Popes, Teachers, and Canon Law-in the Middle Ages EDITED BY [ames Ross Sweeney and Stanley Chodorow WITH A FOREWORD BY Stephan Kuttner Cornell University Press ITHACA AND LONDON S~/11JO' .',
Popes, Teachers, and Canon Law-in the Middle Ages
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the Middle Ages
WITH A FOREWORD BY
ROBERT C. FIGUElRA
The medieval church-understood as the collectivity of individual be- lievers-had available to it only a primitive communications apparatus and thus was too intractable for anyone man to supervise effectively and rule personally. Its government and administration were managed not only through the papacy but also through smaller units: the diocese with its bishop, the parish with its priest, and the monastery with its abbot. Much of what we would today call "ecclesiastical government" occurred on these local levels. This chapter focuses on an institution or administra- tive device that medieval popes used to share governmental tasks ex- ercised under their traditional or newly claimed authority-papallega- tion. Like all agents of government, legates provided a means by which information and resources were transmitted to the center of power, deci- sions were executed, commissioned jurisdiction was applied, and physical resources were transferred outward from that center.
Such activities depended in part on authorization and supervision. How could the pope communicate to his legate and also to the church at large which papal powers this agent was empowered to exercise? At the same time, how could the pope satisfy himself that his unique jurisdiction was not diminished by employing a legate? The answer to both of these ques- tions, when viewed from the theoretical standpoint of canon law, lies in a consideration of papal mandates and of powers normally reserved to the pope alone. We must first consider a legate's powers and authorization. Medieval
I wish to acknowledge the insightful advice of Professor Robert L. Benson (University of California, Los Angeles) regarding an earlier draft of this essay. Abbreviations used in this chapter are listed in appendix 1.
Robert C. Figueira
popes and canonists alike agreed that legates could perform certain tasks purely as a function of their office, "by right of legation" jiure legationis). The minimal prerogatives of this office were considered fixed and were comprehended within the generic terms "general legation" (generalis legatio) and its authorization, the "general mandate" (generale man- datum). In addition, the pope could authorize a legate (or anyone else, for that matter) to accomplish any task whose performance normally per- tained to or was reserved for the pope's jurisdiction alone. These powers could be transferred through "special concession" or "special mandate" (speciale mandatum). This system of classification usually occurred in decretist glosses in a variety of formulations. The best method for analyz- ing the specific powers encompassed by these terms would be both to investigate some of the actual decretals from the Libet extra wherein mention of these powers is made and to compile from decretalist glosses a detailed list of the specific powers both reserved to the pope and normally prohibited to legates. Up until now a systematic treatment of canonistic texts in this regard has not been attempted.
Legatine Mandates in the Libel Extra
While on legation in Sicily during I 199-I 200, Cardinal Cinthius of St. Laurence in Lucina attempted to transfer or translate the bishop of Troia to the vacant metropolitan see of Palermo.' For this act Pope Innocent III roundly denounced Cinthius in a series of decretals (X 1.30.3,4). Nonethe- less, faced with the fait accompli of the translation and aware of the personal importance of the bishop under consideration (he was the chan- cellor of the kingdom of Sicily), Innocent eventually acquiesced in the translation. Yet he considered it to have been an altogether abnormal act by his legate.s Innocent's complaints offered a concise statement of many of the factors relevant to legatine powers.
by the lesson of punishment you ought to recognize how much you overstep .... you, who to the scorn of both canonical sanctions and gen- eral custom have presumed by your own will ... to transfer de facto ... the bishop of Troia . . . from the church of Troia to that of Palermo without our special mandate.s Although a generallegation was committed to you within the kingdom of Sicily, without special mandate you nevertheless ought not to have stretched forth your hand to those things reserved to the Supreme Pontiff
I. See Zimmermann, p. 29, and Maleczek, pp. 105-6, for details regarding this legation.
2. See X 1.8.3. 3· X 1.30.3.
Papal Reserved Powers and Legatine Authority
as a sign of singular privilege. And ... if some of these matters already seemed permitted to legates by the office of legation itself, matters which often had been granted to legates by special concession (such as the absolution of those persons who incur the canon of a promulgated sen- tence on account of raising sacrilegious hands against clerics), did you reckon that you could subject the church of Palermo to the church of Messina, and, by conceding the privilege of primacy to the latter, set it over the former, just because we committed to you as legate the fulflll- ment of our representation? Or do you think that by virtue of the same reason you are permitted to unite two bishoprics or divide a single one without a special license!+
For Innocent III a grant of general legation alone clearly did not permit the legate to transfer bishops, to divide or unite bishoprics, or strictly speak- ing even to absolve persons excommunicated automatically for presum- ing violence against clerics. A special papal mandate or license could, however, authorize these very actions. As regards the absolution of vio- lent excommunicates, Innocent did not cite an earlier decretal of Clement III IX 5.39.201whose substance was reaffirmed in a later decretal of Greg- ory IX IX 1.30.91. These two decretals showed that grants of special papal license in this matter to cardinal-legates or legates de latere had been so common and routine during the late twelfth century and early thirteenth that this prerogative of absolution had become standard for this most exalted type of legate in all situations and eventually was accepted even without special mandate.f Other types of legates were more limited in their ability to absolve such men, but even they may have transcended such restrictions when empowered "by special grace" of the Apostolic see.
A special papal mandate not only empowered a legate [or anyone else] to perform something beyond his own inherent powers or beyond a general commission, but simultaneously defined a discrete and more specific type of activity as well. In other words, any special mandate derogated, super- seded, or cance1ed in some specific matter anyone's general commission. A decretal of Celestine III (X 1.30.21exemplified this phenomenon when it
4. X 1.30.4. 5. Although Clement himself did not expressly say that legates a latere may nor-
mally absolve in such cases without a special mandate, this was precisely the inference drawn by the rubricator !"Legati de latere absolvere possunt excommunicatos pro iniectione manuum in clericos") and by subsequent decretalists-Abbas antiquus, Lectura aurea ... super quinque libris Decretalium (Strasbourg, 1510), at X 5.39.:10: "Casus"; Glossa ordinaria ad X, 5·39.20: "CASUS.... Nota quod legati qui mittuntur a latere domini papae, licet non habeant mandatum speciale, absolvere tarnen possunt excommunicatos. Bemardus." Both Bemard of Parma and Hostiensis maintained that this prerogative derived from customary usage: Glossa ordinaria ad X, I.I7.17: "non obstante"; Hostiensis, Summa, p. 319: "Quid pertinet."
Robert C. Figueira
distinguished between the jurisdictions of legates and of papal judges- delegate.
You have taken pains to inquire from us, whether a general legate in a province, a person other than him to whom we delegated a case, can himself take cognizance of a case either before or after [the delegate's own) cognizance, or can in such a way impede the progress of our commission transmitted to a delegate judge.... we respond that a legate ... cannot impede a commission made specially to another ... , because a special mandate derogates a general one, whence, if a sentence has already been promulgated according to the form of our mandate, the same judge cannot disturb it in any way whatsoever, unless he should receive a special mandate concerning this matter.
Indeed, the primacy of a special over a general mandate was raised in an objection against a legate in a similar case reported in the Liber extra (X 5.1.22). At the request of Walter, abbot of Corbie, three clerics were delegated by Innocent III to conduct a visitation of that monastery. After their arrival at Corbie a cardinal-legate (Guala Bicchieri] appeared and conducted the visitation himself." Thereupon the legate summoned WaI- ter (who seemed to have been compromised somewhat by the legate's findings) to Paris to state any objections to the visitation the abbot might have. Innocent reported that in Paris the abbot objected, among other things, "that he [the legate] could not proceed as regards the correction of the monastery which had been committed beforehand by our [the pope's] authority to the aforesaid judges [the three visitors]." At this point the abbot appealed to the pope. Nonetheless he was subsequently deposed by the legate, and the monks elected a successor." As it happened, the pope eventually decided the case against Walter for reasons which did not address the validity of the abbot's assertion that the visitor's special mandate had precluded legatine action.
Papal Reserved Powers
That legates required special authorization to perform certain activities within the purview of papal power necessitated a special category of
6. Guala was at that time (1208-9) cardinal-deacon of St. Mary in Portico; for details on his legation see Zimmermann, p. 4 I i Maleczek, p. 142. The decretal explains in parte decisa that the visitors' task had been contumaciously impeded by certain unnamed monks, and that in their frustration they intended to invoke the secular arm to coerce obedience. This controversy probably impelled the legate to act.
7. The details of oral argument before the pope are reported in parte decisa of the decretal. Walther repeated there his major objection, that because the masters had begun and then deferred their visitation the legate could not proceed in the meantime.
Papal Reserved Powers and Legatine Authority
"reserved powers," that is, powers normally reserved to papal judgment alone and not transferable by any grant of general legationß We have already seen how in X 1.30.4 Innocent III characterized the activities requiring a special mandate as "reserved to the Supreme Pontiff as a sign of his singular privilege."? Nearly all the important decretalists of the thirteenth century provided lists of papal reserved powers and prohibi- tions of the performance of certain actions by legates. Sometimes they reiterated the individual items of these lists when glossing specific texts. Although they clearly built on the decretists' rather advanced discussion of this same subject, unlike previous canonists the decretalists firmly joined their discussion onto the context of legatine jurisdiction, either within a section entitled "on legates" or in some gloss commenting on a decretal featuring papal legation.w The decretalists and decretists were heirs to an ecclesiological tradition when they listed papal reserved pow- ers. The most striking early manifestations of this tradition dated from the Investiture Struggle and its aftermath, in such texts as the Dictatus papae (found in Gregory VII's register) and the Ptoprie auctoritates apos- tolice sedis.u Finally, in the steady growth of decretalist lists of papal
The abbot believed himself justified "because a general mandate does not derogate a special mandate." The new abbot, who was also present before the pope, advanced counterobjections: Waiter's initial acceptance of the legate's visitation, and the neces- sity for legatine action "by virtue of the office of legation committed to him" in a perilous situation incurred by the visitors' encounter with resistance.
8. Gregory the Great already spoke of such a category (although he did not use this specific term) when he entrusted his authority (vices) in Sicily to Bishop Maximus, whom later canonists considered a legate. Maximus was empowered to deal with minor matters (minimae causae), whereas more difficult and major cases (difficilia. maiorae causae) demanded the direct attention of the pope himself. Gregory's remarks appeared in the Libet extra as X 2.23.6; the relevant portions were, however, in parte decisa of the decretal.
9. In parte decisa ofX 1.6·30 Innocent III recounted the actions of his legate, John of St. Paul, during a disputed election to the metropolitan see of Toulouse. John refused to accede to one group's request (postulation) to transfer their candidate, the bishop of Comminges, to the archiepiscopal see. The legate realized that such power of transfer was normally reserved for the pope, and that he had no special authorization. The legate's only course of action was to appeal for Innocent's decision in the matter. John was cardinal-priest of St. Prisca, for this legation see Zimmermann, pp. 30-31, and Maleczek, p. 116.
10. I plan to discuss the decretist analysis of papal reserved powers in a forthcoming study. I I. The only explicit reference to legates in either of these works is in the Dictatus
papae. number 4: "Quod legatus eius o~nibus ep~s~op~spresi.t in concilio etiam in- ferioris gradus et adversus eos sentennam depositionis POSSltdare" (Das Register Gregors VII, zd ed., ed. Erich Caspar [Berlin, 19551, MGH Epp, 2:203). See Hubert Mordek, "Proprie auctoritates apostolice sedis: Ein zweiter Dictatus papae Gregors VIE" DA 28 (1972): 105-32, for the best edition of this work and for some hypotheses concerning its author and date of composition. Friedrich Kempf, "Ein zweiter Dictatus papae? Ein Beitrag zum Depositionsanspruch Gregors VII.," Archivum historiae pon- tificiae 13(1975): 119-39, subjects Mordek's hypotheses to careful scrutiny. He notes
Robert C. Figueira
reserved powers during the thirteenth century one can view a process of accretion contemporaneous with the expansion of papal monarchy and the greater frequency of papallegatine missions. We may start with [ohannes Teutonicus's gloss to the Compilatio tet-
tia, which listed sixteen reserved powers: questions of faith; "major mat- ters" (maiora negotia); depositions, restitutions, and transfers of bishops; transfers of confirmed bishops-elect; the acceptance of episcopal resigna- tions; the exemption of bishops from metropolitan control; dispensations in cases of major crimes; adjustment of onerous local customs; commuta- tion of vows; the convocation of universal councils; absolution of persons excommunicated by himself or by his judges-delegate; the granting of a benefice or prebend that is not yet vacant [i.e., the grant of an expectancy); and the capability to adjudicate an original complaint or even an appeal to the neglect of all other judicial instances.t? Johannes's insistence that this final prerogative pertained solely to the pope and not also to his legates re- sulted partly from an idiosyncratic interpretation of a decretal of Alexan- der III (X 1.30.I J which occurred in this same canonist's gloss on the De- ctetum.P Iohannes likewise ran into problems in attempting to reconcile the reservation of certain powers as beyond a legate's capabilities with the
that the Proprie auctoritates, unlike the Dictatus papae, made no mention of a papal prerogative to depose emperors. Thus Kempf concludes that the Proprie auctoritates postdated Gregory's death and was written sometime before 1123/24 by a moderate adherent to the Reform party. A pre-Cratian canonistic work-the Collectio canonum of Cardinal Deusdedit (compiled 1083-87) grouped various canones under legal maxims that were essentially statements of papal reserved powers; see Die Kanonessammlung des Kardinals Deusdedit, ed. Wolf von Glanvell [Paderborn, 1905), pp. 6-12.
12. Glossa ad Comp. Ill, 1.19.2 (= X 1.30.4), pp. 129-3°: "pontifici reservata .... " Pennington counts seventeen reserved powers in Iohannes' gloss; in my opinion two separate phrases in the gloss represent only one power, namely, the statements that "likewise only to him [the pope) alone can one appeal despite all other intervening jurisdictions," and "a legate cannot be approached by simple complaint," that is, be a court of first instance. See Kenneth Pennington, "A Study of Johannes Teutonicus' Theories of Church Government and of the Relationship between Church and State, with an Edition of His Apparatus to Compilatio Tertia" (Ph.D. diss., Cornell University, 1972), 1:160-61. Regarding Johannes' thought about legates in general see Kenneth Pennington, "Johannes Teutonicus and Papal Legates," Archivum historiae pontificiae 21 (1983): 183-94. 13. Glossa ordinaria on the Decretum, [ohannes Teutonicus's and Bartholomeus
Brixiensis's gloss as found in the Turin 1670 and Lyons 1671 editions ofthe Corpus iuris canonici, at C. 2S q. 2. c. 3: "Ptaetermitti." Here Johannes insisted that an archbishop of Canterbury's metropolitan power, not his legatine power, allowed intervention in mat· ters regarding a suffragan's clerics. This interpretation reversed the intent of the decretal text (X 1.30.1) itself and was refuted by Johannes' reviser Bartholomeus Brixicnsis. For a detailed discussion of this matter see Robert C. Pigueira, "The Canon Law of Medieval Papal Legation" (Ph.D. diss., Cornell University, 1980), pp. 77-79. To place [ohannes/ opinion within the context of his thought regarding legates see Pennington, "[ohannes Teutonicus," pp. 185, 187-88, 194. Pennington agrees that [ohannes' "interpretation of Cum non ignoretis [= X 1.3°.1] twisted Alexander's clear intention" and argues that this was deliberate, for the canonist's interpretation dovetailed with his distrust of "any attempt to give legates power which could undermine the jurisdictional rights of the diocesan bishop."
Papal Reserved Powers and Legatine Authority
content of a particular Decretum text le. r6 q. r c. p). There Gregory the Great permitted his responsales in Constantinople 1= apocrisiars whom decretists considered to be legates) to judge "concerning cases of crime or faith ... , if the matter is minor." Instead of using Gregory's own implied system of reserved powers to obviate this seeming contradiction, [ohan- nes opted for a legally unsatisfactory alternative, asserting lamely that legates could do these things but ought to refrain. Goffredus de Trano's list was even smaller-he repeated only three of
Johannes' items, while adding three more of his own: 14 dispensations in cases concerning benefices with cure of souls; dispensations for priests holding churches in which their own fathers had been the previous in- cumbents; the position of the pope as ultimate court of appeal. This last item was akin, but not identical, to Iohannes' claim that only the pope might be appealed to omissis mediis. Goffredus also alluded to the exis- tence of a larger list of reserved powers preserved in the form of a poem, whose incipit he cited: "testituit papa." As one may subsequently see, both Hostiensis and Bernard of Parma gave renderings of this same poem. Innocent IV merely repeated three of the categories of reserved powers already listed by Coffredus.P In view of the exponential growth of lists Ita be illustrated shortly) for papal reserved powers found in contemporary and later canonistic literature, one can assume that neither Goffredus nor Innocent IV wished to provide exhaustive lists in this context. Instead they presented exemplary material to illustrate the concept of reserved powers itself.
The most prolific list compilers among thirteenth-century decretalists were all active during or after Innocent IV's pontificate: Hostiensis, Ber- nard of Parma, and Durantis. The last two greatly depended on the first, who in his Summa amassed examples of sixty-three papal reserved pow- ers, for which see appendix 2 below. Some of his statements deserve special scrutiny here. Hostiensis disputed Johannes Teutonicus's assump- tion that appeals could not be made to a legate in neglect of all other inferior ecclesiastical tribunals.w Although previous decretalists had claimed that only the pope could grant a benefice not yet vacant, Hos- tiensis maintained that a legate de latere might nonetheless ex officio reserve to his own nomination the first benefice in an area to become vacant, even if this benefice should possess an ecclesiastical patron.!?
In addition, Hostiensis attacked Huguccio's belief (which Laurentius Hispanus and Johannes Teutonic~s also supported) that a legate needed a special mandate to convoke all types of councils. To be sure, the convoca-
14. Goffredus, fo1. pr-v: "Ingressus autem provinciam .... Item dispensare", fo1. I6r:…
WITH A FOREWORD BY
ROBERT C. FIGUElRA
The medieval church-understood as the collectivity of individual be- lievers-had available to it only a primitive communications apparatus and thus was too intractable for anyone man to supervise effectively and rule personally. Its government and administration were managed not only through the papacy but also through smaller units: the diocese with its bishop, the parish with its priest, and the monastery with its abbot. Much of what we would today call "ecclesiastical government" occurred on these local levels. This chapter focuses on an institution or administra- tive device that medieval popes used to share governmental tasks ex- ercised under their traditional or newly claimed authority-papallega- tion. Like all agents of government, legates provided a means by which information and resources were transmitted to the center of power, deci- sions were executed, commissioned jurisdiction was applied, and physical resources were transferred outward from that center.
Such activities depended in part on authorization and supervision. How could the pope communicate to his legate and also to the church at large which papal powers this agent was empowered to exercise? At the same time, how could the pope satisfy himself that his unique jurisdiction was not diminished by employing a legate? The answer to both of these ques- tions, when viewed from the theoretical standpoint of canon law, lies in a consideration of papal mandates and of powers normally reserved to the pope alone. We must first consider a legate's powers and authorization. Medieval
I wish to acknowledge the insightful advice of Professor Robert L. Benson (University of California, Los Angeles) regarding an earlier draft of this essay. Abbreviations used in this chapter are listed in appendix 1.
Robert C. Figueira
popes and canonists alike agreed that legates could perform certain tasks purely as a function of their office, "by right of legation" jiure legationis). The minimal prerogatives of this office were considered fixed and were comprehended within the generic terms "general legation" (generalis legatio) and its authorization, the "general mandate" (generale man- datum). In addition, the pope could authorize a legate (or anyone else, for that matter) to accomplish any task whose performance normally per- tained to or was reserved for the pope's jurisdiction alone. These powers could be transferred through "special concession" or "special mandate" (speciale mandatum). This system of classification usually occurred in decretist glosses in a variety of formulations. The best method for analyz- ing the specific powers encompassed by these terms would be both to investigate some of the actual decretals from the Libet extra wherein mention of these powers is made and to compile from decretalist glosses a detailed list of the specific powers both reserved to the pope and normally prohibited to legates. Up until now a systematic treatment of canonistic texts in this regard has not been attempted.
Legatine Mandates in the Libel Extra
While on legation in Sicily during I 199-I 200, Cardinal Cinthius of St. Laurence in Lucina attempted to transfer or translate the bishop of Troia to the vacant metropolitan see of Palermo.' For this act Pope Innocent III roundly denounced Cinthius in a series of decretals (X 1.30.3,4). Nonethe- less, faced with the fait accompli of the translation and aware of the personal importance of the bishop under consideration (he was the chan- cellor of the kingdom of Sicily), Innocent eventually acquiesced in the translation. Yet he considered it to have been an altogether abnormal act by his legate.s Innocent's complaints offered a concise statement of many of the factors relevant to legatine powers.
by the lesson of punishment you ought to recognize how much you overstep .... you, who to the scorn of both canonical sanctions and gen- eral custom have presumed by your own will ... to transfer de facto ... the bishop of Troia . . . from the church of Troia to that of Palermo without our special mandate.s Although a generallegation was committed to you within the kingdom of Sicily, without special mandate you nevertheless ought not to have stretched forth your hand to those things reserved to the Supreme Pontiff
I. See Zimmermann, p. 29, and Maleczek, pp. 105-6, for details regarding this legation.
2. See X 1.8.3. 3· X 1.30.3.
Papal Reserved Powers and Legatine Authority
as a sign of singular privilege. And ... if some of these matters already seemed permitted to legates by the office of legation itself, matters which often had been granted to legates by special concession (such as the absolution of those persons who incur the canon of a promulgated sen- tence on account of raising sacrilegious hands against clerics), did you reckon that you could subject the church of Palermo to the church of Messina, and, by conceding the privilege of primacy to the latter, set it over the former, just because we committed to you as legate the fulflll- ment of our representation? Or do you think that by virtue of the same reason you are permitted to unite two bishoprics or divide a single one without a special license!+
For Innocent III a grant of general legation alone clearly did not permit the legate to transfer bishops, to divide or unite bishoprics, or strictly speak- ing even to absolve persons excommunicated automatically for presum- ing violence against clerics. A special papal mandate or license could, however, authorize these very actions. As regards the absolution of vio- lent excommunicates, Innocent did not cite an earlier decretal of Clement III IX 5.39.201whose substance was reaffirmed in a later decretal of Greg- ory IX IX 1.30.91. These two decretals showed that grants of special papal license in this matter to cardinal-legates or legates de latere had been so common and routine during the late twelfth century and early thirteenth that this prerogative of absolution had become standard for this most exalted type of legate in all situations and eventually was accepted even without special mandate.f Other types of legates were more limited in their ability to absolve such men, but even they may have transcended such restrictions when empowered "by special grace" of the Apostolic see.
A special papal mandate not only empowered a legate [or anyone else] to perform something beyond his own inherent powers or beyond a general commission, but simultaneously defined a discrete and more specific type of activity as well. In other words, any special mandate derogated, super- seded, or cance1ed in some specific matter anyone's general commission. A decretal of Celestine III (X 1.30.21exemplified this phenomenon when it
4. X 1.30.4. 5. Although Clement himself did not expressly say that legates a latere may nor-
mally absolve in such cases without a special mandate, this was precisely the inference drawn by the rubricator !"Legati de latere absolvere possunt excommunicatos pro iniectione manuum in clericos") and by subsequent decretalists-Abbas antiquus, Lectura aurea ... super quinque libris Decretalium (Strasbourg, 1510), at X 5.39.:10: "Casus"; Glossa ordinaria ad X, 5·39.20: "CASUS.... Nota quod legati qui mittuntur a latere domini papae, licet non habeant mandatum speciale, absolvere tarnen possunt excommunicatos. Bemardus." Both Bemard of Parma and Hostiensis maintained that this prerogative derived from customary usage: Glossa ordinaria ad X, I.I7.17: "non obstante"; Hostiensis, Summa, p. 319: "Quid pertinet."
Robert C. Figueira
distinguished between the jurisdictions of legates and of papal judges- delegate.
You have taken pains to inquire from us, whether a general legate in a province, a person other than him to whom we delegated a case, can himself take cognizance of a case either before or after [the delegate's own) cognizance, or can in such a way impede the progress of our commission transmitted to a delegate judge.... we respond that a legate ... cannot impede a commission made specially to another ... , because a special mandate derogates a general one, whence, if a sentence has already been promulgated according to the form of our mandate, the same judge cannot disturb it in any way whatsoever, unless he should receive a special mandate concerning this matter.
Indeed, the primacy of a special over a general mandate was raised in an objection against a legate in a similar case reported in the Liber extra (X 5.1.22). At the request of Walter, abbot of Corbie, three clerics were delegated by Innocent III to conduct a visitation of that monastery. After their arrival at Corbie a cardinal-legate (Guala Bicchieri] appeared and conducted the visitation himself." Thereupon the legate summoned WaI- ter (who seemed to have been compromised somewhat by the legate's findings) to Paris to state any objections to the visitation the abbot might have. Innocent reported that in Paris the abbot objected, among other things, "that he [the legate] could not proceed as regards the correction of the monastery which had been committed beforehand by our [the pope's] authority to the aforesaid judges [the three visitors]." At this point the abbot appealed to the pope. Nonetheless he was subsequently deposed by the legate, and the monks elected a successor." As it happened, the pope eventually decided the case against Walter for reasons which did not address the validity of the abbot's assertion that the visitor's special mandate had precluded legatine action.
Papal Reserved Powers
That legates required special authorization to perform certain activities within the purview of papal power necessitated a special category of
6. Guala was at that time (1208-9) cardinal-deacon of St. Mary in Portico; for details on his legation see Zimmermann, p. 4 I i Maleczek, p. 142. The decretal explains in parte decisa that the visitors' task had been contumaciously impeded by certain unnamed monks, and that in their frustration they intended to invoke the secular arm to coerce obedience. This controversy probably impelled the legate to act.
7. The details of oral argument before the pope are reported in parte decisa of the decretal. Walther repeated there his major objection, that because the masters had begun and then deferred their visitation the legate could not proceed in the meantime.
Papal Reserved Powers and Legatine Authority
"reserved powers," that is, powers normally reserved to papal judgment alone and not transferable by any grant of general legationß We have already seen how in X 1.30.4 Innocent III characterized the activities requiring a special mandate as "reserved to the Supreme Pontiff as a sign of his singular privilege."? Nearly all the important decretalists of the thirteenth century provided lists of papal reserved powers and prohibi- tions of the performance of certain actions by legates. Sometimes they reiterated the individual items of these lists when glossing specific texts. Although they clearly built on the decretists' rather advanced discussion of this same subject, unlike previous canonists the decretalists firmly joined their discussion onto the context of legatine jurisdiction, either within a section entitled "on legates" or in some gloss commenting on a decretal featuring papal legation.w The decretalists and decretists were heirs to an ecclesiological tradition when they listed papal reserved pow- ers. The most striking early manifestations of this tradition dated from the Investiture Struggle and its aftermath, in such texts as the Dictatus papae (found in Gregory VII's register) and the Ptoprie auctoritates apos- tolice sedis.u Finally, in the steady growth of decretalist lists of papal
The abbot believed himself justified "because a general mandate does not derogate a special mandate." The new abbot, who was also present before the pope, advanced counterobjections: Waiter's initial acceptance of the legate's visitation, and the neces- sity for legatine action "by virtue of the office of legation committed to him" in a perilous situation incurred by the visitors' encounter with resistance.
8. Gregory the Great already spoke of such a category (although he did not use this specific term) when he entrusted his authority (vices) in Sicily to Bishop Maximus, whom later canonists considered a legate. Maximus was empowered to deal with minor matters (minimae causae), whereas more difficult and major cases (difficilia. maiorae causae) demanded the direct attention of the pope himself. Gregory's remarks appeared in the Libet extra as X 2.23.6; the relevant portions were, however, in parte decisa of the decretal.
9. In parte decisa ofX 1.6·30 Innocent III recounted the actions of his legate, John of St. Paul, during a disputed election to the metropolitan see of Toulouse. John refused to accede to one group's request (postulation) to transfer their candidate, the bishop of Comminges, to the archiepiscopal see. The legate realized that such power of transfer was normally reserved for the pope, and that he had no special authorization. The legate's only course of action was to appeal for Innocent's decision in the matter. John was cardinal-priest of St. Prisca, for this legation see Zimmermann, pp. 30-31, and Maleczek, p. 116.
10. I plan to discuss the decretist analysis of papal reserved powers in a forthcoming study. I I. The only explicit reference to legates in either of these works is in the Dictatus
papae. number 4: "Quod legatus eius o~nibus ep~s~op~spresi.t in concilio etiam in- ferioris gradus et adversus eos sentennam depositionis POSSltdare" (Das Register Gregors VII, zd ed., ed. Erich Caspar [Berlin, 19551, MGH Epp, 2:203). See Hubert Mordek, "Proprie auctoritates apostolice sedis: Ein zweiter Dictatus papae Gregors VIE" DA 28 (1972): 105-32, for the best edition of this work and for some hypotheses concerning its author and date of composition. Friedrich Kempf, "Ein zweiter Dictatus papae? Ein Beitrag zum Depositionsanspruch Gregors VII.," Archivum historiae pon- tificiae 13(1975): 119-39, subjects Mordek's hypotheses to careful scrutiny. He notes
Robert C. Figueira
reserved powers during the thirteenth century one can view a process of accretion contemporaneous with the expansion of papal monarchy and the greater frequency of papallegatine missions. We may start with [ohannes Teutonicus's gloss to the Compilatio tet-
tia, which listed sixteen reserved powers: questions of faith; "major mat- ters" (maiora negotia); depositions, restitutions, and transfers of bishops; transfers of confirmed bishops-elect; the acceptance of episcopal resigna- tions; the exemption of bishops from metropolitan control; dispensations in cases of major crimes; adjustment of onerous local customs; commuta- tion of vows; the convocation of universal councils; absolution of persons excommunicated by himself or by his judges-delegate; the granting of a benefice or prebend that is not yet vacant [i.e., the grant of an expectancy); and the capability to adjudicate an original complaint or even an appeal to the neglect of all other judicial instances.t? Johannes's insistence that this final prerogative pertained solely to the pope and not also to his legates re- sulted partly from an idiosyncratic interpretation of a decretal of Alexan- der III (X 1.30.I J which occurred in this same canonist's gloss on the De- ctetum.P Iohannes likewise ran into problems in attempting to reconcile the reservation of certain powers as beyond a legate's capabilities with the
that the Proprie auctoritates, unlike the Dictatus papae, made no mention of a papal prerogative to depose emperors. Thus Kempf concludes that the Proprie auctoritates postdated Gregory's death and was written sometime before 1123/24 by a moderate adherent to the Reform party. A pre-Cratian canonistic work-the Collectio canonum of Cardinal Deusdedit (compiled 1083-87) grouped various canones under legal maxims that were essentially statements of papal reserved powers; see Die Kanonessammlung des Kardinals Deusdedit, ed. Wolf von Glanvell [Paderborn, 1905), pp. 6-12.
12. Glossa ad Comp. Ill, 1.19.2 (= X 1.30.4), pp. 129-3°: "pontifici reservata .... " Pennington counts seventeen reserved powers in Iohannes' gloss; in my opinion two separate phrases in the gloss represent only one power, namely, the statements that "likewise only to him [the pope) alone can one appeal despite all other intervening jurisdictions," and "a legate cannot be approached by simple complaint," that is, be a court of first instance. See Kenneth Pennington, "A Study of Johannes Teutonicus' Theories of Church Government and of the Relationship between Church and State, with an Edition of His Apparatus to Compilatio Tertia" (Ph.D. diss., Cornell University, 1972), 1:160-61. Regarding Johannes' thought about legates in general see Kenneth Pennington, "Johannes Teutonicus and Papal Legates," Archivum historiae pontificiae 21 (1983): 183-94. 13. Glossa ordinaria on the Decretum, [ohannes Teutonicus's and Bartholomeus
Brixiensis's gloss as found in the Turin 1670 and Lyons 1671 editions ofthe Corpus iuris canonici, at C. 2S q. 2. c. 3: "Ptaetermitti." Here Johannes insisted that an archbishop of Canterbury's metropolitan power, not his legatine power, allowed intervention in mat· ters regarding a suffragan's clerics. This interpretation reversed the intent of the decretal text (X 1.30.1) itself and was refuted by Johannes' reviser Bartholomeus Brixicnsis. For a detailed discussion of this matter see Robert C. Pigueira, "The Canon Law of Medieval Papal Legation" (Ph.D. diss., Cornell University, 1980), pp. 77-79. To place [ohannes/ opinion within the context of his thought regarding legates see Pennington, "[ohannes Teutonicus," pp. 185, 187-88, 194. Pennington agrees that [ohannes' "interpretation of Cum non ignoretis [= X 1.3°.1] twisted Alexander's clear intention" and argues that this was deliberate, for the canonist's interpretation dovetailed with his distrust of "any attempt to give legates power which could undermine the jurisdictional rights of the diocesan bishop."
Papal Reserved Powers and Legatine Authority
content of a particular Decretum text le. r6 q. r c. p). There Gregory the Great permitted his responsales in Constantinople 1= apocrisiars whom decretists considered to be legates) to judge "concerning cases of crime or faith ... , if the matter is minor." Instead of using Gregory's own implied system of reserved powers to obviate this seeming contradiction, [ohan- nes opted for a legally unsatisfactory alternative, asserting lamely that legates could do these things but ought to refrain. Goffredus de Trano's list was even smaller-he repeated only three of
Johannes' items, while adding three more of his own: 14 dispensations in cases concerning benefices with cure of souls; dispensations for priests holding churches in which their own fathers had been the previous in- cumbents; the position of the pope as ultimate court of appeal. This last item was akin, but not identical, to Iohannes' claim that only the pope might be appealed to omissis mediis. Goffredus also alluded to the exis- tence of a larger list of reserved powers preserved in the form of a poem, whose incipit he cited: "testituit papa." As one may subsequently see, both Hostiensis and Bernard of Parma gave renderings of this same poem. Innocent IV merely repeated three of the categories of reserved powers already listed by Coffredus.P In view of the exponential growth of lists Ita be illustrated shortly) for papal reserved powers found in contemporary and later canonistic literature, one can assume that neither Goffredus nor Innocent IV wished to provide exhaustive lists in this context. Instead they presented exemplary material to illustrate the concept of reserved powers itself.
The most prolific list compilers among thirteenth-century decretalists were all active during or after Innocent IV's pontificate: Hostiensis, Ber- nard of Parma, and Durantis. The last two greatly depended on the first, who in his Summa amassed examples of sixty-three papal reserved pow- ers, for which see appendix 2 below. Some of his statements deserve special scrutiny here. Hostiensis disputed Johannes Teutonicus's assump- tion that appeals could not be made to a legate in neglect of all other inferior ecclesiastical tribunals.w Although previous decretalists had claimed that only the pope could grant a benefice not yet vacant, Hos- tiensis maintained that a legate de latere might nonetheless ex officio reserve to his own nomination the first benefice in an area to become vacant, even if this benefice should possess an ecclesiastical patron.!?
In addition, Hostiensis attacked Huguccio's belief (which Laurentius Hispanus and Johannes Teutonic~s also supported) that a legate needed a special mandate to convoke all types of councils. To be sure, the convoca-
14. Goffredus, fo1. pr-v: "Ingressus autem provinciam .... Item dispensare", fo1. I6r:…
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