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$Title{History Of Europe During The Middle Ages
Part VII}
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Title:       History Of Europe During The Middle Ages
Book:        Book VII: History Of Ecclesiastical Power During The Middle Ages
Author:      Hallam, Henry

Part VII

     Continual Progress of the Papacy - Canon Law - Mendicant Orders -
Dispensing Power - Taxation of the Clergy by the Popes - Encroachments on
Rights of Patronage - Mandats, Reserves &c. - General Disaffection towards the
See of Rome in the Thirteenth Century - Progress of Ecclesiastical
Jurisdiction - Immunity of the Clergy in Criminal Cases - Restraints imposed
upon their Jurisdiction - Upon their Acquisition of Property - Boniface VIII.
- His Quarrel with Philip the Fair - Its Termination - Gradual Decline of
Papal Authority - Louis of Bavaria - Secession to Avignon and Return to Rome -
Conduct of Avignon Popes - Contested Election of Urban and Clement produces
the great Schism - Council of Pisa - Constance - Basle - Methods adopted to
restrain the Papal Usurpations in England, Germany, and France - Liberties of
the Gallican Church - Decline of the Papal Influence in Italy.

     The noonday of papal dominion extends from the pontificate of Innocent
III. inclusively to that of Boniface VIII. or, in other words, through the
thirteenth century.  Rome inspired during this age all the terror of her
ancient name.  She was once more the mistress of the world, and kings were her
vassals.  I have already anticipated the two most conspicuous instances when
her temporal ambition displayed itself, both of which are inseparable from the
civil history of Italy. ^a In the first of these, her long contention with the
house of Suabia, she finally triumphed.  After his deposition by the council
of Lyons the affairs of Frederic II. went rapidly into decay.  With every
allowance for the enmity of the Lombards and the jealousies of Germany, it
must be confessed that his proscription by Innocent IV. and Alexander IV. was
the main cause of the ruin of his family.  There is, however, no other
instance, to the best of my judgment, where the pretended right of deposing
kings has been successfully exercised.  Martin IV. absolved the subjects of
Peter of Aragon from their allegiance, and transferred his crown to a Prince
of France; but they did not cease to obey their lawful sovereign.  This is the
second instance which the thirteenth century presents of interference on the
part of the popes in a great temporal quarrel.  As feudal lords of Naples and
Sicily, they had indeed some pretext for engaging in the hostilities between
the houses of Anjou and Aragon, as well as for their contest with Frederic II.
But the pontiffs of that age, improving upon the system of Innocent III., and
sanguine with past success, aspired to render every European kingdom formally
dependent upon the see of Rome. Thus Boniface VIII. at the instigation of some
emissaries from Scotland, claimed that monarchy as paramount lord, and
interposed, though vainly, the sacred panoply of ecclesiastical rights to
rescue it from the arms of Edward I. ^b

[Footnote a: See above, Book III.]

[Footnote b: Dalrymple's Annals of Scotland, vol. l. p. 267.]

     This general supremacy effected by the Roman church over mankind in the
twelfth and thirteenth centuries derived material support from the
promulgation of the canon law.  The foundation of this jurisprudence is laid
in the decrees of councils, and in the rescripts or decretal epistles of popes
to questions propounded upon emergent doubts relative to matters of discipline
and ecclesiastical economy.  As the jurisdiction of the spiritual tribunals
increased, and extended to a variety of persons and causes, it became almost
necessary to establish a uniform system for the regulation of their decisions.
After several minor compilations had appeared, Gratian, an Italian monk,
published about the year 1140 his Decretum, or general collection of canons,
papal epistles, and sentences of fathers, arranged and digested into titles
and chapters, in imitation of the Pandects, which very little before had begun
to be studied again with great diligence. ^c This work of Gratian, though it
seems rather an extraordinary performance for the age when it appeared, has
been censured for notorious incorrectness as well as inconsistency, and
especially for the authority given in it to the false decretals of Isidore,
and consequently to the papal supremacy.  It fell, however, short of what was
required in the progress of that usurpation.  Gregory IX. caused the five
books of decretals to be published by Raimond de Pennafort in 1234.  These
consist almost entirely of rescripts issued by the later popes, especially
Alexander III., Innocent III., Honorius III., and Gregory himself.  They form
the most essential part of the canon law, the Decretum of Gratian being
comparatively obsolete.  In these books we find a regular and copious system
of jurisprudence, derived in a great measure from the civil law, but with
considerable deviation, and possibly improvement.  Boniface VIII. added a
sixth part, thence called the Sext, itself divided into five books, in the
nature of a supplement to the other five, of which it follows the arrangement,
and composed of decisions promulgated since the pontificate of Gregory IX.
New constitutions were subjoined by Clement V. and John XXII., under the name
of Clementines and Extravagantes Johannis; and a few more of later pontiffs
are included in the body of canon law, arranged as a second supplement after
the manner of the Sext, and called Extravagantes Communes.

[Footnote c: Tiraboschi has fixed on 1140 as the date of its appearance (iii.
343); but others bring it down some years later.]

     The study of this code became of course obligatory upon ecclesiastical
judges.  It produced a new class of legal practitioners, or canonists; of whom
a great number added, like their brethren, the civilians, their illustrations
and commentaries, for which the obscurity and discordance of many passages,
more especially in the Decretum, gave ample scope.  From the general analogy
of the canon law to that of Justinian, the two systems became, in a remarkable
manner, collateral and mutually intertwined, the tribunals governed by either
of them borrowing their rules of decision from the other in cases where their
peculiar jurisprudence is silent or of dubious interpretation. ^d But the
canon law was almost entirely founded upon the legislative authority of the
pope; the decretals are in fact but a new arrangement of the bold epistles of
the most usurping pontiffs, and especially of Innocent III., with titles or
rubrics comprehending the substance of each in the compiler's language. The
superiority of ecclesiastical to temporal power, or at least the absolute
independence of the former, may be considered as a sort of key-note which
regulates every passage in the canon law. ^e It is expressly declared that
subjects ^f owe no allegiance to an excommunicated lord, if after admonition
he is not reconciled to the church.  And the rubric prefixed to the
declaration of Frederic II.'s deposition in the council of Lyons asserts that
the pope may dethrone the emperor for lawful causes. ^g These rubrics to the
decretals are not perhaps of direct authority as part of the law; but they
express its sense, so as to be fairly cited instead of it. ^h By means of her
new jurisprudence, Rome acquired in every country a powerful body of
advocates, who, though many of them were laymen, would, with the usual bigotry
of lawyers, defend every pretension or abuse to which their received standard
of authority gave sanction. ^i

[Footnote d: Duck, De Usu Juris Civilis, l. i. c. 8.]

[Footnote e: Constitutiones principum ecclesiasticis constitutionibus non
praeeminent, sed obsequuntur.  Decretum, distinct. 10.  Statutum generale
laicorum ad ecclesias vel ad ecclesiasticas personas, vel eorum bona, in earum
praejudicium non extenditur.  Decretal, l. i. tit. 2, c. 10. Quaeceunque a
principibus in ordinibus vel in ecclesiasticis rebus decreta inveniuntur,
nullius auctoritatis esse monstrantur.  Decretum, distinct. 96.]

[Footnote f: Domino excommunicato manente, subditi fidelitatem non debent; et
si longo tempore in e perstiterit, et monitus non pareat ecclesiae, ab ejus
debite absolvuntur.  Decretal, l. v. tit. 37, c. 18.  I must acknowledge that
the decretal epistle of Honorius III. scarcely warrants this general
proposition of the rubric, though it seems to lead to it.]

[Footnote g: Papa imperatorem deponere potest ex causis legitimis. l. ii. tit.
13, c. 2.]

[Footnote h: If I understand a bull of Gregory XIII., prefixed to his
recension of the canon law, he confirms the rubrics or glosses along with the
text; but I cannot speak with certainty as to his meaning.]

[Footnote i: For the canon law I have consulted, besides the Corpus Juris
Canonici, Tiraboschi, Storia della Litteratura, t. iv. and v.; Giannone, l.
xiv. c. 3; l. xix. c. 3; l. xxii. c. 8.  Fleury, Institutions au Droit
Ecclesiastique, t. i. p. 10, and 5me Discours sur l'Histoire Eccles. Duck, De
Usu Juris Civilis, l. i. c. 8.  Schmidt, t. iv. p. 39.  F. Paul, Treatise of
Benefices, c. 31.  I fear that my few citations from the canon law are not
made scientifically; the proper mode of reference is to the first word; but
the book and title are rather more convenient; and there are not many readers
in England who will detect this impropriety.]

     Next to the canon law I should reckon the institution of the mendicant
orders among those circumstances which principally contributed to the
aggrandizement of Rome.  By the acquisition, and in some respects the
enjoyment, or at least ostentation, of immense riches, the ancient monastic
orders had forfeited much of the public esteem. ^j Austere principles as to
the obligation of evangelical poverty were inculcated by the numerous
sectaries of that age, and eagerly received by the people, already much
alienated from an established hierarchy.  No means appeared so efficacious to
counteract this effect as the institution of religious societies strictly
debarred from the insidious temptations of wealth. Upon this principle were
founded the orders of Mendicant Friars, incapable, by the rules of their
foundation, of possessing estates, and maintained only by alms and pious
remunerations.  Of these the two most celebrated were formed by St. Dominic
and St. Francis of Assisi, and established by the authority of Honorius III.
in 1216 and 1223.  These great reformers, who have produced so extraordinary
an effect upon mankind, were of very different characters; the one, active and
ferocious, had taken a prominent part in the crusade against the unfortunate
Albigeois, and was among the first who bore the terrible name of inquisitor;
while the other, a harmless enthusiast, pious and sincere, but hardly of sane
mind, was much rather accessory to the intellectual than to the moral
degradation of his species.  Various other mendicant orders were instituted in
the thirteenth century; but most of them were soon suppressed, and, besides
the two principal, none remain but the Augustin and the Carmelites. ^k

[Footnote j: It would be easy to bring evidence from the writings of every
successive century to the general viciousness of the regular clergy, whose
memory it is sometimes the fashion to treat with respect.  See particularly
Muratori, Dissert. 65; and Fleury, 8me Discours.  The latter observes that
their great wealth was the cause of this relaxation in discipline.]

[Footnote k: Mosheim's Ecclesiastical History; Fleury, 8me Discours; Crevier,
Histoire de l'Universite de Paris, t. i. p. 318.]

     These new preachers were received with astonishing approbation by the
laity, whose religious zeal usually depends a good deal upon their opinion of
sincerity and disinterestedness in their pastors.  And the progress of the
Dominican and Franciscan friars in the thirteenth century bears a remarkable
analogy to that of our English Methodists.  Not deviating from the faith of
the church, but professing rather to teach it in greater purity, and to
observe her ordinances with greater regularity, while they imputed supineness
and corruption to the secular clergy, they drew round their sermons a
multitude of such listeners as in all ages are attracted by similar means.
They practised all the stratagems of itinerancy, preaching in public streets,
and administering the communion on a portable altar.  Thirty years after their
institution a historian complains that the parish churches were deserted, that
none confessed except to these friars, in short, that the regular discipline
was subverted. ^l This uncontrolled privilege of performing sacerdotal
functions, which their modern antitypes assume for themselves, was conceded to
the mendicant orders by the favor of Rome.  Aware of the powerful support they
might receive in turn, the pontiffs of the thirteenth century accumulated
benefits upon the disciples of Francis and Dominic.  They were exempted from
episcopal authority; they were permitted to preach or hear confessions without
leave of the ordinary, ^m to accept of legacies, and to inter in their
churches.  Such privileges could not be granted without resistance from the
other clergy; the bishops remonstrated, the university of Paris maintained a
strenuous opposition; but their reluctance served only to protract the final
decision.  Boniface VIII. appears to have peremptorily established the
privileges and immunities of the mendicant orders in 1295. ^n

[Footnote l: Matt. Paris, p. 607.]

[Footnote m: Another reason for preferring the friars is given by Archbishop
Peckham; quoniam casus episcopales reservati episcopis ab homine, vel a jure,
communiter a Deum timentibus episcopis ipsis fratribus committuntur, et non
presbyteris, quorum simplicitas non sufficit aliis dirigendis.  Wilkins,
Concilia, t. ii. p. 169.]

[Footnote n: Crevier, Hist. de l'Universite de Paris, t. i. et t. ii. passim.
Fleury, ubi supra.  Hist. du Droit Ecclesiastique Francois, t. i. pp. 394,
396, 446.  Collier's Ecclesiastical History, vol. i. pp. 437, 448, 452.
Wood's Antiquities of Oxford, vol. i. pp. 376, 480.  (Gutch's edition.)]

     It was naturally to be expected that the objects of such extensive favors
would repay their benefactors by a more than usual obsequiousness and alacrity
in their service.  Accordingly the Dominicans and Franciscans vied with each
other in magnifying the papal supremacy.  Many of these monks became eminent
in canon law and scholastic theology.  The great lawgiver of the schools,
Thomas Aquinas, whose opinions the Dominicans especially treat as almost
infallible, went into the exaggerated principles of his age in favor of the
see of Rome. ^o And as the professors of those sciences took nearly all the
learning and logic of the times to their own share, it was hardly possible to
repel their arguments by any direct reasoning.  But this partiality of the new
monastic orders to the popes must chiefly be understood to apply to the
thirteenth century, circumstances occurring in the next which gave in some
degree a different complexion to their dispositions in respect of the Holy
See.

[Footnote o: It was maintained by the enemies of the mendicants, especially
William St. Amour, that the pope could not give them a privilege to preach or
perform the other duties of the parish priests. Thomas Aquinas answered that a
bishop might perform any spiritual functions within his diocese, or commit the
charge to another instead, and that the pope, being to the whole church what a
bishop is to his diocese, might do the same everywhere.  Crevier, t. i. p.
474.]

     We should not overlook, among the causes that contributed to the dominion
of the popes, their prerogative of dispensing with ecclesiastical ordinances.
The most remarkable exercise of this was as to the canonical impediments of
matrimony.  Such strictness as is prescribed by the Christian religion with
respect to divorce was very unpalatable to the barbarous nations.  They in
fact paid it little regard; under the Merovingian dynasty, even private men
put away their wives at pleasure. ^p In many capitularies of Charlemagne we
find evidence of the prevailing license of repudiation and even polygamy. ^q
The principles which the church inculcated were in appearance the very reverse
of this laxity; yet they led indirectly to the same effect.  Marriages were
forbidden, not merely within the limits which nature, or those inveterate
associations which we call nature, have rendered sacred, but as far as the
seventh degree of collateral consanguinity, computed from a common ancestor.
^r Not only was affinity, or relationship by marriage, put upon the same
footing as that by blood, but a fantastical connection, called spiritual
affinity, was invented in order to prohibit marriage between a sponsor and
godchild.  A union, however innocently contracted, between parties thus
circumstanced, might at any time be dissolved, and their subsequent
cohabitation forbidden; though their children, I believe, in cases where there
had been no knowledge of the impediment, were not illegitimate.  One readily
apprehends the facilities of abuse to which all this led; and history is full
of dissolutions of marriage, obtained by fickle passion or cold-hearted
ambition, to which the church has not scrupled to pander on some suggestion of
relationship. It is so difficult to conceive, I do not say any reasoning, but
any honest superstition, which could have produced those monstrous
regulations, that I was at first inclined to suppose them designed to give, by
a side-wind, that facility of divorce which a licentious people demanded, but
the church could not avowedly grant.  This refinement would, however, be
unsupported by facts.  The prohibition is very ancient, and was really derived
from the ascetic temper which introduced so many other absurdities. ^s It was
not until the twelfth century that either this or any other established rules
of discipline were supposed liable to arbitrary dispensation; at least the
stricter churchmen had always denied that the pope could infringe canons, nor
had he asserted any right to do so. ^t But Innocent III. laid down as a maxim,
that out of the plenitude of his power he might lawfully dispense with the
law; and accordingly granted, among other instances of this prerogative,
dispensations from impediments of marriage to the Emperor Otho IV. ^u Similar
indulgences were given by his successors, though they did not become usual for
some ages.  The fourth Lateran council in 1215 removed a great part of the
restraint, by permitting marriages beyond the fourth degree, or what we call
third-cousins; ^v and dispensations have been made more easy, when it was
discovered that they might be converted into a source of profit.  They served
a more important purpose by rendering it necessary for the princes of Europe,
who seldom could marry into one another's houses without transgressing the
canonical limits, to keep on good terms with the court of Rome, which, in
several instances that have been mentioned, fulminated its censures against
sovereigns who lived without permission in what was considered an incestuous
union.

[Footnote p: Marculfi Formulae, l. ii. c. 30.]

[Footnote q: Although a man might not marry again when his wife had taken the
veil, he was permitted to do if she was infected with the leprosy. Compare
Capitularia Pippini, A. D. 752 and 755.  If a woman conspired to murder her
husband, he might marry.  Id. A.D. 753.  A large proportion of Pepin's laws
relate to incestuous connections and divorces.  One of Charlemagne seems to
imply that polygamy was not unknown even among priests.  Si sacerdotes plures
uxores habuerint, sacerdotio priventur; quia saecularibus deteriores sunt.
Capitul. A. D. 769.  This seems to imply that their marriage with one was
allowable, which nevertheless is contradicted by other passages in the
Capitularies.]

[Footnote r: See the canonical computation explained in St. Marc, t. iii. p.
376.  Also in Blackstone's Law Tracts, Treatise on Consanguinity. In the
eleventh century an opinion began to gain ground in Italy that third-cousins
might marry, being in the seventh degree according to the civil law.  Peter
Damian, a passionate abettor of Hildebrand and his maxims, treats this with
horror, and calls it a heresy.  Fleury, t. xiii. p. 152. St. Marc, ubi supra.
This opinion was supported by a reference to the Institutes of Justinian; a
proof, among several others, how much earlier that book was known than is
vulgarly supposed.]

[Footnote s: Gregory I. pronounces matrimony to be unlawful as far as the
seventh degree; and even, if I understand his meaning, as long as any
relationship could be traced; which seems to have been the maxim of strict
theologians, though not absolutely enforced.  Du Cange, v. Generatix; Fleury,
Hist. Eccles, t. ix. p. 211.]

[Footnote t: De Marca, l. iii. cc. 7, 8, 14.  Schmidt, t. iv. p. 235.
Dispensations were originally granted only as to canonical penances, but not
prospectively to authorize a breach of discipline.  Gratian asserts that the
pope is not bound by the canons, in which, Fleury observes, he goes beyond the
False Decretals.  Septieme Discours, p. 291.]

[Footnote u: Secundum plenitudinem potestatis de jure possumus supra jus
dispensare.  Schmidt, t. iv. p. 235.]

[Footnote v: Fleury, Institutions au Droit Ecclesiastique, t. i. p. 296.]

     The dispensing power of the popes was exerted in several cases of a
temporal nature, particularly in the legitimation of children, for purposes
even of succession.  This Innocent III. claimed as an indirect consequence of
his right to remove the canonical impediment which bastardy offered to
ordination; since it would be monstrous, he says, that one who is legitimate
for spiritual functions should continue otherwise in any civil matter. ^w But
the most important and mischievous species of dispensations was from the
observance of promissory oaths.  Two principles are laid down in the decretals
- that an oath disadvantageous to the church is not binding; and that one
extorted by force was of slight obligation, and might be annulled by
ecclesiastical authority. ^x As the first of these maxims gave the most
unlimited privilege to the popes of breaking all faith of treaties which
thwarted their interest or passion, a privilege which they continually
exercised, ^y so the second was equally convenient to princes weary of
observing engagements towards their subjects or their neighbors.  They
protested with a bad grace against the absolution of their people from
allegiance by an authority to which they did not scruple to repair in order to
bolster up their own perjuries. Thus Edward I., the strenuous asserter of his
temporal rights, and one of the first who opposed a barrier to the
encroachments of the clergy, sought at the hands of Clement V. a dispensation
from his oath to observe the great statute against arbitrary taxation.

[Footnote w: Decretal, l. iv. tit. 17, c. 13.]

[Footnote x: Juramentum contra utilitatem ecclesiasticam praestitum non tenet.
Decretal. l. ii. tit. 24, c. 27, et Sext. l. i. tit. 11, c. 1.  A juramento
per metum extorte ecclesia solet absolvere, et ejus transgressores ut
peccantes mortaliter non punientur.  Eodem, lib. et tit. c. 15.  The whole of
this title in the decretals upon oaths seems to have given the first opening
to the tax casuistry of succeeding times.]

[Footnote y: Take one instance out of many.  Piccinino, the famous condottiere
of the fifteenth century, had promised not to attack Francis Sforza, at the
time engaged against the pope.  Eugenius IV. (the same excellent person who
had annulled the compatacta with the Hussites, releasing those who had sworn
to them, and who afterwards made the King of Hungary break his treaty with
Amurath II.) absolves him from this promise, on the express ground that a
treaty disadvantageous to the church ought not to be kept.  Sismondi, t. ix.
p. 196.  The church in that age was synonymous with the papal territories in
Italy.

     It was in conformity to this sweeping principle of ecclesiastical utility
that Urban VI. made the following solemn and general declaration against
keeping faith with heretics.  Attendentes quod hujusmodi confoederationes,
colligationes, et ligae seu conventiones factae cum hujusmodi haereticis seu
schismaticis postquam tales effecti erant, sunt temerariae, illicitae, et ipso
jure nullae (etsi forte ante ipsorum lapsum in schisma, seu haeresin initae
seu factae fuissent) etiam si forent juramento vel fide data firmatae, aut
confirmatione apostolica vel quacunque firmitate alia roboratae, postquam
tales, ut praemittitur, sunt effecti.  Rymer, t. vii. p. 352.

     It was of little consequence that all divines and sound interpreters of
canon law maintain that the pope cannot dispense with the divine or moral law,
as De Marca tells us, l. iii. c. 15, though he admits that others of less
sound judgment assert the contrary, as was common enough, I believe, among the
Jesuits at the beginning of the seventeenth century. His power of interpreting
the law was of itself a privilege of dispensing with it.]