Popes, Canonists, and Texts 1150-1550 (Collected Studies Series 412; Aldershot: Variorum, 1993); revised version of chapter one published in Pope and Bishops: The Papal Monarchy in the Twelfth and Thirteenth Centuries (The Middle Ages; Philadelphia: University of Pennsylvania Press, 1984)


Innocent III and the Divine

Authority of the Pope

 

Ken Pennington

 

Pope Innocent III and Papal Power

 

Quanto Personam

 

Laurentius Hispanus and Pro ratione voluntas

 

Ratio et Ius

 

Huguccio Ius and Reason

 


            Pope Innocent III (1198-1216) transformed the theory of papal monarchy and, to a lesser extent, changed the practice of papal government during his pontificate. He pushed the papacy in new directions, created new justifications for the exercise of papal authority, and used older justifications in new ways. Innocent combined hardheaded practicality with an intellectual's interest in the power and importance of ideas. Ideas could shape the world, and Innocent used them as effectively as any pope, before or since.

            The author of the Gesta Innocentii understood the duality of Innocent's talents. At the beginning of his account, he listed Innocent's attributes as a series of contrasts: Footnote


He was a man who was learned in both literature and scripture...neither prodigal nor covetous...harsh with the inobedient and the obstinate, but kind to the humble and loyal...humble in prosperity and patient in adversity, a little prone to anger, but quick to forgive.


Although the list contains platitudes that might have been taken from any handbook of Ars dictaminis, it rings true, particularly the reference to Innocent's volatile temper.

 

            Both sides of Innocent's character were important. One side did not dominate the other. Shortly after ascending the papal throne, he reformed the papal curia, reorganized the government of the City of Rome, reunited the papal states, and restructured the Roman chancery. At the same time, he demonstrated his keen appreciation of the power of language and ideas in his decretals, using them to bridge the chasm between papal rights and papal claims. Indeed his greatest contribution to the ideology of papal power may have been the mellifluous language with which he exalted the office of pope.

 

 

            The language of his decretals influenced the rhetoric of the canonists. As they glossed his decretals, they began to describe papal authority in words and phrases redolent of Innocent's language and stamped with his spirit. This development cannot be entirely coincidental. Although such language was a common feature of the age, the canonists reacted to Innocent's rhetoric by embracing hyperbole and florid --- sometimes ironic --- prose on an unprecedented scale. Footnote While the resulting works provide difficulties for modern historians, they also misled men of the Middle Ages. Contemporaries of Innocent were often confused and dismayed by the extravagant language with which the pope and the lawyers defined papal prerogatives.

            The canonists and the jurisconsults of the Roman Empire had much in common. Their roles and functions in their respective legal systems were similar. Like the jurisconsults, the canonists interpreted canon law and produced detailed commentaries on papal judicial decisions. By the beginning of the thirteenth century, popes were sending individual decretals and entire collections to Bologna for “reception” in the law school. Footnote The canonists were independent of the papacy but connected to it in a fruitful relationship that was like an intricate musical counterpoint. The papacy produced a melodic line to which the canonists responded, sometimes forcing Rome to reconsider the structure and rhythm of the piece. At times, the process became visible. For example Innocent III wrote a decretal to the doctors of the Decretum at Bologna in which he explained under what circumstances it was permitted to have contact with an excommunicate. In this decretal Innocent provided an answer to problems of interpretation that had arisen in the schools because an earlier decretal was not as precise as it should have been. Footnote The questions canonists raised in the classroom prompted Innocent to issue a clarification of the earlier law.

            Innocent had rapidly established the issues he considered to be special prerogatives of the papacy: the renunciation, deposition, and translation of bishops were, for him, signposts of papal supremacy within the church. Footnote To judge from Innocent's attention to the issue in the first two years of his pontificate, the exclusive right of the pope to transfer bishops from one bishopric to another may have been the most important of the three. Since popes and jurists of the twelfth century had not established firm rules governing the transfer of bishops and had not laid down the principle that the pope had the exclusive right to authorize and to approve the translation of a bishop from one see to another, Innocent confronted an unresolved legal problem in 1198. Footnote

            In the first two years of his pontificate, Innocent seized the chance to rule on several cases of unauthorized episcopal translations. The canonists did not immediately see the importance of Innocent's resolve to reserve the matter to the pope. Rainer of Pomposa, who was undoubtedly closer to Innocent than any other canonist we know of during the early years of his pontificate, was the first compiler to place three of Innocent's letters under a title that treated the transfer of bishops. Footnote Other canonists did not imitate Rainer and may have wondered whether papal approval was necessary for translations. After Rainer of Pomposa, the collections of Gilbertus (1203) and Alanus (1206) ignored the title and most of the pertinent decretals even though a few ancillary decretals touching related issues were placed under other titles. Only in Bernardus Compostellanus' Collectio Romana (1208) and Petrus Beneventanus' Compilatio tertia (1209/10) did Innocent's decretals enter canon law under their proper title, De translatione episcopi et electi. Footnote

            For translations and the language of papal power, the most important decretal in the canonical collections was Quanto personam. Innocent sent the decretal to five bishops of Germany and ordered them to excommunicate Conrad of Querfurt if he failed to obey papal mandates within twenty days. Footnote Conrad had been bishop of Hildesheim. He left Hildesheim for Würzburg without papal permission after having been elected by the canons at Würzburg to their episcopal see.

            In contending that a bishop is married to his church, a metaphor that had become commonplace during the twelfth century, Innocent compared the bond of marriage to a bishop's tie to his church and claimed that the pope had the sole authority of approving episcopal translations. Footnote Since only God may dissolve the bond of marriage, Innocent argued that only God has power to break the bond between a bishop and his flock. This authority was a special privilege that Christ had granted to St. Peter and his successors. Early statutes of the fathers, concluded Innocent, supported his interpretation. Therefore, only the pope possessed the authority to dissolve episcopal marriages, and only he could translate bishops: Footnote


God, not man, separates a bishop from his Church because the Roman pontiff dissolves the bond between them by divine rather than by human authority, carefully considering the need and usefulness of each translation. The pope has this authority because he does not exercise the office of man, but of the true God on earth [non puri hominis, sed veri Dei].

 

Laurentius Hispanus' gloss to Quanto personam

In this letter, his sermons, and other decretals, Innocent introduced the title “vicar of Christ” or “vicar of God” into the vocabulary that the pope and the curia used to describe the papal office. Footnote His verbal images suited contemporary ideas and taste. That the pope's power was derived from Christ was not a new idea. This had been a basic argument for papal monarchy from patristic times. Innocent's genius lay in selecting a commonplace idea---that Christ granted the pope his authority --- and using it to establish the belief that the pope could also exercise certain prerogatives permitted only to Christ and his vicar.

            The pope was Christ's legal representative on earth. The canonists were familiar with the jurisdictional distinction between a prince and his representative and made it regularly when they discussed the authority of papal legates. They constructed long lists of powers that a legate could not wield and distinguished between the authority that a legate could exercise with a special mandate and his ordinary powers. Bishops, however, were not legates, and the relationship between the pope and bishops was different from that of a prince and his representative; indeed the issue was a delicate constitutional problem. A bishop's bond to his church was not to be broken or tampered with lightly. Thus in order to establish his authority over bishops, in particular to determine the pope's absolute prerogative to translate and depose bishops, Innocent needed to give a particularly persuasive justification of the pope's right to regulate episcopal affairs.

            His solution was truly brilliant. The pope had the extraordinary right to exercise divine authority on earth in certain cases, a right that had been specially mandated to the pope by Christ. Later in the thirteenth century, Hostiensis adapted Innocent's idea and called this papal power “potestas absoluta.”

            Innocent's thought may not have been clear and lucid. He may have been only partially aware of the implications of his arguments. Nevertheless he established an important tradition of political thought in which the prince's authority was categorized into two types: those powers that were human, “ordinary,” and those that were special, in Innocent's words, “divine.” This division of papal authority had its roots in Christian political thought that had long contained strong dualist elements. For example, the Christian church was called the body of Christ. Like Christ, the church had a spiritual and a material nature. It also had heavenly and earthly powers. The pope derived his authority from Christ and his human vicar, St. Peter. Footnote In Quanto personam, Innocent implied that the pope had two types of authority. In the ordinary exercise of his office, the pope did not rely on extraordinary prerogatives; his powers were those of any prince and were circumscribed by custom, law, and tradition. However, when he exercised the prerogatives that he shared with Christ, he could do much more.

            The canonists of Bologna found Quanto personam a challenging text and reacted to it in several distinct ways. The first glosses to Quanto personam were written about twelve years after Innocent sent the letter to Germany. One of the first glossators of Compilatio tertia, Laurentius Hispanus, was attracted to Innocent's formulation that the pope had acted from the office “not of man, but of the true God on earth.” He wrote: Footnote


Hence [the pope] is said to have a divine will...and O, how great is the power of the Prince. He changes the nature of things by applying the essences of one thing to another...he can make iniquity from justice by correcting any canon or law; for in these things that he wishes, his will is held to be reason [est pro ratione voluntas]...and there is no one in this world who would say to him, why do you do this? He is held, nevertheless, to shape this power to the public good.   D.12 c.6


Laurentius' words, “est pro ratione voluntas,” were based on Juvenal's Satires (6.223). Gaines Post has shown that both Roman and canon lawyers began to use this aphorism in their writings at the end of the twelfth century. Although the commentators on Roman law were slow to use the phrase as a description of the prince's powers, the canonists used the phrase frequently during the pontificate of Innocent III.

            Post argued that when they quoted Juvenal's phrase the canonists wished to characterize papal power according to commonly accepted medieval constitutional ideas. The pope's actions should not be arbitrary and could not depart from justice. Post concluded that when medieval canonists wrote or read that “a prince's will is held to be reason,” they did not assume that the prince could legislate arbitrarily. The canonists were not advocating absolutism. Footnote

            Post is certainly correct; however, the glosses to Quanto personam are important not only because they embody conventional ideas of “medieval constitutionalism,” but also because they are careful and sophisticated definitions of papal legislative and judicial prerogatives.

            While glossing Quanto personam, the canonists examined several hitherto untouched concepts of political theory. They did not adopt Innocent's new formulation of bifurcated papal authority. Instead, they explored the problem of princely power and authority in much more general terms, noting a number of interesting discrepancies between accepted ideas about law and the relationship of the monarch to law. Every medieval thinker assumed two things about law: it must be just, and it must be reasonable. Intrigued by Innocent's claim that he exercised the office of the true God on earth, the canonists probed the anomalies and paradoxes of monarchical power.

            In their discussions of these issues, the canonists noticed, for the first time, a serious difficulty in defining the relationship of the prince and positive law. They cited Juvenal's aphorism, “pro ratione voluntas,” to define the prince's will as the source of positive canon law. But while exploring the implications of the maxim, they discovered that the prince's will could be distinguished from the content of law. The exercise of authority carried with it obligations and was subject to moral judgments, but the prince's will, as the source of positive law, could be considered separately from issues of morality.

            Laurentius was the first to apply Juvenal's phrase to the pope's legislative authority, and the aphorism is embedded in a tissue of ideas with which Laurentius described the pope as law-giver and judge. His gloss is quite different from earlier canonistic glosses discussing papal authority. Twelfth century descriptions of papal prerogatives were generally utilitarian descriptions of princely authority based on Roman law. Inspired by Innocent III's language, Laurentius inaugurated a tradition of high-flown and exaggerated language which became a characteristic feature of later canonistic discussions of the papal office.

            The beginning of Laurentius' gloss is a conscious echo of Innocent's thought and language in Quanto personam: “[The pope] is said to have a divine will: O, how great is the power of the Prince.” Footnote Laurentius then composed a series of pardoxical descriptions of papal power beginning with “he changes the nature of things by applying the essences of one thing to another.” At first glance, the statement seems to violate both logic and science. Nevertheless, Laurentius did not offend God or nature. His citation to Justinian's Code makes clear that Laurentius had a specific legislative power of the prince in mind: the prince may change the meanings of legal terms without changing the words themselves. Laurentius cited a law of Justinian in which the emperor had emended the rules concerning testaments so that a “legatum” and a “fideicommissum,” originally two different acts in Roman testamentary law, became the same. Footnote Justinian had made the essence of two things the same while allowing their superficial appearances, the words themselves, to remain different. Thus, Laurentius was not granting unbridled legislative authority to the pope when he wrote that he may change the nature of a thing. Rather, every legislator has the authority to enact such legislation.

            Laurentius' next statement seems even more paradoxical than the first. The pope can make iniquity out of justice by correcting any canon or law. The canonists had a keen sense of the justness of their texts and often argued that even when a law was superseded, the reason (ratio) of the law would remain. They believed that all law must ultimately be founded on reason. For them reason and justice were closely related. How then could the pope make injustice out of justice? A theologian might argue that even God could not do that.

            The ordinary glossator of the Decretals of Gregory IX, Bernardus Parmensis, felt so uncomfortable with the idea that good laws could ever, in their essence, be unjust, that he altered his version of the gloss to read: “the pope can make justice from injustice,” a more seemly formulation. Footnote The legal point Bernardus made, however, was the same as Laurentius': the pope may change law. What was defined as just, he could make unjust through new legislation. Laurentius supported his statement with the famous passage from Justinian's Institutes, “What pleases the prince has the force of law” (“Sed et quod principi placuit, legis vigorem habet” Instit. 1.2.6). Brian Tierney has persuasively demonstrated that for the Roman lawyers this maxim was not a mandate for the absolute authority of the prince. Footnote Nor was it for the canon lawyers.

            A few years later, Tancred copied the gloss of Laurentius and gave a concrete example. To justify the pope's making injustice from justice, Tancred cited two Fourth Lateran constitutions, Ut debitus and Non debet. Footnote The two constitutions demonstrate both sides of a prince's legislative power. In Ut debitus the pope and council forbade appeals before a case had been decided in a lower court unless there were unusual circumstances. Before this canon, valid appeals had been permitted even before an inferior court had rendered a judgment. Thus the pope converted what had formerly been a just act into an unjust one. Non debet made the opposite point. In this canon Innocent changed the number of degrees of consanguinity permitted in marriage from seven to four. Consequently, consanguinity to the fifth degree was now permitted. The pope made what had been unlawful, lawful. He made justice from injustice. It is clear that Laurentius and Tancred did not consider the pope's authority to change “justice to injustice” an extraordinary exercise of authority. They were simply describing the power of every legislator, whether absolute or constitutional.

            At this point in his gloss, Laurentius quoted Juvenal: “For in these things that he wishes, his will is held to be reason.” “These things” are the two examples of the pope's authority to enact legislation that seem to be contrary to logic and reason. Normally reason and law are congruent. Sometimes, Laurentius observed, they diverge. In these unusual cases, the prince's will substitutes for reason. Laurentius did not mean that the prince's will was arbitrary but that sometimes law did not conform to reason or logic. Before Laurentius, lawyers had not distinguished between the reason of law (ratio iuris) and the will (voluntas) of the prince.

            This new distinction challenged older ways of thought. The canonists believed that law must contain reason; this idea had been burned into their minds. Without reason, law was not valid, no matter who the source of the legislation was. Huguccio of Pisa, the greatest and most influential of the twelfth-century canonists, lived comfortably with a conception of law quite alien to modern ideas about legislative sovereignty: a legislator's will could always be thwarted by forces impervious to his authority. Law had at least two sources: the legislative authority of the prince and reason. Huguccio discussed this issue in a gloss to Gratian's Tractatus de legibus in the Decretum (D.4 d.p.c.3): Footnote


Certain canons cannot be abrogated by the pope, as for instance those promulgated concerning the faith and the general state of the church....But cannot the clergy or people be compelled to do what the prince wills since the pope has the fullness of power (plenitudo potestatis), and all power is given to the prince (quod principi placuit Dig. 1.4.1)? I believe they can be compelled if they deviate from reason or the faith, otherwise not. Again, can the pope promulgate something without or contrary to the will of his cardinals, or the emperor against the will of his barons? I think not, if he can have their assent; otherwise he can, provided it was not contrary to reason and the Old and New Testaments. But in any case, if they establish [a law] that is just, it will be valid and others are bound to obey. The people bestow the right of granting all laws and canons on the emperor ("populus ei et in eum omne suum imperium conferat." Dig. 1.4.1) the church to the Apostolic See. Hence, both are understood to have “fullness of power" (plenitudo potestatis).  Pope Innocent III and Laurentius Hispanus


Huguccio could not envision a valid law that could be contrary to reason. His “reason,” of course, was very different from the simple reason that Laurentius found missing in certain canons and laws. Huguccio's ratio was metaphysical, embracing first principles of medieval political theory and law and transcending simple logical coherence.

            Laurentius, nevertheless, was not insensitive to Huguccio's ratio. At the end of his gloss he wrote that the prince's will must always incorporate the public good, even in those cases in which his will did not embody reason. Both Huguccio and Laurentius thought of ratio as being much more than simple “reason”: it was morality, the public good, custom, and divine law. The Spaniard, however, was the first medieval lawyer to distinguish between ratio iuris and voluntas principis. By separating reason from will, Laurentius laid the groundwork for a conception of authority in which the prince or the state might exercise power “unreasonably” but legally.

            Up to this point, Laurentius' imagery and thought were fresh and new. Only the last section of his gloss in which he asked “who would say to him, `why do you do this?'” is shaped and fashioned from earlier glosses. The question was not just rhetorical, for it touched the core of the pope's juridical authority within the church.

            In the last half of the twelfth century, the decretists placed the pope at the apex of the juridical hierarchy of the church. Gratian had given the pope exclusive judicial and legislative primacy in his Decretum. By granting the pope great authority, Gratian followed the thrust of canonical jurisprudence predominant since the Gregorian reform movement. Footnote All theorists of monarchical government have to ask themselves, once the monarchy is established, “who may judge the prince.” Footnote Although the canonists devoted much ingenuity and thought to the problem of the pope who erred in the faith, the question of who could judge the pope in more mundane matters also intrigued them. Footnote Most canonists felt that the pope's judicial decisions could not be questioned. Whatever the pope decided in his curia, other members of the ecclesiastical hierarchy could not dispute.

            Some canonists did not demand absolute obedience to papal judicial decisions, but most denied emphatically that anyone could refuse to obey a papal judgment. Even with discretion, one could not act contrary to a papal command. Footnote The canonists modeled the pope's role as supreme judge within the church after the prerogatives of the Roman emperor. An appeal to the pope invalidated all subsequent litigation; a papal judicial decision made law; a litigant could not appeal the pope's decision.

            Huguccio of Pisa succinctly characterized the pope's supreme judicial position within the church by asking, “Who could resist the pope?” Footnote This refrain, not new with Huguccio, was repeated in the works of the canonists throughout the thirteenth century. In his formulation of the same idea, Laurentius asked, “Who would say to him, why do you do this?” Footnote and referred to the ringing cry of St. Augustine in the Decretum of Gratian: “Who dares to say to God, why this man...?” Footnote

            When Laurentius asked “who would say to him, `why do you do this?'” he had the pope's judicial authority in mind. His next allegation, in which he cited Licet quod legalis sanxit auctoritas, a decretal that appeared in Bernardus Compostellanus' Collectio Romana and other canonical collections confirms this interpretation. Footnote The decretal discussed the judicial prerogatives of the papacy, and in it Pope Innocent III stated that the pope's judicial power should conform to the “public good.” Footnote Laurentius repeated Innocent's words, making clear that he was describing the pope's judicial authority: “There is no one in this world who would say to him, why do you do this? He is held, nevertheless, to shape this power to the public good.”

            Two points become evident after a careful analysis of Laurentius' gloss: he was the first canonist to envelope papal authority in the grandeur of hyperbole, and his hyperbole did not contain within it the substance of papal absolutism, but rather defined papal authority more accurately and, for the first time, separated the source of law from the “morality” of law. Laurentius' contribution to the history of political thought was to clothe sovereignty in language that preserved decorem but attracted notice.

            After Laurentius, few canonists passed Quanto personam without trying to add something to the Spaniard's thought or rhetoric. Vincentius Hispanus began his gloss by repeating Laurentius' central point: the prince's will is the source of all law: Footnote


Note how great is the power of the prince; his will is held to be reason, as in the Institutes “what pleases the prince has the force of law.” No one may say to him, “why do you do this.”...However he must shape his will to public utility.



Vincentius did not repeat Laurentius' example of the prince's will substituting for reason, but he gave a shortened version of his countryman's gloss, making one significant change in Laurentius' allegations. Instead of citing Licet quod legalis, which had not become part of the accepted corpus of canon law, Vincentius turned to Roman law and referred to Digna vox, a text in which the Roman emperor declared that he had a duty to submit himself to the law. Footnote

            Digna vox was a critical text in Justinian's Code for medieval ideas about the relationship of a ruler and the law. Brian Tierney has argued that the lawyers, in particular Accursius, the ordinary glossator of the Corpus iuris civilis, interpreted Digna vox as being a statement of the prince's fidelity to law. Footnote Vincentius underlined the contrast between the pope's position as supreme judge in the church and his duty to preserve and care for his Christian flock by referring to another decretal of Innocent III, Cum instantia. Footnote In this decretal Innocent had written that the pope may never cease exercising his pastoral duties on behalf of all churches. Vincentius quoted the famous image of Justinian, “for the public good, the emperor spends sleepless nights,” in his gloss to the decretal and applied the image to the pope's care of the universal church. The pope's pastoral duties demand that he be faithful to the constitution of the church. Footnote

            Vincentius had a long career. He was the only decretalist who wrote glosses to the Compilationes antiquae between 1210 and 1220 and also produced a full apparatus of glosses to the Decretals of Gregory IX shortly after they appeared in 1234. In his gloss to Quanto personam in the Decretals, Vincentius added a series of aphorism to the close: Footnote


In this [the pope] exercises the office of God, because he makes something out of nothing....Likewise in this he has plenitude of power in ecclesiastical affairs...He dispenses from the law...Johannes.


Vincentius borrowed this passage from Johannes Teutonicus, who had expanded the first part of Laurentius' gloss which Vincentius had originally omitted. Footnote Johannes' formulation of papal prerogatives, along with additional parts of Laurentius' and Vincentius' glosses, was later inserted into the Ordinary Gloss to the Decretals of Gregory IX by Bernardus Parmensis.

            Johannes' gloss has not always been properly understood. One modern historian has interpreted his words to mean that the pope could work miracles. Footnote Even in the sixteenth century, the correctores Romani, who were responsible for the editing of the official edition of the Corpus iuris canonici and its glosses, knew that the gloss was difficult to understand. “This entire gloss,” they said, “scarcely explains anything in its own terms.” Footnote Today we cannot understand the constitutional thought of the canonists unless we grasp the substance that lies beneath their rhetorical froth.

            When Johannes added more examples of the pope's will substituting for reason, he included one phrase that is particularly difficult to understand: “He can make something out of nothing.” This is a conundrum that seems to exalt the power of the pope to the level of the Creator himself: an idea tainted with heterodoxy and certainly with hubris. Footnote

            The legal references which Johannes cited to support his claim of papal creativity are not very helpful at first glance: a chapter of the Decretum in which the pope tolerated the illegal deposition of a bishop, Footnote and a section from the Code in which Justinian stated that if a “stipulatio” of a marriage contract was invalid for some reason, the prince or judge could validate it. Footnote Neither of these texts explains how, juridically, the pope could make something out of nothing. Other glosses, however, offer clues. In a gloss to Compilatio quarta Johannes wrote: Footnote


Again here you have a case in which a judgment can be held to be valid by the prince, which is invalid (nulla) by law....But this can only be done by the prince, for a judgment or fact which is invalid can be validated by the prince...because the prince changes the substances of a thing, as in the Code.


Later canonists who wrote about papal plenitude of power combined the phrase “the pope can making something out of nothing” with “he may change the substance of a thing,” and brought Johannes' and Laurentius' glosses together. Footnote However, Johannes' thought is quite simple: when the prince validates an invalid judgment, he can be said to have changed the substance of a thing.

            Another gloss from Compilatio tertia further clarifies Johannes' point: Footnote


The pope, however, can suspend the effect [of excommunication]...for he makes a valid from an invalid judgment, as in the Decretum. It is greater to make something from nothing than to change something into another thing or to make something nothing.


It is clear from this gloss and his gloss on “plenitudo potestatis” that Johannes was punning on the word “nulla.” “Nulla” can mean nothing or invalid. When Johannes wrote that the pope can make something out of nothing, he was not claiming miraculous powers for the pope, but only that the pope could validate any invalid judgment or judicial decision rendered by an episcopal court. The chapter he cited from the Decretum stated that the pope could recognize the deposition of a bishop by a court even though the deposition was invalid because the court did not have jurisdiction over the deposition of bishops, a matter that Pope Innocent III and the canonists of the late twelfth century reserved to papal judgment.

            Canonists did not develop the ideas of Laurentius, Vincentius, and Johannes Teutonicus any further. Bernardus Parmensis gave their thought its final form. He wrote a gloss that combined sections from the earlier glossators and produced a statement of papal power that the correctores Romani found florid and hyperbolic. Like his predecessors, Bernardus did not describe an absolute monarch, but rather a judge and legislator who had the prerogatives of every supreme judge and chief legislator.

            Although one may argue that the canonists' extravagant language helped to destroy the accepted paradigm of “medieval constitutionalism,” the thirteenth-century canonists had no thought of creating an edifice that would support autocratic power. Such ideas were far from their original intent. They were merely seeking to define the prince's will as the source of legislation and his juridical position in the church more precisely than had their predecessors. Their language obscured their purpose.

            Only one canonist wrote plainly when he glossed Quanto personam. In his apparatus to the Decretals of Gregory IX, Goffredus de Trano transformed the language of his predecessors into comprehensive statements of papal judicial prerogatives: Footnote


[The pope is] the vicar of God, Jesus Christ, because he has the fullness of power on earth....He changes the substance, the quantity, or the nature of things....he makes a secular canon from a monk...and just like the emperor, he changes the nature of an action...and like the emperor, he makes two things one, as “legatum” and “fideicommissum.”...The pope makes two churches one....By binding and loosing, he holds the office of God on earth....The pope is above the law...dispenses from the rules of the Apostle...he is above any council.


            Goffredus retained his predecessors' outline of papal prerogatives, but the language of his gloss is straightforward and matter-of-fact. The last three listed attributes of the pope --- the pope is above any council and law and can dispense from the rule of the Apostle --- are not extraordinary powers but common papal legislative powers. Brian Tierney has written that “we must distinguish (as did the canonists) between the eternal principles of faith and changing rules of church discipline. Not every precept of Holy Writ was meant to be observed literally forever.” Footnote The pope, through his legislative authority, could alter a rule of ecclesiastical discipline found in the Scriptures; he could change any positive law or alter any conciliar decree. No canonist ever dissented from this.

            The canonists did debate issues on the boundary between positive law and divine law: Could the pope dispense from a vow of chastity? Could he transform a monk into a secular canon as Goffredus alleged above? Could he alter divine law to the extent of expanding the number of degrees of consanguinity permitted in marriage. The canonists differed on these issues. They all concurred, however, on one point: the pope could not change or alter a central article of the Christian faith. It is indicative of the temper of the age that other canonists did not use Goffredus' straightforward catalogue of papal prerogatives but preferred the words of Laurentius, Vincentius, and Johannes.

            There is a well-known parallel to the glosses of Quanto personam which is another illustration of the lawyers' infatuation with language. Again, in this instance, they sacrificed clarity and understanding for style.

            Johannes Teutonicus wrote a colorful description of the pervasive power of the emperor in his gloss to the decretal Venerabilem. Footnote The gloss is a short outline of imperial authority culled from texts in Justinian's Corpus iuris civilis. The emperor was, Johannes observed, the lord of the world and all nations were under him. All things were in the power of the emperor; he was the overlord of all kings. Bernardus Parmensis put Johannes' gloss, almost word for word, into his Ordinary Gloss. Footnote Johannes and Bernardus were not imperialists, and they did not claim extreme prerogatives for the medieval German emperor. They simply described the powers of the emperor as they found them set out in Roman and canon law. As in the glosses to Quanto personam, the language was high flown --- more sustained rhetorical analogy.

            With that said, we misread the canonists' glosses if we think that they believed their descriptions of imperial prerogatives to be literally true. They knew quite well that all kings did not submit themselves to the emperor. Pope Innocent III himself had written in a famous passage of a decretal they all knew that the Kingdom of France was not subject to higher temporal authority. Footnote Later, when Innocent accepted England from King John as a papal fief, he tacitly denied that European monarchs held their authority from the emperor. Footnote

            The canonists described the “ideal” picture of imperial authority they found in Roman law. Their image was not historical and certainly did not reflect contemporary German imperial authority. Like those to Quanto personam, these glosses are good examples of how much the canonists --- and the Roman lawyers --- enjoyed written descriptions that were paradoxical and, to us today, challenging.

            We have no way of knowing today how much historical understanding the canonists had of the changes that had transformed the papal and imperial offices over the centuries. Did they view the emperor they found in the pages of the Corpus iuris civilis as larger than life, and at the same time insubstantial, diaphanous, and, in Vinogradoff's happy phrase, ghostly? They must have compared the description of imperial pretensions found in Roman law to the diminished imperial office of their own times. Still, we shall never know their thoughts. The Roman lawyers often write with what seems to have been a monumental disregard of the world they lived in. Their intention was to understand the law of Justinian, not to write a comparative history of law.

            The canonists too might have sometimes been struck by differences between papal claims of jurisdiction and authority, and the realities of papal power. Popes often had to watch helplessly as their mandates were ignored or circumvented. The decretal Quanto personam, with which we began our discussion of the language of papal authority, is an illustration of this point.

            The newly elected bishop of Würzburg, Conrad of Querfurt, did not obey Innocent III's stern and peremptory command of August 1198 to step down from his bishopric immediately. A few months later (February 1199), Innocent wrote to “Conrad, formerly bishop of Hildesheim, without salutations,” and urged him to obey the papal mandate. He should abandon Würzburg, but not return to Hildesheim. Footnote In May 1199, Innocent ordered the cathedral chapter of Hildesheim to elect a new bishop, and in October he directed the archbishop of Magdeburg, his suffragans, and the other bishops of Germany to excommunicate Conrad. He also annulled those benefices that Conrad had bestowed and gave the right of bestowal to the bishop of Mainz. Footnote

            In November Innocent wrote another letter that dealt with a further aspect of what had become a very complicated problem. Conrad had bound the canons of the cathedral chapter of Würzburg with oaths to elect the current bishop of Münster his successor. The canons had also promised to pay Conrad's family two thousand marks after he died. They had sworn not to obey the new bishop until this debt was paid. All these endeavors Innocent condemned. Footnote

            In January 1200, Innocent queried the bishop of Bamberg whether Conrad had obeyed his commands. If not, he ordered the bishop to inform the cathedral chapter at Würzburg that they must no longer obey Conrad. Footnote The case went on. Between 1198 and 1202, twenty letters were enregistered concerning Conrad and his affairs. Footnote Six found their way into the canonical collections. Footnote As usual, there were probably a substantial number of letters we do not now know about. Conrad was a powerful figure in Germany, and he did not bend easily to papal threats. He had been Emperor Henry VI's imperial chancellor and was still active in German politics. Footnote

            The outcome of the case is reported in the Gesta of Pope Innocent III. The author of the Gesta reports that Conrad was importuned by the bishops of Magdeburg and Mainz, and other German princes, to submit himself to apostolic judgment. Innocent arranged what was probably a compromise, and Conrad was persuaded that Innocent wanted his submission, but did not intend to destroy his career. In the end, Conrad was assured that if he would recognize papal authority, the pope would restore him to his see. Conrad journeyed to Rome and, renouncing Hildesheim and Würzburg and begging papal forgiveness, presented himself to Innocent as a humble supplicant. The author of the Gesta relished the drama and described how Conrad spread himself on the floor of the papal curia, his body taking the symbolic form of a cross. Footnote

            The delicacy of the negotiations is revealed by an anecdote in the Gesta. After swearing his oath to give up both sees, Conrad sent the pope gifts of beautiful silver vases. Innocent was perplexed. Should he refuse to accept them? Conrad might be hurt, or even worse, might misunderstand his refusal. Fearing, no doubt, that Conrad still suspected his intentions, the pope wrestled with this moral dilemma. In the end, he reluctantly accepted the vases, hoping thereby to assure Conrad of his goodwill. However, to demonstrate that the pope was not corruptible, Innocent gave Conrad an even more valuable present, a golden cup. Footnote Subsequently, the cathedral chapter of Würzburg was informed that if Conrad were reelected and postulated to Rome, he would be recognized as their bishop. Conrad's fate was not, however, a happy one. In December 1202 he was assassinated for reasons connected with German politics, not with the problems surrounding his translation. Footnote

            The translation of Conrad of Querfurt from Hildesheim to Würzburg illustrates not only Innocent III's tenacity in pursuing what he thought were papal prerogatives but also the difficulties involved in coercing distant subjects to respect papal power. In Quanto personam, Innocent may have deposed Conrad with the authority of the true God whose office he exercised on earth, but the dispute was resolved through delicate negotiations and compromise.

            The case was famous and its details and final outcome were doubtless known to the canonists. It would not be completely farfetched to speculate that when Laurentius Hispanus wrote the gloss to Quanto personam in which he elevated the language of papal monarchy to celestial levels, he was aware that the grandeur of his rhetoric clashed not a little with what he knew to have been the facts and ultimate resolution of the case.

            The early thirteenth century was a key period in the development of the language of papal power. Prodded by a pope of genius and their own growing sophistication, the canonists shaped a description of papal authority that lasted to the end of the Middle Ages and beyond. Although their thought was traditional in many ways, and, as we have seen, their ideas did not reject or change traditional medieval ideas about the duty of a monarch to submit himself to the law, their language did prepare the way for more authoritarian ideas on monarchical authority by the end of the thirteenth century.

            To the nonlawyer, the language the canonists adopted remained offensive. Sometime during the final years of Pope Innocent III's pontificate (probably between 1212 and 1214), an anonymous poet wrote a vigorous defense of Otto of Brunswick's imperial claims against the pretensions of his newest rival, the boy Frederick II. He cast the poem in the form of a dialogue between the City of Rome and Innocent III, who had just recently withdrawn his support of Otto. The poem is propaganda and pulses with the passions of German imperial sentiment. Its author knew some law, for the legal arguments he used have many resonances in the law of the thirteenth century.

            The figura of Rome was Otto's advocate, and she went right to the heart of the matter. With what right, she asked Innocent, had he deposed Otto? She reminded Innocent that there were only three reasons for deposing a monarch: the abandonment of his wife, damage to imperial honor, and heresy (conjux dimissa, minutus imperialis honor, heresis). Otto, said Rome, was innocent of all these crimes. Innocent had abandoned him unjustly: Footnote


You have bound the innocent with the fetters of anathema, even without guilt; You have bound Otto in fact, but not in law. You have deposed him in fact, but not in law --- you have violated the law. You rule in this world through your will, not reason; you produce effect without cause, punishment without guilt.


Innocent acted, said the horrified poet, according to his will, not law.

            Innocent grappled with Rome's accusations but, in the end, finished the debate by declaring, “If I have not convinced you with these reasons that I have the right to replace Otto with Frederick, let it be said, as I wish, so it is done, for my will substitutes for reason.” Footnote Innocent's words shocked Rome, even though they confirmed her worst fears about Innocent's willingness to exercise papal authority arbitrarily.

            At the poem's end, Rome appealed to a general council. Innocent, Rome alleged, wished to rule by his will alone, not by law. Quoting a law from Justinian's Code, Rome declared that law which punishes the authors of their crimes is most just.

            The council answered that it did not have the right to depose the pope, but Rome should not despair. God can lay low the mighty and exalt the humble. Right demanded that the council should depose Frederick and restore Otto: Footnote


Faithful Rome, we may not depose the pope, but your righteous plaints move us. Take heed with us: He has deposed the mighty and exalted the weak. It is just that we depose Frederick and restore Otto.


            Many later writers echoed the poet's dislike for Juvenal's maxim. The fourteenth-century English chronicler Henry Knighton described in rhyme the depredations of papal legates sent to England by Pope Gregory IX: Footnote


What the pope did, he did not from reason,

but the plunderer seized whatever open lay,

and this was his justification: What I want,

I command, my will stands for reason.


The notion that the pope could substitute his will for reason was and remained despicable to the popular mind. Salimbene de Adam described an evil prelate who plagued the church: Footnote


A scurrilous prelate does not believe that he can command obedience from a subject cleric unless he treats him arbitrarily and dishonorably. Such a prelate thinks that what he commands is reasonable, according to the maxim: What I want, I command, my will stands for reason.


Salimbene applied the maxim to prelates. It was not limited, however, to describing abuses of ecclesiastical authority.

            Other early examples of the maxim's being used to condemn the exercise of arbitrary and unlawful power can be found in polemical and historical sources. In the late 1220's an anonymous author who wrote a guide for magistrates of Italian city states wrote an allegorical dialogue between "Justice" and a podestà who had completed his term in office. Justice accused the podestà and his kind of perverting the laws and customs of the city states. "They [laws and customs] bind the inhabitants of the land, until you exercise your crass will, especially when you wish to inflict an unlawful punishment, saying `so do I wish, my will is reason'." Footnote A German chronicler, Burchard of Ursberg (1177-1231) wrote that the Germans "without law and reason declare that their will substitutes for right." Footnote The irasicble English chronicler, Matthew Paris, condemned Henry III's meddling with the same language. Footnote

            The dialogue of a drama played out in Ferrara in 1264 is the clearest echo of contemporary secular reaction to the thought of the canonists. After the death of Azo VII, the citizens of Ferrara met and decided to grant the lordship of the city to Azo's illegitimate son, Obizo. An anonymous chronicler present at the ceremony described how the authority of the city was bestowed upon the new prince. A syndic was selected, and he conferred full lordship (dominium plenissimum) on Obizo, which permitted him to do all things, just and unjust, by the judgment of his will (pro suae arbitrio voluntatis). Although we do not have the text of the speech, the language of the ceremony must have contained some phrases taken from the glosses of the canonists. If the syndic had been a lawyer, he would have quite naturally borrowed phrases from the glosses to Quanto personam to describe Obizo's judicial and legislative authority. The chronicler, however, was a better historian than lawyer, and he recoiled from the syndic's description of Obizo's power. He somberly noted that “the new prince then had more power than eternal God who cannot create injustice.” Footnote The chronicler did not recognize the mundane implications of the syndic's language. For his part, the syndic may have been more desirous of wishing to please the new prince with his rhetoric than with introducing the latest definitions of sovereignity to his listeners. It may have been due to a misunderstanding, but theologians and polemicists in the later Middle Ages often recognized only the rhetoric of papal power and ignored the limitations implicit in the thought of the early canonists. Footnote To them, Juvenal's “pro ratione voluntas” represented the unbridled power of the prince.

            Innocent himself may not have shared the canonists' enthusiasm for the maxim. His thought was ingenious, but not radically out of step with contemporary beliefs. Although the canonists cited Juvenal's aphorism to remind themselves that the ultimate source of positive law was the prince's will, not reason, the pope may not have appreciated the distinction. Footnote In January 1201, Innocent wrote a letter to the ecclesiastical and secular princes of Germany lamenting the turbulent conditions in Germany, where violence and revolt had become prevalent: Footnote


In short, now evil deeds have taken the place of right; reason does not make law, but will. Some seem to think that whatever pleases them is permitted to them.


If Innocent drafted this passage himself, he certainly did not believe that Juvenal's maxim should describe a prince's legislative authority. Rather, like Henry Knighton, Salimbene, and the chronicler of Ferrara, he instinctively concurred with most medieval thinkers who were not jurists. They believed fervently that reason must inform all law and would have agreed with another lawyer, known as Henry Bracton, who wrote: “There is no rex where the will rules rather than the lex.” Footnote Unlike the canonists, Innocent and Bracton wished to describe the spirit that should infuse the source of legislative authority, not the source itself.

            In spite of these negative reactions to “pro ratione voluntas,” it became a commonplace in political theory. In the fourteenth and fifteenth centuries, canonists invariably cited the tag when they discussed papal authority. The meaning of the maxim did not, however, change during the medieval period. The correctores Romani of the sixteenth century understood the aphorism and its associated glosses without difficulty: it defined the source of positive ecclesiastical law.

            The maxim was used by political theorists until the seventeenth century. Historians of political theory in the early modern period have assumed that when applied to a monarch, it meant unlimited and arbitrary authority. They may not be right. As Gaines Post has written, more work will have to be done in order to determine whether the successors of the canonists followed or departed from the doctrine of their predecessors. Footnote

            Quanto personam was just one of many letters in which Innocent justified his new conception of papal monarchy. The pope derived his authority to exercise power over episcopal translations from Christ, and, although all papal jurisdictional rights could be said to have originated from Christ's mandate, Innocent distinguished between the pope's ordinary powers and those that granted him special authority over bishops. The marriage of a bishop to his church was a bond that Innocent could break only with an appeal to the pope's right to exercise Christ's authority on earth. He did not claim that his authority could be arbitrary. On the contrary, he wrote in Quanto personam that the pope must carefully consider the need and the usefulness of his actions. Although Innocent did not use the term “plenitudo potestatis” in Quanto personam, he certainly had “fullness of power” in mind. Just two weeks earlier, while writing to the bishop of Faenza about another unauthorized translation, Innocent had called his exercise of authority over translations “plena potestas.” Footnote

            The canonists recognized Quanto personam as an example of papal plenitudo potestatis. Once the decretal was included in Innocent III's authenticated decretal collection, Compilatio tertia, they immediately perceived that it was a new and innovative statement of papal authority. Their reaction to Innocent's claim to have divine authority, to be the holder of the office of the true God on earth, not the holder of the office of any man, is very revealing and gives us an insight into the attitudes of the professors in the schools.

            Innocent granted the pope a new justification of monarchical authority that no other bishop could possess. He took an old title, vicarius Christi, and injected it with new meaning. Since his conception of the papal office was rooted in traditions that reached back to the early church, the titles and terms he used were, for the most part, not new. He invented little. Rather he fitted older terminology, biblical texts, and titles together into such a luminous mosaic that afterwards no one spoke or wrote about the papal office without invoking Innocent's spirit. Footnote

            What was new and innovative about his thought was his powerful and vivid grasp of papal purpose independent of the thought of the lawyers and theologians as well as of the historical development of the papacy. Innocent divined, intuitively, that if the pope was Christ's vicar (vicarius Christi) exercising the office of God on earth, each pope derived his authority from that crucial moment in history when Christ gave St. Peter lordship over the church. Footnote The lawyers might argue about precedents, terminology, and issues of jurisdiction, but the vicissitudes of man's understanding of papal monarchy were not important. Innocent reduced the origins of papal authority to the essentials: the pope's right to exercise divine authority and his office of “vicarius Christi,” vicar of Christ. One might unravel the knot of history to explain a particular papal prerogative, but such unravelings were irrelevant.

            Innocent created a “cosmology” to explain papal authority. There were three stages in the creation of the universe. Before Christ, the priest kings of the Old Testament adumbrated both the coming of Christ and the establishment of papal monarchy. Melchisedech, a favorite figura of Innocent, represented this epoch. Footnote In his time on earth Christ himself reigned over the second era. Before Christ left his earthly ministry, he established the right order of ecclesiastical government for the third stage. Innocent understood papal prerogatives and authority in relation to the pope's divine ministry. The pope acted on divine authority, not on the transient, ephemeral authority of a papal decretal or a conciliar canon. Ignoring the dynamics of historical development, Innocent conceived of the church's constitution as static.

            I have quoted Innocent's graphic justification of his prerogatives within the church several times in different contexts: “The pope had this authority because he exercises the office not of man, but of the true God on earth.” Innocent, and popes before him, also used papal titles that showed a humbler conception of the pope's office. At the beginning of every letter, Innocent styled himself “servus servorum Dei,” “servant of God's servants,” a title that emphasized the pope's pastoral duties to his church, not the immensity of papal authority. Pope Gregory the Great introduced the title into papal correspondence. Stephan Kuttner writes: Footnote


Other bishops before him had occasionally used similar phrases, but Gregory's expression was perfectly coined in its conciseness to become a set chancery style and convey at the same time a strong spiritual message. Its sublime humility made a striking contrast with the proud title of “ecumenical patriarch.”


In contrast to Gregory's letters, Innocent's epistles are not steeped in humility, although they are certainly not devoid of spirituality.

            The canonists eliminated the papal salutation from the letters they put into their decretal collections. The formal and complete salutation did, however, remain attached to the letter Innocent III sent to Bologna with Compilatio tertia when the collection was authenticated. The letter, Devotioni vestrae, introduced the new collection, and the canonists began to gloss the title included in the salutation, “servus servorum Dei.” Footnote It was almost inevitable that the canonists would compare the language of Innocent's decretals, especially Quanto personam, to the humility of his salutations. The earliest canonist to gloss the words could not refrain from a touch of sarcasm. An anonymous glossator quoted a line from Horace implying that the pope's servitude was due only to greed. Footnote

            Johannes Teutonicus was the first glossator to scorn Innocent's humility openly. Subtlety was not a striking part of Teutonicus' character. To the words “servus servorum Dei,” he wrote: Footnote


Although you call yourself the servant of God's servants, you thunder from on high when you disdain to be called the vicar of Peter, as in the decretal Quanto personam; Jerome calls you the successor of the fisherman.

 

Johannes had managed to touch a central concept of Innocent's ecclesiology. Innocent had not rested his claim in Quanto personam to absolve the spiritual marriage between a bishop and his see on the deeds or decrees of any earlier pope. His authority stemmed solely from the special mandate bestowed on him by Christ. Johannes objected to Innocent's “deification” of the papal office. Innocent also violated his sense of how the church should be governed. Footnote

            If the pope did, indeed, act only on divine authority, who could resist him? To have been the vicar of Peter would have limited the pope to time and history. Instead, Innocent elevated the papacy beyond the confines of human understanding and law. When Johannes glossed Quanto personam, he took pains to observe that the pope was sometimes called the “successor of the fisherman.” Footnote This section of Johannes' gloss was omitted from most manuscripts, since many contemporary canonists found Johannes' invective repugnant.

            Some canonists, with less bombast and more reason than Johannes, undercut the force of Innocent's argument. Laurentius Hispanus wrote that every bishop was the vicar of Christ. Footnote Johannes Galensis insisted that the pope was, in spite of Innocent's assertion, the vicar of Peter “because the heir of the heir of the testator is an heir.” Footnote Later episcopalists would build their ecclesiology on the apostolic origins of the episcopate. However, no canonist in the thirteenth century expanded this idea systematically.

            In Quanto personam and its glosses, Innocent and the canonists make an interesting contrast. The pope created one duality, the pope's ordinary and divine authority. The canonists fashioned distinctions between the will of the pope and reason, and between the pope's supreme authority and his obligation to submit himself to the law. Both arguments enhanced papal authority and defined fundamental concepts of government. Innocent established the sole right of the pope to govern the transfer of bishops --- which had not been firmly established by earlier ecclesiastical custom and practice --- and the canonists demonstrated that when the pope promulgated positive law, he could violate --- under certain circumstances --- a long-accepted truth: law must embody reason. With reason squeezed out of law, the jurists could fashion a theory of monarchy in which the prince's will was the source of all law. Innocent III's decretal, Quanto personam, was an important step in the evolution of a theory of legislative authority.