Download - Rethinking Causae 23–26 as the Causae hereticorum

132. B A N D

H E R A U S G E G E B E N V O N

W. KAISER, M. SCHERMAIER, G. THÜR,

H.-P. HAFERKAMP, P. OESTMANN, J. RÜCKERT,

H.- J. BECKER, H. DE WALL, A. THIER

KANONISTISCHE ABTEILUNG 101

1 5 0 . T o d e s t a g S a v i g n y s – 1 5 0 J a h r e Z e i t s c h r i f t f ü r R e c h t s g e s c h i c h t e

2015

B Ö H L A U V E R L A G W I E N K Ö L N W E I M A R

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DIESE DATEI DARF NUR ZU PERSÖNLICHEN ZWECKEN UND WEDER DIREKT NOCH INDIREKT FÜR ELEKTRONISCHE PUBLIKATIONEN DURCH DIE VERFASSERIN ODER DEN VERFASSER DES BEITRAGS GENUTZT WERDEN.

BEITRAG aus: ZEITSCHRIFT DER SAVIGNY-STIFTUNG FÜR RECHTSGESCHICHTE, KANONISTISCHE ABTEILUNGISBN 978-3-205-79686-2, ISSN 0323-4142 © 2015 by BÖHLAU VERLAG GES.M.B.H. & CO.KG, WIEN KÖLN WEIMAR

Die Zeitschrift der Savigny-Stiftung für Rechtsgeschichte [ZRG] erscheint jährlich in drei selbständigen, auch einzeln käuflichen Abteilungen. Sie veröffentlicht Bei- träge zur rechts historischen Forschung und berichtet über das einschlägige wissen- schaftliche Schrifttum. Richtlinien für die Manuskriptgestaltung u. v. a. finden Sie unter www.savigny-zeitschrift.com. Redaktion der ZRG: DDr. Reingard Rauch, Waldheimatweg 33, A-8010 Graz, [email protected]

Die Herausgeber und ihre Anschriften seit Januar 2015:

Romanistische Abteilung

Prof. Dr. Wolfgang Kaiser, In sti tut für Rechtsgeschichte und geschichtliche Rechtsver-gleichung – Romanistische Abteilung, Albert-Ludwigs-Universität, Platz der Alten Synagoge, D-79085 Freiburg, [email protected] (Alter Orient und Griechisches Recht der Antike, Römisches Recht in der Spätantike, Mittelalter und Byzanz)

Prof. Dr. Martin J. Schermaier, Institut für Römisches Recht und Vergleichende Rechts-geschichte, Rheinische Friedrich-Wilhelms-Universität, Adenauerallee 24–42, D-53113 Bonn, [email protected] (Republik und Kaiserzeit, Philosophische Grundlagen und Me-thode des Römischen Rechts, Neuzeit und später)

Germanistische Abteilung

Prof. Dr. Peter Oestmann, Institut für Rechtsgeschichte, Westfälische Wilhelms-Univer-sität, Universitätsstraße 14–16, D-48143 Münster, [email protected] (Aufsätze, Miszellen und Besprechungen für die Zeit bis 1800)

Prof. Dr. Joachim Rückert, Neuere Rechtsgeschichte, Juristische Zeitgeschichte, Zi - vilrecht und Rechts philosophie, Goethe-Universität FB 01 Fach 13, Postfach 11 19 32, D-60054 Frankfurt, [email protected] (Aufsätze und Miszellen für die Zeit ab 1800 sowie Gastbeiträge)

Prof. Dr. Hans-Peter Haferkamp, Direktor des Instituts für neuere Privatrechtsgeschich-te, Deutsche und Rheinische Rechts geschichte, Universität zu Köln, Albertus-Magnus-Platz, D-50923 Köln, [email protected] (Aufsätze, Miszellen und Bespre-chungen für die Zeit ab 1800)

Kanonistische Abteilung

Prof. Dr. Andreas Thier M. A . , Rechtswissenschaftliches Institut, Universität Zürich, Rämi straße 74, CH-8001 Zürich, [email protected] (Kanonisches Recht bis ca. 1400)

Prof. Dr. Hans-Jürgen Becker, Lehrstuhl für Bürgerliches Recht, Europäische Rechts- geschichte und Kirchenrecht, Universitätsstraße 31, D-93040 Regensburg, [email protected] (Kanonisches Recht nach 1400)

Prof. Dr. Heinrich de Wall, Hans-Liermann-Institut, Hindenburgstraße 34, D-91054 Erlangen, [email protected] (Evangelisches Kirchenrecht und Staatskirchenrecht)

ISSN 0323-4142 ISBN 978-3-205-79686-2 (Einzelband)

© 2015 Böhlau Verlag, Dr. Peter Rauch G.m.b.H., A-1010 Wien. Alle Rechte vorbehalten.www.savigny-zeitschrift.com

Satz: Vogelmedia GmbH, A-2102 BisambergDruck und Herstellung: Prime Rate kft., Budapest



ZRG KA 101 (2015)

Z E I T S C H R I F T D E R S AV I G N Y- S T I F T U N G F Ü R R E C H T S GE S C H I C H T E

KANONISTISCHE ABTEILUNG 132

Inhalt des 101. Bands

Widmung. Von Werner Ogr is † . . . . . . . . . . . . . . . . . . . . . . VII

Aufsätze:

Blumentha l , Uta-Renate , Dating the Exceptiones Petri . . . . . . . . . . 54

Eckhard t Wi lhe lm A. , Zum Patronatsrecht in Hessen. Patronatskirchen der Schencken zu Schweinsberg . . . . . . . . . . . . . . . . . . . . . . . 177

Eichbauer, Melodie H. , Rethinking Causae 23–26 as the Causae hereti-corum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

Henderson , Duane R. , Law, Custom, and Medieval Judges. Marital sepa-rations in the official’s court of Freising in the late fifteenth century . . 217

Lorenz F i lograno , Mar ia P ia , Das Inquisitionsverfahren beim Heiligen Offizium. Juristische Aspekte und Analyseperspektiven . . . . . . . . . 317

Neuheuser, Hanns Pe ter, Hildegard von Bingen als Lehrerin des Liturgie-rechts. Zum Spannungsverhältnis von Visionsverschriftlichungen und normativen Aussagen im hohen Mittelalter . . . . . . . . . . . . . . . 150

Pokorny, Rudol f , ‚Hispana Gallica‘ oder ‚Hispana Rhenana‘? Bernhar von Worms als erster Besitzer des Wiener Codex ÖNB 411 . . . . . . . . . 1

Rehak, Mar t in , Utrum parvuli sint invitis parentibus baptizandi? Eine Spu-rensuche nach den Wurzeln des can. 868 § 2 CIC . . . . . . . . . . . . 258

Miszellen:

Hat tenhauer, Hans , Avctoritas Apostolica. St. Martin in Trier AD 385/386 399

Pet rášek , J i ř i , Die Besitztümer der Kirche in der hussitischen Schrift Curandum summopere . . . . . . . . . . . . . . . . . . . . . . . . . . 417

Wei, John C. , The Importance and Influence of Gratian’s Tract De penitentia . 373

Zendr i , Chr i s t ian , Diritto feudale – diritto canonico – diritto pubblico. Stu-di recenti e prospettive di ricerca . . . . . . . . . . . . . . 389

Literatur:

Neuerscheinungen zur Geschichte des mittelalterlichen Kirchenrechts . . . . . 476

Rezensionen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432



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Autographa, I.1: Giuristi, giudici e notai (sec. XII–XVI med.), a cura di Gio -vanna Murano/Giovanna More l l i , indici a cura di Thomas Woelk i . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442Von Kenneth Pennington

Berger, Danie l , Stift und Pfründe. Die Ausbildung der Kanonikerpräbende im Erzbistum Köln bis 1300 . . . . . . . . . . . . . . . . . . . . . . . 446Von Steffen Kr ieb

Brendle , Franz , Der Erzkanzler im Religionskrieg. Kurfürst Anselm Casi-mir von Mainz, die geistlichen Fürsten und das Reich 1629 bis 1647 . . 458Von Rot raud Becker

Cahu, Frédér ique , Un témoin de la production du livre universitaire dans la France du XIIIe siécle: la collection des Décrétales de Grégoire IX . . . 445Von Mar ta Pavón Ramírez

Dieckhoff , Chr is t ina , Die geistliche Rechtsprechung in der Diözese Frei-sing in der zweiten Hälfte des 15. Jahrhunderts . . . . . . . . . . . . . 448Von Urs Reber

Epistulae et acta nuntiorum apostolicorum apud imperatorem 1592–1628, Bd. IV/ IV: September 1608–Junius 1609. Hg. vom Institutum Historicum Bohemicae Romae, ed. Tomáš Černušák . . . . . . . . . . . . . . 456Von Rot raud Becker

Fudge , Thomas A. , The Trial of Jan Hus. Medieval Heresy and Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 462Von Thomas Krzenck

Got thard , Axel , Der liebe und werthe Fried, Kriegskonzepte und Neutrali-tätsvorstellungen in der Frühen Neuzeit . . . . . . . . . . . . . . . . . 470Von Heinhard S te iger

Hors t , Ul r ich , Juan de Torquemada und Thomas de Vio Cajetan. Zwei Prot-agonisten der päpstlichen Gewaltenfülle . . . . . . . . . . . . . . . . . 452Von Klaus Unterburger

Kaufhold , Huber t , Franciscus Peña und der Inquisitionsprozeß nach seiner „Introductio seu Praxis Inquisitorum“ . . . . . . . . . . . . . . . . . . 455Von Hans-Jürgen Becker

Larson , At r ia A. , Master of Penance: Gratian and the Development of Peni-tential Thought and Law in the Twelfth Century . . . . . . . . . . . . . 373Rezensionsmisze l le von John C. Wei

Lehmann, Roland M., Die Transformation des Kirchenbegriffs in der Frühaufklärung . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 474Von Chr is t ian S turm

Mayer, Thomas F. , The Roman Inquisition. A Papal Bureaucracy and Its Laws in the Age of Galileo . . . . . . . . . . . . . . . . . . . . . . . . 460Von Rot raud Becker



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Mayer, Thomas F. , The Roman Inquisition on the Stage of Italy, c. 1590–1640 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460Von Rot raud Becker

Mordin i , Maura , Il feudo ecclesiastico nella prima età dei Glossatori . 389, 437Rezensionsmisze l le und Rezens ion von Chr is t ian Zedr i

Thomas Müntzer. Bibliographie (1519–2012), bearb. von Mar ion Dam -maschke/Günter Vogler . . . . . . . . . . . . . . . . . . . . . . 465Von Gerhard Günther

Thomas-Müntzer-Ausgabe: Kritische Gesamtausgabe Bd. 2 Thomas Müntzer Briefwechsel, bearb. von Siegf r ied Bräuer /Manfred Kobuch . 465Von Gerhard Günther

Thomas-Müntzer-Ausgabe: Kritische Gesamtausgabe Bd. 3 Quellen zu Thomas Müntzer, bearb. von Wie land Held (†) /S iegf r ied Hoyer . . . . 465Von Gerhard Günther

New Approaches to Early Law in Scandinavia, hg. von Stefan Br ink/Lisa Col l inson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439Von Cars ten F ischer

Was vom Wucher übrigbleibt. Zinsverbote im historischen und interkulturellen Vergleich. Hg. von Mat th ias Casper / Norber t Oberauer / Fa -b ian Wit t reck . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434Von Cars ten F ischer

Weckwer th , Andreas , Clavis conciliorum occidentalium septem prioribus saeculis celebratorum: qua ad investigationem synodorum fovendam tam optimas actorum synodalium editiones quam eorum testimonia con-ciliorum quorum monumenta deperdita sunt . . . . . . . . . . . . . . . 432Von Andreas Thier

Wejwoda, Marek , Die Leipziger Juristenfakultät im 15. Jahrhundert. Ver-gleichende Studien zu Institution und Personal, fachlichem Profil und gesellschaftlicher Wirksamkeit . . . . . . . . . . . . . . . . . . . . . . 449Von Kar l Heinz Burmeis te r †

Chronik:

„Das Gewissen in den Rechtslehren der protestantischen und katholischen Re-formationen“, Tagung in Wittenberg 2014. Von Franz iska Kel le /Raik Mül le r . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 482

Tagungsbericht zum 40. Deutschen Rechtshistorikertag in Tübingen. Von Wouter Druwé/Stephan Dusi l /Chr is toph Luther . . . . . . . 489



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Verzeichnis der Autorinnen und Autoren des 101. Bands

Prof. em. Dr. Hans-Jürgen Becker, Regensburg, S. 455Dr. Rot raud Becker, Regensburg, S. 456, 458, 460Prof. em. Dr. Uta-Renate Blumentha l , Washington D.C., S. 54Dr. Kar l Heinz Burmeis te r †, Lindau (B.), S. 449Wouter Druwé, Leuven, S. 489Prof. Dr. S tephan Dus i l MA LMS, Leuven – Zürich, S. 489Dr. Wi lhe lm Alf red Eckhard t , Marburg (L.), S. 177Prof. Melodie H. Eichbauer PhD, Fort Myers/Fl., S. 86Dr. Cars ten F ischer, Zürich, S. 434, 439Dr. Dr. Gerhard Günther, Lychen, S. 465Prof. em. Dr. Hans Hat tenhauer †, S. 399Dr. Duane R. Henderson , München, S. 217Franziska Kel le , Halle (S.), S. 482Dr. S te ffen Kr ieb , Freiburg (B.), S. 446Dr. Thomas Krzenck , Leipzig, S. 462Dr. Mar ia P ia Lorenz-Fi lograno Münster, S. 317PD Dr. Chr is toph Luther, Potsdam, S. 489Raik Mül le r, Halle (S.), S. 482Dr. Hanns Pe ter Neuheuser MA, Köln, S. 150Prof. em. Dr. Dr. h. c. mult. Werner Ogr is †, Wien, S. VIIDr. Mar ta Pavón Ramírez , Rom, S. 445Prof. Dr. Kenneth J . Pennington , Washington D. C., S. 442Mgr. J i ř i Pe t rášek , Regensburg, S. 417Dr. Rudol f Pokorny, München, S. 1Prof. Dr. Urs Reber, Zürich, S. 448Dr. Mar t in Rehak , München, S. 258Prof. em. Dr. Heinhard S te iger, Gießen, S. 470Chris t ian S turm, Erlangen, S. 474Prof. Dr. Andreas Thier MA, Zürich, S. 432, 476Prof. Dr. Klaus Unterburger, Regensburg, S. 452Dr. John C. Wei , New Haven/CT, S. 373Prof. Dr. Chr is t ian Zendr i , Trento, S. 389, 437



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Reingard Rauch zum 60. Geburtstag

Diesmal, in Band 132 (2015) unserer Zeitschrift, gelten Gruß und Glück-wünsche der Herausgeber aller drei Abteilungen Frau DDr. Reingard Rauch, die im März 2015 ihr 60. Lebensjahr vollendete. Nicht weniger als 35 Jahre davon mit ebenso vielen Bänden (mal drei) hat sie die Zügel der Zeitschrift mit fester Hand gehalten und auch klug geführt. Im September 1980, auf dem 23. Deutschen Rechtshistorikertag (RHT) in Augsburg, übernahm sie (unter Verkürzung ihrer Hochzeitsreise mit Wolf Rauch) Gesamtredaktion und Lek-torat der ZRG als Nachfolgerin von Frau Dr. Leiva Petersen, die ihrerseits von Jugend an dem Verlag Böhlau aufs engste verbunden war und die ZRG von Band 65 (1947) bis Band 96 (1979) von Weimar aus begleitet, um nicht zu sagen: geleitet hatte. Und dies Jahre hindurch unter „deutsch-deutschen“ und dann „österreichisch-deutschen“ Bedingungen, deren Fußangeln und Schwie-rigkeiten heute nur schwer vorstellbar und kaum noch nachvollziehbar sind.

Auch die junge Lektorin konnte davon anfangs ein Lied singen. Obgleich Verlag und Redaktion der ZRG 1980 von Weimar nach Wien verlegt wurden, blieb die Herstellung aller drei Abteilungen zunächst noch in Thüringen, und zwar bis 2002/03, also bis weit über das Ende der DDR hinaus. Seither ist die Zeitschrift beim Verlag Böhlau Wien-Köln-Weimar beheimatet; die Her-stellung erfolgt durch die Vogelmedia GmbH (Bisamberg), und der Druck in Ungarn (Stand 2014); die Fäden aller drei Abteilungen aber laufen in Graz, Waldheimatweg zusammen, wo Frau Rauch seit 1984 ihren Wohnsitz hat. Sie, die Fäden, sind längst überwiegend elektronischer Natur und verbinden neun aktive und sieben Alt-Herausgeber, etwa 300, mit Spitzen bis zu 400 Auto-ren unterschiedlichen Zuschnitts und verschiedener Herkunft pro Jahrgang sowie die üblichen organisatorischen, finanziellen und wissenschaftspoliti-schen Kontakte untereinander und mit der Zentrale. Sie alle rechtzeitig und in möglichster Einheitlichkeit unter einen Hut zu bringen, verlangt Geduld und Einfühlungsvermögen, Organisationstalent und editorische Fachkenntnisse, gelegentlich aber auch den einen oder anderen (mehr oder – meist – weniger scharfen) Ordnungsruf. Dies alles findet sich bei Frau Rauch; das Feedback, das sie von Autoren und Herausgebern erhält, lässt daran keinen Zweifel.

Dem unmittelbaren persönlichen Kontakt dienen die „Herausgeberessen“, die aus leicht einsichtigen „logistischen“ Gründen jeweils am Rande der RHT, also im Zweijahrestakt, stattfinden und auf denen unter dem Vorsitz Rein-gard Rauchs die aktuellen Probleme und Fragen der Zeitschrift besprochen



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und Lösungen (meist einstimmig) beschlossen werden. Deren gibt es genug: Personalrochaden, den digitalen Vertrieb (seit 2012), das Kreuz mit dem peer reviewed content und den minimum criteria, den Umfang der Bände und die Preisgestaltung bei jährlich wechselnden Seitenzahlen, Abstracts und Regis-ter – um nur einige zu nennen. Erfreuliche Höhepunkte der letzten Jahrzehnte waren zweifellos die Feiern zum Erscheinen der Bände 100 und 125 der RA und der GA (die KA folgte 2014) im Rahmen der RHT Graz 1984 und Passau 2008, die jeweils unter der Stabführung von Frau Rauch einen würdigen und dem hohen Ansehen der ZRG gemäßen Verlauf nahmen. Dies alles in Verbin-dung mit ihrem langjährigen und erfolgreichen Engagement als Vorsitzende des Universitätsrates der Kunstuniversität (KUG) Graz hat eine hohe Aner-kennung und verdiente Würdigung erfahren: Am 18. November 2014 erhielt sie aus der Hand des Landeshauptmannes Voves das Große Ehrenzeichen des Landes Steiermark, wobei auch die ZRG lobende Erwähnung fand. Herzli-chen Glückwunsch!

Es ist natürlich viel zu früh, an ein künftiges, weit in der Zukunft liegendes rundes oder halbrundes Jubiläum unserer Zeitschrift zu denken. Aber etwas können wir der Jubilarin jedenfalls schon jetzt zurufen und der ZRG, ihren Herausgebern, Mitarbeitern und Lesern von Herzen wünschen:

Liebe und verehrte Frau Rauch,

ad multos annos tomosque!

Die ehemaligen und aktuellen Herausgeber der Zeitschrift für Rechtsgeschichte



ZRG KA 101 (2015)

I I I .

Rethinking Causae 23–26 as the Causae hereticorum*)

Von

Melodie H. Eichbauer, Fort Myers/Fl.

This essay questions the designation of Causa 23–Causa 26 of Gratian’s Decretum as the Causae hereticorum, a “tract” on heresy. It first explores the historiographical discrepancy be-tween the designation and the varied analysis of scholars. Then it moves to a reassessment of the three textual features, which – if taken out of context – could lead to the conclusion that heresy was the principal element of the cases: the hypotheticals, the introductory summary to the causae known as “In secunda parte”, and finally the placing of the cross-reference to “in prima causa” on equal footing with the reference to a tractatus. Rather than the Causae hereticorum, the essay argues that it might prove more fruitful to consider Causae 23–26, along with the preceding case (Causa 22) on the oath and perjury, as a thematic unit addressing obedience and the execution of one’s office. Using the topics of heresy and magic as a means to an end, a springboard to address larger issues, the early textual tradition of the first recension illustrates that Gratian applied the juridical aspects of oath-taking, laid out in Causa 22, to assess how bonds structured the differ-ent interpersonal relationships analyzed in Causae 23–26. Thinking about Causae 22–26 as cases concerned with relationships and the associated duties offers an opportunity to think more about how the law conceived of and transmitted ideas about right order: an order that would extend from the pope down to the laity.

Keywords: Causae hereticorum; Decretum Gratiani C.22–26; oath and perjury; sic et non-methodology; obedience

Dieser Beitrag hinterfragt die Kennzeichnung von Causa 23 bis Causa 26 als Causae hereti-corum, als “Traktat” über Häresie. Der Beitrag untersucht zunächst die historiographische Dis-krepanz zwischen der Bezeichnung dieses Textblocks und seiner mehrfachen Analyse durch die Forschung. Dann richtet sich der Blick auf eine Neubewertung der drei Textelemente, die – bei Vernachlässigung ihres Kontextes – zur Schlussfolgerung führen könnten, dass die Auseinander-setzung mit der Häresie das entscheidende Elemente dieser Textreihe bildete: die Beispielsbil-dung, die einleitende Zusammenfassung zu den causae, die bekannt ist als „In secunda parte“, und schließlich die Einführung eines Verweises, „in prima causa“, die einem Verweis auf einen Traktat zu entsprechen scheint. In diesem Beitrag wird demgegenüber argumentiert, dass es sinn-

*) This is a much revised version of a paper presented at the XIV International Congress of Medieval Canon Law held at the University of Toronto in August 2012. I would like to thank Andreas Thier, Charles Donahue Jr., Ken Pennington, Thomas F.X. Noble, Ed Peters, William North, and Maureen Miller for their time and ad-vice. All errors remain my own.



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voller wäre, Causa 23–26 zusammen mit dem vorausgehenden Textblock (Causa 22), der Eid und Eidbruch thematisierte, als Texteinheit zu betrachten, die sich mit den Pflichten aus einem Amt und dessen Befugnissen auseinandersetzt. Die Tradition der ersten Rezension des gratianischen Dekrets zeigt nämlich, dass und wie Gratian die normativen Aspekte der Eidesleistung, wie sie in Causa 22 ausgebreitet sind, dazu benutzte, um in Causa 23–26 zu ermitteln, wie und welche Verpflichtungen die unterschiedlichen interpersonalen Beziehungen strukturierten. Häresie und Magie dienten dabei lediglich als Ausgangspunkt und ideelles Sprungbrett, um diese Fragen zu untersuchen. Wenn Causa 22–26 als Fallbeispiele gedeutet werden, in denen über unterschied-liche Sozialbeziehungen und die damit verbundenen Ämter reflektiert wurde, dann öffnet sich damit ein anderer Betrachtungshorizont: Recht umfasst und vermittelt dann Konzeptionen eines Ordnungsentwurfs, der vom Papst bis hinab zu den Laien reichte.

I . In t roduct ion

Gratian’s Decretum was one of the most influential legal codes in the Mid-dle Ages. With the progressive compilation of the text dating approximately to 1120s–1140s (depending upon your historiographical bent), causae, which began with a hypothetical (i.e., a case statement) followed by a series of ques-tions, addressed a wide range of canonical issues. Utilizing the scholastic “sic et non-methodology”, Gratian tried to bring harmony to the disharmonious found scattered throughout conciliar canons, papal decretals, the writings of the Church Fathers, and Roman and secular law.

Among the cases are Causa 23–Causa 26, which have long been referred to as the Causae hereticorum, a “tract” on heresy. The designation is so com-monplace, so ubiquitous, that we think little about it; it has provided a con-venient mechanism for referring to them. Causa 23 and Causa 24 refer to heresy in the case statement, and the first five questions of Causa 26 address sorcery. Serving as books ends are Causa 22 and Causa 27 – the former focus-ing on the oath and the latter beginning the tract on marriage. The well-known cross-reference to C.23 q.4 c.2 – “in prima causa hereticorum” – found in C.7 q.1 d.p.c.48 has solidified our understanding: If this is the first case that deals with heresy, there must be more, and thus there must be a tract1).

Thinking about Causae 23–26 as a “tract on heresy” masks the underlining purpose the cases serve and we need to probe deeper into the role that her-esy plays. Rather than the Causae hereticorum, it might prove more fruitful

1) The customary manner of citing the Decretum is: Causa – question – canon (C.23 q.4 c.34) for a specific canon, Causa – question – dictum after canon (C.23 q.4 d.p.c.16) for a specific dictum, Causa – question – dictum that introduces the question and precedes the first canon (C.23 q.4 d.a.c.1) for a specific introductory dictum. If one wishes to refer to the Distinctions, the customary manner is: Distinction – canon (D.32 c.4) for a canon, Distinction – dictum after canon (D.93 d.p.c.21) for a dictum, or Distinction – dictum that introduces the question and precedes the first canon (D.28 d.a.c.1) for an introductory dictum.



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to consider Causae 23–26, along with the preceding case (Causa 22) on the oath and perjury, as a thematic unit addressing obedience and the execution of one’s office. I begin by laying out the historiographical discrepancy. On the one hand, scholars consistently refer to the Causae hereticorum. On the other hand, however, they treat the cases in disparate ways. Even though her-esy does not always take center stage in the analysis of scholars, three textual features – if taken out of context – could lead to the conclusion that it was the principal element of the cases. While three of the four cases (Causae 23, 24, and 26) do refer to heterodoxy in the hypotheticals, there is, however, a particular artistry to the construction of the case statement. Because Gratian developed the causae for teaching, he frequently used a “hook” in the hypo-thetical as an entry point into the case. This tantalizing subject would engage the students and had legal relevance, but was of secondary importance to the main issue. Second, the distortive rendering of the cases in the introductory summary to the causae of the Decretum, known as “In secunda parte”, gives the false impression that heresy was the focal point of these cases. Finally, the reference to “in prima causa” seems to rest on equal footing with the reference to a tractatus. An analysis of how Gratian cross-referenced texts, however, illustrates that he did make a distinction between the two. Whereas a tractatus has a very specific focus, such as a tract on marriage or a tract on penance, a cluster of causae are woven together by thematic thread. Causae 23–26 do not form a tract and our understanding of them as being “about” heresy needs to be contextualized. These cases form a thematic unit in which heterodoxy served as an entry point to engage the students. Using the topics of heresy and magic as a means to an end, a springboard to address larger is-sues, the early textual tradition of the first recension illustrates that Gratian applied the juridical aspects of oath-taking, laid out in Causa 22, to assess how bonds structured the different interpersonal relationships analyzed in Causae 23–26. An examination of where the Decretum canons appeared in some late eleventh and early twelfth century collections and how some of the early De-cretists (canonists who commented on Gratian’s Decretum) interpreted these cases lends support to such an interpretation.

Thinking about Causae 22–26 as cases concerned with relationships and the associated duties offers an opportunity to think more about how the law conceived of and transmitted ideas about right order. Society used the oath to bind one person to another and the Church echoed that practice. The use of societal norms inherent in the oath provided the pathway for understand-ing one’s place vis-à-vis those above and below. Understanding how one’s place interconnected to another facilitated the maintenance of order within




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the ecclesiastical hierarchy and Christian society as a whole. Those who dis-rupted order earned the label of “heretic”, as such heresy did not necessarily have to mean a disagreement with issues of doctrine. For example, Arnold of Brescia was condemned and eventually turned over to Frederick Barbarossa for execution in 1155 for opposing clerical wealth and the temporal power of pope2). His condemnation and execution was for political rebellion and not for a perceived doctrinal error. A bishop became heretical if he did not obey the pope. With respects to a priest, dabbling in magic likewise caused disorder by redirecting his focus and putting him on par with the laity whose use of amulets, incantations, and futurities he was supposed to correct. Designating someone as a heretic, a deviant, became an efficient mechanism for combat-ting disorder because it separated the delinquent from the community of the faithful and required correction through prescribed penance.

I I . Causae 23–26 in the His tor iographica l Tradi t ion

A sampling of the historiography illustrates that Causae 23–26 have a long history as the Causae hereticorum. For example, an early reference in the secondary scholarship is within the context of Huguccio of Pisa’s Summa Decretorum (c. 1188–1190). In 1937 Stephan Kuttner used the phrase „[d]ie vier ‘causas hereticorum’” when summerizing both Louis Tanon, who in 1889 noted that the Summa Decretorum broke off with C.23 q.4 c.33, and Franz Gillmann, who in 1914 noted that Huguccio’s pupil wrote a continuation (C.23 q.4 c.34–C.26 q.6 c.3) between c. 1185 and 11873). Neither Tanon nor Gillmann used the term Causae hereticorum4).

While neither Huguccio nor his pupil who wrote the continuation referred to these cases as the Causae hereticorum and scholarship on Huguccio may not have been the catalyst, it exemplifies how the designation has became a convenient way to reference these cases. In 1959 Brian Tierney referred to them as such when he posited that the Anglo-Norman summa “Prima primi” interpolated Causae 23–26 from the Summa Duacensis because the direct

2) R . I . Moore , The Origins of European Dissent (= Medieval Academy Reprints for Teaching 30), Toronto 1994, 115ff., esp. 115–117, 121.

3) S tephan Kut tner, Repertorium der Kanonistik, Vol. 1: 1140–1234, Vatican City 1937, 158–160; idem, Bernardus Compostellanus Antiquus: A Study in the Glos-sators of the Canon Law, in: Traditio 1 (1943), 283–284, n. 22.

4) Louis Tanon, Étude de littérature canonique: Rufin et Huguccio, in: Nouvelle Revue historique de Droit française et étranger, IIIme série 13 (1889), 689–690; Franz Gi l lmann, Die Abfassungszeit der Dekretsumme Huguccios, in: Archiv für katholi-sches Kirchenrecht 94 (1914), 243–244, n. 1.



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source for the summa “Prima primi”, which Tierney labeled as X, was pre-pared from an early recension of Huguccio’s summa that lacked comment on the Causae hereticorum5). In 1984 Titus Lenherr used the phrase Causae hereticorum in his analysis of the supplement to Huguccio’s summa in Ve-rona, Biblioteca capitolare CXCIV. His study compared C.24 q.1 d.a.c.1, c.1, and c.3 and C.23 q.5 c.25 to the glossa apparatus of “Ordinaturus Magister”, the Ius naturale, the Glossa Palatina of Laurentius Hispanus, and the Glossa ordinaria of Johannes Teutonicus6). Interestingly Lenherr did not refer to C.24 q.1 as being a part of the Causae hereticorum in his 1987 analysis and arbeits-text. The objective of his study, however, was not to place the question into the context of Causae 23–267). In 1994 Wolfgang Müller likewise utilized this designation when he outlined the stages of the compilation of Huggucio’s summa. The Causae hereticorum belonged to the fifth and final stage, after C.33 q.3 (De Penitentia). He noted further that canonists created supplements, particularly with regards to the Causae hereticorum. The most important and extensive of which was the Continuatio prima (also known as the Summa Casinensis). Compiled between 1185 and 1186, it borrowed from the works of other decretists without distinguishing them from that of Huguccio8).

5) Br ian Tierney, Two Anglo-Norman Summae, in: Traditio 15 (1959), 483ff., esp. 487. The summa “Prima primi” appears in one manuscript (London BM Royal 11.D.II, fol. 321ra–332ra) and the Summa Duacensis appears in MS Douai 649, fol. 96ra–140vb. The Summa quamvis leges seculares (P), also of the Anglo-Norman school of Decretists, appears in one manuscript (Paris, St. Geneviève 342, fol. 185ra–187va).

6) Ti tus Lenher r, Der Einschub in die Huguccio-Handschrift der Kapitelsbib-liothek von Verona, in: Archiv für katholisches Kirchenrecht 153 (1984) 56ff., esp. 76. The Verona supplement includes the Causae hereticorum on fol. 400va (C.23 q.4 c.33)–416vb (C.26 q.7 c.18); Ordinaturus Magister: Munich, Bayerische Staatsbiblio-thek lat. 10244 and Vatican, Biblioteca Apostolica Ross. 595; Ius naturale: Paris, Bib-liothèque Mazarine 1318; Glossa Palatina of Laurentius Hispanus: Salzburg, Erzabtei St. Peter a XII 9 and Vatican, Biblioteca Apostolica Palat. lat. 658; Glossa ordinaria of Johannes Teutonicus: Munich, Bayerische Staatsbibliothek lat. 14024 and Vatican, Biblioteca Apostolica Palat. lat. 1367.

7) Ti tus Lenher r, Die Exkommunikations- und Depositionsgewalt der Häretiker bei Gratian und den Dekretisten bis zur Glossa ordinaria des Johannes Teutonicus (= München theologische Studien, Kanonistische Abteilung 42), St. Ottilien 1987.

8) Wolfgang Mül le r, Huguccio: The Life, Works, and Thought of a Twelfth-Century Jurist (= Studies in Medieval and Early Modern Canon Law 3), Washing-ton D.C. 1994, 73ff.; Kenneth Pennington/Wolfgang Mül le r, The Decretists: The Italian School, in: The History of Medieval Canon Law in the Classical Period, 1140–1234, eds. Wi l f r ied Har tmann/Kenneth Pennington , Washington D.C. 2008, 121ff., here 149–152. Müller authored Section II “The Summa Decretorum of




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A brief survey of references to Causae 23–26 will highlight the discrep-ancy between the designated title Causae hereticorum and the treatment of the material which extends far beyond heresy. Causa 25 is a case in point. Traditionally lumped into the Causae hereticorum, no one – to my knowl-edge – has treated Causa 25 as one of heresy. It is analyzed within the con-fines of the papacy’s right to grant and to revoke privileges9). Of the group, Causa 23 has received the most attention. James Megivern referred to Causa 23–Causa 27 (an interesting attribution considering Causa 27 is the first case in the tractatus de coniugio) as the Causae hereticorum, but his study focused on capital punishment and his concern with Causa 23 lay in its jus-tification of war and the control of violence through moral injunctions10). Frederick Russell likewise analyzed Causa 23 through the lens of just war theory and the justification for the use of corporal punishment. Russell noted that Gratian distinguished between just wars waged for the secular motives of avenging injuries and repelling enemy attacks, and holy wars waged on the Church’s behalf or by the Church to avenge injuries done to Christianity by heretics, excommunicates, and infidels11). Gratian’s analysis, Russell felt, lacked precision. His identification of who possessed the req-uisite power to wage war covered a host of authorities from the emperor or king down to the lowliest of vassals. Furthermore, he found the argument regarding defense against attack, judicial punishment of wicked men, and the Church’s role in warfare “diffused and overlapping”12). In fact, one does not have to look hard to find an analysis of Causa 23 within the context of just war theory13). Trisha Olson also noted that Causae 23–27 (!) have been

Huguccio”, which contain the references cited, while Pennington authored the remain-der of the chapter. Müller draws from Gi l lmann (n. 4), p. 243, which was reprinted in: Gesammelte Schriften zur klassischen Kanonistik von Franz Gillmann, ed. Ru-dol f Weigand (= Forschungen zur Kirchenrechtswissenschaft), 3 vols. Würzburg 1988–1993, vol. 1 no. 8.

9) E.g., S tan ley Chodorow, Christian Political Theory and Church Politics in the Mid-Twelfth Century: The Ecclesiology of Gratian’s Decretum, Berkeley 1972, 141ff.

10) James J . Megivern , The Death Penalty: An Historical and Theological Sur-vey, Mahwah/NJ 1997, 88.

11) Freder ick Russe l l , The Just War in the Middle Ages (= Cambridge Studies in Medieval Life and Thought, Third Series 8), Cambridge 1975, 75, 80ff.

12) Ibid. 56, 71.13) E.g., G. Hubrecht , La Juste guerre dans le Décret de Gratien, in: Studia Gra-

tiana 3 (1955), 161–177; J . Kunz , Bellum Justum and Bellum Legale, in: American Journal of International Law 45 (1951), 528–534; F. S t ruckermeyer, The ‘Just War’ and the Right of Self-Defense, in: Ethics 82 (1971), 48–55.



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designated unofficially as the Causae hereticorum. However, the issue of heresy in Causa 23 occurs as a backdrop to discussion of the blood sanc-tion. She commented upon the case within the context of vindicata, which she translated as “requital”. Vindicata was permitted when it aimed to cor-rect wrongdoing. For Gratian, vindicata lost its stain of sin when the secu-lar authority used it with misericordia (mercy/compassion) and dilectionis (love/esteem). Olson grounded her argument in Sally Anne Scully’s dis-sertation, which noted that the Decretists treated heresy tangentially when commenting on Causa 23. The primary topic, according to Scully, centered upon whether judicial killing was ever justified14). Turning to Causa 24, Elisabeth Vodola examined the case as part of a larger study on excommu-nication15); heresy received but a passing mention16). Titus Lenherr focused specifically on the excommunication and deposition of a heretical bishop in Question 117). Likewise, Anders Winroth treated excommunication and heresy in tandem in his case study of Causa 24 and the recension history of the Decretum18).

Both Robert Benson and Stanley Chodorow centered their analysis of these cases on ecclesiology. Not once did they refer to them as the Causae hereti-corum. Benson focused his discussion of Causa 23 on Question 8 and the issue of corporalia versus spiritualia. His discussion of Causa 24 centered on the reception of sacerdotal powers (potestates) directly from God through the sacrament of orders. These neither could be changed nor be taken away by the ecclesiastical hierarchy. The right to execute these powers (executio potestatis), however, was derived from the licentia episcopi. As such a sus-pended priest did not lose his potestas, but only his executio potestatis19). Stanley Chodorow touched on all of these cases. His discussion of Causa 23

14) Tr i sha Olson , The Medieval Blood Sanction and the Divine Beneficence of Pain: 1100–1450, in: Journal of Law and Religion 22 (2006/2007), 79, n. 84. See Sa l -ly Anne Scul ly, Killing ex officio: The Teachings of 12th and 13th Century Canon Lawyers on the Right to Kill, Ph.D. diss. Harvard University, 1975, 22.

15) E l i sabe th Vodola , Excommunication in the Middle Ages, Berkeley 1986, 29–30.

16) Ibid. 78, 117.17) Lenher r, Exkommunikations- und Depositionsgewalt (n. 7). The first part of

his work provided a new edition of the text and an analysis of the central issues, sources used, and structure.

18) Anders Winro th , The Making of Gratian’s Decretum (= Cambridge Studies in Medieval Life and Thought: Fourth Series 49), Cambridge 2000, 34–76.

19) Rober t Benson, The Bishop-Elect: A Study in Medieval Ecclesiastical Of-fice, Princeton 1968, 317–325, 44–55.




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focused on the coercive abilities of the Church. According to Chodorow, upon whom Russell leaned heavily, Gratian seemed to justify the use of force both by secular authorities (publicae potestates) and by rulers of the Church (viri sancti). The Church could use the material sword when secular power refused to act promptly upon a request from a bishop or the pope. Stated another way, if the Church could request that secular rulers take up the sword in their favor, than the Church possessed the right of coercive power (ius coactivae potesta-tis) if not the execution of this power (executio iuris). While Gratian at times alluded to the Church’s coercive power as a cooperative act between itself and the secular realm, most of the time he deemphasized cooperation and emphasized the Church’s abilities20). Akin to Benson, his discussion of Causa 24 concentrated on the distinction between sacerdotal potestas and executio. His discussion of Causa 25 centered on the legislative power of the papacy. Finally, Chodorow mentioned Causa 26, but within the confines of Question 6 whereby he focused on the difference between a bishop and a priest as one of sacramental power21).

Edward Peters has shown the incongruity between the designation as the Causae hereticorum and the content of Causae 23–26. In his sourcebook on witchcraft, he followed the well-trodden path by saying that “Causae 23–26 are generally known as the causae of the heretics because they contain most of what Gratian has to say about heresy”22). But as his monograph on witchcraft and the law highlighted, Causa 26 is often viewed as two separate and distinct sections: Questions 1–5 deal with magic and divination; and Questions 6 and 7, as Peters has noted, “deal with the more general problem of giving last rites to condemned sinners. They say nothing of magic”23). In the Proceedings from the Tenth International Congress of Medieval Canon Law where he analyzed the notion of crimen exceptum, he noted that Gratian used Causae 23 and 24 to “justify and legitimate the use of force on the part of any Christian, cleri-cal or lay…”24). Here he saw the Causae hereticorum as laying out “a general

20) Chodorow, Christian Political Theory (n. 9), 228ff.21) Ibid. 141–148 (focusing on Causa 25), 168 (focusing on Causa 24), 173–178

(focusing on Causa 26).22) Alan Char les Kors /Edward Pe ters (eds.), Witchcraft in Europe: 400–

1700: A Documentary History, 2nd edn. Philadelphia/PA 2001, 72.23) Edward Pe ters , The Magician, the Witch, & the Law, Philadelphia/PA 1978,

74.24) Edward Pe ters , Crimen exceptum: The History of an Idea, in: Proceedings

of the Tenth International Congress of Medieval Canon Law (Syracuse, 13–18 August 1996), eds. Kenneth Pennington/Stan ley Chodorow/Kei th H. Kendal l (= Monumenta Iuris Canonici [MIC], Series C: Subsidia 11), Vatican City 2001, 164.



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theory of criminal law – and criminal psychology – that might be applied by both ecclesiastical and lay judges”25).

To offer one final example, Anthony Melnikas examined the miniatures of Decretum manuscripts. He concluded that Causae 21–26 formed “one unit … concerned mainly with the worldly affairs of the ecclesiastics”26). A late twelfth century miniature drawn by an illuminator from Northern France de-picted the iconographical standard for the depiction of Causa 21, which would last through the fifteenth century. In it a “secular” priest approached a ruler or possibly a judge holding a sword27). The representations of Causa 22 seemed to evolve over time. Beginning in the late twelfth century Italian and Ger-man illuminators depicted a dispute between a bishop and his archdeacon28). In the thirteenth century the use of two ecclesiastics with scrolls suggested a disagreement over juridical interpretations29). Finally fourteenth century illu-minators used offshoots of this motif whereby an archbishop or metropolitan sat in judgment over the disagreement30). Melnikas interpreted Causa 23 as a case regarding political policies and the papacy’s ability to use the gladius spiritualis and the gladius materialis. Such questions gave the causa “the character of a separate treatise, occasionally identified as De re militari et bello”31). He concluded that the case did not mirror the hypothetical but rather was about “the pragmatic aspects of the time”. He viewed it as concerned with the secular bishop’s role in the crusader expansion into the Holy Land, the Baltic regions, Spain, and the heretical movements in Central Europe32).

25) Ibid. 166.26) Anthony Meln ikas , The Corpus of the Miniatures in the Manuscripts of the

Decretum Gratiani, Vol. 2 (= Studia Gratiana 17), Rome 1975, 655. See also Hans Er ich Fe ine , Gliederung und Aufbau des Decretum Gratiani, in: Studia Gratiana 1 (1953), 353–370; and more recently Pe ter Landau , Gratian and the Decretum Gratiani, in: Har tmann/Pennington , History (n. 8), 36.

27) Ibid. 656, e.g., Fig. 14 (Siena, Biblioteca Comunale degli Intronati, M.S.G.V. 23, fol. 332v) on p. 663.

28) Ibid. 685–686, e.g., Fig. 8 (Munich 17161, fol. 107v) on p. 691.29) Ibid, 686, e.g., Fig. 14 (Cambrai, Bibliothèque municipale, Ms. C. 967, fol.

140) on p. 693.30) Ibid. 687, e.g., Fig. 24 (Florence, Biblioteca Laurenziana, Ms. Ed. 97, fol. 251)

on p. 698.31) Ibid. 711.32) Ibid. 714. Melnikas defined secular bishops as those “bishops who lived within

the Levitical territory or those of the secular realm and within the feudal system; that is, the bishops holding spiritual offices due to temporal services as local lords, who had predominantly served as secular administrators and protectors of the bishoprics or monastic properties” (713).




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A number of illuminators in the second half of the twelfth century depicted the case as one dealing with the secular bishop and war whereby a bishop, along with his military, faces the dissenting opponents33). The miniatures of Causa 24 consistently depicted the bishop depriving priests of their office34). Illuminators of Causa 25 depicted the case as one of providing a legitimate bases on which the papacy could change previously established decrees. Such was an important matter when one considered the economic havoc inflicted upon bishoprics by exemption: while baptismal churches were required to contribute a fourth of their income from the tithes to their bishops, many mon-asteries were not35). Finally, the miniatures of Causa 26 frequently showed the case as one centering upon the discord created when a priest engaged in superstitious practices36).

I I I . Cont r ibu tors to the Causae here t icorum

Probing deeper into the meaning of these cases and trying to reconcile the discrepancy between the designation of Causae hereticorum and the varying historiographical interpretations should begin with a reassessment of the rea-sons for interpreting heresy as the focal point. Most obvious is the hypotheti-cal which opens with heresy. The second is the introductory summary that circulated as a teaching aide and reduced the causa’s contents to a question of heresy. Finally is the cross-reference “in prima causa” and its equation to a tractatus.

1 . The Ar t of the Hypothe t ica l :One of the features that made the Decretum revolutionary was Gratian’s

use of the hypothetical. John Dillon has argued that the hypothetical was an organizational tool in that it set forth the questions to be asked and the or-der in which they were to be treated. The case statement simply served as a mechanism by which to bring together the questions that Gratian wanted to address37). Some cases, he maintained, echoed real legal disputes as evident by the both hypothetical and the questions focused on a “single problem or

33) Ibid. 742–743, e.g., Fig. 10 (Munich 17161, fol. 111v) on p. 757.34) Ibid. 778, e.g., Fig. 11 (Vatican, Biblioteca Apostolica Vaticana, Ms. Lat. 2491,

fol. 410v) on p. 784.35) Ibid. 805, 807, e.g., Fig. 9 (Amiens, Bibliothèque municipale, Ms. 354, fol.

200) on p. 811.36) Ibid. 834, e.g., Fig. 8 (Paris, Bibliothèque nationale, Ms. lat. 3884, Tome II, fol.

59v) on p. 839.37) See John Noël Di l lon , Case Statements (themata) and the Composition of

Gratian’s Cases, in: ZRG KA 92 (2006): 307, 309.



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several closely related issues”. The majority of the cases, however, comprised of loosely related issues and thus “[t]he ‘case’ as a whole bears little resem-blance to reality”. Such was “an odd fact if the causae are supposed to be the work of an exacting legal mind …”38).

Dillon raised some interesting points. The hypotheticals did have an or-ganizational element: more often than not, the hypothetical reads in the same order as the questions are treated. The question of reality is complicated. Because every case is unique, what mattered to Gratian was teaching the thought process needed to tease out the issues. The introductory statement is something akin to an episode of the American television drama “Law and Order”. While elements of the story are grounded in real cases, the story as a whole is fictional. The hypotheticals then were a pedagogical tool used to teach students how to think through the elements of a case presented before them, not necessarily to present a case that mirrored exactly what they would find on the job. Gratian’s ingenuity in constructing the hypotheticals extends even farther. When Gratian thought about what elements to combine and how to combine them, he used one of the legal issues as a “hook” to engage the students’ interest. While a matter of legal importance, this “hook” was sec-ondary to the underlying point of the case.

The hypothetical of Causa prima, a case found only in the manuscript St. Gallen, Stiftsbibliothek 673, illustrates the points made above:

Laicus quidam litteratus concubinam habebat, tandem ea dimissa ad subdiaconum convolatum. Deinde uxorem sibi asciuit, post pauca ad diaconum ascendum, sicque in episcopum electus est. Queritur igitur an nubentes post votum sint separandi? Secundo, an si concubinam habuerit in episcopum sit ordinandus? Tertio, utrum in sacro ordine tantum constitutus eligendus sit in episcopum39)?

[A learned layman had a concubine. In the end he left her and immediately became a subdeacon. Afterwards he took a wife. After a short time he became a deacon and was then elected bishop. It is asked whether those who marry and after assuming clerical office should be separated? Second should a cleric who had a concubine be ordained a bishop? Third should someone who has just been received in sacred orders be ordained a bishop?]

The organizational element of the case is quite clear, and the questions posed follow the order in which the hypothetical presented the correspond-ing fact. Also clear is how this hypothetical would garner the class’s atten-tion: clerical celibacy. And as we know from any number of eleventh cen-tury sources, the matter was a point of contention. Peter Damian’s letter to

38) Ibid. 308.39) St. Gallen, Stiftsbibliothek 673, fol. 3a.




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Pope Nicholas II recounted the former’s speech to the bishops at the 1059 Easter Synod in Rome where he stated: “I sought to bar the door of their loins and tried, as it were, to apply the safeguards of chastity to their priestly genitals”40). However, looking beyond this entry point, which was an impor-tant issue, the underlying theme of the causa comes forth: speed of promotion through the ecclesiastical ranks. In this case, the subject progressed from lay-man to bishop in a short time frame. As one reads through the case, Question 1 and the first two canons of Question 2 dealt with clerical concubinage, while the remainder of Questions 2 and Question 3 dealt with the more mundane matters of who could enter the priesthood and the election of bishops. Surely students would have groaned had Gratian began with the practical. By in-troducing the subject matter with clerical continence, however, Gratian was able to engage the students and address an important issue without creating a separate causa, all the while focusing on the matter of the priesthood and episcopal elections. Both were real issues even if this exact situation never really happened.

The causae are in fact the product of an exacting legal mind. Gratian cre-ated a complex case statement that addressed a number of legal quandaries. One of the legal issues served as an entry point into the case in order to en-gage his students. It was not the most important aspect of the case and did not warrant a causa unto itself; however, it was important enough to address in some fashion. It served as a springboard into the larger issue – the underlying theme – that Gratian did want to address. At the same time, he used the case statement as a pedagogical tool to teach his students both how to tease out and identify the specific elements of any case as well as how they related to one another, no matter how complicated the facts became. With this in mind, we must reexamine the case statements of Causae 23–26.

Heretical bishops who took the offensive to compel those from the sur-rounding regions into their heresy serve as the entry point into Causa 23. From here we get into the heart of the case: the bishops who were ordered by the pope – and already had civil jurisdiction from the emperor – to defend the faithful from the heretics however they could and, when they were able, compel them to return to the righteousness of the faith. Having received the prerequisite authority from both the sacred and secular realms, the bishops called together soldiers and began to fight openly and through ambushes. Fi-nally, with some heretics handed over to be killed and with others placed in

40) Owen J . Blum O.F.M. (trans.), The Letters of Peter Damian, 61–90 (= Fa-thers of the Church: Mediaeval Continuation), Washington D.C. 1992, Letter 61, p. 3.



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jails and dungeons, those who remained were forced to return to the faith. The first three questions focus on war: Question 1 asks whether military service is a sin; Question 2 defines a just war; Question 3 asks whether one should use arms to ward off injuries done to allies. The next two questions focus on corporal punishment: Question 4 asks whether or not one can use force to take revenge; Question 5 asks if it sinful for judges and other officials to kill a guilty person. The next two questions focus on non-corporeal punishment: Question 6 asks whether people could be forced to conduct themselves in a moral manner; Question 7 asks whether the possessions of heretics can be taken from them and placed into the possession of another. Question 8 pulls the entire causa together by asking whether it is permitted for bishops or cler-ics to take up arms on their own authority or on the authority of the pope or the emperor41). Heresy served as the springboard into the underlying theme of the bishop who had two authorities – the pope and the emperor – and his engagement in the secular activities required of his position. Could a bishop, as a feudal lord, fulfill his duty to military service and the dispensing of justice that might entail capital crimes?

Heresy likewise served as the entry point into Causa 24. A heretical bishop deprived some priests of their office and excommunicated them. After his death, the bishop along with his followers and their families were accused of heresy and condemned. Question 1 asks whether one who has lapsed into heresy may deprive others of their office or excommunicate them. Question 2

41) Causa 23 d.init.: Quidam episcopi cum plebe sibi conmissa in heresim lapsi sunt; circumadiacentes catholicos minis et cruciatibus ad heresim conpellere cepe-runt, quo conperto Apostolicus catholicis episcopis circumadiacentium regionum, qui ab inperatore civilem iurisdictionem acceperant, inperavit, ut catholicos ab hereticis defenderent, et quibus modis possent eos ad fidei veritatem redire conpellerent. Epis-copi, hec mandata Apostolica accipientes, convocatis militibus aperte et per insidias contra hereticos pugnare ceperunt. Tandem nonnullis eorum neci traditis, aliis rebus suis vel ecclesiasticis expoliatis, aliis carcere et ergastulo reclusis, ad unitatem cathol-icae fidei coacti redierunt. Hic primum queritur, an militare peccatum sit? Secundo, quod bellum sit iustum, et quomodo a filiis Israel iusta bella gerebantur? Tertio, an iniuria sociorum armis sit propulsanda? Quarto, an vindicta sit inferenda? Quinto, an sit peccatum iudici vel ministro reos occidere? Sexto, an mali sint cogendi ad bonum? Septimo, an heretici suis et ecclesiae rebus sint expoliandi, et qui possidet ab hereti-cis ablata an dicatur possidere aliena? Octavo, an episcopis vel quibuslibet clericis sua liceat auctoritate, uel Apostolici, vel inperatoris precepto arma movere? Emi l Fr iedberg (ed.), Corpus iuris canonici, Vol. 1: Decretum Magistri Gratiani, Leipzig 1879; reprint Graz 1955 [hereafter edF.], col. 889; Florence, Bibliotheca Nazionale Centrale, Conventi Sopressi A.I. [hereafter Florence] 402, fol. 61va–61vb; Admont, Stiftsbibliothek [hereafter Admont] 43, fol. 60r–60v.




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asks whether someone may be excommunicated after death. Question 3 asks whether an entire family ought to be excommunicated for the sin of one42). Heresy again served as a springboard into the power to excommunicate. A bishop’s ability to execute his powers to bind and to loose were contingent upon his obedience to Rome.

The rights of a baptismal church versus those of a monastery serve as the entry point to Causa 25. The hypothetical sets forth that the Holy Roman Church strengthened a baptismal church with papal privileges by granting to it all of the tithes from its own diocese. It similarly strengthened a monastery with its own privileges, decreeing that it should pay to no one the tithe from its own manors. The monastery had acquired one manor within the diocese of the baptismal church by purchase and another by donation. Contention arose between the monks and the clerics concerning the tithe. Question 1 asks whether the clerics of the baptismal church are able to demand for them-selves the tithe from its entire diocese on the authority of the privilege, and Question 2 asks whether the recent privilege of the monks restricts the long standing privileges of the baptismal churches43). The underlying focus of the causa is the pope’s ability to grant special privileges and to deviate from gen-eral privileges. Like Causae 23–24 which circumscribes the bishop’s power to punish and Causa 26 which circumscribes a priest’s power to reconcile, Causa 25 circumscribes the pope’s powers by focusing on his responsibility to the universal church.

With Causa 26 magic (soothsaying and divination) functions as the entry point thereby opening the door to the parish priest caught between the laity

42) Causa 24 d.init.: Quidam episcopus in heresim lapsus aliquos de sacerdotibus suis offitio privavit, et sentencia excommunicationis notavit. Post mortem de heresi accusatus dampnatur, et sequaces eius cum omni familia sua. Hic primum queritur, an lapsus in heresim possit aliquos offitio privare, vel sentencia notare? Secundo, an post mortem aliquis possit excommunicari? Tertio, an pro peccato alicuius tota familia sit excommunicanda? edF. col. 965; Florence 402, fol. 70ra; Admont 43, fol. 86r–86v.

43) Causa 25 d.init.: Sancta Romana ecclesia quandam baptismalem ecclesiam suis munivit privilegiis, decimationes suae diocesis ex integro sibi attribuens. Item quod-dam monasterium similiter munivit privilegiis propriis, decernens, ut ex propriis pre-diis nulli decimas persolveret. Accidit itaque, ut intra diocesim premunitae baptismalis ecclesiae prefatum monasterium alia emptione, alia donatione predia sibi inveniret. Oritur itaque contentio inter monachos et clericos de decimis. Nunc primum queritur, an clerici baptismalis ecclesiae auctoritate privilegii decimas suae diocesis ex integro sibi valeant vendicare? Secundo, an subsequenti privilegio monachorum derogetur antiquioribus privilegiis baptismalium ecclesiarum? edF. col. 1006; Florence 402, fol. 74rb; Admont 43, fol. 99r.



Melodie Eichbauer100

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and his bishop, both of whom he serves. A certain priest was found guilty by his bishop of being a fortuneteller and a diviner. Having been reproved, the priest was unwilling to cease his ways and was excommunicated. On his deathbed another priest reconciled him without having received permission from the bishop beforehand. A penance was prescribed for the dying priest within the period of time provided by the canons. The first five questions ad-dress magic: Question 1 asks ‘what are soothsayers’; Question 2 asks whether it is a sin to be a soothsayer; Question 3 asks about the origins of divination; Question 4 asks about the types of divination; Question 5 asks whether sooth-sayers and diviners must be excommunicated if they do not want to appear before the tribunal. Superstition, in one form or another, was a great threat not only to the maintenance of the ecclesiastical hierarchy but also to the re-ligiosity of the laity in general. A priest was responsible for the spiritual well-being of his parish, which meant that neither he nor his flock should engage in superstitious practices that minimized the saving power of the Church. However, the priest was also responsible for the dying. As such the last two questions juxtapose the priest’s duty to the dying with his ob edience to the bishop. Question 6 asks whether a priest excommunicated on his deathbed is able to be restored by another priest who did not seek permission from the bishop, and Question 7 asks whether the full amount of penitence must be proclaimed for those who are dying44).

An analysis of the case statements reveals that heterodoxy was a legal matter of concern but it really served to introduce the broader topic by draw-ing the students into the discussion. Read in conjunction with one another, the navigation of one’s ecclesiastical office and the extent of one’s powers appear as underlying themes. As I will discuss below, the duties of a bishop to his two lords, the duties of the pope to the universal church, and the duties of a priest to his bishop and to his parish are the main concerns. Heresy and magic should be seen through the lens of disobedience and the disruption of order.

44) Causa 26 d.init.: Quidam sacerdos sortilegus esse et divinus convincitur apud episcopum; correctus ab episcopo noluit cessare; excommunicatur; tandem agens in extremis reconciliatur a quodam sacerdote episcopo inconsulto; indicitur penitencia sibi sub quantitate temporis canonibus prefixa. Primum queritur, qui sint sortilegi? Secundo, an sit peccatum esse sortilegum? Tertio, a quibus genus divinationis sumpsit exordium? Quarto, quot sint genera divinationis? Quinto, an sortilegi vel divini sint excommunicandi, si cessare noluerint? Sexto, an excommunicatus ab episcopo pos-sit reconciliari a presbitero, illo inconsulto? Septimo, si morientibus est indicenda penitencia sub quantitate temporis? edF. col. 1020; Florence 402, fol. 75vb; Admont 43, fol. 103r–103v.




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2. In secunda par te : Causae 23–26 and the Ques t ion of Heresy :

The structure of “In secunda parte” likewise can give the impression that heresy was the dominant focus of Causae 23–26. This introductory sum-mary to the causae was a teaching tool in that it summarized and facilitated the study of the contents. Carlos Larrainzar has noted that an anonymous author compiled the text although it appeared among earliest of the De-cretist literature; sadly, however, lacking data makes certainties difficult to determine45). Furthermore, he found that that the summary had an irregular transmission, circulating in three forms. In some manuscripts, such as in Florence, Bibliotheca Nazionale Centrale, Conventi Sopressi A.I. 402 (fol. 119rb–164rb), it was a part of the text. Here it is found in the supplement, the Addiciones boloñesas, which contains the second recension texts; it precedes the corresponding additions to that case. In other manuscripts, “In secunda parte” appears as a proper introduction to the Decretum and pre-cedes the text, such as in Admont, Stiftsbibliothek 43 (fol. 1r–11r). Finally in other manuscripts, it appears as an independent work separate from the compilation, as with Mainz, Stadtbibliothek II 204 (fol. 274rb–281vb)46). While the placement of the summary differs, the summary itself is fairly standard in that the manuscripts examined vary little with regards to the material included; the manuscripts seem to reference the same canons and dicta47). It is important to remember that it is a summary – not an analy-sis – of each causa. The hypotheticals are reduced to one sentence thereby stripping them of their nuances. Without the nuances, the canons and dicta referenced in each question – which include second recension texts and paleae – oversimplify the contents of the causa by focusing on one singu-lar topic.

The rendering of the hypothetical of Causa 23 illustrates the above point. It reads: In causa xxiii agitur de hereticis quos catholici ad unitatem ecclesiae

45) Car los Lar ra inzar, Notas sobre las introducciones ‘In prima parte agitur’ y ‘Hoc opus inscribitur’, in: Medieval Church Law and the Origins of the Western Le-gal Tradition: A Tribute to Kenneth Pennington, eds. Wolfgang P. Mül le r /Mary E. Sommar, Washington D.C. 2006, 134, 135. In prima parte agitur introduces the Distinctiones.

46) Ibid. 143–144.47) Florence 402, fol. 146rb–146vb, fol. 150ra, fol. 151va–151vb, fol. 152rb; Ad-

mont 43, fol. 5r–7v; Mainz, Stadtbibliothek, II [hereafter Mainz] 204 fol. 279ra–280rb; Harvard, Harvard Law School [hereafter Harvard] 64 fol. 3vb–5ra; Munich, Bayerische Staatsbibliothek, Clm. [hereafter Munich] 13004, fol. 7ra–8ra; Munich 28161, fol. 6va–8ra.




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militare auxilio redire compellunt48). The summary uses a broad brush stroke to capture the perceived essence of the hypothetical, but strips the causa of its nuances. The omission of

… quo comperto Apostolicus catholicis episcopis circumadiacentium regionum, qui ab imperatore civilem iurisdictionem acceperant, imperavit, ut catholicos ab hereti-cis defenderent, et quibus modis possent eos ad fidei veritatem redire compellerent. Episcopi, hec mandata Apostolica accipientes, convocatis militibus aperte et per insidias contra hereticos pugnare ceperunt. Tandem nonnullis eorum neci traditis, aliis rebus suis vel ecclesiasticis expoliatis …

is fundamentally important as it changes the tenor of the case49). While the condensed hypothetical narrows the case to a war against heretics, the original hypothetical uses heresy as a way to broach bishops serving as secular rulers of their respective territories. The bishops had received both papal permis-sion and civil jurisdiction (from the emperor) to raise an army and combat the enemy. That some from among the enemy had received the death penalty while others had their property taken alludes to a juridical aspect of the case. The oversimplification removes Question 4 from the context of the judicial sentence of capital punishment, because it renders malum as a synonym for heresy. As such Question 5 takes the tone of handing heretics over to be killed as opposed to the judge’s ability to render a death sentence for capital crimes. The oversimplification also renders Question 8 awkwardly as it begins with a bishop’s ability to wage war (on heretics) but ends with the bishop’s (feudal) duties of paying taxes to the emperor and serving as judge (… de sacerdotibus quibus principes iudicia committunt …)50). The failure to capture the nuances of the hypothetical presents the case as having a singular focus – a war against heretics – with the occasional side-step to other unrelated topics.

The same can be said of Causa 26. The hypothetical is reduced to [i]n xxvi causa agitur de sacerdotibus sorilegis et divinis ita quam…51). The priest’s excommunication by the bishop goes unmentioned as does …tandem agens in extremis reconciliatur a quodam sacerdote episcopo inconsulto; indicitur penitencia sibi sub quantitate temporis canonibus prefixa52). The summary omits the importance of the second priest who stepped outside the defined

48) Florence 402, fol. 146rb; Admont 43, fol. 5r; Mainz 204, fol. 279ra; Harvard 64, fol. 3vb; Munich 13004, fol. 7ra; Munich 28161, fol. 6va.

49) edF. col. 889.50) Florence 402, fol. 146vb; Admont 43, fol. 6r; Mainz 204, fol. 279vb; Harvard

64, fol. 4rb; Munich 13004, fol. 7va; Munich 28161, fol. 7rb.51) Florence 402, fol. 152rb; Admont 43, fol. 7r; Mainz 204, fol. 280ra; Harvard 64,

fol. 4vb; Munich 13004, fol. 7vb; Munich 28161, fol. 7vb.52) edF. col. 1019.




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boundaries of his duties to prescribe penance, thereby allowing the excom-municated and now dying priest to be reconciled. The summary further ac-centuates the disconnect between Questions 1–5 and Questions 6–7. These last two questions appear as a separate entity rather than being placed within the context of the priest’s duties to care for the dying, despite it being an episcopal prerogative.

While the rendering of the hypothetical in Causa 24 is not distortive, the rendering of Question 1 is. The snippets of d.p.c.4, d.p.c.37, and d.p.c.39 focus entirely on a heretical bishop’s inability to excommunicate or to rec-oncile, and, though they are permitted neither to baptize nor to ordain, such sacraments will not be repeated if they do so. It does not matter whether the bishop follows a previously condemned heresy or creates a new one53). This rendering of Question 1 oversimplifies the heart of the question: correct belief – whatever that belief may pertain to – is tied to following the path laid down by Rome. Canons 5 through 36 set forth the primacy of the Roman church and the connection between obedience and the powers to bind and loose.

Contrary to other collections, Gratian did not compile a preface in which he explained his purpose, methodology, and use of sources54). “In secunda parte” appears to be the product of an anonymous author early after the com-pletion of the vulgate edition (later additions plus paleae). It therefore cannot be taken as Gratian’s interpretation of these causae. Furthermore, the sum-mary takes the cases out of context by focusing on the first sentence of the hypothetical, which is the “hook” and, as an entry point into the case, tends not to be the main focus.

3 . The c ross - re ferences ‘ t rac ta tus’ and ‘ in pr ima causa’ :Finally, some of our preconceived notions about Causae 23–26 arise due

to a conflation of the cross-reference “ in prima causa” with the cross-ref-erence tractatus. In the Prolegomena to the 1879 critical edition of the De-cretum, Emil Friedberg began by describing the structure of Gratian’s work. He observed that to recall passages Gratian used the first words of a causa, sentences of chapters, or phrases such as causa hereticorum and tractatus coniugii55). The Causae hereticorum received the attribution with the well-

53) Florence 402, fol. 150ra; Admont 43, fol. 6r–6v; Mainz 204, fol. 279vb; Harvard 64, fol. 4rb; Munich 13004, fol. 7va; Munich 28161, fol. 7vb.

54) See Rober t Somervi l le /Bruce C. Bras ington (trans.), Prefaces to Can-on Law Books in Latin Christianity: Selected Translations, 500–1245, New Haven/CT 1998.

55) edF. col. xii.




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known cross-reference to C.23 q.4 c.2 found in C.7 q.1 d.p.c.48: Hinc etiam Augustinus: ‘Tu bonus tollera malum etc.’ infra, de tollerandis malis, in prima causa hereticorum56).

An analysis of the cross-references in the Decretum, however, reveals a purposeful distinction between a tractatus and “in prima causa”. A tractatus has a narrow and specific focus on one particular topic. The two most rec-ognizable tracts are the De consecratione and the De penitentia, the latter of which begins with the opening line His breviter decursis in both recen-sions57). Aside from these, only four tracts are specifically cross-referenced: the tractatus ordinandorum, the tractatus de promotionibus clericorum, the tractatus coniugii, and the tractatus decretalium epistolarum. The references

56) edF. col. 587.57) edF. col. 1293, col. 1159; Florence 402, fol. 88rb; Admont 43, fol. 145r; Munich

13004, fol. 275vb; Munich 4505, fol. 273ra. While work to understand the Decre-tum’s transmission continues, scholars recognize two main versions. One, commonly referred to as the first recension, is found in four manuscripts previously considered to be abridged editions of the Decretum: Florence, Biblioteca Nazionale Centrale, Conventi Soppressi, A.1.402; Barcelona, Arxiu de la Corona d’Argó, Santa Maria de Ripoll [hereafter Barcelona] 78; Paris, Bibliothèque Nationale de France, nouvelles acquisitions latines 1761; Admont 23 and 43. The earlier recension presented an argu-ment in a more coherent fashion, relied on a different set of sources, drew blocks of canons in sequential order from those sources, and preserved a closer reading of those texts. Commonly referred to as the second recension, the additional texts (minus the later additions known as paleae) nearly doubled the size of the work and disrupted the original discussion. See Winro th , The Making of (n. 18), 123. For a fuller discussion of the redaction debate surrounding the Decretum, see Melodie H. Eichbauer, Gratian’s Decretum and the Changing Historiographical Landscape, in: History Com-pass 11 (2013), 1112–1114. Because the two recensions have such stark contrasts, Winroth posed a “two Gratians-theory” whereby Gratian compiled the first recension, which responded clearly to the questions posed, while the “compilers” of the second recension did not hesitate to digress. See Winro th , The Making of (n. 18), 175ff. Jean Werckmeis te r also espoused Winroth’s “two Gratians-theory”, see Les deux versions du ‘de matrimonio’ de Gratien, in: Revue de droit canonique 48, no. 2 (1998), 301–302, 304, 311. Based upon an examination of C.3 q.1 d.p.c.2, which originated with Roman law (even if not cited explicitly), José Miguel Vie jo-Ximénez like-wise believed that the inclusion of the texts in the second recension gravely distorted the arguments. It thus was difficult to accept that the same person compiled both texts. See ‘Costuras’ y ‘descosidos’ en la versión divulgada del Decreto de Graciano, in: Proceedings of the Thirteenth International Congress of Medieval Canon Law (Eszter-gom, 3–8 August 2008), eds. Pé te r Erdö/Anzelm Szabolcs Szuromi (= MIC Series C: Subsidia 14), Vatican City 2010, 340. Having received limited attention aside from Werckmeister and Viejo-Ximénez, I will consider the first and second recension to be the work of one Gratian.




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to the tractatus ordinandorum are: in C.1 q.7 d.p.c.6 referring to D.55 c.158); in C.3 q.1 d.p.c.6 referring to D.79 c.959); in C.11 q.3 c.15 referring to D.93 c.160); in C.16 q.1 d.p.c.40 referring to D.93 c.561); in De consecratione D.1 d.p.c.50 referring to D.75 c.4 and c.7, and to D.76 c.1262). There is one refer-ence to a tractatus de promotionibus clericorum: in C.16 q.1 d.p.c.20 referring to D.77 c.963). The different stages at which the cross-references were added offer an explanation for the apparent overlap between the tractatus ordinan-dorum and the tractatus de promotionibus clericorum. The reference to D.77 c.9 and the reference to D.55 c.1 were added to the first recension. At this stage, Gratian very well may have thought in terms of two separate tracts. The additional references to the tractatus ordinandorum were added during the various phases of the second recension additions64): the reference to D.93 c.1 in the first phase; the reference to D.93 c.5 in the second phase; the reference to D.79 in the third phase; the reference to D.75 c.4, c.7, and D.76 c.12 after the completion of the work. As the work continued to expand, Gratian seems to have abandoned the idea of two separate tracts, but the lone reference to the tractatus de promotionibus clericorum was never changed. There is one reference to the tractatus coniugii. De consecratione D.4 d.p.c.20, responding to a canon from the IV Council of Carthage (which stated that a woman can-not baptize), points the reader supra in tractatu coniugii ubi de compatribus agitur (C.30 q.3 c.4) which states that she can baptize in times of necessity65). Finally there is one reference to the tractatus decretalium epistolarum: in C.1 q.1 d.p.c.96 referring to D.19 c.966). This final reference is interesting as

58) edF. col. 430; Admont 23, fol. 115r; Florence 402, fol. 26ra; Barcelona 78, fol. 118rb.

59) edF. col. 507; Florence 402, fol. 32v (left margin); Barcelona 78, fol. 137r (right column bottom margin); omitted from Admont 23.

60) edF. col. 647; Florence 402, fol. 134va (supplement); Barcelona 78, fol. 165r (right margin); Admont 23, fol. 238r (supplement).

61) edF. col. 773; Florence 402, fol. 52r (right margin); Admont 43, fol. 282v (sup-plement).

62) edF. col. 1307.63) edF. col. 766; Florence 402, fol. 51va; Admont 43, fol. 22r.64) For a discussion of the progressive phases of second recension additions, see

Melodie H. Eichbauer, From the First to the Second Recension: The Progressive Evolution of the Decretum, in: Bulletin of Medieval Canon Law 29 (2011–2012), 119–167.

65) edF. col. 1367.66) edF. col. 392; Florence 402, fol. 88rb; Barcelona 78, fol. 107rb; Admont 23,

fol. 101v.




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scholars usually refer to DD.1–20 as the tractatus de legibus67). At no point, however, did Gratian use this phrase.

In all, Gratian appears to have compiled four tracts with the De consecra-tione compiled later by someone else. Of the four tracts, the tractatus decre-talium epistolarum does not appear as well developed as the De penitentia, the tractatus ordinandorum, and the tractatus coniugii. These tracts do not appear to have circulated separately in the manuscript tradition. However, the issues of penance, ordination, and marriage were commonplace in the quotid-ian church. As such these three tracts could make for reference guides and thus could be used independent from the rest of the work.

The second type of cross-reference directs the reader to an individual causa. For example, in C.6 q.1 d.p.c.19, the text Hereticos namque accusare infami-bus non prohibetur, ut supra patuit in ea causa, ubi de accusatione minorem adversus maiores disputatem est directs the reader to C.2 q.768). In C.16 q.1 c.16 sicut in eodem capite supra legitur in causa eorum, qui de diocesim transierunt directs the reader to C.13 q.2 c.669). In a number of instances, Gratian cross-referenced a causa by using the incipit of the hypothetical. For example, C.5 q.4 d.p.c.2 refers to the incipit of Causa 9 with Sententia excom-municatione notatus70). Both C.11 q.3 d.p.c.21 and C.11 q.3 d.p.c.26 refer to the hypothetical of Causa 24 Quidam episcopus in heresim lapsus71). Gratian also used a distinctive word at the beginning of the hypothetical as a way of providing a generic reference to the causa. Three such references were used: in causa monachorum, in causa simoniacorum, and in causa hereticorum. Three different cross-references refer to Causa 16 as a causa monachorum: in C.2 q.1 c.7 referring to C.16 q.6 q.3 with ‘Si autem episcopum talem culpam etc.’ et infra in prima causa monachorum72); in C.13 q.1 d.p.c.1 referring to C.16 q.1 c.42 with ‘Si quis laicus vel clericus seu utriusque sexus persona proprietatis suae loca etc’ sicut in eodem capitulo in causa monachorum notate inveniun-

67) See, for example, Augus t ine Thompson O.P. (trans.), The Treatise on Laws (Decretum DD. 1–20) (= Studies in Medieval and Early Modern Canon Law 2), Wash-ington D.C. 1993, front cover; Chodorow, Christian Political Theory (n. 9), 96ff.

68) edF. col. 559; Florence 402, fol. 35vb; Admont 23, fol. 154v; Barcelona 78, fol. 148ra.

69) edF. col. 765; Florence 402, fol. 51rb; Admont 43, fol. 21r.70) edF. col. 548; Florence 402, fol. 219rb, fol. 35r; Admont 23, fol. 267v; Barce-

lona 78, fol. 145r.71) edF. col. 649, col. 652; Florence 402, fol. 134vb, fol. 135ra; Admont 23,

fol. 175v, fol. 284r; Barcelona 78, fol. 165v, fol. 167r.72) edF. col. 441; Florence 402, fol. 123rb; Admont 23, fol. 254r; Barcelona 78,

fol. 121v.




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tur73); in C.13 q.2 d.p.c.1 referring to C.16 q.4 with Quomodo autem dis-tinguendae sint hae auctoritates, in causa monachorum invenietur74). Two dif-ferent cross-references refer to Causa 1 as a causa simoniacorum. D.32 d.p.c.6 refers in a general sense to Causa 1 with … videntur Ieronimo, Augustino et ceteris, qui Christi sacramenta neque in bono, neque in malo homine fugienda demonstrant, sicut subsequens causa simoniacorum plenius ostendit75). D.62 c.1 refers to C.1 q.1 c.40 with ‘Si qui autem clerici ab istis pseudoepiscopis in eorum ecclesiis ordinati sunt, etc,’ infra causa simoniacorum76). Finally, as stated above, there is one reference to Causa 23 as a causa hereticorum: in C.7 q.1 d.p.c.48 referring to C.23 q.4 c.2 with ‘Tu bonus tollera malum etc,’ infra de tollerandis malis, in prima causa hereticorum77).

There was a fairly sound understanding of what constituted a tract from the first recension, and, as we have seen, tractatus was used in limited instances to refer to very specific material. Of the twenty-two cross-references, nine refer to a tractatus78). Four of these references appear in the first recension79), and three references to a tractatus were added to the second recension80). Thirteen references refer to an individual causa81). Five of them appear in the first recension82), while eight references to a causa were added to the second recension83). The cross-references to Causa 23 and Causa 24 were among those added to the second recension.

73) edF. col. 720; Florence 402, fol. 47rb; Admont 23, fol. 194v.74) edF. col. 720; Florence 402, fol. 47va; Admont 23, fol. 195r.75) edF. col. 118; Florence 402, fol. 108va; Admont 23, fol. 110v; Barcelona 78,

fol. 46v.76) edF. col. 234; Admont 23, fol. 226r; Florence 402, fol. 11r; Barcelona 78, fol.

71v.77) edF. col. 587; Admont 23, fol. 275r; Florence 402, fol. 131va; Barcelona 78,

fol. 153v.78) C.1 q.1 d.p.c.96, C.1 q.7 d.p.c.6, C.3 q.1 d.p.c.6, C.11 q.3 c.15, C.16 q.1 d.p.c.20,

C.16 q.1 d.p.c.40, C.33 q.3 (Tractatus de penitentia), De consecratione D.1 d.p.c.50, De consecratione D.4 d.p.c.20.

79) C.1 q.1 d.p.c.96, C.1 q.7 d.p.c.6, C.16 q.1 d.p.c.20, C.33 q.3 (Tractatus de peni-tentia).

80) C.3 q.1 d.p.c.6, C.11 q.3 c.15, C.16 q.1 d.p.c.40.81) D. 32 d.p.c.6, D.62 c.1, C.2 q.1 c.7, C.5 q.4 d.p.c.2, C.6 q.1 d.p.c.19, C.7 q.1

d.p.c.48, C.11 q.3 d.p.c.21, C.11 q.3 d.p.c.24, C.11 q.3 d.p.c.26, C.13 q.1 d.p.c.1, C.13 q.1 d.p.c.1, C.14 q.1 d.p.c.1, C.16 q.1 c.16.

82) C.6 q.1 d.p.c.19, C.13 q.1 d.p.c.1, C.13 q.2 d.p.c.1, C.14 q.1 d.p.c.1, C.16 q.1 c.16.

83) D. 32 d.p.c.6, D.62 c.1, C.2 q.1 c.7, C.5 q.4 d.p.c.2, C.7 q.1 d.p.c.48, C.11 q.3 d.p.c.21, C.11 q.3 d.p.c.24, C.11 q.3 d.p.c.26.




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Had Causae 23–26 been intended as a tract focusing on heresy, one would expect the cross-references either to Causa 23 or to Causa 24 to use the phrase in tractatu hereticorum since the precedent was set for them to be referred to as such. Rather the cross-references to causa reveal that the reference in prima causa hereticorum simply meant there was more than one case refer-ring to heretics in the hypothetical. The phrase in prima causa does not equate to a tractatus. Rather prima causa hereticorum was an easy way to distinguish Causa 23 from Causa 24, which was cross-referenced twice by the incipit of the hypothetical.

Cases could be loosely bound but not form a tract84). The importance of understanding the organization of the causae in this light yields exciting pos-sibilities for understanding how Gratian linked concepts together. Whereas a tract, such as marriage, is intensely devoted to one topic, a “cluster” of cases formed a thematic unit with an underlying thread that connected multiple causae addressing different issues. Causae 23–26, as the above reanalysis of the hypotheticals likewise suggested, are loosely bound as a cluster of cases in that they deal with a number of issues related to obedience and the execu-tion of one’s office, which thereby afforded Gratian the opportunity to weave in heteropraxy (in Causae 23, 24, and 26) and last rites (Causa 26). Causae 1–6 form a thematic cluster dealing with the administration of justice and judicial procedure. In addition to this central theme, Gratian covered issues such as simony as well as juridical matters involving prelates. Causae 7–21 form another thematic cluster pertaining to diocesan administration, which in turn can be subdivided into three broad topics. The first topic focuses on his role by circumscribing of the episcopal office (Causae 7–11) and addressing business matters (Causae 12–15). The second topic centers on his relationship to the monasteries in his diocese (Causae 16–20). The third topic centers on the oversight of clerics (Causa 21). This technique allowed Gratian to cover a variety of topics but still link them together with a centralized theme. Such suggests that as a teaching text Gratian may have compiled his work for dioc-esan bureaucrats and functionaries: future bishops and administrators in their service (e.g., deacons and canons)85).

84) Rudol f Weigand had suggested that the pressures of teaching could have compelled Gratian to continually expand upon his initial work and that he developed causae out of loosely organized tractates. See Chancen und Probleme einer baldigen kritischen Edition der ersten Redaktion des Dekrets Gratian, in: Bulletin of Medieval Canon Law 22 (1998), 67–68.

85) To offer only one example, in addition to being a doctor of law Ansaldo served as a canon and deacon of the cathedral of St. Peter in Bologna in 1149. See Giovanni




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IV. Causae 22–26: Cases address ing obedience and the execut ion of one’s off ice

I suggested above that heterodoxy was a means to an end, a parachute into larger issues. Thus it might be more fruitful to consider Causae 23–26 in con-junction with the preceding Causa 22, which deals with the oath and perjury, as a thematic cluster focusing on obedience and duty. Using the early textual tradi-tion of the first recension as a vehicle to analyze the arguments, it is possible to see how Gratian applied the juridical aspects of oath-taking laid out in Causa 22 to structure the different interpersonal relationships analyzed in Causae 23–26. In other words, Gratian applied the principles that governed the oath to analyze how duty bound members of the ecclesiastical hierarchy to one another.

In order to teach how to navigate one’s duties, Gratian first must set forth the responsibilities engendered by the oath which bound one to another in obedience. Causa 22 sets forth the justification for and the agency of the oath by focusing on the circumstances in which one could enter into an oath and what constituted perjury. The hypothetical centers upon a certain bishop who falsely swore what he in fact thought to be true. Having learned of the bishop’s oath, his archdeacon swore that he would never take an oath of obe-dience to him. Angered by the archdeacon’s refusal to show obedience, the bishop compelled him to display the customary respect owed by his office. The bishop was accused of double perjury, both that he swore what was false and that he compelled the archdeacon to perjure himself. The case poses five questions. Question 1 asks whether or not one should swear an oath. Question 2 asks if he who swears falsely to what he thinks is true is a perjurer. Question 3 asks whether the archdeacon is permitted to deny the customary obedience to the bishop. Question 4 asks if the archdeacon’s oath is determined to be il-licit, whether he ought to uphold the oath. Finally, Question 5 asks if the oath should be upheld, and whether the bishop who compelled his archbishop to go against his oath is guilty of perjury86).

Niccolo Al idos i Pasqual i , Li dottori bolognesi di legge canonica, e civile, Presso Bartolomeo Cochí, Bologna 1620, 1; Seraf ino Mazzet t i , Repertorio dei Professori dell’Università di Bologna, Tipografia di S. Tommaso d’Aquino, Bologna 1847, 26a, num. 160. Alidosi Pasquali was a canon in the cathedral at Bologna while Mazzetti’s work drew together the eighteenth century works of Giovanni Fantuzz i , Notizie degli scrittori bolognesi, S. Tommaso d’Aquino, Bologna 1794; Mauro Sar t i , De claris Archigymnasii bononiensis professoribus a saeculo XI usque ad saeculum XIV, Tomi I Pars I, A Vulpe, Bononiae 1769; and Ludovico Savio l i , Annali Bolognesi, vol. I parts I–II, vol. II parts I–II, (s.n) Bassano 1784–1789.

86) Causa 22 d.init.: Quidam episcopus iuravit falsum quod putabat verum, quo




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The first recension of Causa 22 takes a very simple approach toward the justification for and the agency of the oath. Gratian merely outlined the cir-cumstances in which an oath was valid or invalid and the broad principles that governed its usage. Questions 1 and 2 rely on the Church Fathers to justify the use of the oath despite biblical prohibitions and to define perjury. Both parties are responsible for ensuring that their intentions and deeds reflect one another; both must uphold their oaths and avoid falsehoods87). Incorporating examples of oaths with unilateral obligations, such as the ecclesiastical oath of obedience discussed in Question 3, and oaths with bilateral obligations, such as the marriage oath in Question 4 and the feudal oath in Question 5, Gratian drew from a wider variety of material sources to explore the real-world applications. Returning to the issue posed in the hypothetical between the archdeacon and his bishop in Question 3 (which contains only an introduc-tory dictum and no canons), Gratian used the ecclesiastical oath to outline the parameters of an oath. No one may withdraw obedience prior to a guilty ver-dict in a trial88). Question 4 continues the discussion, drawing from the Fathers (such as Ambrose, Augustine, and Isidore), conciliar canons (particularly VIII Council of Toledo), ecclesiastical writings (Bede), and an apocryphal letter from Pope Soter. Offering three case studies involving both secular and eccle-siastical oaths as examples – to solidify a peace treaty89), to enter a religious

conperto archidiaconus eius iuravit se numquam prestaturum ei obedientiam. Con-pellitur archidiaconus ab episcopo ad exhibendum sibi consuetam reverentiam; ac-cusatur episcopus de dupplici periurio, et de eo, quod falsum iuravit, et quia archi-diaconum ad peierandum conpellit. Primum queritur, an iuramentum sit prestandum, vel non? Secundo, si sit periurus qui iurat falsum quod putat verum? Tertio, si licuit archidiacono denegare episcopo consuetam obedientiam? Quarto, si constiterit esse illicitum quod iuravit archidiaconus, an sit servandum? Quinto, si constiterit illud servandum esse, an episcopus sit reus periurii, qui contra iuramentum archidiaconum suum ire conpellit? edF. col. 860; Florence 402, fol. 58vb; Admont 43, fol. 49r–49v.

87) Florence 402, fol. 58vb–60ra; Admont 43, fol. 49v–53v.88) Florence 402, fol. 60ra; Admont 43, fol. 53v–54r.89) C.22 q.1 c.1 (VIII Council of Toledo) confirmed a peace treaty as a justifi-

able reason for entering into an oath. Gratian used the treaty between Israel and the Gabaonites to exemplify the difference between ignorance of fact and ignorance of law as a reason for voiding an oath. The Gabaonites had come wearing worn shoes and with dry bread, saying: “Peaceful men, we come from a far away land, the shoes on our feet are worn out; the bread is wanting in our sacks; we heard that the Lord is with you, and we come to arrange a peace.” On the third day, however, they attacked the approaching Israelites. Seeing the betrayal of the Gabaonites the Israelites wanted to destroy them, but Joshua, enforcing the peace treaty, restrained them on account of their oath (C.22 q.4 d.p.c.22: Florence 402, fol. 60vb; Admont 43, fol. 56r–56v). As




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vocation90), and to contract a marriage91) – , Gratian set forth when one could withdraw from an oath. As Bede noted, if a person heedlessly made a promise that went from bad to worse, it was better for him to perjure himself than to commit a graver sin92). Finally, Question 5 draws on the Fathers (Augustine, Gregory, and John Chrysostomus), Chromatius, Pelagius II, and a capitulum of Aachen (789, c.63) to assess when perjury occurs and the responsibilities of those entering into an oath. The intention of he who enters into the oath is of utmost importance. The oath of fidelity explained in Fulbert of Chartres’s letter to Count William V of Aquitaine set forth the tone of the discourse that

Ambrose noted, Joshua thought the peace the Israelites had made could not be broken because an oath had confirmed it (C.22 q.4 c.23: Florence 402, fol. 60vb; Admont 43, fol. 56v). Gratian concluded that if a party entering into an agreement was not cogni-zant of all the facts before contracting the oath (ignorance of fact), the oath could be voided. Ignorance of law did not void an oath. The elders of Israel were not ignorant of the law – they knew that the people of the Promised Land would be destroyed as it was foretold by a precept of the Lord – but they were ignorant of facts – they did not know that it was the Gabaonites who would destroy them. While Joshua could have voided the oath, he licitly kept it. An oath, Gratian maintained, should have three wit-nesses, truth, judgment, and justice to be valid. Should one of these things be missing it was illicit and forbidden to be kept (C.22 q.4 d.p.c.23 §1: Florence 402, fol. 60vb; Admont 43, fol. 56v).

90) Parents compelled their son against his will to swear an oath to either be ton-sured or to become a priest. While some saw the situation as reprehensible, no author-ity prohibited the oath from being kept. Although he should never have been tonsured or taken up the clerical office, several of the most holy were found in lay attire and chosen by God (C.22 q.4 d.p.c.23 §6: Florence 402, fol. 61ra; Admont 43, fol. 57r–57v). In a different case, a man married his wife and solidified by an oath that he would never be separated from her. Beforehand, however, he had sworn a vow of chastity. While the vow of chastity was illicit, it must nevertheless be kept (C.22 q.4 d.p.c.23 §2: Florence 402, fol. 60vb; Admont 43, fol. 56v–57r). In both instances the oaths to religious vocations held sway.

91) Driven by the fear of death, Hubald was compelled to swear an oath to the con-sanguinity of his concubine (whom he was going to support as his wife), to expel her mother and brothers from the house, and not to provide them further necessities. The marriage vow was ruled valid for, as Ambrose held, it was not a sin to support such a woman as his wife because marriage was solid and unwavering in God, despite being coerced to swear to their relation. The oath not to support her mother and brothers was illicit and should not be upheld, rather Hubald should support them. Also those who compelled him to swear what he ought not were guilty of entrapping perjury. Hubald, however, did not draw reproach because exhortation compelled his will (C.22 q.4 c.22: Florence 402, fol. 60va–60vb; Admont 43, fol. 56r). An illicit oath was one in which either party knew it to be illicit at the time sworn.

92) C.22 q.4 c.6 (Florence 402, fol. 60ra–60rb; Admont 43, fol. 54r–54v).




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regulated nuanced political relationships93). This culture in which Gratian en-gaged was a “culture of fidelity”94). Causa 22 made neither a hard and fast distinction between clerical and lay oaths nor did it limit the scope to oaths with either unilateral or bilateral obligations. Such a wide net allowed Gratian to apply general principles to specific situations involving the various ranks of the ecclesiastical hierarchy with Causae 23–26.

Causa 23 applies the principles of Causa 22 by juxtaposing the duties owed by a bishop to his secular lord as a feudal bishop (e.g., to serve as judge and to engage in war) with those owed to the pope as his spiritual lord. Having defined and justified military service and war in Questions 1 and 2 as for the recovery of lost goods and the repulsion of injury95), Question 3 argues that a just war could be waged by the edict of a legitimate authority to aid an ally (socius)96). The use the word socius is telling. While it can be translated as friend or neighbor, Gratian’s use suggests some relationship solidified by an oath. The language of C.22 q.5 lends support to this interpretation. C.22 q.5 c.1, from the Penitential of Theodore, refers to dominus and miles97); C.22 q.5 d.p.c.17 reads de forma fidelitatis et quid quisque debeat domino vel e conversio98); C.22 q.5 c.18 is Fulbert of Chartres’s letter to William V99). The bishop and the emperor could become socii in a couple of different ways. First, as seen in the Concordat of Worms, the emperor could swear to protect the Church100). The Church thus could seek help from the emperor in mat-ters of defense101). Second, an emperor or king would invest a bishop with a secular fief, thereby making the bishop his vassal and a lay lord in his own right. Such was the case here as the bishops “had received civil jurisdic-tion from the emperor” (… qui ab inperatore civilem iurisdictionem acce-perant …). Reflecting upon the principles laid out in Causa 22, the bishop and the emperor have entered into a relationship solidified by an oath, which entails the rendering of certain services.

93) C.22 q.5 c.18 (Florence 402, fol. 61va; Admont 43, fol. 59v–60r). 94) S tephen Whi te , A Crisis of Fidelity in c.1000?, in: Re-Thinking Kinship

and Feudalism in Early Medieval Europe (= Variorum Collected Studies Series [CS] 823), Farnham 2005, no. XIII, p. 19.

95) Florence 402, fol. 61vb–62va; Admont 43, fol. 60v–63r. 96) Florence 402, fol. 62va–63ra; Admont 43, fol. 63r–64v. 97) Florence 402, fol. 61ra; Admont 43, fol. 57v. 98) Florence 402, fol. 61va; Admont 43, fol. 59v–60r. 99) Florence 402, fol. 61va; Admont 43, fol. 59v–60r. 100) Heinrici V Imp. Constitutiones, Concordatum Wormatiense, in: Monumenta

Germaniae Historica [MGH], Leges, vol. 2, ed. G.H. Per tz , Hannover 1837, 76.101) C.23 q.3 d.p.c.1 (Florence 402, fol. 62vb; Admont 43, fol. 63v–64r).




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As a socius the enfeoffed bishop would have both secular and ecclesiastical jurisdictions. Questions 4 and 5 and Question 8 could be viewed through the lens of a bishop’s feudal role in secular matters regarding capital punishment, the issuance of such sentences, and war102). Questions 4 and 5 rely on the ge-neric term “the wicked” (malus) to legally justify corporal punishment and the use of capital punishment103). A judge – left broadly defined – should pun-ish murderers and the sacrilegious104), and those responsible for carrying out

102) C.23 q.8 c.29 and c.30 (Florence 402, fol. 69vb–70ra; Admont 43, fol. 85v) also could be considered within the context of q.4. Appearing virtually as an afterthought in q.8, these texts originally stemmed from the IV Council of Toledo (633) and the XI Council of Toledo (675) and prohibited clerics from participating in trials of blood-shed. These two canons do not fit into the overall issue addressed in the question, whether a bishop or cleric could bear arms.

103) In his paper Historical Consciousness and Institutional Concern in Europe-an Medieval Historiography (11th and 12th Centuries) given at the 19th Inter national Congress of Historical Sciences (2000) (available at http://www.medievalists.net/2011/12/29/historical-consciousness-and-institutional-concern-in-european-me-dieval-historiography-11th-and-12th-centuries), Hans-Werner Goetz illustrated how medieval chroniclers had a consciousness of the past and used that consciousness to further their agenda (4). Writers found the origin of a present-day development in the past and traced the development to the present as both a way of creating continuity with the past and of justifying that particular development (5, 9). Goetz stated that “[b]y recording the memorable deeds of kings, bishops, popes, or saints, it [historiogra-phy] used the past as an argument for current purposes and was meant to solve current problems or prove the legitimacy of one’s own position. Historiography was written for pragmatic purposes, to ascertain and justify certain claims, and it was written to be used” (21). Gratian’s use of historiography was quite similar. Taken together, q.4 and q.5 account for 62% of the entire causa. The vast majority of the material sources stem from St. Augustine, who, considering the role of government in the Donatist Controversy, did not make a clear distinction between the secular upheaval caused by the political controversy and the ensuing schism. Gratian relied on St. Augustine to justify the use of the death sentence in order to give it the greatest credence possible.

104) C.23 q.4 d.p.c.29/d.p.c.30–c.54 (Florence 402, fol. 64va–66rb; Admont 43, fol. 69r–74v) uses examples of Church Fathers to suggest that a cleric may serve as judge and thus could play some role in the administering of justice. C.23 q.5 d.p.c.48 (Flor-ence 402, fol. 67vb; Admont 43, fol. 79v) reads: ‘If therefore holy men and public powers [who were] waging war were not transgressors of that mandate: ‘Thou shalt not kill’, although they killed some criminals who deserved to die; a soldier obeying his superior is not accused of murder when at the superior’s command he kills any criminal; it is not the pouring out of blood to punish murderers and prisoners, but the ministry of laws; if the peace of the Church is the consolation over the sadness of the lost; those, who rising up in the zeal of their Catholic Mother [i.e. the Church], kill excommunicates they are not judged murderers; it is evident that it is not only licit to scourge evil-doers but also to kill them.’




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a sentence are exonerated from any blame even if the end result is death105). The reliance on the generic term “the wicked” (malus) nicely includes both “murderers” and “sacrilegious” and illustrates that, in the first recension, the principles set forth referred to any deviate, heretic or criminal. Outside of Question 7, which specifically deals with heretics within the confines of con-fiscating their property106), only one dictum – C.23 q.4 d.p.c.36 – and only a handful of canons – C.23 q.4 c.24, q.4 c.25, q.4 c.44, and q.4 c.45 – in the first recension explicitly refer to heretics and schismatics107). Essentially, C.23 qq.4–5 work from the premise that while every heretic was malus, not every malus was a heretic. The extent of a bishop’s judicial duties, however, re-mained unclarified. Remembering that it was the pope who ordered the army to be raised, possibly from the resources of the bishops’ secular benefice, Question 8 focuses on the bishop’s military responsibilities. Those bishops who were content with the tithe were free from the laws of the emperor. Those who held benefices (predia, villas, castella, et civitates) were bound by his law108). Should a bishop purchase property or receive it as a gift, than he owed

105) C.23 q.5 c.13, c.14, c.16, c.17 (Florence 402, fol. 66vb; Admont 43, fol. 76v), C.23 q.5 c.30 (Florence 402, fol. 67ra; Admont 43, fol. 77r); C.23 q.5 c.37 (Florence 402, fol. 67ra; Admont 43, fol. 77v–78r); C.23 q.5 c.46 (Florence 402, fol. 67vb; Ad-mont 43, fol. 79r). Falsely attributed to a letter from Pope Nicholas I (c. 800–867) to the Frankish army, the rubric of q.5 c.46 In certamine, quod contra infideles geritur, quisquis moritur, celeste regnum meretur introduces the canon as one assuring en-trance into the kingdom of heaven if a soldier dies in battle fighting the infidels. The text, however, says nothing about infidels.

106) Florence 402, fol. 68vb–69ra; Admont 43, fol. 82r–83r.107) C.23 q. 4 d.p.c.36 (Florence 402, fol. 64vb; Admont 43, fol. 70r); C.23 q.4 c.24

(Florence 402, fol. 63vb–64ra; Admont 43, fol. 67v–68r); C.23 q.4 c.25 (Florence 402, fol. 64ra; Admont 43, fol. 68r); C.23 q.4 c.45 (Florence 402, fol. 63vb–64ra; Admont 43, fol. 67v–68r); C.23 q.4 c.46 (Florence 402, fol. 64ra; Admont 43, fol. 68r).

108) C.23 q.8 d.p.c.20/d.p.c.22 (Florence 402, fol. 69va–69vb; Admont 43, fol. 84v–85r). Because c.21 and c.22 were not added until later, the two dicta are combined as one. Chodorow has suggested that C.23 q.8 d.p.c.20 was taken in part from the Agreement of Sutri in February 1111 (= Heinrici V Imp. Constitutiones, Tractatus cum Paschali II et Coronatio Romana [nos. 83–101], in: MGH Const., vol. 1, ed. L . Wei land , Hannover 1893, pp. 134–152) in which Pope Paschal II granted to Em-peror Henry V the right of investiture and thus reveals Gratian’s sympathies for the pope. The ensuing Crisis of 1111 questioned the legality of Paschal II’s concession. Placidus of Nonantula, Girard of Angoulême, and others argued that the pope should repudiate the privilege as it countered the canons and previous decrees. In response to their calls Paschal II reiterated his desire to uphold the pronouncements of his pre-decessors, especially those of Pope Gregory VII and Pope Urban II. He bowed to the pressure and issued a statement nullifying the concession at the Lenten Council in




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the customary obedience attached to the land to the prince (i.e., taxes and the associated military obligations). Gratian offered two examples of acceptable conduct. As Pope Leo IV (847–855) did serving as the secular ruler of Rome, a bishop may encourage anyone to his defense (i.e. he can raise an army). As Pope Gregory I (c. 540–604) did when he called upon a faithful leader for as-sistance, a bishop may request defense from his socius. While a bishop may raise an army and accompany the soldiers, under no circumstances could he engage in battle109).

Seen in conjunction with Causa 22, Causa 24 centers on a bishop’s admin-istrative ability to excommunicate and to reconcile – the ability to execute his powers – being linked to his good-standing with Rome as the keeper of

March 1112, see Giovanni Domenico Mans i , Sacrorum conciliorum, nova et amplissima collectio, Graz 1960–1961, vol. 21, col. 50–51. See Chodorow, Chris-tian Political Theory (n. 9), 151–152; idem, Ecclesiastical Politics and the Ending of the Investiture Contest: The Papal Election of 1119 and the Negotiations of Mouzon, in: Speculum 46 (1971), 613–640.

109) C.23 q.8 d.p.c.25/d.p.c.27/d.p.c.28 (which are combined into one dictum with Admont 43 including c.26 and c.28 included in the dictum): Hinc datur intelligi, quod de his, que inperiali beneficio, vel a quibuslibet pro beneficio sepulturae ecclesia [Aa: ecclesia sepulturae] possidet, nullius iuri, nisi episcopi, teneatur asstricta. De his vero, que a quibuslibet emerit vel vivorum donationibus acceperit, principibus con-sueta debet obsequia, ut et annua eis persolvat tributa [Aa: persolvat eis tributa], et convocato exercitu cum [Aa: deest] eis proficiscatur ad castra. Quod tamen hoc ipsum non sine consensu Romani Pontificis fieri debet. Unde in quodam concilio statutum est ut episcopi non proficiscantur ad comitatum nisi formates ab apostolico acceperint. [Aa c.26: Unde Gelasius Papa Elpidio Episcopo. Quo ausu, qua temeritate rescribis, ad Ravennam te parare proficisci, cum canones evidenter precipiant nullum omnino pontificum, nisi nobis ante visis atque consultis ad comitatum debere contendere? Quemadmodum tibi putas licere quod non licet, nisi quod hoc offitio carere festinas, quo his excessibus ostendis te indignum?] Reprehenduntur ergo Gallicani episcopi a Nykolao, quoniam auctoritate apostolica [Aa: apostolica auctoritate] contempta potius arma sequi elegerant, quam apostolico conspectui sese representarent. Quam-quam proficiscentes ad comitatum possunt [Aa: possint] intelligi non secuti inpera-torem, ut armis sibi auxilientur, sed [Aa add. ut] ipsum cum exercitu suo cottidianis orationibus Deo conmendent. [Aa add: In quo casu auctoritas illa Sardicensis Concilii loqui videtur, in cuius octavo capitulo Osius Episcopus dixisse legitur.] [Aa c.28: Si vobis, fratres karissimi, placet, decernite, ne episcopi ad comitatum eant, nisi forte hi, qui a religiosis inperatoribus vel invitati vel vocati fuerint.] Licet ergo prelatis ecclesiae exemplo B. Gregorii ab inperatoribus vel quibuslibet ducibus defensionem fidelibus postulare. Licet etiam cum B. Leone quoslibet ad sui defensionem contra adversarios sanctae fidei viriliter adhortari, atque ad vim infidelium procul arcendam quosque citare. Effusionem vero sanguinis nulli episcoporum sua vel inperatorum auc-toritate inperare licet (Florence 402, fol. 69vb; Admont 43, fol. 85r–85v).




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orthodoxy. As with Causa 23, heresy set this stage by introducing the topic in d.a.c.1 and c.1: a heretic either fashions a new heresy or follows one pre-viously condemned. In the case of a previously condemned heresy, the fol-lower draws the punishment prescribed for that heresy110). Correct belief – whatever that belief may pertain to – is tied to following the path laid down by Rome. Question 1 then goes onto address why a bishop of another locale, such as Paris, must obey to the bishop of Rome and not vice versa by justi-fying papal primacy. The Holy Spirit is found in the Church; therefore, one must be a member of the latter to possess the former. Because the Holy Spirit is found in the Church, those outside of the Church do not possess the Holy Spirit and are heretical. Since Christ gave Peter the keys to the kingdom of heaven; the one true Church – where the Holy Spirit is found – is the church which Peter founded in Rome. The Holy Spirit, therefore, has its headquar-ters in Rome with Peter. Just as the Holy Spirit did not descend upon those not gathered at Pentecost, the work of the Holy Spirit and the power of Christ did not grant the ability to bind and loose to those outside of the Church. A bishop who counters the Roman See cannot take an oath, cannot consecrate, cannot excommunicate, and cannot reconcile. He cannot judge those inside, those who possess the Spirit, as if he was equal to them111). Since the Holy Spirit does not operate outside of the Church, a bishop must have a valid consecration in order to bestow the sacraments. However, Gratian asserted, if he should baptize or ordain, the Church would confirm the sacrament by the laying of hands but would not repeat it112). With the Holy Spirit protected

110) C.24 q.1 d.a.c.1, c.1 (Florence 402, fol. 70r; Admont 43, fol. 86v).111) Gratian previews the argument constructed by c.5 through c.36 in d.p.c.4. C.24

q.1 d.p.c.4: Porro Spiritum sanctum nemo nisi intra ecclesiam accipit, quia et ipsam unitatem per gratiam reficit [Aa: facit … Sicut autem extra ecclesiam non accipitur, ita extra eam nichil operatur ... Quia ergo peccata dimittere vel tenere, excommu-nicare vel reconciliare opus sit Spiritus sancti et virtus Christi: apparet, quod hii, qui extra ecclesiam sunt, nec ligare possunt, nec solvere, nec reconciliando ecclesiasticae conmunioni reddere, nec excommunicando eius societate privare, qua ipsi, heresi vel scismate polluti sive sentencia notati, penitus carere probantur. Unde, cum omnibus discipulis parem ligandi atque solvendi potestatem Dominus daret, Petro pro omnibus et pre omnibus claves regni celorum se daturum promisit, dicens: Tibi dabo claves regni celorum. Quicumque ergo ab unitate ecclesiae que per Petrum intelligitur fuerit alienus, execrare non potest, consecrare non valet; excommunicationis vel recon-ciliationis potestatem non habet ... Catholicum namque, utpote superiorem se [Aa: se superiorem], maledicere non valet; in alienum a fide, tamquam in sibi equalem, sentenciam dare non potest (Florence 402, fol. 70rb–70va; Admont 43, fol. 86v–87r).

112) C.24 q.1 d.p.c.37: Unde ab hereticis baptizati vel ordinati, cum ad unitatem fidei catholicae redierint, si forte intuitu ecclesiasticae pacis in suis recipiantur or-




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by the bishop of Rome, Gratian emphasized papal authority and obedience to Rome. Heresy was a failure to adhere to Rome; heresy was disobedience to Rome. For deviating from that dictated by Rome, the bishop relinquished his episcopal powers. While one may not be absolved post mortem, but, hav-ing broken faith with Rome, he may be excommunicated for heresy post mortem113).

As Question 1 set forth, a bishop’s adherence to Rome dictates his ability to execute his powers. Question 3 turns to the proper execution of his pow-ers. A bishop must himself be in good standing with the Church and has no power to excommunicate or to refuse communion to someone neither ac-cused of a crime, nor convicted publicly by a judge, nor having confessed according to the law114). The issuance of a sentence of excommunication re-quired the bishop to follow procedure under pain of himself being excommu-nicated and being stripped of his office. A bishop must balance temperance with excessiveness, the latter of which incurs punishment115). For a lawful excommunication, according to Justinian, the case must be proven accord-ing to canonico-civil procedure. Only then could a bishop hand down a sen-tence, whether upon a layman or upon a cleric. Authorities were to issue three edicts, the third being peremptory, requiring the accused to appear for trial. If he should not appear after the issuing of the peremptory, then he could be deemed contumacious and the case could be tried in his absence. For instance, an African council tried Cresconius for both his crime and his contumacy after he failed to appear with the issuance of the peremptory. A bishop, as Pope Gregory I warned Bishop Maximus of Salona, is to appear immediately without excuse when his presence is requested. He otherwise will be judged for both his crime and for his disobedience, thereby incur-ring a worse punishment. If the court declared the defendant contumacious, it could proceed with a summary investigation. Should the court issue an interim judgment that was in the favor of the plaintiff, it would become per-manent after one year if the defendant did not appear. In the event of an unlawful excommunication – one contrary to the canons – the pope could

dinibus, non iterabitur sacramentum, quod in forma ecclesiae probabitur ministratum, sed per inpositionem manus prestabitur virtus sacramenti, que extra ecclesiam nulli docetur esse collata (Florence 402, fol. 71vb; Admont 43, fol. 91r–91v).

113) C.24 q.2 c.1, c.4, c.6 (Florence 402, fol. 72ra–72va; Admont 43, fol. 92r–93v).114) C.24 q.3 d.a.c.1, c.1, d.p.c.1 (Florence 402, fol. 72va–72vb; Admont 43, fol.

93v–94v).115) C.24 q.3 c.5 (Florence 402, fol. 72vb; Admont 43, fol. 94v). The material

source for c.5 is Atto of Vercelli.




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restore him to communion and punish the bishop. Pope Gregory I annulled the unjust sentence of Bishop John, excommunicated him for thirty days, and restored the innocent man to communion116).

As with Causa 23 q.8 and C.11 q.3117), the final canons (c.26–c.29, c.39) in the first recension of Question 3 are rather peculiar in that they appear to be afterthoughts, material better suited for Question 1118). Canons 26–29 again equate schism with heresy. Canon 39 provides a lengthy description of ancient heresies courtesy of Isidore of Seville’s Etymologies, which seems more ap-propriate for the very beginning of Question 1 where heresy was first defined. Linda Fowler-Magerl noted that the Collectio X partium belonged to the cat-egory of collections known as “living texts” whereby space was left at the end of each part for additional texts. Collections of this kind were found most often where bishops, deacons, abbots were made papal delegate judges119). As I have argued, the Decretum was likewise a living text, one in which addi-tions were ongoing120). It is interesting that the Florence manuscript follows a similar model whereby plenty of space was left between causae. In some cases it is very obvious that later hands added additional texts in this space, which typically appeared towards the end of the case121). Could it be possible that in the exemplum used to copy the Florence manuscript these canons ap-peared at the end of the causa as late additions and the scribe simply recopied these “afterthoughts” there?

116) C.24 q.3 c.6 (Florence 402, fol. 72vb–73ra; Admont 43, fol. 94v–95r); James Brundage , Medieval Canon Law, London 1995, 129–130. The material source for c.6 is Hincmar of Rheims.

117) For C.23 q.8 see above n. 102. For a discussion of C.11 q.3 c.102–c.110 as “afterthoughts”, see Winro th , The Making of (n. 18), 115–116.

118) Florence 402, fol. 73rb–74rb; Admont 43, fol. 96r–99r. The first recension of q.3 omits c.13–c.25 (c.22 is a palea), c.30–c.38, and c.40.

119) L inda Fowler-Mager l , Clavis canonum Selected Canon Law Collections Before 1140 (= MGH Hilfsmittel 21), [CD-ROM] Hannover 2005, 213. The Clavis database is now also available at http://www.mgh.de/ext/clavis.

120) See Eichbauer, From the First to the Second Recension (n. 64), 119ff.121) One hand recopied D.100 d.a.c.1 and c.1 and D.101 d.a.c.1 and c.1 in the right

and left margins (fol. 18vb–19ra), though the remainder of the canons for the distinc-tions appear in the supplement. Another hand recopied: C.5 q.6 c.5, c.7, and c.8 in the right margin (fol. 35rb), which also appear in the supplement; C.7 q.1 c.32, d.p.c.32, c.33 (fol. 37vb), though the remainder of the canons for this question appear in the sup-plement; C.14 q.6 c.1 (fol. 48vb), though the remainder of the canons for this question appear in the supplement; and recopied C.19 q.3 c.9 (fol. 57ra), though c.9 and c.10 appear in the supplement. Still another hand copied C.10 q.2 d.p.c.1, c.2, and c.3 (fol. 39va, 40rb); these texts do not appear in Admont 43.




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When viewed through the lens of duty, Causa 25 balances the pope’s re-sponsibility to maintain the integrity of the faith with the integrity of individ-ual churches and monasteries. It philosophically justified the pope’s ability to deviate from papal and conciliar decrees if necessity dictated122). The implica-tion is that while the pope should uphold general privileges, he may enact or void a special privilege for the benefit of a church. Gratian essentially latticed the conclusion reached in Question 1 – that the papacy by its authority was able to deviate from that which the church had passed – with the conclusion he reached in Question 2 – that the pope was able to separate by its authority those privileges having been collected and to collect those things having been divided so long as it was with the equity of reason – to argue for the discre-tionary powers of the pope. He is able to change either in whole or in part privileges granted by his predecessors at any time so long as the reason is of necessity or piety. Special privileges, however, should not be to the detriment of one and the excess of another123). Causa 25 thus makes practical use of the principles set forth in Causa 22 by addressing the pope’s duty to navigate his ecclesiological responsibilities to the faith and to the universal church. Obe-dience and duty thus allows us to place Causa 25 within the context of Causa 23, Causa 24, and Causa 26. As the guarantor of orthodoxy, he must ensure the preservation of the faith by upholding conciliar decrees and the decrees of previous popes. He also was obligated to preserve the well-being of the Church, which, from time to time, meant deviating from that which his pa-pal and conciliar predecessors decreed to grant special privileges or rescind a previous privilege either to punish or to ensure that no one entity gained at the expense of another.

The rationale for why Gratian would combine two starkly different topics in Causa 26 (divination and last rights) might be found in the theme fleshed out thus far: obedience and duty as they pertain to the different sets of obligations a parish priest would have to balance. The causa precedes the two tracts devoted to the laity, the tractatus coniugii and the tractatus de penitentia. It defines magic (Questions 1–4), and analyzes the duty of priests and laity to avoid su-

122) C.25 q.1 d.p.c.16 (Florence 402, fol. 75ra; Admont 43, fol. 101r). 123) C.25 q.2 d.p.c.21: Sancta Romana ecclesia sua auctoritate congregata valet

disiungere, et disiuncta congregare; rationis tamen equitate considerata. Unde vel pietatis, vel necessitatis intuitu semel a se concessa valet vel totum vel in partem conmutare. Pro necessitate namque corrigendorum vitiorum privilegia multarum ec-clesiarum vel inminuuntur, vel penitus inmutantur, sive personaliter sive generaliter. Personaliter iuxta illud: Privilegium omnino meretur amittere qui permissa sibi abu-titur potestate (Florence 402, fol. 75rb; Admont 43, fol. 102r).




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perstitions and adhere to the one true faith (Question 5). The remainder of the case, Questions 6–7, juxtaposes the priest’s duty to not to overstep his bounds without the permission of his bishop with his duty to reconcile the dying. View-ing Causa 26 through the lens of obedience and the execution of one’s office allows us to bridge the chasm between Questions 1–5 and Questions 6–7.

Before he could discuss the web that had the priest caught in the middle, Gratian had to begin by analyzing the foundation upon which the entire dis-cussion rested: soothsaying and divination. Together they set the stage just as heresy did in Causa 23 and Causa 24. Relying on the Church Fathers, Question 1 defines soothsaying while Question 2 establishes soothsaying as a sin124). Stemming entirely from Rabanus Maurus’ work De consanguineorum nuptiis et de magorum prestigiis falsisque divinationibus (ad Bonosum), Questions 3 and 4, which are treated together, present a laundry list of groups devoted to divination and a brief explanation of how each practices their craft125).

Just as bishops should adhere to the pope and the pope should adhere to the decrees of his predecessors, priests and laity should adhere to the Catholic faith by not succumbing to superstition. Gratian navigates the duties a priest owed to his bishop and those he owed to his parish. The bishop and the priest must monitor the parishioners and preventing the seeking of futurities from infesting the faithful. This faithlessness warrants excommunication if he is a layman and the loss of one’s honor if a cleric126); a breach of faith has occurred and their perjury must be punished. Excommunication is the prerogative of the bishop alone. A priest, bound by his duties owed, is not able to overturn his decision without first having consulted him127). Gratian, however, did not deny the priest all ability to absolve because he was obligated to his parish. Rather an integral responsibility was to hear an auricular confession, and to recon-cile those facing imminent danger or those on their death bed. Without that confession his salvation was in question. A priest, therefore, could not deny absolution to a contrite sinner wishing to confess even as he lay near death128).

Causa 26 addresses the last bonds left unexplored, which, as it turns out, operated side-by-side. On the one hand was the bond between the priest and

124) C.26 qq.1–2 (Florence 402, 75vb–76ra; Admont 43, fol. fol. 103v–104r).125) C.26 qq.3–4 (Florence 402, 76ra–76va; Admont 43, fol. fol. 104r–105r).126) C.26 q.5 d.a.c.1, c.1, c.4, c.5, c.6, c.11 (Florence 402, fol. 76va–76vb; Admont

43, fol. 105v, fol. 106r).127) C.26 q.6 d.a.c.1 (Florence 402, fol. 77vb; Admont 43, fol. 108v).128) C.26 q.6 d.p.c.13: Cui autem penitencia non denegatur, nec reconciliatio sibi

deneganda est. Inconsulto ergo episcopo penitentem presbiter reconciliare non debet, nisi ultima necessitas cogat (Florence 402, fol. 77vb; Admont 43, fol. 109v).




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his bishop. On the other hand was the bond between the laity and the church, that is, a priest and his parish. Gratian applied the principles embedded in the oath to examine the interplay between them through the lens of divination. A priest fulfills his duty to the bishop both by adhering to the faith and seeing to it that the laity does so as well and by not overturning the bishop’s sentence of excommunication without first having consulted him. He fulfills his duty to his parish by hearing an auricular confession and reconciling those on their death bed. Aside from the initial theory behind and practical application of divination, the priest was the center of the discussion because it was he who had to balance his two sets of responsibilities. In the end he was bound condi-tionally to both his bishop and to his parish. The circumstances of the situation would determine which set of obligations he should fulfill.

Together with Causa 22 these cases form a cluster woven together into a thematic unit: obedience and the execution of one’s office. Gratian used the societal norms laid out in Causa 22 to establish boundaries within and be-tween the various ecclesiastical ranks. With Causa 23 a bishop had to fulfill his duties to the pope and the emperor. The pope had to accept the bishop’s holding of secular properties, and the emperor – as the feudal lord – had to offer protection. With Causa 24 bishop’s ability to bind and to lose was inter-twined with adherence to the bishop of Rome as the latter was the keeper of orthodoxy. As addressed by Causa 25 the pope had the duty to preserve the universal church. While he should uphold the general decrees of the councils and of his predecessors, he may have to deviate from them by granting spe-cial privileges to punish or to ensure the well-being of a church. Finally, with Causa 26 the priest was obligated to adhere to his bishop and not infringe up-on the latter’s purview of binding and loosening. With that said, the priest was to safe-guard the salvation of his flock both by ensuring they did not succumb to superstition and by reconciling the dying if the bishop was unavailable.

The blocks of additions to the later textual tradition of Causae 22–26 that make up the second recension do deserve mention, even if briefly. Obedience and the execution of one’s office remain a central theme. Not only do the addi-tions both harden the tenor of the cluster by emphasizing the hierarchical pyra-mid that structured relationships but also show more concern for the laity. The blocks of additions to Causa 22 reinforce how the oath is taken: oaths must be sworn by God alone and not by idols, not by creatures (per creaturas), not by the head or hair of God (per capillum Dei vel caput), and not by the Gospels129).

129) C.22 q.1 c.7, c.9, c.10, c.11 (edF. col. 863–864; Florence 402, fol. 145va [sup-plement]; Admont 43, fol. 295r–295v [supplement].




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The emphasis on swearing by God alone more closely aligns the supervision of the oath to the Church and as such the Church’s ability to punish perjury – be it an unfulfilled oath or coercing another into an oath130). The emphasis of the Causa 22 additions serves as a thread linking the blocks of additions added to Causae 23–26.

For supervision and correction to happen efficiently, relationships needed to be structured vertically as opposed to horizontally; the hierarchical pyra-mid needed crystallization. The additions to Causa 23 q.3, q.4, and q.5 re-flect the secular realm’s duty to assist the Church when called upon, par-ticularly in matters of correction131). Conversely, the ability of the feudal-bishop to serve in a secular capacity is curtailed in favor of his spiritual functions132). The additions to C.24 q.1 reemphasize Rome’s unerring na-ture and its place as the sole keeper of orthodoxy133). Made starkly clear was the linkage between orthodoxy and obedience. Those who separate from the unity of the faithful or work against the peace of the Church will find them-selves cast out from the Christian community or subject to punishment134). Faith and fulfillment of one’s duty (that is, adherence) to Rome go hand-in-

130) C.22 q.5 c.1 Si liber est – feria peniteat, c.2, c.3, c.6, c.7 (edF. col. 883; Florence 402, fol. 61r [right margin contains addition to c.1], fol. 146rb; Admont 43, fol. 57v–58v [supplement]). The paleae of c.19, c.22, and c.23 pertain to the violation of the feudal oath and that clerics cannot swear to laymen (edF. col. 888–889).

131) C.23 q.3 c.9 si ecclesiasticam – profecto nocebitur, c.10 (edF. col. 898; Flor-ence 402, fol. 63r [right margin copied c.9 in its entirety], fol. 146vb [supplement]; Admont 43, fol. 298r [supplement]); C.23 q.4 c.41, c.45–c.49 (edF. col. 922, col. 924–926; Florence 402, fol. 147vb–148rb [supplement]; Admont 43, fol. 301r–302v [supplement]); C.23 q.5 c.20–c.26 (edF. col. 936–938; Florence 402, fol. 148vb–149ra; Admont 43, fol. 304r–304v [supplement], fol. 77r [c.26]); C.23 q.5 c.32 (edF. col. 939; Florence 402, fol. 149ra [supplement]; Admont 43, fol. 304v [supplement]); C.23 q.5 c.39–c.41, c.43 (edF. col. 941–943; Florence 402, fol. 149ra [supplement]; Admont 43, fol. 304v–305r [supplement]).

132) C.23 q.8 c.4–c.6 (edF. col. 954; Florence 402, fol. 149rb [supplement]; Admont 43, fol. 305v [supplement]); C.23 q.8 c.26 (edF. col. 962–963; Florence 402, fol. 149vb [supplement], omitted by Admont 43). C.23 q.8 c.1–d.p.c.3 likewise reiterate that a cleric cannot be involved in warfare (edF. col. 953–954).

133) C.24 q.1 c.9–c.17 (edF. col. 969–971; Florence 402, fol. 150ra–150va [sup-plement]; Admont 43, fol. 307v–308v [supplement]). By way of papal letters to the East, the second recension additions underscore the bishop of Rome as the keeper of orthodoxy and final judge such cases: bishops in Antioch (q.1 c.15), Dioscorus of Alexandria (q.1 c.16), Master Faustus, the ambassador from Constantinople (q.2 c.2), and Augusta Pulcheria (q.2 c.5).

134) C.24 q.1 c.27–c.29, c.32 (edF. col. 977, col. 978; Florence 402, fol. 150va, 151ra [supplement]; Admont 43, fol. 308v–309r [supplement]).




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hand with excommunication playing a necessary corrective role. The addi-tions to C.24 q.3 further stress the utility that the sentence plays, lay down procedural norms, and expand the list of excommunicable offenses (both faith and non-faith based) to correct the erring laity135). The blocks of ad-ditions to Causa 26 likewise focus on the correction of priests and laity for superstition136). While the priest did retain his ability to reconcile if the in-dividual was on his deathbed and the bishop was not available137), the addi-tions underscore the bishop’s purview over penance and the joy with which the penitent should undertake it138). The pope also found himself bound by the hierarchical pyramid. The blocks of additions to C.25 q.1 emphasize the pope’s obedience to previously made decrees with the ability to grant special privileges downplayed139). Just as the secular realm was obligated to assist the Church when called upon, as laid out in Causa 23, the emperor should not disturb but rather uphold the privileges of churches, bishops, metropoli-tans, and the papacy140). While the blocks of additions to the later textual tradition that comprised the second recension continued to emphasize obe-dience, the relationships emphasized were not only within the ecclesiastical hierarchy, but also between Christian society and the Church, a hallmark of the period 1130 to 1160141).

135) C.24 q.3 c.13–c.25 (edF. col. 994–997; Florence 402, fol. 150vb–151ra [sup-plement]; Admont 43, fol. 310r–310v [supplement contains c.13–c.21), fol. 96r (body of text contains c.22–c.25); C.24 q.3 c.30–c.38 (edF. col. 994–997; Florence 402, fol. 151rb–151va [supplement]; Admont 43, fol. 311r–312r [supplement]).

136) C.26 q.2 c.5–c.11 (edF. col.1021–1024; Florence 402, fol.152rb–152vb [sup-plement]; Admont 43, fol. 313r–314r [supplement]); C.26 q.5 c.8–c.10 (edF. col.1029; Florence 402, fol.152vb [supplement]; Admont 43, fol. 314v [supplement]).

137) C.26 q.6 c.6–c.10 (edF. col. 1037–1039; Florence 402, fol. 153ra [supplement]; Admont 43, fol. 314v–315v [supplement]).

138) C.26 q.7 d.p.c.1–c.7, d.p.c.8–c.12 (edF. col. 1042–1044; Florence 402, fol. 153rb–153va [supplement]; Admont 43, fol. 315v–316v [supplement]).

139) C.25 q.1 c.6–c.10, c.15–c.16 (edF. col. 1008–1009, col. 1010; Florence 402, fol. 151vb–152ra [supplement]; Admont 43, fol. 312r–312v [supplement]).

140) C.25 q.2 c.2–c.6, c.14–d.p.c.16 (edF. col. 1012–1013, col. 1015–1116; Flor-ence 402, fol. 152ra [supplement]; Admont 43, fol. 312v–313r [supplement, c.3–c.6]). These canons are late additions to the textual tradition. In Florence 402, c.2 was added by a later hand to the bottom margin while c.14–c.16 were added by the same hand in the right margin; Admont 43 omits these texts. Likewise d.p.c.16 is missing from both Florence and Admont.

141) Gi les Cons tab le , The Reformation of the Twelfth Century, Cambridge 1996, 4–5.




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V. On Ei ther S ide of the Decre tum

1. The Canons in Mid-Eleventh–Ear ly Twel f th Century Col lec t ions :

In juxtaposing the canons that comprise Causae 23–26 with the context in which they appear in Anselm of Lucca’s Collectio canonum (Version A), the Ivonian Decretum, Panormia, Tripartita, Polycarpus, and the Collectio trium librorum (hereafter 3L), my intention is not to suggest from which collections Gratian drew his canons, but rather to illustrate that heterodoxy was not the focal point. The context in which the canons appear in these eleventh- and twelfth century canonical collections pertains, by and large, to issues of obe-dience and the execution of one’s office142). Questions of order and disorder were as important to Gratian as they were to the compilers of these collec-tions.

The canons found in Causa 23 more often than not appear within the con-text of coercion and a cleric’s administrative abilities. In Anselm’s Collectio canonum these canons are found in Book 13 De iusta vindicata and Book 12 De excommunicatione. Together they address lawful coercion from a general standpoint and defiance of the Roman Church. When used, heresy and schism were labels to designate those guilty of disobedience. Anselm may have used Books 12 and 13 as a way to reflect upon, and possibly respond to, the schism of 1080143). The Ivonian Decretum (Book 10), Panormia (Book 8), Tripartita (Book 3.20) and the 3L (Book 3.16 and Book 3.17) deal with coercion in a more specific fashion, focusing on licit and illicit homicide. There is an emphasis on criminal activity and not necessarily on spiritual misconduct. As such an important component of these books is the judicial sentence of capital punishment and the waging of war. Canons from Question 5, which addresses capital punishment, are found in Book 6 De electione et ordinatione ac de omni potestate sive statu episcoporum of the Collectio canonum and in Book 7.11 De sacerdotali intercessione pro vindicta mitiganda of the Poly-

142) I used Fowler-Mager l ’s electronic database of canoncial collections before 1140 (n. 119) and cross-referenced against Anselm II Bishop of Lucca, Collectio can-onum, ed. Fr iedr ich Thaner, Aalen 1965; the electronic versions of the Tripartita, Decretum, and Panormia, eds. Bruce Bras ington/Mar t in Bre t t (available at http://www.wtamu.edu/~bbrasington/ivo.html) ; the Polycarpus, ed. Hors t Fuhr-mann (available at http://www.mgh.de/fileadmin/Downloads/pdf/polycarp.pdf) ; and the Collectio canonum trium librorum, ed. Joseph Mot ta (= MIC Series B: Corpus Collectionum 8 and 8.2), Vatican City 2008.

143) Kath leen G. Cushing , Papacy and Law in the Gregorian Revolution: The Canonistic Work of Anselm of Lucca, Oxford 1998, 124, 193ff. (Appendix II).




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carpus. The prevailing context of coercion in the form of judicial sentencing and war make an interesting juxtaposition to the context in which the canons of Question 8, which asks whether bishops or clerics may take up arms on their own authority or at the command of the pope or the emperor, are found. These canons are in Book 6 of the Ivonian Decretum entitled De clericorum conversatione et ordinatione et correptione et causis and in Book 6 of the Col-lectio canonum addressing the execution of clerical duties. That canons from Causa 23 are found neither in Book 8 De lapsis of the Collectio canonum, nor in Book 1 De diversis heresibus, nor in Book 3 De professione hereticorum of the Panormia, nor in Book 3.3 De hereticis et scismaticis of the 3L sug-gests further that heresy may not have been the crux of Causa 23. Only the Polycarpus places coercion within the context of heresy. Many of the canons from Questions 4, 5, and 7 are divided between Book 7.10 De vindicata and Book 7.5 De hereticis et scismaticis.

The canons found in Causa 24 more often than not appear within the con-text of papal power and a bishop’s administrative abilities. The context in which the canons of Causa 24 appear in the Collectio canonum and the Ivo-nian Decretum illustrate a bifurcation between Question 1 and Questions 2 and 3. The canons of Question 1 can be found in Book 1, Book 2, Book 5 (to a lesser extent) of the Collectio canonum, and Book 5 of the Ivonian De-cretum. These books address papal primacy and its connection to the rights owed to a bishop. Questions 2 and 3 appear largely in the Collectio canonum Book 12, which centers on disobedience to Rome, and Book 14 of the Ivonian Decretum, which centers on just cause and proper procedure. In the Panormia the vast majority of Causa 24 is found in Book 5, which deals with various matters associated with excommunication and absolution in addition to other administrative matters (the canons of C.26 q.6 and q.7 are also found in this book). The Tripartita includes the vast majority of the canons from Causa 24 in Book 1, which comprises of decretals reflecting administrative issues. The Polycarpus and the 3L stand alone in placing the canons of Causa 24 within the context of heresy. Canons from Question 1 are found in Polycarpus Book 7.4 De scismate, Book 7.5 De hereticis et scismaticis, and Book 7.7 Quod par culpa sit communicare heretico vel eius communicatori, in addition to Book 7.2 De potestate ligandi et solvendi and Book 7.3 De unitate ecclesiae. The first recension canons of Question 1 appear largely in 3L Book 3.1 De unitate ecclesie, Book 3.2 De scismate, and 3L Book 3.3 De hereticis et scismaticis. Canons that comprise the second recension, however, appear in Book 1.2 De puritate fidei romane ecclesie, Book 1.3 De principatu Petri, and to a lesser extent Book 1.5 De papa et apostolica sede non iudicandis. Two canons from




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Question 2 appear in Polycarpus Book 7.1 De excommunicatione, though other than c.26–c.29 and c.31, which are found in Book 7.5 De hereticis et scismaticis, Question 3 is not represented in the Polycarpus144). Following suit with the bifurcation found in the Collectio canonum and the Ivonian De-cretum, Questions 2 and 3 appear in 3L Book 2.25 De excommunicatione and Book 2.26 De excommunicantibus.

As with Causa 24 the context in which the canons of Causa 26 appear in the collections illustrates a bifurcation, here between Questions 1–5 and Ques-tions 6–7. Anselm was not concerned with sorcery as Questions 1–5 are not found in the Collectio canonum. Not surprisingly these questions – in one way, shape, or form – can be found in Book 11 De incantatoribus of the Ivo-nian Decretum, Book 8 De incantationibus of the Panormia, Book 3.21 De incantatione of the Tripartita, Book 6.11 De incantatoribus of the Polycarpus, and Book 3.5 De incantatoribus et qui magos consulunt of the 3L. Also not surprising are Questions 6 and 7, which juxtapose the reconciliatory powers of a priest with those of his bishop, being found in Book 16 De penitentia of the Ivonian Decretum, Book 5 De illis qui excommunicatis of the Panormia, and Book 6.19 De penitentia of the Polycarpus. The Tripartita includes the canons of Questions 6 and 7 in Book 2, which comprises of conciliar decrees. Very few canons from Questions 6 and 7 appear in the 3L.

Finally, the context in which the canons of Causa 25 appear in these collec-tions juxtaposes papal authority with obedience to scripture/canons and the rights of churches. Akin to C.24 q.1 which addresses papal power, the canons of C.25 q.1 are found in Book 1 De potestate et auctoritate [primatu] apos-tolicae sedis of the Collectio canonum. The canons of Question 2 are found among Book 4 concerning the authority of privileges and Book 6 on episcopal power, the latter of which included canons from C.23 q.8. The Ivonian De-cretum included the canons of Questions 1 and 2 in Book 5, which addresses the primacy of Rome and the rights of metropolitans and bishops. Canons of Question 2 are also found in Book 4 De scripturis canonicis et consuetudini-bus. The Polycarpus includes the canons of Question 1 in Book 3.21 – which also includes the canons from Question 2 – and Book 4.42, which both ad-dress obedience to scripture and the canons. The canons of Question 1 appear in Book 1.10 Nichil agendum contra romanam ecclesiam, Book 1.11 Nullum concilium esse firmum sine auctoritate pape and Book 1.16 De violatoribus

144) Anders Winro th has argued that in the first recension Gratian relied on the Polycarpus for approximately ten canons in C.24 q.1 (c. 4, c.5, c.23, c.25, c.30, c.31, c.33, c.34, c.41, and c.42) and for four canons in C.24 q.3 (c.26–c.29). See The Mak-ing of (n. 18), 37, 63.




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canonum et observatione conciliorum of the 3L; the canons of Question 2, however, appear in Book 2.27 De privilegiis ecclesiarum servandis along with some second recension texts appearing in Book 1.18 De ordinato in Romana ecclesia et de subreptione romani pontificis. As with Causa 24, the canons from Causa 25 are found in Book 1 of the Tripartita, which comprise of papal decretals.

2 . The Decre t i s t s :A brief survey of early Decretist – Paucapalea, Rolandus, Rufinus, the com-

piler of the Summa Parisiensis, and Simon of Bisignano – illustrates an ac-knowledgement of heresy as a topic145). However, in their commentaries on the Decretum, the Decretists echoed Gratian’s concern with obedience and duty by focusing on the administrative capacities of the ecclesiastical rank in question. Heresy did not co-opt the analysis of an individual causa, and it certainly did not co-opt the analysis to the point of considering these a tract on heresy. By and large many of the early Decretists, such as Rufinus, Pauca-palea, and the Summa Parisiensis referenced heresy in their introductory com-ments146). Heresy also could be discussed in reference to a particular section, but rarely was it the focus of analysis. For example, heresy in Causa 23 was mentioned most often within the confines of Question 7147). Rufinus and the Summa Parisiensis offered a history lesson on heresy with the former discuss-ing the Council of Nicaea in C.24 q.1 c.23, and the latter commenting on such heretics as Pelagius, Nestorius, Arius, Lucifer, Satyrus in C.24 q.1 c.23, c.34,

145) For these causae, Stephen of Tournai reiterates Paucapalea and Rolandus.146) Die Summa Decretorum des Magister Rufinus, ed. Heinr ich S inger, Pa-

derborn 1902, rpt. Aalen 1963 [hereafter Rufinus], p. 403 to C.23 hypothetical s.v. Quidam episcopi cum plebe sibi commissa in heresim lapsi sunt, p. 415 to C.24 hypothetical s.v. Quidam episcopus in heresim lapsus, p. 423 to C.26 hypothetical s.v. Quidam sacerdos sortilegus; Die Summa des Paucapalea über das Decretum Gratiani, ed. Johann Fr iedr ich von Schul te , Giessen 1890 [hereafter Pauca-palea], p. 99 to C.23 hypothetical, p. 104 to C.24 hypothetical; The Summa Paris-iensis on the Decretum Gratiani, ed. Terence P. McLaughl in C.S.B., Toronto 1952 [hereafter Summa Parisiensis], p. 222 to C.24 hypothetical, p. 230 to C.25 hypothetical.

147) Rufinus (n. 146), p. 412 to C.23 q.7 s.v. Quod queritur, an heretici; Paucapalea (n. 146), pp. 102–103 to C.23 q.7 s.v. Nunc autem quaeritur, an haeretici suis [etc.]; Summa in Decretum Simonis Bisinianensis, ed. Pe ter V. Aimone (Université de Fribourg 2006/2007), available at http://www.unifr.ch/cdc/summa_simonis_de.php [hereaf te r Simon of Bisignano], p. 383 to C.23 q.7 c.1 s.v. Quicumque; Summa Magistri Rolandi, ed. Fr iedr ich Thaner, Aalen 1962 [hereafter Rolandus], p. 96 to C.23 q.7; Summa Parisiensis (n. 146), p. 220 to C.23 q.7 c.1 s.v. Quicumque.




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c.36, and c.42148). Paucapalea, the Summa Parisiensis, and Rolandus quickly highlighted the main points of C.26 qq.1–5 and Simon of Bisignano offered very brief comments on C.26 q.2 and q.5; only Rufinus offered thoughtful analysis of in Question 2 in his brief commentary on the illicitness of seeking out futurities149).

The commentary of Rufinus, Rolandus, the Summa Parisiensis, and Simon of Bisignano on Causa 23 concern the party responsible for judicial action and war150). Rather than heresy, crimen was the crux of their analysis. Rufinus analyzed the institution responsible for moderating justice in C.23 q.1 c.4. Public authority, such as the emperor, prefect, or similar authority is the decid-ing force. Because justice is secular – and not spiritual – business, power of the military, for example, may not be in the hands of clerics151). For Rufinus while the minister of the court, officials, and judges were not guilty of having issued corporal sentences (maiming and capital punishment) against the re-calcitrant, such power did not extend to bishops who had accepted civil power over cities152). Rolandus likewise noted that some judges have the power of the sword and some do not; those who do not cannot issue a death sentence153). The Summa Parisiensis clearly distinguished between the purview of a civil judge and that of an ecclesiastical judge. Sometimes injuries are considered by the civil judge only, sometimes by the ecclesiastical judge, and sometimes by both the ecclesiastical and civil judge. A judgment of blood is the purview of the civil judge; when he who is subjected to a prelate denies obedience such cases are the purview of the ecclesiastical judge; when the injury is punished monetarily it falls under the purview of both. While a civil judge inflicts civil vengeance, an ecclesiastical judge inflicts ecclesiastical requital such as ex-communication and degrading154). Simon of Bisignano noted that those who have issued a judgment of blood may not be promoted to the sacred orders155).

148) Rufinus (n. 146), pp. 416–418 to C.24 q.1 c.23 s.v. Advocavit; Summa Paris-iensis (n. 146), pp. 223–224 to C.24 q.1 c.23 s.v. Advocavit, p. 226 to C.24 q.1 c.34 s.v. Schisma, p. 227 to C.24 q.1 c.42 s.v. Coepit Hermengildus.

149) Paucapalea (n. 146), pp. 108–109; Summa Parisiensis (n. 146), pp. 232–233; Rolandus (n. 147), pp. 109–110; Simon of Bisignano (n. 147), p. 398; Rufinus (n. 146), pp. 424–426.

150) Paucapalea does not delve too deeply into this case.151) Rufinus (n. 146), p. 404 to C.23 q.1 c.4 s.v. Quid culpatur.152) Ibid. p. 408 to C.23 q.4 c.45 s.v. Quesitum est, p. 409 to C.23 q.5 c.8 s.v. De

occidentdis153) Rolandus (n. 147), pp. 92–93 to C.23 q.5.154) Summa Parisiensis (n. 146), p. 212 to C.23 q.3.155) Simon of Bisignano (n. 147), p. 377 to C.23 q.4 c.45 s.v. Quesitum est.




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Military action for clerics was qualified. Rufinus forbad clerics of any order to carry arms – unless perhaps necessity most fervently compelled him for his defense or ordered by a superior against pagans156). Rolandus and the Summa Parisiensis noted that while those established in sacred orders (e.g., secular clergy, monks, hermits, and canons regular) will always be forbidden from taking up arms, those not in sacred orders may take up arms by the order of the prince, ordinary judge, or pope. According to the Summa Parisiensis, the latter were able to contract a marriage and to exercise other secular offices. However, as it went on, the Magister would conclude that bishops and cler-ics could bear arms – not by themselves but with others – to admonish others and resist enemies157).

The Summa Parisiensis’ comment on C.23 q.4 c.24 illustrates how heresy was a gateway to larger issues. Viewing heresy through the lens of judicial procedure, the compiler referred back to Causa 2 (q.7 c.26) which established that the testimony of heretics was sometimes received and sometimes heretics were admitted as accusers. A heretic could testify against a heretic and an infidel could testify against an infidel, but he who was outside of the Church could not testify against a Catholic. However with crimes involving heresy, simony, apostasy, having defrauded the census of public rations/taxes, and treason, the testimony of all was admitted158).

Causa 24 illustrates the extension of crimen to include heresy as well as with the connection between obedience and administrative capacities159). Ro-landus spoke of heresy as a crime akin to the crime of simony and then ven-tured into the punishment for the crime160). The Summa Parisiensis noted that one who followed a now damned heresy was subject to a sententia lata (automatic sentence)161). As with Gratian, much of the emphasis was on one’s inability to excommunicate and to reconcile as well as on procedural matters. Both the Summa Parisiensis and Simon of Bisignano emphasized obedience to Rome as a necessary prerequisite for administering the functions of one’s office162). Rolandus noted that it was permitted to be accused and excommu-

156) Rufinus (n. 146), p. 412 to C.23 q.8 d.a.c.1 s.v. De episcopis vero.157) Rolandus (n. 147), p. 98 to C.23 q.8; Summa Parisiensis (n. 146), p. 220 to C.23

q.8 d.a.c.1 s.v. De episcopis vero.158) Summa Parisiensis (n. 146), p. 215 to C.23 q.4 c.24 s.v. quos enim divina tes-

timonia.159) Paucapalea did not delve too deeply into this case.160) Rolandus (n. 147), p. 99 to C.24 q.1.161) Summa Parisiensis (n. 146), p. 223 to C.24 hypothetical.162) Ibid. to C.24 q.1 d.p.c.4 s.v. Haec autem, p. 223 to C.24 q.1 c.16 s.v. Cum




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nicated after death for the crime of simony, heresy, sacrilege; such was not possible, however, for other crimes163). The Summa Parisiensis added high treason to that list164). Rufinus noted though that an unjust excommunication could be overturned even after death165). Echoing a topic addressed in Causa 26, Rolandus commented that an excommunicate could be reconciled after death if, when he had become ill, he demanded to be reconciled and showed a desire to make satisfaction but died before he could complete it166). A licit excommunication, irrespective of the crimen, must have two or three wit-nesses in the presence of the church. Should he fail to respond, he should be excommunicated after third summons167). However, as both Rolandus and the Summa Parisiensis noted, some sins were corporeal and others spiritual. Sons can be whipped as corporeal punishment on account of their parents, but they cannot incur their spiritual punishment. Since anathema is not a corporeal punishment but a spiritual punishment, a son cannot be excommunicated for his father’s sin168). As obedience to Rome was essential to exercising of one’s office, Simon of Bisignano used this occasion to comment on the pope’s su-preme authority to reconsider sentences pronounced by bishops169).

The early Decretists have explored the limits of a cleric’s office by focusing on his ability to punish a crime while intermittently touching on heresy. Com-mentary on Causa 26 follows the same path as they focused more so on the limits of a priest to reconcile than on magic. In his introduction to the causa, Paucapalea highlighted the thrust of the case: the duties (officia) of bishops as opposed to those of priests. The main issue centered on a priest who had usurped for himself that which was the purview of his bishop170). The Sum-ma Parisiensis introduced Causa 26 by commenting that the previous causa (Causa 25) showed how no bishop was able to violate decrees of the apostolic see as it was the eternal axis of churches. Causa 26, accordingly, addressed

beatissimus, p. 223 to C.24 q.1 c.19 s.v. Alienus est; Simon of Bisignano (n. 147), pp. 386–387 to C.24 q.1 c.6 s.v. Quodcumque ligaveris super terram, s.v. Omnibus.

163) Rolandus (n. 147), pp. 101–102 to C.24 q.2.164) Summa Parisiensis (n. 146), p. 228 to C.24 q.3 d.a.c.1 s.v. Quod autem.165) Rufinus (n. 146), p. 420 to C.24 q.2 s.v. Quod autem post mortem.166) Rolandus (n. 147), p. 101 to C.24 q.2. 167) Rufinus (n. 146), p. 420 to C.24 q.3 c.6 s.v. evangelica auctoritate, p. 421 to

C.24 q.3 c.15 s.v. De excommunicationis.168) Rolandus (n. 147), p.103 to C.24 q.3; Summa Parisiensis (n. 146), p. 228 to

C.24 q.3 d.a.c.1 s.v. Quod autem.169) Simon of Bisignano (n. 147), p. 390 to C.24 q.1 c.3 s.v. Sane, p. 393 to C.24

q.3 c.29 s.v. Dixit Apostolus.170) Paucapalea (n. 146), pp. 107–108 to C.26 hypothetical.




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the ability of a priest to usurp the power of a bishop171). Rolandus stated that those of lesser rank (minores) ought to show obedience to their superiors in all things. As such priests are not able to cut short (mutilare) the judgments of bishops172). Likewise Rufinus stated that a priest could not reconcile the excommunicated by name unless the bishop was absent and death was im-minent. He then distinguished between ceremonial (sollempnem) and private reconciliation. The former is the purview of the bishop alone; the priest’s reconciliation is a private one173). The Summa Parisiensis echoed Rufinus, but referred to ceremonial reconciliation as public reconciliation174). According to Rolandus, a priest could not reconcile a man excommunicated by name or those inscribed by the law itself in the crime of anathema unless the bishop was absent and death was imminent175). Paucapalea, Rufinus, Rolandus, and the Summa Parisiensis all reaffirmed the priest’s duty to reconcile the dying even if the full penance could not be performed176). Taking a more legalistic tone, Simon of Bisignano commented that the judge should dictate the sen-tence according to mercy rather than the rigor of the law. He ought to be more prone to absolving than condemning177).

Viewing Causae 23–26 as cases using heresy and magic as a means to dis-cuss the limits of a cleric’s office to punish and to reconcile offers a clearer picture of how Causa 25 fits into this thematic cluster. Causa 25 focuses on the administrative functions of the papal office. In his introduction Paucapalea connected Causa 25 with C.23 q.7 and the taking away of church property as one of revoking a privilege178). Rufinus used papal power as a means of transitioning from Causa 24 to Causa 25. The power to bind and loose and the power to dispense churches earmark the majesty of the Roman Church179).

171) Summa Parisiensis (n. 146), p. 232 to C.26 hypothetical.172) Rolandus (n. 147), p. 111 to C.26 q.6.173) Rufinus (n. 146), p. 428 to C.26 q.6 d.a.c.1 s.v. Quod autem ab episcopo, p. 428

to C.26 q.6 c.3 s.v. Ministrare, p. 428 to C.26 q.6 c.4 s.v. Presbiteri, iussione.174) Summa Parisiensis (n. 146), pp. 233–234 to C.26 q.7, p. 234 to C.26 q.7 c.7

s.v. Qui recedunt.175) Rolandus (n. 147), p. 111 to C.26 q.6.176) Paucapalea (n. 146), p. 110 to C.26 q.7 s.v. De tempore autem satisfactionis;

Rufinus (n. 146), pp. 428–429 to C.26 q.7 s.v. De tempore vero satisfactionis; Rolan-dus (n. 147), p. 112 to C.26 q.7; Summa Parisiensis (n. 146), p. 234 to C.26 q.7 d.a.c.1 s.v. De tempore, pp. 234–235 to C.26 q.7 c.6 s.v. Sacerdos.

177) Simon of Bisignano (n. 147), p. 401 to C.26 q.7 c.12 s.v. Alligant.178) Paucapalea (n. 146), p. 106 to C.25 hypothetical.179) Rufinus (n. 146), pp. 421–422 to C.25 hypothetical s.v. Sancta Romana ec-

clesia.




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General privileges, according to Rufinus, were granted to all churches or per-sons of the church by the holy fathers in the canons and by Christian princes in the laws. Special privileges were permitted at a particular point and were limited to a particular church180). For both Rufinus and Rolandus, the Roman Church, having considered necessity and utility, was able to dispense with a general privilege either in whole or in part. Equity should govern the issuing of special privileges. No one of an inferior status is able to counter either a general or special privilege. The reason being is the tagline “unless the author-ity of the holy Roman church imparted otherwise” or “save by the authority of the Roman church in all things”181). The pope, Rolandus continued, may not deviate from articles of the faith or if the case has not been examined182). The Summa Parisiensis echoed Rolandus. The pope is bound by will, not by necessity. Thus he is able to exercise his authority in all things, except where the privilege is not essential or regarding articles of the faith183). Simon of Bisignano commented that the pope was able to go against the statues of men, but he could not counter that which the Lord or other popes have instituted as they pertained to articles of faith184). Simon viewed the revoking of privileges through the lens of crime. Repeat crimes need to be punished more harshly. On account of the fault of the prince or of citizens, as the laity are incorrigible transgressors, they ought to be forbidden from all dedications or celebrations of the sacraments of the church with the exception of the baptism of the very young185).

Supporting an understanding of Causae 22–26 as a thematic cluster of cases focusing on obedience and the execution of one’s office is the context in which most of these canons appear in some of the more prominent pre-Gratian collections and the commentary of some early Decretists. Anselm’s Collectio canonum, Ivonian Decretum, Panormia, Tripartita, and (to some extent) Polycarpus and 3L included these canons in sections devoted to papal primacy, punishment, and administrative capacities. The vast majority of the canons in Causa 23 appear in contents of capital punishment, war, and the

180) Ibid. pp. 422–423 to C.25 q.1 d.a.c.1 s.v. Quod vero auctoritate illius privilegii.181) Rufinus (n. 146), pp. 422–423 to C.25 q.1 d.a.c.1 s.v. Quod vero auctoritate

illius privilegii; Rolandus (n. 147), p. 106 to C.25 q.1.182) Rolandus (n. 147), p. 108 to C.25 q.2.183) Summa Parisiensis (n. 146), p. 230 to C.25 q.1, p. 231 to C.25 q.1 d.p.c.16

s.v. His ita.184) Simon of Bisignano (n. 147), p. 395 to C.25 q.1 c.6 s.v. usque Dominus vel

eius apostoli.185) Ibid. p. 397 to C.25 q.2 c.25 s.v. Ita nos.




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bishop’s involvement in both; heresy was a subtheme. The majority of the canons in Causa 24 appear in sections addressing papal power and episcopal rights; heresy again was a subtheme. The driving context of the canons in Causa 25 is the papacy’s duty to adhere to canons and scripture with protect-ing and preserving ecclesiastical foundations. While magic did receive a fair amount of attention in Causa 26, the deeper concern lay both with the faith of the priest and the laity as well as with salvation. Rather than focusing on the question of heresy, a sampling of early Decretists, such as Paucapalea, Ro-landus, Rufinus, the compiler of the Summa Parisiensis, and Simon of Bisig-nano, show that they were more concerned with the administrative abilities of a particular office to punish, reconcile, or grant. Heresy and magic were an element of the discussion – they provided the foundation for the ‘crime’ – but they were a means to an end. They were a vehicle to discuss more press-ing issues.

VI . Obedience and Right Order in the F i rs t Hal f of the Twel f th Century

Heterodoxy served as an inroad to speak about obedience and office, which in turn offers an opportunity to see Gratian within an historical context. Law, it must be remembered, does not happen in a vacuum but rather is in dia-logue with social and political developments. Gratian used the designation of “heretic” as a way to analyze order and disorder. The concern for obedience echoes Kathleen Cushing’s comment that the eleventh-century was a time in which the “[t]heoretical issues such as rival obediences, the nature of sworn oaths, the relationships between catholics and schismatics, and the validity of the sacraments and orders of those who were extra ecclesiam quickly became pressing and practical concerns as the two hierarchies vied for authoritative position”186). Causae 23–26 used the principles that grounded the oath (Causa 22) to outline how obedience circumscribed the administrative abilities of a cleric to punish or to redress; how relationships functioned and the conse-quences of broken bonds.

Examples from the pontificates of Alexander II (1061–1073) and Gregory VII (1073–1085) illustrate that the papacy drew on societal norms by using a formulaic oath to bind archbishops and bishops to the Holy See187). Deus-

186) Cushing , Papacy and Law (n. 143), 124.187) Robert Benson noted that “[a]t least since Paschal II’s pontificate, the newly

elected metropolitan took an oath of obedience to the pope, and the effective ius met-ropoliticum dated from taking of this oath as well as from the receipt of the pallium”. See Benson, The Bishop-Elect (n. 19), 168, 169.




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dedit’s Collectio canonum (Bk.4 c.423) includes the oath sworn by Guibert/Wibert (1070), archbishop-elect of Ravenna, to Pope Alexander II:

Ego Guibbertus Ravennas archiepiscopus ab hac hora in antea fidelis ero Sancto P[etro] sancteque R[omana] aecclesie et domino meo pape Alexandro suisque suc-cessoribus electione meliorum cardinalium intrantibus. Non ero in consilio neque in facto, ut vitam perdant aut membra aut capti sint mala captione. Consilium vero, quod mihi credituri sunt per se aut per nuntios suos sive per litteras, nulli manifestabo ad eorum damnum me sciente. Papatum R[omanum] et regalia sancti P[etri] adiutor eis ero ad retinendum et defendendum salvo meo ordine. Legatum R[omanum] eundo et redeundo honorifice tractabo et in suis necessitatibus adiu-vabo. Vocatus ad synodum venire non differam, nisi prepeditus canonica excusa-tione vel prepeditione. In nataliciis apostolorum eorum limina visitabo aut per me aut per nuntium meum, nisi apostolica licentia remaneam. Sic me deus adiuvet et hec sancta evangelia188).

Pope Gregory VII’s Register includes two similar examples. One was pre-pared for Archbishop Henry of Aquileia at the Lenten synod in February 1079:

Ab hac hora et inantea fidelis ero et obediens beato Petro et pape Gregorio suisque successoribus, qui per meliores cardinales intraverint. Non ero in consilio neque in facto, ut vitam aut membra aut papatum perdant aut capti sint mala captione. Ad synodum, ad quam me vocabunt vel per se vel per suos nuntios vel per suos litteras, veniam et canonice oboediam, aut, si non potero, legatos meos mittam. Papatum Romanum et regalia sancti Petri adiutor ero ad retinendum et defendendum salvo meo ordine. Concilium vero, quod michi crediderint per se aut per nuntios suos sive per litteras, nulli pandam me sciente ad eorum damnum. Legatum Romanum eundo et redeundo honorifice tractabo et in necessitatibus suis adiuvabo. His, quos nominatim excommunicaverint, scienter non communicabo. Romanam ecclesiam per secularem militiam fideliter adiuvabo, cum invitatus fuero. Hec omnia obser-vabo, nisi quantum sua certa licentia remanserit189).

188) Die Kanonessammlung des Kardinals Deusdedit, ed. Vic tor Wolf von Glanvel l , Paderborn 1905 [hereafter Deusdedit], 599. The oath translates: ‘I, Wib-ertus archbishop of Ravenna, from this hour and hereafter will be faithful to Saint Peter and to the holy Roman Church and to my lord Pope Alexander and to his successors being raised up by election of the better cardinals. I will not [betray] in council and not in deed, so that they may not lose life and limb and be held captive in evil capacity. Truly I will disclose to no one through my knowledge to harm their council, which they will have entrusted to me through themselves, their messengers, or through their letters. I will be an assistant to them to retain and to defend the Roman papacy and the regalia of Saint Peter by my saving order. I will treat honorably the Roman legate from the time he comes to the time he leaves and I will aid his necessities. I will not put off going to a synod when I have been called, unless I have been obstructed by a canonical delay. I will visit both by myself and by my nuncio the shrines of those apostles on their anniversaries, unless I may remain with apostolic permission. So help me God and these holy gospels.’

189) Register of Gregory VII, vol. 2.2, in: MGH Epp. Sel., ed. Societas aperiendis




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The other was prepared for Bishop Peter of Antivari, whom Gregory VII summoned to Rome sometime between 1073 and 1085:

Ego Petrus episcopus ab hac hora in antea fidelis ero sancto Petro sancteque Ro-mane apostolice ecclesie, domino meo pape illiusque successoribus canonice in-trantibus. Non ero in consilio ne in synodo ut vitam perdat vel membrum aut cap-tiatur mala captione. Consilium quod mihi per se aut per litteras aut per nuntium manifestabit ad eorum damnum nulli pandam. Papatum Romane ecclesie et sancti Petri adiutor ero ad retinendum et defendendum, salvo meo ordine, contra omnes homines. Vocatus ad synodum veniam nisi prepeditus fuero canonica prepeditione. Legatum apostolice sedis quem certum legatum esse cognovero in eundo et red-deundo honorifice tractabo et in suis necessitatibus adiuvabo. Apostolorum limina singulis annis aut per me aut per certum nuntium meum visitabo, nisi eorum absol-var licentia. Sic me Deus adiuvet et hec sancta evangelia190).

fontibus rerum germancarum medii aevi, Bern 1923, Liber VI, 17a, pp. 428–429; H.E.J . Cowdrey, The Register of Pope Gregory VII (1073–1085): An English Translation, Oxford 2002, 302: “From this hour and hereafter I will be faithful and obedient to blessed Peter and to Pope Gregory and his successors who shall come to office through the better cardinals. I will have no part in counselor in deed whereby they may lose life or limbs or the papacy, or may be held captive in evil capacity. To a synod to which they shall summon me whether through themselves or through their messengers or through their letters I will come and I will obey canonically; or, if I shall not be able to come, I will send my envoys. I will be a helper in upholding and defending the Roman papacy and the regalian rights of St. Peter, saving my order. As for the counsel that they shall entrust to me through themselves or through their mes-sengers or through letters, I will to my knowledge disclose it to no one to their harm. A Roman legate when going and returning I will treat honorably and will help in his necessities. I will not knowingly communicate with those whom they shall have ex-communicated by name. When called upon to do so, I will faithfully help the Roman church by secular service. All these things I will observe, except in so far as something shall remain undone by their accredited permission.”

190) H.E.J . Cowdrey, The “Epistolae Vagantes” of Pope Gregory VII, Oxford 1972, no. 69, pp. 152–153 (Appendix A): “I, Bishop Peter, from this hour and hereafter will be faithful to Saint Peter and to the holy Roman Church and to my lord the pope and to his successors being raised up canonically. I will not [betray] in council [and] not in synod, so that he may not lose life and limb and be held captive in evil capacity. Truly I will disclose to no one to harm his council, which he will make known through himself, through his letters, or through his messenger. I will be an assistant to them to retain and to defend the Roman papacy and the regalia of Saint Peter by my sav-ing order against all men. I will not put off going to a synod when I have been called, unless I have been obstructed by a canonical excuse or delay. I will treat honorably the Roman legate, whom I will know to be a trusty legate, from the time he comes to the time he leaves and I will aid his necessities. I will visit both by myself and by my trusty messenger the shrines of those apostles on their anniversaries, unless I will be absolved by their permission. So help me God and these holy gospels.”




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While the language differs slightly, as they have been adapted for ecclesias-tical use, the oaths are very similar to that sworn by Robert Guiscard to Pope Nicholas II at the Synod of Melfi in 1059:

Ego Robertus dei gratia et S[ancti] P[etri] dux Apulie et Calabrie et utroquo sub-veniente futurus Sicilie ab hac hora deinceps ero fidelis sancte R[omane] ecclesie et apostolice sedi et tibi domino meo Nicolao pape. In consilio vel in facto, unde vitam aut membrum perdas vel captus sis mala captione, non ero. Consiliumque, quod mihi credideris et contradixeris, ne illud manifestem, non manifestabo ad tuum damnum me sciente. Sancte Romane ecclesie tibique adiutor ero ad tenendum ad acquirendum regalia Sancti [Petri] eiusque possessiones pro meo posse contra omnes homines et adiuvabo te, ut secure et honorifice teneas papatum R[omanum] terramque S[ancti] P[etri]. Et principatus nec invadere nec acquirere queram nec etiam depredare presumam absque tua tuorumque successorum, qui ad honorem S[ancti] P[etri] intraverint, certa licentia preter illam, quam tu mihi concedes vel tui concessuri sunt successores. Pensionem de terra S[ancti] P[etri], quam ego teneo aut tenebo, sicut statutum est, recta fide studebo, ut illam annualiter sancta R[omana] habeat ecclesia. Omnes quoque ecclesias, que in mea persistunt dominatione, cum earum possessionibus dimittam in tuam potestatem; et defensor ero illarum ad fi-delitatem S[ancte] R[omane] ecclesie et nulli iurabo fidelitatem, nisi salva fidelitate S[ancte] R[omane] ecclesie. Et si tu vel tui successores ante me ex hac vita migra-veritis, secundum quod monitus fuero a melioribus cardinalibus, clericis R[omanis] et laicis, adiuvabo, ut papa eligatur et hordinetur ad honorem sancti P[etri]. Hec omnia suprascripta observabo sancte R[omane] ecclesie et tibi cum recta fide, et hanc fidelitatem observabo tuis successoribus ad honorem S[ancti] P[etri] ordinatis, qui mihi firmaverint investituram a te mihi consessam. Si me Deus adiuvet et hec sancta evangelia191).

191) Die te r Gi rgensohn, Miscellanea Italiae pontificiae: Untersuchungen und Urkunden zur mittelalterlichen Kirchengeschichte Italiens, vornehmlich Kalabriens, Siziliens und Sardiniens, in: Nachrichten der Akademie der Wissenschaften in Göt-tingen, I. Philologisch-Historische Klasse, Göttingen 1974, 173–174; Deusdedit (n. 188), Liber III c.285 (pp. 393–394). The oath translates: ‘I, Robert, by the grace of God and St. Peter, Duke of Apulia and Calabria and by the aid of both will be [Duke] of Sicily, from this hour forth will be faithful to the holy Roman church, and to the apostolic see, and to you my lord Pope Nicholas. I will not be in council or in deed, whence you lose life and limb or held captive in an evil capacity. May I not disclose something and I will not disclose through my knowledge to harm your council, what you will have entrusted to me and what you oppose. I will aid you and the holy Ro-man church to acquire the regalia of St. Peter and I will aid you with all my abilities to hold your possessions against all men so that you can hold the Roman papacy and land of Saint Peter with security and honor. I will strive neither to invade nor acquire and also not presume to deprive [you of] land except that, which you concede to me or your successors have conceded, without your firm permission and that of your suc-cessors who will enter to the honor of Saint Peter. I will be zealous with right faith [to pay] the tax on the land of Saint Peter, which I pay and will pay, as it is stipulated, so




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The formula of these oaths and others192) echo the oath of fidelity outlined by Fulbert of Chartres in his letter to William V, which Gratian used in C.22 q.5 c.18 to conclude his discussion of the obligations associated with the oath and what constituted perjury:

De forma fidelitatis aliquid scribere monitus, hec vobis, que secuntur, breviter ex librorum auctoritate notavi. Qui domino suo fidelitatem iurat, ista sex in memoria semper habere debet: incolume, tutum, honestum, utile, facile, possibile. Incolume videlicet, ne sit in dampnum domino suo de corpore suo. Tutum, ne sit ei in damp-num de secreto suo, vel de munitionibus, per quas tutus esse potest. Honestum, ne sit ei in dampnum de sua iusticia, vel de aliis causis, que ad honestatem eius pertinere videntur. Utile, ne sit ei in dampnum de suis possessionibus. Facile vel possible, ne id bonum, quod dominus suus facere leviter poterat, faciat ei difficile, neve id, quod possibile erat, reddat ei inpossibile. Ut fidelis hec documenta caveat, iustum est. Sed quia non sufficit abstinere a malo, nisi fiat, quod bonum est, restat, ut in eisdem sex supradictis consilium et auxilium domino suo fideliter prestet, si beneficio dignus videri vult, et salvus esse de fidelitate, quam iuravit. Dominus quoque fideli suo in his omnibus vicem reddere debet. Quod si non fecerit, merito censebitur malefidus, sicut ille, si in eorum prevaricatione vel faciendo, vel consen-tiendo deprehensus fuerit perfidus et periurus193).

that the holy Roman church should have it annually. Also I will place all church along with their possessions, which are in my territory under your authority; and I will de-fend them by the fidelity to the Holy Roman church and I will swear fidelity to no one unless save fidelity to the Holy Roman church. And if you or your successors should leave from this life before me, accordingly as I shall have been advised by the better cardinals, by the clergy of Roman and by the laity, I will aid so that a pope is chosen and ordained to the honor of Saint Peter. I will observe all of these things written above for you and for the holy Roman church with the rectitude of faith, and I will observe this fidelity to your successors having been ordained to the honor of Saint Peter, who will confirm to me investiture which has been granted to me by you. So help me God and these holy gospels.’ Robert Guiscard also would swear a version of this oath to Pope Gregory VII on 29 June 1080, see Register of Gregory VII, 2.2 (n. 189), Liber VIII, 1a, pp. 514–515.

192) Gi rgensohn, Miscellanea Italiae pontificiae (n. 191), 194–196. Girgensohn includes three oaths of interest: one sworn by a bishop to a Pope V (either Victor III or Urban II) between 1087 and 1099; one sworn by a bishop to the Archbishop of Salerno in the eleventh or twelfth century; one sworn by Archbishop Walter of Palermo to Pope Alexander III on 28 September 1169. The formula of all three follow in line with those discussed here.

193) Florence 402, fol. 61va; Admont 43, fol. 59v–60r; Freder ick Behrends (trans. and ed.), The Letters and Poems of Fulbert of Chartres, Oxford 1976, no. 51, pp. 90–93: “Since I was asked to write something about the oath of fidelity, I have noted for you these things which follow from the authority of books. Whoever swears fidelity to his lord should always have six things in mind: safe, secure, honest, useful, easy, possible. Safe, namely, lest he injure his lord with his own body. Secure lest he




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The four oaths (three ecclesiastical and one lay) required by Alexander II, Gregory VII, and Nicholas II include the elements outlined by Fulbert: safe, secure, honest/useful, and easy/possible. Like the vassal who swore to keep his lord from harm, the prelates and Guiscard swore not to betray the pope in council or in deed which would lead to the pope’s loss of life and of limb or capture. Like the vassal who swore to keep the secrets of his lord safe, they swore not to disclose by their knowledge anything that would betray the pope’s council. Like a vassal who swore to be useful so he might not be harmful to his lord in his possessions, they swore to retain and to defend the Roman Papacy and the regalia of Saint Peter. Robert Guiscard’s oath included further provisos regarding papal lands. Like the vassal who swore not to jeopardize his lord’s honor, the prelates swore to treat honor-ably the pope’s legate in coming, remaining, or in returning. The oath of Archbishop Henry of Aquileia to Pope Gregory VII included the proviso not to communicate knowingly with those who were excommunicated and to assist the Roman church in secular service when requested. They swore to attend a synod when requested either by the pope in person, by his mes-sengers, or by a letter. The oath of Archbishop Guibert/Wibert and that of Bishop Peter added the further stipulation to visit the sees of the apostles on their feast days both in person and through his nuncio. Finally, the prelates and Guiscard swore fidelity to the current pope, his successors, and to the see of Saint Peter.

The oath and obedience went hand-in-hand. In his letter to Archdeacon Hildebrand (Dec. 1059), Peter Damian recounted his trip to Milan to deal with simony. He told of his sermon in which emphasized the privileges and prima-cy of the Apostolic See, i.e. the need to show obedience to the see and the need to carry out its commandments. “[I]f one attempts to deny the Roman Church the privilege granted it by the head of all the churches himself [i.e. Christ], he doubtless falls into heresy and is labeled a heretic. He who acts contrary

not injure his secret interests or his defenses through which his lord can be secure. Honest lest he not injure his lord’s justice or in other matters which seem to pertain to his honesty. Useful lest he injure his lord’s possessions. Easy or possible, lest that the good, which his lord could easily do, he would make difficult, and that what would be possible, he would make impossible for his lord. It is just [and good] that a faithful man should pay heed to these examples. It is not sufficient to abstain from evil, unless he may do what is good. It remains that he faithfully give his lord counsel and help in the aforementioned matters, if he wishes to be worthy of his benefice (fief) and safe in the fidelity that he has sworn. The lord also ought to render his duty to his faithful man in all things. If he does not, he may be thought of as faithless, just as he, who in consenting or telling lies will be perfidious and perjurous.”




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to her who is the mother of faith certainly does violence to the faith…”194). The Roman Church is the mother, the Ambrosian church (like all others) is a daughter. The tone was that the primacy of Rome necessitated obedience to its wishes. The result thereof was the promise sworn by Guido, the archbishop of Milan, along with the archepiscopal vicar and priest, and a number of priests, deacons, and subdeacons to stamp out the heresy of simony and a formula for an oath to be taken by those who were to be ordained that they did not come by their position through simony and would not succumb to nicolaitism195). Kriston Rennie’s study of Pope Gregory VII’s legate Hugh of Die illustrates that Hugh excommunicated prelates for disobedience of one sort or another: Hugh of Besançon for failing to attend the Autun council (1078), Richarius of Sens for failing to attend the Poitiers council (1078), Richard of Bourges who left his church “in a spirit of anger and not by synodal judgment”, Gosfred of Chartres, and Ralph I of Tours. Political expediency – that is, Gregory VII’s desire to maintain and build on his alliance with the English king and duke of Normandy William I – and the lack of legal proof, that is, the bishops did not willingly disobey the pope but were influenced by political factors – led to the overturning of these excommunications and returning the respective peo-ple to their sees196). At the council held during Lent in 1102, Pope Paschal II required an additional profession of obedience that participants were to swear in addition to the normal oath:

Anathematizo omnem heresim et precipue eam, quae statum presentis aecclesiae perturbat, quae docet et astruit anathema contempnendum et aecclesiae ligamenta spernenda esse. Promitto autem obedientiam apostolicae sedis pontifici domno Pas-chali eiusque successoribus sub testimonio Christi et aecclesiae, affirmans quod affirmat, et dampnans quod dampnat sancta et universalis aecclesiae197).

194) Blum, Peter Damian (n. 40), 61–90, Letter 65, pp. 24ff., here p. 27.195) Ibid. Letter 65, pp. 28, 33–37. A vice became a heresy when it is defended with

arguments thought to bear authority.196) Kr is ton R. Rennie , Law and Practice in the Age of Reform: The Legatine

Work of Hugh of Die (1073–1106) (= Medieval Church Studies 17), Leiden 2010, 92ff.. For instance, Pope Gregory VII determined that Richard of Bourges could not be condemned of any wrongdoing. Gosfred of Chartres “had not been summoned and had been condemned in absence” at the Council of Autun. Ralph I of Tours was re-stored because the matter had been decided by Alexander II and there was not another accusation (“sine certa accusatione”).

197) Ekkehard of Aura, Chronica, in: Frutolfs und Ekkehards Chroniken und die Anonyme Kaiserchronik, ed. and trans. by Franz-Josef Schmale / I rene Schmale-Ot t (= Ausgewählte Quellen zur deutschen Geschichte des Mittelalters 15), Darmstadt 1972, 180. The oath translates: ‘I anathematize every heresy, and es-pecially that which disturbs the state of the present church, which teaches and af-




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Recorded by Ekkehard of Aura in his Chronica, this oath demanded the takers to promise to anathematize heretics and those who disturbed the state of the church. The oath required obedience to the Papal See, Paschal, and his successors to root out and to condemn that which the papacy had damned.

Prevailing feudal principles thus took on new life in the mid-eleventh and early twelfth century. As Steven Schoenig has pointed out, the Roman Church had coupled an oath of fidelity or an oath to obey papal decrees with the pro-fession of faith since the Carolingian era198). For example, the Liber Diurnus, a book of ecclesiastical formulae used by the papal chancery from the seventh century but which fell into disuse after Gratian, contains an episcopal promise of faith (promissio fidei episcopi), an episcopal guarantee (cautio episcopi), and an episcopal indiculum. With the Promissio Fidei Episcopi, the bishop reaffirmed and promised (promitto) to uphold the faith, and the decrees of the papacy and councils. The Cautio Episcopi set forth the responsibilities of the bishop to the Church with regards to the selection of clerics, the preservation of church property, and duty to the papacy. Finally, the Indiculum Episcopi bound the adherence of the bishop to the pope and his successors with his power to bind and to loose199).

In the period of 1046–1119, however, the papacy also employed an oath of fidelity or loyalty to which the petitioner swore fealty to the pope and his suc-cessors before he could acquire the pallium. The reception of the pallium be-came tied to showing obedience as a part of the papacy’s program to keep ec-clesiastical society well-ordered and controlled; it became a means by which the papacy subjugated the episcopate to the papacy200). As Peter Damian wrote

firms that anathema should be despised and [that] the bonds of the church should be spurned. Moreover, I promise obedience to pope of the apostolic see, to lord Paschal, and to his successors on the witness of Christ and of the church, affirming what he [the pope] affirms and condemning what he [the pope] condemns for the holy and universal church.’

198) S teven A. Schoenig S.J., The Papacy and the Use and Understanding of the Pallium from the Carolingians to the Early Twelfth Century, Ph.D. dissertation Colum-bia University 2009. See p. 46 for the case of Lull of Mainz who swore to believe and to teach the catholic faith and do so in accordance with the instruction of the apostolic pontiff Hadrian. See p. 49 for the case of Ansgar of Hamburg who swore in writing and by oath that he and his successors would hold faith with the papacy, accept the six holy synods and observe and carry out the degree of all the prelates of the Roman see.

199) Liber Diurnus Romanorum Pontificum, ed. Hans Foers te r, Freiburg 1958, 128–137 (Codex Vaticanus, c.73–c.75), 238–247 (Codex Claromontaus, c.67–c.69), 363–376 (Codex Ambrosianus, c.62–c.67).

200) Schoenig , The Papacy (n. 198), 482, 488. Gottlob, Benson, and Blumenthal note the important role Pope Paschal II played in this initiative. See Theodor Got t -




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to Empress Agnes (Lent 1060) regarding her request that the pallium be sent to the newly elected archbishop of Mainz Siegfried von Eppenstein (the pre-vious abbot of Fulda), Pope Damasus (see Burchard, Decretorum libri 1.25) had decreed that any metropolitan who delayed beyond three months after his consecration to profess his faith to the Roman pontiff and request the pallium would be deprived of the office committed to him201). In 1078 Hugh of Die used the phrase “receive his fealty by your hand” (… et securitatem in manu vestre accipiter …) in his request that Pope Gregory VII send the pallium to Gebuin of Lyon through a legate. As Steven Schoenig observed, such word-ing brings to mind the feudal act of homage202). In his letter to the archbishop of Palermo, Pope Paschal II noted that it was a prerogative of the papacy to require an oath of obedience prior to the reception of the pallium just as it was the pope’s prerogative to consecrate bishops and hold a synod akin to the Lord requiring Simon Peter to confirm his love before entrusting His sheep to him. Though not ideal, it was better to have another swear an oath of obedi-ence than having the statutes of the sacred canons rescinded. So long as one did not slip into perjury, it was permitted to swear on behalf of faith, obedi-ence, and for unity; that is, from the necessity of when an oath was the only means by which another would believe that which was useful to them203). The papacy, and Pope Paschal II in particular, used the pallium as a way to reward those who obeyed and to punish those who disobeyed its directives; it was a medium by which relationships were reinforced204). Causa 22 synthesized and reinforced the long held view that the safety of the Catholic faith and the assurance of salvation depended on obedientia: the obedience owed by the whole clericalis ordo by the whole societas christiana to the pope. As Causa 24 likewise reinforced, failure to obey is not simply a breach of ecclesiastical discipline but heresy205).

lob , Der kirchliche Amtseid der Bischöfe (= Kanonistische Studien und Texte 9), Amsterdam 1963, 49; Benson, The Bishop-Elect (n. 19), 169; Uta-Renate Blu-mentha l , The Early Councils of Pope Paschal II, 1100–1110, Toronto 1978, 21.

201) Blum, Peter Damian, 61–90 (n. 40), Letter 71, p. 113.202) Schoenig , The Papacy (n. 198), 483 n. 99.203) Mans i , Sacrorum conciliorum nova et amplissima collectio (n. 108), vol. 20,

col. 984.204) Schoenig , The Papacy (n. 198) notes that popes could deny the pallium to

those who bought their office (409), it could be bestowed on those as a reward for those who did not engage in lay investiture (407), and it could reorient the hierarchi-cal structure (432ff.).

205) See I .S . Robinson , Church and Papacy, in: The Cambridge History of Me-dieval Political Thought c. 350–c. 1450, ed. J .H. Burns , Cambridge 1991, 274–275.




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Very much akin to those that bound the laity, ecclesiastical oaths sought to guarantee the fidelity of the taker. Obedience would continue to be an impor-tant issue for canonists, particularly with regards to the issue of regalia206). From at least the time of the Carolingians in the eighth century, a bishop had worn two hats. On the one hand, he was a man of God. On the other hand, he was a man of the nobility raised to the episcopal see with the involvement of the emperor. A bishopric could carry with it public duties: attendance at imperial assemblies and synods, serving as administrators (that is, serving as missi and charged with carrying out administration functions), paying of taxes, lodging the ruler and envoys while on their journey, and military ob-ligations. Before but particularly from the time of Otto I, the emperor be-stowed the bishop-elect with lands, rights, and jurisdictional powers207). By the eleventh-century ecclesiastical offices and the “Ottonian-Salian Imperial Church System”, the bishopric was a feudal estate with the bishop carrying out agricultural and military duties208).

Investiture had subjected the bishop to the emperor in such a way as he was not subjected to the pope. As part of the effort to disentangle the relationship, Pope Urban II (1088–1099) at the Council of Clermont (c.17) in 1095 forbad either a bishop or a priest to render homage to a layman by placing his hands in the hands of the lord (regi vel alicui laico in manibus ligium fidelitatem fa-ciat). Furthermore, kings and princes were denied the right of investiture and clerics may not receive the honor of a church from a layman (c.16, c.15)209). At the Council of Rouen in 1096, Urban II again forbade a cleric from becom-ing “the man” of a layman because it was undignified. Hands having been

206) Benson, The Bishop-Elect (n. 19), 303ff.207) Fr iedr ich Kempf et al., The Church in the Age of Feudalism, trans. Anse lm

Biggs , Handbook of Church History 3, New York 1969, 109; Benson, The Bishop-Elect (n. 19), 205. See also Edgar Nathanie l Johnson, The Secular Activities of the German Episcopate, 919–1024, Lincoln/NE 1932, 189–205 (bishop as civil serv-ant) and 206–222 (bishop as soldier).

208) See Gerd Tel lenbach , The Church in Western Europe from the Tenth to the Early Twelfth Century, trans. Timothy Reuter (= Cambridge Medieval Textbooks), Cambridge 1993, repr. 1996, 57; Haro ld J . Berman, Law and Revolution: The Formation of the Western Legal Tradition, Cambridge/MA 1983, 88; Benson, The Bishop-Elect (n. 19), 297; Marc Bloch , Feudal Society, Vol. 2: Social Classes and Political Organization, trans. L .A. Manyon, New York 1961, repr. 1989, 349ff.; Uta-Renate Blumentha l , The Investiture Controversy: Church and Monarchy from the Ninth to the Twelfth Century, trans. by Blumentha l , Philadelphia/PA 1998, 36.

209) Mans i , Sacrorum conciliorum, nova et amplissima collectio (n. 108), vol. 20, col. 817.




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consecrated by God should not be mixed with (i.e. placed into) unconsecrated hands. With this said, if a priest held a fief (feudum) from a layman that did not pertain to the Church, then he was permitted to swear fidelity (faciat ei fideliatem) (c.8)210).

In his efforts to end the Investiture Controversy, Pope Paschal II (1099–1118) attempted to divide the property held by the Church into two catego-ries: property affiliated with the church (spiritualia) and property belonging to the emperor (temporalia) with the Agreement of Sutri, made with Henry V (1111–1125), on 4 February 1111 at S. Maria in Turri211). Even if Paschal II’s proposal did not come to fruition, the tremendous backlash highlights the dis-agreement surrounding what exactly constituted regalia. Paschal II and Ivo (c. 1040–1115), Bishop of Chartres and canon lawyer, saw a distinction between possessions granted to the Church as royal gifts (spiritualia) and possessions held by temporal grant (temporalia). Royal gifts (spiritualia) belonged to the Church in perpetuity. Once property or rights were given to a Church it would forever remain in the outright ownership of the Church; it was no longer under the purview of the emperor. Temporalia, on the other hand, remained with the emperor to grant as he saw fit. When Paschal II ordered the return of regalia, he meant the return of temporalia; anything pertaining to public rights and duties212). Disentangling what belonged to the Church from what belonged to the empire would disentangle ecclesiastical loyalties from secular loyalties.

210) Ibid. vol. 20, col. 925–926.211) Tractatus cum Paschali II (n. 108), pp. 134ff.; Blumentha l , Patrimonia and

Regalia in 1111, in: Papal Reform and Canon Law in the 11th and 12th Centuries (= CS 618), Aldershot 1998, no. IX, p. 9; Benson, The Bishop–Elect (n. 19), 244ff. Emperor Henry V was to renounce the right of investiture with ring and staff and would restore to the papacy the patrimonium Petri – territories, provinces, towns, and islands donated by Pepin, Charlemagne, and imperial successors of the eastern Frankish kingdom. The agreement fell through when, on 12 February the day of his coronation, Henry V captured Paschal II and sixteen cardinals in Rome. Held as a captive, Paschal was forced to consent to the agreement of Ponte Mammolo in April 1111, which became known as the pravilegium. Among a number of concessions, Pas-chal permitted the emperor the right to invest prelates in the empire with their office through ring and staff. As Blumenthal noted, German ecclesiastics became subjects of the emperor thereby minimizing the importance of the papacy in ecclesiastical affairs throughout imperial territories.

212) Placidus of Nonantula, Liber de honore ecclesiae, in: MGH Scriptores, Libelli de lite, vol. 2, ed. Societas aperiendis fontibus rerum germancarum medii aevi, Han-nover 1897, p. 567; U. -R. Blumentha l , Opposition to Pope Paschal II: Some Com-ments on the Lateran Council of 1112, in: Papal Reform (n. 211), no. X, pp. 87–89; Chodorow, Ecclesiastical Politics (n. 108), 620–622.




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The Concordat of Worms (1122), an agreement negotiated between Paschal II’s successor Pope Calixtus II (1119–1124) and Emperor Henry V (1111–1125), brought a “resolution” to the Investiture Controversy in the Holy Ro-man Empire by establishing the order in which the powers were to be granted – temporal first followed by spiritual213). In addition to being the bishop-lord of church lands, the resolution contained a secular aspect in that the emperor invested the bishop-elect with his secular benefices prior to his consecration bishop by the pope. The resolution thus allowed the bishop to be a secular lord in his own right and thus bound to the emperor by feudal obligations. The unanswered question, however, was how did the Church conceive of the administrative and feudal responsibilities? The Investiture Controversy left undefined exactly what a bishop’s temporal powers were and left undesig-nated the precise limits of those powers.

In many respects the first recension of Causa 23 is a practicum in implement-ing the outcomes recorded in the Concordat of Worms (1122), how prelates should navigate their spiritualia (episcopal rights, duties, and lands) and their regalia (temporal powers rights, duties, and lands). Robert Benson has noted that Gratian neither included nor mentioned the Concordat of Worms in the Decretum214), but Gratian did not need to in order to teach the outcomes of the agreement to students who might find themselves in such a position at some point in their careers. By using the principles associated with the oath laid out in

213) Concordatum Wormatiense (n. 100), 75–76. England and France (presumably) came to an agreement with the papacy in 1107. The terms were very similar to those of the Concordat of Worms. Pope Calixtus II conceded the right of the emperor to invest the bishop-elect with what would be called secular regalia (public rights, du-ties, and lands) through the lance. Conversely, Emperor Henry V remitted the right to investiture through ring and staff; that is, he conceded the granting of episcopal powers – and with it the benefice – to the Church. While the agreement allowed the pope to establish himself as the source of the bishop’s spiritual power, he also had to recognize the notion of feudal rights before consecration. Regalia carried with it legal obligations, which remained undefined, thereby binding the bishop and the emperor in an open and legitimate feudal relationship. The Church had to accept in theory as well as in practice some separation of ecclesiastical and secular authority. See Blu-mentha l , Investiture Controversy (n. 208), 173; Hors t Fuhrmann, Germany in the High Middle Ages, c. 1050-1200 (= Cambridge Medieval Textbooks), Cambridge 1986, 97; Berman, Law and Revolution (n. 208), 98, 213–214.

214) Benson, Bishop-Elect (n. 19), 304; idem, The Obligations of Bishops with ‘Regalia’: Canonistic Views from Gratian to the Early Thirteenth Century, in: Proceed-ings of the Second International Congress of Medieval Canon Law (Boston College, 12–16 August 1963), eds. S tephan Kut tner / J . Joseph Ryan (= MIC Series C: Subsidia 1), Vatican City 1965, 123.




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Causa 22 to regulate the practicalities of investiture in Causa 23, Gratian seemed to suggest in the first recension that it was largely possible to balance his obli-gations as a feudal-bishop. Rather than a case solely devoted to the waging of a just war against heretical bishops, the primary concern of the case lay with the two hats a bishop would wear, that is, the obligations a bishop would owe as a result of two different oaths sworn. As a bishop he owed obedience to the pope, he ministered to his flock, and he served as judge in episcopal court. A bishop, however, often had civil jurisdiction from the emperor – that is, the emperor had invested him as a vassal and lay lord – and thus he was expected to fulfill feudal obligations, such as military service and serving as judge in secular court. The additions comprising the second recension would cloud the picture.

As noted above, the Liber Diurnus was falling out of disuse by the time of Gratian. He, however, did know of the work and used it on three occasions as a material source215). It is through the lens of the Indiculum pontificis that Causa 25 fits into the broader scheme. This lengthy formula lays out the responsibilities of the Roman pontiff. It stresses the necessity of preserving the councils of Nicaea, Constantinople, Ephesus, I and II Chalcedon, and II Constantinople. It then provides a reiteration of proper doctrine and the Chris-tological heresies of old. Such echoes the end of Causa 24 (q.3 c.39) which included such material though, as discussed above, the canon does not seem to fit the context of the argument. The Indiculum pontificis mandated that the pope should keep to and not deviate from the decisions of his predecessors and their synods. As he is to keep peace within the church, he must improve traditions if they deviate from canonical discipline216). The Diversa Privile-gia Apostolicae Auctoritatis continued with the responsibilities of the pope to protect monasteries217). The difference between the Promissio Fidei Epis-copi and the Indiculum pontificis with respect to the choice of verbs is worth noting. The former opens with promitto (I promise)218), the latter opens with profiteor (I profess)219); the former carries a sense of subjugation not found

215) D.16 c.8 (edF. col. 45) = Liber Diurnus (n. 199), formula 83; C.12 q.3 c.26 (edF. col. 696) = Liber Diurnus, formula 6; C.16 q.7 c.27 (edF. col. 808) = Liber Diurnus, formula 11.

216) Liber Diurnus (n. 199), 145–164 (Codex Vaticanus, c.83–c.85), 221–238 (Co-dex Claromontanus, c.64–c.66), 334–363 (Codex Ambrosianus, c.59–c.61).

217) Ibid. 164–167 (Codex Vaticanus, c.86), 238–241 (Codex Claromontanus, c.71), 378–383 (Codex Ambrosianus, c.66).

218) Ibid. 128 (Codex Vaticanus, c.73), 238 (Codex Claromontanus, c.67), 363 (Co-dex Ambrosianus, c.62).

219) Ibid. 145 (Codex Vaticanus, c.83), 221 (Codex Claromontanus, c.64), 334 (Co-dex Ambrosianus, c.59).




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in the latter. The difference notwithstanding, the emphasis on intention, will, and duty set forth in Causa 22 remain applicable. The first recension of Causa 25 thus seems to be a refashioning of the concepts echoed in the Liber Diur-nus to suit the realities of the time. While adhering to the past, the pope must adapt policies to current situations for the preservation of institutional church.

A window into clerical behavior and a priest’s relationship with the la-ity, Causa 26 reflects prevailing concerns about the relationship between the two and the disorder caused when the lines between them blur. As Richard Kieckhefer has shown, clerics (and monks) were notorious for engaging in magic: medicinal healing, folklore, and necromancy. While medicinal healing was more prevalent in the monastic spheres, as it was a part of the general education that a monk was expected to receive, clerics did dabble in it by combining prayers with herbs or channeling the characteristics of an animal (e.g., the strength of a bull)220). More frequently, clerics engaged in supersti-tious folklore (e.g., rituals, divining, and the use of charms and talismans). For example, priests would perform day long rituals for infertile fields by taking land from the fields afflicted and sprinkle them with a mixture of holy water, milk and honey, and fragments of trees and herbs while reciting Genesis 1:28 (God’s words to Adam and Eve, “Be fruitful and multiply, and fill the earth”). Taking the clumps to the church, the priest would say mass three times over them and then return the clumps to the afflicted field221). Divination, be it popular or more scientifically focused astrology (particularly from the twelfth century on), was common place. It foretold which days of the week were more prosperous than others and thus one could avoid misfortune. For example, John of Salisbury recounted in his Policraticus the divining practices of his Latin teacher, a priest who would use crystals and John’s finger nail to tell the future222). Charms and amulets, such as the “charm of St. William”, cou-pled the name of a saint with superstition. In this case, the charm was thought to cure worms, cankers, festers, and gout. Talismans differed from charms and amulets in that they had written words, such as Pater Noster or Ave Ma-ria223). Finally, clerics engaged in necromancy (i.e., the conjuring of spirits or demons). Kieckhefer has pointed out that such was a past-time of chantry priests. Having said mass for the deceased family members of his patron, he had considerable free time. Compounding matters was the lack of formal edu-

220) Richard Kieckhefer, Magic in the Middle Ages, Canto Edition, Cambridge 2003, 64ff.

221) Ibid. 58–59.222) Ibid. 86–87, 151.223) Ibid. 72, 77.




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cation for priests. More often than not, an aspiring priest would serve as an apprentice in order to learn rudimentary Latin, the creeds, and necessary ritu-als224). Such an education left a fair amount of room for blending religion with magic, thereby opening the door for clerics to learn as much from the laity as the laity learned from clerics. The question of order permeates Causa 26 as it addresses head-on the separation of the lay from clerical, the use of religion for unauthorized practices, and the need for episcopal oversight.

What then was meant by “heresy” in the early twelfth-century? R.I. Moore’s recent work has challenged our understanding of this very idea be-tween the years 1000 and 1250. Pope Alexander III in conjunction with King Henry II formally declared the “war on heresy” in May 1163 at Tours225). The preceding period between II Lateran Council in 1139 and the Council of Reims in 1148 settled issues stemming from the eleventh and twelfth century: It rejected the most radical implications of the apostolic movement; property trumped absolute poverty; hierarchy triumphed over fraternity; personal cha-risma gave way to authority226). Heresy between 1022 and the 1130s, Moore argued, was not a matter that involved the laity, one centered on the populace. In twelfth-century Italy, accusations of heresy were absent and there was no recorded burning for heresy since that in Milan in 1028. Furthermore, the absence of formal accusations and trials between 1028 and 1179 showed a lack of concern among Italian bishops for the spread of heretical ideas and the threat of popular unrest. The heresies of simony and nicolaitism, charges that would be directed at the clergy, filled the records in the second half of the eleventh century227).

Heresy, Moore maintained, was a matter of weaving through the religious and political rivalries. The bishoprics of Italy and Gaul had existed since the Roman Empire, and, as such, the prelates did not feel that claims of primacy should diminish their authority. The bishop of Rome, however, thought dif-ferently. Sectional conflict arose as those bishops did not appreciate the inter-vention of Rome. Conflicts stemmed not just from intervention but also from different views of what “reform” should entail. Disagreement arose from the different traditions and understanding of apostolic life. Compounding mat-ters were political rivalries that formed in the wake of the Carolingian Em-pire and the Viking raids that forced kings and counts to secure alliances and counter-alliances. Religion and politics came together in conflicts involving

224) Ibid. 154, 153.225) R . I . Moore , The War on Heresy, Cambridge/MA 2012, 184–185.226) Ibid. 144.227) Ibid. 212, 209.




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the higher clergy, such as those in Liège and Cologne, who came from ruling elites and supported the emperor and imperially appointed antipopes. Accusa-tions and counter-accusations of heresy were levied against those considered “unreformed” as well as against those reformers who were thought to have betrayed the cause by not succumbing to papal authority228). “The imperative of maintaining ‘unity’ – that is, of refraining from questioning the authority of the current office-holders and the conventional wisdom that sustains it – can almost always be made to trump the merits of any issue”229). For Gratian, heresy, authority, obedience, duty, and order were inseparable. Grounded in the principles embedded in the oath, Causae 23–26 sought to situate that particular ecclesiastical rank into the hierarchy. By reorienting the attention of the bishop and the parish priest, the Gratian could widen the gap between cleric and lay; the separation of the two spheres being long recognized as one of the most important outcomes of reform.

VII . Conclus ion

While references to Causae 23–26 as the Causae hereticorum are ubiqui-tous, the treatment of these cases is varied and oftentimes has little to do with heresy. An analysis of the textual features that could contribute to heresy as a focal point reveals that it is important to proceed with caution. It is easy to be misled if one forgets the importance the hypothetical plays as a teaching tool, that the introductory survey “In secunda parte” provides a distortive summary of the case by relying on the material that corresponds to the first sentence of the hypothetical, and that the cross-reference “in prima causa” does not equate to a tractatus.

This essay has suggested rather that Causae 22–26 form a thematic cluster of cases whereby Gratian applied societal norms to teach how the principles governing the oath linked the ecclesiastical hierarchy in bonds of obedience and associated duties. He synthesized practices used by the papacy and found in prevalent eleventh and early-twelfth century collections in such a way as to make a statement regarding the bond between a bishop and the emperor, the bishop and the pope, the pope and the universal church, and the priest and his bishop as well as his parish. Duty and the execution of one’s office was also a central theme for Decretists.

Obedience to Rome lay at the root of orthodoxy. It provided the foundation for order while disobedience created disorder. Understanding Causae 22–26

228) Ibid. 25, 79, 131–132, 139.229) Ibid. 330–331.




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as cases in which the strictures of the oath structured interpersonal relation-ships pulls together the historiographical interpretations. The bishop would have had to balance his secular duties with his episcopal duties; thus the con-nection between Causa 23 and Causa 24, both of which begin the hypotheti-cal with a heretical bishop. When viewed through this lens the issues of war, capital punishment, and coercion covered in Causa 23 do not overlap and are not diffused. The question of who could pronounce a war was of secondary importance to what a bishop’s role could be once it was pronounced. Whereas the first recension addresses the secular duties of capital punishment and war, the additions to the second recension focus on the coercive abilities of the Church under the guise of a secular ruler’s obligation to assist when called up-on. Causa 24’s focus on a bishop’s adherence to the papacy encompasses the execution of his powers, namely his ability to excommunicate and reconcile. The pope’s balancing of his duty to uphold the degrees of his predecessors with the preservation of individual churches in Causa 25 is a referendum on the papacy’s legislative power and ability to grant privileges. Understanding Causa 26 as the balancing of a priest’s duty to his bishop and his duty to his parish bridges the gap between his involvement in magic and his responsibil-ity to ensure that last rights are administered. Obedience and the dedication to ecclesiastical responsibilities amid worldly affairs are juxtaposed throughout. Just below the surface lay heresy, a synonym for disobedience.

