, the removal
of high weight coins from circulation, lowered the intrinsic value of the cir-
culating coinage and the units of account on which they were based; sig-
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166 Alan M. Stahl
nificant outbreaks of these activities could lead to the necessity of weighing

all coins in circulation and ultimately to the lowering of mint standards to
produce coins that would be competitive in circulating.8 The Venetian state
countered these activities with visible actions, but often on an ad hoc basis
owing to its lack of a systematic code of criminal statutes.
Counterfeiting
Medieval Venice had no codified criminal law; the closest document to a
penal code was the promise that each doge made on entering office.9 The
chapter on coinage of the promise made by Andrea Dandolo in 1343 is typi-
cal: ‘‘[we must] restore [recuperare] and hold in its highest form our greater
and lesser coinage of gold and silver as it now is . . . and if anyone shall
have falsified [falsaverit] this coinage, we shall be vigilant that he is brought
to justice and condemned by our justices in this way: that if anyone shall
be found to have falsified this coinage in Venice, he shall be burnt.’’10 Coun-
terfeiting is the only crime against the coinage mentioned in the promise.
Though what the Mint Masters Morosini and da Canal were charged with
might also have been interpreted as falsification, it was counterfeiting that
the doge had sworn to control, and it was the outsider Mazorana whose
fate followed exactly what the doge had promised.
The policy of burning counterfeiters was, in fact, a relatively recent
one in the fourteenth century, and Mazorana is the only man documented
in the records of medieval Venice as having suffered that fate. Doges of the
early thirteenth century had promised to ‘‘recover’’ the coinage, but no spe-
cific penalty for counterfeiters had been prescribed.11 The punishment of
burning for counterfeiters within Venice and of Venetians counterfeiting
abroad was added in the promise of Giacomo Contarini of 1275.12 However,
this punishment does not appear to have been put into practice for several
decades.
The actual treatment of counterfeiting in the thirteenth century is il-
lustrated by four cases from within the period of 1276 to 1279, remarkably
consistent in procedure and outcome though apparently in response to un-
related crimes.13 The men were foreigners: two from Bologna, one from Re-
ggio, and one from Germany. All were accused of manufacturing false
Venetian coins within the city of Venice: in three cases grossi (the large sil-
ver coins that were the basis of long-distance trade in the period before the
introduction of the gold ducat in 1285) and in one case piccoli (small coins
of base silver alloy used for local circulation). In each case the sentence was
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the same: loss of the right hand and, three days later, banishment from Ven-
ice and its district.
The counterfeiters of grossi were tried in the Council of Forty, while
the one who made false piccoli was tried by the Giudici di Proprio. The
different venues for the trials reflect a conflict over jurisdiction typical of
medieval Venetian magistracies and courts. In 1314, the Maggior Consiglio
(the Great Council, comprising the entire adult male nobility) defended the
right of the Giudici di Proprio to try cases of counterfeiting other than for
grossi, as existing legislation spoke only to the case of false grossi and they
had jurisdiction over cases not specifically covered by statute.14 In 1323, the
Council of Forty confirmed the right of the Signori di Notte to arrest and
torture all suspected counterfeiters and arrogated to itself jurisdiction over
all such cases.15 In this period, the Forty not only acted as the court for the
most important criminal cases but also was the main body charged with
legislation and oversight of the mint and other monetary issues.16
By this time, however, the main target of counterfeiters in Venice was
not Venetian grossi, which had become rare in local circulation, but grossi
of Verona and the Tyrol (called grossi of 20 and 22 pennies respectively),
which were imported for use within Venice.17 In 1314 and 1322, foreigners
were prosecuted for counterfeiting these foreign coins in Venice; those ap-
prehended in 1314 were given the traditional punishment of loss of the right
hand and exile, while the one prosecuted in 1322 lost both eyes as well as
his right hand before banishment.18 In 1325, the Forty specifically gave the
Signori di Notte the right to arrest counterfeiters of the imported grossi and
implicitly claimed the right to try such cases.19
Not all counterfeiters worked within Venice; some made their false
coins outside the crowded city and brought them to Venetian markets to
pass them. In 1290, a man of Treviso who tried to pass false Venetian grossi
made elsewhere suffered the usual fate of those who worked within the city,
the loss of his right hand and exile.20 By the 1320s, Venice was being flooded
with foreign grossi, authentic ones of Verona and the Tyrol, but also with
the products of illicit mints established in the regions of Ravenna and Fer-
rara. In 1324, a Venetian mint employee who made the dies for the opera-
tion near Ravenna, and in whose house such dies and other minting
implements were found, was prosecuted by the Avogadori di Comun and
sentenced by the Forty to six months in jail, after which time he would be
banned from further employment within the Venetian mint without spe-
cific ducal permission and any further work in a foreign mint under threat
of exile.21 His colleagues in the Venetian end of this operation were sen-
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168 Alan M. Stahl
tenced either to banishment or to small fines. The next year, a Ferrarese

man living in Venice was convicted of participating in a forgery mint in his
home region; he was sentenced to a year in jail.22
In many cases, the most external counterfeiters could be charged with
was passing false coins within Venice. Lacking direct evidence of their par-
ticipation in the manufacture, or even the ability to prove their knowledge
of the falseness of the pieces, the Venetian government could at most levy
modest fines. In 1326, a Milanese and a Venetian were prosecuted by the
Avogadori de Comun for having made and sold false foreign coins (though
it is not specified where); they were sentenced to jail terms of one year and
three months, respectively.23 The three Venetian moneychangers (whose
livelihood depended to a great extent on their ability to distinguish genuine
from false coins) who were convicted of knowingly buying these false coins
were given fines ranging from 50 to 100 lire di moneta.
Changes within the Venetian and neighboring coinages in the years
following the Black Death resulted in another flood of false foreign denomi-
nations. A series of acts by the Forty in 1354 reviewed the standards of au-
thentic issues of Verona, Padua and Aquileia and prescribed punishment
for those who tried to spend inferior imitations of these; in such cases the
penalty was the loss of the false coins plus a proportional fine.24 The locus
of this counterfeiting seems to have remained centered on the region of
Ferrara, as evidenced by the prosecution of a Venetian noble for minting
false coins of Aquileia there and of his accomplice for trying to pass the
coins in Venice and Friuli; both men were sentenced to a fine of 200 lire di
moneta.25
Once capital punishment was applied for counterfeiting Venetian
coins, the incidence of the crime appears to have declined; besides that of
Mazorano and his accomplices, only three trials are documented for the
century following the mass prosecutions of the mid-1320s. Two of these re-
sulted in public capital punishment, though not by fire. A blacksmith at the
mint was charged in 1329 with counterfeiting as well as thefts from the mint
and other, unspecified, crimes; he was sentenced to be hanged between the
two columns at the edge of the Piazzetta of San Marco and his body left
there until the following evening as a warning to others.26 A Paduan who
tried to spend 240 ducats of gilt copper in Venice in 1364 was sentenced
to be paraded through the commercial districts with a crown on his head
displaying the false coins before he was executed between the two col-
umns.27 A special case of counterfeiting was occasioned by the rebellion
among Venetians in Crete in 1363, which resulted in the production there
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of soldini imitating those of the Venetian mint; the goldsmith who made
those dies was brought to Venice and condemned by the Council of Ten to
serve three years in jail there.28
Clipping
With the apparent decline in counterfeiting in the fourteenth century, the
focus of legislation and prosecution relating to Venetian coinage shifted to
control of the clipping of coins, the physical removal of metal from their
edges. Though not subject to the kind of public execution meted out for
counterfeiters, clippers were often sentenced to a disfigurement in the same
conspicuous venue—the space on the Piazzetta of San Marco between the
two columns topped by statues of the city’s protective saints. In July 1321, a
Milanese resident of Venice was arrested by the Signori di Notte and
charged with clipping Venetian grossi.29 In the absence of legislation impos-
ing a specific penalty for such acts, he was sentenced to the punishment
previously meted out to counterfeiters: loss of his right hand and right eye,
and banishment.
Later that year, the Maggior Consiglio set up an office specifically to
check for clipped grossi, with the declared intent that the coins could then
circulate by count rather than having to be weighed in each transaction.30
The Officials of Clipped Grossi were to visit the tables and homes of money
changers at least once a week to check that the coins they were offering were
of full weight. They were to confiscate and cut all underweight coins in half,
and could keep half of those they took, with the remainder going to the
state. As no subsequent prosecutions are recorded for clipping Venetian
grossi, this administrative and pecuniary response to the problem seems to
have been deemed successful. In typical Venetian fashion, the Office of
Clipped Grossi went on to accrue additional areas of responsibility and to
compete for jurisdiction with other governmental agencies.31
By 1330, the foreign coins that had flooded the Venetian market and
led to the rash of counterfeiting were themselves debased by their issuers.32
This led to the wholesale clipping within Venice of circulating specimens to
bring them down to the weight of the new issues. The Council of Forty
thereupon extended the right of the Signori di Notte to arrest and torture
individuals suspected of cutting metal off of circulating foreign coins and
claimed jurisdiction for themselves for the trials of this crime.33 In the next
two years, nineteen individuals were prosecuted for clipping Veronese and
Tyrolean grossi within Venice and sentenced to prison terms ranging up to
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170 Alan M. Stahl
three years, fines up to 200 lire di moneta, and in some cases banishment.
Among these were a male noble sentenced to 200 lire di grossi and a three-
year prohibition from office holding and a noble woman who was con-
victed of doing the actual clipping of the coins he provided to her and was
sentenced to three years in the women’s prison.34
The clipping of Venetian coins was dealt with more harshly than that
of foreign coins. The post-plague monetary changes in Venice, like those on
the mainland, brought about an uncertainty about the standards of the
coinage that seems to have encouraged clippers.35 In 1357, the Council of
Forty noted that while there were statutes on the books against the clipping
of foreign coins, they could find no legislation that provided penalties for
clipping Venetian coins.36 It decreed that henceforth any man convicted of
clipping Venetian ducats, grossi, mezzanini, or soldini within Venice or out-
side should have his right hand cut off and be banished; if the culprit was
a woman she should lose her nose rather than her hand. Jurisdiction for
the investigation and the right to torture suspects was given to the Signori
di Notte, and the Avogadori di Comun were charged with indicting suspects
for trial by the Forty. Those found guilty by the Forty would suffer the pre-
scribed corporal punishments and be fined one hundred lire di moneta, to
be shared by their accuser and the Signori di Notte.
Two years later, the Forty declared that the penalties they had pre-
scribed were insufficient for a ‘‘sin abominable to God and the world and
in great contempt of the doge’’ (tale peccatum sit abominabile deo et mundo
et in magnum contemnum dominii).37 They added the gouging of both eyes
to the amputation of the right hand and raised the fine to one thousand lire
di moneta. In the case of women, corporal punishment was eschewed and
the punishment set at a life sentence in prison.
Once on the books, this corporal punishment for clipping Venetian
coins seems to have been enforced consistently. In September 1361, a Vene-
tian was accused of changing gold ducats for silver soldini, clipping silver
off the edges of the coins and trying to use the underweight coins to buy
more ducats; he was sentenced by the Forty to lose both eyes and his right
hand, and be banished.38 Two months later, three Milanese were accused of
clipping Venetian coins within the city and suffered the same fate.39
A case from 1366 shows the scale of this practice and the very real
threat it could pose to the Venetian coinage. Giovanni de Mercadeli was
charged with having given a banker 14,000 gold ducats in exchange for new
soldini, fresh from the mint—which would have been more than 100,000
of the small silver coins.40 He took the soldini to Padua, where he clipped
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their edges. He was caught trying to use the clipped coins in Venice and was
found to have in his possession about 19 kilograms of clipped soldini, two
and a half kilograms of silver ingots made from the melted clippings, and
230 clipped gold ducats. He suffered the loss of both eyes and his right
hand, the confiscation of all of the clipped money and bullion, and a so-
journ in jail until April, when a nobleman paid his fine of one thousand lire
di moneta, at which time he went into exile.
In April 1392 another Venetian, Stefano Ferro, was charged with clip-
ping soldini.41 His trial was delayed because a majority of the Forty ab-
stained from approving the indictment on the first ballot in view of his
claim that he was a cleric and had been put into orders while still a boy. On
the second round, the indictment passed 21 to 20, and Stefano was led to
the spot between the two columns where his eyes and right hand were re-
moved, then taken to the steps of the Rialto bridge, and finally thrown into
the prison adjoining the Doge’s Palace, where he languished for seven
months until his fine was paid and he could go into exile.
A case from the end of the fourteenth century shows how rigorously
the statute against the clipping of Venetian coins was carried out, even
against members of its nobility. In 1392, a Jewish merchant in Alexandria
appeared before the Venetian consul there with the complaint that a Vene-
tian nobleman named Leonardo Gradenigo had paid a Muslim merchant
with one hundred clipped ducats.42 The consul seized Gradenigo’s strong-
box and found 295 clipped ducats in it. Gradenigo fled from Alexandria and
was tried in absentia in Venice the following year. After two ballots in which
the abstentions outweighed those who thought him guilty, Gradenigo was
convicted and received the sentence that upon return to Venice he would
lose his eyes and right hand and then be banished. Fifteen years later, his
wife appealed to the Avogadori di Comun that Gradenigo had been an inex-
perienced youth at the time of the clipping incident and had spent the in-
tervening years wandering through distant lands.43 The case was brought
before the Maggior Consiglio, which in a vote of 300 to 60 gave the doge
the power to grant clemency in the case. This grant was, however, appar-
ently not issued, as a note at the bottom of the record of the original 1392
indictment dated 1413 states that Gradenigo was caught in Venice in that
year and the original sentence was carried out.
Culling
Counterfeiting and clipping were not the only serious threats to the circu-
lating coinage of Venice; culling posed a problem that was not only wide-
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172 Alan M. Stahl
spread but was much more difficult to prosecute. As medieval coins were
handmade, their weight varied from piece to piece, sometimes significantly.
For the most part, within the city Venetian coins were circulated by count
rather than being weighed for each transaction. An individual who did
weigh all the coins he or she received could spend only the light ones locally
and save the heavy ones for melting or use abroad, where they would be
weighed in transaction. As the Senate loosened the standards regulating the
range of weights at which the mint could issue silver coins in the later four-
teenth century, culling became an ever more acute problem, leading to the
lowering of the official mint weight of coins in 1391 and again in 1394.44
Unlike counterfeit or clipped coins, the lightweight culled ones were
genuine and unaltered products of the mint, so not admissible as evidence
of a crime. The only prosecutions for the crime of culling documented for
medieval Venice represent a very specific instance of this crime, the substi-
tution of lightweight ducats in a sealed purse. The gold ducat of Venice was
struck to very narrow weight specifications, so there was little variation in
the intrinsic value of the pieces as they left the mint. However, even a small
weight variation in a coin of pure gold could seriously affect its value, so a
system was set up by which ducats could be weighed by the Officials of
Clipped Grossi, who would then seal them in a bag attesting to their full
weight.45
In 1360, a noble Official of Clipped Grossi and his non-noble assistant
were charged with substituting underweight ducats for good ones in the
process of sealing them; the noble was banned from that office in perpetu-
ity, while the assistant was imprisoned for six months in addition to being
deprived of his position.46 That same year another noble was accused of
having brought good ducats to the officials to be weighed and then squeez-
ing an additional 20 lightweight ducats through the mouth of his purse
without breaking the seal.47 He was tried by the Forty, deprived of a recently
bestowed office, and fined 40 lire di moneta. In 1373, the nobleman Bertuc-
cio da Pesaro had 30 good ducats sealed by the officials but then, without
breaking the seal, inserted 80 underweight ducats (and a false one of gilt
silver) into the bag and brought the coins to the Salt Office, which dealt
extensively with state bonds.48 He was fined 100 lire di moneta and deprived
for two years from the holding of any state office. Three years later, a resi-
dent of Grado sneaked 13 underweight ducats into a bag of 20 ducats that
had been weighed and sealed by Venetian officials; he was sentenced to one
month in jail and fined 13 ducats. The low penalties exacted for these of-
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fenses reflect the fact that no statute had been passed that treated culling as
a crime as serious as counterfeiting or clipping.
Crimes Within the Mint
There were many opportunities for mint officials and employees to profit
illicitly from their access to the precious metal that passed through the facil-
ity and to the dies that could transform bullion into a coin that would be
accepted as having the prescribed standards of metallic content. The mint’s
regulations, reiterated in a series of manuals or capitularies, contain many
carefully worded stipulations designed to reduce the opportunities for such
ill-gotten gains. However, the record of medieval Venice is relatively sparse
in the prosecution of mint employees for actions other than embezzlement,
which attacked the profit the state derived from the mint but had no effect
on the actual coins it produced.
Embezzlement
The Mint Masters, nobles elected for one- or two-year terms, were respon-
sible for the standards of the coins and the revenues the state derived from
their minting. They were also the greatest potential threat to the sound and
legal operation of the mint. In the course of the later Middle Ages, twenty
Mint Masters were prosecuted for violating the rules that governed their
office, as laid out in their manuals, or capitularies.49 Some of these charges
involved technical infractions such as the late submission of accounts, but
many were more substantive in nature. The most common was embezzle-
ment, or, as it was called, ‘‘putting one’s hand in the purse of the com-
mune.’’ The profit from the mint could be a substantial source of revenue
for the state; it is estimated that in 1334, the seignorage from the minting of
the soldino denomination alone amounted to 165,000 lire di monete, equiv-
alent to about 7.5 percent of the outstanding debt of the republic.50 The
damage inflicted on state finances by a Mint Master who withheld part of
this profit could be significant.
Before the middle of the fourteenth century, there was no clear legisla-
tion that prescribed penalties for embezzlement by Venetian state officials.
The problems caused by the lack of such a statute are illustrated by the case
of Mint Master Filippo Venier, charged in 1349 with having suborned a new
mint scribe to record the disbursal to a moneychanger of over 213 ducats
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174 Alan M. Stahl
that Venier had himself pocketed.51 The most the Council of Forty could
require of him was a fine of 200 lire di moneta (62.5 ducats) and a five-year
ban from holding office.
In 1359, the Senate cited the need for consistent rules in such cases and
passed legislation to cover the case of any officials, rectors, or ambassadors
of Venice who put their hands in the goods of the community.52 According
to this act, the Avogadori di Comun had the authority to prosecute any
official who took an amount greater than 50 lire a grossi from the state cof-
fers or received more than 100 lire a grossi in contravention of his capitu-
lary.53 Within three days of conviction he was required to repay the total
amount taken, plus a penalty of half that amount to be split evenly among
the Avogadori, the state treasury, and the accuser if there was one. If the
amount taken was under the specified amounts, the penalty was one-third
of the amount taken.
Among the cases of the prosecution of a Mint Master that invoked this
legislation, that of Filippo Barbarigo stands out as the most noteworthy in
terms of its extent, as well as the information it offers on the procedures
and jurisdictions involved in the oversight of ‘‘white-collar’’ crime in
medieval Venice. Barbarigo was a member of one of the elite families within
the nobility, which was in the top half of the nobility in the assessments for
forced war loans in the Estimo of 1379 and would produce two doges in the
following century.54 He was Master of the silver mint from at least 1368.
Barbarigo came under scrutiny in May 1385, when two special auditors
were authorized to inspect the accounts of the mint, along with those of
other offices, in an attempt to restore the state’s finances in the wake of the
devastating War of Chioggia against Genoa.55 When they discovered that
Barbarigo, along with the mint’s scribe, had been using the mint’s capital
for personal speculation in the money market, the auditors got the Senate
to decree that all of their profit should go to the fisc.56 The Avogadori di
Comun objected that such a confiscation was not provided for in the capit-
ulary of the Mint Masters and so constituted an illegal emendation of the
rules of that office; the Minor Consiglio (Lesser Council) accepted this rul-
ing and reversed the judgment.57 At this point, the Avogadori di Comun
took over the prosecution of Barbarigo. His crime was to be publicly an-
nounced in the next Sunday meeting of the Maggior Consiglio and he was
sentenced to be perpetually banned from election to any further state office.
If he did not repay his illicit gains within three days, he was subject to an
additional fine of twenty-five percent of the total owed.
On 13 June 1385, the Avogadori lodged another charge against Barbar-
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igo.58 He was accused of having taken about 450 ducats from mint profits
in the period since 1379. The prosecutors ordered him to pay back that sum,
plus half again as much in penalty, within three days. Moreover, they noted
that he had not filed his accounts for the eleven years of his tenure before
1379 (despite strict regulations in the capitulary for the regular filing and
auditing of such accounts) and imposed an arbitrary figure of 700 ducats
plus half again as much as penalty for that period. When Barbarigo failed
to pay the 1,150 ducats within the three days, the Council of Forty instructed
the Avogadori to proclaim on the stairs of the Rialto market that he had
one week to appear before being tried in absentia.59 On 17 July, the case was
brought before the Senate, which voted 51 aye, 2 nay, and 44 abstaining to
levy the prescribed penalties against him.60 A marginal note in the registers
of the Avogadori records that on 19 July the entire amount of the capital
plus an equal amount as penalty was seized from Barbarigo’s possessions.
Barbarigo’s troubles were far from over. Barely a week after the Avoga-
dori had seized over 2,300 ducats worth of assets, the Forty met and passed
two further judgments against him.61 The first concerned a dispute with his
brother Maffeo, in which Filippo was charged with perjury before the ap-
peals court; he was given a week to respond before being tried in absentia.62
In the second action that day, the Forty noted new charges brought against
Barbarigo for the handling of untaxed silver bullion and again authorized
the Avogadori to proclaim these charges against him on the steps of the
Rialto. Three days later, in order to be able to gain access to more of Barbar-
igo’s assets, the Senate gave the captain of a ship in which Barbarigo had a
partnership control over disposing of his shares.63
On 8 August 1385, the Avogadori brought the new charges before the
Senate, accusing Barbarigo of having failed to respond to the charges of
having stolen the proceeds of silver worth about 1,066 ducats and asking
the Senate to apply the appropriate penalties for officials who had put their
hand in the goods of the commune.64 This time, the Senate balked at mov-
ing against Barbarigo. In two votes that day and two more a week later, the
abstentions outnumbered those in favor of the prosecution.65 Only on a
third day of voting, when the attendance was much smaller than before, did
the Senate decide to prosecute Barbarigo and hold him responsible for pay-
ing double the amount taken and ban him perpetually from all offices.66
Marginal annotations in the Avogadori registers record the confisca-
tion of Barbarigo’s assets for this second conviction. On 23 August, just two
days after the Senate finally charged him, the Estraordinarii (navigation of-
ficials) handed over Barbarigo’s share of the freight charges of two ships in
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176 Alan M. Stahl
which he had investments, for a total of about 625 ducats. On 7 September

about 442 ducats worth of his profit from one of these ships was accounted
as the balance of the capital he owed of the original 1,066 ducats, and the
remaining 381 ducats from the same source were credited to his fine. Later
that month his share of the profits of the second ship totaling about 364
ducats was taken, leaving an outstanding debt of 321 ducats.
On 2 March 1387, Barbarigo, who had apparently been absent through-
out all the earlier proceedings, appeared before the doge and his council
and, in order to be able to pay his outstanding fines, got their permission
to liquidate certain bonds that he had at the Salt Chamber.67 Rather than
turn the proceeds over to the Avogadori, however, he reinvested the money
in other state bonds and then petitioned for a special grant to be able to
cash in and keep those bonds in view of the fact that the Avogadori had
taken all that he had in the world and had left him in poverty.68 Over the
objections of the Avogadori, this plea was granted by the Maggior Consiglio
and the Council of Forty.
The case of Filippo Barbarigo illustrates several aspects of the prosecu-
tion of the law in medieval Venice. On the one hand, the charges and penal-
ties against him were carried out in strict accordance with the 1359 statutes;
in the case where the wrong officials had proffered charges, the prosecution
was overruled by the Minor Consiglio, acting as a court of appeals to deter-
mine jurisdiction. The Avogadori di Comun were tireless in pursuing his
assets to satisfy his fines; the fact that the three men in this office personally
received a share of these large sums certainly contributed to their zeal. On
the other hand, perhaps because of his noble status, Barbarigo benefited
from the sympathy of his peers: the Senate all but refused to indict him on
charges that seem to have constituted a strong prima facie case, and in the
end he received clemency to allow him to keep the portion of his assets he
had sheltered by means of patently unscrupulous manipulations.
Other Crimes Within the Mint

While there were many prosecutions against Mint Masters for embezzling
from the profits of minting, there are very few records of prosecutions of
them or of mint employees for actions that would have the effect of harm-
ing the circulating coinage. There were certainly provisions to guard against
such an eventuality. In the case of the gold coinage, a complex system of
assays of the product of one official by his colleagues was progressively
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made more rigorous, to the point of one stature that required that gold be
refined to a purity of more than 24 (!) carats before being coined.69
Nevertheless, the rare prosecution of a Mint Master for violating these
regulations illustrates how loosely they were enforced. In 1416, Antonio da
Riva, who had recently been acquitted of embezzling from the gold mint,
was charged with having purchased 45 kilograms of gold and some florins
and having mixed these with scraps from minting to produce ducats that
he put in his own purse.70 The Avogadori di Comun charged not only that
he had violated his capitulary by participating as a private individual in the
bullion market and stealing gold scraps from the mint, but also that the
ducats he so produced had fallen short of that perfection that they should
have had to the detriment of the honor of the Venetian state. The Senate
had no trouble passing the indictment by a margin of 100 aye, 7 nay, and
15 abstentions, but the sentencing was a more complicated matter. The Avo-
gadori were joined by doge Tommaso Mocenigo in seeking a jail sentence
of six months, a fine of 100 lire di moneta, and perpetual deprivation of
mint-related offices and for five years of all other state offices. Three other
less stringent combinations of punishments were proposed by other offi-
cials; the one that carried on the second ballot was the mildest, demanding
only two months in jail, the 100-lira fine, and deprivation only of mint-
related offices.
In the case of the silver mint, there were even more extensive systems
in place to support the identification and prosecution of a Mint Master who
produced coins below the required standard. Beginning in the middle of
the thirteenth century, Venetian coins of fine silver (though not those of a
low alloy or of gold) bore an indication of the identity of the master under
whose jurisdiction they had been minted, in the fourteenth century in the
form of the initial of the master’s first name and in the fifteenth of both of
his names. However, there is not a single case in the records of medieval
Venice of a Mint Master being prosecuted on the basis of an assay of coins
bearing his mark.
One of the few cases of the prosecution of a master for substandard
silver is that recorded for 1416 against Fantino Morosini and Daniele da
Canal, mentioned at the beginning of this chapter.71 The Avogadori di
Comun charged them with systematically alloying silver below the man-
dated standards and stamping ingots and coins of inferior fineness and
weight. As in the case of de Riva the same year, the more rigorous penalties
sought by the prosecutors and the doge were rejected by the Senate in favor
of a decision that the inferior silver be refined again at the expenses of its
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178 Alan M. Stahl
owners and that Morosini and da Canal be banned from mint-related of-
fices and be fined 100 lire di moneta each.
While thefts by noble Mint Masters were usually effected by means of
false accounting of the profits due the state, other employees simply took
finished or unfinished coins out of the mint. There was, however, no spe-
cific legislation covering such outright theft. Three strikers at the silver mint
were prosecuted by the Avogadori di Comun in 1352 for crimes of this na-
ture. One called Bartolomeo was charged with taking 66 ducats worth of
silver blanks, confessed under questioning, and was sentenced by the Forty
to repay the stolen silver and either pay a penalty equal to that amount or
stay in prison for one year; his release from prison one year later is noted
in the record of his prosecution.72
In this 1352 prosecution, one of the defendants was charged with hav-
ing ‘‘put his hand’’ into the blanks he was given for striking. It is perhaps
not surprising, then, that the 1359 act prescribing punishments for officials
who put their hands in the goods of the state was also applied to common
employees of the mint who stole its products. One such case was Giaco-
mello, an engraver and striker, who was accused in 1379 of taking torneselli
worth under three ducats from the mint.73 The legislation of 1359 was spe-
cifically invoked in his prosecution, and within three days he repaid the
value of the stolen coins with a penalty one-third that sum. In addition, he
was exiled for five years from the city of Venice.
The general moderation shown by the Venetian councils to dishonest
Mint Masters can be seen to have been extended to non-noble mint em-
ployees as well, especially after the 1359 legislation gave specific and rela-
tively mild penalties to those who put their hands into the state assets. In
general, the cases arising within the mint were treated mainly as problems
of accounting and dealt with summarily and leniently.
The Myth of the Mint

The mild treatment for criminal actions within the mint can be contrasted
with the stringent punishments meted out to the general public, even to
nobles, for such crimes against the currency as counterfeiting, clipping, and
culling. The key distinction in influencing the severity of prosecution and
punishment in monetary matters in medieval Venice seems to have been
between those inside and outside of the mint establishment, rather than
between natives and foreigners or nobles and non-nobles. The main goal of
such prosecution can be seen to have been less to preserve the intrinsic con-
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tent of Venice’s coins or the profits accruing to its mint than to produce a
visible and rigorous response to public acts against the coinage and the state
that it represented.
The rigorous prosecution of counterfeiters, clippers, and cullers and
the relatively mild treatment of mint officials and employees whose crimes,
to modern eyes at least, offered an equal or greater threat to Venice’s coin-
age can be seen as a particular application of the myth of Venice—the image
that the state itself functioned perfectly and that all threats were external.74
The public prosecution and prominent corporal punishment inflicted on
counterfeiters reinforced the state’s victorious battle against those who de-
tracted from its coinage, while internal threats were dealt with administra-
tively, grudgingly, and for the most part in closed councils.

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Chapter 13
Licit and Illicit in the Rhetoric of the
Investiture Conflict
Alex Novikoff
Two historical episodes of enduring significance loom large in

the last quarter of the eleventh century: the investiture controversy between
the German emperor Henry IV and Pope Gregory VII and the launching of
the first crusade by Pope Urban II. Following Carl Erdmann’s pioneering
study on the origins of the idea of crusade, historians have long noted the
connection between the rise of a Christian notion of holy war during the
pontificate of Gregory VII and the advent of the crusades.1 The subject of
medieval law and the illicit offers an opportunity to briefly consider a paral-
lel theme also emanating from the investiture controversy and also possess-
ing relevance to the papal justification of violence: the rhetoric of legal and
illegal conduct in the polemical literature produced by the investiture con-
flict. Although it was in the twelfth century that canon law underwent its
most significant transformation, canonists of the late eleventh century such
as Anselm of Lucca and Cardinal Deusdedit provide important examples of
the role canon law played in the papal reform movement. But attention
need not be confined to the explicitly legal literature of the period in order
to appreciate the growing appeal to Christian law. The polemical treatises
generated by the pro-imperial and pro-papal factions provide another van-
tage point for examining the legal arguments for and against the behavior
of the eleventh-century temporal and ecclesiastical leaders and offer a pre-
lude to some of the issues that would arise with the advent of the crusading
movement.
The conflict between empire and papacy that erupted in the mid-1070s
was generations in the making. German emperors since the tenth century
had made a practice of appointing (or investing) local bishops who would
then take an oath of loyalty to the king, a practice specifically forbidden by
church law but one that reflected the realities of power politics in the centu-
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184 Alex Novikoff
ries following the collapse of the Carolingian Empire. Although the colli-
sion course had long been set, and several church councils had been held
during the eleventh century to resolve the issue of lay investiture and si-
mony, it took the famous personalities of Emperor Henry IV (r. 1056–1106)
and Pope Gregory VII (r. 1073–85) for the conflict to reach its peak.2
The sequence of events that constitutes the central episode of the in-
vestiture conflict is well known.3 In 1056 Emperor Henry III died, leaving
his infant son the inheritor of the imperial crown. That same year Henry’s
friend and ally Pope Leo IX also died, leaving his program of reform in the
hands of his legates and successors, popes Nicholas II, Alexander II, and
Gregory VII. From the beginning of his pontificate, Gregory devoted his
energy to continuing, and intensifying, the campaign for moral reform that
had been implemented by his predecessors. In his enigmatic memorandum
Dictatus papae (1075), inserted in the original register of the papal chancery,
Gregory gave a first indication of his challenge to sacred kingship, stating
that it was licit for a pope to depose an emperor.4 He forbade the clergy to
accept investiture into office from a layman and put forward a theological
argument that the clergy, headed by the pope, were superior to kings and
other lay powers, whose role was to carry out the clergy’s directions.
Henry IV’s active resistance to the pope’s initiatives led Gregory to
excommunicate Henry and depose him from his office as king (1076), de-
claring the nobles free from their feudal obligations toward Henry. With
a Saxon rebellion on his hands, Henry, in desperation, went to Italy and
appeared before the castle of Canossa in northern Tuscany, where Gregory
was a guest of Countess Matilda of Tuscany (January 1077). Henry’s fa-
mous episode of allegedly performing penance by standing barefoot in the
snow for three days earned him reconciliation with the church, but only
temporarily.5 No sooner had he returned to Germany and extinguished
the rebellion than he turned against the pope once more. A second excom-
munication of Henry IV in 1080—in complete contrast to that of 1076—
prompted the majority of the German and Italian bishops to side with the
king. Upon Henry’s invasion of Italy, Gregory had no choice but to flee
Rome for the south under protection of his Norman vassal Robert Guis-
card, himself a former three-time excommunicate of the pope. In Salerno
Gregory died an exile. The conflict between the partisans of Henry and the
partisans of Gregory raged on until the Concordat of Worms in 1122, where
a compromise brokered between Pope Calixtus II and Henry V staunched
the political hemorrhaging but by no means solved the problem between
regnum and sacerdotium.6
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Rhetoric of the Investiture Conflict 185
One of the most remarkable features of the controversy between Greg-

ory VII and Henry IV was the polemical literature generated by both sides
of the conflict.7 Panegyric treatises exalting the deeds of kings or extolling
the virtues of ecclesiastical leaders were, of course, nothing new, but the
volume of partisan literature produced by advocates of the imperial and
ecclesiastical causes does indeed mark a turning point in church-state rela-
tions and in European intellectual history more generally. Or, as Karl Leyser
so forcefully remarked, ‘‘the habits of political thought and ideological con-
flict were born in Western Europe during the second half of the eleventh
century.’’8 An early historian of the investiture controversy counted over
one hundred polemical treatises produced in the period between 1050 and
1111, most of them originating in Italian and German lands.9 There are more
still from the middle of the twelfth century.
The authors involved in this ideological conflict include many of the
most important figures in eleventh-century ecclesiastical affairs. Among the
defenders of the imperial side were Benzo of Alba, an Italian bishop in the
service of Henry IV, and Petrus Crassus, possibly a practicing jurist from
Ravenna, each of whom wrote long tracts praising the emperor’s deeds and
defending his legitimacy. Crassus was unusual among pro-Henrician po-
lemicists in that he was a layman and his defense of the king was supported
with quotations from Roman law as well as canon law.10 Wido of Ferrara
wrote a work emphasizing Gregory’s bellicosity and accusing him of being
a schismatic, while Wibert of Ravenna, Henry’s choice for antipope, com-
posed a work defending his own claim to the throne on the basis that Greg-
ory had forfeited the papacy through murder, sacrilege, and perjury.11 The
Lotharingian monk Sigebert of Gembloux, one of the most prolific authors
of his generation, also proved a harsh critic of Gregory’s policies of reform,
condemning what he perceived to be the pope’s unnecessary bellicosity
toward the clergy. ‘‘Who does not grieve,’’ Sigebert lamented in his treatise
c. 1075 defending clerical marriage, ‘‘at so great an upheaval in the Church?
Which Christian does not, if he has any compassion, feel full of sorrow on
seeing Christianity trampled underfoot? . . . and all this backed by author-
ity, by those who are called the leaders of the Church.’’12 Sigebert and his
contemporaries were well aware that they were living during a period of
unprecedented conflict between imperium and ecclesia, between regnum and
sacerdotium. Of the Henrician polemicists native to Germanic lands, Wen-
rich of Trier and Wido of Osnabrück were two of the most widely read.
Henry’s own fiery correspondence with Gregory has been described as the
earliest known propaganda literature in Germany.13
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186 Alex Novikoff
The pro-papal authors of the conflict included Bishop Bonizo of Sutri,

Paul of Bernried, who wrote a biography of Pope Gregory VII in 1128, the
political theorist Manegold of Lautenbach (who challenged the idea that
kings were divinely ordained rulers), and the canonists Bernold of Con-
stance and Anselm II of Lucca (a nephew of Pope Alexander II). Peter
Damian was an early advocate of reform whose treatises were directly cited
by later polemicists.14 These are only some of the characters in a wide-rang-
ing dramatis personae who contributed to the massive literary output of a
fifty-year dispute that, in Brian Tierney’s words, precipitated the crisis and
eventual separation of church and state.15
The controversy between Pope Gregory VII and Emperor Henry IV
came to include much more than the original issues of lay investiture, si-
mony, and clerical celibacy. The program for theological reform that was
Gregory’s primary ambition extended far beyond the sacramental disputes
and encompassed such issues as the justification and condemnation of re-
bellion. Questions concerning the nature of power and holiness and the
proper relationship between the two were likewise at the forefront of
thought and debate.16 Finally, canon law and reform legislation were closely
related expressions of the current political climate that could, and often did,
serve the papal agenda as a form of propaganda, as has been shown in the
case of Bishop Anselm of Lucca.17 Indeed, the appeal and use of laws
deemed applicable to all is a major theme of the polemicists of both sides,
even if the invocation of obedience to the law (or the criminal disregard of
it) can take many forms. As a number of these polemical texts reveal, the
rhetoric of licit and illicit conduct can serve as a valuable weapon in a po-
lemicist’s arsenal and greatly color his discussion of the legitimate use of
violence.
Notwithstanding his defensive posture, Gregory VII may be said to
have provoked the rhetorical battle over legal and illegal conduct, as many
of his letters evoke the papal defense of law and order, oftentimes in dispa-
rate contexts. In a letter of 1073 to the barons of France who were thinking
of campaigning in Spain against the Muslims, Gregory makes the unprece-
dented claim that the kingdom of Spain belongs to the personal right (pro-
prii iuris) of St. Peter and that, in the absence of any legal grant (legitima
concessione) stating otherwise, the Apostolic See has lawful ownership over
the lands through an unbroken law of righteousness.18 With an expanded
sense of what is rightfully his, Gregory also bemoans the lack of law and
order of others, although there is a noticeable lack of precision in Gregory’s
use and definition of law. ‘‘Everywhere I look,’’ Gregory writes to Abbot
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Hugh of Cluny in January 1075, ‘‘I scarcely find bishops who are lawful in
respect of their succession and life.’’19 Gregory demonstrates an altogether
original understanding of law and the Christian community when he re-
ports that the Romans, Lombards, and Normans ‘‘amongst whom I live’’
are ‘‘somewhat worse than Jews and pagans.’’ For Gregory, schismatics,
those who do not follow the leadership of the church, are the most onerous
and the most condemnable.
Throughout his pontificate, Gregory’s rhetoric of law aligns itself to
the themes of obedience and disobedience, terms that, as Werner Goez has
pointed out, are by far the most frequently encountered twin concepts in
Gregory’s letters.20 Gregory’s wrath at the unlawfulness and disobedience in
the German territories is evident in a letter to dukes Rudolf of Swabia and
Berthold of Carinthia, also written in 1075, in which Gregory calls on the
German dukes to spread the message of reform ‘‘in the king’s court’’ and
in other places, by force if necessary—for it is much better to rebuild the
righteousness of God with new councils than to witness the perishing of
souls with laws that are neglected.21 Finally, in letters to the Christian faith-
ful in France, Germany, and elsewhere, Gregory repeatedly condemns what
he regards as the criminal neglect of both divine and human law.22 Whereas
Jews, Saracens, and pagans at least obey their own laws, Gregory writes in
exile in 1084, we Christians appear like ‘‘outlaws and simpletons.’’ Few, but
blessed, are those ‘‘who stand up and face the wicked even unto death for
love of the Christian law.’’23 Curtailing the practices of simony, clerical mar-
riage, lay investiture, and indeed all those who resist him is couched in
terms of both the rule of law and the force that is required to end it.24
A similar assessment may be made of his pontificate as a whole, for
whereas Gregory’s predecessors had spoken primarily of defensive situa-
tions involving fellow Christians in which Christian soldiers were defending
persons and property against hostile incursions by non-Christians, Gregory
carried the notion of justification by war into situations where active expan-
sion of the Christian world and aggressive activities on behalf of papal inter-
ests were at issue.25 Canon law, it would seem, meant papal law. It was a
stipulation of Gregory’s Dictatus papae, after all, that stated ‘‘that [the pope]
alone has the right to make new laws according to the needs of the times,’’
a radical departure from early medieval tradition, but one that was repeated
by Bernold of Constance in the 1070s and Bonizo of Sutri in the 1080s.26
Gregory’s challenge to this tradition, together with the scholarly justifica-
tion of this challenge presented by the Gregorian canonists and polemicists,
marks the moment at which ‘‘law shifted from the divine sphere into that
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188 Alex Novikoff
of human control.’’27 This major development in the legal history of the

medieval West prepared the way for the classical period of canon law that
was to follow in the twelfth century.28
Not all members of the church approved of Gregory’s challenge to the
use of law or his justification for the use of violence. It was Gregory’s con-
troversial methods in spreading the message of reform that led Sigebert of
Gembloux, who was not a member of Henry’s entourage, to say of Gregory
that he had brought down the ‘‘swords of laymen on the necks of the
clergy’’ and had girded ‘‘the sword of war against the emperor.’’29 Members
of Henry’s faction were all the more inclined to counter Gregory’s mea-
sures, often reversing the accusations of illicit conduct. Such is the case, for
example, with Benzo of Alba, whose lengthy polemic Ad Heinricum suc-
ceeds in both glorifying Henry IV, with recourse to history, and denigrating
the election of Gregory VII, with recourse to universal law.
In Book VII of his polemic (written in 1084) Benzo describes the elec-
tions of popes John XVI (997–98) and Gregory VII as breaking ‘‘the inviola-
ble laws of the sacred order’’ and contrasts their illicit elections with the
very licit reigns of emperors Otto III and Henry IV, under whom the popes
were respectively elected. Otto and Henry, bound by their Salian lineage,
are ‘‘one in the sacred fellowship of the law’’ (unum in lege eiusdem commer-
cii).30 With Gregory in exile and Henry’s forces in Rome, Benzo appeals to
Henry and his sacred duty to restore the law and order that has been lost:
‘‘It belongs to your imperial power to improve the Roman republic with
laws, adorn it with morals and control this holy apostolic church with your
defending arm, so that it suffers no harm.’’31 The crime that made Gregory
VII the principal target of Benzo’s polemic was his denial of the king’s su-
preme authority over the church and the emperor’s supremacy over the pa-
pacy. To be sure, this is a theme common to many of the pro-imperial
polemics and it well illustrates the sort of counter-argument that polemi-
cists of the pro-papal entourage felt needed a rebuttal. Perhaps the best ex-
ample of a Gregorian writer who took up the challenge of proving the
pope’s legality against the claims of writers like Benzo of Alba was Bishop
Bonizo of Sutri (c. 1045–c. 1094), whose writings place him at the nexus of
the political developments of the 1080s and 1090s.32
Bonizo’s prolific output include a treatise on marriage, a treatise on
sacraments, a theological work entitled Paradisus, a sermon on penitence, a
letter about a fugitive monk, a sententia on lay investiture, a canonical col-
lection entitled Liber de vita christiana, which includes an important section
on the duties of a knight, and a history of the church entitled Liber ad ami-
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cum, written at the request of an anonymous friend.33 Liber ad amicum was

part of the flurry of polemical activity in 1085–86 that centered on the char-
acter and actions of the recently deceased pope.34 It is no mere chronology
of the church’s history, but rather a carefully constructed narrative that ap-
propriates the past for a very specific purpose. That purpose is made evi-
dent in the introductory questions that the Liber purports to answer: ‘‘Why
in this time of calamity does mother Church lie groaning on the earth; why
does she cry out to God, her prayers unheard, and why is she oppressed
and not set free?’’35 The desperation of this opening question, a rephrasing
of the question asked by Bonizo’s unnamed friend, echoes the sentiment of
persecution shared by many of Gregory’s defenders and hints at the desper-
ate measures needed to remedy the situation.
Bonizo couples the afflictions of the church with a second, more pro-
vocative question: ‘‘whether it was and is lawful [si licuit vel licit] for a
Christian to engage in an armed struggle for the sake of the faith?’’ The
presence of St. Augustine, the auctoritas par excellence on matters of war,
can clearly be felt, and the implied parallel between Augustine’s response to
the destruction of Rome and Bonizo’s response to the invasion of Rome
may well be deliberate. In aligning the despondency of the church to a dis-
cussion of the legality of an armed conflict, Bonizo is effectively mounting
an argument for a holy war. As Carl Erdmann long ago observed, this is of
no minor relevance to the arguments surrounding the launching of the First
Crusade a mere ten years later.36 Moreover, this second question about the
legality of an armed conflict clearly occupies a greater place in Bonizo’s
thought than the ancillary question regarding the oppression of the church.
The overriding theme for the remainder of the treatise is precisely this ques-
tion about the legal boundaries for declaring a religious war, its historical
antecedents, present justification, and future ramifications. An examination
of Bonizo’s use of law as a polemical tool in his history will allow us to
better situate the rhetoric of licit and illicit in the context of the investiture
conflict.
Bonizo’s treatise reveals itself to be a meticulous and relatively detailed
history of the church (though not free of factual errors). Beginning with
biblical history, Bonizo proceeds from ancient to contemporary times citing
the successive achievements of the church and its constituency, often quot-
ing at length the decrees of the various ecumenical councils. As concerned
as Bonizo clearly is with praising Gregory’s character and upholding the
issues that the pope wished to promote, lay investiture and the eradication
of simony chief among them, Bonizo also goes to great lengths to show that
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190 Alex Novikoff
the role of law and justice has historically ruled supreme; those who remain
lawful are rewarded for their good actions, while those who do not admit
the importance of obedience to church (and divine) law suffer, have suf-
fered, and invariably will continue to suffer. Thus Noah, Bonizo explains in
Book I, after suffering so much ‘‘at the hands of those who had dishonored
themselves by unlawful marriage, escaped with his household when the
world perished under the avenging flood.’’37 Noah was ultimately victorious
over those who had disregarded the laws of conjugal bondage; his story and
other exempla from scriptural and patristic sources document the victories
of the righteous.
Bonizo is a valuable source for eleventh-century political and ecclesias-
tical history, as his many examples and citations from ancient and recent
sources demonstrate. He is knowledgeable about eastern Christian history
(the schism of 1054, we must remember, was still recent and not yet seen as
permanent), and he draws on the history and tradition of the eastern em-
pire to reinforce his picture of the lawful Roman church. Bonizo credits
Constantine with bringing ‘‘the law into harmony with the teaching of the
Gospel,’’ so that all bishops should have the Roman pontiff as their head.38
Constantine’s fateful decision to build a new Christian capital on the an-
cient site of Byzantium and to call the council of Nicaea (325), earned him
Bonizo’s praise as ‘‘the greatest propagator of the name of Christ.’’39
And yet the stability of the Roman church was by no means assured.
Constantine the Great had a son named Constantius, Bonizo continues,
who ‘‘devastated’’ the church on account of his ‘‘zeal for the Arian heresy.’’
Some bishops were sent into exile, while others were put to the sword. The
worst was averted, however, when the emperor’s son sent a prefect to expel
the bishop of Constantinople, but the Catholic people, armed with zeal for
the divine law (divine legis zelo armatus) fought for the truth so vigorously
that they burned the prefect’s house and household to the ground.40 Here
Bonizo provides the first historical example of the twin themes of armed
resistance and the Catholic devotion to upholding the law—the law of
Christ and the law of the church—announced in the opening questions of
the treatise. They will recur throughout the work and constitute an impor-
tant centerpiece in Bonizo’s rendition of the critical events leading up to
and including the conflict between Pope Gregory VII and his imperial ad-
versary Henry IV.
Bonizo proceeds chronologically from Byzantine history to Frankish
history, all the while emphasizing the laws that bind the Christian commu-
nity. Regarding the Carolingian rulers, Bonizo cites, not coincidentally, the
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ratification of a law (c. 824) pertaining to the free and unhindered election
of the Roman pontiffs. Violators of the law, so says the ordinance, are to be
exiled. Bonizo also provides a paraphrase from Benedictus Levita’s ninth-
century capitulary concerning the circumstances under which a lawsuit
should be referred to bishops. According to the law, all cases involving ei-
ther military or civil law in which sentence is pronounced by bishops are to
be confirmed as lawful in perpetuity. ‘‘These are the laws worthy of Chris-
tian emperors, who governed their kingdom not, as is the custom of the
Greek emperors, by the agency of subtle eunuchs but through the prudence
of the priesthood.’’41 Bonizo leaves his reader to deduce that so long as these
laws are respected and upheld, peace and harmony in the world will prevail.
The transition from mild panegyric to harsh polemic occurs in Books
V and VI of the treatise when Bonizo arrives at the Salian dynasty and be-
gins to describe church-empire relations during the eleventh century. Criti-
cisms are leveled at the churchmen involved in the blatant abuses of power,
and he condemns the immoral behavior of Pope Benedict IX (1032–46) and
the simony of his rival Gregory VI (1045–46), a priest ‘‘led astray by unlaw-
ful ambitions and the disbursing of huge sums of money.’’ The events that
took place at the synod of Sutri in 1046, just outside Rome, were even more
displeasing to Bonizo’s sense of justice. Emperor Henry III had met in
council with local bishops and the German bishops whom he had brought
with him. After deposing the three men who each claimed to be pope (Ben-
edict, Silvester, and Gregory) Henry then took the initiative to crown him-
self, appropriating the power to appoint a new pope. Where was the
prudence of so many bishops, Bonizo laments, and ‘‘where was the knowl-
edge of so many men skilled in the law [ubi tot iuris peritorum scientia], that
they should believe that what was not permitted to lords [non licuit domi-
nis] should be permitted to servants?’’42 Ambition, simony, and illicit ac-
tions on the part of the emperor and his entourage all account for the
events leading up to and including the Synod of Sutri, the diocese where
Bonizo would later serve as bishop. Ironically, it is precisely through Hen-
ry’s illicit maneuvers that the papacy would be placed into the hands of the
reformers: two years later, in 1048, Henry appointed Bruno of Toul, who
reigned as Leo IX (1048–56).
Bonizo reserves some of his most interesting legal comments for two
women: Empress Agnes, the wife of Henry III and mother of Henry IV, and
Countess Matilda of Canossa. In 1056 Henry III died, leaving his six-year-
old son in possession of the realm. Because he was still a minor and unable
to rule, his mother Agnes served as regent. Bonizo denounces her reign and
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192 Alex Novikoff
her legitimacy, for ‘‘with feminine temerity she did much that was against
the law.’’43 Agnes’s reign would perhaps not have been altogether contro-
versial from Bonizo’s standpoint were it not for her fateful decision to com-
mit the affairs of the Italian kingdom to Wibert of Parma, the archbishop
of Ravenna (1072–1100). In due course Wibert would be Henry IV’s candi-
date as antipope (1084–1100); followers loyal to Henry and Wibert were
called the Wibertines, the very object of Bonizo’s polemical history, as he
later makes clear.
In his later Liber de vita christiana Bonizo seems to confirm his preju-
dice toward women in power, writing that ‘‘it is ordained in the Roman
laws concerning women that they are neither to wield authority nor to exer-
cise secular government.’’44 Bonizo’s judgment of women, though well in
line with other authors of his time, makes an important exception for Ma-
tilda of Tuscany, the only other woman to merit a place in Bonizo’s history.
Matilda not only hosted Gregory when he received and pardoned Henry in
1077, she also hosted the circle of Gregorian reformers, including Bonizo,
during the period of Henry’s ‘‘persecution’’ between 1080 and 1085.45 Not
surprisingly, then, Bonizo is far more charitable to Matilda. She is praised
for her virtue and especially for her valiant resistance against Henry when
the king was fomenting his second rebellion. Her role in Bonizo’s Liber is
especially deserving of attention. Bonizo concludes his history asking ‘‘the
most glorious knights of God’’ to fight for the truth and to struggle for
righteousness (the theme and wording taken straight from Gregory’s own
writings). Significantly, Bonizo places Matilda at the center of this call to
arms: ‘‘Let them endeavor to equal in goodness the most excellent Countess
Matilda, the daughter of St. Peter, who with a virile mind [virili animo],
neglecting all worldly considerations, is prepared to die rather than to break
the law of God and to oppose the heresy that now rages in the Church in
every way, as far as her strength permits.’’46 Her resistance to Henry is fur-
ther compared to the biblical story of Jael, the Hebrew heroine who kills
Sisera to deliver Israel from the troops of King Jabin (Judges 4:9). The con-
trast between Empress Agnes and Countess Matilda thus could not be
greater or more deliberate. Agnes governs with feminine temerity, her rule
illicit; Matilda governs with a virile mind, her actions selfless, prophetic,
and lawful.
Bonizo goes to great lengths in his Liber ad amicum to emphasize the
illicit conduct of those who stand in the way of papal sovereignty. The Nor-
man leader Robert Guiscard conveniently serves this function in the narra-
tive as well. In 1080, having quelled the Saxon rebellion in Germany (with
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irritatingly no support from the pope), Henry IV invaded Italy and forced
the pope to take refuge in Castel Sant’Angelo. There Gregory VII remained
until Robert was able to place his campaigns against the Byzantines tempo-
rarily on hold and return to Italy to escort Gregory to safety in southern
Italy. Bonizo writes that Hugh of Silva Candida, the former champion of
papal reform turned imperial supporter, approached the Norman duke and
promised him the imperial crown if he would turn against the pope. Rob-
ert’s alleged response does the papacy’s bidding: ‘‘you cannot persuade me
to take arms against the Roman pontiff. For it is unlawful to believe that it
is possible, in response to your or anyone else’s hostility, to depose a pope
who has been enthroned by the election of the clergy and the approval of
the people.’’47 Since there is no confirmation from any other source that
Robert made such a statement, or that Hugh and Robert ever met under
such circumstances, the reported encounter must be ascribed to Bonizo’s
political agenda.48 It is interesting to note that in his Liber de vita christiana
Bonizo states that he has composed a separate polemical work against
Hugh, a work that has not survived. ‘‘Whoever wishes to know about the
victory of Pope Urban [II] and his deeds should read the book that I wrote
against the schismatic Hugh; there he will find what he wants fully and
clearly explained.’’49 It is difficult to say which victory Bonizo had in mind
(possibly Urban’s return to Rome in 1089, since he did not live to hear of
the First Crusade), but clearly he saw redemption in Urban’s election.
Naturally, Bonizo is as concerned with proving the legality of Pope
Gregory VII as he is with demonstrating the illegality of those who oppose
him. Here his style may owe something to his encounters with other law-
yers or with Gregory’s own determination to prove the legality of his elec-
tion. Bonizo lays out the various arguments in defense of Gregory much
like a lawyer might defend his client, citing and refuting in succession the
various accusations that have been made against Gregory. ‘‘For there are
those who say that he was not lawfully pope. . . . There are others who say
that the venerable Gregory was lawfully pope, but that he spoke a sentence
of condemnation against himself. . . . There are again certain men who say
that the venerable Gregory was truly Roman pontiff, but that he excommu-
nicated the king unjustly.’’50 Bonizo’s refutation of the first accusation is
particularly legalistic, as he summons none other than Wibert of Ravenna
(antipope Clement III) to serve as a ‘‘witness.’’ Bonizo accepts, for argu-
ment’s sake, the Henrician position that according to an earlier decree of
Pope Nicholas II (1059), no one is to be regarded as pope unless he has been
elected with the consent of the king. Accordingly, Alexander II could not
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194 Alex Novikoff
be considered pope since he was enthroned without the king’s consent. But,
Bonizo asks, how does this affect the validity of Wibert, who was conse-
crated bishop by Alexander? The logic is clear. If Wibert is Henry’s valid
choice to be pope, then Wibert’s consecration must be licit. If Wibert’s con-
secration is lawful, then so must be that of his elector, Alexander, and, by
implication, those of Alexander’s successors. A sound logical argument on
the mutually agreed basis of Wibert’s status is Bonizo’s answer to the indict-
ment. Similar argumentation is provided for the other accusations. Thus
Bonizo skillfully transitions from the earlier dichotomy between the legality
of Gregory’s actions (good) and the illicit actions of the imperialists (bad)
to a more technical demonstration justifying the pope’s initiatives before
once again returning to the essential premise of the work.
Bonizo’s tendentious history culminates with an answer to the ques-
tion posed at the beginning: whether it is lawful for a Christian to fight with
weapons for the truth. If it was ever lawful for a Christian to make war for
any cause, Bonizo asserts, ‘‘it is lawful to make war by every means on the
Wibertines’’ (licet contra Guibertistas omnibus modis bellare).51 The early
history of the church, the history of the Franks, and the wisdom of Saints
Augustine and Jerome demonstrate the necessity and validity of waging war
on heretics and schismatics. Or, as Bonizo so forcefully puts it, ‘‘if it was
lawful to fight for an earthly king, will it not be lawful to fight for the King
of Heaven? If it was lawful to fight for the state, will it not be lawful to fight
for righteousness? If it was lawful to fight against barbarians, will it not be
lawful to fight against heretics?’’52 As before, it is the legality of the fight that
Bonizo stresses, persisting in the theme that the actions of the imperialists
are illicit, while those of the papalists are licit. In other words, it is not only
that warfare and the use of violence is historically and theologically justi-
fied, it is also fully in accord with a proper understanding of the law.
Notwithstanding his impressive polemical skills, Bonizo of Sutri has
remained relatively sidelined in recent discussions about law and the eccle-
siastical arguments for warfare. When Bonizo has been invoked in the con-
text of the late eleventh century it has tended to be on account of his
canonical work, the Liber de vita christiana, and the important section of
the work that deals with the duties of knighthood.53 To be sure, the formal-
ization of a knightly caste in the generation prior to the Council of Cler-
mont was directly relevant to Pope Urban II’s call for the liberation of
Jerusalem, and a resulting growth in knightly piety, as Marcus Bull has
shown, was crucial to the popular appeal of the crusade in the late 1090s.54
Yet the significance of Bonizo’s Liber ad amicum and its message of a legal
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battle fought against the illicit actions of the imperialist/schismatic partisans

of Henry IV should not be underestimated in its relation to events extend-
ing beyond the Gregorian controversy with the emperor. A reformer and
ardent defender of papal sovereignty, Bonizo did not stand in isolation but
responded to the spirit of the times. Bonizo was perhaps not a first-rate
historian or first-rate canonist, but he was a first-rate polemicist with a clear
understanding that law, like history, was an instrument of propaganda that
could be fashioned for political purposes.
In the years following Gregory’s death, perhaps as tempers subsided
somewhat, some supporters of reform offered more mitigated appraisals of
papal policies. Yet the issues of obedience to the law and the justification of
violence that permeated the thought of Gregory VII and papal polemicists
such as Bonizo remained an important issue for ecclesiastical writers. The
influential bishop and canonist Ivo of Chartres (fl. 1090–1115) offers an in-
triguing postscript to the more ardent polemicists of Gregory’s reign. Ivo
was a dedicated follower of the reform efforts, but at the same time did not
hesitate to criticize what he saw as the excesses of the papal party. In a letter
of 1097 to Pope Urban II’s legate Hugh of Lyons concerning a directive not
to consecrate the bishop of Sens, Ivo acknowledged the papal right to make
investiture a criminal act, but expressed skepticism that this was in fact the
most urgent issue of the times: ‘‘For truly, since it is the prohibition of rul-
ers that in fact makes these acts illicit [illicita], so too the remission of them
by rulers according to their own judgment is licit [licita]. We see no one, or
almost no one, condemned of this sort of transgression, but [we do see]
many disquieted, many churches despoiled, many scandals arisen, and divi-
sion between the priestly and royal powers, and without concord between
these, human affairs can be neither safe nor secure.’’55
Ivo makes sure to note the primacy of the pope as the decider of law,
a claim he has inherited from the writers of Gregory’s entourage, but he
takes the discussion in a rather different direction by questioning whether
the obedience required of faithful followers of the church will not result in
more, rather than less, disorder and violence. ‘‘For it may be easy for you
to fight by threatening from afar, but it is even easier for us present to kill
a dangerous adversary with the sword.’’ Ivo requests of the legate that Rome
‘‘more sparingly bind us with the chain of apostolic obedience, lest by plac-
ing insupportable burdens on our shoulders you make any lapse of obedi-
ence either an impossibility or a necessity of ruling.’’56 Ivo insists that he
wishes to observe the interdicts and mandates promulgated by the pope for
the defense of the faith, by force if necessary (consider that the armies of
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196 Alex Novikoff
crusaders have just set off for the Holy Land), but he worries that such a
resolute compliance with the those mandates will result in greater violence
and less security.57 Although not a polemicist like Bonizo, the issues of legal
conduct, obedience, and violence clearly pose a challenge to Ivo who, as
bishop of Chartres, must navigate cautiously between his ecclesiastical du-
ties and local pressures. Even though it would be well into the twelfth cen-
tury before canon law was clearly distinguished from moral theology, the
discussions of acting in accordance with law clearly guided the argumenta-
tion of the Gregorian reformers and anticipated the period when canon law
would become a distinct instrumentality in the life of the Western church.58
It is no exaggeration to conclude that the issue of licit and illicit became a
central theme in the rhetoric of ecclesiastical authors during the last quarter
of the eleventh century, where it would remain for a long time to come.

Authenticated
Chapter 14
Satisfying the Laws: The Legenda of Maria
of Venice
Susan Mosher Stuard
The Dominican Tommaso di Antonio da Siena (Thomas Caf-

farini) arrived in Venice after pilgrimage to the Holy Land in 1394 and
began his assigned task of composing a rule for Dominican penitents (his
Tractatus, then folded into the bull Sedis apostolicae by Innocent VII on 26
June 1405).1 Thomas also translated and glossed exempla featuring cele-
brated Italian saints: Catherine of Siena (1347–80), Giovanna of Orvieto
(1264–1304), and Margherita of Città di Castello (1287–1320). He added one
original work to this corpus, the legenda of his friend Maria of Venice.2 This
work, crucial to his project, featured a life lived with respect for legalities:
statute law of Venice, the diritto comune (common law tradition that had
grown up out of canon law in Italian towns), various consilia, the learned
opinion of theologians, canon law itself, papal directives, Dominican direc-
tives, and the case law of pertinent courts. Apropos to his audience of
wealthy, law-abiding families, Thomas sought a young woman from just
that sort of background who also exemplified virtue, and piety, perhaps ex-
cessively so.3 Maria’s young husband did not meet this standard, and
therein hangs the plot. With this story to tell, and despite good intentions,
Thomas Caffarini stumbled, ironically, on church law, where he was profi-
cient. He needed a miracle of sorts to redeem his legenda for the Penitent
Rule.
Situated squarely on the contested ground of marriage law, Caffarini’s
legenda of Maria sought to satisfy legal niceties. Civic law and church law
alike hedged ‘‘Roman’’ dowry, the chief marital assign awarded at Venice,
with restrictions. ‘‘Roman’’ dowry, a bride’s father’s contribution to the
marriage, harked back to postclassical Theodosian law.4 This gift was the
bride’s by law, but controlled by her husband, who must make money from
it but never squander capital, a tall order in a commercial economy for even
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198 Susan Mosher Stuard
a well-intentioned spouse (Maria’s was not).5 Diritto comune policed dowry

awards, while local sumptuary law governed wedding gifts and registered
dowries. The church viewed dowry and other wedding gifts, along with
consent, as grounds for valid marriage, and stated so plainly; a husband or
his kin were required to provide the bride victus et vestitus (a living) by
both laws. Once this condition was met, the husband’s authority was nearly
absolute, even over a wife’s desire to enter holy orders, according to
Thomas of Chobham’s Summa confessorum.6
Saints by their calling flee the commonplace, yet Maria’s life celebrates
her harmony with, rather than her separation from, her law-abiding urban
milieu. Maria began life as the unexceptional offspring of a prosperous Ve-
netian family, and her legal difficulties hold some answers. Although exem-
pla literature has benefited from the application of literary criticism, few
efforts have been made to contextualize saints’ lives in regard to laws and
economic conditions. This study attempts to do that.
Referred to today as tertiaries, the devout souls Caffarini sought in
Venice remained in the world, that is, they were not enclosed. Each should
lead an exemplary life although none presumed to achieve the heroic sanc-
tity of the mystic Catherine of Siena, the premier saint of the day. Unlike
Catherine, a devout young Venetian woman like Maria, wealthy if not patri-
cian, exemplified ideals congruent with the devotio moderna, which spread
rapidly in the prosperous Low Countries.7 The Modern Devotion lay move-
ment stood against corruption in the church and worldliness, encouraging
its largely well-to-do female followers to witness for the ascetic life. In this
same spirit, the idiom of dress and possessions came to express Maria’s ex-
ceptional spirituality in the brief five years of life left to her.
Maria was no sooner married than she experienced an immediate con-
version to penitent; she was subsequently deserted by her husband, Gian-
nino della Piazza. Thomas Caffarini is vague about this sequence of events,
perhaps intentionally, since he constantly applauds Maria’s virgin-like traits
yet it is apparent that her marriage was consummated, however reluctantly
on Maria’s part. Somehow in those early days Maria managed to visit her
natal home near the Dominican Church of Santi Giovanni e Paolo and ex-
perienced an intense conversion; she did return to her husband’s home,
having little other choice, but was soon deserted when Giannino fled.8
Maria then embarked on a saintly and chaste life in her parents’ home until
her death from plague five years later, despite the fact that her dowry, her
last legal claim on her parents, had been transferred to her husband. As a
young matron in an untenable situation, Maria’s renunciation of her
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The Legenda of Maria of Venice 199
worldly goods, her second and final return to her natal home, and her fer-
vent desire for the vestments of a Dominican penitent provided her an al-
ternative to living out her life under her father-in-law’s roof, disgraced by
desertion but lacking a legal resolution while her father-in-law supplied her
the stipulated legal means of living (victus et vestitus).9
Nicolò Sturion, Maria’s father, a prosperous spice merchant and
member of the capable class referred to as cittidini originari, appears to have
given Maria’s husband, Giannino della Piazza, a generous dowry. The
amount was not specified in Maria’s legenda, but the range of 500 ducats to
1000 ducats is not out of the question for a father whose wealth in the 1379
Estimo was given at 16,000 lire from ‘‘commerce great and small.’’10 This
assessment placed Nicolò in the fourth highest tier of wealth in Venice,
along with 19 other non-noble citizens, while six were worth even more.
Only 91 patricians could claim as great or greater wealth than Nicolò Stur-
ion. To put it another way, Maria was raised in one of the 120 richest house-
holds in Venice, the wealthiest city in Europe by many estimates.
According to the sumptuary law of 1360, dowries had to be registered
with the Avvocatori di Commune for review at Venice, but there were no
upper limits set on them.11 Sumptuary law made no distinction in its regu-
lation of noble and non-noble wedding gifts, thereby acknowledging that
non-noble dowries could be as high as noble ones. In this age of the closing
of the Great Council that distinguished patrician from commoner, poor
noble families providing much smaller dowries continued to live in the city
cheek by jowl with prosperous non-nobles active in long distance trade and
finance. Reinhold Mueller’s exhaustive analysis of money and banking in
Venice cites instances of wealthy non-noble citizens amassing fortunes on a
par with those of noblemen.12 The cittidini originari family of Sturion, active
in the spice trade, with an earlier marriage alliance with the prominent Ser-
vidie of Verona in the person of Maria’s mother Iacoma, and with a fine
wedding provision laid out for Maria, qualify for this status.13
The della Piazza are more difficult to place, largely because the name
della Piazza (on the plaza) that Thomas used as surname for the family
is toponymic rather than a lineage onomastic as one might expect in
fourteenth-century Venice. It is difficult to understand why Thomas re-
sorted to this ploy; it has certainly made research into the family difficult
for Fernanda Sorelli, who has labored so successfully in the archives, ex-
ploring the prestiti (forced loans) and other relevant sources concerning
these two families.14 Thomas may have wished to avoid specifically naming,
therefore slandering, a wealthy family: his narrative of desertion and a pos-
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sible squandered dowry was the stuff of which scandal was made in Venice.
Thomas stated unequivocally that Maria’s family-in-law had a reputation
for great wealth (riputado huomo di grande riccheçça).15 Despite a dearth of
corroborating evidence, there remains little choice but to take Thomas at
his word. The Sturion might have erred in choosing a son-in-law of bad
character, but they would have been unlikely to lavish their wealth on an
impoverished one.
Maria moved in wealthy circles, with close companions from the noble
Soranzo, Mocenigo, and Morosini clans; Thomas was quick to note that she
consorted with noble daughters from families of prominence and wealth.
Distinctions based on political enfranchisement did not necessarily carry
over into social life in the fourteenth century, so a generous marriage por-
tion and other manifestations of affluence could secure Maria a prestigious
circle of friends. The pious young women drawn to Santi Giovanni e Paolo
near the Rialto, who formed an orbit around Maria’s light of sanctity, came
from the best families in town. Placing the non-noble Maria within such a
circle of prominent young women reveals Thomas’s intentions as well or
better than his narrative of Maria’s failed marriage. As wealthy citizens
rather than patricians, the Sturion inhabited a broader stratum of society
than the closed noble class yet they possessed wealth on a comparable scale.
Unlike the nobility, they wed exogamously, and, along with created citizens
(de intus and de extra), cittidini originari were expected to make marriage
alliances with wealthy and successful families from outside. All Venice ben-
efited when these alliances enhanced Venetian prosperity through valuable
connections. Maria’s maternal uncle was a wealthy moneychanger from Ve-
rona.16 An accessible role model for wealthy and noble Venetians, Maria
served equally well as a model for wealthy non-noble families within and
outside Venice. Thomas enumerated the surnames of Maria’s entire circle
and evidently expected those names to resonate among his readers. His
choice of Maria seems apt, since a patrician saint might be regarded as un-
approachable for those whose status was largely determined by wealth
rather than birth; a non-noble saint was more accessible. In Maria, Thomas
chose a role model who could appeal to young women from a broad spec-
trum of wealthy households.
Maria’s dowry, or sums freed by the infusion of dowry into the
wealthy della Piazza household, allowed the disaffected Giannino—termed
lascivo by Caffarini—to purchase expensive war horses (cavalli) and fighting
equipage.17 This is what it would take to ascend to the position of
‘‘knight’’—a euphemism of sorts for adventurer—and set off for the war
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front in the conflict between Francesco Gonzaga, ruler of Mantua, and Gi-
angaleazzo Visconti, duke of Milan. Likely his desertion and purchases,
along with Maria’s disaffection from Giannino, fed gossip. If so, Thomas
took full advantage of the notoriety, obliterating an indignity for Maria and
the Sturion family with his moral message about Maria’s sanctity while con-
sciously demonstrating Dominican support for young women caught in a
legal quagmire like Maria’s.
This is the first series of events in Maria’s legenda that give pause. The
thrill-seeking Giannino did not pursue the more obvious choice of becom-
ing a knight for hire in Venice; instead, his purchases made him a free agent
in foreign wars. To succeed, such aspiring ‘‘knights’’ had to secure horses
of the finest quality and purchase the new plate armor that warfare de-
manded, along with the myriad accessories of sallet, gauntlets, bacinet,
bucklers, jointures, and so on, and a set of expensive weaponry.18 Venice,
like Milan and Florence, manufactured armor, so a supply lay at hand, and
Giannino was probably knowledgeable about his purchases. He never re-
turned, at least in the short span of years covered by Maria’s legenda. He
most likely spent hundreds of ducats to equip himself; in short, he could
have spent a sum equal to the dowry of his failed marriage. Spending dowry
in this fashion was illegal, unless Giannino could repay the sum while Maria
still lived. The misuse of dowry by young husbands was a chronic problem
in fourteenth-century Italy and a frequent source of lawsuits.
In his narrative Thomas associates Giannino going off to war with Ma-
ria’s failed marriage, yet circumspectly makes no direct accusations about
Giannino’s wanton spending. Giannino’s fate is not known, but he still
lived in 1399 when Maria faced death by plague; he did not return to Venice,
according to the legenda. The Sturion family never protested Giannino’s ex-
travagance, nor does Thomas inform readers that the family sued for deser-
tion or dowry restitution. If Maria had refused to cohabit with her husband
(another matter Thomas skims over), such a suit lost legal grounds. There
is an entire subplot here that Thomas refuses to discuss. Nicolò and Iacoma
Sturion exemplify saintly forbearance in their response to their daughter’s
failed marriage, but neither was this the story Thomas chose to narrate.
Still, lost dowry and desertion were fraught for any Venetian family of
standing. While Giannino’s father expressed an intention to house Maria
under his roof, there were no sound grounds for suing for desertion. This
was the marital impasse in which Maria found herself. With the aid of her
mother she returned to her natal home, taking a room on the topmost floor
that she immediately turned into a chapel for private devotions. This did
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not resolve the impasse, but it made her life more bearable. The Sturion
were compassionate toward their daughter Maria, even when it cost them
money.
Maria did bring her corredi, or trousseau, home with her, a matter of
interest to Thomas Caffarini.19 There is some valuable information from the
sumptuary law of 1360 and studies of cost of living to estimate its worth.
No more than four celebratory dresses were allotted to a bride, augmented
by other finery: 40 lire di grossi could be spent on dresses, and a further 30
on accessories or jewels; at 10 ducats to a lira di grossi, this was a consider-
able sum. A bride’s belt could cost 10 ducats.20 Maria possessed multiple
dresses of the celebratory sort, according to an incident related by Thomas
in proof of her sanctity.
Leaving her mother and everyone else in the household, she went upstairs to the
upper portion of their residence where her room was—in effect, a little chapel. . . .
Entering it, she took all her clothes and, with marvelous fervor of spirit, set about
removing and cutting off all their vain and superfluous worldly ornaments. She had
spent a good deal of time at this when her mother, wondering why she was taking
so much longer than usual before joining the rest of the household, finally went up
to look for her and, entering her room, found her and saw what she was doing so
energetically. The mother was more than a little—in fact, quite a bit—upset by this,
so that bursting with indignation she began to scold her and say, ‘‘Young lady, what
do you think you’re doing? If you’re not interested in these things, why don’t you
think about those around you, especially your sisters, who don’t share your atti-
tude? Couldn’t these clothes be of some use to them?’’ This was quite true, since
they had not only her two sisters, but also a goddaughter in the household, all of
whom were looking to get married.21
Wanton destruction of wealth that might provide younger siblings’ bridal

gifts was a warranted source of distress, although here, as elsewhere, Maria’s
mother was soon all forgiveness. Since Maria’s two younger sisters died of
plague, the problem of amassing their corredi disappeared; the fate of the
resident goddaughter is unknown (Maria’s younger brother predeceased
her as well).
As Stanley Chojnacki has pointed out in his study of the wills of the
Morosini family, Venetian women tended to apportion out finery among a
broad network of kin. The cost was significant, making such generosity
more than mere tokens of affection.22 Donald Queller, in his study of the
cost of living in the late years of the fourteenth century, stated that non-
noble and noble grants of victus et vestitus (specified by the procurators of
Venice), augmented by a 16 percent housing allowance, amounted to about
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35 ducats a year. Out of this grant a widow could afford a servant at 3 1/2 to
5 ducats a year if that servant lived in. To his surprise Queller found that
wealthy non-nobles, as well as nobles, purchased celebratory or wedding
dresses for their dependents at about 40 ducats apiece.23 This provides a
startling picture of the high cost of the celebratory clothes that Maria en-
thusiastically ripped apart and goes a long way toward explaining the moth-
er’s distress at Maria’s ‘‘marvelous fervor of spirit.’’ Maria, an eldest
daughter, had lost a dowry, and now her corredi was torn to shreds. Elabo-
rate ribbons of silver and gold thread, jeweled trims, furs, and trains gave
these dresses their distinction, and it was precisely here that Maria ex-
pressed her fervor to rid herself of temptation.
Confronted by her mother’s evident distress, Maria answered:
Oh, sweet good mother, for God’s sake don’t get upset over this. I’m acting right
now on this good impulse, both so that I might grow in it from good to better and
so that I might cut off and remove from myself any occasion for future temptation
that might befall me, of ever tricking myself out in these trappings.24
Thomas tells us that her mother took these sentiments to be a sign of Ma-
ria’s singular holiness. Subsequently Thomas Caffarini suggested to Maria
that she divest herself of all her wealth, which she obediently did, thus
throwing herself on her family for full support the rest of her brief life.
Parental forbearance extended to household tasks, from which Maria
was excused. Thomas wrote:
Her mother, speaking with me at times, told me that she considered it much better
for the household that her daughter dedicate herself to prayer, to which she was
evidently so drawn, than occupy herself with the physical tasks of the household.
She further added that since she saw [Maria] so steadfastly inclined and drawn to
prayer and to celestial and divine things, it must necessarily make her slow, remiss,
and tardy about material and human things.25
Maria did seek to express her religious enthusiasm by caring for the sick. In
this decade of the return of the Black Death, her spiritual advisor would
hear none of it. As Daniel Bornstein noted in introducing Maria’s legenda,
it became a sign of Maria’s holiness that ‘‘she didn’t actually [perform char-
itable acts] because her confessor—Thomas—advised against it out of con-
cern for her health and safety, so that not doing these pious works became
evidence of her great virtue of obedience.’’26 This left Maria few outlets for
actively pursuing the penitent life. She could visit the churches where
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Thomas preached and listen attentively to his sermons, she could turn over
all her possessions to her family (although most had now been lost in the
debacle of her marriage and the destruction of her corredi), and she could
walk modestly on the streets of Venice. Dress played a determining role
here.
Outside the family, only those in the Dominican order, in particular
Thomas, were privileged to see Maria’s beautiful and radiant face, since she
habitually went covered in public:
Her face humbly lowered toward the ground. She did this in such a manner that
from the very beginning of her conversion, before she wore the green mantle or
received the habit of Saint Dominic—this is, while she still wore a little hood and
cloak as is the custom of Venetian girls and young brides, although even then she
wore everything with the greatest modesty and without slashes and other vanities.27
Maria always managed to be a model of holy decorum. The hooded cloak

of a wealthy young Venetian woman remained in her wardrobe, though
without the slashes that could reveal underlayers of fine fabric. Yet Maria
preferred to assume the more concealing plain green mantle that older mar-
ried women generally wore. This desire is presented as foreshadowing her
final assumption of the habit of a penitent, which Maria desired above all
else. A sequence of increasing sanctity expressed through dress suited for
public wear demonstrated the consequence of external signs of sanctity,
even to the exclusion of acts of charity.
But obedience to Thomas as her confessor was not Maria’s only ex-
pression of devotion over her brief span of years. On her own initiative she
discovered the neighborhood of San Luca where many painters had their
shops, and there she found a painted panel of the blessed Catherine of Siena
(la decta beata Katerina).28 Learning that the panel was intended for her
confessor Thomas, Maria nevertheless began to plead with the artist ‘‘so
sweetly that in the end she obtained it from him.’’ She then donned a white
tunic just like the one Catherine wore in the painting. That was not all:
Maria convinced the artist to paint her image into another painting, wear-
ing that white tunic, and appearing among saints of the Dominican order.
For the pose she held her heart in her hand and offered it to the Lord
Jesus.29 Thomas does not inform the reader if he ever received his commis-
sioned panel painting of St. Catherine or if Maria kept it. The incident sug-
gests that on occasion Maria had a mind of her own and knew how to spend
money to obtain her ends.30 She also knew how to feature her striking good
looks. This incident is out of keeping with the general tenor of Thomas’s
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narrative, which stresses passivity and obedience, and complicates the pic-
ture of Maria.
It is evident that when left to her own initiative Maria used dress to
further her own ends. People in the streets noted and remarked on dress
and fashion in fourteenth century Venice because presentation had become
a matter of considerable importance. The clothes of the wealthy could be
eyecatching in their lavishness, color, or extremes of slashing, length, and
trim, but the other side of the coin was that humble and concealing dress
was rendered conspicuous by its exceptional simplicity. Through assimilat-
ing the teachings of John Chrysostom, the early church preached that the
truly devout ‘‘should be discernible by everything, by his gait, by his look,
by his garb, by his voice.’’31 In the late fourteenth century, humble garb
stood out in a crowd more prominently than in earlier times, when the
public had dressed only a bit more elaborately than the devout. In Maria’s
day, people walked the streets hoping to see and be seen and began to be-
lieve that they were as they appeared. They displayed themselves so brazenly
that laws were enacted to curtail excess or le pompe. Thus, for Maria to be
seen, clothes—and the mode of wearing them—could serve as her major
outlet for expressing zeal. In her obedience to Thomas, dress was almost all
that was allowed to her, aside, that is, from listening keenly to Thomas’s
very long sermons.
With heavy veiling Maria could keep ‘‘her mind entirely composed
and tranquil, free from all distractions’’ while walking the streets or enter-
ing church, Thomas noted.32 Thomas recognized in her concealing public
dress sufficient manifestations of sanctity, but this did not satisfy Maria. She
adopted a hair shirt under her fine clothes and began fasting. She took to
using whips to punish her body, and petitioned the Dominican sisters for
assistance in this project. Thomas disapproved, although he acknowledged
it as further evidence of her sanctity. He exclaimed over Maria’s intact
beauty and rosy complexion despite the punishment of her flesh.
Maria’s initiatives that did earn praise from Thomas concern her rapt
attention to his sermons, remaining on her knees for hours on end and
turning her attentive face toward him as he spoke in church. Maria, for
whom Thomas does not even attempt to disguise his fondness, became
Thomas’s mirror, as well as his obedient disciple. This young woman, who
needed little more than her expressive face to convey her messages, encour-
aged this in him. The reader learns that, when Dominicans preached, her
glance did not linger, ‘‘except perhaps on me.’’ Thomas realized ‘‘she was
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watching me with a look full of admiration and reverence.’’33 This could

not help but affect him deeply:
When I became aware of her devout regard for me, I sometimes felt so touched to
the heart that my eyes shed real tears, as I reflected and pondered within myself
with great amazement how God looked upon me through her with such devout
affection and loved and cherished me with such sincere and perfect charity.
Maria said the office of the Virgin both at church and at home every
day, using her small breviary. Along the path of her spiritual journey she
was awarded a great breviary by Thomas purchased in her name in the city
of Siena so that she might learn all the offices de Signore e degli altri santi
(of the Lord and all the saints) according to the usage of the Dominicans.
Such a breviary containing the entire Divine Office cost dearly, but, as
Thomas knew, Maria could afford it, coming as she did from the home of
parents ‘‘who led a particularly delightful life and by whom she was espe-
cially loved and coddled.’’34 Even if this was not one of the finest illumi-
nated breviaries, it was a large text containing the psalms and antiphons as
well as lists of venerated saints, and as such a costly item.35
Thomas often exclaimed over Maria’s lovely complexion, noting that
despite fasting she appeared cheerful and rosy, ‘‘festareccia e rubicuna.’’36
The phrase is repeated so often it serves as a leitmotif in the legenda. Maria
never ate meat while healthy, but when ill she would do so at Thomas’s
command. A fine appearance continued to express Maria’s exalted spiritual
attainments, and her physical beauty dominates as a theme throughout,
even to her death by plague and to the condition of her body after burial.
The confessional afforded Thomas intimate, and prolonged, contact
with Maria. The nature of her confession provided a useful lesson for the
Penitent Rule that Thomas wished to establish, since it featured cogitation,
locution, operation, and omission, all parsed out at length in Thomas’s
lengthy description. After each rule was explained and illustrated, Thomas
gave added attention to the problem of negligent or halfhearted confession,
of which Maria was never guilty. Maria’s sins were small and venial accord-
ing to Thomas, and she was as pure as if she were a four- or five-year-old
girl in matters of sensual concupiscence.37
Sermons and confession established an intimate bond between
Thomas and Maria, but an even greater opportunity for intimacy occurred
when Thomas took on Maria’s education. Noting that when he first met
her she knew ‘‘how to read somewhat,’’ Thomas explained how he gave her
some instruction, and ‘‘in a short time she learned how to write so well that
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later, with my permission, she wrote to certain Sisters of Penance of Saint

Dominic in Pisa.’’38 From only rudimentary skills, Maria had become fully
literate and an accomplished correspondent under Thomas’s tutelage.
Thus it follows from spending time instructing Maria and acting as
her confessor that Thomas learned a great deal about her private life that
was hidden from the rest of the world. Thomas informed his readers that
Maria suffered from three physical infirmities. Her physician considered the
first to be self-inflicted, that is, she developed swollen knees from being
constantly on them. The third and well-documented affliction, the plague,
took Maria’s life in 1399. Thomas presents the second affliction as very real,
but he refuses to name it. It appears to have been a secret shared by Maria
with Thomas when they were closeted together:
This woman incurred another defect of bodily infirmity. She kept it hidden, enjoy-
ing it secretly for Christ, but I noticed a few outward signs of it and commanded
her under obedience to tell me the truth. She was thus compelled to reveal it to me,
which she did with remarkable happiness and joy, and I judged within myself that
the Lord would soon call her to him.39
This is the second mention of the hidden defect—possibly a shameful

one since Thomas will not name it—that was unknown to the world but
revealed to Thomas. It evidently created a special bond between confessor
and penitent. Neither her family nor her circle of devout young women,
nor, for that matter, the Sisters of Corpus Domini, knew as much about
her private afflictions as Thomas. The public Maria expressed holiness in
obedience to Thomas by her display of devotion, interpreted by her garb
and modest mien. Thomas also knew the private Maria and cherished pos-
sessing that knowledge; evidently he found it impossible to resist mention
of this familiarity he alone possessed.
With one glaring exception, Maria’s life was ideal for the promotion
of the Tractatus that Thomas composed after her death, which in turn
shaped the formal Dominican Penitent Rule issued by Pope Innocent VII
in his bull Sedis apostolicae. The Sturion were law-abiding citizens of Ven-
ice, and Maria’s life conformed to the demands of canon and Dominican
law in most respects. But within the Dominican Penitent Rule Chapter I
stated unequivocally that married women might join this brotherhood only
if they had a public instrument that proved their husband’s permission and
consent.40 A deserted wife, Maria never received written consent to become
a vestita, that is, to don the black and white habit of the order, but with
Thomas’s permission she was allowed to do so. As a result she, Thomas,
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and the Sturion family feared Giannino’s return to Venice; fortunately, they
enjoyed the great good fortune of never facing that dreaded event. Maria
died wearing her habit, and Giannino never registered a formal complaint.
Thomas excused his egregious departure from Dominican rules, canon law,
and practice in the confessional on the grounds of Maria’s fervor. Yet, hav-
ing been assigned the task of promoting a penitent order in Venice, it was
unlikely that Thomas was unfamiliar with church teaching on spousal per-
mission. Canon law on the husband’s authority over a wife’s vows in all
regards—food, dress, alms, or sexual abstinence—was well established. It
had worked its way into pastoral manuals, and Dominicans were acutely
aware of canon laws pertinent to their Regulae. Thomas of Chobham’s
Summa confessorum stated:
Likewise it should to be noted that a woman is in the power of her husband and
cannot make any vow of abstinence, nor can the priest impose some special fast on
her for penance, because the husband can alter the vow if his wife vowed some fast,
or if the priest imposed a fast on her beyond the common fasts of the year, because
the wife is bound to keep her body in such a state proper and acceptable for render-
ing the carnal debt to her husband.41
Thomas would have had Maria and Giannino continue their marriage
in ‘‘true matrimonial or widowly chasteness’’42 if that possibility presented
itself, but it would have required Giannino’s return and cooperation. Nei-
ther was forthcoming, yet Thomas took the bold step of permitting Maria
to don the Dominican habit she desired. He provided arguments to justify
this act, but it remains a sticking point of a very serious nature. Since his
purposes in the legenda were didactic, the incident detracts from the recti-
tude of his behavior as confessor and Maria’s as penitent; alternatively one
can speculate that Thomas wanted the reader to suspect that Giannino’s
continued absence after Maria donned her habit had a miraculous quality.
The issue was of importance because Thomas’s targeted audience for
his writing were the inhabitants of Venice and other prosperous towns on
the Italian peninsula. Apparently a consequential segment of society now
indulged their daughters because they could afford to do so. Since Thomas
performed successfully as a trusted authority in Maria’s life, in a way he
substituted for the deserting Giannino—albeit in a spiritual and chaste
spousal role. Thomas spoke of granting the Dominican habit as an indul-
gence for Maria’s extraordinary religious enthusiasm, of which he was inti-
mately aware. Generous but anxious parents with daughters who were
unmarriageable for one reason or another, or whose marriages had failed,
or who were young widows, might be comforted to learn that their daugh-
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ters were in line to receive the guidance of an attentive and compassionate

confessor like Thomas.
Parents had been warned by their own Venetian Fra Paolino in The
Governance of the Family (1314) that ‘‘Sometimes the man follows too much
the will of the woman in buying her ornaments, and this gives rise to much
evil, excessive expenditure, and the woman is more than ever filled with
pride, and for vainglory desires still more to go out and show herself.’’43
Daughters who were even a little willful or vain were believed to need ma-
ture and masterful guidance. Francesco da Barberino (1264–1348) ques-
tioned: ‘‘From where will . . . family have the solid hand, succor, and
counsel they received from you, sweet lord?’’44 This plaint was placed in the
mouth of a grieving widow, one who acknowledged she required authority
over her. Thomas offered a solution for daughters of good family when
marriage did not answer. A penitent community providing a solicitous con-
fessor was an attractive solution when a family faced this dilemma.45 When
daughters were provided only rudimentary literacy (if that), housekeeping,
and needle skills to equip them for the future, few alternatives presented
themselves.
Maria’s rosy complexion and easy blushes aside, her legenda was only a
small part of the materials amassed to further Thomas’s project for a viable
penitent movement within the Dominican order at Venice.46 While he knew
Maria intimately, he was perfectly transparent in admitting his attraction to
her even at the cost of some tedious repetition in the legenda. An intimate
bond between confessor and saint neither surprised nor shocked in four-
teenth-century Italy. A confessor role in the construction of female sanctity
was widely acknowledged, based, as it was, on the submission of the peni-
tent to her confessor in an established hagiographic tradition. The Domini-
can order had chosen Thomas to play the confessor’s role to young women,
and there is no intimation that he was chastised in any way for his behavior
or suspected of base motives in forging close bonds with the attractive
Maria Sturion.
Even so, Maria’s story was a departure. Thomas was a quick study and
had assimilated Venetian mores and manners in record time. He grasped
the importance of slanting Maria’s legenda toward a wealthy stratum of so-
ciety through his contacts with daughters of ‘‘good’’ families and the hospi-
tality of the Sturion household. Without a doubt the other lives he
translated into the vernacular deviated less from the general run of inher-
ited saints’ lives, but they would hardly induce wealthy parents to dedicate
their daughters as vestitae. Dominican penitents were not to be ancilla dei,
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handmaiden, literally slave, of the Lord (Luke 1:38).47 They would not serve
the poor and children like Frances of Rome.48 With the Maria legenda
Thomas aimed at an audience of cosmopolitan urban families who required
a fresh approach: respect for laws, assurances about their daughters’ safety,
and a less rigorous regimen. In the Rule Thomas promulgated for Venice,
vestitae were to see to each other’s welfare in sickness or times of trouble,
otherwise they were exempt from nursing or caring for those in need.49
If Maria’s story is taken as prescriptive, penitents from wealthy back-
grounds might play an altogether new role in witnessing for their faith, one
reliant on their penitential garb and respectability. As the Rule noted, vesti-
tae wore unadorned garments that hung to the ground; that is, they wore
robes without trains.50 Complaints on trains were voiced from the very
floor of the Senate in that day and age, with limits set on them in law.51 In
a world turned to fashion and display, conspicuous simplicity taught les-
sons. Role models who demonstrated attentiveness in church, lowered their
eyes, veiled their faces in public, and displayed obedience to their confessors
could be efficacious in promoting Christian piety. This was so important to
Thomas that despite scrupulosity about the law, he gambled that his mes-
sage would move his audience sufficiently to excuse his one glaring viola-
tion of canon law.
In presenting the Sturion family, Thomas taught lessons in forbear-
ance to parents of daughters who professed a calling to the penitent life.
Although sometimes perplexed by her behavior, Maria’s mother remained
attuned to her daughter’s desires and smoothed the way for her until she
no longer judged her daughter by society’s norms. Maria’s father bore loss
of wealth in a disastrous marriage and accepted Thomas as spiritual guide
for his only surviving offspring; both parents listened to Thomas and en-
couraged his role as confessor to their daughter.52
What the Sturion family did not face bears mention. At least fourteen
cases of contested marriages—abuse, separation, squandered dowry—
required intervention by civil authorities in fourteenth-century Venice.53
Maria’s marriage avoided that fate with its taint of scandal and gossip;
Maria did not endure an expensive trial in church courts either. Thomas’s
legenda obscured any stigma attached to failed marriage for Maria, a fortu-
nate, if not entirely happy ending for his narrative. In other words Thomas
demonstrated a more self-conscious control over the messages he wished to
convey in Maria’s legenda than a cursory reading suggests. This head-
strong, devout, and radiant young woman Maria, of whom he wrote pas-
sionately, was the material of which a Dominican exemplar might be made.
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Chapter 15
Canon Law and Chaucer on Licit and
Illicit Magic
Henry Ansgar Kelly
Natural magic was considered a legitimate science in the Middle

Ages, one that had as its object the hidden properties and powers of the
cosmos. It was sanctioned by the Gospel itself, which told of Magi who
sought out the infant Jesus through their reading of the heavens, and who
were venerated as the Three Kings of Cologne. Magic, of course, was often
put to bad purposes and its practitioners denounced as malefactors, ma-
lefici, and their deeds as maleficia. But fault was found even with some
magic practices intended as beneficia (benefits). Canon law provided little
guidance on the subject of good and not-good magic. True, Gratian’s unof-
ficial collection of competing canons, the Decretum, had a whole ‘‘case’’ on
the subject, namely, Cause 26, centering around a priest convicted as a sor-
cerer, sortilegus (the word means, literally, ‘‘sort-reader’’ or fortuneteller,
but it was inclusive of other kinds of prohibited magic). The three dozen
excerpts gathered here range from discussions by St. Augustine to conciliar
pronouncements, including the celebrated chapter Episcopi (on the delu-
sions of women flying to the Sabbath).1 But the modern relevance of these
canons was unclear, since there was no Ordinary Gloss to this part of Gra-
tian. Finally, John of God, who taught at Bologna from 1229 until 1255,2
made an attempt to supply a commentary, begun and completed in 1243.3
His commentary in turn was supplemented by the Rosary of ‘‘the Archdea-
con,’’ that is, Guy of Baisio, Archdeacon of Bologna, compiled around
1300.4
In this chapter I concentrate on the subject of medicinal magic, which
is addressed by several of Gratian’s canons. The focal point of the inquiry
will be the prohibition of John Peckham, archbishop of Canterbury, against
sorceries and superstitions, and the commentary on this prohibition by
William Lyndwood in his Provinciale (composed in the 1420s).5 I also draw
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212 Henry Ansgar Kelly
upon literary evidence, particularly the works of Chaucer, and also exam-
ples from medical recipe books. Our goal will be to see some of the ways in
which magic was thought to work, on both learned and popular levels, and
to discover lines that were drawn between licit and illicit practices.
Lyndwood and the Canonists
I should note at the beginning that Lyndwood shows no sign of any inde-
pendent knowledge on the subject of charms and magic; he simply refers to
Gratian’s canons and to the Archdeacon’s commentary and to other au-
thorities. Archbishop Peckham’s strictures, on which Lyndwood is com-
menting, come in his constitution Ignorantia sacerdotum, issued in 1281, at
the point where he says that under the First Commandment ‘‘are implicitly
prohibited all sorceries and all charms [incantationes], along with supersti-
tions of characters and other suchlike figments.’’6 Lyndwood defines ‘‘all
sorceries’’ as ‘‘divinations and malefices.’’7 He illustrates charms (incanta-
tions) by simply quoting from the canon Non liceat Christianis in Gratian,
forbidding observances called for in collections of medicinal herbs, unless
it is simply a matter of saying the Creed or the Lord’s Prayer.8
Gratian identifies Non liceat as coming from the ‘‘Council of Pope
Martin,’’ but it is really from the Capitula of Martin of Braga in the sixth
century, a collection of canons of Eastern, African, and Spanish synods.9
The canon forbids Christians to perform ‘‘observations’’ or ‘‘incantations
prescribed in collections of medicinal herbs, except only with the Creed or
the Lord’s Prayer.’’10 Lyndwood adds that ‘‘enchanters’’ (incantatores) is the
word for people who ‘‘exercise art with words,’’ as one reads in the canon
Igitur,11 where St. Augustine quotes Varro as saying that there are two kinds
of divination, art and madness; enchanters are those who practice their art
with words.
Lyndwood also refers here to the Archdeacon’s commentary, which
says, among other things, that the term medicinales in Non liceat indicates
that there is power (virtus) in herbs, just as there is in words (directing us
to the canon Nec mirum) and in stones (as is indicated in the canon Demon-
ium, which also deals with herbs).12 There is nothing in Nec mirum that
meets the eye concerning the power of words, but we will see below why it
is referred to.
The canon Demonium itself reads: ‘‘It is lawful for one who endures a
demon to have stones and herbs, without incantations’’—that is, as long as
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Canon Law and Chaucer on Licit and Illicit Magic 213
incantations are not used. The canon originated in the Penitential of Theo-
dore of Tarsus, archbishop of Canterbury in the seventh century, and it was
repeated in Burchard of Worms’s Decreta, being credited to St. Jerome, and
in Ivo of Chartres’s Decretum. The latter summed it up thus: ‘‘A demoniac
is allowed to carry stones or herbs without an incantation.’’13 But Gratian,
taking over the attribution to Jerome, summarizes it in such a way that it
applies to everyone, not just demoniacs: ‘‘Without incantations it is permit-
ted to have herbs or stones.’’14
When he comes to comment on Demonium, the Archdeacon says that
this canon shows that precious stones have powers; as for herbs, he adds,
enough has been proved.15 He deals with incantations just before this, com-
menting on the canon Ammoneant, a passage attributed to Augustine,
which says that priests are to warn the faithful that magical arts and incan-
tations have no power to remedy infirmities.16 The Archdeacon first refers
to Justinian’s Digest, for Ulpian’s rejection of healings by incantations and
imprecations (which he identifies with exorcisms). Then he remarks that
Ammoneant only rejects magic arts and incantations, ‘‘for it is otherwise
with other words, for there is power in words, herbs, and stones, according
to John of God, as I have said above on Non liceat.’’17
In fact, the Archdeacon said no such thing about Non liceat, as we have
seen, so he has simply made us go around in a circle on the question of
finding an authority who says that there is power in words; and we have
not been given a definition of incantation to distinguish it from allowable
words. But the claim that he has quoted John of God shows us the way out
of the circle.
Here is what John of God says on Ammoneant:
But it is otherwise with other words, because there is power in words and in herbs
and stones. You have this about herbs above, in the same Cause, question 5, Non
liceat, and in Ovid, Metamorphoses 14.22, ‘‘Use the tested powers of the efficacious
herb’’; concerning words, you have it in the same Cause, question 5, Nec mirum;
concerning stones you have it below, in the last chapter [viz., Demonium].18
Nec mirum, to which John of God refers concerning the power of

words, is a very long canon attributed to St. Augustine’s City of God, but it
is really from the De magorum praestigiis of Hrabanus Maurus (d. 856).19
John says that the first part of the canon deals with various kinds of super-
stitions of the Gentiles and their etymologies. The second part states that
God permits such things so that the good may be tried and the wicked all
the more confounded; ‘‘and it says further that words in these instances
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have efficacy, so that when the words are uttered, images appear, through
divine providence.’’20 He is talking specifically about section 9 of the canon,
which deals with the magicians of the Pharaoh confronting Moses, who
turned their staffs into serpents (dragons). Hrabanus explains: ‘‘The magi-
cians were not the creators of the dragons, nor were the evil angels by whose
ministers they produced those results. For there are contained in corporeal
things through all of the elements certain hidden seminal reasons, by which,
once given a temporal and causal opportunity, they burst forth into appear-
ances suitable to their means and ends.’’21
Hrabanus goes on in the canon to say that good angels facilitate the
workings of such causes, but John of God ignores this idea and focuses in-
stead on the power of verbal formularies to activate latent forces planted by
God in nature. He says: ‘‘Note that words have power, such that when
words are said certain images appear from the power of the words. And it
is queried whether doing this is a sin; and some say no while others hold
the contrary. Solution: If one does it with a bad intention, out of revenge,
or lust, or greed, or a desire for praise, it is a mortal sin. But if one should
do it solely to experience the power of the words, it would not be mortal,
because all knowledge is from God, as seen above in this question, in the
canon Non liceat.’’22
So, summing up: Lyndwood commends the opinion of the Archdea-
con, who agrees with John of God that words, like stones and herbs, have
power in medicinal or protective contexts. This should have been enough
to encourage any ‘‘medicine man,’’ and to be taken as a license to use or
experiment with recommended verbal formulas, along with recommended
curative herbs and stones and gestures, in the hopes that they would work.
Perhaps we should not find it surprising that the authorities were laconic
on just how medicinal words worked, since they were no more forthcoming
about how medicinal herbs and stones worked.
Lyndwood continues: a superstition is anything that involves worship-
ing a creature as if it were God, or invoking demons, or practicing magical
arts, or, more generally, putting hope in something other than God.23 Char-
acters are figures or letters, he says. ‘‘Some people,’’ he continues, drawing
on the Archdeacon, ‘‘wear certain divine words around their neck or else-
where, but they should take care that such writing is not for the purpose of
invoking demons, and that it contains nothing false, because otherwise one
could not expect it to be effective on God’s part, because God is not a wit-
ness to falsity. Care must also be taken lest the sacred words be mixed with
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vanities, that is, signs or inscribed characters, except for the Sign of the
Cross.’’24
As for figments, Lyndwood continues, they are any kind of imaginary
creature, such as a cow with a human head. Figments can also designate
inscriptions or poems of invented Hebrew names of angels. The persons
who use them put their hope in the method of writing them, and they also
have confidence in ‘‘ligatures’’ and other vanities, as for example, the shape
of a reliquary, whether it is rectangular or triangular, which has nothing to
do with reverencing God (he is citing the Archdeacon’s commentary once
again).25 Lyndwood adds that the same applies to carrying a writing with
unusual words on it, like ‘‘ineffable names of God,’’ with the claim that it
will protect one from danger or bring some good result.26 Here we finally
have an example, perhaps, of certain words that have power, but, since they
are names of God, it may have been thought that it was a way of invoking
God’s help—that is, a prayer. The Archdeacon, following John of God, was
clearly thinking about words with power apart from prayers.
Chaucer’s Testimony
Now, then, with Archbishop Peckham’s regularly repeated prohibitions

(and Lyndwood’s explanations of them) in mind, let us try to get an idea
of how they were observed or violated by considering attitudes observable
in the world of literature—especially, as promised, in Chaucer’s works. We
want not only to see what was thought to be licit and illicit, but also to get
some insights into how people in the Middle Ages thought that charms and
magic worked, and how these ideas corresponded with the canonistic expla-
nations we have been considering. Was there a ‘‘metaphysical’’ explanation
at the back of their minds, like John of God’s resort to Augustinian seminal
reasons? Or did they think of ‘‘rays’’ or ‘‘waves’’ of force? Chaucer knew
about sound waves and light rays, but how did he think that stones, for
instance, exercised their properties? Perhaps, like the canonists, in the same
way as herbs used for cures, by innate qualities? Does he share any idea that
certain words or strings of words had power in themselves? Some of the
supposed workings presumably came under the topic of ‘‘natural magic,’’ a
special interest at the pre-Christian University of Orleans, according to the
Franklin’s Tale—exemplified only by astrological considerations (the 28
mansions of the Moon).27 Or did some people sometimes think that invisi-
ble spirits of some sort, demonic or elvish, were operating ‘‘behind the
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scenes’’? Remember Hrabanus Maurus and the evil angels of the Egyptian
magicians. The demonstrations of the clerk-magician at Orleans seem to be
in the same category as the apparitions created by subtle ‘‘tregetors’’ and
their sciences, described by Aurelius’s brother (FrankT 5.1139–51), which
would seem to be a mere matter of stage-craft and prestidigitation. The
Franklin calls the illusions of old-time natural magic ‘‘superstitious cursed-
ness’’ (v. 1272), which the church has somehow dismantled or neutralized.
But the magician in his tale appears to rely mainly on cosmic ‘‘timing,’’
through astronomical calculations. No gods or spirits are at work, unlike in
the Knight’s Tale, when Saturn has Pluto send a Fury to spook Arcite’s
horse (KtT 1.2684–85).
In the case of the brass airplane sent as a gift to Cambyuskan in the
Squire’s Tale, its manufacturer may have employed spirits to make it, for,
in addition to checking out the constellations, he ‘‘knew ful many a seel and
many a bond’’ (SqT 5.131), which is taken to mean that he compelled the
help of spirits in its construction, like Prospero’s manipulation of Ariel and
Calaban in The Tempest. But once the ‘‘horsely’’ (v. 194) aircraft was fin-
ished, it worked mechanically, like a clock, by turning a pin (v. 127). We are
not told about the manufacture or the nuts and bolts of the other gifts: the
glass mirror has the power of showing the future and another person’s pres-
ent and future evil dispositions, as well as his accomplices; the ring has the
power of interpreting bird-talk and teaching herbal medicine; and the
sword can cut through anything and can cause wounds that can never be
healed except by applying the flat of the same sword. But, as with the flying
brass horse, if spirits had a ‘‘hand’’ in making them, they were no longer
needed for their operation. They were now ‘‘dis-spirited.’’ We are told ex-
plicitly that the Tartars cannot move the horse from its place because they
do not know the necessary technique: ‘‘they kan nat the craft’’ (v. 185).
But it may well be that in these other objects (the mirror, ring, and
sword) and in many other such cases, no explanations were assumed. For
instance, the girdle that Gawain accepts in Sir Gawain and the Green Knight
seems to be simply very well made, according to Lady Bertilak: it has
‘‘costes’’ (that is, properties) knit into it, perhaps much like modern Kevlar
body-armor, which will prevent him from being ‘‘to-hewen,’’ chopped up.28
Gawain takes her explanation ‘‘on faith,’’ and so do all of the poem’s mod-
ern readers. But she may not be telling the truth, for the girdle does not
prevent Gawain from being nicked, and Bertilak never intends to do any
more hewing of Gawain’s body, once he delivers this small wound. A great
deal of nonsense has been written about these episodes; critics blame Ga-
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wain for putting faith in the girdle instead of in the Virgin Mary, as if faith
in Mary or God were a substitute for being well armed. But I suspect that
behind these modern judgments lurks the idea that all use of magic was
considered sinful in the Middle Ages. This was definitely not the case, for,
as we have seen, canonists like Lyndwood held that there was a legitimate
place for properly conceived and conducted magic.
So, then, it may be that some objects were simply accepted as having
extraordinary powers, with no supernatural or even scientific explanations
attached to them, as with our modern superstitions. We have no explana-
tions for our fear of misfortune from venturing out on Friday the 13th, or
from walking under a ladder. We are told nowadays that certain things or
actions bring ‘‘bad luck’’ or ‘‘good luck,’’ but there is no theory or curiosity
at all about any mechanisms involved. Our superstitions can, however, be
compared with the ancient observation of omens, some of which are ridi-
culed by St. Augustine in his Christian Doctrine; for instance, it is a bad
omen if someone sneezes while you are putting on your shoes, and to coun-
teract it you go back to bed.29 Just so, nowadays, if a black cat crosses our
path, we go a different way; to continue on and cross the place where the
cat has crossed will bring bad luck. But in the Roman superstition the omen
has announced that bad luck is coming. Another example that Augustine
gives is the belief that having your clothing eaten by mice is a bad omen.30
The passage in which these observations occur was duly excerpted by the
medieval jurists; it appears as the canon Illud in Gratian’s Cause 26.31 Chau-
cer’s Parson refers to similar superstitions: ‘‘What seye we of hem that bi-
leeven on divinailes, as by flight or by noise of briddes, or of beestes, or by
sort, by nigromancie, by dremes, by chirkinge of doores or crakkinge of
houses, by gnawinge of rattes, and swiche manere wrecchednesse?’’ (Par-
son’s Tale 10.605).
Let us put aside tales that involve demons, gods, and elvish fairies as
possible explanations for ‘‘wonderful’’ cures, and try to see how ordinary
mortals are supposed to effect them. We can think of the claim that May
makes at the end of the Merchant’s Tale, that she was following a recipe
that someone taught her for healing bad eyes: namely, struggling with a
man in a tree. There seems to be no suggestion here that the malady to be
cured, specifically, January’s blindness, has been caused by any magical or
supernatural means. The cure is simply accepted by January as a form of
alternative medicine, like acupressure. An ecclesiastical judge like Lynd-
wood might not think much of its workability or health benefits, but there
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seems to be no reason why he would condemn it as sinful or superstitious,

unless it could be seen as residually pagan.
Magical Medical Technology
People of Chaucer’s day inherited recipes and charms that must originally
have had a pagan metaphysic behind them; that is, they must to some ex-
tent have been based on the workings of the gods and spirits of local lore
and religion. By Chaucer’s time and place, fourteenth-century England,
there had long been an unfocused attempt to do away with all native spirits
and to replace them with the very spare pneumatology of official Christian-
ity, which consisted only of (1) God; (2) the angels (unfallen and fallen);
and (3) the souls of the dead. But whatever their stage of instruction, the
new Christians and their descendants would have been reluctant to give up
charms based on the old beliefs, especially if they were confident that they
worked. But they made attempts to Christianize them to some extent, as is
evident from some of the surviving corpora of such charms. The basic prin-
ciples must have been to expunge whatever could be seen as an appeal to a
false god, and to add appeals to God and the saints. But it may have seemed
optional to leave in unusual words that had claim to some intrinsic power,
by experience or tradition, whether or not they were rationalized as by John
of God.
For examples, let us look at the three receptaria, or collections of med-
ical recipes (that is, prescriptions), recently published by Tony Hunt and
Michael Benskin.32 They contain for the most part straightforward medici-
nal formulas, but some recipes are designated as charms (charme in French,
carmen in Latin), consisting usually of a prayer. Sometimes there is a refer-
ence to a biblical event, for instance, Jesus being pierced on the cross.33 Or
there is a spurious anecdote, like that of Jesus curing Peter of toothache. In
this case, as elsewhere, the ailment is addressed directly (as is true when
water or oil or salt is exorcized): ‘‘Unde adjuro te, emigranea gutta, per
Patrem et Filium et Spiritum Sanctum, per celum et per terram, et per
novem ordines angelorum [etc.] . . . ut non possis nocere amplius huic fa-
mulo Dei,’’ etc. (‘‘Therefore, I adjure thee, hemicranial gout, by the Father,
Son, and Holy Ghost, by heaven and earth, by the nine Orders of Angels
. . . that thou be able no longer to injure this servant of God,’’ etc.).34
Sometimes, however, mysterious formulas are used. For stopping
bloodflow, write Beronix in the patient’s blood on his forehead or Bironixa
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if the patient is a woman.35 One of the recipes, for dropsy, includes a for-
mula very close to Abracadabra, but punctuated by signings of the cross:
‘‘Ⳮ Abra Ⳮ Abraca Ⳮ Abracula Ⳮ.’’36 It is hard to know how such formu-
las would be assessed by the authorities. For instance, if the practitioner
were summoned to court, if not by William Lyndwood as Official of Can-
terbury (judge at the Court of Arches), then by the sort of archdeacon de-
scribed in the Friar’s Tale, would the recipes be considered an acceptable
form of Christianization, or be censured as ‘‘witchcraft’’? It would, of
course, be up to the individual judge, but if the judge followed the Archdea-
con’s Rosary, he could easily have given such recipes a pass.
We should note, by the way, that the Friar sandwiches witchcraft be-
tween fornication and pimping: the archdeacon ‘‘boldely dide execucioun /
In punisshinge of fornicacioun, / Of wicchecraft, and eek of bawderie’’
(FriT 3.1303–5). This is a reflection of the fact that the offense of illicit magic
was not considered to be very serious in the England of Chaucer’s day. The
same thing can be concluded for Europe in general from the way in which
practitioners of maleficia are treated, even when evil spirits are involved, in
the Lives of the Saints, especially as exemplified in the best-selling Legenda
Aurea of Jacobus de Voragine.37
We can note too that the Parson’s Tale puts deeds of witchcraft or il-
licit magic not under the First Commandment but the Second: ‘‘Thow shalt
nat take the name of thy Lord God in vein or in idel’’ (ParsT 10.588). They
are incorporated awkwardly under the sin of Wrath. He condemns adjura-
tions uttered by ‘‘false enchauntours or nigromanciens’’ over basins of
water, a bright sword, a circle, a fire, or a shoulderbone of a sheep. In so
doing, he says, they act cursedly against Christ and all the faith of Holy
Church (10.603–4). The prohibited use of water or a shiny blade here re-
ferred to corresponds to modern crystal-ball gazing, and it was employed
especially to detect thieves.38
A Test Case: John the Carpenter
With these criteria or considerations in view, let us look at the protective

measures John the Carpenter takes with Handy Nicholas in the Miller’s
Tale. Which of them would pass the muster of Archbishop and Archdeacon?
John has just praised ignorant people whose knowledge is limited to
their ‘‘Belief,’’ that is, the Creed. But he soon shows that he knows more
than this:
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This carpenter wende he were in despeir,

And hente him by the sholdres mightily,
And shook him harde, and cride spitously,
‘‘What, Nicholay, what, how, what, looke adoun!
Awak, and thenk on Christes passioun!
I crouche [cross] thee from elves and fro wightes.’’
Therwith the night-spel seide he anon-rightes
On foure halves of the hous aboute,
And on the thresshfold of the dore withoute:
‘‘Jhesu Crist and Seinte Benedight,
Blesse this hous from every wikked wight.
For nightes verie, the white Paternoster.
Where wentestow, Seinte Petres Soster?’’ (Miller’s Tale 1.3474–86)
Now, then, let us suppose that word of John’s activities came to the atten-
tion of the Archdeacon of Oxford and that he was put down in his book,
‘‘ere the Bisshop [of Lincoln] caughte h[i]m with his hook’’ (FriT 1317).
Using the usual stripped-down inquisitorial procedure for such criminal
matters,39 he would have accused the Carpenter of superstitious practices,
and let us assume that John made a full confession, as follows.
Article 1. After John diagnosed Nicholas as having fallen into despair
and presumably in danger of dying, he attempted to shake him out of his
coma, telling him to remember the Passion of Christ (which of course won
forgiveness and redemption for all sinners, so that no one need despair).
He then made the Sign of the Cross over him (an approved apotropaic rit-
ual, in effect a prayer), with the specific purpose of protecting him from
‘‘elves and wights.’’
Judgment. There is nothing culpable here.
Commentary. ‘‘Wights,’’ as Skeat points out, meant ‘‘creatures.’’ Skeat
takes the word to mean ‘‘living creatures,’’ presumably malevolent human
beings and also, possibly, harmful animals, insects, and so on. But the term
also included spiritual beings and, in fact, every ‘‘animate’’ thing except
God Himself. It is true, however, that in the supernatural sphere it seems
to have been limited to evil spirits.40)
There was no formal doctrine prohibiting belief in elves; there was no
theology of elves and fairies. As I have noted, Christian intellectuals either
denied the existence of such entities or construed them as evil spirits, that
is, fallen angels, that is, demons, devils, like the evil angels that Hrabanus
Maurus speaks of. The Wife of Bath satirically imagines the newfangled or-
ders of friars as driving out the fairies by the very method used by John the
Carpenter, by ‘‘blessing,’’ that is, making the Sign of the Cross: ‘‘Blessinge
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halles, chambres, kichenes, boures, / Citees, burghes, castels, hie toures, /

Thropes, bernes, shipnes [stables], daieries’’ (WBT 3.869–71). She identifies
fairies with elves: ‘‘This maketh that ther ben no faieries, / For ther as wont
to walken was an elf, / Ther walketh now the limitour himself’’ (3.872–74).
She also identifies them with incubi: ‘‘In every bussh or under every tree, /
Ther is noon oother incubus but he’’ (3.879–80).
The nunnery-educated Mrs. Simpkin in the Reeve’s Tale identifies in-
cubi in turn with demons, just as friars would. When she thinks that she is
being attacked by one, she prays: ‘‘Help! Hooly Crois of Bromeholm! / In
manus tuas! Lord, to thee I calle!’’ (RvT 1.4286–87). She then turns to her
husband (she thinks, whereas her husband is actually the one who has just
fallen on her), and says:
Awak, Simond! The feend is on me falle!

Myn herte is broken! Help, I nam but deed!
Ther lieth oon upon my wombe and on min heed! (1.4288–90)
Instead of making the Sign of the Cross, she appeals to the piece of the True
Cross in the shrine in the town of Bromholm, which is in the Reeve’s home
county of Norfolk. This relic would undoubtedly have been kept in a reli-
quary in the shape of a cross, which would account for her calling out to
the ‘‘Cross’’ of Bromholm. She also repeats the prayer of Jesus on the cross,
committing Himself into the hands of His Father.
Article 2. John’s next action was to recite a house-blessing in the form
of a night-spell, five times, toward each of the four quarters of the whole
house, and once at the threshold of Nicholas’s room.
Judgment. There is nothing superstitious about blessing a house, and
nothing wrong with saying a spell.
Commentary. To find fault with spells would be to deny the ‘‘gospel’’—
that is, ‘‘good-spell’’ (translating eu-angelion, ‘‘good message’’). Chaucer
himself, in telling his own Tale of Thopas, says, ‘‘Herkneth to my spelle’’
(Tho 7.893). We have to examine the content of each spell to see whether it
is an acceptable Christian formula or whether it has some taint of supersti-
tion about it. The same is true of charms. One formula in the Rawlinson
receptarium is called a ‘‘good charm,’’ charme bone, for staunching the flow
of blood, and indeed it is a good charm, since it uses the Trinitarian for-
mula of the Sign of the Cross and invokes the wounded Jesus on the
Cross.41 Another charm (carmen) for wounds from the earlier Corpus re-
ceptarium is also orthodox: ‘‘I order thee, wound, by the power of the
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breasts of the Blessed Virgin Mary,’’ etc., ‘‘that thou neither cause pain nor
putrefy,’’ etc.42 What of the ‘‘most approved charm’’ (carmen probatissi-
mum) for dropsy? it reads: ‘‘Ⳮ Dealbagut Ⳮ Deblutym Ⳮ Item, caro ca-
duca, reputa.’’43 There is nothing obviously pagan or demonic about this.
Article 3. Content of the night-spell.
Judgment. There is nothing obviously wrong with most of this for-
mula. Praying to Jesus and St. Benedict to bless, that is, purify and preserve,
the house from every wicked creature, including a ‘‘very,’’ is acceptable.
Benedict has been altered to ‘‘Benedight’’ to rhyme with ‘‘wight,’’ which the
saint would probably not take offense at. A rhyme constraint is also obvi-
ously involved in the appeal to St. Peter’s Sister, which seems odd but
harmless. The use of a ‘‘white Paternoster’’ against a night-very, however,
may be questionable.
Commentary. ‘‘Verie,’’ which most Chaucerians construe as ‘‘an evil
spirit’’ or a collective noun for ‘‘evil spirits,’’ may be a hapax legomenon, or
it may be a form of ‘‘wari’’ (criminal, felon).44 The important Cambridge
Dd manuscript interprets the phrase as ‘‘night-mare,’’ that is, ‘‘an evil fe-
male spirit that oppresses men in their sleep or afflicts horses at night.’’45 In
demonic terms, the nightmare is the succubus, the woman-shaped version
of the incubus. The demon in the Friar’s Tale explains methods by which
fiends can take on various bodies or shapes. But whatever the phrase means,
it is not good; therefore, there could hardly be a legitimate objection to
praying against whatever it represents.
Finally, the white Paternoster. Is there something here offensive to
Christianity? Robert Grosseteste, a predecessor of John’s current bishop (he
served as bishop of Lincoln from 1235 to 1253), would undoubtedly have
said yes, because in a treatise similar to Archbishop Peckham’s constitution
of a generation later,46 he gives examples of sins against the First Com-
mandment, including this (I translate):
Also against this commandment are the rituals of old women who petition for
health from these inferior creatures, for instance, herbs, through incantations,
which the French call ‘‘charms,’’ praying, ‘‘Green Pater Noster, Peter’s dear Sister.’’
In so saying, they suppose a body of the Lord, which is somehow colored. They also
suppose it to be masculine, when they say, ‘‘Pater,’’ and feminine, when they say
‘‘Sister.’’ And thus it is clear that they wickedly blaspheme the name of God.
Our Archdeacon of Oxford would surely note, however, that Grosse-

teste was accusing the women not of superstition but of blasphemy, and
only by misconstruing the formula. The women he cites were not talking
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about God the Father, but rather were coupling a green Paternoster with
St. Peter’s Sister, just as John the Carpenter combined a white Paternoster
with Peter’s Sister. The saint in question would no doubt have been recog-
nized (as Skeat notes) as Peter’s daughter, St. Petronilla. As it stands, of
course, the line is not a prayer, but a rebuke to Peter’s sister for abandoning
them in their hour of need. Chaucer obviously wants the Carpenter to look
foolish, but not necessarily to be seen as falling under the strictures of the
First Commandment, for paying divine respects to creatures. It is certainly
not as nonsensical as many other examples of charms preserved from the
Middle Ages.
As for the colors of the Paternosters, the explanation may lie in the
beads on which the prayers were recited. When only Paternosters were said
on a set of beads, the whole set, consisting often of 150 beads (the number
of the Psalms), was sometimes called ‘‘a Paternoster.’’ Similarly, if only Aves
were said, the ‘‘pair of beads’’ was called ‘‘an Ave.’’ And, of course, a single
bead in each set could also be called ‘‘a Paternoster’’ or ‘‘an Ave.’’
Calling individual beads Paternosters and Aves was even more likely
and necessary when both Aves and Paternosters were said on the same set
of beads, as we find happening in the Low Countries just after Chaucer’s
time, at the beginning of the fifteenth century: a Paternoster was said after
every ten Aves (unlike the modern rosary, where the Pater precedes the ten
Aves).47 This Low Country system is also the arrangement in Hoccleve’s po-
etic version of the origin of ‘‘Our Lady’s Psalter,’’ though Hoccleve does
not mention the use of beads.48 But an inventory of 1381 lists not only ‘‘Pa-
ternoster beads’’ but also ‘‘Ave beads’’; some sets of both kinds contain
larger beads, called ‘‘gauds’’ or ‘‘gaudees,’’ used either as simple markers or
to signal another prayer. Sometimes the larger beads in Aves were called
Paternosters.49 The pair of beads of small coral carried by the Prioress
around her arm is ‘‘gauded al with grene’’ (GP 185–89), and the ‘‘pair of
Paternosters’’ of coral mentioned in a document of 1409–12 has five gauds
of green.50 These gauds, therefore, may be green Paternosters.
The idea of saying a Paternoster on a white bead, then, is a possible
explanation and exculpation for John the Carpenter, perhaps a late ratio-
nalization, if his formula was handed down from a time before Paternosters
were said on colored beads. Still, his judge may determine that John was
thinking of his bead as having a ‘‘lucky color,’’ just as, in the example cited
above by Lyndwood, ‘‘lucky shapes’’ were sought in reliquaries. If so, how-
ever, his offense would be only slightly off-color, a mere ‘‘vanity’’ or pecca-
dillo, that is, a venial sin. And venial sins, as we are taught by Lyndwood
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and others, can be deleted in a number of ways, including the devout recita-
tion of a simple (uncolored) Paternoster.51
We recall that John of God declared that using words to activate hid-
den seeds of nature would be a mortal sin if done for an unworthy reason,
but not mortal if done simply to exercise the power of the words. We can
assume that he is referring to experimentation, to see if a given formula
actually works. John of God’s phrasing leaves open the possibility that con-
ducting such experiments would be ‘‘not mortal’’ but venial sins, but it can
hardly be his meaning that he would take it as sinful in any way. He does
not bring up, in this context, the question of positive motives for using the
power of words, such as healing the sick or averting danger, but he does so
later when commenting on the canon Ammoneant when speaking of the
innate powers of words, herbs, and stones, distinguishing them from en-
chantments and magical practices that have no healing effect. It is possible,
then, that John’s judge would recognize the purity of intention in his minis-
trations and give his methods the full benefit of the doubt, and perhaps
even admit the possibility that his white Paternoster was made of a precious
stone, like mother-of-pearl, with natural apotropaic virtues.

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Chapter 16
Law, Magic, and Science: Constructing a
Border Between Licit and Illicit Knowledge
in the Writings of Nicole Oresme
Joel Kaye
As Edward Peters makes clear in the introduction to this vol-

ume, the growth of law in medieval society, and the definitions of licit and
illicit that followed from it, influenced developments in widely disparate
areas of medieval life and culture: from governmental, church, and aca-
demic structures, to social, familial, and gender relations, to forms of belief,
behavior, and thought.1 I hope to illustrate law’s great reach by examining
a case of its extension into the rarefied realm of scholastic natural philoso-
phy. One can argue that on the most general level there are deep connec-
tions between the recognition of law as a governing force in society and the
evolution of a sense of a lawful and knowable Nature—the precondition of
scientific thought. Here I would like to go beyond general considerations to
investigate how the construction of a particular boundary between licit and
illicit in the realm of law and political thought influenced the construction
of a particular definitional boundary between licit knowledge (science) and
illicit knowledge (magic) in the writings of the fourteenth-century theolo-
gian and natural philosopher Nicole Oresme.
The condemnation of magic in Latin Christian culture has deep reli-
gious and philosophical roots. Writers joining this tradition in the medieval
period could draw on condemnations from the Old and the New Testa-
ments, pagan philosophical authorities, and condemnatory treatises by the
church fathers, most notably St. Augustine.2 The intellectual project unify-
ing this tradition was to define the realm of false magic, to condemn it, and
to separate it both from true religion and from true philosophy or sci-
ence—the proper realms of human investigation and knowledge.
One might think that given this long textual tradition, medieval writ-
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226 Joel Kaye
ers (and modern historians) would have a wealth of workable definitions

with which to draw clear distinctions between the illicit practice of magic
and the legitimate practice of philosophy and religion. But a workable
boundary proved devilishly difficult to construct. The borders between
magic and licit knowledge shifted continually from culture to culture and
author to author. Most telling of all, even within the writings of a single
author, definitional boundaries proclaimed with fervor and certainty are ei-
ther hopelessly unworkable or, more slippery still, are seemingly trans-
gressed as soon as they are established.
It is not that boundaries were not continually proposed, only that they
dissolve upon close inspection. Suppose we take a definition of magic found
in texts from the fourth century through the Middle Ages: that magic is any
practice that calls on and seeks to compel and manipulate occult powers or
demonic spirits (or fallen angels, in Augustine’s terms) to act in a particular
manner for particular practical effects (including the production of illusory
effects).3 Fine; this would correctly identify magic with practical activity and
the concern for practical power rather than with pure knowledge, and it
would encompass the primary objects of magical incantation: love, sexual
and personal success (or failure), health, the illness of an enemy, and illu-
sion for the purpose of personal gain.4 But condemning the magician for
calling on demons only implies the firm belief in both demons and the
power of the magician to call upon them.5 How can one hope to delimit
the sphere of magic and separate it from proper knowledge, when one be-
lieves in it and believes (and fears) that it works; when one inhabits a world
alive with inner natures and occult spirits that can be called upon and com-
manded?
Rather than getting easier as the centuries progressed, the project to
separate the spheres of magic and science became more difficult still in the
thirteenth and fourteenth centuries. The momentous translation program
from Arabic to Latin of the twelfth and thirteenth centuries that brought
Aristotle to the center of medieval learning produced as a sidebar a litera-
ture of learned magic far more sophisticated and imbued with far more in-
tellectual authority than manuscripts previously in circulation.6 Many
treatises on magic gained additional authority by being falsely attributed
to ancient philosophers and mathematicians and by circulating under their
names.7 Not surprisingly, some of the greatest natural philosophers and
mathematicians of the thirteenth and fourteenth centuries—Albertus Mag-
nus, Roger Bacon, Peter of Abano, to name a few—found it impossible to
know which knowledge might be useful and which could never be, which
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Law, Magic, and Science in Nicole Oresme 227
effects and powers (from herbs, stones, words, numbers, celestial rays, im-
ages, incantations, amulets, talismans, dreams, auguries, mechanical mar-
vels, etc.8) could be classified as ‘‘natural’’ and thereby legitimized and
brought into the realm of proper science, and which could not escape the
realm of the dangerous and the demonic.
But the profound difficulties in drawing the line in no way diminished
the attempts by thinkers to do so. Rather, the temptation to naturalize cer-
tain areas of magic and bring previously shunned knowledge into the realm
of philosophical discourse compelled those who did so to justify themselves
and their reasoning, and this justification almost always involved a strong
denunciation of all magic and astrological determinism that fell on the
other side of their personal divide.9 The case of Roger Bacon is particularly
instructive. His belief in the imminent coming of Antichrist and in the need
for the faithful to find means to defend themselves against the wars and
depredations to come fortified his interest in using science to secure practi-
cal effects and real power over nature. This in turn encouraged his identifi-
cation of true knowledge with experimental knowledge and deepened his
critique of the purely theoretical and disinterested philosophy of the
schools. In the thirteenth century, these positions, which in retrospect ap-
pear to be generally in line with modern scientific attitudes, brought him
into close proximity with a magic defined precisely in terms of its experien-
tial basis and its desire for power and practical effects.10
Building on his project to align science with the production of practi-
cal effects, Bacon approached the formulation of a precocious definitional
boundary: science (and that which can and should be naturalized as sci-
ence) is, in essence, the knowledge of that which works; magic is the false
knowledge of that which is mendacious, mere trickery, or illusion. The
problem here lay not so much in the definitional boundary he approached
(which is, after all, again close to the modern) as in both his periodic trans-
gression of it (he asserted at times that magicians can actually produce ef-
fects by employing demons and evil spirits11), and in his diminished
capacity to identify clearly that which was real and effective in an age alive
with occult forces and the belief in their miraculous powers. He was, for
example, convinced that certain verbal incantations found in magical books
(as well as amulets, diagrams, and characters) actually worked to produce
the marvelous effects claimed for them, if and when they were used at the
proper times, under the proper astrological circumstances, and in concert
with ‘‘the force of the stars.’’ For this reason, he argued that the knowledge
of these incantations and astrological times belonged in the realm of philos-
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228 Joel Kaye
ophy rather than magic.12 But at the same time, he recognized that ‘‘the
theologians of our time, and Gratian, and many more holy men have re-
proved these useful and magnificent sciences . . . not noting the difference
between magic and the truth of philosophy.’’13 Precisely so.
In the century after Bacon wrote this, the fear of magic (and very likely
the practice of magic) continued to grow to the point where charges of sor-
cery (and sentences of death) were directed at elements of the population
formerly immune to them: the powerful religious order of the Templars,
the king’s own relatives and leading advisors at the court of France, and,
for the first time, university magistri.14 At some point around the middle of
the fourteenth century a great thinker, Nicole Oresme (c. 1320–82), much
concerned to strengthen and expand the realm of natural philosophy at the
expense of magic and other false modes of knowledge, suggested a new
definitional boundary. The remarkable thing about Oresme’s suggestion is
that it not only appears workable and defensible in the context of the four-
teenth century, but remains workable, defensible, and alive in defining the
realm of science to this day. And law lies at its root.
Oresme was a man of many accomplishments: teaching master in the-
ology at the University of Paris, an active churchman who ended his life as
a bishop, the author of numerous commentaries on the works of Aristotle,
a brilliant mathematician and geometer, the composer of a pathbreaking
treatise on money and minting, and a man intimately involved in the affairs
of his day. While a master at the University of Paris in the 1350s, Oresme
became closely connected to the dauphin and later (1364) French king
Charles V, serving him continually as a trusted advisor until Charles’s death
in 1380, two years before Oresme’s own. In this role, Oresme spent a good
deal of his later life at the French court, even while serving as canon, then
dean of Rouen Cathedral, and finally as bishop of Lisieux in Normandy.15
As a member of the French court in the fourteenth century and a trusted
counselor to the king, Oresme would have been all too familiar with the
claims of magicians, diviners of every stripe, and astrologers, all of whom
vied for the ear of King Charles. Despite Oresme’s warnings, Charles (‘‘Le
sage’’) took an active intellectual interest in the technical aspects of these
forms of knowledge, particularly in the area of judicial astrology.16
Oresme became well known in his and later centuries as an enemy of
astrology and author of treatises dedicated to the unmasking of its fraudu-
lent claims to knowledge and certainty.17 In a number of works dedicated
entirely to this purpose, he attacked the mathematical and philosophical
basis of astrology with vehemence and unprecedented technical acuity.18
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His critique of astrology was linked to a larger critique of magic, supersti-

tion, and claims for the miraculous—what Jeannine Quillet has called his
‘‘enterprise de démytholigisation de la nature’’—and commitment to the
process of its ‘‘désenchantement.’’19 His intellectual program was to expand
the sphere of the natural and the licit in the realm of knowledge at the ex-
pense of magic, superstition, and false belief.
He wrote two works of particular interest related to these subjects: a
series of quodlibetal questions, which Bert Hansen has edited under the title
De causis mirabilium, and a brilliant, wide-ranging treatise, the De configu-
rationibus qualitatum et motuum, edited and translated by Marshall Cla-
gett.20 Difficulties in dating make it hard to know with certainty which was
written first, but I will begin with a brief description of the De causis.21 Ore-
sme announces his program in the opening lines of the prologue:
I propose here . . . to show the causes of some effects which seem to be marvels and
to show that these effects occur naturally, as do the others at which we commonly
do not marvel. There is no reason to take recourse to the heavens, the last refuge of
the weak, or demons, or to our glorious God as if He would produce these effects
directly.22
Although it was unusual to dedicate an entire set of questions to the

program of expanding the natural at the expense of the magical and the
miraculous, Oresme was not alone in holding to it. His search for natural
causes, his rationalism, his tempered skepticism, were shared by many in
the university. Within the discipline of natural philosophy, there was a gen-
eral acceptance of Aristotle’s position that true philosophy shunned the
marvelous and the particular in its search for the universal and the general,
and that proper study should be focused entirely on those aspects in nature
that occur with regularity or for the most part (ut in pluribus).23
Superstitious belief in magic, marvels, and monstrous occurrences,
Oresme demonstrates again and again, is most often fostered by simple
misperception.24 The method followed throughout the De causis is to begin
with an analysis of a form of perception—visual, aural, tactile—and then
to show the many opportunities for error and superstition that arise given
the multiplicity of causes and the complex rules governing perception. His
wonderfully common-sense general principle, which he applied to phe-
nomena as different as missing a target, sexual dysfunction, and the pro-
duction of monsters, was ‘‘We must marvel more when nature proceeds
and acts in so orderly a course than if it sometimes is altered or deviates
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230 Joel Kaye
from the usual. . . . For you can hit the mark in only one way but miss in
many ways.’’25
But I have so far highlighted only the most ‘‘modern’’ attitudes of Ore-
sme and have neglected the surprising credulity that often lay just beneath
his critique of credulity.26 This tension is best seen in his De configurationi-
bus qualitatum et motuum (Clagett translation: On the Geometry of Qualities
and Motions), a work that is recognized today as a landmark in the history
of science and mathematics. We can see from the title that Oresme is again
seeking to find, or to impose, order and regularity on the phenomenal
world, this time a mathematical and geometrical order. In one section of
this work, Oresme attacks magic, saying, ‘‘I wish to lay bare the falsity of
this malign art, so that no person of sound mind will be affected by such
arts in the future.’’27 But for all the rigor and recognition of order that the
study of Aristotle imparted to him, he was still living at least partly in a
magical world—a world of numinous essences, where every single sub-
stance was thought to possess inherent qualities capable of generating active
powers. And these worked like djins to dissolve the borders he sought to
erect between the licit and the illicit in the realm of knowledge.
In order to claim this inner occult world for philosophy, he sought to
resituate the basis of qualitative action from the magical to the mathemati-
cal. He did this by imposing geometrical form on those hidden interior
qualities whose existence and activity he accepted. He wrote: ‘‘natural bod-
ies, when mutually compared according to their geometrical configurations,
have mutually different operations and are differently affected’’(my empha-
sis).28 Following from this premise, he can say that the cause of the natural
friendship between humans and dogs is ‘‘the fitting accord between the [ge-
ometrical] configurations of the natural qualities of these species.’’ In simi-
lar fashion he explains numerous natural actions and reactions, including
the attraction of the magnet for metal, the curing power of medicines and
plant compresses, the power of mandrake root to aid in sexual function and
conception, and even the power of certain words in incantations, when ‘‘by
virtue of their structure and figuration’’ it happens that ‘‘the shape of the
difformity of the motion accompanying this sound is effective.’’29
Here, once again, we have a hybrid between science and magic, a liq-
uefied border to our eyes, if not to Oresme’s.30 The definitional crossovers
within this literature of boundary formation are dizzying, even with a
thinker as hard-headed as Oresme, and even as the intent and commitment
to limit and condemn the sphere of the magical is clear. Having said this, I
believe there is one aspect of this great philosopher’s program to separate
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magic from true philosophy that is unique for its time in that it appears to
me to resist dissolution. That is his consistent equation: false magic equals
the personal, the private, and the secret; true science equals the common
(in the sense of plurality and group sharing), the public, and the open.31
At one point in the De configurationibus, Oresme attacks the claims made

in ‘‘certain new books of the notorious art’’ by saying that there are individ-
uals who have attempted with all their power (tota virtute sua) to make a
demon or some such thing appear, who have, he writes, carefully performed
everything these books say to do, and yet they have been completely unsuc-
cessful. He takes this as clear proof that the claims are fraudulent. His con-
clusion: ‘‘If these things took place by virtue of conjuration . . . then one
person ought to be able to operate by virtue of conjuration just as well as
another, if neither omitted anything’’32 (my emphasis). Here we see Oresme
deriving the crucial scientific requirement of the replicability of effects from
his emphasis on ‘‘the common.’’ If a technique is valid—naturalistically and
scientifically valid—anyone should be able to use it to achieve the same re-
sults. And if the effects of a technique are scientifically valid, then they must
be commonly apparent to the common senses. He writes: ‘‘For if a demon
or spirit appears externally in a form naturally visible, it would be seen by
anyone present at that place [a quoqunque ibidem presente]’’33 (my empha-
sis). Indeed, Oresme’s association of the common with truth is so strong
that he is forced to admit that if someone could cause demons to appear
before a large number of people of differing temperaments and of sound
minds, who had no cause to be terrified or abnormally excited, then he
would be forced to recognize this as a true marvel and not a mere illusion.34
Common observation alone is proof against falsity; and conversely, com-
mon observation guarantees the truth of even the most unlikely effects.
Oresme goes yet farther, identifying the private/personal as the ground
of magic and the common/public as the ground of proper science. He ob-
serves that magicians, whether male or female, are often instructed to prac-
tice abstinence from food and other natural needs and to withdraw from
society as a preparation for their visions. When they do this, he notes, the
magician is ‘‘drawn away from common thoughts’’ (communibus cogita-
tionibus abstrahitur). And, Oresme believes, it is this drawing away from the
common and the public—on many levels: intellectual, social, psychologi-
cal—that disposes the mind to ‘‘easy credulity’’ and opens the door to
magic and false illusion.35
A modern audience might judge Oresme’s position here as common
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232 Joel Kaye
sense and hardly as a great moment in the history of scientific thought. But
this judgment is possible only if one is unaware of the pervasive cultural
association of the personal and the secret with knowledge and power in
medieval times and into the modern period.36 Although we now identify
science as a common and open enterprise, there was so much weight
against this idea, from so many directions, that it did not find its central
place in the ideology of science until the writings of Francis Bacon and the
work of the Royal Society in the seventeenth century. And even then there
remained a strongly held belief, in both educated and uneducated circles,
that making knowledge open and common actually diluted its power and
destroyed its efficacy.37 From the twelfth through the eighteenth centuries,
both writers on magic and those who thought they were contributing to
natural philosophy while writing in the tradition of the Libri secretorum
routinely disguised their meaning in code words comprehensible only to
the few and warned against their works falling into the wrong hands, that
is, the hands of the undiscerning and undeserving public.38 Within these
works, the success of the operations described and the power of the truth
conveyed were said to depend directly on the private (often ascetic) prepa-
ration of the operator, his particular psychological state, and the personal
qualities of his soul.39
The association of the personal with power and efficacy was not lim-
ited to practitioners of secret crafts: it pervaded Latin Christian culture.
Think only of the constant theme in the romances: the magic boat that gives
passage only to the innocent, magic castles visible only to the brave, the
magic sword that only the true ruler can use, and on and on.40 In these cases
and within this culture, the personalization of effects was never thought to
refute the existence of power—if anything it was held as a proof of it. The
strength of the association of personality and ascetic regimen with particu-
lar effects is shown by the fact that even Oresme, who questions it in the
general case, assents to it obliquely at certain points.41 But even recognizing
his occasional lapses, it is clear that we have with Oresme a conscious and
well-developed definitional boundary that identifies fraudulent and illicit
knowledge with the personal, the private, and the secret and recognizes the
common and the open as the mark of true and licit knowledge. The bound-
ary he proposed is as valid today as it was in the fourteenth century.
It is possible to explain a good deal of the rationale for this boundary
simply with reference to the traditions of Aristotelianism and high scholas-
ticism. Aristotle held that no special gift of gnosis is required for scientific
knowledge; rather, the knowledge of natural causes is within the grasp of
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ordinary human reason aided by logic, the universal instrument.42 Within

the scholastic tradition of logical disputation, every proposition was ex-
posed to the scrutiny of fellow masters, and every conclusion was open to
being tested by the common instrument of logic. Moreover, as already
noted, Aristotle had insisted that proper philosophy, whether moral or nat-
ural, should be directed toward common and regular phenomena rather
than toward the unique and the particular. Oresme repeats this particular
rule over and over again in the De causis mirabilium as he attempts to draw
the boundaries of true science.43
For these reasons and more, it would be a mistake to underestimate
the impact of Aristotle’s writings and the scholastic tradition on Oresme’s
position. But what makes Oresme’s position unique was not the simple op-
position of the general to the particular case or the simple identification of
the private and the secret with magic and the illicit. The history of these
general insights can be traced back at least to Plato and forward into his
own time. It was the breadth and consistency of Oresme’s program to iden-
tify and separate licit from illicit that made it unique: the bringing together
of diverse registers—philosophical, practical, social, and psychological—
toward the same end, all unified by a seemingly serene confidence in the
value of the common and the public.44 The scholastic philosophical tradi-
tion can speak to only a portion of this construction. At a number of points
in the De configurationibus where Oresme is seeking to distinguish true sci-
ence from false magic, he is concerned not with testing intellectual proposi-
tions through the tool of logic but with testing physical operations and
effects through common observations. This was most definitely not the
world of scholastic disputation. And while knowledge was ‘‘common’’ in
scholastic discourse, the population within which the common applied was
extremely limited: male, literate in Latin, university trained, highly schooled
in logic. It was only members of a limited brotherhood who were thought
capable of making judgments on logical truth and falsity.
But Oresme, when he speaks of separating illusion from truth in the
examples given above, is careful not to limit his audience in the same fash-
ion. He has a much more general audience than university scholars in
mind, and more general, too, than the audience at the royal court. He does
not even ask that its members be literate. He asks only that the audience be
large enough to contain men of ‘‘diverse complexion or temperament’’
(una magna multitudine hominum diversarum complexionum), and that
these men be of sound and calm mind. His audience looks very much like
what we might call a ‘‘general public’’ (or a jury of inquest, perhaps) and
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234 Joel Kaye
very little like the traditional audience of scholastic disputation. If it is hard

to imagine the scholastic tradition of natural philosophy serving as his
model for boundary making here, where, then, might the model have come
from? I suggest we look in the direction of two spheres tied closely to law—
political thought and economics—and ultimately to the law itself. I will
consider each of them briefly.
The ideal of the common good (bonum commune) attained enormous
strength in the politics and political thought of the fourteenth century.45 It
was an ideal to which virtually every contemporary writer on politics ac-
ceded, Oresme most enthusiastically included.46 With its philosophical
roots deep in the texts of ancient Greek and Roman authors, particularly
Aristotle’s Ethics and Politics, its practical roots lay in the growth of in-
numerable self-governing bodies and institutions across Europe, from
the great independent urban communes to guilds and corporations of all
stripes, including, of course, the self-governing university, which Oresme
served for many years.47 At the core of this set of beliefs lay the valorization
of the common good, the bonum commune or bonum publicum, over the
private good, the bonum privatum, and, similarly, the validation of judg-
ments made either by the community or in the interests of the community,
over judgments directed toward the interests of powerful private individu-
als or groups.
Oresme was one of the great champions of the bonum commune in the
fourteenth century. In his French translation and commentary to Aristotle’s
Politics, he managed to accentuate and go beyond even Aristotle’s strongly
held position validating the common interest above the personal in the life
of the civitas.48 Indeed, he credits his very project of translating Aristotle
into the vernacular—unique in its time—directly to an overriding concern
with the common good.49 Oresme integrated the ideal of the common good
with his support of his king and of monarchy itself by insisting that proper
kingship was a form of public office, not private office, and that the king
properly functioned as a ‘‘person publique’’ in the service of his commu-
nity.50 ‘‘Anyone,’’ he wrote, ‘‘who governs for his own benefit and against
the common good [quiconques gouverne a son propre profit contre le bien
commun], whether alone or in a group, can be called a tyrant.’’51 And he
repeats this and kindred sentiments over and over again in the course of his
commentary. Here, in the realm of political thought, just as in the realm of
natural philosophy, the line Oresme draws between licit and illicit is the
line between public and private.
Oresme’s validation of the common good and common judgment
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found direct expression in his economic writings, particularly in his path-

breaking treatise on money and minting, the De moneta.52 In a chapter enti-
tled ‘‘Who Owns the Money?’’ (Cuius sit ipsa moneta) Oresme instructed
the prince that money was an instrument invented by the community itself
to facilitate the exchange of natural wealth, and it was therefore the com-
munity’s common property. The central point of this hortatory treatise was
that monetary policy was properly ordered pro utilitate communi.53 The
community and the community alone should determine the value of the
coinage. In this treatise written and directed to his king, Oresme insisted
that any monetary decision made on the basis of the king’s private needs
alone was ipso facto illegitimate.
Oresme did not invent the link between economic thought and the
privileging of common valuation. It is enshrined in Roman law, and long
before Oresme, it was the object of intense commentary within medieval
discussions of economic value and the just price. The identification of just
price with market or ‘‘common’’ price is conveyed in two nearly identical
texts from the Digest that state: ‘‘The prices of things are not calculated
from the personal view of value or utility, but from the common view’’
[pretia rerum non ex affectu nec utilitate singulorum, sed communiter fun-
guntur].54 From the twelfth century onward, medieval Roman and canon
lawyers (and theologians) regularly cited and built upon this opinion. They
came to recognize that a common market price was the most dependable
guide to the determination of economic value, and by the thirteenth cen-
tury this recognition had given rise to the often repeated legal tag, ‘‘A thing
is worth what it can be sold for commonly’’ [Res tantum valet quantum vendi
potest communiter], adding the qualifier communiter to the original Roman
law tag. Why did the legists add communiter? Because they had come to
recognize that the range of common estimation in the marketplace (aesti-
matio communis in foro) was the best guide to the limits of the licit in pric-
ing. It is in this central principle of medieval economic thought, worked
out countless times each day in the marketplaces of Oresme’s France, that
we again find the parallel to his rejection of the private and the personal in
favor of the common.
At the root of all social ideals in this period, whether the just price or the
common good, stood the ideal of law and legal justice. As Oresme wrote in
his commentary to the Ethics: ‘‘All the virtues together are contained within
legal justice’’ (En justice legal est contenue toute vertu ensemble).55 At the
same time, it is not easy to determine whether the ideal of law or the social
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236 Joel Kaye
ideal of the common good took precedence in his thinking because they
were so intertwined: the common good required the existence of law, and
law existed essentially to serve the common good (les lays doivent estre pour
tel bien commun), and any law that did not serve the community was, ipso
facto, not a true law.56 He was far from original in his thinking in this area.
A century before Oresme wrote his commentary on the Politics, Thomas
Aquinas enunciated a strikingly similar set of opinions. In his questions on
law in the Summa Theologiae, written c. 1270, Thomas wrote (to take but
one of many examples), ‘‘Consequently, since the law is chiefly ordained to
the common good, any other precept in regard to some individual work
must needs be devoid of the nature of a law, save in so far as it regards the
common good.’’57 Like Oresme, and in accordance with an ancient tradi-
tion within the law itself, Thomas was equally insistent on linking law to
the requirement for open knowledge and public dissemination, stating em-
phatically that a secret law was no law at all and that public proclamation
was necessary for a law to obtain its force.58
If by the mid-thirteenth century it had become normal for philoso-
phers and theologians to identify law with the common good, the lawyers
themselves were cautious on this question—forced to be so because of the
enormous powers granted to the person of the emperor in Roman law. It
is true that the important legal and legislative principle, also found in
Roman law, ‘‘What touches all must be approved by all,’’ invoked continu-
ally from the twelfth century on, placed the ideal of common judgment and
common assent at the center of legal and institutional development.59 But
only in the fourteenth and early fifteenth century with the writings of the
great legal commentators Bartolus, Baldus (near contemporaries of Ore-
sme), and, most definitively, Panormitanus did the common good come to
be accepted as the ultimate arbiter in law, the single norm by which the
personal power of the prince could be circumscribed.60 Oresme had no such
hesitations: in the realm of law the common trumped the private at every
turn. Indeed, he used the well-established identification of law with the
common good to construct, as was his habit, a definitional boundary be-
tween the licit and the illicit. Here is the lapidary definition he chose for the
term ‘‘illegal’’ in the extensive glossary that he appended (for the benefit of
his non-university reading public) to his commentary on the Politics: ‘‘That
is illegal which disregards the laws established for the common good and
which does not hold to their conventions.’’61
In the eyes of thinkers in the scholastic tradition, whether from the
point of view of legist, philosopher, or theologian, law was the training in-
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strument par excellence, imposing rule and measure on the recalcitrant for
the good of the community.62 But one of the great unintended conse-
quences of the growth of law in the medieval period is that it trained the
minds of those who used it and thought about it as much or more than the
behavior of those it punished. As law continued to expand in scope and
power, it taught an entire intellectual culture steeped in religious and tran-
scendent ideals to see the benefits of thinking in terms of degrees rather
than absolutes, of ranges and latitudes rather than individual points, of ag-
gregates and averages rather than the singular, of probabilities rather than
certainties, and of the attainable imperfect rather than perfections.63 It
taught how to measure, order, regularize, and categorize the all-too-present
disorders and irregularities of life. It taught that problems were to be solved
and questions were to be answered by recourse to open disputation guided
by tests and conventions commonly known and agreed upon. And in its
many forms, Roman, canon, and customary, and on many registers, law
privileged the value of group or common judgment, often recognizing it
explicitly as a corrective to the private and the personal. These intellectual
lessons and mental habits associated with law, when brought into the
sphere of scholastic natural philosophy, helped to transform the study of
nature, and, as it turned out, proved to be instrumental in preparing the
way for modern science.64

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Abbreviations
AHR American Historical Review.

Cod. Codex Iustinianus, in Corpus Iuris Civilis, ed. Paul Krueger,
Theodor Mommsen, Rudolf Schoell, and Wilhelm Kroll 3
vols. (Berlin, 1872–95, rpt. 1963–65), vol. 2.
Cod. Theod. Codex Theodosianus, ed. Paul Krueger and Theodor Momm-
sen, 3 vols. (Berlin, 1905; rpt. 1990).
Dig. Digestum, in Corpus Iuris Civilis ed. Paul Krueger, Theodor
Mommsen, Rudolf Schoell and Wilhelm Kroll 3 vols. (Berlin,
1872–95, rpt. 1963–65), vol. 1.
EME Early Medieval Europe.
Glanvill The treatise on the laws and customs of the realm of England
commonly called Glanvill, ed. G. D. G. Hall (London, 1965;
rpt. with same pagination, Oxford, 1993).
Gratian Decretum Gratiani, in Corpus iuris canonici, ed. Emil Fried-
berg, 2 vols. (Leipzig, 1879–81, rpt. Graz, 1959), vol. 1.
Inst His Res Bulletin of the Institute of Historical Research.
JMH Journal of Medieval History.
Magician Edward Peters, The Magician, the Witch, and the Law (Phila-
delphia, 1978).
MGH Monumenta Germaniae Historica.
MS Mediaeval Studies.
PL Patrologia Cursus Completus, Series Latina, ed. J. P. Migne,
221 vols. (Paris, 1841–64).
P&M Frederick Pollock and Frederic William Maitland, A History
of English Law Before the Time of Edward I , 2 vols., 2nd ed.
(Cambridge, 1898).
ST Thomas Aquinas, Summa Theologiae, parts I–III (Milano,
1992).
X Liber extra (Decretales Gregorii IX), in Emil Friedberg, Corpus
iuris canonici, 2 vols. (Leipzig, 1879–81; rpt. Graz, 1959),
vol. 2.
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Notes
Introduction. The Reordering of Law and the Illicit in Eleventh- and Twelfth-
Century Europe
An earlier version of this chapter was presented to the National Endowment

for the Humanities Summer Seminar at Darwin College, Cambridge, directed by
Richard Newhauser in July 2006. I am grateful to the members of the seminar and
to Richard Newhauser for their invitation, lively interest, and comments. This over-
view is dedicated to the editors and contributors of this volume.
1. For the later tenth century there is a vivid contrast between perceived order
and disorder of this kind in Heinrich Fichtenau, Living in the Tenth Century: Men-
talities and Social Orders, trans. Patrick J. Geary (Chicago, 1991), 3–77, 381–434.
2. I can take little notice here of the ‘‘transformation-mutation’’ debate that
deals, still contentiously, with the political, social, and economic change in the pe-
riod, or of the argument that the late eleventh-century papacy alone was the major
agent of change. For references, see below, nn. 5, 13.
3. Glanvill, 2–3. On the nature of prologues to legal treatises in the period,
Robert Somerville and Bruce C. Brasington, Prefaces to Canon Law Books in Latin
Christianity: Selected Translations, 500–1245 (New Haven, Conn., 1998). On twelfth-
century ideas about custom and law, André Gouron, ‘‘Coutume contre loi chez les
premiers glossateurs,’’ in Renaissance du pouvoir législatif et genèse de l’état, ed.
André Gouron and Albert Rigaudière (Montpellier, 1988), 117–30, and Kenneth Pen-
nington, ‘‘Law, Legislative Authority and Theories of Government, 1150–1300,’’
chap. 15.1 of The Cambridge History of Medieval Political Thought c. 350–c. 1450, ed.
J. H. Burns (Cambridge, 1988), 424–53.
4. On Glanvill generally, T. F. T. Plucknett, Early English Legal Literature
(Cambridge, 1958), 30–41; R. C. Van Caenegem, The Birth of the English Common
Law (Cambridge, 1973), 1–4, and Michael T. Clanchy, From Memory to Written Re-
cord, England 1066–1307, 2nd ed. (Oxford, 1993), 231–39.
5. On the model, Edward Peters, ‘‘Moore’s Eleventh and Twelfth Centuries:
Travels in the Agro-Literate Polity,’’ in Heresy and the Persecuting Society in the Mid-
dle Ages: Essays on the Work of R. I. Moore, ed. Michael Frassetto (Leiden, 2006),
11–29. And for an elegant and lucid account, R. I. Moore, The First European Revolu-
tion c. 970–1215 (Oxford, 2000).
6. E.g., the Leges Edwardi Confessoris: Bruce R. O’Brien, God’s Peace and
King’s Peace: The Laws of Edward the Confessor (Philadelphia, 1999), 30–36. Further
on king and magnates, Timothy Reuter, ‘‘Assembly Politics in Western Europe from
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242 Notes to Pages 3–6
the Eighth Century to the Twelfth,’’ in The Medieval World, ed. Peter Linehan and
Janet L. Nelson (London, 2001), 432–50, and Janet L. Nelson, ‘‘Peers in the Early
Middle Ages,’’ in Law, Laity and Solidarities: Essays in Honour of Susan Reynolds, ed.
Pauline Stafford, Janet L. Nelson, and Jane Martindale (Manchester, 2001), 27–46.
7. The classic works are those of Clanchy, From Memory to Written Record,
and Brian Stock, The Implications of Literacy: Written Language and Models of Inter-
pretation in the Eleventh and Twelfth Centuries (Princeton, N.J., 1983).
8. Peter Landau, ‘‘The Development of Law,’’ in The New Cambridge Medie-
val History, vol. 4, c. 1024–c. 1198, Part I, ed. David Luscombe and Jonathan Riley-
Smith (Cambridge, 2004), 113 –47, at 113. A new approach connecting the earlier
and later periods and focusing on the growth of informal expertise before the emer-
gence of learned professional law and lawyers can be seen in the essay by Susan
Reynolds, ‘‘The Emergence of Professional Law in the Long Twelfth Century,’’ and
the comments on it by Piotr Górecki, Charles M. Radding, and Paul Brand in
‘‘Forum: The Emergence of Professional Law,’’ Law and History Review 21 (2003):
347–91, and in Susan Reynolds, ‘‘Medieval Law,’’ in Linehan and Nelson, The
Medieval World, 485–502.
9. On earlier attempts, see Plucknett, Early English Legal Literature, 24–30. An
important supplement in the case of England is O’Brien, God’s Peace and King’s
Peace, esp. 8–20, and, for Glanvill, 114–18. See also Jonathan Bush, ed., English Legal
Treatises, 1000–1800: Explorations and Reassessments (London, forthcoming), cited
by O’Brien, 254–55, n. 57.
10. Janet L. Nelson, ‘‘Literacy in Carolingian Government,’’ in The Uses of Lit-
eracy in Early Medieval Europe, ed. Rosamond McKitterick (Cambridge, 1990), 258–
96, and other essays in the same volume, as well as the earlier work of Rosamond
McKitterick, The Carolingians and the Written Word (Cambridge, 1989), 23–75.
11. See the discussion of Lombard law and the Libri Feudorum in Susan Reyn-
olds, Fiefs and Vassals (Oxford, 1994), 182–240.
12. Detlev Jasper and Horst Fuhrmann, Papal Letters in the Early Middle Ages
(Washington, D.C., 2001), 135–95.
13. Clanchy, From Memory to Written Record. There is a vivid summary de-
scription in Wendy Davies, ‘‘Local Participation and Legal Ritual in Early Medieval
Law Courts,’’ in The Moral World of the Law, ed. Peter Coss (Cambridge, 2000),
48–61. The entire volume is useful for our purposes, especially Chris Wickham,
‘‘Conclusion,’’ 240–49. See also M. T. Clanchy, ‘‘Medieval Mentalities and Primitive
Legal Practice,’’ in Stafford et al., Law, Laity and Solidarities, 83–94, as well as other
studies in the same volume.
14. There is an abundant literature, perhaps best begun with Patrick J. Geary,
‘‘Living with Conflicts in Stateless France: A Typology of Conflict Management
Mechanisms, 1050–1200,’’ rpt. in Geary, Living with the Dead in the Middle Ages
(Ithaca, N.Y., 1994), 125–60. The most important analysis is found in the essays of
Stephen D. White, collected in his Feuding and Peace-Making in Eleventh-Century
France (Aldershot, 2005), especially the long review essays 8 and 9. For the continu-
ity of many of these forms beyond the legal revolution, Paul Hyams, Rancor and
Reconciliation in Medieval England (Ithaca, N.Y., 2003), esp. 3–70.
15. I have described these excepted crimes and cited most of the scholarly lit-
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Notes to Pages 6–8 243
erature on the growth of criminal law from the fourth century through the later
Middle Ages in ‘‘Crimen exceptum: The History of an Idea,’’ in Proceedings of the
Tenth International Congress of Medieval Canon Law, Syracuse, New York, 13–18 Au-
gust 1996, ed. Kenneth Pennington, Stanley Chodorow, and Keith H. Kendall (Vati-
can City, 2001), 137–94. On clerical celibacy, see the excellent collection of papers
edited by Michael Frassetto, Medieval Purity and Piety: Essays on Clerical Celibacy
and Religious Reform (New York, 1998). On reputation, Thelma Fenster and Daniel
Lord Smail, eds., Fama: The Politics of Talk and Reputation in Medieval Europe (Ith-
aca, N.Y., 2003).
16. On the beginnings of the attempt to find a principle-driven, systematic
canon law in the early eleventh century, see Greta Austin, ‘‘Jurisprudence in the
Service of Pastoral Care: The Decretum of Burchard of Worms,’’ Speculum 79
(2004): 929–59. On canon law’s complex relation to the eleventh-century papacy,
Uta-Renate Blumenthal, ‘‘The Papacy and Canon Law in the Eleventh-Century Re-
form,’’ Catholic Historical Review 84 (1998): 201–18. On the later development of
the formal study of learned Roman law, Anders Winroth, The Making of Gratian’s
Decretum (Cambridge, 2000), esp. 146–74, and Paul Hyams, ‘‘Due Process Versus
the Maintenance of Order in European Law: The Contribution of the Ius Com-
mune,’’ in Coss, The Moral World of the Law, 62–90. The best introduction to canon
law is James A. Brundage, Medieval Canon Law (London, 1995), along with the bril-
liant interpretive book by Richard Helmholz, The Spirit of Classical Canon Law
(Athens, Ga., 1996).
17. There is a catalog in Cyrille Vogel, ‘‘Les sanctions infligées aux laics et aux
clercs par les conciles gallo-romaines et merovingiens,’’ Revue de droit canonique 2
(1952): 171–94, 311–28.
18. Patrick J. Geary, ‘‘Humiliation of Saints,’’ and ‘‘Coercion of Saints in
Medieval Religious Practice,’’ both in Geary, Living with the Dead, 95–115, 116–24;
Lester K. Little, Benedictine Maledictions: Liturgical Cursing in Romanesque France
(Ithaca, N.Y., 1993).
19. Susan Reynolds, ‘‘Social Mentalities and the Case of Medieval Scepticism,’’
Transactions of the Royal Historical Society 6th ser. 1 (1991): 21–41.
20. And hence through canon law influenced areas of non-Roman law: R. H.
Helmholz, Canon Law and the Law of England (London, 1987).
21. An early stage of the process is discussed in Kathleen G. Cushing, Papacy
and Law in the Gregorian Revolution: The Canonistic Work of Anselm of Lucca (Ox-
ford, 1998).
22. The best treatment is Manlio Bellomo, The Common Legal Past of Europe,
1000–1800, trans. Lydia G. Cochrane (Washington, D.C., 1995).
23. Thomas Head and Richard Landes, eds., The Peace of God: Social Violence
and Religious Response in France Around the Year 1000 (Ithaca, N.Y., 1992), and the
review by Janet L. Nelson in Speculum 69 (1994): 163–69.
24. Four broad studies offer complementary views of the entire process and
range of reform thought: Colin Morris, The Papal Monarchy: The Western Church
from 1050 to 1250 (Oxford, 1989); Gerd Tellenbach, The Church in Western Europe
from the Tenth to the Early Twelfth Century (Cambridge, 1993); Giles Constable, The
Reformation of the Twelfth Century (Cambridge, 1996); and most recently Kathleen
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G. Cushing, Reform and the Papacy in the Eleventh Century: Spirituality and Social
Change (Manchester, 2005).
25. R. W. Southern, Western Society and the Church in the Middle Ages (Har-
mondsworth, 1970), 16.
26. Discussed extensively by Luigi Prosdocimi in ‘‘Chierici e laici nella società
occidentale del secolo XII: A proposito di Decr. Grat. C. 12 q. 1. c. 7 Duo sunt genera
Christianorum,’’ in Proceedings of the Second International Congress of Medieval
Canon Law, Boston, 1963 (Vatican City, 1965), 105–22; idem, ‘‘Lo stato di vita laicale
nel diritto canonico dei secoli XI e XII,’’ in I laici nella ‘‘societas christiana’’ dei secoli
XI e XII, Miscellanea del Centro di Studi Medievali 5 (Milan, 1968), 56–82.
27. Johannes Laudage, Priesterbild und Reformpapsttum im 11. Jahrhundert
(Cologne, 1984); M.-D. Chenu, ‘‘Monks, Canons, and Laymen in Search of the Ap-
ostolic Life,’’ in Chenu, Nature, Man, and Society in the Twelfth Century, ed. and
trans. Jerome Taylor and Lester K. Little (Chicago, 1968), 202–38.
28. Dyan Elliott, ‘‘Dressing and Undressing the Clergy: Rites of Ordination
and Degradation,’’ in Medieval Fabrications: Dress, Textiles, Clothwork, and Other
Cultural Imaginings, ed. E. Jane Burns (New York, 2004), 55–69, 219–22.
29. Amy Remensnyder, ‘‘Pollution, Purity, and Peace: An Aspect of Social Re-
form between the Late Tenth Century and 1076,’’ in Head and Landes, The Peace of
God, 180–307; Cushing, Reform and the Papacy, 111–38, with further literature cited.
30. Gerd Tellenbach, Church, State and Christian Society at the Time of the
Investiture Contest, trans. R. F. Bennett (Oxford, 1940), 131; R. I. Moore, ‘‘Heresy as
Disease,’’ in, The Concept of Heresy in the Middle Ages (11th–13th C.), ed. W. Lour-
daux and D. Verhelst (Leuven, 1983), 1–11.
31. Peter Godman, The Silent Masters: Latin Literature and Its Censors in the
High Middle Ages (Princeton, N.J., 2000).
32. John Gillingham, ‘‘From Civilitas to Civility: Codes of Manners in Medie-
val and Early Modern England,’’ Transactions of the Royal Historical Society 6th ser.
12 (2002): 267–89.
33. R. I. Moore, The Formation of a Persecuting Society: Power and Deviance in
Western Europe, 950–1250 (Oxford, 1987), See also Frassetto, Heresy and the Persecut-
ing Society, the most recent reassessment of Moore’s thesis, and Moore, The First
European Revolution, a considered revision, as well as Moore, ‘‘Afterthoughts on
The Origins of European Dissent,’’ in Heresy and the Persecuting Society, 291–326.
34. John Bossy, Christianity in the West 1400–1700 (Oxford, 1985), 57–75.
35. Helmholz, The Spirit of Classical Canon Law, 339–93.
Chapter 1. A Fresh Look at Medieval Sanctuary
1. These remarks draw especially on Pierre Timbal (Duclaux de Martin), Le

Droit d’asile (Paris, 1939), 8–117, 197–225. See also Norman Trenholme, ‘‘The Right
of Sanctuary in England: A Study in Institutional History,’’ University of Missouri
Studies 1, 5 (1903): 2–20; R. F. Hunnisett, The Medieval Coroner (Cambridge, 1961),
37–54; Leopold Bolesta-Koziebrodski, Le Droit d’asile (Leiden, 1962), 47; John Bel-
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lamy, Crime and Public Order in England in the Later Middle Ages (London, 1973),
106–11; Gervase Rosser, ‘‘Sanctuary and Social Negotiation,’’ in The Cloister and the
World: Essays in Medieval History in Honour of Barbara Harvey, ed. John Blair and
Brian Golding (Oxford, 1996), 61–62; and Richard Helmholz, The Ius commune in
England: Four Studies (Oxford, 2001), 16–81.
2. See Timbal, Droit d’asile, 64–66, 185–256. Unless otherwise indicated and
to reduce the number and length of notes, the information I provide on this subject
comes from these pages. On the now prevalent notion of a (Catholic) European ius
commune based in canonistic longings but with extensive and significant practical
resonances, see Manlio Bellomo, The Common Legal Past of Europe, 1000–1800,
trans. Lydia Cochrane (Washington, D.C., 1995), and, more polemically, Kenneth
Pennington, ‘‘Learned Law, Droit savant, gelehrtes Recht: The Tyranny of a Con-
cept,’’ Syracuse Journal of International Law and Commerce 20 (1994): 205–15.
3. Helmholz, Ius commune, 22, 67–68.
4. See André Réville, ‘‘ ‘Abjuratio regni’: Histoire d’une institution anglaise,’’
Revue historique 50 (1892): 31–33; J. Charles Cox, The Sanctuaries and Sanctuary
Seekers of Mediaeval England (London, 1911), 17, 21–22, 53–182, 195–226; Trenholme,
‘‘Right of Sanctuary,’’ 25–31, 47–60; Isobel Thornley, ‘‘Sanctuary in Medieval Lon-
don,’’ Journal of the British Archaeological Association n.s. 38 (1933): 299–315; Marjo-
rie J. Honeybourne, ‘‘The Sanctuary Boundaries and Environs of Westminster
Abbey and the College of Saint-Martin-le-Grand,’’ Journal of the British Archaeolog-
ical Association n.s. 38 (1933): 316–33.
5. England had approximately 9,000 parish churches and in excess of 1,300
other churches and chapels in hospitals and the like: Rosser, ‘‘Sanctuary and Social
Negotiation,’’ 65; Carole Rawcliffe, ‘‘Passports to Paradise: How English Medieval
Hospitals and Almshouses Kept Their Archives,’’ Archives (London) 27 (2002):
2–22. Northern France had approximately 18,000 parish churches and plausibly a
number of other churches in roughly similar proportion to that in England; cf. Wil-
liam Jordan, ‘‘Honouring Saint Louis in a Small Town,’’ JMH 30 (2004): 271–72.
6. Jill Webster, El Menorets: The Franciscans in the Realms of Aragon from St.
Francis to the Black Death, Studies and Texts 114 (Toronto, 1993), 187 n. 35. Castile’s
Siete partidas affirms aspects of the law of sanctuary, but, of course, it was not a
code of law; see Helmholz, Ius commune, 19 n. 12.
7. Augustine Thompson, Cities of God: The Religion of the Italian Communes,
1125–1325 (University Park, Pa., 2005); the unhelpful reference directs the reader to
page 39.
8. See Guy Geltner, ‘‘Medieval Prisons: Marginality at the City Center, 1250–
1400,’’ Ph.D. dissertation, Princeton University, 2006, 81, 122–26.
9. Geltner, ‘‘Medieval Prisons,’’ 69–75; Helmholz, Ius commune, 32–33.
10. Kenneth Pennington, ‘‘The Birth of the Ius commune: King Roger II’s
Legislation,’’ Rivista internazionale di diritto comune 16 (2005), forthcoming.
11. Müller expressed this view in a detailed personal communication of 24
February 2006. See also Wolfgang Müller, Die Abtreibung: Anfänge der Kriminali-
sierung, 1140–1650, Forschungen zur kirchlichen Rechtsgeschichte und zum Kirche-
nrecht 24 (Cologne, 2000).
12. Helmholz, Ius commune, 28–29.
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13. Innocent III had not wanted to extend the privilege of sanctuary to public
thieves and nocturnal miscreants: Helmholz, Ius commune, 34, 39, 58. On treason,
see below.
14. Besides the work of Timbal, see Réville, ‘‘Abjuratio regni,‘‘ 20; Cox, Sanctu-
aries, 230; Trenholme, ‘‘Right of Sanctuary,’’ 42–43; Thornley, ‘‘Sanctuary,’’ 295;
Helmholz, Ius commune, 34, 51–56.
15. Helmholz, Ius commune, 33.
16. Helmholz, Ius commune, 60–61; Cox, Sanctuaries, 19–21.
17. Réville, ‘‘Abjuratio,’’ 20–22; Cox, Sanctuaries, 301; Trenholme, ‘‘Right of
Sanctuary,’’ 43.
18. Along with Timbal’s work, see Cox, Sanctuaries, 4, and Helmholz, Ius
commune, 38, 48–49.
19. Pennington, ‘‘Birth of the Ius commune’’; Helmholz, Ius commune, 33.
20. Timbal, Droit d’asile, 234–35.
21. For the gender breakdown with respect to sanctuary seekers, see Cox,
Sanctuaries, 275–76, 281–83, 287, 302; Trenholme, ‘‘Right of Sanctuary,’’ 42–43, 69;
Thornley, ‘‘Sanctuary,’’ 295; Réville, ‘‘Abjuratio,’’ 25. For the gender breakdown for
criminal process and conviction in England and on the Continent, see Barbara Ha-
nawalt, Crime and Conflict in English Communities, 1300–1348 (Cambridge, Mass.,
1979), 115–17; William Jordan, Louis IX and the Challenge of the Crusade: A Study in
Rulership (Princeton, N.J., 1979), 236; Trevor Dean, Crime in Medieval Europe, 1200–
1650 (Harlow, 2001), 77; Geltner, ‘‘Medieval Prisons,’’ 102.
22. Réville, ‘‘Abjuratio,’’ 19; Trenholme, ‘‘Right of Sanctuary,’’ 42.
23. In the earliest phase of the regular use of the criminal trial jury (the first
few years beginning in 1219), exile followed acquittal, but this ceased in the mid-
1220s. Cf. Roger Groot, ‘‘The Early-Thirteenth-Century Criminal Jury,’’ in Twelve
Good Men and True: The Criminal Trial Jury in England, 1200–1800, ed. Thomas
Green and J. S. Cockburn (Princeton, N.J., 1988), 35; Thomas Green, ‘‘A Retrospec-
tive on the Criminal Trial Jury, 1200–1800) in the same volume, 362; Henry Sum-
merson, ‘‘Attitudes to Capital Punishment in England, 1200–1350,’’ Thirteenth-
Century England 8 (2001): 123–33.
24. In addition to remarks scattered in Timbal (note 1), see Trenholme,
‘‘Right of Sanctuary,’’ 33.
25. Hunnisett, Medieval Coroner, 39.
26. Westminster Abbey Charters, 1066–c. 1214, ed. Emma Mason (London,
1988), 135 no. 272 (dated 1138–54).
27. Westminster Abbey Charters, 195–96 no. 349. See also Bellamy, Crime and
Public Order, 107. That the Westminster oaths specifically were in continuous use
there is suggested by an inframarginal notation indicating that they were reenrolled
in a subsequent register in the late fourteenth century. The reenrollment can be
found in London, Westminster Abbey Muniments (WAM), Book 1 (Liber Niger),
fol. cxxxix verso.
28. Réville, ‘‘Abjuratio,’’ 28.
29. To the observations of Timbal, add Hunnisett, Medieval Coroner, 39–40;
Trenholme, ‘‘Right of Sanctuary,’’ 33; Thornley, ‘‘Sanctuary,’’ 295–96.
30. Besides Timbal, refer to Cox, Sanctuaries, 256.
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31. Cf. Helmholz, Ius commune, 18–19; Trenholme, ‘‘Right of Sanctuary,’’

34–35; Réville, ‘‘Abjuratio,’’ 16; Hunnisett, Medieval Coroner, 37–38. Two imperial
cities, Augsburg and Strasbourg, permitted only three days.
32. Helmholz, Ius commune, 31–32.
33. Branding with the fleur-de-lys was fairly common in criminal procedure
in France; see the examples in Robert Fawtier, ‘‘Un compte de menues dépenses de
l’Hôtel du roi Philippe VI le Valois pour le premier semestre de l’année 1337,’’ in
Autour de la France capétienne: Personnages et institutions, ed. Jeanne Stone (Lon-
don, 1987), xvi, 24, 26 nos. 174, 194.
34. Timbal, Droit d’asile, 237, 256.
35. Réville, ‘‘Abjuratio,’’ 3–9; see also Bellamy, Crime and Public Order, 111–14;
Hunnisett, Medieval Coroner, 44–50.
36. Hunnisett, Medieval Coroner, 41–42, cf. 51–54.
37. Trenholme, ‘‘Right of Sanctuary,’’ 33–36; Thornley, ‘‘Sanctuary,’’ 295.
38. Trenholme, ‘‘Right of Sanctuary,’’ 35 n. 11; Hunnisett, Medieval Coroner,
48.
39. See Hunnisett, Medieval Coroner, 52–53.
40. Réville, ‘‘Abjuratio,’’ 18; Cox, Sanctuaries, 262; Trenholme, ‘‘Right of Sanc-
tuary,’’ 43.
41. Réville, ‘‘Abjuratio,’’ 19.
42. For the information in this paragraph, unless otherwise indicated, see Ré-
ville, ‘‘Abjuratio,’’ 16–17, 21.
43. Hunnisett, Medieval Coroner, 46–47.
44. Trenholme, ‘‘Right of Sanctuary,’’ 37.
47. Cox, Sanctuaries, 250; Trenholme, ‘‘Right of Sanctuary,’’ 74; Helmholz, Ius
commune, 19, 65.
48. Hunnisett, Medieval Coroner, 44; Helmholz, Ius commune, 61.
49. Réville, ‘‘Abjuratio,’’ 15–16; Trenholme, ‘‘Right of Sanctuary,’’ 38–39.
50. P&M, 2: 651–52.
51. Cox, Sanctuaries, 25–26; Trenholme, ‘‘Right of Sanctuary,’’ 41–42.
52. Cox, Sanctuaries, 26, 28–29.
53. The remarks in this paragraph have been synthesized from Réville, ‘‘Abju-
ratio,’’ 17–18, 26; Cox, Sanctuaries, 32, 262, 275, 277; Trenholme, ‘‘Right of Sanctu-
ary,’’ 41, 44, 69.
54. Paul Brand, ‘‘Chief Justice and Felon: The Career of Thomas Weyland,’’
in Brand, The Making of the Common Law (London, 1992), 113.
55. Bellamy, Crime and Public Order, 112.
56. Alan Cooper, ‘‘The Rise and Fall of the Anglo-Saxon Law of the High-
way,’’ Haskins Society Journal 12 (2002): 39, 69.
57. This opinion is implied also in Bellamy, Crime and Public Order, 112.
58. Hunnisett, Medieval Coroner, 47–49.
59. Ralph Pugh, ‘‘Early Registers of English Outlaws,’’ American Journal of
Legal History 27 (1983): 319–29.
Authenticated

62. Trenholme, ‘‘Right of Sanctuary,’’ 25, 38, 41; Réville, ‘‘Abjuratio,’’ 18, 21–22;
Cox, Sanctuaries, 33.
63. Theoretically, after a sufficient interval, failure to persuade a ship to board
them gave them the right to enter sanctuary again at the port, but the absence of
all evidence that this ever occurred (Hunnisett, Medieval Coroner, 49), though an
argument from silence, suggests the regularity of traffic and the dependability of
certain ship captains.
64. For the various estimates, see Cox, Sanctuaries, 33; Trenholme, ‘‘Right of
Sanctuary,’’ 25; Hunnisett, Medieval Coroner, 38 (extrapolated from his figure for
Sussex, which he regarded as typical).
65. Michel Nortier and John Baldwin, ‘‘Contributions à l’étude des finances
de Philippe Auguste,’’ Bibliothèque de l’Ecole des chartes 138 (1980): 14.
66. Mason, Westminster Abbey and Its People, 111–12.
67. WAM, nos. 9602, 9603, 9595–97, 9599, 9600, 63713.
68. Timbal, Droit d’asile, 245–47; Cox, Sanctuaries, 35–44, 51–52, 229–31; Tren-
holme, ‘‘Right of Sanctuary,’’ 74, 77–82; Thornley, ‘‘Sanctuary,’’ 297–98.
69. Timbal, Droit d’asile, 195–96, 207, 247; Cox, Sanctuaries, 247.
70. Actes du Parlement de Paris, 2 vols., ed. Edgar Boutaric (Paris, 1863–67), 2:
26 no. 3245. A famous case in England in 1378, that of Robert Hawley, similar in
that Parliament reaffirmed sanctuary after a nasty violation, is summarized in Origi-
nal Papal Documents in the Lambeth Palace Library: A Catalogue, Inst His Res 34 no.
93 (London, 1967).
71. Réville, ‘‘Abjuratio,’’ 29–31.
72. Cox, Sanctuaries, 230, 232–33, 237–39.
73. Esther Cohen, ‘‘Le Vagabondage à Paris au XIVe siècle: Analyse concept-
uelle,’’ Le Moyen Age (1982): 293–313.
74. C. A. F. Meekings and David Crook, eds., The 1235 Surrey Eyre, 2 vols.
Surrey Record Society Publications 32 (Guildford, 1979–83), 2: 434 no. 567.
75. On the law of treason, see J. G. Bellamy, The Law of Treason in England in
the Later Middle Ages (Cambridge, 1970); S. H. Cuttler, The Law of Treason and
Treason Trials in Later Medieval France (Cambridge, 1981). For some of the causes
célèbres, see Cox, Sanctuaries, 45, 319; Thornley, ‘‘Sanctuary,’’ 306–7; Isobel Thorn-
ley, ‘‘The Destruction of Sanctuary,’’ in Tudor Studies Presented by the Board of
Studies in History in the University of London to Albert Frederick Pollard, ed. R. W.
Seton-Watson (London, 1924),182–207; Trenholme, ‘‘Right of Sanctuary,’’ 44–45;
E. W. Ives, ‘‘Crime, Sanctuary, and Royal Authority Under Henry VIII: The Exem-
plary Sufferings of the Savage Family,’’ in On the Laws and Customs of England:
Essays in Honor of Samuel E. Thorne, ed. Morris Arnold et al. (Chapel Hill, N.C.,
1981), 296–320; Cuttler, Law of Treason, 142–237.
76. Helmholz, Ius commune, 22.
77. Trenholme, ‘‘Right of Sanctuary,’’ 1–2, 94–98; Timbal, Droit d’asile, 261–
452; Réville, ‘‘Abjuratio,’’ 34–41.
78. Timbal, Droit d’asile, 255.
79. Rosser, ‘‘Sanctuary,’’ 74.
80. Rosser, ‘‘Sanctuary,’’ 65, 74; cf. Cox, Sanctuaries, 265. I think the analogy
Authenticated
to ordeal is a strong one, although the consensus theory associated with Peter
Brown and Paul Hyams has its critics; see Robert Bartlett, Trial by Fire and Water:
The Medieval Judicial Ordeal (Oxford, 1986), 34–42.
81. Krista Kesselring, ‘‘Abjuration and Its Demise: The Changing Face of
Royal Justice in the Tudor Period,’’ Canadian Journal of History 34 (1999): 345–58.
82. The expectation that felons would get off in ordeals is constant and com-
plicates historians’ understanding of their persistence; the best treatment is Bart-
lett’s Trial by Fire.
83. Douglas Haye et al., eds., Albion’s Fatal Tree: Crime and Society in Eigh-
teenth-Century England (New York, 1975).
84. Bellamy, Crime and Public Order, 109.
85. For a typical example, see Ignatius Bau, This Ground Is Holy: Church Sanc-
tuary and Central American Refugees (Mahwah, N.J., 1985).
Chapter 2. Heresy as Politics and the Politics of Heresy, 1022–1180
1. Peters, Magician, 49.

2. Heinrich Fichtenau, Heretics and Scholars in the High Middle Ages (Univer-
sity Park, Pa.. 1998).
3. Peters, Magician, 38–39.
4. Compare the story of a young woman burned at Cologne in 1163, R. I.
Moore, The Birth of Popular Heresy (London, 1975), 88–89, but the courage of here-
tics at the stake became something of a topos at this time.
5. Below, n. 38.
6. R. H. Bautier, ‘‘L’hérésie d’Orléans et le mouvement intellectuel au début
du XIe. siècle,’’ Actes du 95e. Congrès national des sociétés savantes (Reims, 1970),
Section philologique et historique (Paris, 1975), 63–88; see also Georges Duby, The
Knight, the Lady and the Priest: The Making of Modern Marriage in Medieval France,
trans. Barbara Bray (London, 1984), 75–84.
7. Gesta Synodi Aurelianensis, Bouquet, Receuil des historiens de Gaule et de
la France, 10: 536–39, trans. Moore, Popular Heresy, 10–15.
8. R. H. Bautier and Gillette Labory, eds., André de Fleury, Vie de Gauzlin,
abbé de Fleury (Paris, 1969), 96–103, 180–83.
9. He was the brother of Duke Richard I’s wife Gunnor, but in spite of his
rank not obviously a powerful political figure; see Eleanor Searle, Predatory Kinship
and Norman Power, 840–1066 (Berkeley, Calif., 1988), 100–101, 103, 115–16.
10. John France, Nithard Bulst, and Paul Reynolds, Rodulfus Glaber Opera
(Oxford, 1989), 138.
11. Among many discussions, see further R. I. Moore, The Origins of European
Dissent (London, 1977), 24–30; Brian Stock, The Implications of Literacy (Princeton,
N.J., 1983), 106–20; Thomas Head, Hagiography and the Cult of Saints: The Diocese
of Orléans, 800–1200 (Cambridge, 1990), 266–69.
12. Gesta Synodi Aurelianensis, 536–39, trans. Moore, Popular Heresy, 10–15.
13. Peter Brown, ‘‘Sorcery, Demons and the Rise of Christianity: From Late
Authenticated
Antiquity into the Middle Ages,’’ in Brown, Religion and Society in the Age of St.
Augustine (London: 1972), 119–46; Peters, Magician, 16–18.
14. Robert Chazan, Medieval Jewry in Northern France (Baltimore, 1973), 12.
15. Richard Landes, Relics, Apocalyps,e and the Deceits of History: Ademar of
Chabannes, 989–1034 (Cambridge Mass., 1995), 178–93.
16. Moore, Popular Heresy, 21; Fichtenau, Heretics and Scholars, 27–28.
17. Margaret Gibson, Lanfranc of Bec (Oxford, 1978), 64–65; Charles M. Rad-
ding and Francis Newton, Theology, Rhetoric and Politics in the Eucharistic Contro-
versy, 1078–9: Alberic of Monte Cassino Against Berengar of Tours (New York, 2003),
though focused on the later part of Berengar’s career, which does not concern us
here, provide a helpful recent account.
18. Durand, Liber de corpore et sanguine Christi, Migne, PL 149, 1373–1424, at
1421–22.
19. Historia calamitatum, trans. Betty Radice, The Letters of Abelard and Hel-
oise, 2nd ed., revised by M. T. Clanchy (London, 2003), 3–4.
20. R. H. Bautier, ‘‘Paris au temps d’Abélard,’’ in Abélard en son temps, ed.
Jean Jolivet (Paris, 1981), 21–77, at 53–75.
21. Bautier, ‘‘Paris,’’ 74–77, surmises that Heloise was related on her father’s
side to the Montmorency family, who were connected to the Garlandes, and on her
mother’s to that of the vidames of Chartres.
22. Almost suggested by Constant Mews, The Lost Letters of Heloise and Abe-
lard (New York, 1999), 62: ‘‘Stephen has strong connections in Orléans. . . . He is
well placed to introduce the cultural traditions of Orléans and the Loire valley into
Paris.’’
23. Letters of Abelard and Heloise, 251 n. 17; M. T. Clanchy, Abelard: A Medie-
val Life (Oxford, 1997), 73–74
24. Ibid., 292–95.
25. John of Salisbury, Historia Pontificalis, ed. and trans. Marjorie Chibnall
(Edinburgh, 1956), 15–25, at 21; cf. R. W. Southern, Scholastic Humanism and the
Unification of Europe, vol. 1, Foundations (Oxford, 1995), 190–91, 225.
26. Historia Pontificalis, 23.
27. Otto of Freising, Gesta Frederici Imperatoris I, lviii, ed. Georg Waitz,
MGH, Scriptores rerum Germanicarum in usum scholarum (Hannover and Leip-
zig, 1912), 82; for John of Salisbury, at 25, diversarum provinciarum archiepiscopis et
episcopis.
28. Historia Pontificalis, 23. At 25 John describes these events as taking place
non in concilio, sed postea in palatio Tau—in the T–shaped hall of the archbishop’s
palace. When Eugenius had spoken to the laity he turned back (conversus) to Gilbert
to ask about his commentary on Boethius, de trinitate. Following Miller’s analysis
of the liturgical basis of the design of bishops’ halls, we may conclude that the clerks
discussed their business in the upper part of the T, corresponding to the transept,
while the laity watched from the lower part, corresponding to the nave: Maureen
C. Miller, The Bishop’s Palace: Architecture and Authority in Medieval Italy (Ithaca,
N.Y., 2000), 173–81.
29. Cf. Constant Mews, ‘‘The Council of Sens (1141): Abelard, Bernard, and
the Fear of Social Upheaval,’’ Speculum 77 (2002): 342–82.
Authenticated
30. Timothy Reuter, ‘‘Assembly Politics in Western Europe from the Eighth
Century to the Twelfth,’’ in The Medieval World, ed. Peter Linehan and Janet L.
Nelson (London, 2001), 432–50, at 438–39.
31. Wim Verbaal, ‘‘Sens: une victoire d’écrivain: Les deux visages du procès
d’Abélard,’’ in Pierre Abélard: Colloque international de Nantes, ed. Jean Jolivet and
Henri Habria (Rennes, 2003), 77–89. I am grateful to David Luscombe for a copy
of this paper.
32. Historia calamitatum, 20.
33. Letters of Abelard and Heloise, 290.
34. Reuter, ‘‘Assembly Politics.’’
35. Christian Lauranson-Rosaz, ‘‘Peace from the Mountains: The Auvergnat
Origins of the Peace of God,’’ in The Peace of God: Social Violence and Religious
Response Around the Year 1000, ed. Thomas Head and Richard Landes (Ithaca, N.Y.,
1992).
36. Guibert de Nogent, Autobiographie iii.17, ed. E. R. Labande (Paris, 1981),
428–35.
37. R. I. Moore, ‘‘Popular Violence and Popular Heresy in Western Europe, c.
1000–1179,’’ in Persecution and Toleration: Papers Read at the Twenty-Second Sum-
mer Meeting and the Twenty-Third Winter Meeting of the Ecclesiastical History Soci-
ety, ed. W. J. Sheils, Studies in Church History 21 (Oxford, 1984), 43–50.
38. Sigebert of Gembloux says only that Eon ‘‘blasphemously discussed and
argued about holy books,’’ administered sacraments, and ordained bishops and
archbishops among his followers; the much later account of William of Newburgh
is another example of the rhetorical elaboration described by Peters in Magician:
Moore, Popular Heresy, 62–66.
39. Moore, Popular Heresy; R. I. Moore, ‘‘Afterthoughts on The Origins of
European Dissent,’’ in Heresy and Persecution in the Middle Age: Essays on the Work
of R. I. Moore, ed. Michael Frassetto (Leiden, 2006), 291–326.
40. Ademar, in Moore, Popular Heresy, 10.
41. Ibid., 24.
42. E.g., respectively, Pierre Bonnassie and Richard Landes, ‘‘Une nouvelle
hérésie est née dans le monde,’’ in Les sociétés méridionales autour de l’an mil, ed.
M. Zimmermann (Paris, 1992), 435–59; R. I. Moore, The First European Revolution,
c. 970–1215 (Oxford, 2001), 7–11, 101–11; and, if I understand him correctly, Domini-
que Barthélemy, L’an mil et la paix de Dieu: La France chrétienne et féodale 980–1060
(Paris, 1999)
43. See Claire Taylor’s thorough and acute discussion in her Heresy in Medie-
val France: Dualism in Aquitaine and the Agenais, 1000–1249 (Woodbridge, 2005),
55–138.
44. Glaber Opera, 138; Acta synodi Atrebatensis, trans. Moore, Popular Heresy,
16.
45. Guy Lobrichon, ‘‘Arras, 1025, ou le vrai procès d’une fausse accusation,’’
in Inventer l’hérésie? Discours polémiques et pouvoirs avant l’inquisition, ed. Monique
Zerner (Nice, 1998), 67–85; Lobrichon, ‘‘The Chiaroscuro of Heresy: Early
Eleventh–Century Aquitaine as seen from Auxerre’’ in Head and Landes, Peace of
God, 80–103.
Authenticated
46. R. I. Moore, ‘‘The War Against Heresy in Medieval Europe,’’ University

of Pennsylvania Henry Charles Lea Memorial Lecture, April 2003, to appear in
somewhat revised form in Inst His Res.
47. Dominique Iogna–Prat, Order and Exclusion: Cluny and Christendom Face
Heresy, Judaism, and Islam (1000–1150) (Ithaca, N.Y., 1998).
48. Mansi, Concilia xxi, col. 1177.
Chapter 3. Legal Ethics: A Medieval Ghost Story
1. For the requirement of an admissions oath, see Paul Vinogradoff, Roman

Law in Medieval Europe (London, 1909; rpt. Cambridge, 1968), 13. For Vinogradoff’s
career, see Peter Stein’s entry for Vacarius in the Oxford Dictionary of National Biog-
raphy, http://www.oxforddnb.com.
2. E.g., Rosamund McKitterick, The Carolingians and the Written Word
(Cambridge, 1989), 46–57; McKitterick, ‘‘Some Carolingian Law-Books and Their
Function,’’ in Authority and Power: Studies on Medieval Law and Government Pre-
sented to Walter Ullmann on His Seventieth Birthday, ed. Brian Tierney and Peter
Linehan (Cambridge, 1980), 13–27; Ian Wood, ‘‘The Code in Merovingian Gaul,’’ in
The Theodosian Code, ed. Jill Harries and Ian Wood (Ithaca, N.Y., 1993), 161–77;
Wood, ‘‘Administration, Law and Culture in Merovingian Gaul,’’ in The Uses of
Literacy in Early Medieval Europe, ed. Rosamund McKitterick (Cambridge, 1990;
rpt. 1992), 63–81; Jean Gaudemet, Le Bréviaire d’Alaric et les Epitome, Ius Romanum
Medii Ævi (hereafter IRMÆ), Part 1, sec. 2b (Milan, 1965); Gaudemet, ‘‘Survivances
romaines dans le droit de la monarchie franque du Ve au Xe siècle,’’ Tijdschrift voor
Rechtsgeschiedenis 23 (1955): 149–206, both reprinted in his La formation du droit
canonique médiéval (London, 1980), nos. I, II.
3. Vinogradoff, Roman Law, 11; Alan Watson, The Spirit of Roman Law (Ath-
ens, Ga., 1995), 205–7; Watson, The Evolution of Law (Baltimore, 1985), 66–67, 93.
4. John A. Crook, Legal Advocacy in the Roman World (London, 1995), 41–45.
The extensive literature on the sociology of the professions focuses on current situa-
tions and seldom takes much account, if any, of professions prior to the industrial
revolution. A notable exception is Michael Burrage, ‘‘The Professions in Sociology
and History,’’ in Professions in Theory and History: Rethinking the Study of Profes-
sions, ed. Michael Burrage and Rolf Torstendahl (London, 1990), 1–28.
5. The classical period was generally deemed to have run from the reign of
Augustus to that of Diocletian: Fritz Schulz, History of Roman Legal Science (Ox-
ford, 1946), 99–101. The evidence for systematic training comes principally from the
Enchiridion of Pomponius preserved in Dig. 1.2.2.47–48, 50–53. What we know
about Pomponius’s work comes mainly from student notes of lectures delivered
before 131 c.e.: Dieter Nörr, ‘‘Pomponius oder ‘Zum Geschichtsverständnis der röm-
ischen Juristen,’ ’’ in Aufstieg und Niedergang der römischen Welt: Geschichte und
Kultur Roms im Spiegel der neueren Forschung, ed. Hildegard Temporini and Wolf-
gang Haase, Part 2, Prinzipat, 45 vols. (Berlin, 1972–), 22 vols. to date), 15: 397–64. I
have in addition consulted the translation of the Digest, ed. Alan Watson, 4 vols.
Authenticated
(Philadelphia, 1985). I cite the Glossa ordinaria of Accursius from the 5-volume edi-
tion (Lyon, 1584). For Roman and canon law citation, system see James A. Brund-
age, Medieval Canon Law (London, 1995), 190–205.
6. Cod. Theod. 14.9.3 ⳱ Cod. 11.19.1; Dig. 27.1.6.12, 50.13.1.5. I have in addition
consulted the Theodosian Code and Novels, trans. Clyde Pharr (Princeton, N.J., 1952;
rpr. Union, N.J, 2001); see also Edoardo Volterra, ‘‘Western Postclassical Schools,’’
Cambridge Law Journal 10 (1949): 196–207. Organized law schools did continue to
function in the Eastern Empire at Constantinople and Beirut, and perhaps at the
‘‘Museum’’ in Smyrna as well; Cod. Theod. 6.21.1 ⳱ Cod. 12.15.1; Crook, Legal Advo-
cacy, 194; Schulz, History of Roman Legal Science, 264 n. 1, 268–69, 272–75.
7. Pierre Riché, Enseignement du droit en Gaule du VIe au XIe siècle, IRMÆ,
pt. 1, sec. 5 (Milan, 1965); Pietro Vaccari, Diritto longobardo e letteratura longobardis-
tica intorno al diritto italiano, IRMÆ, vol. 1, pt. 4b, sec. 33 (Milan, 1966), 4–7; Her-
mann Kantorowicz, Über die Entstehung der Digesetenvulgata: Ergänzungen zu
Mommsen (Weimar, 1910), 70–75, 93–110; Lucas F. Bruyning, ‘‘Lawcourt Proceed-
ings in the Lombard Kingdom Before and After the Frankish Conquest,’’ JMH 11
(1985): 193–214, at 194. See also Jacques Fontaine, ‘‘Education and Learning,’’ in The
New Cambridge Medieval History, 7 vols. in 8 (Cambridge, 1995–2005), 1: 735–59.
8. Frederick William Maitland,‘‘English Law and the Renaissance,’’ in Select
Essays in Anglo-American History, 3 vols. (Boston, 1906–9), 1: 168–207, at 198.
9. Harold J. Berman, Law and Revolution: The Formation of the Western Legal
Tradition (Cambridge, Mass., 1983), 85–198, 520–38 and passim, argues what might
be called the maximalist view. But see, e.g., Rudolf Schieffer, ‘‘’The Papal Revolu-
tion in Law?’ ’’ Rückfragen an Harold J. Berman,’’ Bulletin of Medieval Canon Law
(hereafter BMCL) 22 (1998): 19–30.
10. Martin Brett, ‘‘Canon Law and Litigation: The Century Before Gratian,’’
in Medieval Ecclesiastical Studies in Honour of Dorothy M. Owen, ed. M. J. Franklin
and Christopher Harper-Bill (Woodbridge, 1995), 21–40; Johannes Fried, ‘‘Die römi-
sche Kurie und die Anfänge der Prozeßliteratur,’’ Zeitschrift der Savigny-Stiftung für
Rechtsgeschichte, Kanonistische Abteilung (hereafter ZRG, KA) 59 (1973): 151–74, at
173–74.
11. Friedrich Carl von Savigny, Geschichte des römischen Rechts im Mittelalter,
7 vols. (Heidelberg, 1834–52; rpt. Aalen, 1986), remains useful despite its age. On
research since Savigny’s time, see especially Stephan Kuttner, ‘‘The Revival of Juris-
prudence’’ and Knut Wolfgang Nörr, ‘‘Institutional Foundations of the New Juris-
prudence,’’ in Renaissance and Renewal in the Twelfth Century, ed. Robert L. Benson
and Giles Constable (Cambridge, Mass., 1982), 299–323, 324–38; Helmut Coing, ed.,
Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte,
vol. 1, Mittelalter (1100–1500) (Munich, 1973); Hermann Lange, Römisches Recht im
Mittelalter, vol. 1, Die Glossatoren (Munich, 1997); Peter Stein, Roman Law in Euro-
pean History (Cambridge, 1999). J. A. Clarence Smith, Medieval Law Teachers and
Writers, Civilian and Canonist (Ottawa, 1975), is also useful.
12. Brundage, Medieval Canon Law, 44–49; Anders Winroth, The Making of
Gratian’s Decretum, Cambridge Studies in Medieval Life and Thought 4th ser. 49
(Cambridge, 2000).
13. Johannes Fried, Die Entstehung des Juristenstandes im 12. Jahrhundert: Zur
Authenticated
sozialen Stellung und politischen Bedeutung gelehrter Juristen in Bologna und Modena,
Forschungen zur neueren Privatrechtsgeschichte 21 (Cologne, 1974), but see. Nor-
bert Horn, ‘‘Bologneser Doctores und Iudices im 12. Jahrhundert und die Rezeption
der studierten Berufsjuristen,’’ Zeitschrift für historische Forschung 3 (1976): 221–32;
André Gouron, ‘‘Medieval Courts and Towns: Examples from Southern France,’’
Fundamina 1 (1992): 30–46, rpt. in Juristes et droits savants: Bologne et la France méd-
iévale (Aldershot, 2000), no. 14; Rudolf Weigand, ‘‘Frühe Kanonisten und ihre Kar-
riere in der Kirche,’’ ZRG, KA 76 (1990), 135–55, rpt. in his Glossatoren des Dekrets
Gratians (Goldbach, 1997), 403*–23*.
14. Gouron, ‘‘Le role de l’avocat selon la doctrine romaniste du douzième siè-
cle,’’ in L’assistance dans la résolution des conflits, pt. 4, Recueils de la Société Jean
Bodin 65 (Brussels: 1998), 7–19, at 15; Dig. 1.1.1.1, 50.13.1.5; Cod. 2.7.20.
15. ‘‘Dat Galienus opes et sanctio Justiniana / Ex aliis paleas, ex istis collige
grana.’’ Stephan Kuttner, ‘‘Dat Galiens opes et sanctio Justiniana,’’ in Linguistic and
Literary Studies in Honor of Helmut A. Hatzfeld, ed. A. S. Crisafulli (Washington,
D.C., 1964), 237–46. at 243; rpt. with additional notes and comments in Kuttner,
History of Ideas and Doctrines of Canon Law in the Middle Ages, 2nd ed. (Aldershot,
1992), no. 10. The translation is by Beryl Smalley, The Becket Conflict and the Schools:
A Study of Intellectuals in Politics (Oxford, 1973), 19.
16. For advancing clients’ interests, Second Council of Lyon (1274) c. 19, in
Decrees of the Ecumenical Councils, ed. Giuseppe Alberigo et al., trans. Norman Tan-
ner et al., 2 vols. (Washington, D.C., 1990), 1: 324. For secrecy, Dig. 48.19.38.8; Wil-
liam Durand, Speculum iudiciale 1.4 De aduocato §3.10 (Basel, 1574; rpt. Aalen, 1975),
1: 266. Cf. American Bar Association, Model Rules of Professional Conduct (2004),
Rule 1.6, in Susan R. Martyn, Lawrence J. Fox, and W. Bradley Wendel, The Law
Governing Lawyers (New York, 2005), 21. For faithfulness to a client’s interests, Cod.
2.8(9).2; Dig. 4.3.7.9, 47.15.1; Durand, Speculum 1.4 De aduocato §3.11 (1:266). For fees
charged, Dig. 50.13.1.10. These criteria remain the basic guidelines to this day; e.g.,
American Bar Association, Model Rules of Professional Conduct (2004), Rule 1.5, in
Martyn, Fox, and Wendel, The Law Governing Lawyers, 19; International Bar Associ-
ation, International Code of Ethics, in the Law Society Guide to the Professional Con-
duct of Solicitors, 7th ed. (London, 1996), 161.
17. James A. Brundage, ‘‘The Lawyer as His Client’s Judge: The Medieval Ad-
vocate’s Duty to the Court,’’ in Cristianità ed Europa: Miscellanea di studi in onore
di Luigi Prosdocimi, ed. Cesare Alzati, 2 vols. in 3 (Rome, 1994–2000), 1: 591–607 and
the sources cited therein.
18. For the requirement of an admissions oath, see Cod. 3.1.14.4, 2.58(59).2.
Roman law gave every judge the right to grant or deny the privilege of audience in
his court and to maintain a record of those to whom he had granted this right: Dig.
3.1.9; Cod. Theod. 2.10.2; Cod. 2.7.11 1–3, 2.7.29; Max Kaser, Das römische Zivilprozes-
srecht, 2nd ed. rev. Karl Hackl (Munich, 1996), 564. The practice of maintaining a
record of those admitted was apparently no longer in use by the latter part of the
twelfth century, but had been reinstated by around 1215; Tancred, Ordo iudiciarius
1.5.2, in Pillius, Tancredus, Gratia libri de iudiciorum ordine, ed. Friedrich Christian
Bergmann (Göttingen: 1842; rpt. Aalen, 1965), 112; Gouron, ‘‘Le rôle de l’avocat,’’ 14.
19. Cod. 2.58(59).2 pr.; James A. Brundage, ‘‘The Calumny Oath and Ethical
Authenticated
Ideals of Canonical Advocates,’’ in Proceedings of the Ninth International Congress

of Medieval Canon Law, ed. Peter Landau and Joerg Mueller, Monumenta iuris can-
onici, Subsidia 10 (Vatican City, 1997), 793–805; rpt. in The Profession and Practice
of Medieval Canon Law (Aldershot, 2004), no. 4; Richard H. Helmholz, ‘‘The litis
contestatio: Its Survival in the Medieval ius commune and Beyond,’’ in Lex et Ro-
manitas: Essays for Alan Watson, ed. Michael Hoeflich (Berkeley, Calif., 2000),
73–89.
20. Cod. 3.1.14.4. Use of the calumny oath was, however, much older than
this; Gaius, writing in the latter half of the second century, for example, described
it in his Institutes 4.171, 174–78, ed. E. Seckel and B. Kuebler, trans. W. M. Gordon
and O. F. Robinson (Ithaca, N.Y., 1988), 522–26.
21. Julius von Ficker, Forschungen zur Reichs- und Rechtsgeschichte Italiens, 4
vols. (Innsbruck, 1868–1874; rpt.. Aalen, 1961), 1: 58, 4:64, 67–68, 74–75; Arthur En-
gelmann et al., A History of Continental Civil Procedure, trans. Robert Wyness Mil-
lar, Continental Legal History Series 7 (Boston, 1927; rpt.. Buffalo, N.Y., 1999), 429,
434, 436. Vaccari comments on the reappearance of the calumny oath in his Diritto
longobardo e letteratura longobardistica intorno al diritto italiano; Romualdo Trifone,
Diritto romano comune e diritto particolari nell’Italia meridionale, IRMÆ, vol. 5, sec.
2.d (Milan, 1962).
22. Pisa made a deliberate decision to Romanize its municipal law beginning
in 1159. Consequently it was one of the earliest Italian cities to demand that persons
who argued cases in its courts swear the calumny oath; Chris Wickham, Legge, prat-
iche e conflitti: Tribunali e risoluzione delle dispute nella Toscana del XII secolo (Rome,
2000), 196–226; Claudia Storti Storchi, Intorno ai costituti pisani della legge e dell’uso
(secolo XII) (Naples, 1998), prints the text of the Pisan calumny oath at 134, n. 492.
23. Thus Policraticus sive de nugis curialium et vestigiis philosophorum 5.13, ed.
C. C. J. Webb, 2 vols. (Oxford: 1909), 1: 340, as well as in his letter no. 77, in The
Letters of John of Salisbury, ed. and trans. W. J. Millor, H. E. Butler, and C. N. L.
Brooke, 2 vols. (Edinburgh, 1955; Oxford, 1969), 1: 122. Although John of Salisbury
would surely not have described himself as a lawyer, his letters clearly show that he
spent a substantial part of his working life advising Archbishops Theobald and
Thomas Becket as well as others on legal matters, chiefly in connection with appel-
late litigation: C. N. L. Brooke, ‘‘John of Salisbury and His World,’’ in The World of
John of Salisbury, ed. Michael Wilks (Oxford, 1994), 1–20, at 7–8.
24. Council of Château-Gontier c. 35 in Conciles de la Province de Tours
(XIIIe–XVe siècles), ed. Joseph Avril (Paris, 1987), 154–55; also in Giovanni Domen-
ico Mansi, Sacrorum conciliorum nova et amplisssima collectio, rev. ed., 53 vols. in 60
(Paris, 1901–27; hereafter Mansi), 23: 240–41; Provincial Council of Rouen c. 48, in
Mansi, 23: 218–19 and in Edmond Martène and Ursmer Durand, Thesaurus novus
anecdotorum, 5 vols. (Paris, 1717; rpt.. Farnborough, 1968–69), 4: 181–81.
25. Cod. 2.6.5, 2.6.6 3. For the judge’s right to ban or fine advocates, Die Kons-
titutionen Friedrichs II. für das Königreich Sizilien 1.83–84, ed. Wolfgang Stürner,
MGH, Constitutiones et acta publica imperatorum et regum, vol. 2, Supplement
(Hannover, 1996), 257–59.
26. Legatine Council of London (1237) c. 29 in Councils and Synods with Other
Documents Relating to the English Church, pt. 2, A.D. 1205–1313, ed. F. M. Powicke
Authenticated
and C. R. Cheney, 2 vols. (Oxford, 1964; hereafter Councils and Synods), 1: 258–59.
This was followed by Statutes of Salisbury II (1238⬃1244) c. 58, Council of Worcester
III (1240) c. 75, Statutes of Durham II (1241⬃1248) c. 50.vi, Statutes of Chichester I
(1245⬃1252) c. 66, Statutes of York I (1241⬃1255) c. 66, Statutes of Salisbury IV
(1257⬃1268) c. 47, in Councils and Synods 1: 386, 314–15, 435, 465, 493, 567. A later
legate, Cardinal Ottobono repeated the demand at a Legatine Council in 1268, c. 26;
Councils and Synods 2: 773. On Cardinal Otto and his legatine mission, see Dorothy
M. Williamson (later Owen), ‘‘Some Aspects of the Legation of Cardinal Otto in
England, 1237–41,’’ English Historical Review 64 (1949): 145–73.
27. Synodal statutes of Guiard de Laon, bishop of Cambrai (1248–48), c. 187
in Les statuts synodaux de l’ancienne province de Reims, ed. Joseph Avril, Statuts syn-
odaux français 4 (Paris, 1995), 63; Council of Langeais (1255), c. 15, in Conciles de la
province de Tours, ed. Avril, 222; Antonio Planas Rosselló, ‘‘Los abogados de Mal-
lorca en el sistema jurı́dico de la recepción del derecho común,’’ in L’assistance dans
la résolution des conflits, pt. 4, 115–43, at 133.
28. 2 Lyon (1274) c. 19, in Decrees of the Ecumenical Councils, ed. Giuseppe
Alberigo, trans. and ed. Norman P. Tanner, 2 vols. (London; Washington, D.C.,
1990), 1: 324–25.
29. Azo, Summa super Codicem, Instituta, Extraordinaria to Inst., proem
(Pavia, 1506; repr. Turin, 1966), 346; Cod. 2.7.14.
30. Cod. 3.1.13.9. The appropriate procedure for a client who wished to sue
was an actio in factum similar to that brought against a judge who handed down a
decision not warranted by the law: Dig. 50.13.6; Durand, Speculum 1.4 De aduocato
§9.19 (1: 282).
31. Dig. 4.4.18.1. Justinian’s Digest devotes a whole title (Dig. 3.2) to the conse-
quences of infamia; see especially Dig. 3.2.4.4. Medieval canon law incorporated
much of this doctrine, e.g. in Gratian’s Decretum C. 3 q. 7 c. 1 and c. 2 §2; C. 6 q. 1
c. 17–19; X 1.11.17; 2.18.1; 5.1.21, etc. See further Peter Landau, Die Entstehung des ka-
nonischen Infamiebegriffs von Gratian bis zur Glossa Ordinaria, Forschungen zur kir-
chlichen Rechtsgeschichte und zum Kirchenrecht, vol. 5 (Cologne, 1966); Francesco
Migliorino, Fama e infamia: Problemi della società medievale nel pensiro giuridico nei
secoli XII e XIII (Catania, 1985); Thelma Fenster and Daniel Lord Smail, eds., Fama:
The Politics of Talk and Reputation in Medieval Europe (Ithaca, N.Y., 2003); as well
as Edward M. Peters, ‘‘Wounded Names: The Medieval Doctrine of Infamy,’’ in
Law in Mediaeval Life and Thought, ed. Edward B. King and Susan J. Ridyard (Se-
wanee, Tenn., 1990), 43–89.
32. Accursius, Glos. ord. to Cod. 2.7.1 v. commisi; Peters, ‘‘Wounded Names,’’
84.
33. Accursius, Casus to Cod. 7.49.1 v. constitit and Glos. ord. v. amittat.
34. Dig. 3.2.4.4, 47.15.1, 47.15.3.2, 47.15.5, 48.16.1.6; Cod. 2.7.1. Gratian and later
canonists adopted this usage: C. 2 q. 3 d.p.c. 8 §6. See also James A. Brundage, ‘‘The
Ambidextrous Advocate: A Study in the History of Legal Ethics,’’ in‘‘Ins Wasser
geworfen und Ozeane durchquert’’: Festschrift für Knut Wolfgang Nörr, ed. Mario
Ascheri et al. (Cologne: 2003), 39–56.
35. Jonathan Rose, ‘‘The Ambidextrous Lawyer: Conflict of Interest and the
Authenticated
Medieval Legal Profession,’’ University of Chicago Law School Roundtable 7 (2000):

137–203; Dig. 4.8.31, 48.10.1 pr.-2, 6.
36. X 1.37.3, together with the Glossa ordinaria of Bernard of Parma ad v. con-
tra ecclesiam. References to the Glossa ordinaria on these texts are to the edition in
4 vols. (Venice: 1605).
37. Cod. 2.8(9).1 and Accursius, Glossa ordinaria to idem v. praestare; Gérard
Fransen, ‘‘Les ‘questiones’ des canonistes (III),’’ Traditio 19 (1963): 516–31, at 527,
no. 53.
38. C. 3 q. 7 c. 2 §15. Cf. Cod. 2.8(9)2. See also Johannes Teutonicus, Glos. ord.
to C. 3 q. 7 c. 2 §15 v. causam; Summa ‘‘Elegantius in iure diuino’’ seu Coloniensis
6.67, ed. Gérard Fransen and Stephan Kuttner, Monumenta iuris canonici, Corpus
glossatorum, vol. 1 in 4 parts (Vatican City: 1969–90), 2: 133; and Accursius, Glos.
ord. to Cod. 2.8(9).1 v. praestare.
39. Hostiensis, Summa aurea lib. 1, tit. De postulando §8 (Lyon, 1537; rpt.
Aalen, 1962), fol. 62vb.
40. Gloss to D. 96 c. 11 v. potestatem in Cambridge, Gonville and Caius Col-
lege, MS 282/676, fol. 57vb: ‘‘Si ergo clericus in duobus episcopatibus redditum ha-
beat, pro quo et contra quem stabitur? Respondeo, faciat secundum id 14. q. 5
Denique [C. 14 q. 5 c. 10] uel secundum alios pro reo stare debet. Male quilibet facit
qui hoc modo duobus se obligauit‘‘; Bernard of Parma, Glos. ord. to X 1.37.3 v. con-
tra ecclesiam.
41. According to Bernard of Montemirato (also known as Abbas antiquus),
Lectura to X 1.37.3 v. clericus (Strasbourg, 1511), fol. 70rb. Durand, Speculum 1.4 De
aduocato §1.21 (1: 262). Innocent IV, Apparatus to X 1.37.3 v. praesumit (Frankfurt a/
M, 1570; rpt. Frankfurt a/M, 1968), fol. 165rb; likewise Baldus Additio to William
Durand, Speculum iudiciale 1.4 De advocato (1: 282). Hostiensis, Summa aurea, lib.
1 tit. De postulando §8 (fol. 62vb); Durand, Speculum 1.4 De aduocato §1.18 (1: 262);
Guido de Baysio, Rosarium decretorum to D. 96 c. 11 (Venice: 1481), fol. 113ra–b.
Durand, quote from Speculum 1.4 De aduocato §1.21 (1: 262).
42. Hostiensis, Summa aurea 1, tit. De postulando §8, fols. 62vb–63ra; Durand,
Speculum 1.4 De aduocato §1.18 (1: 262); Guido de Baysio, Rosarium to D. 96 c. 11,
fol. 113ra–b.
43. Durand, Speculum 1.4 De aduocato §3.12–13 (1: 266); Johannes Andreae,
Additio to Durand, Speculum 1.4 De aduocato §3.1 v. priusquam (1: 266).
44. Pierre de Belleperche, Auree ac singularissime et quas nulla vidit etas Repet-
itiones XLVIII in Justinianum Codicem commentarium to Cod. 3.7.1 (Paris, 1515), fol.
14r–v.
45. E.g., Robert of Flamborough, Liber poenitentialis §207, ed. J. J. Francis
Firth (Toronto: 1971), 184–85; William Doune, Memoriale presbiterorum, in Michael
Haren, ‘‘Interrogatories for Officials, Lawyers and Secular Estates of the Memoriale
presbiterorum: Edition and Translation,’’ in Handling Sin: Confession in the Middle
Ages, ed. Peter Biller and A. J. Minnis (York, 1998), 123–63.
46. Jacques de Vitry, The Exempla or Illustrative Stories from the Sermones
Vulgares, ed. Thomas Frederick Crane (London, 1980), 14, 15, 20, 148, 155–56; and
Die Exempla aus den Sermones feriales et communes, ed. Joseph Greven, nos. 9, 83
Authenticated
(Heidelberg, 1914), 12, 50; Caesarius of Heisterbach, Dialogus miraculorum 11.46, ed.
Joseph Strange, 2 vols. (Cologne, 1851; rpt. Ridgewood, N.J., 1966), 2: 304.
47. Durand, Speculum 1.4 De aduocato §3.11 (1:266). He did, however, note an
exception, ‘‘nisi in casu scilicet fauore pupillorum. Nam si aduocatus Titii contra
Maeuium, Maeuio mortuo detur tutor filiis eius in eadem causa, poterit pupillus
assistere contra Titium, ut iii. q. viii. c. Infames § Tria, uer. Si contra patrem [recte:
C. 3 q. 7 c. 2 §16; cf. Dig. 3.1.10]; ff. de postul. l. final. [Dig. 3.1.11].’’
48. E.g., James A. Brundage, ‘‘The Bar of the Ely Consistory Court in the
Fourteenth Century: Advocates, Proctors, and Others,’’ Journal of Ecclesiastical His-
tory 43 (1992): 541–60; Brian L. Woodcock, Medieval Ecclesiastical Courts in the Dio-
cese of Canterbury (London, 1952), 40–41; The Register of Walter de Stapeldon, Bishop
of Exeter (A.D. 1307–1326), ed. F. C. Hingeston-Randolph (London and Exeter,
1892), 116–17; Colin Morris, ‘‘A Consistory Court in the Middle Ages,’’ Journal of
Ecclesiastical History 14 (1963): 150–59, at 156–57; David Dasef, ‘‘The Lawyers of the
York Curia, 1400–1435’’ (B. Phil. thesis, University of York, 1976), 3.
49. Susan P. Shapiro, Tangled Loyalties: Conflict of Interest in Legal Practice
(Ann Arbor, Mich., 2002) provides numerous examples.
50. See, e.g., American Law Institute, Law Governing Lawyers, Restatement of
the Law Third, 2 vols. (St. Paul, Minn., 2000); or The Code of Conduct of the Bar of
England and Wales (London, 1997), which also includes in Annexe L the Code of
Conduct for Lawyers in the European Community.
Chapter 4. The Ties That Bind: Legal Status and Imperial Power
1. For a forceful statement of the importance of law and legality in overseas

expansion; see Christopher L. Tomlins, ‘‘Introduction: The Many Legalities of Col-
onization: A Manifesto of Destiny for Early American Legal History,’’ in The Many
Legalities of Early America, ed. Christopher L. Tomlins and Bruce H. Mann (Chapel
Hill, N.C., 2001), 1–20.
2. The term ‘‘empire’’ is used quite broadly here. It includes not only the
Roman and British empires but, as John Marshall pointed out, the American Em-
pire. On the term empire generally, see James Muldoon, Empire and Order: The
Concept of Empire, 800–1800 (New York, 1999), 1–20; David Armitage, The Ideologi-
cal Origins of the British Empire (New York, 2000); Armitage Theories of Empire,
1450–1800 (Aldershot, 1998); see also Albert J. Beveridge, The Life of John Marshall,
4 vols. (Boston, 1916–19), 3: 590.
3. For the range of definitions of the term empire, see Muldoon, Empire and
Order, 15–17.
4. The debate about the representation of American colonists in Parliament
was one example of the issue of the status of the colonists. If they were true English-
men, why were they not directly represented in Parliament? See John Phillip Reid,
The Concept of Representation in the Age of the American Revolution (Chicago, 1989),
esp. 128–33.
5. For a discussion of the Irish situation from the perspective of a modern
Authenticated
international lawyer, see Anthony Carty, Was Ireland Conquered? International Law
and the Irish Question (London, 1996).
6. Giraldus Cambrensis, Expugnatio Hibernica: The Conquest of Ireland, ed.
and trans. A. B. Scott and F. X. Martin (Dublin, 1978), 53. Some authors prefer the
term Cambro-Norman, because the adventurers came from the Norman families
that had moved to the frontier with Wales, Cambria; see, for example, Katherine
Simms, ‘‘The Norman Invasion and the Gaelic Recovery,’’ in The Oxford History of
Ireland, ed. R. F. Foster (Oxford: 1989, 1992), 44–87, at 46.
7. The details of the arrangement between Dermot and Henry II are not clear.
The most recent work on the relationship argues that Dermot became ‘‘Henry’s
vassal.’’ See Seán Duffy, Ireland in the Middle Ages (New York, 1997), 60.
8. Simms, ‘‘The Norman Invasion and the Gaelic Recovery,’’ 47; Giraldus
Cambrensis, Expugnatio, 55.
9. The use of the term ‘‘feudal’’ has been a matter of great debate among me-
dievalists ever since Elizabeth A. R. Brown’s ‘‘The Tyranny of a Construct: Feudal-
ism and Historians of Medieval Europe,’’ AHR 79 (1974): 1063–88; see also Susan
Reynolds, Fiefs and Vassals (Oxford, 1994), 1–16.
10. On Irish succession practice, see Donncha Ó Corráin, Ireland Before the
Normans, Gill History of Ireland 2 (Dublin, 1972), 37–42.
11. Gerald of Wales, Expugnatio, 67.
12. ‘‘The kind of authority he tried to establish for himself and his successor
as duke of Normandy, count of Anjou, and duke of Aquitaine (and which he de-
fended against the king of France) he sought to deny to men of equivalent rank in
England.’’ W. L. Warren, Henry II (Berkeley, Calif., 1973), 627. For John’s problems
as a vassal of the king of France, see Ralph V. Turner, King John (London, 1994),
59–86.
13. On Canterbury and the Irish church, see J. A. Watt, The Church and the
Two Nations in Medieval Ireland (Cambridge, 1970), 6–10. On the relation of the
papacy to William of Normandy, see David C. Douglas, William the Conqueror: The
Norman Impact upon England (Berkeley, Calif., 1964), 317–45. Cary Nederman sug-
gests that in fact it may have been the archbishop of Canterbury who requested
Laudabiliter from the pope in order ‘‘to encourage Henry to pursue an agenda that
most of all favored the rights of the archbishop.’’ Cary Nederman, John of Salisbury
(Tempe, Ariz., 2005), 19.
14. John of Salisbury, Historia Pontificalis, ed. and trans. Marjorie Chibnal
(Oxford, 1986), 70–72.
15. On the literature concerning Laudabiliter, see Watt, The Church and the
Two Nations, 36–40.
16. The bull Laudabiliter, in Irish Historical Documents 1172–1922, ed. Edmund
Curtis and R. B. McDowell (London, 1943; rpt. New York, 1968) (hereafter IHD)
17–18, at 17.
17. Michael Dolley, Anglo-Norman Ireland, c. 1100–1318, Gill History of Ireland
3 (Dublin, 1972), 65; Simms, ‘‘The Norman Invasion and the Gaelic Recovery,’’ 48.
18. On the issue of whether the term empire can be employed for the Angevin
possessions see John le Patoural, ‘‘The Plantagenet Dominions,’’ in le Patoural, Feu-
Authenticated
dal Empires: Norman and Plantagenet (London, 1984), 8: 289–308; see also Turner,
King John, 60–64.
19. ‘‘Constitutions of the Synod of Cashel,’’ IHD, 18–19.
20. ‘‘Three Letters of Pope Alexander III,’’ IHD, 19–22.
21. Duffy, Ireland in the Middle Ages, 91–95.
22. ‘‘The Treaty of Windsor, 1175,’’ IHD, 23. ‘‘High king’’ exaggerates the role
and status of O’Connor; on Irish kingship, see Duffy, Ireland in the Middle Ages,
16–17, 31–37.
23. Laudabiliter, IHD, 20; ‘‘Proposed Extension of English Law to the Native
Irish,’’ IHD, 31–32.
24. Sir John Davies (c. 1570–1626), attorney general for Ireland, proposed that
English property law be imposed on the Irish in place of the Breton law practice of
placing control of all land in the hands of the tribal chiefs. In this way, both the
economic and the political power of the chiefs would be destroyed and the tribes-
men turned into peasant farmers. See James Muldoon, Identity on the Medieval Irish
Frontier: Degenerate Englishmen, Wild Irishmen, Middle Nations (Gainesville Fl.,
2003), 90–91.
25. See, above all, ‘‘the Statutes of Kilkenny (1366)’’ IHD, 52–59; Muldoon,
Identity, 41–42, 85–87.
26. ‘‘Remonstrance of the Irish Princes to Pope John XXII (1317),’’ IHD, 38–
46, at 42.
27. On the FitzGeralds, see Margaret MacCurtain, Tudor and Stuart Ireland,
Gill History of Ireland 7 (Dublin, 1972), 6–21.
28. ‘‘An Act that the King and His Successors be Kings of Ireland,’’ IHD,
77–78.
29. David Quinn, The Elizabethans and the Irish (Ithaca, N.Y., 1966), 106–22;
Nicholas Canny, Kingdom and Colony: Ireland in the Atlantic World (Baltimore,
1988), 1560–1800.
30. There is an extensive literature on the American interest in Ireland and,
after the American Revolution, Irish interest in the American Revolution, see M. R.
O’Connell, Irish Politics and Social Conflict in the Age of the American Revolution
(Philadelphia, 1965); D. N. Doyle, Ireland, Irishmen and Revolutionary America,
1760–1820 (Dublin, 1981).
31. Herbert L. Osgood, The American Colonies in the Seventeenth Century, 3
vols. (New York, 1904; rpt. Gloucester, Mass., 1957), 3–4.
32. ‘‘The king . . . may issue out his writ ne exeat regnum, and prohibit any
of his subjects from going into foreign parts without licence.’’ William Blackstone,
Commentaries on the Laws of England, 4 vols. (London, 1765–69; rpt. Chicago, 1979),
1: 133.
33. ‘‘The Charter of Massachusetts Bay—1629,’’ in The Federal and State Con-
stitutions, Colonial Charters, and Other Organic Laws, ed. Francis Newton Thorpe, 7
vols. (Washington, D.C.: 1909), 3: 1846–60, at 1846, 1850. The reference to other
Christian princes is found in Alexander VI’s Inter caetera (1493): see Inter Caetera
in European Treaties Bearing on the History of the United States and Its Dependencies
to 1648, ed. Frances Gardiner Davenport (Washington, D.C., 1917; rpt. Gloucester,
Mass., 1967), 56–63, at 62.
Authenticated
34. Chester E. Eisinger, ‘‘The Puritans’ Justification for Taking the Land,’’
Essex Institute Historical Collections 84 (1948): 131–43, at 135; Patricia Seed, Ceremon-
ies of Possession in Europe’s Conquest of the New World, 1492–1640 (New York, 1995),
16–40; J. H. Elliott, Empires of the Atlantic World: Britain and Spain in America,
1492–1830 (New Haven, Conn., 2006), 30–31.
35. Elliott, Empires, 65–66; one English supporter of the colonization of Mas-
sachusetts pointed out that the destruction of the indigenous population as a result
of disease immediately before the establishment of the colony was part of God’s
plan to prepare the land for English settlement. It also meant that there was no
existing population to Christianize and civilize: see the Patent of the Council for
New England in Select Charters and Other Documents Illustrative of American His-
tory, 1606–1775, ed. William MacDonald (New York, 1899), 23–33, at 25.
36. Thorpe, Federal and State Constitutions, 3: 1851.
37. Ibid., 3: 1857. For the long history of the development of the papal theory
of universal jurisdiction, see Luis Weckmann, Las Bulas alejandrias de 1493 y la
Teorı́a polı́tica del papado medieval (Mexico City, 1949); James Muldoon, Popes,
Lawyers, and Infidels: The Church and the Non-Christian World, 1250–1550 (Philadel-
phia, 1979).
38. Much of the material concerning the development of English imperial
governance in medieval Ireland that the American revolutionaries employed had
appeared almost a century earlier in polemics about the status of the colonists in
Ireland; see William Molyneaux, The Case of Ireland Stated (Dublin, 1898; rpt. 1977).
39. Poynings Law ‘‘reduced the role of the Irish parliament to one of servil-
ity.’’ MacCurtain, Tudor and Stuart Ireland, 7.
40. According to one author, the Navigation Acts were ‘‘an integrating force
tending to bind the Empire together.’’ Oliver M. Dickerson, The Navigation Acts
and the American Revolution (Philadelphia, 1951), 3.
41. James Otis, ‘‘The Rights of the British Colonies Asserted and Proved,’’
Pamphlets of the American Revolution, 1750–1776, 4 vols., ed. Bernard Bailyn (Cam-
bridge, Mass.: 1965), 1: 419–70, at 466.
42. James Muldoon, ‘‘Discovery, Grant, Charter, Conquest, or Purchase: John
Adams on the Legal Basis for English Possession of North America,’’ in Tomlins
and Mann, Legalities of Early America, 25–46, at 31.
43. The issue of the nature of citizenship has arisen ‘‘in the context of the
globalization of the economy, politics, and society,’’ according to Ralph W. Mathi-
sen. See his ‘‘Peregrini, Barbari, and Cives Romani: Concepts of Citizenship and the
Legal Identity of Barbarians in the Later Roman Empire,’’ AHR 111 (2006): 1011–40,
at 1011.
Chapter 5. Licit and Illicit in the Yarnall Collection at the University of

Pennsylvania: Pages from the Decretals of Pope Gregory IX
1. Two works of recent vintage provide details about these developments, with
further bibliography in each: Robert Somerville and Bruce C. Brasington, Prefaces to
Authenticated
Canon Law Books in Latin Christianity: Selected Translations, 500–1245 (New Haven,
Conn., 1998), and James A. Brundage, Medieval Canon Law (London, 1995). For the
compilations of Innocent and Honorius—known technically as Compilatio tertia
and Compilatio quinta—see specifically Somerville and Brasington, 213 ff., and
Brundage, 53 ff., 194 ff. The former also contains translations of the two papal bulls,
233–35. For the quotation here, see Somerville and Brasington, 1, and in general the
discussion throughout chap. 1. The author is grateful to Dr. Michael T. Ryan, for-
mer director of the Annenberg Rare Book and Manuscript Library at the University
of Pennsylvania, and to his staff, for hospitality and assistance in the preparation of
this study.
2. Somerville and Brasington, Prefaces, 8–9.
3. Ibid., 214, especially n. 4, for this comment by Stephen of Tournai.
4. Ibid, 224–25, 234–35.
5. Ibid., 224–25, citing Leonard E. Boyle, O.P., ‘‘The Compilatio Quinta and
the Registers of Honorius III,’’ Bulletin of Medieval Canon Law 8 (1978): 9–19 (rpt.
in Boyle, Pastoral Care, Clerical Education and Canon Law, Variorum Reprints CS135
[London, 1981]).
6. Ibid., 225, and notes, for details of this story.
7. Ibid., 225 ff. (translation 235–36); Brundage, Canon Law, 54 ff., 196 ff. The
Decretals are known as the Liber extra, short for Liber extravagantium decretalium,
that is, ‘‘decretals wandering around outside,’’ of Gratian’s Decretum.
8. Somerville and Brasington, Prefaces, 236. For the Decretals, see Martin Ber-
tram, ‘‘Die Dekretalen Gregors IX: Kompilation oder Kodifikation?,’’ in Magister
Raimundus: Atti del Convegno per il IV Centenario della canonizzazione di San Rai-
mundo de Penyafort (1601–2001), ed. Carlo Longo O.P., Dissertationes historicae 27
(Rome, 2002), 61–86; and Thomas Wetzstein, ‘‘Resecatis superfluis? Raymund von
Peñafort und der Liber Extra,’’ Zeitschrift der Savigny-Stiftung für Rechtsgeschichte,
Kan. Abt. 92 (2006): 355 ff. (not seen).
9. It is a great pleasure to dedicate this investigation to an old and dear friend
who for a short time was my colleague at the University of Pennsylvania.
10. See Joyce L. White, ‘‘Biographical and Historical Background of the Yar-
nall Library of Theology,’’ Library Chronicle (University of Pennsylvania) 43 (1979):
134–58.
11. Ibid., 136ff., at 141.
12. Ibid., 146, 152.
13. Ibid., 152–55.
14. Ibid., 154.
15. I am grateful to Prof. Siegfried Wenzel for calling this material to my at-
tention in the Winter of 1976.
16. Lexikon für Theologie und Kirche (1998), 7: 858–59.
17. Gesamtkatalog der Wiegendrucke 4284; Hain-Copinger 3172. See Edward A.
Gosselin, ‘‘A Listing of the Printed Editions of Nicholaus de Lyra,’’ Traditio 26
(1970): 407 (no. 14). The class mark of these tomes in the Annenberg Rare Book
and Manuscript Library is Yarnall B15.1 L995. The author is very grateful to Lynne
Farrington, curator of Printed Books in the Annenberg Rare Book and Manuscript
Authenticated
Library at Penn, for verifying the bibliographical particulars of the Yarnall printing
of Nicholas of Lyra.
18. The Decretals of Gregory IX [Liber extra] are normally cited with an ‘‘X.’’
followed by book, title, and canon number, e.g., X 2.24.25–26, designates book 2,
title 24—‘‘On Oaths’’—cc. 25–26—see n. 7 above. Questions about addressees etc.
of the specific decretals indicated cannot be taken up here, but the identity of the
popes who promulgated the texts will be noted.
19. Friedberg did not know the source; see Hartmut Hoffmann and Rudolf
Pokorny, Das Dekret des Bischofs Burchard von Worms, MGH, Hilsmittel 12 (Mu-
nich, 1991), 267.
20. Hoffmann and Pokorny, Das Dekret, 269–70.
21. Aemilius Friedberg, Quinque compilationes antiquae, Leipzig: Ex officina
Bernhardi Tauchnitz, 1882, 61 (cf. Friedberg ed., X 5.18.4).
22. Adolf Berger, Encyclopedic Dictionary of Roman Law, Transactions of the
American Philosophical Society n.s. 43 pt. 2 (Philadelphia, 1953), 645.
23. Ibid., 646–47.
24. The author is grateful to Dr. Consuelo Dutschke, curator of medieval
manuscripts at Columbia University, for her opinion about these fragments. The
pieces of the Decretals found in the front of tome 3 and in the front and back of
tome 5 probably were done by one scribe, and those in tome 4, front and back, by
another. The hands of the glosses remain to be analyzed.
25. Brundage, Medieval Canon Law, 57, 210. Not enough of the gloss to the
fragment of the Justinianic Codex found on the back of tome 3 has been read to
determine whether or not it is the standard gloss put together in the early thirteenth
century by Accursius (cf. ibid., 66).
26. It might be possible to unearth information about Segatt Books and John
M. Stark in Hull, although by the time of completing this chapter nothing had been
found about either.
27. It has been very difficult to find information about Hastings, who must
have been a prominent figure in his day. For William Miller (1782–1849), see the
Encyclopedic Dictionary of Religion (1978), vols. F–H. 2371–72. For Hastings see the
five lines in Oscar Fay Adams, Dictionary of American Authors (Boston, 1904), 175.
The author is grateful to Seth Kasten of the Burke Library of Union Theological
Seminary for his help in attempting to track down information about Hastings.
28. White, ‘‘Yarnall Library,’’ 152. No trace of the set is found in Jos. Cullem
Ayer, Yarnall Library of Theology of St. Clement’s Church, Philadelphia, 1933. Perhaps
more information could be gained from records at St. Clement’s or from the St.
Clement’s Quarterly (see ibid., 152 ff.) No survey has been done to ascertain how
many copies of this set are found in North America, but in New York City there is
at least one complete copy, at the St. Mark’s Library of General Theological Semi-
nary; and the Burke Library of Union Theological Seminary has vol. 1. The author
is grateful to Andrew G. Kadel, director of St. Mark’s Library, and to Seth Kasten
of Burke Library for this information.
29. See Bertram, ‘‘Die Dekretalen,’’ 73–74. Several medieval manuscripts of
the collection can be found in the U.S. A systematic search could reveal others; the
author is grateful to Dr. Thomas Izbicki, Johns Hopkins University, and Prof. Ken-
Authenticated
neth Pennington, Catholic University, for indicating the following: Baltimore, Wal-
ters Art Gallery, MSS W.156, W.159; Berkeley, University of California Law School,
Robbins Collection, MSS 5, 6, 100, 105; San Marino, California, Henry E. Hunting-
ton Library, HM MS 19999; Syracuse, New York, Syracuse University, MS 1; Wash-
ington, D.C., Library of Congress, Med.-Ren. MSS 99, 100. In addition, Anders
Winroth has kindly pointed out that Marston MS 194 in the Beinecke Library at
Yale is a fourteenth-century copy of the Decretals from the Low Countries.
30. Friedberg, Decretalium collectiones, xl.
31. Bertram, ‘‘Dekretalen,’’ 80. Friedberg’s text of the Decretals, in Decretalium
collectiones, reproduces the official, post-Tridentine ‘‘Editio Romana’’ published in
1582 (see ibid., cols. xlii ff.; for discussion of the Roman Edition see Augustine
Thompson, O.P., James Gordley, and Katherine Christensen, Gratian: The Treatise
on Laws with the Ordinary Gloss, Studies in Medieval and Early Modern Canon Law
2 (Washington, D.C., 1993), xviii–xx. Friedberg’s presentation is complicated, al-
though in a useful way, by his attempt to restore the parts of decretals that were cut
out by Raymond of Peñafort (the texts in italics in his printing). In the notes, Fried-
berg provided some information about manuscripts.
32. Friedberg, Quinque compilationes, 148. Innocent’s decretal is calendared in
Augustin Potthast, Regesta pontificum Romanorum (Berlin, 1874), no. 4312; and the
text is available in Innocent’s Register, as printed in Migne, PL 261.469. For Comp.
IV see Kenneth Pennington, ‘‘The Making of a Decretal Collection: The Genesis of
Compilatio tertia,’’ in Proceedings of the Fifth International Congress of Medieval
Canon Law, ed. Stephan Kuttner and Kenneth Pennington, Monumenta iuris can-
onici Subsidia 6 (Vatican City, 1980), 72–79, rpt. in Pennington, Popes, Canonists,
and Texts, 1150–1550, Variorum Collected Studies Series CS412 (Aldershot, 1993).
33. Wolfgang P. Müller, Die Abtreibung, Forschungen zur kirchlichen Recht-
sgeschichte und zum Kirchenrecht 24 (Cologne, 2000), 42.
34. The text as found in Innocent’s Register is printed in Migne (see n. 32).
Muller, Die Abtreibung, gives a German translation of X 5.12.20.
35. Friedberg, col. 802.
36. The words in italics in Friedberg’s edition, where an attempt was made to
reconstruct full texts of decretals as they were promulgated by the papal chancery,
were missing in the Decretals, and thus are not included here.
37. Friedberg provides the following information at the end of this excerpt:
‘‘Issued at the Lateran, October 4, in the 14th year of our pontificate, 1211’’ (Dat.
Lat. IV. Non Oct. Pont. nostr. Ao XIV. 1211).
38. For Raymond of Peñafort’s editional work on the Decretals, see above, n.
8.
Chapter 6. Judicial Violence and Torture in the Carolingian Empire
1. François Louis Ganshof, ‘‘Charlemagne and the Administration of Justice,’’

in Ganshof, Frankish Institutions Under Charlemagne, trans. Bryce Lyon and Mary
Lyon (New York, 1968), 71–97.
Authenticated
2. On Carolingian justice, see Wendy Davies and Paul Fouracre, The Settle-
ment of Disputes in Early Medieval Europe (Cambridge, 1986); the essays in Warren
Brown and Piotr Gorecki, eds., Conflict in Medieval Europe (Aldershot, 2003); and
La giustizia nell’alto medioevo 1 (sec V–VIII), Settimane di studio 42 (Spoleto, 1995);
2 (secoli IX–XI), Settimane di studio 43 (Spoleto, 1997).
3. See the important Conclusion in Davies and Fouracre, Settlement of Dis-
putes, esp. 214–28.
4. See in particular Guy Halsall, ed., Violence and Society in the Early Medieval
West (Woodbridge, 1998); François Bougard, ed., La Vengeance, 600–1200 (Rome,
2006); and the essays by Stephen D. White, Feuding and Peace-Making in Eleventh-
Century France (Aldershot, 2005).
5. Barbara Rosenwein, ‘‘Writing Without Fear About Early Medieval Emo-
tions,’’ EME 10 (2001): 229–34.
6. Edward Peters, Torture (Philadelphia, 1973, rpt. 1996).
7. Robert Bartlett, Trial by Fire and Water: The Medieval Judicial Ordeal (Ox-
ford, 1986), esp. 139–46.
8. Lex Salica 68 §§2, 3. Karl August Eckhart, ed., MGH Leges nationum Ger-
manicarum 4:2 (Hannover, 1969), 108. The Lex Baiwarioum 9: 20 also assumes that
slaves are tortured in interrogations: MGH Leges nationum Germanicarum 5:2, Lex
Baiwariorum (Hannover, 1926), 382–83.
9. Capitulare Haristallense, 779, MGH Capit. I: 46–51; Capitulare de Latroni-
bus, 180–81.
10. MGH Capit. I: 20, c. 23, p. 51.
11. On Roman criminal procedure and punishment, see the still essential
Theodor Mommsen, Römisches Strafrecht (Leipzig, 1899), esp. 405–18 on torture
and 981–85 on corporal punishment; O. F. Robinson, The Criminal Law of Ancient
Rome (London, 1995); Jens-Uwe Krause, Gefängnisse im Römischen Reich (Stuttgart,
1996); and especially K. M. Coleman, ‘‘Fatal Charades: Roman Executions Staged as
Mythological Enactments,’’ Journal of Roman Studies 80 (1990): 44–73, which dis-
cusses much more than simply the executions announced in the title. For late antiq-
uity, see also Michael Kulikowski, ‘‘Fronto, the Bishops, and the Crowd: Episcopal
Justice and Communal Violence in Fifth-Century Tarraconensis,’’ EME 11 (2002):
295–320.
12. Floyd Seyward Lear, ‘‘The Public Law of the Visigothic Code,’’ Speculum
26 (1951): 1–23.
13. Paul Fouracre, ‘‘Carolingian Justice: The Rhetoric of Improvement and
Contexts of Abuse,’’ La giustizia nell’alto medioevo 1: 771–803.
14. Capitulare Haristallense, 779, MGH Capit. I: 46–51; Capitulare de Latroni-
bus, 180–81.
15. Fouracre, ‘‘Carolingian Justice,’’ 797.
16. Ernst Dümmler, ed., MGH Poetae Latini aevi Carolini 2 (Berlin, 1884),
120–24, at 122, ll. 65–68. On the Carmen, see Warren Brown, Unjust Seizure: Conflict,
Interest, and Authority in an Early Medieval Society (Ithaca, N.Y., 2001), 1–5, 206–8.
17. Versus Theodulfi episcopi contra iudices, ed. Ernst Dümmler, MGH Poetae
Latini aevi Carolini 1 (Berlin, 1881), 493–517. The poem was translated by Nilolai A.
Alexandrenko in his dissertation, ‘‘The Poetry of Theodulf of Orleans: A Transla-
Authenticated
tion and Critical Study’’ (Ph.D. dissertation, Tulane University, 1970), 157–202. I
have used Alexandrenko’s translation whenever possible.
18. Dümmler, MGH Poetae Latini aevi Carolini 1: 517–20; trans. Alexan-
drenko, 203–7.
19. See Gerlinde Bretzigheimer, ‘‘Der Herkules-Mythos als Gefäßdekor: Eine
’descriptio’ des Theodulf von Orléans,’’ Mittellateinisches Jahrbuch: Internationale
Zeitschrift für Mediävistik / International Journal of Medieval Studies / Revue interna-
tionale des études médiévales / Rivista internazionale di studi medievali 39, 2 (2004):
183–205; Lawrence Nees, A Tainted Mantle: Hercules and the Classical Tradition at
the Carolingian Court (Philadelphia, 1991); Nees, ‘‘Theodulf’s Mythical Silver Her-
cules Vase, Poetica Vanitas, and the Augustinian Critique of the Roman Heritage,’’
Dumbarton Oaks Papers 41 (1987): 443–51.
20. Gabriel Monod provides a summary of the judicial aspects of the poem
in ‘‘Les moeurs judiciaries au VIIIe siècle d’après la Paraenesis ad judices de Théo-
dulf,’’ Revue historique 35 (1887): 1–20.
21. MGH Poetae Latini aevi Carolini 1: ll. 847–50, 515.
22. Ibid., 517, 518.
23. Ibid.
24. Ibid, 519.
25. The classic study is Karl Bosl, ‘‘Potens et pauper: Begriffsgeschichtliche
Studien zur gesellschaftlichen Differenzierung im frühen Mittelalter und zum ‘Pau-
perismus’ des Hochmittelalters,’’ in Bosl, Frühformen der Gesellschaft im mittelalter-
lichen Europa; ausgewählte Beiträge zu einer Strukturanalyse der mittelalterlichen Welt
(Munich, 1964), 106–34.
26. MGH Poetae Latini aevi Carolini 1: ll. 915–16, p. 516.
27. Ibid.
28. Ibid.
29. Janet L. Nelson, ‘‘Dispute Settlement in Carolingian West Francia,’’ in Da-
vies and Fouracre, Settlement of Disputes, 52.
30. Ibid., 52, n. 27.
31. MGH Formulae, esp. formulae 1, 2, 3, 4, 5, 6, pp. 211–14.
32. Nelson, ‘‘Dispute Settlement,’’ 51–52.
33. MGH Formulae, Formulae Imperiales, 5, p. 291. ‘‘Preceptum de his, quibus
proprium aut libertas iniuste et per potentes ablata est;’’ and 9, p. 293, ‘‘Preceptum
super his, qui iniuste et contra legem ad servicium inclinati et fisco regio addicti et
postea liberati donati sunt.’’
34. MGH Formulae, 291.
35. Carlo Cipolla, ed., Monumenta Novaliciensia vetustiora, 2 vols. (Rome,
1898), 1: 91.
36. André Salmon, ed., Livre des serfs de Marmoutier (Tours, 1864), no. XI,
12–13; no. CI, 94–95.
37. Ibid., no. CVI, 100.
38. Ibid., no. CXXVII, 117.
39. Ibid., Appendix, no. VI, 125.

Authenticated
Chapter 7. The Ambiguity of Treason in Anglo-Norman-French Law,

c. 1150–c. 1250
1. P&M, 2: 503 and n. 4, 504–8; Glanvill, I.2 (3), XIV.1 (171–73), XIV.7 (177);
Bracton On the Laws and Customs of England, trans. and rev. Samuel E. Thorne, 4
vols. (Cambridge, Mass., 1968), 2: 334–37.
2. It ‘‘ought to be judged Treason which extends to our lord the king, and his
royal majesty,’’ the statute declared, ‘‘when a man attempts or plots the death of
our lord the king, or of our lady his queen or of their eldest son and heir; or if a
man violates the king’s wife or the king’s eldest unmarried daughter, or the wife of
the king’s eldest son and heir; or if a man levies war against our lord the king in his
realm, or adheres to the king’s enemies, giving to them aid and comfort in his realm
or elsewhere.‘‘ 25 Edw. III. Stat. 5, c. 2, Statutes of the Realm: Printed by Command
of his Majesty King George the Third, vol. 1 (1810; rpt. London, 1963), 319–20, as
trans. in A. R. Myers, English Historical Documents, 1327–1485 (London, 1969), 403.
3. Ibid., 2: 500.
4. Ibid., 2: 505.
5. J. E. A. Jolliffe, The Constitutional History of Medieval England from the En-
glish Settlement to 1485, 4th ed. (London, 1961), 155; H. G. Richardson and G. O.
Sayles, The Governance of Medieval England from the Conquest to Magna Carta (Ed-
inburgh, 1963), 148, 149; J. G. Bellamy, The Law of Treason in England During the
Later Middle Ages (Cambridge, 1970), 23; John Gillingham, ‘‘1066 and the Introduc-
tion of Chivalry into England,’’ in Law and Government in Medieval England and
Normandy: Essays in Honour of Sir James Holt, ed. George Garnett and John Hud-
son (Cambridge, 1994), 31–56, at 32, 44; Matthew Strickland, War and Chivalry: The
Conduct and Perception of War in England and Normandy, 1066–1217 (Cambridge,
1996), 230–57.
6. P&M, 2: 505.
7. Martin Aurell, L’empire des Plantagenêt (Paris, 2003), 186, 196; Robert Bart-
lett, England Under the Norman and Angevin Kings, 1075–1225 (Oxford, 2000),
60–61; Natalie Fryde, Why Magna Carta? Angevin England Revisited, Neue Aspekte
der europäischen Mittelalterforschung 1 (Münster, 2001), chaps. 5–8; Clare Valente,
The Theory and Practice of Revolt in Medieval England (Aldershot, 2003), 33 and n.
107.
8. English Lawsuits from William I to Richard I, ed. R. C. Van Caenegem, Sel-
den Society 106 (London, 1990), no. 7 (Waltheof) (16–22), vol. 107 (London, 1991),
no. 407 (Henry of Essex) (384–87); History of William Marshall, ed. A. J. Holden,
trans. S. Gregory, 2 vols., Anglo-Norman Text Society Occasional Publication Series
5 (London, 2004), 2: ll. 12859–13278, 14179–564.
9. Edward Peters, The Shadow King: Rex Inutilis in Medieval Law and Litera-
ture, 751–1327 (New Haven, Conn., 1970), 24, 104–15, 170–209; Stephen D. White,
‘‘The Problem of Treason: The Trial of Daire le Roux in Le roman de Thèbes,’’ in
Law, Laity and Solidarities in Medieval Europe, ed. Pauline Stafford, Janet L. Nelson,
and Jane Martindale (Manchester, 2001), 95–115. Anticipating objections to the use

Authenticated
of literary texts as historical evidence, Marc Bloch wrote: ‘‘ ‘Littérature,’ s’écrieront

peut-être les historiens qui n’ont d’oreilles que pour la sèche voix des chartes: Qu’à
cela ne tienne!’’ Bloch, La société féodale (Paris, 1994), 326.
10. See, e.g., Marianne Ailes, ‘‘Traitors and Rebels: The Geste de Maience,’’ in
Reading Around the Epic: A Festschrift in Honour of Professor Wolfgang Van Emden,
ed. Marianne Ailes, Philip E. Bennett, and Karen Pratt (London, 1998), 41–68; Wolf-
gang G. Van Emden, ‘‘Kingship in the Old French Epic of Revolt,’’ in Kings and
Kingship in Medieval Europe, ed. Ann. J. Duggan, King’s College Medieval Studies
10 (London, 1993), 305–50; and many articles in Félonie, trahison, reniements au
moyen âge: Actes du troisième colloque international de Montpellier Université Paul
Valéry (24–26 novembre 1994), Les cahiers du C.R.I.S.M.A. (Centre de Recherche
Interdisciplinaire sur la Société et l’Imaginaire au Moyen Âge) (Montpellier, 1997).
11. On ‘‘the fundamental unity of medieval literature in French,’’ see Keith
Busby, ‘‘ ‘Neither Flesh nor Fish, nor Good Red Herring’: The Case of Anglo-Nor-
man Literature,’’ in Studies in Honor of Hans-Erich Keller: Medieval French and Oc-
citan Literature and Romance Linguistics, ed. Rupert T. Pickens (Kalamazoo, Mich.,
1993), 401. On the interconnectedness of French and English law after 1066, see Paul
Hyams, ‘‘The Common Law and the French Connection,’’ Anglo-Norman Studies 4
(1981): 77–92.
12. On trials in medieval French literature and citations to earlier literature,
see Stephen D. White, ‘‘Imaginary Justice: The End of the Ordeal and the Survival
of the Duel,’’ Medieval Perspectives 13 (1998): 32–55; White, ‘‘The Problem of
Treason.’’
13. On judicial procedure in literary treason trials, see Wolfgang Van Emden,
‘‘Trial by Ordeal and Combat: The Deliquescence of a Motif,’’ in Essays for Peter
Mayer, ed. Christopher Thacker (Reading, 1980), 173–93; Paul R. Hyams, ‘‘Henry II
and Ganelon,’’ Syracuse Scholar 4 (1983): 22–35.
14. Gaydon, ed. M. F. Guessard (rpt. Nendeln, Liechtenstein, 1966), ll. 589–
1782; Aye d’Avignon, ed. S. J. Borg (Geneva, 1967), laisses 7–23; Garin le Loherain,
ed. J. E. Vallerie (Ann Arbor, Mich., 1947), ll. 6213–6542.
15. On treason in medieval French lawbooks as well as literary texts, see F.
R. P. Akehurst, ‘‘Murder by Stealth: Traı̈son in Old French Literature,’’ in Pickens,
Studies in Honor of Hans-Erich Keller, 459–73.
16. Britton, ed. Francis Morgan Nichols, 2 vols. (Oxford, 1865), electronic ed.
by Siân Pilborough, Russell Kneath, and Michael Beddow (Anglo-Norman On-Line
Hub, 2002–3), http://www.anglo-norman.net/texts/britton-contents.html, vol. 1,
chap. 9 (40); Philippe de Beaumanoir, Coutumes de Beauvaisis, ed. A. Salmon, 3
vols. (Paris, 1970), chap. 30, no. 826 (1: 430); The Coutumes de Beauvaisis of Philippe
de Beaumanoir, trans. F. R. P. Akehurst, Middle Ages Series (Philadelphia, 1992),
chap. 30, no. 826 (303); The Mirror of Justices, ed. William Joseph Whitaker, Selden
Society 7 for 1893 (London, 1895), c. 7 (p. 21); Leges Henrici Primi, ed. and trans. L. J.
Downer, 55, 3 (172/173), LHP 43, 8 (152–53).
17. Huon de Bordeaux: chanson de geste du xiiie siècles, ed. and trans. William
W. Kibler and François Suard (Paris, 2003), ll. 1420, 1453–57, 1649, 1671–76; Chrétien
de Troyes, Le chevalier au lion, ed. and trans. David F. Hult (Paris, 1994), ll. 3674–75;
Thomas de Kent, Le roman d’Alexandre ou le roman de toute chevalerie, trans. Cath-
Authenticated
erine Gaulier-Bougassas and Laurence Harf-Lancner, ed. Brian Foster and Ian Short
(Paris, 2003), ll. 3141–3296; Lancelot du Lac, trans. François Mosès (Paris, 1991),
chap. 7 (100–113); Raoul de Cambrai: chanson de geste du xiie siècle, trans. William
Kibler from edition of Sarah Kay (Paris, 1996), ll. 2984–85, 3822–25; Le roman de
Thèbes, ed. and trans. Francine Mora-Lebrun (Paris, 1995).
18. See, e.g., Peter Haidu, The Subject of Violence: The Song of Roland and the
Birth of the State (Bloomington, Ind., 1993).
19. Alexandre, ll. 3141–65.
20. Ibid., ll. 3166–89.
21. For the trial, see Alexandre, ll. 3220–96.
22. Thèbes, ll. 8261–9392.
23. Ibid., ll. 9109–26.
24. Ibid., ll. 9135–10374. On the debate, see White, ‘‘Problem of Treason.’’
25. La chanson de Roland, ed. and trans. Ian Short (Paris, 1990), ll. 3734–3990
(Ganelon’s trial). On dating the text to the mid-twelfth century, see, e.g., Hans-
Erich Keller, ‘‘The Song of Roland and Its Audience,’’ Olifant 6 (1979): 259–74.
26. Roland, ll. 3751–56.
27. Ibid., ll. 596–641, 739–73, 841–2396.
28. Ibid., ll. 168–341.
29. Ibid., ll. 3757–78.
30. Ibid., ll. 3798–3806.
31. Ibid., ll. 3814–44.
Chapter 8. Illicit Religion: The Case of Friar Matthew Grabow, O.P.
1. On the Modern-Day Devout, see my forthcoming The Modern-Day Devout

in Late Medieval Society (Philadelphia, 2008); on their communal households, my
‘‘Managing the Common Life: The Brothers at Deventer and the Codex of the
Household (The Hague, MS KB 70 H 75),’’ in Schriftlichkeit und Lebenspraxis im
Mittelalter, ed. Hagen Keller, Christel Meier, and Thomas Scharff (Munich, 1999),
111–69.
2. Antonino of Florence, Summa moralis III.16.1 (Verona, 1740; rpt. 1959), III
843.
3. Hostiensis, Summa aurea (Venice, 1570), 193. Kaspar Elm understands this
text to provide authorization (an ‘‘Institut’’ in his German) for ‘‘semi-religious’’
lifestyles: ‘‘Die Brüderschaft vom gemeinsamen Leben: Eine geistliche Lebensform
zwischen Kloster und Welt, Mittelalter und Neuzeit,’’ Ons Geestelijk Erf 59 (1985):
470–96; and ‘‘Vita regularis sine regula: Bedeutung, Rechtsstellung und Selbstverständ-
nis des mittelalterlichen und frühneuzeitlichen Semireligiosentums,’’ in Häresie und
vorzeitige Reformation im Spätmittelalter, ed. Frantisek Šmahel (Munich, 1998), 239–
73. I have queried this in ‘‘Friar Johannes Nyder on Laypeople Living as Religious
in the World,’’ in Vita Religiosa im Mittelalter: Festschrift für Kaspar Elm zum 70.
Geburtstag, ed. Franz J. Felten and Nikolas Jaspert (Berlin, 1999), 583–615.
4. Frank-Michael Reichstein, Das Beginenwesen in Deutschland: Studien und
Authenticated
Katalog (Berlin, 2001), 40–52; Walter Simons, Cities of Ladies: Beguine Communities
in the Medieval Low Countries, 1200–1565 (Philadelphia, 2001), 253–313.
5. The basic story was set out a generation ago by Alexander Patschovsky,
‘‘Strassburger Beginenverfolgungen im 14. Jahrhundert,’’ Deutsches Archiv 30 (1974):
56–198; Robert Lerner, The Heresy of the Free Spirit in the Later Middle Ages
(Princeton, N.J., 1972); and Richard Kieckhefer, Repression of Heresy in Medieval
Germany (Philadelphia: 1979). I have reviewed it, with differing accents, in my Mod-
ern-Day Devout, chap. 1.
6. See Elizabeth Makowski, ‘‘A Pernicious Sort of Woman’’: Quasi-Religious
Women and Canon Lawyers in the Later Middle Ages (Washington, D.C., 2005); and
the review by Robert Lerner, AHR 111 (2006): 348.
7. On the battle in Basel, see Alexander Patschovsky, ‘‘Beginen, Begarden und
Terziaren im 14. und 15. Jahrhundert: Das Beispiel des Basler Beginenstreits (1400/
04–1411),’’ in Festschrift für Eduard Hlawitschka zum 65. Geburtstag, ed. Karl Rudolf
Schnith and Roland Pauler, Münchener Historische Studien, Abteilung Mittelalter-
liche Geschichte 5 (Kallmünz, 1993), 403–18; and Sabine von Heusinger, Johannes
Mulberg OP (d. 1414): Ein Leben im Spannungsfeld von Domini kanerobservanz und
Beginenstreit (Berlin, 2000), 39–89. Jean-Claude Schmitt, Mort d’une hérésie: L’Église
et les clercs face aux béguines et aux béghards du Rhin supérieur du XIVe au XVe siècles
(Paris, 1978), highlighted the social resentments.
8. I treat this in my ‘‘Devout Communities and Inquisitorial Orders: The
Legal Defense of the New Devout,’’ in Kirchenreform von unten: Gerhard Zerbolt von
Zutphen und die Brüder vom gemeinsamen Leben, ed. Nikolaus Staubach (Frankfurt,
2003), 44–101, and in revised form in Modern-Day Devout, chap. 3.
9. For the Dominican house in Groningen, see Folkert Jan Bakker, Bedelorden
en begijnen in de stad Groningen tot 1594 (Assen, 1988), 48–73 and passim. There are
no surviving in-house documents pertaining to Grabow.
10. There is no definitive study. The basic works remain Hermann Keussen,
‘‘Der Dominikaner Matthäus Grabow und die Brüder vom gemeinsamen Leben,’’
Mitteilungen aus dem Stadtarchiv von Köln 13 (1887): 29–47 (for texts); Stephen
Wachter, ‘‘Matthäus Grabow, ein Gegner der Brüder vom gemeinsamen Leben,’’
in Festschrift zum 50-jährigen Bestandsjubiläum des Missionshauses St. Gabriel Wien-
Mödling (Vienna-Mödling, 1939), 289–376 (for a detailed reading); Nikolaus Stau-
bach, ‘‘Zwischen Kloster und Welt? Die Stellung der Brüder vom gemeinsamen
Leben in der spätmittelalterlichen Gesellschaft, mit einem Anhang: Neue Quellen
zum Grabow-Konflikt,’’ in Kirchenreform von unten, 397–426.
11. Both complexes disappeared after the Reformation, but for an image of
them see Bakker, Bedelorden, 54, 56, 58–59 (Jacobijnenklooster), and 137 (Olde Con-
vent).
12. Hildo van Engen, De Derde orde van Sint-Franciscus in het middeleeuwse
bisdom Utrecht: Een bijdrage tot de institutionele geschiedenis van de Moderne Devotie
(Hilversum, 2006) passim, and 74–76 for this house.
13. The relevant document is in Oorkondenboek Groningen II, 313–14 (no.
1098), with corrections by H. van Engen, Derde orde, 75 n. 60.
14. This from a document later addressed by Grabow to Pope Martin V: Keus-
sen, ‘‘Grabow,’’ 34.
Authenticated
15. Ibid., 46.

16. Daniel Hobbins, ‘‘The Schoolman as Public Intellectual: Jean Gerson and
the Late Medieval Tract,’’ AHR 108 (2003): 1308–35.
17. Keussen, ‘‘Grabow,’’ 40.
18. Ibid., 40.
19. The most accessible text of these twenty-four sentences is that of Paul Fréd-
éricq, Corpus documentorum inquisitionis haereticae pravitatis Neerlandicae, 5 vols.
(Ghent-Den Haag, 1896), 2: 219–20.
21. This apologetic brief, admittedly reaching us only by way of the legal pro-
cedure and in the copying of the Devout, can be found in Keussen, ‘‘Grabow, 37–41.
22. Ibid., 37.
23. On this, see H. van Engen, Derde Orde, 220–21.
24. Thomas, Summa Theologiae, II, II, 186. The language here, which Thomas
borrowed in part from Gregory the Great, is important, and was widely echoed:
‘‘Religio autem . . . est quedam uirtus per quam aliquis ad Dei seruicium et cultum
aliquid exhibet. Et ideo antonomastice religiosi dicuntur illi qui se totaliter manci-
pant diuino seruicio quasi holocaustum Deo offerentes . . . Et secundum hoc religio
perfectionis statum nominat.’’
25. See H. van Engen, Derde Orde, 113–30, for these privileges and their inter-
pretation.
27. Johan Busch, De viris illustribus 58, ed. Karl Grube, Des Augustinerpropstes
Iohannes Busch Chronicon Windeshemense und Liber de reformatione monasteriorum
(Halle, 1886; rpt 1968), 172.
28. Jacobus Traiecti alias de Voecht, Narratio de inchoatione domus clericorum
in Zwollis, ed. Michael Schoengen (Amsterdam, 1908), 105–6.
29. Busch, De viris illustribus 58, ed. Grube, 173.
30. Keussen, ‘‘Grabow,’’ 34–35.
31. See Staubach, ‘‘Zwischen Kloster und Welt?’’ 411–15 for an edition of this
sollicitatio based on two manuscripts; a copy known earlier without attribution to
Grabow was edited by Heinrich Finke, Acta concilii Constanciensis 4 (Münster 1928),
676–80.
32. Staubach, ‘‘Zwischen Kloster und Welt?’’ 416–20, at 417.
33. On Galecop and his role, see H. van Engen, ‘‘A Learned Acquaintance: Jan
van Galecop (c. 1375–1428) and the Modern Devotion,’’ in Education and Learning
in the Netherlands, 1400–1600: Essays in Honour of Hilde de Ridder-Symoens, ed.
Koen Goudriaan, Jaap van Moolenbroek, and Ad Tervoort (Leiden, 2004), 13–32.
34. Staubach, ‘‘Zwischen Kloster und Welt?’’ 423–26, first edited by Wachter,
‘‘Grabow,‘‘ 365–68.
35. Ibid., 431–33.
36. Keussen, ‘‘Grabow,’’ 35–36.
37. Busch, De viris illustribus 58, ed. Grube, 173–74.
38. Keussen, Grabow,’’ 41.
39. Ibid., 37.
Authenticated
40. Ibid., 37–41.

41. G. D. Mansi, Sacrorum conciliorum nova et amplissima collectio (1735; rpt.
Graz, 1960), 28: 391.
42. Ibid., 390.
43. John Van Engen, ‘‘Privileging the Devout: A Text from the Brothers at
Deventer,’’ in Roma, magistra mundi, Itineraria culturae medievalis: Mélanges offerts
au Père L.E. Boyle à l’occasion de son 75e anniversaire, ed. Jacqueline Hamesse (Lou-
vain-la-Neuve, 1998), 960.
44. Mansi, Consilia, 28: 391.
45. Ibid., 391–94.
46. I set this out in Modern Day Converts, chap. 7.
48. Ibid., 41–42.
49. Ibid., 44.
50. See Keussen, ‘‘Grabow,’’ 33–47 ⳱ Cologne, Stadtarchiv, Urkunden no.
9277. An additional version, made by the same notary, edited by Wachter, ‘‘Gra-
bow,’’ 371–76.
51. Busch, De viris illustribus 58, ed. Grube, 174.
52. Satisfactio nostra, which I am editing from Emmerich, Stadtsarchiv, MS 13.
53. See J. Van Engen, ‘‘Friar Johannes Nyder,’’ 583–615. On Nyder see also
Michael Bailey, Battling Demons: Witchcraft, Heresy, and Reform in the Late Middle
Ages (University Park, Pa., 2003).
54. Nyder’s prologue, ‘‘Quamuis extra religiosorum et approbatorum ordi-
num monasteria sint seculares deuote persone saluabiles in diuersis statibus, quia
tamen plures talium deo in uera paupertate seruare uolencium uexantur, potissime
propter mundo contemptibilem paupertatem uoluntariam, idcirco quorundum re-
ligiosorum tradiciones erroneas [⳱ Mulberg, Grabow] qui, cum in amore pauper-
tatis esse deberent ex uoto sue professionis primi, ne notetur eorum transgressio
sunt paupertatis uere persecutores precipui, et non minus contra suos complices de
clero alios qui, nedum ea que sunt necessiter docere deberent plebeos uerum eciam
consilia ewangelica suadere tenentur et seruare quedam pre ceteris. Idcirco ad tuen-
dam paupertatis uoluntarie primam huius uite beatitudinem de eam tractabo in
sequentibus. . . . Nolo tamen, quantum mea interest, inutilibus ualidis mendicanti-
bus patrocinari per sequencia.’’ I have used the manuscript of Nyder’s work kept in
the convent at Cologne, now Cologne, Historisches Stadtarchiv W 342, fol. 122v.
55. ‘‘Est adhuc notabilis difficultas utrum licitum sit manenti in seculo tenere
tria ista uel eciam uouere, uidelicet paupertatem uoluntariam castitatem et obe-
dienciam. Quidam religiosus tempore concilii constanciensis asseruit uel tenuit
quod non liceret. Cuius libellus habuit 24 proposiciones que omnes et singule sus-
pecte ad minus erant, et multe earum erronee uel scandalose, quedamque heretice,
ymmo quedam blaspheme iudicate sunt fore, et libellus ipse condempnandus. Et ad
hoc fuerunt de diuersis uniuersitatibus et eciam de uariis religionibus approbatis
mendicancium et non mendicancium doctores maiores quos pro tunc in theologia
orbis habuit, ad minus 13. Quorum scripta uidi et sequentibus inserui sub com-
pendio. . . . Concedendum igitur est quod licitum est manenti in seculo unum de
predictis tribus aut duo uel omnia tria tenere et uouere.’’ Ibid., fol 149v.
56. This is what I analyzed in ‘‘Friar Johannes Nyder.‘‘
Authenticated
Chapter 9. Marriage, Concubinage, and the Law

I thank the College of Liberal Arts, University of Minnesota, for making possi-
ble research assistance for this essay, and Ph.D. candidate Michael Sizer for provid-
ing that assistance. The Rare Book departments at the Library of Congress,
Firestone Library (Princeton University), Hesburgh Library (University of Notre
Dame), and Union Theological Seminary allowed access to early printed editions of
consilia collections. Versions of this chapter were presented at the Berkshire Confer-
ence on the History of Women, Claremont, California, June 2005, and at the Ameri-
can Society for Legal History conference, Baltimore, November 2006; I thank in
particular Charles Donahue, Thomas McGinn, and Konstantinos Kapparis for their
comments. I also thank Ed Peters for his support and encouragement in the area of
legal history, as on so many other subjects over the years. He was the best senior
colleague a new assistant professor could have wished for.
1. A good treatment is Thomas A. J. McGinn, ‘‘Concubinage and the Lex Julia
on Adultery,’’ Transactions of the American Philological Society 121 (1991): 335–75.
2. Dig. 50.16.144, 1: 915.
3. Dig. 25.7.3.1, 1: 369.
4. Dig. 48.5.35 pr. 1: 850.
5. Dig. 25.7.4 (Paulus), 1: 369; 39.5.31pr. (Papinianus). I am translating mari-
talis affectio here as ‘‘marital intent,’’ because that seems to me better to convey
what is involved than the English word ‘‘affection.’’ It has nothing to do with how
fond the husband is of her, but rather that he regards her and behaves toward her
as a man should his wife.
6. According to Ulpian, Dig. 48.5.14, 1: 846–47, the man whose concubine she
is cannot accuse her with the right of a husband, but can do so as a third party. See
discussion in James Brundage, Law, Sex, and Christian Society in Medieval Europe
(Chicago, 1987), 40–44; Susan Treggiari, Roman Marriage: Iusti coniuges from the
Time of Cicero to the Time of Ulpian (Oxford, 1991), 51–52.
7. Dig. 25.7.1 (Ulpian); 25.7.3 (Marcianus), 1: 369.
8. Beryl Rawson, ‘‘Roman Concubinage and Other de facto Marriages,’’
Transactions of the American Philological Association 104 (1974): 279–305, argues that
the evidence for cases where two free people who could have married instead en-
tered into concubinage is very scanty.
9. Sara Elise Phang, The Marriage of Roman Soldiers (13B.C.–A.D. 235): Law
and Family in the Imperial Army, Columbia Studies in the Classical Tradition 24
(Leiden, 2001), esp. 198–202.
10. See Ruth Mazo Karras, ‘‘The History of Marriage and the Myth of Friede-
lehe,’’ EME 14 (2006): 119–51.
11. Suzanne Fonay Wemple, Women in Frankish Society: Marriage and the
Cloister, 500 to 900 (Philadelphia, 1981), 39.
12. Concilium Moguntium 12, ed. Alfred Boretius and Victor Krause, Capitu-
laria Regum Francorum, vol. 2, MGH Leges (Hannover, 1890), 2: 189.
13. Paul Mikat, Dotiere Ehe, rechte Ehe: Zur Entwicklung des Eheschliessungs-
rechte in fränkische Zeit (Opladen, 1978), 46; Annales Bertiniani, s.a. 869, ed. Georg
Waitz, MGH in Usum Scholarum Separatim Editi (Hannover, 1883), 107; s.a. 870,
p. 108.
Authenticated
14. Hincmar of Reims, De Divortio Lotharii Regis et Theutbergae reginae, ed.

Letha Böhringer, MGH, Concilia, 4 suppl. 1 (Hannover, 1992), 104. On this case, see
Stuart Airlie, ‘‘Private Bodies and the Body Politic in the Divorce Case of Lothar
II,’’ Past and Present 161 (November 1998): 3–38.
15. Jacques de Vitry, The Exempla or Illustrative Stories from the Sermones Vul-
gares of Jacques de Vitry, 242, ed. Thomas F. Crane (London, 1890), 101.
16. Jean Froissart, Chroniques, Livre III (du Voyage in Béarn à la campagne de
Gascogne) et Livre IV (années 1389–1400), 4: 50, ed. Peter Ainsworth and Alberto
Varvaro (Paris, 2004), 547–48; Louis Douët-D’Arcq, Choix de pièces inédites relatives
au règne de Charles VI (Paris, 1863–64), 2: 25–27.
17. E.g., Paris, Bibliothèque Nationale, Z/1o/18, fol. 124r (Criminal Register of
the Archdeacon of Paris, 1485).
18. Charles Ducange, ed., Glossarium mediae et infimae Latinitatis (rpt. Graz:
1954), s.v. focaria; Ruth Mazo Karras, ‘‘The Latin Vocabulary of Illicit Sex in English
Ecclesiastical Court Records,’’ Journal of Medieval Latin 2 (1992): 1–17.
19. Gratian D.34 d.p.c. 3, 1: 126.
20. James A. Brundage, ‘‘Concubinage and Marriage in Medieval Canon
Law,’’ JMH 1 (1975): 6.
21. Au1ur Magnúsdóttir, Frillor och Fruar: Politik och Samlevnad på Island
1120–1400 (Göteborg, 2000), discusses concubinage and alliance formation in Ice-
land.
22. See James A. Brundage, ‘‘Domestic Violence in Classical Canon Law,’’ in
Violence in Medieval Society, ed. Richard W. Kaeuper (Woodbridge, 2000), 183–95;
Richard Helmholz, Marriage Litigation in Medieval England (Cambridge, 1975),
100–107, on the dissolution of marriage; for a large number of separation cases, see
Registre des causes civiles de l’officialité épiscopale de Paris, ed. Joseph Petit (Paris,
1919), passim.
23. See, for example, Monique Vleeschouwers-Van Melkebeek, ‘‘Mandatory
Celibacy and Priestly Ministry in the Diocese of Tournai at the End of the Middle
Ages,’’ in Peasants & Townsmen in Medieval Europe, ed. Jean-Marie Duvosquel and
Erik Thoen (Ghent, 1995), 681–92; E. J. G. Lips, ‘‘De Brabantse geestelijkheid en de
andere sekse,’’ Tijdschrift voor Geschiedenis 10, 2 (1989): 1–29; Ruth Mazo Karras,
Common Women: Prostitution and Sexuality in Medieval England (New York, 1996),
30, 46, 78.
24. Ludwig Schmugge, Kinder, Kirche, Karrieren: Päpstliche Dispense von der
unehelichen Geburt im Spätmittelalter (Zurich, 1995): 3071 petitioners had siblings,
and 73% of these were sons of priests. (This is just the tip of the iceberg; these are
cases in which more than one child in the family wished to become a cleric, but
there must have been many others in which only one or no child did.) See also
Bernhard Schimmelpfennig, ‘‘Ex fornicatine nati: Studies on the Position of Priests’
Sons from the Twelfth to the Fourteenth Century,’’ Studies in Medieval and Renais-
sance History n.s. 2 (1979): 1–50.
25. See Dyan Elliott, Fallen Bodies: Pollution, Sexuality, and Demonology in the
Middle Ages (Philadelphia, 1999), 81–107, for some of the implications of the exis-
tence of these women.
26. Emlyn Eisenach, Husbands, Wives, and Concubines: Marriage, Family, and
Authenticated
Social Order in Sixteenth-Century Verona (Kirksville, Mo., 2004), 162, for a later pe-
riod.
27. Il libro segreto di Gregorio Dati, ed. Carlo Gargiolli (Bologna, 1869), 32.
28. Carol Lansing suggests that in Bologna these unions usually involved
women without dowries, with whom men did not want to commit to a property
arrangement and alliance: ‘‘Concubines, Lovers, Prostitutes: Infamy and Female
Identity in Medieval Bologna,’’ in Beyond Florence; The Contours of Medieval and
Early Modern Italy, ed. Paula Findlen, Michelle M. Fontaine, and Duane J. Osheim
(Stanford, Calif., 2003), 91–96. For an example where the partners were of compara-
ble social standing, see Guido Ruggiero, The Boundaries of Eros: Sex Crime and Sex-
uality in Renaissance Venice (Oxford, 1985), 153.
29. David Nicholas, Domestic Life of a Medieval City: Women, Children, and
the Family in Fourteenth-Century Ghent (Lincoln, Neb., 1985), 169.
30. Ingrid Baumgärtner, ‘‘Consilia—Quellen zur Familie in krise und Konti-
nuität,’’ in Die Familie als sozialer und historischer Verband: Unterschungen zum Spät-
mittelaltum und zur frühen Neuzeit, ed. Pieter-Johannes Schuler (Sigmaringen,
1987), 43–66, at 45.
31. On the relation of ius proprium and ius commune, see Manlio Bellomo,
The Common Legal Past of Europe, trans. Lydia G. Cochrane (Washington, D.C.,
1995), 78–111, 149–202.
32. Consilia domini Guidonis Pape 115 (Lyon, 1519), 90r.
33. The definitive canon law treatment is X.4.17, 2: 709–17. See also Hos-
tiensis (Henry of Segusio), Summa Aurea (Venice, 1574, rpt. Toronio, 1963), cols.
1379–84; Thomas Kuehn, Illegitimacy in Renaissance Florence (Ann Arbor, Mich.,
2002), 44.
34. Baldus de Ubaldis, Baldi Vbaldi pervsini ivris consvlti omnium concessu
doctissimi pariter & acutissimi consiliorvm, sive responsorvm 267 (Venice, 1575), 1: 79v.
35. See, e.g., Franciscus Curtius, Consiliorum sive responsorum d. Franchischini
Curtii Iunioris . . . liber tertius 328 (Venice, 1574), 283r–284v; Philippus Decius, Con-
siliorum sive responsorum . . . tomus primus 132 (Venice, 1575), 142v–143.
36. See Steven Epstein, Speaking of Slavery: Color, Ethnicity, and Human
Bondage in Italy (Ithaca, N.Y., 2001), on the prevalence of slavery in Italy. Professor
Epstein has kindly confirmed to me that that is the likely meaning of the term in
an Italian context at this period. Pers. comm., 18 March 2005.
37. G. Letonnellier, ‘‘Gui Pape,’’ in Dictionnaire de droit canonique, ed. R. Naz
(Paris, 1953), 5: 1009–11.
38. Kuehn, Illegitimacy, 41.
39. Sally McKee, ‘‘Inherited Status and Slavery in Late Medieval Italy and Ve-
netian Crete,’’ Past and Present 182 (2004): 31–53. Luis de la Puente (Ludovicus de
Ponte), writing in the first half of the fifteenth century, reviewed the opinions on
both sides of the question and concluded that the children of a slave could indeed
be legitimated: Consilia D. Ludovici de Ponte Romani 194 (Frankfurt, 1577), 97v–98r.
40. Consilia domini Angeli de Vbaldis pervsini 30 (Lyon, 1551), fol. 15r. See
Kuehn, Illegitimacy, 92.
41. Bartolus de Sassoferrato, Consilia quaestiones et tracatus D. Bartoli (Lyon,
1552), 41r, trans. in Kuehn, Illegitimacy, 254.
Authenticated
42. Curtius, 136, fol. 65v.

43. Consilia domini Francisci de Aretio 48 (Lyon, 1536), fols. 39r–39v; cf. Con-
silia Angeli de Vbaldis, 30, fol. 15r.
44. Benedictus de Benedictis, Consiliorum sive mavis responsorvm domini Ben-
edicti Caprae pervsini ac Lvdovici Bolognini bononiensis iuresconsultorum clarissi-
morum volumen 127 (Venice, 1576), fol. 162v.
45. E.g., Angelus de Gambilionibus, Consiliorvm cive responsorvm Angeli de
Gambilionibus Aretini (Venice, 1576), 74: 1–2, p. 281.
46. Bartolo here follows his teacher Cino of Pistoia (Cynus, 1270?–1336/7):
‘‘the only difference between a wife and a concubine is in dignitas, that is honor.’’
An ‘‘honest’’ woman, more or less what would today be called ‘‘respectable,’’ was
to be presumed a wife. Cyni Pistoriensis In Codicem et aliquot titulos primi Pandect-
orum tomi, id est Disgesti veteris, doctissima commentaria 5:4 (rpt. Turin, 1964), 1:
293.
47. Bartolo de Sassoferrato, Opera (Venice, 1580), 3: 38v. The legitimations to
which McKee refers were not by subsequent marriage of the parents, but by other
legal action on the part of the father. Jurists generally agreed that natural but not
spurious children could be legitimated: e.g., Paulus de Castro, Consilia et Allegati-
ones (Rome, 1473), 2: 219.
48. Bartolo, Opera. See Anna T. Sheedy, Bartolus on Social Conditions in the
Fourteenth Century (New York, 1942), 58. Decius, Consilia 133, fol. 143v, follows Bar-
tolus on this issue, ‘‘even though concubinage is completely prohibited to the
clergy.’’
49. See Kuehn, Illegitimacy, 35.
50. Consilia domini Guidonis Pape 115, 90r.
51. Gratian, pars 2 C. 30 q. 1 c. 1, 1: 1095–96.
52. I am grateful to James Brundage for his information on this point. Decius,
132, fols. 142v–143, argued that a priest could not make gifts to his concubine.
53. Consilia Benedicti Caprae Perusini, 2:2, fol. 4r.
54. Baldo de Ubaldis, Consilia Baldi de Ubaldi de Perusio (1575), 248, vol. 1
fols. 71r–71v; 262, 77v; 267: 2, 79v–80r.
55. Decius, Consilia 132, fol. 143r.
56. Paulus de Castro, Consilia Pauli de Castro (Frankfurt, 1582), 19, 3: 14–16.
57. Karras, Common Women, 30.
Chapter 10. Crusaders’ Rights Revisited: The Use and Abuse of Crusader
Privileges in Early Thirteenth-Century France
1. Maureen Purcell, Papal Crusading Policy: The Chief Instruments of Papal

Crusading Policy and Crusade to the Holy Land, from the Final Loss of Jerusalem to
the Fall of Acre, 1244–1291 (Leiden, 1975), 135–81 (hereafter Purcell); James A. Brund-
age, Canon Law and the Crusader (Madison, Wis., 1969) (hereafter Brundage).
When I graduated from a small Protestant high school, my impression of medieval
history was confined to a cursory sketch of the ‘‘Feudal Pyramid’’ (complete with a
Authenticated
pope precariously perched on the peak), characteristic of this darkest of periods

between the early church and the dawn of the Reformation. Edward Peters’s ‘‘Eu-
rope in a Wilder World, 500–1500’’ (as misprinted in the course catalog) soon
changed that. Ed’s mentorship, generosity, and warmth are legendary. Anything of
worth in this effort is indebted to the foundations he laid and the interest he kin-
dled, and to him I respectfully and affectionately dedicate this chapter. It was vastly
improved by the suggestions of this volume’s editors, whom I would like to thank
for their patient labors; all shortcomings remain my own.
2. Christopher J. Tyerman, The Invention of the Crusades (Toronto, 1998), 24,
27–28, 56–59; Tyerman, England and the Crusades, 1095–1588 (Chicago, 1988), 61–64,
97–98, 133–43, 174–75, 187–228; Simon Lloyd, English Society and the Crusade, 1216–
1307 (Oxford, 1988), 163–69, 172–75; David A. Carpenter, The Minority of Henry III
(Berkeley, Calif., 1990); Nicholas Vincent, The Letters and Charters of Cardinal
Guala Bicchieri, Papal Legate in England, 1216–1218, Canterbury and York Society 83
(Woodbridge, 1996).
3. Jessalynn Bird, ‘‘Heresy, Crusade and Reform in the Circle of Peter the
Chanter, c.1187–c.1240’’ (D. Phil. thesis, University of Oxford, 2001); James M.
Powell, Anatomy of a Crusade, 1213–1221 (Philadelphia, 1986); John W. Baldwin, The
Government of Philip Augustus (Berkeley, Calif., 1986); Baldwin, Masters, Princes,
and Merchants: The Social Views of Peter the Chanter and His Circle, 2 vols.
(Princeton, N.J., 1970); Jane E. Sayers, Papal Judges Delegate in the Province of Can-
terbury, 1198–1254: A Study in Ecclesiastical Jurisdiction and Administration (Oxford,
1971); nn. 1–2 above.
4. Marcel and Christine Dickson, ‘‘Le Cardinal Robert de Courson: Sa vie,’’
Archives d’histoire doctrinale et littéraire du moyen âge 9 (1934): 53–142, esp. 78 (here-
after Dickson).
5. Jessalynn Bird, ‘‘Reform or Crusade? Anti-Usury and Crusade Preaching
During the Pontificate of Innocent III,’’ in Pope Innocent III and His World, ed. John
C. Moore (Aldershot, 1999), 165–86, at 171; Powell, Anatomy, 29, 38–41; Lloyd, En-
glish Society, 22–23, 72–195; Tyerman, England, 53, 61–64, 71, 75–85, 168–77, 187–228;
Odo Rigord, Gesta Philippi Augusti, in Oeuvres de Rigord et de Guillaume le Breton,
ed. Henri-François Delaborde, 2 vols. (Paris, 1882–85), 1: 1–167, at 84–90.
6. Bird, ‘‘Heresy, Crusade and Reform,’’ 239–45; Bird, ‘‘Reform or Crusade?’’
166–72, 182; Robert Chazan, Medieval Jewry in Northern France: A Political and So-
cial History (Baltimore, 1973), 69; Brundage, 179–82 (I differ from his interpretation
of the 1188 statute); nn. 2, 5 above.
7. Bird, ‘‘Heresy, Crusade, and Reform,’’ 249–50; Jessalynn Bird, ‘‘Paris Mas-
ters and the Justification of the Albigensian Crusade,’’ Crusades 6 (2007); Powell,
Anatomy, 38–42; Dickson, 75–78, 88, 93, 102–3, 106–8, 130–32; Henri d’Arbois de
Jubainville, Histoire des ducs et des comtes de Champagne, 6 vols. (Paris, 1859–66), 4:
104–6 (hereafter Jubainville); Jubainville, Catalogue des actes des comtes de Cham-
pagne (Paris, 1863), nos. 591, 768–69, 780 (hereafter Catalogue); n. 5 above.
8. Bird, ‘‘Reform or Crusade?’’ 171; Recueil des historiens des Gaules et de la
France 19: 582–83 (hereafter RHGF); PL 216: 967, 217: 239–40; Recueil des actes de
Philippe Auguste, roi de France, ed. H.-F. Delaborde et al., 5 vols. (Paris, 1916–79), 3:
505–7, no. 1350 (misdated 1215) (hereafter Actes); Powell, Anatomy, 33–50. For diver-
Authenticated
gent interpretations of the composition, see Tyerman, Invention, 58; Brundage,

179–82.
9. Bird, ‘‘Heresy, Crusade, and Reform,’’ 12–13; Baldwin, Government, 107,
114–18, 123–25, 227, 440; J. M. M. H. Thijssen, ‘‘Master Amalric and the Amalricians:
Inquisitorial Procedure and the Suppression of Heresy at the University of Paris,’’
Speculum 71 (1996): 43–65.
10. See nn. 5 and 9 above and n. 11 below; Actes, 3: 504–7, no. 1360; Baldwin,
Government, 183–84; Brundage, 15, 183–84, 170–72; Purcell, 138, 167–68; August Pot-
thast, ed., Regesta pontificum Romanorum, A.D. 1198–1304, 2 vols. (Berlin, 1874–75),
no. 5163 (hereafter Potthast); Petrus Pressutti, ed., Regesta Honorii papae III, 2 vols.
(Rome, 1888–95), nos. 3533, 4331, 4336 (hereafter Pressutti).
11. PL 216: 818–22; Conciliorum Oecumenicorum Decreta, ed. Josepho Alberigo
et al., 3rd ed. (Bologna, 1973), 267–71 (hereafter COD); Bird, ‘‘Heresy, Crusade, and
Reform,’’ 212, 270–71; Bird, ‘‘Reform or Crusade?’’ 171, 182–84; Dickson, 78.
12. Bird, ‘‘Reform or Crusade?’’ 183–84. For similar later abuses, see Brundage,
189; Purcell, 175–76.
13. Bird, ‘‘Heresy, Crusade and Reform,’’ 213, 217–26, 269–71; Bird, ‘‘Reform
or Crusade?’’ 183–84; Pressutti, nos. 14, 207, 529, 1327, 5207–8, 5513, 2978, 2984; and
n. 26 below.
14. RHGF 19: 547–48; Pressutti, nos. 281–82; Gervase of Prémontré, ep. 4, in
Sacrae antiquitatis monumenta, historica, dogmatica, diplomatica, ed. Charles Louis
Hugo, 2 vols. (Étival, 1725–31), 1: 8 (hereafter Hugo); Dickson, 68–70, 78; Bird,
‘‘Heresy, Crusade, and Reform,’’ 13; Powell, Anatomy, 60, 128, 221; Sayers, Papal
Judges Delegate, 125–62, 243–76.
15. John W. Baldwin, Aristocratic Life in Medieval France: The Romances of
Jean Renart and Gerbert de Montreuil, 1190–1230 (Baltimore, 2000), 61 and 300 n.
106; Dickson, 92–93, 100–101, 105–8; Claire Taylor, ‘‘Pope Innocent III, John of En-
gland and the Albigensian Crusade (1209–1216),’’ in Moore, Pope Innocent III and
His World, 205–28; Powell, Anatomy, esp. 33–50; Thomas Rymer, Foedera, conventi-
ones, literæ . . . , 10 vols., 3rd ed. (Farnborough, 1967), I.i.124.
16. Bird, ‘‘Heresy, Crusade, and Reform,’’ 271–74; Bird, ‘‘Paris Masters’’; Wil-
liam Chester Jordan, The French Monarchy and the Jews: From Philip Augustus to
the Last Capetians (Philadelphia, 1989), 38–44; Chazan, Medieval Jewry, 69, 74–75,
78–80, 84–86, 89, 91–92, 95–96; Constance B. Bouchard, Spirituality and Adminis-
tration: The Role of the Bishop in Twelfth-Century Auxerre (Cambridge, Mass., 1979),
esp. 130–32; RHGF 18: 263; PL 216: 1291–93.
17. Dickson, 76, 108; Baldwin, Aristocratic Life, 60–61; Bouchard, Spirituality,
114, 138–39; Bird, ‘‘Heresy, Crusade and Reform,’’ 12; PL 215: 679, 873; n. 16 above.
18. Robert had reformed Vézelay in 1207. See PL 216: 943–44, 946–48; Press-
utti, nos. 562, 2110; Dickson, 74–76, 93; Raymonde Foreville, Le Pape Innocent III et
la France (Stuttgart, 1992), 53–58, 60–62, 311–12; Hugh of Poitiers, The Vézelay
Chronicle and Other Documents from MS. Auxerre 227, ed. J. Scott and John O. Ward
(Binghampton, N.Y., 1992), 1, 3–12, 23–26, 52, 66–68, 72, 75–77, 84–85, 89, 96, 108–
14, 116–29, 158–315, 364–65, 372–74; R. B. C. Huygens, ed., Monumenta Vizeliacensia:
Textes relatifs a l’histoire de l’abbaye de Vézelay, Corpus Christianorum Continuatio
Authenticated
Medievalis 42 (Turnhout, 1976), 128–29, 135, 166–75, 182–83, 185–86, 223–24, 227–31,
239, 400, 402, 419–24, 534–38, 542 ff, 603–7.
19. Jessalynn Bird, ‘‘The Victorines, Peter the Chanter’s Circle, and the Cru-
sade: Two Unpublished Crusading Appeals in Paris, Bibliothèque Nationale, Ms.
Latin 14470,’’ Medieval Sermon Studies 48 (2004): 5–28, at 13–14; Hermann Hooge-
weg, Die Schriften des Kölner Domscholasters, späteren Bischofs von Paderborn unde
Kardinalbischofs von S. Sabina Oliverus (Tübingen, 1894), eps. 1–2, pp. 285–88.
20. N. 18 above; Elizabeth Siberry, ‘‘The Crusading Counts of Nevers,’’ Not-
tingham Medieval Studies 34 (1990): 64–70; Constance B. Bouchard, Sword, Miter,
and Cloister (Ithaca, N.Y., 1987), 345–51.
21. Bird, ‘‘Heresy, Crusade, and Reform,’’ 61–62; PL 216: 984–92; RHGF 19:
735; Jubainville, 4: 24, 71, 108.
22. Karl Rodenberg, ed., Epistolae saeculi XIII e regestis pontificum Roman-
orum, 3 vols. (Berlin, 1883–87), 1: 163, no. 234; Brundage, 145, 157; Purcell, 161.
23. See nn. 2, 12–13, 15 above; Gervase of Prémontré, ep. 2, ed. Hugo, 1: 5;
Baldwin, Government, 332–34, 337–38; F. M. Powicke, Stephen Langton (London,
1965), 135–38; RHGF 19: 608, 622, 629, 634; Pressutti, nos. 211, 1377, 1397, 1407, 1416,
1891–92, 3328.
24. Pressutti, nos. 1498–99, 1873; RHGF 19: 661, 677.
25. Bird, ‘‘Reform or Crusade?’’ 173, 182–83; James Donovan, Pelagius and the
Fifth Crusade (Philadelphia, 1950), 44–45; Pressutti, nos. 1498–99, 1543, 1558, 1581;
RHGF 17: 108, 19: 661, 663; nn. 8–11 above.
26. Dickson, 108, 112; Bouchard, Administration, 130; Catalogue, no. 882;
RHGF 18: 736, 19: 711; Pressutti, nos. 1257, 2738–39. Compare Lloyd, English Society,
159–62, 172–75; Brundage, 174; n. 2 above.
27. Pressutti, nos. 859, 2553; RHGF 19: 638, 704, 713; Siberry, ‘‘Crusading
Counts,’’ 67–69; Powell, Anatomy, 115, 117–18, 144, 229.
28. Pressutti, no. 5005; RHGF 19: 754; Siberry, ‘‘Crusading Counts,’’ 67–69.
29. RHGF 19: 712; n. 8 above.
30. Bird, ‘‘Heresy, Crusade, and Reform,’’ 14–16, 154, 204, 271–74; Bird, ‘‘Vic-
torines,’’ 7, 10, 13; Jordan, French Monarchy, 38–39, 41, 44; Chazan, Medieval Jewry,
75, 78–80, 84–85, 91–92, 95–96; Jubainville, 4: 86; RHGF 18: 763; PL 215: 501–3, 216:
694–95; n. 7 above.
31. Pressutti, no. 2120; RHGF 19: 688.
32. PL 216: 729–30. For similar cases, see Pressutti, nos. 2892, 3824, 5959; Vati-
can, Archivio segreto, Registrum vaticanum, lib. 12, ep. 197, fol. 97v; Brundage,
182–83; Tyerman, England, 135, 217–22.
33. Bird, ‘‘Heresy, Crusade, and Reform,’’ 9–14; RHGF 18: 715; Dickson, 76 and
passim; Pressutti, nos. 543, 2254, 2260, 2280, 2317, 2768, 3168, 3184, 3250, 4097, 5192;
Catalogue, no. 1057.
34. Actes, 3: 171, 444–45, 453–58, 463–64, nos. 1088, 1306, 1313–14, 1321; PL 216:
975–96; Brundage, 190; Jubainville, 4: 23–71, 85–86, 101–4, 107–10, 121–27.
35. Jubainville, 4: 110–13, 117–18; Auguste Teulet et al., eds., Layettes du Trésor
des Chartes: Inventaire et documents publiés par la direction des archives, 5 vols.
(Paris, 1863–1909), no. 1474, p. 526 (hereafter Layettes); Brundage, 15, 189; PL 216:
977; nn. 8, 25 above, 41, 44 below.
Authenticated
36. Pressutti, no. 1327; Reg. vat. lib. 9, ep. 1111, fol. 257r–v.
37. Brundage, 12–14, 142, 160–69, 190–93; Purcell, 164–65, 169; n. 2 above.
38. Jubainville, 4: 113, n. a; Catalogue, nos. 825, 831, 833, 922, 963, 1029; Dick-
son, 94; RHGF 19: 582–83; PL 216: 967.
39. Pressutti, no. 296.
40. Baldwin, Masters, Princes and Merchants, 1: 7–8, 21, 332–37; Dickson, 78,
95, 114; Jubainville, 4: 67, 71, 113–21, 124, 141–42; Catalogue, nos. 824, 826–27, 832–33,
839–40, 907–8, 922, 928bis, 928ter, 938–41, 976–94; PL 214: 610–15, 216: 940–42,
971–82.
41. Jubainville, 4: 128–41; Catalogue, nos. 963, 976–94, 1022, 1295; Layettes, no.
1474, pp. 526–27; Baldwin, Government, 41.
42. Dickson, 115, nn. 3–4; Jubainville, 4: 141–47; Catalogue, no. 928ter; Press-
utti, nos. 5374, 5387, 5539–40, 5686–88; Layettes, no. 1276, pp. 458–60; PL 216:
978–79; n. 43 below.
43. N. 7 above; Pressutti, no. 386; RHGF 19: 633; PL 216: 982–84; Jubainville,
4: 134, 148–52; Layettes, nos. 1275–78, pp. 456–60.
44. Jubainville, 4: 115–16, 152–66, 178–83; Catalogue, no. 1177; Layettes, no.
1474, pp. 527–28; RHGF 19: 689; COD, 252–53.
45. Jubainville, 4: 183–87; Sayers, Papal Judges Delegate, 239–75; COD, 255–57;
Layettes, nos. 1275–76, 1474, 1476–79, 1483–86, pp. 457, 459, 527, 529–34; PL 216:
986–87.
46. Jubainville, 4: 167–70.
47. N. 23 above; Brundage, 155; Purcell, 170–71; Powell, Anatomy, 41, 234; Ju-
bainville, 4: 176–77; Layettes, nos. 1275–76, pp. 456–60; Reg. vat. lib. 10, eps. 6, 382,
fols. 4v, 80v–81r.
Chapter 11. Learned Opinion and Royal Justice: The Role of Paris Masters of
Theology During the Reign of Philip the Fair
1. Chartularium Universitatis Parisiensis (hereafter CUP), ed. H. Denifle and

É. Châtelain, vol. 1 (Paris, 1889), doc. 1, 59–61.
2. For a recent assessment of university support by Philip II and Louis IX, see
Manuel Alejandro Rodriguez de la Peña, ‘‘Rex scholaribus impendebant: The King’s
Image as Patron of Learning in Thirteenth Century French and Spanish Chronicles:
A Comparative Approach,’’ Medieval History Journal 5 (2002): 21–36. For events
during the regency of Blanche of Castile, see Spencer E. Young, ‘‘Consilio hominum
nostrorum: A Comparative Study of Royal Responses to Crisis at the University of
Paris, 1200–1231,’’ History of Universities 22, 1 (2007).
3. CUP 1, doc. 20, 78–80.
4. CUP 1, doc. 79, 136–39.
5. Masters of theology, without apparent episcopal involvement, also policed
the orthodoxy of teaching in their faculty as well as in the faculty of arts: see Wil-
liam J. Courtenay, ‘‘Inquiry and Inquisition: Academic Freedom in Medieval Uni-
versities,’’ Church History 58 (1989): 168–82; J. M. M. H. Thijssen, Censure and
Authenticated
Heresy at the University of Paris, 1200–1400 (Philadelphia, 1998). Although several

masters of theology were involved in the process against Amaury de Bène and his
disciples,‘‘ there is no evidence that masters of theology as a consultative or judicial
body took part in the proceedings in 1206 or 1210; see Thijssen, ‘‘Master Amalric
and the Amalricians: Inquisitorial Procedure and the Suppression of Heresy at the
University of Paris,’’ Speculum 71 (1996): 43–65. Masters of theology as a group did
participate in the condemnation of the Talmud at Paris in 1240 or 1241, but they
along with others were responding to a request of pope Gregory IX, who in turn
was acting on a denunciation from a converted Jew at Paris; see CUP 1, doc. 133,
175–76; doc. 173, 202–5; A. Tulier, ‘‘La condamnation du Talmud par les maı̂tres
universitaires Parisiens, ses causes et ses conséquences politiques et idéologiques,’’
in Le brûlement du Talmud à Paris, 1242–1244, ed. Gilbert Dahan (Paris, 1999),
59–78.
6. On the development of self-awareness of the University and the special
status of the faculty of theology, see Jacques Le Goff, ‘‘Quelle consciences l’univer-
sité médiévale a-t-elle d’elle-même?’’ in Beiträge zum Berufsbewusstsein des mittelalt-
erlichen Menschen, ed. Paul Wilpert, Miscellanea Mediaevalia 3 (Berlin, 1964), 15–29.
7. Heinrich Finke, Aus den Tagen Bonifaz VIII: Funde und Forschungen (Mün-
ster, 1902), vi–vii; English translation from R. W. Southern, ‘‘The Changing Role of
Universities in Medieval Europe,’’ Inst His Res 60 (1987): 136, with some revisions
based on the Latin text in Finke.
8. These events as well as the Templar affair have also been addressed by So-
phie Menache, ‘‘La naissance d’une nouvelle source d’autorité: l’Université de
Paris,’’ Revue historique 268 (1982): 305–27, but not with the same detail or conclu-
sions. See also Ian P. Wei, ‘‘The Masters of Theology at the University of Paris in
the Late Thirteenth and Early Fourteenth Centuries: An Authority Beyond the
Schools,’’ Bulletin of the John Rylands Library 75 (1993): 37–63; Jacques Verger, ‘‘Les
universités françaises et le pouvoir politique, du Moyen Age à la Révolution,’’ in I
poteri politici e il mondo universitario (XIII–XX secolo), ed. Andrea Romano and Jac-
ques Verger (Soveria Mannelli, 1994), 17–33; Jacques Verger, ‘‘Une autorité universe-
lle? l’Université de Paris et les princes européens au Moyen Age,’’ in Reich, Regionen
und Europa in Mittelalter und Neuzeit: Festschrift für Peter Moraw, ed. Paul-Joachim
Heinig et al., Historische Forschungen 67 (Berlin, 2000), 515–26; Karl Ubl, ‘‘Die Dis-
ziplinierung der Gelehrten. Philipp IV. von Frenkreich und die Universtät Paris,’’
in Politische Wissenschaft und öffentliches Recht in den juristischen Fakultäten Euro-
pas (13.–18. Jahrhundert), ed. Jacques Krynen and Michael Stolleis, Studien zur euro-
päischen Rechtsgeschichte, forthcoming.
9. Documents from the process survive in Paris, Arch. Nat., J. 491–93, some
of which were edited by Pierre Dupuy, Histoire du différend d’entre le pape Boniface
VIII et Philippes le bel (Paris, 1655; rpt.. Tucson, Ariz., 1963), 448–577; and in Archi-
vio Segreto Vaticano, Instr. misc., C, fasc. 47, and Bibl. Barb. XXXIII, 75, ed. C. A.
C. Höfler, ‘‘Rückblick auf Papst Bonifacius VIII. und die Literatur seiner Gesch-
ichte: Nebst einer wichtigen urkundlichen Beilage aus dem vatikanischen Archiv in
Rom,’’ Abhandlungen der hist: Klasse der königliche bayerische Akademie der Wissen-
schaften III, 3 (1843), 3–84 (edition 45–84), portions of which were quoted or sum-
marized by Henry Denifle, ‘‘Die Denkschriften der Colonna gegen Bonifaz VIII.
Authenticated
und der Cardinäle gegen die Colonna,’’ Archiv für Lituratur- und Kirchengeschichte
des Mittelalters 5 (1889): 493–529, at 497–500, and in CUP 2, doc. 604, 77. The texts
have been reedited in Boniface VIII en procès: articles d’accusation et dépositions des
témoins (1303–1311), ed. Jean Coste (Rome, 1995). The purported action of the mas-
ters was referred to by Finke, Aus den Tagen, 73, n. 2, as a determination of the
University of Paris.
10. Coste, Boniface VIII, 804: ‘‘diversos magistros et doctores theologie hoc
determinantes.’’
11. Ibid., 845: ‘‘Item credit per hoc quia [doctores] de hoc disputaverant et
eorum determinationem ad dictum dominum regem dicebantur contra ipsum Bon-
ifatium quoad illegitimum ingressum ad papatum pervenisse.’’ The bishop of Bay-
eux was Guillaume Bonet, a graduate and former master at the University of
Angers, member of the Paris Parlement in 1295, founder of the Collège de Bayeux
at Paris in 1309, and plenipotentiary of the king in 1310; see Jean-Michel Matz and
François Comte, Fasti Ecclesiae Gallicanae, vol. 7, Diocèse d’Angers (Turnhout,
2003), 238.
12. Coste, Boniface VIII, 804: ‘‘Bonifacius diversos magistros et doctores theo-
logie hoc determinantes capi fecit et mori in carcere . . . , sicut fratrem Geurtium,
de ordine minorum, fratrem Petrum de Adria de ordine predicatorum, et quendam
alium magistrum de theologia de ordine Cisterciensium, quem in carcere mori
fecit.’’ Denifle thought that the Franciscan and Dominican might have been bache-
lors of theology, for which there is also no evidence, but in that role they could
never have been part of a determination of masters.
13. The letters were edited by Denifle, ‘‘Die Denkschriften der Colonna,’’
509–24.
14. Ibid., 519.
15. Finke, Aus den Tagen, 1: 65–76; on Olivi’s position, see Livarius Oliger,
‘‘Petri Iohannis Olivi de renuntiatione papae Coelestini V quaestio et epistola,’’ Ar-
chivum Franciscanum Historicum 11 (1918): 309–73; David Burr, The Persecution of
Peter Olivi, Transactions of the American Philosophical Society n.s. 6 pt. 5 (Phila-
delphia, 1976), 69–70; Marco Bartoli, ‘‘Olivi et le pouvoir du pape,’’ in Pierre de
Jean Olivi: (1248–1298): Pensée scholastique, dissidence spirituelle et société, ed. Alain
Boureau and Sylvain Piron (Paris, 1999), 173–99, at 189–90.
16. Specifically, Godfrey of Fontaines, Quodlibet XII, q. 4: Utrum, posito
quod non esset aliquod ius positivum sive statutum quo praelati prohibentur re-
nuntiare statui et dignitati, ipsi possent libere renuntiare, in Les Quodlibets onze et
douze, ed. Jean Hoffmans, Philosophes Belges: Textes et Etudes 5, 1–2 (Louvain,
1932), 96–100; Peter of Auvergne, Quodlibet I, q. 15: Utrum Summus Pontifex possit
cedere vel renuntiare officio suo in aliquo casu, unedited; for the list of mss see
Palémon Glorieux, La littérature quodlibétique (Kain, 1925), 1: 257.
17. CUP 2: 77.
18. For a summary of Olivi’s argumentation, see Finke, Aus den Tagen, 66–67.
On the Franciscans at Lunghezza, see Denifle, ‘‘Die Denkschriften,’’ 502, and Brian
Tierney, The Crisis of Church and State, 1050–1300 (Englewood Cliffs, N.J., 1964),
174.
19. Finke, Aus den Tagen, 69–74.
Authenticated
20. Godfrey of Fontaines, Quodlibets onze et douze, 97–99: ‘‘Quamvis ergo

summus pontifex non habeat superiorem proprie loquendo, nihilominus cedere
potest. . . . ita etiam exposita cessionis causa in cardinalium praesentia. . . , sufficere
potest eorum assensus absque alicuius alterius superioris auctoritate.’’
21. Ibid., 99: ‘‘Haec videtur esse intentio Hugotionis in Summa sua . . . ubi
dicit quod Papa renuntiare potest coram cardinalibus, vel coram concilio generali;
et quod papa pro libito suae voluntatis cedere non possit nisi ex causis legitimis eo
quod est obligatus universali Ecclesiae.’’
22. For the development of the campaign of 1303 against Boniface VIII, see
William J. Courtenay, ‘‘Between Pope and King: The Parisian Letters of Adhesion
of 1303,‘‘ Speculum 71 (1996): 577–605.
23. The structure and language of the document parallel those of many others
prepared by the royal chancery in 1303 and differ markedly from documents issued
by the university. It is interesting to note that the document was preserved in the
royal archives, not in those of the rector, nations, or faculties of the university.
24. On the process against the Templars, see Heinrich Finke, Papsttum und
Untergang des Templerordens, 2 vols. (Münster, 1907); Malcolm Barber, The Trial of
the Templars (Cambridge, 1978); Johannes Fried, ‘‘Wille, Freiwilligkeit, und Geständ-
nis um 1300: Zur Beurteilung des letzten Templergroßmeisters Jacques de Molay,’’
Historisches Jahrbuch 105 (1985): 388–425; Anke Krüger, ‘‘Schuld oder Präjudizier-
ung? Die Protokolle des Templerprozesses im Textvergleich,’’ Historisches Jahrbuch
117 (1997): 340–77; Barbara Frale, L’ultima battaglia dei Templari (Rome, 2001);
Frale, Il Papato e il processo ai Templari (Rome, 2003).
25. Jean de Saint-Victor, Excerpta e Memoriali Historiarum, Recueil des Histor-
iens des Gaules et de la France, vol. 21 (Paris, 1855), 649–50; Guillaume de Nangis,
Chronique latine de Guillaume de Nangis, de 1113 à 1300 avec les continuations de cette
chronique de 1300 à 1368, ed. Hercule Gérard (Paris, 1843), 1: 361.
26. Finke, Papsttum, II, 309: ‘‘pluribus aliis religiosis et secularibus magistris,
bachalariis et scolaribus studii Parisiensis testibus ad hoc vocatis specialiter et ro-
gatis.’’
27. Present from the cathedral chapter, in order of listing, were Gerardus de
Collauduno, archdeacon of Josayo, Simon de Guibervilla, chancellor, Petrus de
Marigniaco, succentor, Radulphus de Haricuria, penitentiarius, and Hugh de Be-
sançon, canon and regent master in canon law. The Dominicans were represented
by Guillelmus de Sancto Evurtio, prior of St. Jacques, Romeus de Brugaria and Her-
veus Natalis [Nédelec], the latter two also doctors of theology, and Reginaldus de
Albigniaco [Renaud d’Aubigny, formerly prior of St. Jacques], all of whom had sup-
ported Philip against Boniface VIII in 1303. The Franciscans were represented by
Petrus, guardian of the Cordelier convent, and Alexander of Alessandria, their re-
gent master in theology. Also in attendance were Gerard of Bologna, the prior gen-
eral of the Carmelites, Henry of Friemar, the regent master of the Augustinian
Hermits, Gerard of St. Victor, also regent master in theology, and Laurence de
Droco, the regent master at Vallis Scolarium.
28. Of the four, Alanus de Lambalia, from Lamballe in the diocese of St-
Brieuc, was ‘‘Philippi regis Francorum clericus’’ and is mentioned in several docu-
ments in the company of Enguerrand de Marigny, Guillaume de Nogaret, and Guil-
Authenticated
laume de Plaisians: see Regestum Clementis Papae V, 8 vols. (Rome, 1885–87), vol. 5,
docs. 7504, 7505; Archives Nationales, Registres du Trésor des Chartes, vol. 1, Règne
de Philippe le Bel (Paris, 1958), docs. 992, 1218–19. Reginaldus de Foresta [Renaud de
la Forêt] was described as a royal clerk (clericus regis) when he was listed at the
second assembly at the Temple (Finke, Papsttum, 2: 309–13), and as a canon of Laon
when listed among those attending the first meeting (307–9); he was nominated to
a prebend at Laon by the king in 1306 (Hélène Millet, Les chanoines du chapitre
cathédral de Laon, 1272–1412, Collection de l’École française de Rome 56 [Rome:
1982], 163, 514). Petrus de Pruneto, a royal clerk from the diocese of Bourges, was a
notary to the king by 1299 and collector of annates for the king in the province of
Bourges from 1304 to 1309 (Les Journaux du Trésor de Philippe IV le Bel, ed. Jules
Marie Eduard Viard (Paris: 1940), doc. 295, col. 52n; Registres du Trésor des Chartes,
1, docs. 116–21, 752, 904, 914, 1297, 1358). He was rewarded with a canonical prebend
at Bourges, and continued to serve royal interests into the reign of Philip VI (Reges-
tum Clementis V, vol. 6, doc. 7907; Lettres communes de Jean XXII, ed. Guillaume
Mollat, 16 vols. (Rome, 1904–47), docs. 52, 58070, 59561. The Reginaldus de Albigni-
aco [Renaud d’Aubigny] mentioned here was probably not the Dominican who
helped launch the campaign against Boniface VIII in the gardens of the Louvre in
1303 and who was the first to sign the Dominican list in support of the royal initia-
tive, but rather the Renaud d’Aubigny who was a royal notary and scribe serving
Philip as early as 1298 (Journaux du Trésor de Philippe IV, doc. 139, cols. 27–28; Regis-
tres du Trésor des Chartes, 1, doc. 3, 675, 676, 678, 1264, 1298, 1553, 1606, 1546).
29. It is possible that those named as procurators of the four nations were
inaccurately recorded. There is no problem with Jacobus de Bethunia, named as
procurator of the Picard nation, nor with Adam de Villanis, named as procurator
of the French nation. Reginaldus de Bisuncio, however, is named as procurator of
the Norman nation, although Besançon [Bisuntio] geographically falls within the
French nation; he did, however, hold the parish church of Vaudeloges in the diocese
of Sées in lower Normandy by 1316 (Lettres communes de Jean XXII, doc. 1486). Jo-
hannes de Noeriis, listed as procurator of the English nation, was actually a royal
clerk from the region of France north of Paris (Lettres communes de Jean XXII, doc.
45683). Either the notary was not fully informed or it was important to record all
four procurators as being present, whether they were or not.
30. Finke, Papsttum, 2: 311: ‘‘presencium et ad requisicionem inquisitoris pre-
dicti.’’ The report on the meeting the previous day (309) had used the standard
diplomatic phrase ‘‘testibus ad hoc vocatis specialiter et rogatis.’’
31. Ibid., 312.
32. The copies of the list of questions are in Paris, Arch. Nat. J. 413, doc. 31,
copies A & B; edited in Heinrich Finke, Papsttum und Untergang des Templerordens
(Münster, 1907), 2: 107–10. The text of the theologians’ response is in Paris, Arch.
Nat. J 413, n. 1, edited in CUP 2, doc. 664, 125–28.
33. He is also known as Alexander de Marcia, since Sant’Elpidio lies within
the March of Ancona.
34. The seals on the document (Paris, Arch. Nat., J. 41.1) are attached to strips
that are part of the parchment sheet itself. The names of the masters are not in the
text of the document but only on the strips, written in the hand of one scribe, and
Authenticated
considerably faded through their having been soaked at some time before the late
nineteenth century, perhaps in an attempt to remove the seals intact. The authen-
ticity of the name is attested by the seal.
35. The first strip on the lower left, that of Alexander of Alessandria, was cut
from the document and is now pinned to the text. There is sufficient space on the
lower left edge for one additional strip with seal, before that of frater Alexander, to
have belonged to the original document, but there is no way of establishing that
possibility.
36. Jean de Pouilly, Quodlibet II, q. 19 (Paris, Bibl. Nat. lat. 15372, fols. 67vb–
69ra; as q. 13 in Bibl. Nat. lat. 14565, fols. 124rb–125vb): ‘‘Utrum expediat simpliciter
quod secreta cuiuslibet religionis revelentur pape.’’
37. Bibl. Nat. lat. 15372, fol. 68va; Bibl. Nat. lat. 14565, fol. 125rb: ‘‘Et ideo con-
cludo quod expedit tamquam simpliciter bonum quod papa sciat regulas singular-
ium religionum et modum profitendi statuta et precepta, sive sint generalia sive
provincialia, prout aliqui sic distingunt sua capitula, modos vivendi et necessita ac-
quirendi et etiam actus si posset singularum personarum.‘‘
38. Ibid., ‘‘Sed sicut mala et iniqua extirpanda, loquendo nedum de hiis que
tangunt personas singulares sed etiam communitatem, que papa cum omni dili-
gentia deberet inquirere et corrigere, sicut rex diligenter inquisivit facta istorum
pessimorum, apostatarum et sodomitarum inquisitione et reduxit ad lucem.’’ In the
margin of Bibl. Nat. lat. 15372, fol. 68va: ‘‘Templariorum.’’
39. Bibl. Nat. lat. 15372, fol. 68vb; Bibl. Nat. lat. 14565, fol. 125va: ‘‘Et ideo si
talia debeant sciri, debet de ipsis diligenter et frequenter inquirere, quidem quia
occulta sunt frequenter, vero quia pluries etiam in anno possunt talia statuere et
ordinare. Hec autem non potest bene papa facere propter religionum multitudinem
ad quarum loca oportet accedere si debeat bene inquiri de statutis secretis aut acti-
bus, quia vita unius pape non sufficeret dato quod nihil aliud faceret. Tamen etiam
quia papa circa negotia generalia totius ecclesie est occupatus, et ideo non potest
vacare circa talia.’’
40. Ibid., ‘‘Cum igitur expediat quod talia sciantur ab aliis, ab eis qui talia
constituunt et in ea consentiunt, sicut sunt illi de illa professione, quia si sint irrati-
onabilia aut erronea vel aliis preiudicialia, dummodo credant improprium commo-
dum vel honorem, nunquam talia revocabunt nec bene possunt a papa sciri, ut
dictum est, nec post papam sunt alii ad quos ita pertineat talia scire et ea corrigere,
sicut sunt episcopi.’’
Chapter 12. Coin and Punishment in Medieval Venice
1. Archivio di Stato, Venice (hereafter ASV), Signori di Notte, Processi

(henceforth SNP), R. 12, fols. 38–39. For the medieval Venetian mint, see Alan M.
Stahl, Zecca: The Mint of Venice in the Middle Ages (Baltimore, 2000). The torne-
sello, a denomination made for use in Venice’s Aegean colonies and banned from
circulation at home, was supposed to comprise 89% copper and 11% silver; see Alan
M. Stahl, The Venetian Tornesello: A Medieval Colonial Coinage, American Numis-
Authenticated
matic Society Numismatic Notes and Monographs 163 (New York, 1985). Archival
research for this study was made possible by a series of grants from the Gladys K.
Delmas Foundation. N.B.: the folio numbers for all citations from the Misti of the
Senate are derived from the microfilms in the Henry Charles Lea Library of the
University of Pennsylvania, originally filmed in the 1950s for Kenneth Setton, and
reflect the foliation of these registers at that time. I am grateful to my mentor Ed-
ward Peters for continued access to these microfilms, as well as for the many other
ways in which he has supported my scholarship and career.
2. ASV, Avogaria di Comun (hereafter AC), Raspe, R. 3646/6, fasc. 2, fols.
103v–104; ASV, Senato, Misti (heareafter SM), R. 51, fols. 116v–117.
3. For Venetian coins and accounting systems, see Frederic C. Lane and Rein-
hold C. Mueller, Money and Banking in Medieval and Renaissance Venice, vol. 1,
Coins and Moneys of Account (Baltimore, 1985), esp. 602, for the ducat in lire di
moneta.
4. Guido Ruggiero, Violence in Early Renaissance Venice (New Brunswick,
N.J., 1980), 65–75.
5. Even the Venetian credit market was dependent on the availability of trust-
worthy coin within Europe as well as in the Levant: Reinhold C. Mueller, The Vene-
tian Money Market: Manks, Panics, and the Public Debt, 1200–1500, Money and
Banking in Medieval and Renaissance Venice 2 (Baltimore, 1997), 303–17.
6. Stahl, Tornesello, 68–70.
7. Stahl, Zecca, 235–38. See also Reinhold C. Mueller, ‘‘Il circolante manipo-
lato: L’impatto di imitazione, contraffazione e tosatura di monete a Venezia nel
tardo medioevo,’’ in Italia, 1350–1450: Tra crisi, transformazione, sviluppo (Pistoia,
1991), 217–32.
8. See ibid., 75–77, for an example of such a case.
9. For Venetian criminal law in general, see Guido Ruggiero, ‘‘Politica e gius-
tizia,’’ in Storia di Venezia, vol. 3, La Formazione dello stato patrizio, ed. Girolamo
Arnaldi et al. (Rome, 1997), 409–74.
10. ‘‘Promissione del doge Andrea Dandolo,’’ in Andrea Dandolo, Chronica
per extensum descripta, ed. E. Pastorello, Rerum Italicarum Sciptores 12, pt. 1, 2nd
ed. (Bologna, 1938–42), lxxxix, col. 37.
11. Gisella Graziato, ed., Le promissioni del doge di Venezia dalle origini alla
fine del duecento (Venice, 1986), 15 (Giacomo Tiepolo, 1229), 31 (Marino Morosini,
1249), 49 (Ranieri Zeno, 1252), 70 (Lorenzo Tiepolo, 1268).
12. Graziato, Le promissioni, 91: ‘‘quod quicumque inventus fuerit falsare mo-
netam nostrum in Veneciis debeat comburi et si Venetus falsaverit in aliam partem
ipsam monetam et postea repertus fuerit et captus, debeat comburi.’’ The provision
for the punishment of Venetians counterfeiting abroad was eliminated from the
promise made by Giovanni Dandolo in 1280 (115), but reinstated in that of Pietro
Gradenigo in 1289 (143).
13. ASV, Signori di Notte al Criminale (henceforth SNC), R. 16, fols. 9v. 13
(two cases), 14v.
14. ASV, Maggior Consiglio (hereafter MC), Liber Presbiter, fol. 123. The case
for the primacy of the Giudici di Proprio was set forth in the mid-thirteenth century
by the ducal chancellor Giacomo Bertaldo in his ‘‘Splendor Venetorum consuetudi-
Authenticated
num civitatis,’’ ed. F. Schupfer, in Bibliotheca Iuridica Medii Aevi, ed. A. Gaudentius
(Bologna, 1892–1913), 3: 97–153.
15. F. Nani-Mocenigo, ed., Capitolare dei Signori di Notte (Venice, 1877), 170,
col. 220.
16. Stahl, Zecca, 105–10.
17. Ibid., 23–24.
18. ASV, SNC, R. 16, fols. 62, 68v. In a similar case, two men were convicted
of making within Venice false coins with an image of a tower, which probably refers
to deniers tournois of Frankish Greece; they both lost their right hands and were
banished: ASV, SNC, R. 16, fol. 69v.
19. Nani-Mocenigo, Capitolare, 180, col. 233.
20. ASV, SNC, R. 16, fol. 34.
21. ASV, AC, Raspe, R. 3641/1, fol. 1v.
22. Ibid., fol. 13v.
23. Ibid., fols. 31v–32v.
24. Guid’Antonio Zanetti, Nuova raccolta delle monete e zecche d’Italia (Bolo-
gna, 1775–89), 5: 194–95.
25. ASV, AC, Raspe, R. 3642/2, fasc. 3, fol. 92. The prosecution of the noble-
man Nicolò Mocenigo was delayed because on the first round of balloting the Sen-
ate rejected the indictment offered by the Avogadori di Comun, only to accept it
the following day by a small margin.
26. Ibid., R. 3641/1, fol. 66.
27. Ibid., Raspe, R. 3643/3, fasc. 1, fol. 67v.
28. Ibid., fol. 79.
29. ASV, SNC, R. 16, fol. 68.
30. Roberto Cessi, ed., Problemi monetari veneziani (fino a tutto il sec. XIV)
(Padua, 1937), 71–73, no. 79.
32. Ibid., 41–42.
33. ASV, AC., Reg. P, R. 35/17, fols. 2v–3; Nani-Mocenigo, Capitolare, 199–200,
col. 262.
34. ASV, AC, Raspe, R. 3641/1, fols. 113r–v.
35. Alan M. Stahl, ‘‘The Venetian Mint in the Age of the Black Death,’’ in
Material Culture and Cultural Materialisms in the Middle Ages and the Renaissance,
ed. Curtis Perry, Arizona Studies in the Middle Ages and the Renaissance 5 (Turn-
hout, 2001), 41–57.
36. ASV, Provveditori in Zecca, R. 6 bis, fols. 31v–32v.
37. Ibid., fols. 33–34v.
38. ASV, AC, Raspe, R. 3643/3, fasc. 1, fols. 14–14v.
39. Ibid., fol. 18v.
40. Ibid., fol. 82v. See Lane and Mueller, Money and Banking, 580, for the
commercial rate of 74 soldini to the ducat in this year.
41. Ibid., Raspe, R. 3644.4, fasc. 2, fols. 90v–91.
42. Ibid., 3645/5, fasc. 1, fol. 1.
43. ASV, MC, Liber Leona, fols. 168–68v.
Authenticated
45. Ibid., 162–63.

47. Ibid., fols. 88v–89.
48. Ibid., 3643/3, fasc. 2, fol. 40.
50. Ibid., 176–79.
51. ASV, AC, Raspe, R. 3642/2. fasc. 3, fol. 13v.
52. ASV, Senato Misti (hereafter SM), R. 29, fol. 11; the provisions of this act
were copied into the capitulary of the Mint Masters for silver: ASV, Provveditori in
Zecca, R. 6 bis, fols. 34v–36. See Queller, The Venetian Patriciate, 176, for a discus-
sion of this act.
53. The lira a grossi, about one-and-a-quarter times as much as the lira di
moneta in this period, was the basis of the account system used by most Venetian
state offices; see Lane and Mueller, Money and Banking, 123–33; Stahl, Zecca, 271.
54. For details on the life and family of Filippo Barbarigo and criteria for dis-
tinguishing the Mint Master from at least one contemporary with the same name,
see Alan M. Stahl, ‘‘A Prosopography of Venetian Mint Officials,’’ Medieval Proso-
pography 21 (2000): 54–57.
55. ASV, SM, R. 39, fol. 69; ASV, MC, Liber Leona, fol. 9v.
56. ASV, SM, R. 39, fol. 78v.
58. Ibid., fol. 77.
59. ASV, Council of Forty (hereafter XL), Parti, R. 17, fol. 75.
60. ASV, AC, Raspe, R. 3644/4, fasc. 1, fol. 77.
61. ASV, XL, Parti, R.17, fols. 77–77v.
62. This dispute may relate to a loan the two brothers had taken from their
mother’s dowry in 1372: ASV, Cancelleria Inferiore, B. 187 (N. Sajabianca), fasc. 2,
fol. 5v.
63. ASV, SM, R. 39, fol. 114v.
65. 8 August: 36 aye, 4 nay, 49 abstentions; 37 aye, 4 nay, 48 abstentions; 17
August: 38 aye, 11 nay, 57 abstentions; 43 aye, 6 nay, 58 abstentions.
66. 21 August: 31 aye, 9 nay, 24 abstentions; a note in the trial record explains
that when a vote in the Senate reaches the third day the abstentions are no longer
counted.
67. ASV, Notatorio Collegio, R. 2, fol.76v, no. 240.
68. ASV, Grazie, R. 17, fol. 229.
70. ASV, AC, Raspe, R. 3646/6, fasc. 3, fols. 107–107v; ASV, SM, R. 51, fols.
132r–v.
71. ASV, AC, Raspe, R. 3646/6, fasc. 2, f.103v–104; ASV, SM, R., 51, fols. 116v–
117.
73. Ibid., 3644/4, fasc. 1, fol. 12.
74. The literature on the myth is enormous: in addition to Queller, Venetian
Patriciate, see most recently Elisabeth Crouzet-Pavan, Venise triomphante: Les hori-
Authenticated
zons d’un mythe (Paris: 1999), trans. Lydia G. Cochrane, Venice Triumphant: The
Horizons of a Myth (Baltimore, 2002).
Chapter 13. Licit and Illicit in the Rhetoric of the Investiture Conflict
1. Carl Erdmann, The Origin of the Idea of Crusade, trans. Marshall Baldwin
and Walter Goffart (1935; rpt. Princeton, N.J., 1977). More recently, see the essays in
Patrick Murphy, ed., The Holy War (Columbus, Oh., 1976). The collected essays of
the following scholars are also indispensable for the topics of crusade, holy war, and
the period of the Gregorian reform: James Brundage, The Crusades, Holy War, and
Canon Law (Aldershot, 1991); H. E. J. Cowdrey, The Crusades and Latin Monasti-
cism, 11th–12th Centuries (Aldershot, 1999); Robert Somerville, Papacy, Council and
Canon Law in the 11th–12th Centuries (Aldershot, 1990).
2. Recent complementary portraits of these two figures are I. S. Robinson,
Henry IV of Germany, 1056–1106 (Cambridge, 1999); H. E. J. Cowdrey, Pope Gregory
VII, 1073–1085 (Oxford, 1998).
3. An excellent introduction to the events and issues of the investiture contro-
versy is Uta-Renate Blumenthal, The Investiture Controversy: Church and Monarchy
from the Ninth to the Twelfth Century (Philadelphia, 1988). See also Colin Morris,
The Papal Monarchy: The Western Church from 1050 to 1250 (Oxford, 1989), chaps.
4–7; I. S. Robinson, The Papacy, 1073–1198 (Cambridge, 1990).
4. The twenty-seven theses that make up the Dictatus papae may have formed
a table of contents for a planned but not completed canonical collection. For a dis-
cussion of the relationship of this work to Gregory’s larger program of moral re-
form, see Cowdrey, Pope Gregory VII, 502–7.
5. The events of 1076–77, and especially the penitential episode at Canossa,
have been much written about regarding their significance for church-state rela-
tions. In addition to Cowdrey, Pope Gregory, 158–67, see most recently Stefan
Weinfurter, Canossa: Die Entzauberung der Welt (Munich, 2006).
6. Holy Roman Emperor Frederick I Barbarossa (r. 1152–90), for example,
was severely at odds with Pope Alexander III, who excommunicated the emperor
in 1160. During his reign, Frederick launched no less than six campaigns into Italy
in the hopes of subduing Rome.
7. For surveys of this literature, see I. S. Robinson, Authority and Resistance in
the Investiture Contest: The Polemical Literature of the Eleventh Century (Manchester:
1978); and K. J. Leyser, ‘‘The Polemicists of the Papal Revolution,’’ in his Medieval
Germany and Its Neighbours, 900–1250 (London, 1982), 138–60.
8. Leyser, ‘‘The Polemicists of the Papal Revolution,’’ 138.
9. Carl Mirbt, Die Publizistik im Zeitalter Gregors VII (Leipzig, 1894), 86. Edi-
tions of many of these polemics can be found in the three volumes Libelli de litte
imperatorum et pontificum in the MGH series (hereafter Libelli).
10. See Robinson, Authority and Resistance, chap. 2.
11. Wibert’s text has not survived, but the essentials of his argument can be
reconstructed from the references and direct quotations supplied in the works of
Anselm of Lucca and Wido of Ferrara.
Authenticated
12. Sigebert of Gembloux, Apologia contra eos qui calumniantur missas coniu-
gatorum, in Libelli, 2: 438.
13. See Carl Erdmann, ‘‘Untersuchungen zu den Briefen Heinrichs IV,’’ Ar-
chiv fur Urkundenforschung 16 (1936): 218; Erdmann, ‘‘Die Anfänge der staatlischen
Propaganda im Investiturstreit,’’ Historische Zeitschrift 154 (1936): 491–512.
14. Robinson, Authority and Resistance, 10.
15. Brian Tierney, The Crisis of Church and State (Englewood Cliffs, N.J.,
1964).
16. Maureen C. Miller, Power and the Holy in the Ages of the Investiture Con-
flict: A Brief History with Documents (Boston, 2005), 26.
17. Kathleen G. Cushing, Papacy and Law in the Gregorian Revolution: The
Canonistic Works of Anselm of Lucca (Oxford, 1998).
18. Gregory VII, Registrum, MGH Epistolae selectae 2, I.7, 11–12; trans. in
H. E. J. Cowdrey, ed., The Register of Gregory VII, 1073–1085: An English Translation
(Oxford, 2002), 7–8.
19. Gregory VII, Registrum II.49, 189; Cowdrey, Register of Gregory VII, 139.
20. Werner Goez, ‘‘Zur Erhebung und ersten Absetzung Papst Gregors VII,’’
Römische Quartalschrift 63 (1968): 142. On the monastic background of Gregory’s
idea of obedience, see K. J. Benz, ‘‘Die Regula Benedicti in den Briefen Gregors
VII,’’ in Itinera Domini. Gesammelte Aufsätze aus Liturgie und Mönchstum. Emman-
uel von Severus OSB zur Vollendung des 70. Lebensjahres am 24. August 1988 dargebo-
ten (Munich, 1988), 263–79.
21. Gregory VII, Registrum II.45, 183–84.
22. Registrum II.5, 130.
23. Epistolae collectae, Bibliotheca rerum Germanicarum, 46, 572–73.
24. On Gregory VII’s place in the mounting rhetoric of ecclesiastical war, see
Erdmann, The Origin of the Idea of Crusade, chap. 5. For a more nuanced appraisal
of Gregory’s practical engagement in warfare, see Cowdrey, Pope Gregory VII, esp.
650–58.
25. James Brundage, ‘‘Holy War and the Medieval Lawyers,’’ in Murphy, The
Holy War, 105.
26. Gregory VII, Registrum II.55, 203. On Bernold’s knowledge of Gregory’s
above-cited letter to dukes Rudolf of Swabia and Berthold of Carinthia (n. 21), see
I. S. Robinson, ‘‘Zur Arbeitsweise Bernolds von Konstanz und seines Kreises: Unter-
suchungen zum Schlettstädter Codex 13,’’ Deutsches Archiv für Erforschung des Mit-
telalters 34 (1978): 65–82. Curiously, the Dictatus papae itself is almost never
mentioned in either the polemical literature of the Gregorian reform or the canoni-
cal collections of the late eleventh and twelfth centuries. See Cowdrey, Pope Gregory,
503.
27. Hans Martin Klinkenberg, ‘‘Die Theorie der Veränderbarkeit des Rechts
im frühen und hohen Mittelalter,’’ in Lex et Sacramentum im Mittelalter, ed. Paul
Wilpert (Berlin, 1969), 167.
28. See especially Richard H. Helmholz, The Spirit of Classical Canon Law
(Athens, Ga., 1996).
29. Sigebert of Gembloux, Epistola Leodicensium adversus Paschalem papam,
MGH Libelli, 2: 462.
Authenticated
30. Benzo of Alba, Ad Heinricum IV. imperatorem libri VII. Sieben Bücher an
Kaiser Heinrich IV., ed. H. Seyffert, MGH Scriptores rerum germanicarum in usum
scholarum separatim editi 65 (Hannover, 1996), 584–86.
31. Ibid., 588.
32. On Bonizo’s significance for the pre-crusade theory of ecclesiastical war,
see Erdmann, The Origin of the Idea of Crusade, 247–56.
33. For a complete biography of Bonizo, including the dates of these works
and the extant manuscripts, see Walter Berschin, Bonizo von Sutri: Leben und Werk
(Berlin, 1972). Contextual analysis of Bonizo’s works is given by Ludovico Gatto,
Bonizo de Sutri e il suo Liber ad Amicum: Ricerche sull’età gregoriana (Pescara, 1968).
34. Bonizo of Sutri, Liber ad amicum, ed. E. Dümmler, Libelli, 1: 568–620. The
Liber has recently been given its first full translation in I. S. Robinson, The Papal
Reform of the Eleventh Century: Lives of Pope Leo IX and Pope Gregory VII (Man-
chester, 2004), 158–261. See Robinson’s detailed introductory remarks at 36–63. All
translations of the Liber ad amicum are after Robinson.
35. Liber ad amicum, 571; Robinson, 158.
36. Erdmann, The Origin of the Idea of Crusade, 247–56.
37. Liber ad amicum, 572–73; Robinson, 159.
39. Ibid.
40. Liber ad amicum, 574, Robinson, 164.
44. Bonizo of Sutri, Liber de vita christiana, ed. E. Perels (Berlin, 1930), VII.29,
249–50.
45. On Matilda’s political role and her relationship to Gregory VII, see Cow-
drey, Pope Gregory VII, esp. 296–307. See also I. S. Robinson, ‘‘The Friendship Net-
work of Gregory VII,’’ History 63 (1978): 1–22.
48. On the implausible character of Bonizo’s report, see Augustin Fliche, La
réforme grégorienne Geneva, 1978), 2: 67, n. 2; F. Lerner, Kardinal Hugo Candidus
(Munich, 1931), 49–50.
49. Bonizo of Sutri, Liber de vita christiana, IV.45, 133.
50. Liber ad amicum, 615–17; Robinson, 252–56.
52. Ibid. The full Latin text reads, ‘‘que si licuit pro terreno rege, non libebit
pro celesti? Si licuit pro re publica, non licebit pro iusticia? Si licuit contra barbaros,
non licebit contra hereticos?’’
53. See Hans Eberhard Meyer, The Crusades, trans. John Gillingham (Oxford,
1990), 19. Most recently, Bonizo’s Liber de vita christiana is cited in Christopher
Tyerman, God’s War: A New History of the Crusades (Cambridge, Mass., 2006), 47.
54. Marcus Bull, Knightly Piety and Lay Response to the First Crusade (Oxford,
1993).
Authenticated
55. Yves de Chartres, Correspondence, ed. Jean Leclerq (Paris, 1949), 1, no. 60,
248–51. English translation in Miller, Power and the Holy, 118.
56. Correspondence, 238–39; Miller, 116.
57. One may note in passing that not unlike Bonizo’s discussion of the legal
justification for waging war, Ivo’s very relevant statement connecting the obedience
of church law and the possibilities for transgression come not from his canonical
collection, for which he is most known, but from a letter addressing current events.
58. See Helmholz, The Spirit of Classical Canon Law; Kenneth Pennington,
The Prince and the Law, 1200–1600: Sovereignty and Rights in the Western Legal Tra-
dition (Berkeley, Calif., 1993). The relation between rhetoric and law in a later con-
text has recently been explored in Victoria Kahn and Lorna Hutson, eds., Rhetoric
and Law in Early Modern Europe (New Haven, Conn., 2001).
Chapter 14. Satisfying the Laws: The Legenda of Maria of Venice
1. In Venice the rule encompassed male as well as female penitents, although

only women joined. Maiju Lehmijoki-Garner, ed., Dominican Penitent Women
(New York, 2005). Lehmijoki-Garner translated ‘‘Munio of Zamore: The Ordinati-
ones,’’ 39–45, as well as ‘‘The Dominican Penitent Rule,’’ 46–56.
2. Fernanda Sorelli, La Santità Imitabile: ‘‘Leggenda di Maria da Venezia’’ di
Tommaso da Siena (Venice, 1984) (hereafter Leggenda). See also her ‘‘Per la storia
religiosa di Venezia nella prima metà del quattrocento: inizi e sviluppi del terz’or-
dine domenicano,’’ in Viridarium Floridum, Studi di storia veneta offerti dagli allievi
a Paolo Sambin, ed. Maria Chiara Billanovich, Giorgio Cracco, and Antonio Rigon
(Padua, 1984), 89–114; and her ‘‘Imitable Sanctity: The Legend of Maria of Venice,’’
in Women and Religion in Medieval and Renaissance Italy, ed. Daniel Bornstein and
Roberto Rusconi, trans. Margery J. Schneider (Chicago, 1996), 165–81.
3. Daniel Bornstein, trans., ‘‘Thomas of Siena: The Legend of Maria of Venice,’’
in Lehmijoki-Garner, Dominican Penitent Women, 105–76. See Dyan Elliott, Proving
Woman: Female Spirituality and Inquisitional Culture in the Later Middle Ages
(Princeton, N.J., 2004); Daniel Bornstein, ‘‘Spiritual Kin and Domestic Devotions,’’
in Gender and Society in Renaissance Italy, ed. Judith C. Brown and Robert C. Davis
(New York, 1998), 173–92.
4. Manlio Bellomo, La condizione giuridica della donna in Italia: Vicende
antiche e moderne (Turin, 1970); Giorgio Zordan, ‘‘I vari aspetti della comunione
familiare di beni nella Venezia del secoli XI–XII,’’ Studi veneziani 8 (1966): 127–94.
5. R. Corso, ‘‘Patti d’amore: I doni nuziali,’’ Revue d’ethnographie et de socio-
logie 2 (1911): 228–54; Enrico Besta, La famiglia nella storia del diritto italiano (Milan,
1962); Diane Owen Hughes, ‘‘From Brideprice to Dowry in Mediterranean Europe,’’
Journal of Family History 8 (1978): 262–96.
6. For the law of 1360 concerning wedding gifts and dowries in effect in Ma-
ria’s lifetime, see Samuele Romanin, ed., Storia documentata di Venezia, 3rd ed.
(Venice, 1973), 3: 280–83. For the church view of grounds for marriage, see Charles
Donahue, ‘‘The Policy of Alexander the Third’s Consent Theory of Marriage,’’ in
Authenticated
Proceedings of the Eighth International Congress of Medieval Canon Law, 1976, 251–81;
John T. Noonan, ‘‘Power to Choose,’’ Viator 4 (1973): 419–34. On victus et vestitus,
see Donald Queller, ‘‘A Different Approach to the Pre-Modern Cost of Living:
Venice, 1372–1391,’’ Journal of European Economic History 25 (1996): 441–64. On the
husband’s absolute authority, see Thomas of Chobham (1165–1230), Summa confes-
sorum, ed. F. Broomfield (Louvain, 1968), Art. 4, q. VIIa, c. 11, 157.
7. Lehmijoki-Garner, Dominican Penitent Women, xiii. See R. R. Post, The
Modern Devotion: Confrontation with Reformation and Humanism, Studies in
Medieval and Reformation Thought 3 (Leiden, 1968).
8. Translation, chaps. 1–4, 111–19.
9. See Linda Guzzetti, ‘‘Separations and Separated Couples in Fourteenth-
Century Venice,’’ in Marriage in Italy, 1300–1650, ed. Trevor Dean and K. J. P. Lowe
(Cambridge, 1998), 249–76.
10. Gino Luzzatto, Storia economica di Venezia dall’XI al XVI secolo (Venice,
1961), 130: mentre uno solo, Nicolò Sturion, raggiunge le 16.000 lire e figura fra I maggi-
ori commercianti al minuto. See also Sorelli, La Santità Imitabile, 105.
11. Romanin, Storia documentata di venezia, 3: 280–83.
12. Reinhold C. Mueller, The Venetian Money Market: Banks, Panics and the
Public Debt, 1200–1500, vol. 2 of Money and Banking in Medieval and Renaissance
Venice, ed. Frederic C. Lane and Reinhold C. Mueller (Baltimore, 1997).
13. Sorelli, La Santità Imitabile, 105, n. 134.
14. Ibid., 108. Sorelli found an Endrico della Piazza who sold cheese. He may
or may not have been related to Giannino.
15. Leggenda, chap. 2, 157.
16. Sorelli, La Santità Imitabile, 106.
17. Leggenda, chap, 3, 157.
18. Francis M. Kelly and Randolph Schwabe, A Short History of Costume and
Armour, Chiefly in England, 1066–1800 (London, 1931). See also Luciana Frangioni,
Chiedere e Ottenere, L’approvvigionamento di prodotti di successo della bottega Datini
di avignone nel XIV secolo (Florence, 2002), 99–166.
19. On corredi, see Susan Mosher Stuard, Gilding the Market: Luxury and
Fashion in Fourteenth-Century Italy (Philadelphia, 2006), 95–96. Stanley Chojnacki,
‘‘From Trousseau to Groomgift in Late Medieval Venice,’’ in Medieval and Renais-
sance Venice, ed. Ellen Kittell and Thomas Madden (Urbana, Ill., 1999), 141–65.
20. Margaret Newett, ‘‘Sumptuary Laws of Venice in the Fourteenth and Fif-
teenth Centuries,’’ in Historical Essays by Members of the Owens College, Manchester,
ed. T. F. Tout and James Tait (London, 1902), 245–77.
21. Translation, chap. 4, 118.
22. Stanley Chojnacki, ‘‘Dowries and Kinsmen in Early Renaissance Venice,’’
in Women in Medieval Society, ed. Susan Mosher Stuard (Philadelphia, 1976),
173–98.
23. Queller, ‘‘A Different Approach.‘‘
25. Ibid., chap. 8, 128.
26. Daniel Bornstein, ‘‘Introduction’’ to Thomas of Siena, ‘‘The Legend of
Maria of Venice,’’ 107.
Authenticated
27. Translation, chap. 6, 122–23.

30. In Florence, Monna Uliva received 14 to 16 florins selling her son’s reli-
gious paintings. Gino Corti, ‘‘Sul commercio dei quadri a Firenzo verso la fine del
secolo XIV,’’ Commentari 22 (1971): 84–91. The price might be higher for an emi-
nent artist.
31. Peter Brown, ‘‘The Saint as Exemplar in Late Antiquity,’’ Representations
2 (1983): 5.
33. Ibid., chap. 10, 136.
34. Ibid., chap. 7, 124.
35. Robert G. Calkins, Illuminated Books of the Middle Ages (Ithaca, N.Y.,
1983), 226–34; see also Richard A. Goldthwaite, Wealth and the Demand for Art in
Italy, 1300–1600 (Baltimore, 1993) 72–95.
38. Ibid., 128.
39. Ibid., chap. 13, 155.
40. Lehmijoki-Garner, Dominican Penitent Women, 48.
41. Cited in full in Dyan Elliott, ‘‘Dress as Mediator Between Inner and Outer
Self,’’ MS 53 (1991): 288.
43. Fra Paolino Minorita, Trattato de regimine rectoris, Nozze, ed. Cesare
Foucard (Venice, 1836), chap. 8, 9.
44. Francesco da Barberino, Reggimento e costumi di donna, ed. Giuseppe E.
Sansone (Turin, 1957) pt. 2, 23–36; Liliane Dulac, ‘‘Mystical Inspiration and Political
Knowledge: Advice to Widows from Francesco da Barberino and Christine de
Pizan,’’ trans. Thelma Fenster, in Upon My Husband’s Death: Widows in the Litera-
ture and Histories of Medieval Europe, ed. Louise Mirrer (Ann Arbor, Mich., 1992),
223–58.
45. Entering a convent was another solution for unmarried women. See
Guido Ruggiero, The Boundaries of Eros (Oxford, 1985), 70–88.
46. Lehmijoki-Garner, Dominican Penitent Women, 59–86, ‘‘The Legend of
Giovanna of Orvieto.’’
47. Michael Goodich, ‘‘Ancilla Dei: The Servant as Saint in the Late Middle
Ages,’’ in Women of the Medieval World: Essays in Honor of John H. Mundy, ed.
Julius Kirschner and Suzanne F. Wemple (Oxford: 1985), 119–28.
48. Anna Esposito, ‘‘St. Francesca and the Female Religious Communities of
Fifteenth-Century Rome,’’ in Bornstein and Rusconi, Women and Religion in
Medieval and Renaissance Italy, 197–218.
49. ‘‘Dominican Penitent Rule,’’ in Lehmijoki-Garner, Dominican Penitent
Women, 52–53. ‘‘The prior names two brothers who are responsible for paying a
visit to any member of their brotherhood who becomes ill. . . . The sisters do the
same with their patients.’’
50. Ibid., 48.
Authenticated
51. In 1334, in debate on sumptuary restrictions, Tomaso Soranzo introduced

a measure on the floor of the Senate limiting the length of women’s mantles to one
brachia. Roberto Cessi and Mario Brunetti, eds., Deliberationes del Consiglio dei Ro-
gati (Senato) series ‘‘mixtorum’’, Libri XV–XVI, 2: 314–16 for 26 May 1334–20 June
1334.
52. Nicolò Sturion left 300 ducats to the Monastery of Corpus Christi of Ven-
ice in his will and testament of 1400. A. S. V., Archivio notarile, Testamenti, b. 1000,
n. 429. See Sorelli, La Santità Imitabile, 233–34; see also Reinhold Mueller, The Vene-
tian Money Market: Banks, Panics and the Public Debt, 1300–1500, 507–8. Sturion
rented out a house to Gugliomo Querini (c. 1400–1468) for 50 ducats a year.
53. Gruzetti, ‘‘Separation and Separated Couples in Venice,‘‘ 272–74.
Chapter 15. Canon Law and Chaucer on Licit and Illicit Magic
1. Gratian, cols. 1019–89. Cause 26 contains 7 questions: q. 1 has one chapter

(that is, canon); q. 2 has 11 chapters, on the nature of sorcery; qq. 3–4, a double
question, has three chapters; q. 5 has 14 chapters, including c. 12, Episcopi (cols.
1030–31); the 14 chapters of q. 6 are not relevant to our subject, nor are the first 12
chapters of q. 7; but cc. 13–17 of q. 7, against observing the Kalends of January,
Egyptian Days, and other calendrical superstitions, are relevant, as is q. 7 c. 18,
Demonium sustinenti, discussed below.
2. See A. Domingues de Sousa Costa, ‘‘Animadversiones criticae in vitam et
opera canonistae Ioannis de Deo,’’ Antonianum 33 (1958): 76–124, at 99–103.
3. Johannes de Deo, Summa super quattuor causis Decretorum, produced in
1243. John’s supplement is preserved in some copies of Huguccio’s Summa; I use
that of Vatican MS lat. 2280, fols. 371–88.
4. Archdeacon Guy of Baisio, Rosarium (I use the edition of Strassbourg, ca.
1473, unfoliated).
5. William Lyndwood, Provinciale, seu Constitutiones Angliae (Oxford, 1679,
rpt. Farnborough, 1968).
6. Lyndwood, Provinciale, Book 1, title 11, chap. 1, 55: ‘‘implicite prohibentur
omnia sortilegia et omnes incantationes cum superstitionibus characterum et hu-
jusmodi figmentorum.’’
7. Lyndwood’s commentary, 55, note k, referring to Gratian, C. 26 q. 5 c. 7,
Sortes: Pope Leo IV writing to the bishops of Britain, ca. a.d. 850 (col. 1029); Gra-
tian’s dictum, His ita, after C. 26 q. 2 c. 1 (col. 1020); and q. 2 c. 2, Non statim (col.
1021), and to the rest of q. 5 (9 canons), esp. c. 6, Illud, which is an excerpt from St.
Augustine’s De doctrina Christiana (see below at n. 31), and also to the rest of Cause
26.
8. Lyndwood, note l: ‘‘Utputa, ‘in collectionibus herbarum que medicinales
sunt, aliquas observationes attendendo, nisi Symbolum vel Orationem Domini-
cam’,’’ citing Non liceat (see n. 10 below).
9. See PL 84: 574–86.
10. Gratian, C. 26 q. 5 c. 3, Non liceat Christianis (Friedberg, 1: 1027–28).
Authenticated
11. Gratian, C. 26 qq. 3–4 c. 1, Igitur (cols. 1024–25).

12. Archdeacon, on C. 26 q. 5 c. 3, Non liceat, v. medicinales.
13. Gratian, C. 26 q. 7 c. 18, Demonium (col. 1045); Theodore of Canterbury,
Penitentiale 24.233 (see Capitula collecta ex fragmentis, PL 99: 958); Burchard, De-
creta 10.50 (PL 140:851); Ivo, Decretum 11.75 (PL 161: 773).
14. Gratian, C. 26 q. 7 c. 18, heading to Demonium.
15. Archdeacon on C. 26 q. 7 c. 18, Demonium, v. petras: ‘‘Arguitur quod lap-
ides pretiose virtutes habent. De herbis satis probatum est.’’
16. Gratian, C. 26 q. 7 c. 15, Ammoneant (col. 1045). It comes from the Third
Council of Tours (ca. a.d. 813), c. 42; for a text, see PL 97: 892–93.
17. Archdeacon on C. 26 q. 7 c. 15, Ammoneant, v. incantationes: ‘‘De quibus
loquitur Lex, ff. De variis et extraordinariis cognitionibus, lege 1 [Preses], in principio
[Dig. 50.13.1.3] (La. [that is, attributing this reference to Laurentius Hispanus, ca.
1215]). Et nota quod dicit, ‘magicas artes et incantationes,’ nam secus est de aliis
verbis, nam virtus est in verbis, herbis, et lapidibus, secundum Jo. De., ut dixi supra,
eadem [causa], quest. v, [cap. 3,] Non lice[a]t.’’ The law cited, Preses (or Praeses in
its classical spelling), reads in part: ‘‘Non tamen si incantavit, si imprecatus est, si,
ut vulgari verbo impostorum utar, si exorcizavit; non sunt ista medicinae genera’’
(I use the edition of John Fehius of Gansdort, Corpus juris civilis cum glossa ordina-
ria, 6 vols. [Lyon, 1627, rpt. Osnabrück 1965–66], 3: 1781). That is, ‘‘Not, however, if
he says incantations, if he curses, if he exorcizes (to use a popular word of impos-
tors); these are not forms of medicine.’’
18. John of God, Summa on C. 26 q. 7 c. 15, Ammoneant (fol. 388): ‘‘secus
autem in aliis verbis, quia virtus [est] in verbis et in herbis et lapidibus. De herbis
habes supra, eadem [causa], quest. v, [cap. 3,] Non liceat, et apud Ovidium [x]iiii:
‘Utere temptatis operose viribus herbe’; de verbis habes supra, eadem, quest. v, Nec
mirum [C. 26 q. 5 c. 14]; de lapidibus habes infra, eadem [causa, quest. ultima], cap.
ultimo [C. 26 q. 7 c. 18, Demonium].’’
19. Gratian, C. 26 q. 5 c. 14, Nec mirum (cols. 1032–36); Hrabanus Maurus, De
magorum praestigiis, PL 110: 1095–1110, specifically 1097–1101. The first part of the
canon, from the introductory section through § 7, is taken verbatim from Isidore,
Etymologiae 8.9, De magis, cc. 4, 7–12, 30–35 (PL 82: 311–14).
20. John of God, Summa on C. 26 q. 5 c. 14, Nec mirum (fol. 386): ‘‘Secunda
parte ponit quia Dominus hoc permittit, scilicet, ut boni probentur et mali amplius
confundantur; et dicit quod verba tunc habent efficaciam, ut cum verba profer-
untur, ymaginas apparent ex divina providencia.’’
21. Gratian, C. 26 q. 5 c. 14, Nec mirum (⳱ Hrabanus), § 9 (col. 1034).
22. John of God, loc. cit.: ‘‘Insunt enim rebus corporeis. Nota quod verba ha-
bent virtutem, scilicet ut dictis verbis appareant quedam ymagines ex vi verborum.
Et queritur utrum sit peccatum hoc faciens, et dicunt quidam quod non, alii econ-
tra. Solutio: si malo animo faciat, scilicet causa ultionis, vel luxurie, vel cupiditatis,
vel laudis, mortale est; si autem faceret [causa] experiendi vires verborum tantum,
non esset mortale, quia omnis scientia a Deo (omnis sci’a adō), supra, eadem questi-
one, Non Liceat.’’ It may be that the abbreviation that I read as sci’a and expand as
scientia should be sa’a and expanded as sapientia. This would be in keeping with
Authenticated
the cited canon, Non liceat, at the end of which it is said that God gives weavers the
sapientia for their skill.
23. Lyndwood, note m, citing the canons Illud (Augustine; see nn. 29–31
below) and Non liceat.
24. Ibid., note n, citing Archdeacon on Non liceat; Archdeacon in turn cites
Thomas (Aquinas).
25. Ibid., note o, citing Archdeacon on Non liceat, who cites ‘‘Criso.,’’ proba-
bly John Chrysostom.
26. Ibid., citing William of Rennes’s commentary on Raymund of Pennafort’s
Summa de casibus and John of Freiburg’s Summa confessorum, and directing us to
Henry Bouhic (d. 1350), Distinctiones super quinque libros Decretalium, on book 5,
title 21, De sortilegiis, chap. 1 (Friedberg, 2: 822), Distinction 1. Bouhic’s work was
printed in Lyon, 1498; there is a copy in the Huntington Library (incun. 4750).
27. All references are to The Riverside Chaucer, ed. Larry D. Benson (Boston,
1987). See Franklin’s Tale, Canterbury Tales, 5.1154–55: ‘‘thise moones mansions . . . /
Or oother magik natureel.’’
28. Sir Gawain and the Green Knight, ed. J. R. R. Tolkien and E. V. Gordon,
2nd ed., ed. Norman Davis (Oxford, 1968), vv. 1849–54.
29. Augustine, De doctrina christiana 2.20.31 (PL 34:50): ‘‘redire ad lectum, si
quis dum se calceat sternutaverit.’’ For a translation, see A Select Library of Nicene
and Post-Nicene Fathers of the Christian Church, ser. 1, 14 vols. (New York, 1891–
1909, rpt. Grand Rapids, Mich., 1983), vol. 2 (also online); the quoted phrase is ren-
dered: ‘‘to go back to bed if any one should sneeze when you are putting on your
slippers.’’
30. Ibid., cols. 50–51: ‘‘cum vestis a soricibus roditur, plus tremere suspicione
futuri mali quam praesens damnum dolere’’ (‘‘when your clothes are eaten by mice,
to be more frightened at the prospect of coming misfortune than grieved by your
present loss’’).
31. Gratian, Cause 26 q. 2 c. 6, Illud (Friedberg, 1: 1021–22).
32. Three Receptaria from Medieval England: The Language of Medicine in the
Fourteenth Century, ed. Tony Hunt with Michael Benskin (Oxford, 2001). R ⳱ Ox-
ford, Bodleian MS Rawlinson C 814 (first half of 14th century); C ⳱ the first of the
two compendia in Cambridge, Corpus Christi College MS 388 (c. 1320–30).
33. Ibid., R 74, 17; C 237, 110.
34. Ibid., R 74, 16.
35. Ibid., C 235, 110.
36. Ibid., C 655, 148.
37. I elaborate on this subject in my book, Satan: A Biography (Cambridge,
2006), 257–60.
38. George Lyman Kittredge, Witchcraft in Old and New England (Cambridge,
Mass., 1929), chap. 11: ‘‘Mirrors and Thieves,’’ 185–203.
39. See H. A. Kelly, ‘‘English Kings and the Fear of Sorcery,’’ MS 39 (1977)
206–38, rpt. in Inquisitions and Other Trial Procedures in the Medieval West (Alder-
shot, 2002), chap. 7, 210–12.
40. See the Middle English Dictionary (MED), s.v. ‘‘wight.’’
41. Hunt, Three Receptaria, R 91, 17.
Authenticated
42. Ibid., C 589, 140–41.

43. Ibid., C 654, 148.
44. MED s.v. ‘‘veri(e),’’ ‘‘wari.’’
45. MED s.v. ‘‘night-mare.’’
46. Robert Grosseteste, Scriptum est de levitis, excerpted by Siegfried Wenzel
from Oxford, Bodley MS 36 (first half of the thirteenth century; a similar text, he
says, is in MS Digby 191, of a half century later), ‘‘Two Notes on Chaucer and Gros-
seteste,’’ Notes and Queries 215 (1970): 449–51.
47. André Duval, ‘‘Rosaire,’’ Dictionnaire de Spiritualité (Paris, 1988), 13: 937–
80, col. 946. Duval notes that the term Rosarium is found attached for the first time
now to sets of beads, specifically those on which 50 Aves were said. Before this time,
Rosarium was applied to books: see the Archdeacon’s Rosarium, cited above, and
Arnold of Villanova’s Rosarium, cited by Chaucer, Canon’s Yeoman’s Tale 8.1428–29.
48. Thomas Hoccleve, ‘‘The Story of the Monk Who Clad the Virgin by Sing-
ing Ave Maria,’’ Minor Poems, EETS es 61, 73 (rev. 1970), 290–93.
49. Henry Thomas Riley, Memorials of London and London Life in the Thir-
teenth, Fourteenth, and Fifteenth Centuries (London, 1868), 455.
50. MED s.v. ‘‘gaud,’’ 2.
51. Lyndwood 3.23.8 (237 note a).
Chapter 16. Law, Magic, and Science: Constructing a Border Between Licit and
Illicit Knowledge in the Writings of Nicole Oresme
1. It was as Edward Peters’s student in graduate school that I first came to see
the profound and widespread effects of law and legal development in the medieval
period. For this and for the gift of many other insights that still guide my work, I
am deeply grateful to him.
2. Peters, Magician, esp. 1–20; Richard Kieckhefer, Magic in the Middle Ages
(Cambridge, 1990), 19–56. Augustine’s most influential statements identifying
magic with demonic invocation are found in his De doctrina Christiana, Bk. 2, chs.
19–24; De civitate Dei, 10, 18, 19. Selections from Augustine’s writings on the subject
are in Alan Charles Kors and Edward Peters, Witchcraft in Europe, 400–1700: A Doc-
umentary History (Philadelphia, 2001). On Gratian’s treatment of magic and its con-
tinuation in canon law, see Peters, Magician, 72–78.
3. On the critical distinction between compelling and beseeching supernatural
powers, see Peters, Magician, xv; Kieckhefer, Magic, 69–71, 79–80, 166–67; Karen
Jolly, ‘‘Medieval Magic: Definitions, Beliefs, Practices,’’ in Jolly et al., Witchcraft and
Magic in Europe, vol. 2, The Middle Ages, ed. Bengt Aknarloo and Stuart Clark (Phil-
adelphia, 2002), 8.
4. The essential connection between magic and the production of practical
effects is considered over the whole of Lynn Thorndike’s monumental A History of
Magic and Experimental Science, 8 vols. (New York, 1923–58, rpt. 1964), with a con-
cise statement, 2: 651–52. See also Bert Hansen, ‘‘The Complementarity of Science
and Magic Before the Scientific Revolution,’’ American Scientist 74 (1986): 128–36,
esp. 128–32.
Authenticated
5. For a case that illustrates this paradoxical situation, Kieckhefer, Magic, 85.
6. David Pingree, ‘‘The Diffusion of Arabic Magical Texts in Western Eu-
rope,’’ in La diffusione delle scienze Islamiche nel Medio Evo Europeo, ed. Biancama-
ria Scarcia Amoretti (Rome: 1987), 57–102.
7. Steven J. Williams, The Secret of Secrets: The Scholarly Career of a Pseudo-
Aristotelian Text in the Latin Middle Ages (Ann Arbor, Mich., 2003); Charles Bur-
nett, ‘‘Arabic, Greek, and Latin Works on Astrological Magic Attributed to Aris-
totle,’’ in Pseudo-Aristotle in the Middle Ages, ed. Jill Kraye, W. F. Ryan, and C. B.
Schmitt (London, 1987), 84–96.
8. For the common classification of automata and marvelous mechanical ef-
fects as forms of magic, see Hansen, ‘‘Complementarity,’’ 128–30; Kieckhefer, Magic,
100–102.
9. Peters, Magician, 66–67. For the instructive case of Peter of Abano, see
Graziella Federici Vescovini, ‘‘Peter of Abano and Astrology,’’ in Astrology, Science,
and Society: Historical Essays, ed. Patrick Curry (Woodbridge, 1987), 19–39, esp. 20–
23, 27–29. For the case of Michael Scot, see Richard Dales, The Scientific Achievement
of the Middle Ages (Philadelphia, 1973), 156.
10. The classic treatment of Bacon’s relationship to magic is Thorndike, His-
tory of Magic, 2: 616–79. See also Lynn Thorndike, ‘‘The True Roger Bacon, II’’ AHR
21 (1916): 468–80; Jeremiah Hackett, ‘‘Roger Bacon on Astronomy-Astrology: The
Sources of the Scientia Experimentalis,’’ in Roger Bacon and the Sciences: Commemo-
rative Essays, ed. Jeremiah Hackett (Leiden, 1997), 175–98, esp. 179–92; Dales, Scien-
tific Achievement, 161–63.
11. Thorndike, ‘‘True Roger Bacon,’’ 476; History of Magic, vol. 2, 656.
12. Since Bacon believed that efficacy lay primarily in the exploitation of natu-
ral forces, Thorndike (History of Magic, 2: 678; ‘‘True Roger Bacon,’’ 478–79) classi-
fies him as an early proponent of ‘‘natural magic’’ (as opposed to demonic magic),
a tradition that began in the thirteenth century and continued to gather strength
into the seventeenth century. On natural magic, see Peters, Magician, 95–98; Kieck-
hefer, Magic, 66–70.
13. Bacon, Opus Maius, ed. J. H. Bridges, 3 vols. (Oxford, 1897–1900), 1: 396;
trans. Dales, Scientific Achievement, 162–63.
14. Peters, Magician, 123 ff. See also Hilary M. Carey, ‘‘Astrology at the English
Court in the Later Middle Ages,’’ in Curry, Astrology, 41–56. The trial and execution
in 1327 of the mathematician/astrologer Cecco D’Ascoli for his arguments support-
ing astrological determinism—the first such of a university master on this
charge—is a good indication of the growing reaction and fear in this period.
15. For Oresme’s biography, see A. D. Menut’s introduction to his edition,
Maistre Nicole Oresme: Le livre de politiques d’Aristote, Transactions of the American
Philosophical Society n.s. 60, pt. 6 (Philadelphia, 1970); De proportionibus propor-
tionum and Ad pauca respicientes, ed. and trans. Edward Grant (Madison, Wis.,
1966), 3–10.
16. Jeannine Quillet, Charles V, le roi lettré: Essai sur la pensée politique d’un
règne (Paris, 1984), 96–114; Joan Cadden, ‘‘Charles V, Nicole Oresme, and Christine
de Pizan: Unities and Uses of Knowledge in Fourteenth-Century France,’’ in Texts
and Contexts in Ancient and Medieval Science, ed. Edith Sylla and Michael McVaugh
Authenticated
(Leiden, 1997), 208–44. Christine de Pizan’s father, Tommasso, was the chief astrol-
oger at Charles’s court and one of the king’s most trusted and valued counselors.
17. For a sense of the size and authority of the tradition Oresme was attacking,
see Richard Lemay, ‘‘The True Place of Astrology in Medieval Science and Philoso-
phy: Towards a Definition,’’ in Curry, Astrology, 57–73.
18. There is a large literature on this. See, for example, Edward Grant, ‘‘Nicole
Oresme on Certitude in Science and Pseudo-Science,’’ in Nicolas Oresme: Tradition
et innovation chez un intellectuel du XIVe siècle, ed. P. Souffrin and A. Ph. Segonds
(Paris, 1988), 31–43; Stefano Caroti, ‘‘Nicole Oresme’s Polemic Against Astrology in
His Quodlibeta,’’ in Curry, Astrology 75–93.
19. Jeannine Quillet, ‘‘Enchantements et désenchantements de la Nature
selon Nicole Oresme,’’ in Mensch und Natur im Mittelalter, ed. Albert Zimmerman
and Andreas Speer (Berlin, 1991), 321–29.
20. Bert Hansen, Nicole Oresme and the Marvels of Nature: A Study of His De
causis mirabilium with Critical Edition, Translation, and Commentary (Toronto,
1985); Oresme, Nicole Oresme and the Medieval Geometry of Qualities and Motions,
ed. and trans. Marshall Clagett (Madison, Wis., 1968).
21. Reasons have been presented for dating the De causis either to the mid-
1350s or to 1370 (De causis, 43–48). The De configurationibus was written certainly
before 1360 and most probably between 1351 and 1355.
22. De causis, 136–37. Notice from the very beginning Oresme’s linking of as-
trology, magic, and superstitious credulity.
23. Hansen (De causis, 64–70) illustrates the long history of naturalism and
skepticism about marvels in Greek, early Christian, Islamic, and Latin culture be-
fore and after Oresme.
24. Grant, ‘‘Nicole Oresme on Certitude,’’ 32.
25. De causis, 224–25.
26. Thorndike, who devotes three chapters of A History of Magic, vol. 3, to a
fine summary of Oresme’s criticism of astrology, magic, and claims for the miracu-
lous (History, 3: 398–471) makes this point concerning Oresme’s credulity and the
resulting ‘‘half-way’’ nature of his critique (at 438). See also Dana Durand, ‘‘Nicole
Oresme and the Mediaeval Origins of Modern Science,’’ Speculum 16 (1941): 167–85,
at 172.
27. De configurationibus, II, chap. 26, 338–39. Clagett adds the qualifier ‘‘geo-
metrical.’’
28. De config., 234–35.
29. For these and other examples, De config., Pt. I, chaps. 25–32, 234–51. For
the naturalistic explanation of the efficacy of certain incantations, Pt. II, chap. 33,
366–69.
30. Durand, ‘‘Nicole Oresme and the Mediaeval Origins,’’ 172.
31. For previous studies on the history of this equation in the history of sci-
ence, see William Eamon, ‘‘From the Secrets of Nature to Public Knowledge: The
Origins of the Concept of Openness in Science,’’ Minerva 23 (1985): 321–47; Ernan
McMullin, ‘‘Openness and Secrecy in Science: Some Notes on Early History,’’ Sci-
ence, Technology, and Human Values 10 (1985): 14–23; Pamela Long, ‘‘The Openness
of Knowledge: An Ideal and Its Context in 16th-Century Writings on Mining and
Authenticated
Metallurgy,’’ Technology and Culture 32 (1991): 318–55. Neither these general studies
nor the writings on Oresme that I have consulted have noted his important contri-
butions to this equation.
32. De config., 340–41.
33. Ibid., 354–55.
34. Ibid., 372–73. This and other statements (e.g., De causis, 264–65) speak to
what Stefano Caroti (‘‘Oresme’s Polemic,’’ 87) calls Oresme’s ‘‘confessed perplexity
about the existence of demons.’’ See also Grant, ‘‘Nicole Oresme on Certitude,’’ 32;
Thorndike, History of Magic, 3: 438, 466.
35. De config., 352–53. Thorndike, History of Magic, 3: 430.
36. Long, ‘‘Openness,’’ 318–21; Karma Lochrie, Covert Operations: The Medie-
val Uses of Secrecy (Philadelphia, 1999), 93–98, 131–34; Jolly, ‘‘Medieval Magic,’’ 53–
66. On the strength and persistence of this tradition, see William Eamon, Science
and the Secrets of Nature: Books of Secrets in Medieval and Early Modern Culture
(Princeton, N.J., 1994), 38–90.
37. On the halting progress of openness as a scientific ideal in the seventeenth
century, see Steven Shapin, ‘‘The House of Experiment in Seventeenth-Century En-
gland,’’ Isis 79 (1988): 373–404.
38. E.g., Robert Mathiesen, ‘‘A Thirteenth-Century Ritual to Attain the Be-
atific Vision from the Sworn Book of Honorius of Thebes,’’ in Conjuring Spirits:
Texts and Traditions of Medieval Ritual Magic, ed. Claire Fanger (University Park,
Pa., 1998), 143–62, esp. 151–56.
39. On the requirements of purity and secrecy, see, for example, Peters, Magi-
cian, 110–11; Kieckhefer, Magic, 130–44; Kieckhefer, ‘‘The Holy and the Unholy:
Sainthood, Witchcraft, and Magic in Late Medieval Europe,’’ Journal of Medieval
and Renaissance Studies 24 (1994): 355–85, at 377–79; and for the private as a sign
separating magic from religion, R. Kieckhefer, ‘‘The Specific Rationality of Medieval
Magic,’’ AHR 99 (1994): 813–36, at 830.
40. Kieckhefer, Magic, 105–15.
41. Oresme, for example, warns young men to avoid the sight of unchaste
women, lest their noble minds be possessed and indelibly polluted, ‘‘and by this
rendered unsuitable for religious visions and other studious undertakings.’’
42. Eamon, Science and the Secrets, 23; McMullin, ‘‘Openness and Secrecy,’’
14. On connections between Greek law and science in reference to the ideal of open-
ness, see G. E. R. Lloyd, Magic, Reason and Experience: Studies in the Origin and
Development of Greek Science (Cambridge, 1979); Lloyd, Demystifying Mentalities
(Cambridge, 1990), 60–65.
43. See, for example, De causis, 136–39, 276–79. On this subject, Quillet, ‘‘En-
chantements,’’ 322–25; Caroti, ‘‘Oresme’s Polemic,’’ 78–79. Hansen (De causis, 74–
75) notes the history of this rule within scholastic natural philosophy before
Oresme.
44. The one notable exception to Oresme’s valorization of the common is his
deep suspicion of general rumor or fama. On this, see Thorndike, History of Magic,
3: 454.
45. The literature on the common good is considerable, e.g., Thomas Esch-
mann, ‘‘A Thomistic Glossary on the Principle of the Pre-eminence of the Common
Authenticated
Good,’’ MS 5 (1943), 123–65; and more recently for the scholastic precursors to Ore-
sme, M. S. Kempshall, The Common Good in Late Medieval Political Thought (Ox-
ford, 1999). For the connection between the ideal of the common good and the
progress of scientific speculation in the thirteenth and fourteenth centuries, see my
Economy and Nature in the Fourteenth Century: Money, Market Exchange, and the
Emergence of Scientific Thought (Cambridge, 1998), 152–58, 229–31.
46. The richest study of Oresme’s attachment to this ideal is Susan Babbitt,
Oresme’s Livre de Politiques and the France of Charles V, Transactions of the Ameri-
can Philosophical Society 75, pt. 1 (1985), esp. 69–97.
47. See Kaye, Economy and Nature, 29–31, 236–44.
48. The judgment is Babbitt’s, Oresme’s Livre de Politiques, 96. Cadden
(‘‘Charles V, Nicole Oresme,’’ 223, 30) suggests a broad connection between Ore-
sme’s critique of astrology at the court of Charles V and his championing of the
common good.
49. ‘‘Le Roy a voulu, pour le bien commun, faire les translater en françois,
afin que il et ses conseilliers et autres les puissent mieulx entendre.’’ Le livre de
Ethiques d’Aristote, ed. A. D. Menut (New York, 1940), Prologue, 99; Babbit, Ore-
sme’s Livre de Politiques, 89. Oresme’s were the very first vernacular translations
(with commentaries) of complete works of Aristotle—Ethics, Politics, (Pseudo) Eco-
nomics, On the Heavens—and as such are among his most noteworthy accomplish-
ments.
50. Politiques, ed. Menut, 78b; Babbit, Oresme’s Livre de Politiques, 84.
51. Politiques, ed. Menut, 112a; Babbitt, Oresme’s Livre de Politiques, 81.
52. The Latin version of this work has been edited and translated by Charles
Johnson, The ‘‘De Moneta’’ of Nicholas Oresme and English Mint Documents (Lon-
don: 1956). For Oresme’s own French translation, Traictie de la première invention
des monnoies de Nicole Oresme, ed. Louis Wolowski (Paris, 1864). On the connec-
tions between Oresme’s economic thought and political thought around the ideal
of the common good, see Denis Menjot, ‘‘La politique monétaire de Nicolas Ore-
sme,’’ in Souffrin and. Segonds, Nicolas Oresme, 179–93; Cary J. Nederman, ‘‘Com-
munity and the Rise of Commercial Society: Political Economy and Political Theory
in Nicholas Oresme’s De moneta,’’ History of Political Thought 21 (2000): 1–15; Kaye,
Economy and Nature, 155–56.
53. De moneta, chap. 6, 10–11.
54. Dig. 35.2.63; 9.2.33.
55. Ethiques, ed. Menut, 279. See Claire Richter Sherman, ‘‘Some Visual
Definitions in the Illustrations of Aristotle’s Nicomachean Ethics and Politics in the
French Translations of Nicole Oresme,’’ Art Bulletin 59 (1977): 320–30, at 326.
56. Politiques, ed. Menut, 142a.
57. ST I, II , 90, 2. I have consulted the translation of the Fathers of the En-
glish Dominican Province (Westminster, Md.: 1981). See also ST I, II, 90, 4; I, II, 96.
1; II, II, 33, 6; II, II, 58, 1. For the identification of law with the common good in
canon law, see Gratian, Decretum, D.4 c.2.
58. ST I, II, 90, 4. For an early statement of this principle in canon law, see the
preface to the Pseudo-Isidorian Decretals (c. 850), in Prefaces to Canon Law Books in
Latin Christianity: Selected Translations, 500–1245, ed. and trans. Robert Somerville
Authenticated
and Bruce Brasington (New Haven, Conn., 1998), 85: ‘‘since although certain things
might be true, yet unless they are demonstrated with sure evidence, proven in open
investigation, and made public in a judicial proceeding, they ought not to be be-
lieved by judges.’’ See also Gratian, Decretum, D.4 dictum post c.3.
59. Cod. 5.59.5.2: ‘‘Quod omnes similiter tangit ab omnibus comprobetur.’’
See also ST I, II, 90, 3.
60. Kenneth Pennington, The Prince and the Law, 1200–1600: Sovereignty and
Rights in the Western Legal Tradition (Berkeley, Calif., 1993), 232–35. Pennington
notes (232) that Panormitanus explicitly acknowledges the influence of St. Thomas’s
Summa Theologiae on the formulation of his position. See also Joseph Canning, The
Political Thought of Baldus de Ubaldus (Cambridge, 1987), esp. 90–100.
61. Politiques, ed. Menut, 372a. Babbitt, Oresme’s Livre de Politiques, 90.
62. For Thomas’s identification of law with training, ST I, II, 95, 1.
63. For the operative distinctions between legal requirements and religious re-
quirements, see Thomas, ST I, II, 96, 2; II, II, 70, 2. For the central role of probabil-
ity in legal thought, Ilkka Kantola, Probability and Moral Uncertainty in Late
Medieval and Early Modern Times (Helsinki, 1994), esp. 35–39.
64. For the importance of degrees, latitudes, aggregates, and probabilities to
the protoscientific speculation of the fourteenth century, see Kaye, Economy and
Nature, 1 and passim. For their role specifically in Oresme’s thought, Quillet, ‘‘En-
chantements,’’ 322–25; Caroti, ‘‘Oresme’s Polemic,’’ 79.

Authenticated

Authenticated
Contributors
Jessalynn Bird (D. Phil., Oxon.) is an independent scholar.
James A. Brundage is Ahmanson-Murphy Distinguished Professor Emeri-

tus of History at the University of Kansas.
William Chester Jordan is Dayton-Stockton Professor of History at

Princeton University.
William J. Courtenay is Hilldale Professor and C. H. Haskins Professor

of History at the University of Wisconsin.
Patrick Geary is Distinguished Professor of History at the University of

California, Los Angeles.
Ruth Mazo Karras is Professor of History at the University of Minnesota.
Joel Kaye is Associate Professor of History at Barnard College.
Henry Ansgar Kelly is Distinguished Professor of English Emeritus at the

University of California, Los Angeles.
E. Ann Matter is Associate Dean for Arts and Letters in the School of
Arts and Sciences and William R. Kenan, Jr., Professor of Religious Studies,
University of Pennsylvania.
R. I. Moore is Professor Emeritus of Medieval History at the University of

Newcastle upon Tyne.
James Muldoon is Invited Research Scholar at the John Carter Brown Li-
brary and Adjunct Faculty at the Rhode Island School of Design, and Pro-
fessor Emeritus of History at Rutgers University.
Authenticated
306 Contributors
Alex Novikoff is Visiting Assistant Professor of History at St. Joseph’s

University.
Edward M. Peters is Henry Charles Lea Professor of History at the Uni-

versity of Pennsylvania.
Robert Somerville is Tremaine Professor of Religion and Professor of

History at Columbia University.
Alan M. Stahl is Curator of Numismatics at Princeton University.
Susan Mosher Stuard is Professor Emerita of History at Haverford Col-

lege.
John Van Engen is Andrew V. Tackes Professor of Medieval History at the

University of Notre Dame.
Stephen D. White is Asa G. Candler Professor of Medieval History at

Emory University.

Authenticated
Index
Abelard, Peter, 5, 38–42, 251n.31 Aragon, 19

abjuration. See exile Aristotle, 226, 229, 232–33; Ethics, 234–35; Pol-
abortion, 77–78 itics, 234, 236; Topics, 75
Accolti, Francesco, 125 astrology, 228–29
Ademar of Chabannes, 36, 44 Augustine, Saint, 189, 211–12, 225; On Chris-
Ad liberandam, 134–38 tian Doctrine, 217; City of God, 213
Adrian IV, pope, 59 Aurell, Martin, 91
Agnes, empress, 191–92 Ave beads, 222–23, 298n.47
Alberic of Reims, 143 Avogadori di Comun (state attorneys), 164,
Albertus Magnus, 226 199, 287n.25
Albigensian Crusade, 45, 138–40, 146, 151 Azo (jurist), 51–52
Alexander II, pope, 184, 186, 193–94
Alexander III, pope, 61, 75, 289n.6 Bacon, Francis, 232
Alexander of Alessandria, 157, 160, 283 n.27, Bacon, Roger, 226–27, 299n.12
285n.35 Baldus de Ubaldis, 236
Alexander of Sant’Elpidio, 160–61, 284n.33 baniti (exiles), 23, 28–29
Alexias, Saint, 114–15 Barbadicus, Angelus, 110
Alice, widow of Odo of Burgundy, 142 Barbarigo, Filippo, 174–76, 288nn.62, 65, 66
Alice of Cyprus, queen, 140 Barbarigo, Maffeo, 175, 288n.62
Amalricians, trial of, 136 Barberino, Francesco da, 209
Amaury, Arnaud, 146 Bartlett, Robert, 80, 88, 91
Amaury de Bène, 162, 280–81n.5 Bartolomeo (silver striker), 178
American Revolution, 67–68 Bartolus de Saxoferrato (Bartolo de Sassofer-
Ammoneant (canon), 213, 224, 296nn.16–18 rato), 124–26, 236, 275 n. 41, 276nn. 46, 47
Andreae, Johannes, 54, 104 Bautier, R. H., 35, 39
Angelo degli Ubaldi, 124 Beatific Vision, 162
Angevin Empire, 45, 67, 91 Beaumanoir, Philippe de, Coutumes de Beau-
Ango-Saxon law, 6, 89 vaisis, 20, 93
Angoulême (France), 37 Becket, Thomas, 150
Anjou, house of, 37–38, 40, 259n.12 beguines, 104–5
Annales Bertiniani, 119 Bellamy, J. G., 90
Anselm of Canterbury, 40, 42 Benedict IX, pope, 191
Anselm of Liège, 44 Benedictine Rule, 8
Anselm of Lucca, 183, 186 Benedictus Levita, 191
Anthonius of Acquileia, 112–13 Benskin, Michael, 218
Antonino of Florence, 104 Benzo of Alba, 185; Ad Heinricum, 188
Antonio da Riva, 177 Berengar of Tours, 38, 41
Aquinas, Thomas, 106–07, 112, 297n.24; Bernard of Clairvaux, 39–40
Summa Theologiae, 107, 236 Bernard of Parma, 53, 76
Aquitaine, duke of, 259n.12 Bernold of Constance, 186–87, 290n.26
Brought to you by | University of Cambridge
Authenticated
308 Index
Bertaldo, Giacomo, 286–87n.14 Capra, Benedictus, 125

Berthold of Carinthia, 187, 290n.26 Caracalla, emperor, 53
Beverley (England), 18 Carmen de Timone comite, 82–83
biblical justice, 84–85, 190 Carolingians, xv, 2, 4, 6, 14, 36, 79–88, 184,
Black Death, 168, 203 190, 265
Blanche of Champagne, 136, 142–48 Carthusians, 77
Blois, house of, 35, 37–38 Castel Sant’Angelo, 193
Bologna, 7, 13, 54, 73, 157, 160, 166, 211, 254, Catherine of Siena, 197–98, 204
275n.28 Cecco d’Ascoli, 299n.14
Bonet, Guillaume, 152, 282n.11 Celestine V, pope, 152–53
Boniface VIII, pope: and Celestine V’s resig- Chanson de Roland, 95, 98–102
nation, 152–54; Clericis laicos, 153; and Charlemagne, 81–82, 94
Henry of Ghent, 151; and Philip IV, 154–55, Charles I, king of England, 64
283n.23 Charles V, king of France, 228
Bonizo of Sutri, 186–95; Liber ad amicum, Charles the Bald, 119
188–89, 191, 194–95; Liber de vita christiana, charms, 221–22
188–89, 193–94; Paradisus, 188–89 Charter of Massachusetts, 64–67
Bornstein, Daniel, 203 Chaucer, Geoffrey, xviii, 215–24
Bossy, John, 13 Chojnacki, Stanley, 202
Bouvines, battle, 135 Chrétien de Troyes, Yvain, 94
Boyle, Leonard, 72 Cino of Pistoia, 276n. 46
Bracton, Henry de, 20, 89, 93 Clagett, Marshall, 229
branding, 23, 28, 247n.33 Clanchy, M. T., 40, 42
Brandt, Sebastian, 74 Clement III, pope, 75, 193
Britton, 93 Clement V, pope, 21–22, 155, 158–59, 161
Brundage, James A., xiv, 120 Clement of Bucy, 42
Bruno of Toul. See Leo IX clergy, definition of, 9
Bull, Marcus, 194 Cluny (France), 8
Burchard of Avesnes, 138 coinage, 164–79; clipping, 169–71; counter-
Burchard of Worms, 5, 213 feiting, 166–69, 286n.12, 287nn.18, 25;
burning at the stake, 34–38, 42–43, 166. See crimes against, 167–68, 170–71, 173; crimes
also execution within mint, 174–78, culling, 171–73; em-
Busch, Johan, 107–8, 110 bezzlement, 173–76; other crimes, 176–78
Byzantium, 190 Cologne, burnings at, 42–43
Comberius, Hugh, 122–29
Caetani, Benedict. See Boniface VIII Comberius, John, 122–29
Caffarini, Thomas (Tommaso di Antonio da Commandments, 212, 219, 222
Siena), xvii–xviii; exempla, 197; legenda, common good, 234–36
197–210; Tractatus, 197, 207 common law, xii, 8, 25, 52, 62, 67, 122, 241n.4,
Calixtus II, pope, 184 247n.54, 269n.11; diritto comune, 197–98;
calumny oath, 50–51, 255nn.20, 22 ius commune, 17, 19, 31, 47, 52, 122
Canal, Daniele da, 164–66, 177–78 communes, 19, 234
canon law, xii–xviii, 1, 4–5, 7–8, 12, 18, 21, 48, Concordat of Worms (1122), 184
61, 71–73, 75, 77, 116, 120, 122, 125–26, 134, concubinage, 117–29, 273nn.5, 6, 274n.24,
148–49, 153, 157–59, 163, 185–-88, 196–97, 276nn.46, 47
208, 210–37, 242nn.16, 20, 253n.5, 256n.31, consilium (legal opinion), xvi, 122–23, 125, 197
264n.31, 275n.33, 283n.27, 298n.2, 302nn.57, Constance of Arles, 35
58 Constantine the Great, 190
Capet, Hugh, 37 Constantius, 190
capitulare de Latronibus, 81–82 Constitutions of Cashel, 61
Authenticated
Index 309
Contarini, Giacomo, 166, 286n.12 Dominican Penitent Rule, xvii, 197, 206–7,
corporal punishment, xv, 6, 79–84, 86, 170, 210, 292n.1, 294n.49
179, 263n.11 dos (marriage payment), 119
Corpus Christi monastery, 295n.52 Dover (England), 25
Corpus iuris civilis, xii, 7 Duns Scotus, John, 154–55
corredi (trousseau), 202–3 Durand, William, 53–55
Council of Basel (1431), 113 Durand of St. Pourçain, 158
Council of Charroux (1028), 44 Durand of Troarn, 38
Council of Château-Gontier (1231), 50 Durham (England), 18
Council of Clermont (1095), 194
Council of Constance (1414–18), 105, 108–9, Easter Synod, 38
114 ecclesiology, transformation of, 8–12
Council of Forty: crimes against coinage, Egyptian magicians, 213–15
167–71, 173; crimes against the mint, 175– Elizabeth I, queen of England, 68
76, 178 elves and fairies, 220–21
Council of Mainz (852), 119 Eon de Stella, 35, 43, 251n.38
Council of Nicaea (325), 190 Erard of Brienne, xvi, 142–44, 146–47
Council of Reims (1148), 37–38, 40–41, 43, Erdmann, Carl, 183, 189
250n.28 Estimo of 1379, 174
Council of Rouen (1231), 50 Estraordinarii (navigation officials), 175–76
Council of Sens (1141), 39–41 ethics, xiv, 47–56
Council of Soissons (1121), 41–42 Eugenius III, pope, 40–41
Council of Ten, 168–69 Everard of Chartres, 35–36, 42
Council of Vienne (1312), 21–22 execution, 23, 43, 63, 81, 82, 85, 90, 98–99, 169,
Courtenay, Peter, 139, 141–42 265n.11, 299n.14. See also burning at the
Crassus, Petrus, 185 stake
Cromwell, Oliver, 63 exile: of Gregory VII, 184, 187–88; as punish-
crusader privileges, 133–48; in Ad liberandam, ment, 18–19, 22–28, 31, 81, 167, 171, 178,
136–38; and Erard of Brienne, 142–47; and 246n.23, 248n.63
marriage, 139–40, 145; in Quia maior, Eylard of Schoeneveld, 105–6, 108–9
134–36
fashion and dress, 202–5, 210, 295n.51
Crusades. See Innocent III; Jews; individual
Ferro, Stefano, 171
crusades
feudal law, xii, 90, 134, 136, 138, 142, 146,
Cum de quibusdam, 109
259n.9
Curtius, Franciscus, 124
Fichtenau, Heinrich, 33
Fifth Crusade, 134, 138–39
Daire le Roux, trial, 96–99, 101 Finke, Heinrich, 156
Damian, Peter, 186 First Commandment, 212, 219, 222
Dandolo, Andrea, 166 First Crusade, 189
Dante Alighieri, 89 FitzGerald family, 63
Dati, Gregorio, 121 Fleta, 20. See also Bracton
Davies, John, 260n.24 focaria (hearth-mate), 120
decretals, 71–73, 264n.31 Formulae Senonenses recentiores, 86
della Piazza, Gianino, 198–201, 293n.14 forum externum (bishop’s court), 13
De Legibus, 20, 89, 93 forum internum (confessional), 13
Deusdedit, cardinal, 183 Fouracre, Paul, 82–83
Devotio Moderna, 105 See also Modern Day Fourth Crusade, 139
Devout Fourth Lateran Council (1215), 13, 136–37, 142,
diffidatio (ceremony to break fidelity), 91 146
Dolley, Michael, 60 Franklin’s Tale (Chaucer), 215
Authenticated
310 Index
Frederick I Barbarossa, Holy Roman Em- 111; Libellus, 106–8, 110–11; sollicitatio,
peror, 289n.6 109–10
Frederick II, emperor, 50, 134–35, 140–41, Gradenigo, Leonardo, 171
145–46 Gradenigo, Pietro, 286n.12
Frederick of Utrecht, 105, 108–10 Granius Flaccus, 117
Friedberg, Aemilius, 76, 264n.31; Liber extra, Gratian, 120, 228; Decretum, xviii, 7, 9, 13, 48,
77–78 53, 55, 72, 76, 126, 211; Demonium, 212–13;
Froben, Johannes, 74 Igitur, 212; Illud, 217; Liber Extra, 7, 13,
Fryde, Natalie, 91 262nn.7, 8, 263n.18; Nec mirum, 212; Non
Fulbert of Chartres, 38 liceat Christianis, 212
Fulk of Neuilly, 139 Gregorian reform, 59–61, 184–88
Gregory VI, pope, 191
Galen, 49 Gregory VII, pope, 183–96; Bonizo on,
Ganelon, trial, 95, 98–102 186–95; Dictatus papae, 184, 187, 289n.4,
Ganshof, François Louis, 79 290n.26
Garlande, Stephen de, 39, 250n.22 Gregory IX, pope, 7, 13, 140, 280–81n.5; De-
Gautier de Gamaches, 160–61 cretals, xv, 71–78, 263n.24
Gauzlin of Bourges, 35 Gregory of Tours, 118–19
Gerald of Wales, 58–59 Groningen, 105–6
Gerard of Bologna, 157, 160 Grosseteste, Robert, 222–23
Gerard of Cambrai, 44–45 grossi (coins), 166–67, 169, 174, 288n.53
Gerard of St. Victor, 160 Guarin of Beauvais, 36
Gerardus de Collauduno, 158, 283n.27 Guérin of Senlis, 136, 146
Gerbert of Aurillac, 36 Guibert of Nogent, 42
‘‘Germanic’’ law, 81–82, 86; Lombard law, Guillaume de Nogaret, 154
242n.11: Visigothic law, 82 Guillaume de Paris, 155–56
Gerson, Jean, 105, 108, 111–12, 116; De perfecti- Guillaume de Plaisians, 154
one cordis, 113 Guillelmus de Sancto Evurtio, 283n.27
Gervais of Tilbury, 34 Guiscard, Robert, 184, 192
Gervase of Le Mans, 38–39 Gundolfo (heretic), 45
Gervase of Prémontré, 137–38, 140 Guy of Baisio, xviii; Rosary, 211
Giacomello (engraver), 178
gifts, 83, 99, 106, 123, 126, 198–99, 202, 216, Habsburgs, 57
276n.52, 292n.8; inter vivos (legacies), 123, Hanoverians, 67
127 Hansen, Bert, 229
Gilbert de la Porrée, 40–41, 43 Hastings, Horace Lorenzo, 76
Giles of Rome, 153 Hawley, Robert, 248n.70
Gillingham, John, 90–91 Helmholz, Richard H., 29
Giovanna of Orvieto, 197 Heloise (abbess), 39, 250n.21
Giovanni de Mercadeli, 170–71 Henry III, emperor, 183–84, 191
Giudici di Proprio (Judges of Property), 164, Henry IV, emperor, 183–96
167, 286–87n.14 Henry V, emperor, 184
Glaber, Rodolfus, 36, 45 Henry II, king of England, 2–3, 135, 150; in
Glanvill, Ranulf de, 2–4, 7, 89, 93, 241nn.3, 4, Ireland, 58–63, 67–68
242n.9, 267n.1, 268n.11 Henry III, king of England, 133–34, 140
Godfrey, duke of Lower Lorraine, 37 Henry VIII, king of England, 63
Godfrey of Fontaines, 153 Henry II of Champagne, 140, 143–45
Goez, Werner, 187 Henry of Essex, 91
Gonzaga, Francesco, 200–201 Henry of Friemar, 157, 160
Grabow, Matthew, xv–xvi, 105–16; expositio, Henry of Ghent, 151
Authenticated
Index 311
Henry of Lausanne, 37, 44 Ireland, 58–63, 67–68, 259n.6, 259n.13,

heresy, 33–46: Abelard, 39–42; at Angoulême, 260n.24
37; Bernard, 40; Berengar, 38–39; and Isabella of Jerusalem, 144–45
burning at the stake, 34, 249n.4; at Council Ivo of Chartres, 4, 42, 195–96, 213, 292n.57
of Reims, 40–41; definition, 11; Grabow,
110, 115; at Le Mans, 37; at Orléans, 35–38; Jabin, king, 192
at Périgord, 45; unlicensed preaching, 44 Jacobi, Olaf, 110–13
Herfast, 35–37, 249n.9
Jacobus de Voragine, Legenda Aurea, 219
Herstal capitulary, 81–82
Jacques de Molay, 156, 158
Hervé of Nevers, xvi, 137–42, 146–47
Jacques de Thérines, 160–61
Herveus Natalis, 157, 160, 283n.27
Jacques de Vitry, 119, 137, 140–41
Higher Biblical Criticism, 76
Jean de Mont-St-Eloi, 160–61
Hildebrand, cardinal, 39
Jean de Pouilly, 161–62
Hincmar of Reims, 119
Jerome, Saint, 9, 213
The History of William Marshall, 91–92
Jews, 280–81n.5; and crusaders, 135, 139, 142,
Hobbins, Daniel, 106
144; sanctuary for, 21
Hoccleve, Thomas, 223
Johannes Teutonicus, Compilatio quarta, 77
Holyrood (Scotland), 18
John XVI, pope, 188
Honorius III, pope, 71–72, 75, 137, 140–42,
John XXII, pope, 162
145–46
John XXIII, pope, 108
Hostiensis, cardinal, 53, 104
John of England, 59, 61–62, 67–68, 91, 133–35,
Hrabanus Maurus, 214, 216; De magorum
138–39, 145
praestigiis, 213
John of Fécamp, 38
Hugh de Besançon, 158, 283n.27
Hugh of Auxerre, 139 John of Galecop, 109–10
Hugh of Champlitte, 145 John of Ghent, 119, 157, 161
Hugh of Cluny, 186–87 John of God, xviii, 211, 213–15, 218, 224
Hugh of Langres, 38 John of Ripoll, 35
Hugh of Lyons, 195 John of Salisbury, 40, 50
Hugh of Silva Candida, 193 Jolliffe, J. E. A., 90
Humbert of Moyenmoutiers, 39 Judas, 89
Hunnisett, R. F., 26–27 judicial violence and torture, 79–88; for
Hunt, Tony, 218 counterfeiting, 164, 166–67, 170, 287n.18;
Huon de Bordeaux, 94 documentation, 80–81, 86–87; ordeals,
87–88; Theodulf on, 83–86
jurisdiction, xiv, xvii, 5, 7, 8, 13, 17, 19–21, 25,
imperial power, 57–68; empires defined,
31, 42–43, 48, 50, 58–61, 64–65, 120, 122,
258n.2; in Ireland, 58–63, 259nn.6, 13,
134–36, 138–39, 142–43, 146, 148, 159, 161,
260n.24; North America, 63–68, 258n.4,
165, 167, 169–70, 174, 176–77, 261n.37
260n.32, 261n.38
jury trials, 22, 25, 233, 246n.23
Indians, 65–68, 261n.35
justice, xi, xv, xvii, 1–3, 5, 8, 28, 79, 80–85, 88,
infamia (disrepute), 52
90–91, 98, 142–43, 145, 149–63, 166, 190–91,
Innocent III, pope, 13, 246n.13; Compilatio
Tertia, 7; and crusaders, 135–36, 139, 141, 235, 265n.2; and poverty, 85–88
143–46; decretals, 71–72, 75; and University Justinian I (emperor), 34, 49, 213; Code, 4, 51,
of Paris, 150; Vergentis in senium, 34 75, 263n.25; Corpus Iuris Civilis, xii, 7; Di-
Innocent IV, pope, 53 gest, 7, 52, 55, 117, 213, 235; Institutes, 3
Innocent VII, pope, Sedis apostolicae, 197, 207
Inquisition, 33, 37 Kadel, Andrew G., 263n.28
investiture conflict, 183–96; Bonizo of Sutri Kasten, Seth, 263n.28
on, 188–95; and Gregorian reform, 184–88 Kesselring, Krista, 31
Authenticated
312 Index
Knights Templar, xvi, 228; and Philip IV, 149, Magi (Three Kings of Cologne), 211
155–62, 283n.27, 283–84n.28, 284n.29, 284– magic, 211–24; canonists on, 212–15; in Chau-
85n.34, 285n.35; sanctuary for, 21–22 cer, 215–24; and medical technology,
218–19; and science, 225–37, 299n.12,
laity, definition, 9, 12 299n.14, 301nn.41, 44
Landau, Peter, 4–5, 7 Magna Carta, 67
Landes, Richard, 37 Maitland, Frederick William, 48, 89–91, 93
Lanfranc, archbishop of Canterbury, 60 Manegold of Lautenbach, 186
Lansing, Carol, 275n.28 Manichees (in Aquitaine), 44
Lateran Council: (1059), 39; (1215), 13, 136–37, Map, Walter, 35
142, 146 Marcianus, Aelius, 118
Laudabiliter, 59–62, 65, 259n.13 Margaret of Flanders, 138
Laurence of Vallis Scolarium, 157, 160 Margherita of Città di Castello, 197
legal ethics, 47–56; and admissions oaths, 49– Maria of Venice, xvii–xviii, 197–210
51, 254n.18; and obligations to clients, 51– Marmoutier monastery, 87
56, 256n.30; schools, 47–48 marriage, 139–40, 145; and concubinage, 117–
Leges Henrici Primi, 93 29, 273n.5, 275n.28, 276nn.46–47; and
Le Mans (France), 37 Maria of Venice, 197–203, 207–8, 294n.45
Leo I, emperor, 51 Marshall, John, 258n.2
Leo IX, pope, 184, 191 Marshall, William, 91
lèse-majesté (treason against the state), 89– Martel, Geoffrey, 38
90, 93, 96 Martin of Braga, Capitula, 212
Leutard of Champagne, 37 Martin V, pope, 110
Leutard of Vertus, 44 Mason, Emma, 27
Levitus, 20, 89, 93. See also Bracton Massachusetts Bay Company, 64–67
Lex Iulia de adulteriis coercendis, 118 Mathisen, Ralph W., 261n.43
Lex Julia et Papia Poppaea, 118 Matilda of Canossa, 191
Leyser, Karl, 185 Matilda of Tuscany, 184, 192
Liber Augustalis, 50–51 Mazorana (Giovanni Plaxentio), 164, 166
Liber de Servis, 87 McKee, Sally, 124
Libri secretorum, 232 medicinales, 212
Liège, burnings at, 42–43 meretrix (whore or prostitute), 120
Lisiard of Soissons, 42 miles (knight or soldier), 127–28
litis contestatio (beginning of a lawsuit), 50 Milo of Saint Florentine, 147–48
Lobrichon, Guy, 45 Minor Consiglio (Lesser Council), 174
Loder, Henry, 108
Mint Masters, 173–74, 176–78, 288n.52
Lord’s Prayer, 212. See also Paternoster
The Mirror of Justices, 93
Lothar II, 119
Mocenigo, Nicolò, 287n.25
Louis the Pious, 86
Mocenigo, Tommaso, 177
Louis VI, king of France, 39
Modern Day Devout, xv–xvi, 105–16
Louis VII, king of France, 59
Modern Devotion Lay Movement, 198
Louis VIII, king of France, 134, 140
Modestinus (Roman jurist), 118
Louis IX, king of France, 150
Moore, R. I., xiv, 12–13
Lucius III, pope, 75
Morosini, Fantino, 164–66, 177–78
Luis de la Puente, 275n.39
Mueller, Reinhold, 199
Lyndwood, William, xviii, 212–15, 217,
Mulberg, John, 105–7, 113–14
223–24; Provinciale, 211
Müller, Wolfgang, 20, 77
MacMurrough, Dermot, 58–59, 259n.7
Maggior Consiglio (Great Council), 167, 169, Native Americans. See Indians
171, 174, 176 Navigation Acts, 66, 261n.40
Authenticated
Index 313
Nec mirum (canon), 212–13, 296nn.18–21 Peter, bishop of Paris, 136

Nederman, Cary, 259n.13 Peter of Corbeil, 142, 145
Nelson, Janet, 86 Peter, Saint, 115
Nerra, Fulk, count, 38 Peter of Abano, 226
Nicholas II, pope, 184, 193–94 Peter of Benevento, 71–72
Nicholas of Lyra, Postillae, 74, 76 Peter of Bruys, 44
nicolaitism, 11 Peter of John Olivi, 153
Normandy, Normans, 21, 23–24, 27, 35–38, Peter of Paris, 146
40, 53, 58–63, 89–102, 136, 184, 187, 192–93, Peters, Edward, 35, 46, 92, 225, 276–77n.1,
228, 259nn.6, 13, 17, 268n.16, 284n.29; house 285–86n.1; The Magician, the Witch, and
of, 37–38, 59, 259n.12 the Law, 33, 44; Torture, 80
Nyder, Johannes, 105, 113–16 Petronilla, Saint, 223
Petrus Colonna, 152
O’Conor, Rory, king of Connaught, 61 Petrus de Marigniaco, 283n.27
Odo III, duke of Burgundy, 136–37, 139–40, Phang, Elise, 118
142, 146–47 Philip II Augustus, king of France, xvi, 59,
Office of Clipped Grossi, 169, 172 134–39, 141–46, 150
Olde Convent, 105 Philip IV, king of France (Philip the Fair),
Oliver of Paderborn, 139 xvi, 22; and Boniface VIII, 151–52, 154–55,
ordeals, 6, 24–25, 27, 30–31, 80, 87 283n.23; and Knights Templar, 149–50,
Ordinary Gloss, xviii, 76, 211, 263n.25 155–62, 283n.27, 283–84n.28, 284n.29,
ordinatores (crusader lawyers), 137–38, 144 284n.34, 284–85n.35
Oresme, Nicole, xviii, 225, 228–37, 300n.26, Philip VI, king of France, 162–63
301n.41, 301n.44; De causis mirabilium, Philip of Namur, 141–42
229–30, 233, 300n.21; De configurationibus, Philippa of Champagne, 144–45, 147
229–31, 233, 300n.21; De moneta, 234–35 Piazzetta of San Marco, 168–69
Orléans, burnings at, 35–39 piccoli (coins), 166–67
Otis, James, 67 Pierre d’Ailly, 105, 111, 114, 116
Otto III, emperor, 188 Pierre de Belleperche, 54
Otto of Brunswick, 135, 145 Pierre de Saint Omer, 160–61
Our Lady’s Psalter, 223 placita (court records), 80–81, 85–86
Oxford, archdeacon of, 220, 222 Plato, 233
poverty and justice, 85–88
Panormitanus, 236 Poynings’ Law, 66
Paolino, Fra, The Governance of the Family, praevaricatio (collusion), 52, 55
209 precedent, xiv, 56, 122, 133–34, 140, 144, 162–
papal court, 112 63, 185–86, 228
Pape, Gui, xvi, 122–23, 126–29 prescriptions, 218–19
Parens scientiarum, 150 Properandum, 51
Paris, bishop of, 150–51 Prose-Lancelot, 94
Paternoster, 222–23. See also Lord’s Prayer Pugh, Ralph, 26
Paul of Bernried, 186
Paul of St. Père of Chartres, 35–37 Queller, Donald, 202–3
Paulus (jurist), 117 Quia maior, 134–36
payment, 81, 119, 135, 142, 165 Quillet, Jeannine, 229
Peace of God movement, 21, 44
Peckham, John, xviii, 211, 213–15, 222; Igno- Radink, Gerard, 105
rantia sacerdotum, 212; Rosary, 219 Radulphus de Haricuria, 283n.27
Pelagius, cardinal, 140–41 Radulphus de Hotot, 160–61
perjury, 55, 89, 97, 100, 173, 185 Ralph of Coggeshall, 34
persecution, 33, 189, 192 Raoul de Cambrai, 94
Authenticated
314 Index
Raymond of Peñafort, 13, 73, 76–77 Shakespeare, William, The Tempest, 216
Raymond of Toulouse, 139 Sicilian oath, 51
religion: and biblical justice, 84–85; and her- Sigebert of Gembloux, 185, 188, 251n.38
esy, 11, 34–42; and laypeople, 105–16; trans- Signori di Notte (Night Watch), 164, 167,
formation of, 8–12, 59–61 169–70
Renaud d’Aubigny, 154, 283n.27 Simms, Katherine, 60
Reuter, Timothy, 41–42 Simon de Guiberville, 161, 283n.27
Réville, André, 23–24, 27 Simon of Tyre, 138
Richard of Clare, 58–60, 63, 67 simony, 11
Richardson, H. G., 90 Sir Gawain and the Green Knight, 216–17
Richildis, 119 Sisters of Corpus Domini, 207
Robert II, king of France, 35–36 Sisters of Penance of Saint Dominic, 207
Robert of Courson, 134–41, 143–44, 150 slaves, 123–25, 275n.39
Roman d’Alexandre, 95–96 Soranzo, Tomaso, 295n.51
Roman de Thèbes, 95–99 sorcery, 35–37, 96–97, 211, 228
Roman law, 82, 86, 235–36; and concubinage, Sorelli, Fernanda, 199, 293n.14
117–18, 124–25, 127–29; schools, 47–48, 252– sortilegus (sorcerer), 211
53n.5 Southern, R. W., 8–9
Romanus, cardinal, 140 spells, 221–22
Romeus de Brugaria, 157, 160, 283n.27 spurii (illegitimate children), 123
rosary, 222–23, 298n.47 Stephen (chaplain to Constance of Arles), 35
Roscelin of Compiègne, 40–42 Strickland, Matthew, 90–91
Rosenwein, Barbara, 80 Strongbow. See Richard of Clare
Rosser, Gervase, 30 Stuarts, 63, 67
royal justice: and learned opinion, 149–63; studium (university), 149
and Boniface VIII’s deposition, 154–55, Sturion, Iacoma, 199–203, 207–8
283n.23; and Celestine V’s resignation, Sturion, Nicolò, 199–201, 207–8, 295n.52
152–54; and Knights Templar, 155–62; be- Suger of St. Denis, 39
fore Philip IV, 149–51, 280–81n.5 sumptuary legislation, xvii, 198–99, 202,
Royal Society, 232 293n.20, 295n.51
Rudolf of Swabia, 187, 290n.26 superstition, 214–15
Swane, Evert, 111
Sancta Romana, 109 Swynford, Katherine, 119
sanctuary, xiii–xiv, 17–32; law of, 20–27, Synod of Sutri (1046), 191
246n.13; and social reality, 27–32; territory, Synod of Vercelli (1049), 38
17–20, 245n.5; and Westminster Abbey, 22,
27, 246n.27 Talmud, 280–81n.5
Sayles, G. O., 90 Tanchelm of Antwerp, 44
Schmugge, Ludwig, 121 Tancred (canonist), 71–72
scholasticism, xviii, 13, 21, 33, 72, 106, 225, Tellenbach, Gerd, 10
232–34, 236–37, 302nn.43, 45 Templars. See Knights Templar
science, 227–37 Tenengo, Otto da, 51
scope of the law, 33, 37 terra nullius (land possessed by no one), 65
Second Commandment, 219 Teutberga, 119
Second Council of Lyon (1274), 51 Theobald, archbishop of Canterbury, 59
Sedis apostolicae, 109 Theodore of Tarsus, 213
Sehok ben Esther, 37 Theodosian law, 197
Senate, 164, 172, 174–77, 210, 295n.51 Theodulf of Orléans, xv; Address to Judges,
serfs, 11, 21, 87–88 83–85; Comparison of Ancient and Modern
Setton, Kenneth, 285–86n.1 Laws, 83–86
Authenticated
Index 315
theology, xvi, xvii, 1, 2, 7–8, 12, 13, 55, 73, 74, Venice, xvii, 164–70, 197–210, 275n.33: mint,
110–11, 148–63, 196, 220, 228, 281n.5, 164, 286n.5; crimes against coinage in cir-
282n.12, 283n.27 culation, 165–73; crimes within mint,
Thibaud of Champagne, 139 173–79
Thibaud III of Champagne, 142–45 Venier, Antonio, 164
Thibaud IV of Champagne, 143–44, 146, 148 Venier, Filippo, 173–74
Third Crusade, 135 Verbaal, Wim, 41
Thomas de Kent, Le roman d’Alexandre, 94 vestitae (nuns), 207, 209–10
Thomas of Chobham, Summa confessorum, Vézelay monastery, 139–40
198, 208 victus et vestitus (a living), 198–99, 202
Thompson, Augustine, 19 Vincentius Hispanus, 53–54
Thorndike, Lynn, 299n.12, 300n.26 Vinogradoff, Paul, 47–48
Three Kings of Cologne. See Magi Visconti, Giangaleazzo, 201
Tierney, Brian, 186
Tommaso di Antonio da Siena, See Caffarini, Waldrada, 119
Thomas Walter of Avesnes, 137–38, 140
torneselli (coins), 164–65, 178, 285–86n.1 War of Chioggia, 174
torture and judicial violence, 79–88; for Watson, Alan, 47
counterfeiting, 164, 166–67, 170, 287n.18; Wazo of Liège, 44
documentation, 80–81, 86–87; and ordeals, Wealtheof of Essex, 91
87–88; Theodulf on, 83–86 Webster, Jill, 19
treason, xv, 28–30, 34, 89–102, 144, 267n.2, Wenrich of Trier, 185
268n.13, 268n.15; in La chanson de Roland, wergild, 81,
98–102; Maitland on, 89–90; narrow inter- Westminster Abbey, 18, 22, 27, 246n.27
pretation, 92–95; and rebellion, 90–91; in White, Joyce L., 74
Le roman d’Alexandre, 95–96; in Le roman whores, 118, 120–21, 129
de Thèbes, 96–99 Wibertines, 192, 194
True Cross, 221 Wibert of Parma, 192
Tudors, 63, 67 Wibert of Ravenna, 185, 193
Tyerman, Christopher, 133 Wido of Ferrara, 185
Uliva, Monna, 294n.30 Wido of Osnabrück, 185
Ulpian (Roman jurist), 52, 213 William III, king of England, 63
Underground Railroad, 31 William Alexandri, 157, 160
University of Orleans, 215 William, duke of Normandy, 38, 44
University of Paris, xvi, 228; and Boniface William of Auxerre, 141–42
VIII’s deposition, 154–55, 282n.12, 283n.23; William of Champeaux, 38
and Celestine V’s resignation, 152–54; and William of Dampierre, 140
Knights Templar, 155–62, 283n.27, 283– William of Lochem, 110
84n.28, 284n.29, 284–85n.34, 284n.35; be- William of Newburgh, 35, 251n.38
fore Philip IV, 149–51, 280–81n.5 William of St-Amour, 151
Urban II, pope, 183, 193–95 William, duke of Normandy, 59–60
Windsor, Treaty of, 61
Valente, Clare, 91 witches, 37, 219
venial sins, 223–24 Wyclif, John, 112, 114

Authenticated

Authenticated
Acknowledgments
The editors thank Alex Novikoff for his help in getting this proj-
ect off the ground, Jerry Singerman for his encouragement and advice
throughout the process, and Jeffrey Hartman for editorial assistance. A
large number of scholars who were unable to contribute to the volume nev-
ertheless provided enthusiastic support, among them Bernard Bachrach,
Jonathan Boulton, Caroline Walker Bynum, Theodore Evergates, Paul
Freedman, Eric Goldberg, Richard Hoffman, Diane Owen Hughes, Alan
Kors, Erika Laquer, Jo Ann McNamara, Karl Morrison, Richard
Newhauser, Thomas F. X. Noble, James Powell, James Ryan, Michael Ryan,
Steven Sargent, Shawkat Toorawa, and Thomas Waldman.
We also thank Ed Peters for his friendship, mentorship, intellectual
and personal inspiration, and generosity of spirit over the years. His co-
contributors unanimously join in dedicating this book to him.

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Law and the Illicit in Medieval Europe

A complete list of books in the series

Edited by Ruth Mazo Karras, Joel Kaye,

University of Pennsylvania Press

Printed in the United States of America on acid-free paper

A Cataloging-in-Publication Record is available from the Library of Congress

Introduction: The Reordering of Law and the Illicit in Eleventh-

1 A Fresh Look at Medieval Sanctuary 17

2 Heresy as Politics and the Politics of Heresy, 1022–1180 33

3 Legal Ethics: A Medieval Ghost Story 47

4 The Ties That Bind: Legal Status and Imperial Power 57

5 Licit and Illicit in the Yarnall Collection at the University

6 Judicial Violence and Torture in the Carolingian Empire 79

7 The Ambiguity of Treason in Anglo-Norman-French Law,

8 Illicit Religion: The Case of Friar Matthew Grabow, O.P. 103

9 Marriage, Concubinage, and the Law 117

10 Crusaders’ Rights Revisited: The Use and Abuse of Crusader

11 Learned Opinion and Royal Justice: The Role of Paris Masters

12 Coin and Punishment in Medieval Venice 164

13 Licit and Illicit in the Rhetoric of the Investiture

14 Satisfying the Laws: The Legenda of Maria of Venice 197

15 Canon Law and Chaucer on Licit and Illicit Magic 211

16 Law, Magic, and Science: Constructing a Border Between Licit

List of Abbreviations 239

List of Contributors 305

records such as court rolls and notarial documents were discovered to be

lectualized and customary—intersected with political, institutional, and in-

himself in a position of sufficient authority to draw the line, and believing

retical questions of jurisdiction to sketch a vivid history of the theology fac-

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The subject of law and the illicit in medieval western Europe is

legal learning. His opening sentence is a paraphrase of the opening sentence

ulgated law but the absence of an analytically assembled and rationalized

flicting laws or canons cited from another or by the presence or absence of

society is the fundamental feature which distinguishes the Middle Ages

of things to do in the late eleventh and twelfth centuries than simply to

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One meaning that attached to the word ‘‘sanctuary’’ in the thir-

The Territorial Extent of Sanctuary

sometimes less expansive understandings of sanctuary’s conceptual param-

Aspects of the Law of General Sanctuary

The law of general sanctuary is often characterized as distinctively ‘‘medie-

The Problem of Social Realities

The observations above raise many questions, but, as Helmholz observes,

ments or tracts in their support always begin with the invocation—often

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‘‘Of the three great twelfth-century institutions that trans-

on the counts of Champagne, whose protection he also enjoyed. Nor is

The common factor in the cases we have considered is that (irrespec-

constructs and straightforward assertions of fact. There is the topos that

Ruth Mazo Karras, Joel Kaye and E. Ann Matter - 9780812208856

Sir Paul Vinogradoff (1854–1925) nearly a century ago described

learning occasionally surfaced in schools that primarily trained monks or

teachers commenced to pay increasing attention to what the texts they

Galen gives you wealth and so does Justinian’s law;

With prestige and prosperity, however, came ethical obligations both

prospective advocates to be examined by a judge in order to determine their

able when required. These arrangements sometimes paid an annual fee in

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To speak of the legal history of European expansion would seem

king to important segments of two colonial societies, twelfth-century Ire-

marriage and succession to his kingdom as his reward. According to Gerald

Ireland presented Henry II with three distinct but related problems