completo ) Col. 15T5. Yen. 1578. 4
CHAP. II. ECCLES. LAW. §193. CANOX LAW. 211
tude, and yet he liad a right to boast tliat even liis intercepted letters would
be only an additional evidence of his perfect integrity, (k) lie was certainly
covetous of wealth, and his legates, in whom he contided too much, (l) were
still more so; but no presents ever turned him from his course. Ilis style
of living was as simple as that of Ciucinnatus, and his wealth was always
subservient to his purposes, and freely used in behalf of the crusades and
the poor. He was inflexible in his friendships, a father to widows and
orphans, and when acting as the Vicar of the Supreme Prince of Peace, he
was frequently a peacemaker between princes and their subjects. Misfor-
tune never subjected him to those severe trials in which great characters
are proved, but he availed himself of fortunate circumstances with all the skill
of an ancient Roman. By his exertions Rome became once more the head of
the civilized world ; although his greatest plans were unsuccessful, or contained
the germs of future failure. The legend, according to which the soul of this
great vicar of God was delivered with extreme difficulty from the claims of
hell, (m) merely shows that no mortal can possess unlimited power without
injury, or that even the highest are amenable to a master in heaven, and to
public opinion upon earth.
CHAP. II.— SOCIAL CONSTITUTION OF THE CHURCH.
§ 193. Gratian and his Predecessors.
Bailer ini Ac a.n{\<\. canonum Coll. {Leon. 0pp. Th. III. p. 2S9ss.) Stifif/ny, Oesch. d. Rom.
Eeclits im MA. vol. II. p. 273ss. — Anton. AuguMni de ernendatione Grat. 1. II. Tarracon. 15S7.
and often. J. If. Boe/nner, (\c varia Deer. Grat. fortuna. (At the comnienceuicnt of liis edit, of the
C. J. Can.) Sdrti, dc Claris archigymnasii Bononicns. Profe.ssorib. Bon. 17G9. f. Th. I. P. I. p. 247ss.
Riegger, de Grat (0pp. Frib. 1773.) and de Grat Col., incthodo et mendis. (Oblect. hist, et jur. Ulm.
1776.) Savigny vol 111. p. 475ss.
The Capitularies of Charles and Louis were collected in summaries and
separate pieces, and published by Ansegisus (827) in four books. The two
first relate to the affairs of the Church. To these were added the collection
of Jknedlctus Lcvita (845), in which were embraced not only the Capitula-
ries, but tlie statutes derived from all the judicial authorities of the time, (a)
The traditions of the ancient ecclesiastical laws and the work of Isidore
formed a basis from that time forward, to which the compilers only added
the more recent laws which had been generally received. The chronological
order was not required in a systematic arrangement, and was also abandoned
for want of a knowledge of the original authorities. Jief/ino., the abbot of
Prueia (d. 915), gave directions from older authorities respecting the visita-
tion of a diocese, and quoted the legal passages on that subject. Q>) Burchard.,
k) Boehmer, E«g«sta, p. 290.
I) Iftirter, vol. 11. p. 695, perfectly trustworthy in all which is hostile to Innocent
m) Thomas •CantimpraUna. Vita Lutgardis 11,7. (Raynald ad ann. 1216. No. 11.) differently
embellished near the close of the 15th cent in the Compil. chronologies. {Pistor. Th. I. p. 109S.)
a) An-seg. in PerU Th. III. p. 256. Bened. Lev. ib. Th. IV, 2. p. 17.
h) L. H. de synodal, causis et disciplines eccL ed. {Baluz. Par. 1671.) Wasserschleben, Lps. 1540.
Autiqua cann. CoL qua usus est Eegino Pramiens. e cod. Vat ed. A. L. Richter, Ber. 1S44.
212 MEDIAEVAL CnURCn HISTORY. PER. III. A. D. 800-1216.
Bishop of Worms (d. 1025), and /i-o, Bi.sliop of Chnrtrcs (d. 1115), have col-
lected together the Avhole stock of genuine and spurious laws, though they
have arranged tliem in a very arbitrary manner, (r) But Avhen the Roman
law began to receive much academical study, Gruthtn^ of the convent of St.
Felix at Bologna, became desirous of enlisting a similar interest in behalf of
the canon law, and (about 1143) (d) wrote his Text Book and Manual, contain-
ing a system of ecclesiastical law on an historical basis. In this he incorpo-
rated all the laws then regarded as in force, deriving his materials principally
from the previous collections, which he sometimes compared with the origi-
nal authorities, and even condescended to borrow some of the most liberal
statutes from the decrees of the Greek synods. The arrangement of the
work was logical, but to some extent dependent upon the historical matter,
and each division was prefaced by legal principles generally derived from
history, and connected by intermediate clauses composed by Gratian himself.
It consisted principally of historical documents, especially laws and legal
opinions of all kinds taken from ecclesiastical and secular authorities, and
grouped together in a fragmentary manner, but copied with verbal correct-
ness. Gratian generally adopted the historical errors of his predecessors, and
seldom reconciles the older with the more recent enactments. Although
this work never received the papal sanction, it possessed so high a character
for science and academic convenience, that ever since, so far as its historical
elements are concerned, it has been received as a manual of canonical law
for the whole Western Church. It has also served as the basis on which,
Avith the exception of some errors which historical criticism has discoveredj
ecclesiastical jurisprudence has been principally developed, {e)
§ 194. The Church and the State.
Mondtag, Gesch. d. deutschen staatsb. Freih. o. d. Eecbte d. genieineu Freien, d. Adels n. d.
Kirclien. Bamb. u. W'urtzb. 1S12. IluUmann, Gescb. d. Urspr. d. Stiinde in Deutscbl. 2 ed. Berl.
1830. vol. I. Sugenheim, Staatslebcn d. Clerus im Mittelalt. Berl. 1S39. vol. I.
The process commenced during the migi-ation of the northern nations
was completed during the stormy period of the ninth and tenth centuries.
This w^as the process by which the German republics of free warriors and
landed proprietors became merged into a feudal system of complicated sov-
ereignty and dependence. The silent power of the Church also gave its
sanction to the rights of man while claiming those of the Christian. When
the Roman empire had been revived in the German nation by the Othos, the
emperor was regarded as the political head of Christendom in the West, and
the holy Roman empire as a divine institution. The emperor was elected by
the German princes and bishops, but he was required to strengthen the
c) Burchardi Decretor. 1. XX Par. 1549. and often.— 7t'o, Pannormia, 1. VIII. ed. Melch. de
Vosmediano, Lov. 1557. Greater revisions by another liand, in 17 vols. : Decretiim in 0pp. ed.
Fronto,Vax. \&iT.1Th. f.—Aiig. Theiner, u. Ivo's vermeintl. Decret. Mentz. 1882. The opposite
view in F. G. IT. Waaserscldehen, Beitr. z. Gesch. d. vorgratian. KKechtsqnellen. Lpz. 1839.
t?) Concordia discordantium canonum, 1. 111. Even in IISO it is cited as: "in Decrctis," and
later generally as the " Decretum." Printed as the First Part of the Corpus J. canonici.
e) Guido Fanoirolm, de clavis leg. interpretib. Ill, 6. Lps, 1721. 4. Savigny, vol. III. p. 519ss.
CHAP. ir. ECCLE3. LAW. §194. STATE .fc CHURCH. 213
power of the empire in Italy, and to ol)taiu posr^essiou of the iniperial crown"
which the popes seldom conferred without requiring entangling oaths and a
subtle confession of faith. {(() But while the im])erial power was destroj'ed
in Italy, and every effort to secure it as an hereditary possession was frus-
trated, the great vassals became firm^- established as princes of the empire,
and their fiefs became hereditary. As long as the election, or at least
the investiture of the bLshops depended upon the emperor, they were
Ids natural allies in opposition to the secular princes. The result "was-,
that in all those towns in which episcopal sees existed, the imperial favor
to them was so great that the jurisdiction of the courts was superseded
by them, and episcopal immunities (corpora sancta) sprung up. Some of
the bishops were even invested with dukedoms. In other parts of Germany
the bishops were gradually deprived of their political influence, and some
even became dependent upon the higher crown vassals. Eight struggled
every where with might, and the royal power with the great vassals.
The Church often found o})portunity to mingle in these struggles, and some-
times it was compelled to do so, but not unfrequently the confusion was in
this way only increased. In particular instances it was repeatedly overpow-
ered, or compelled to resort to begging, in which it sometimes persevered
with an Indian's obstinacy. (?/) Finally, by collecting together all its strength
in the single phalanx of the papacy, it became so completely victorious that
it threatened to absorb all the prerogatives of the state. And yet the old
legal princii)le (§ 122), that God has divided all power on earth between the
emperor and the 2}('1^(, was received according to its German construction,
consistently with the later doctrine, that the emperor carried the secular
sword as a feudal investiture from the pope. It was even conceded that
the civil power might be peculiar in its nature, and the world might be com-
mitted to the government of princes, (c) and that tlie pope, by virtue of the
sacerdotal and royal jM-erogatives which he had received from Clirist, should '
only interfere when they exceeded their just powers. Against the scandals
of which the princes in those rude times were not unfrequently guilty, the
provincial bishops were generally unable to oppose any effectual resistance.
Those, therefore, who acknowledged no law superior to themselves, the pope
summoned in the name of God to answer at his bar. The temporal inherit-
ance of St. Peter was regarded as indispensable to the personal independence
of the pope, but it involved him in all the Italian convulsions, and was only
a precarious possession in opposition to the claims of the emperor, the great
lords, and the municipalities. The Romans, them.selves straiten.ed between
the pojie and the emperor, never possessed any thing but a mere caricature
of freedom.
a) E. G. Pertz Th. IV. p. 188.
h) Coinp. liaumer, Ilolienstauf. vol. VI. p. 107. with Bohlen Indicn. \o\. 1. p. 2S.'>.
c) The old view: Siicfu-ennpiegel, ydl. I. art I. The new: SchivaJietinpier/pl, Einleit. (FrkC
1566. f.) P. II. conip. Honor. Ill, in Raumer, vol. VI. p. 60. Grimm, Bridantes Beschcidenli. Giitt
1S31 p. LVII.
214 MEDIAEVAL CnrRCII HISTORY. PER. III. A. D. SOO-1216.
§ 195. Ecclesiastical Power of the Papaci/.
The general belief that the bishopric of the pope was Tiiiiversal, fre-
quently gave a show of justice to the efforts that on every opportunity were
made to extend his power. Since the time of Gregory, the episcopal power
was also regarded as springing wholly from the papal. It was, however,
thought that, like the emperor in the civil department, the pope .should not
suspend the exercise of the subordinate ecclesiastical powers, but rather pro-
tect each of them in their peculiar duties, and the pope was reminded by St.
Bernard that the papal was not the only power which had been instituted
by the apostles. The bishops especially looked upon their pastoral oflBce in
their own dioceses as absoluteh' inviolable, and they simply regarded abso-
lution as especially efficacious Avhen obtained from Rome, (a) In important
cases dispensations were with increasing eagerness sought for from Eome,
and in all judicial causes In the Church the Roman Curia was looked upon as
the court of ultimate appeal. The office of supreme judge, in which he was
responsible only to God, and the general reputation which he had obtained
of being the most perfect depositary of the pure faith, produced in some
instances a belief that the pope was infaUihle. (Luke 22, 32 was appealed
to.) This view, however, was never entertained without limitations, or ad-
vanced without opposition. The popes always acknowledged the articles of
faith and the established laws of the Church as the guide and limit of their
powers. Tliey were far from appealing to their own arbitrary authority, but
they looked to the law of God, or what was generally regarded as such, for
the sole rule of their conduct. Q>) Tlie PalUuvi was considered indispensa-
ble to the performance of the archiepiscopal functions, and Gregory based
upon this a demand that all the archbishops should swear allegiance to him
from whom it was received. The same demand Avas gradually made of all
bishops whenever their elections were confirmed by the popes. At first this
confirmation Avas sought only when an election was disputed, but soon after
the time of Gregory it was considered essential to aH elections, and supplied
occasions for innumerable interferences in the business of the dioceses. Gre-
gory himself still adhered to the freedom of the canonical choice, (c) Ncav
dioceses were erected, and changes in the relations of the old were to he
made only with the consent of the pope. When appointments were made
to other benefices, the pope interfered only in particular instances, and by
way of recommendation, although such recommendations were nearly equiva-
lent to commands. The bishops were generally, by their political position,
beyond all danger from the violence of the popes, who had a right to exer-
cise jurisdiction over them only in cases of manifest crime, and with the co-
operation of the Synods. But as a membership in the principal councils
depended frequently upon the papal will, very few of them ever opjxised or
thwarted Avhat Avas knoAvn to be the desire of the pope, and most of them
a) Cone. Salegunstad. a. 1022. c. IS. (Mansi Th. XIX. p. 898.) Greg. VII. I. VI. Ep. 4. (lb. Th.
XX. p. 260.) Comp. De Marca, de Sacerd. et Imp. IV, 8, 2.
V) Gratian : P. I. Dist XL. c. 6. and P. IL Cans. XXXII. Quest. T. c. la Innoc. JIT. de consecr.
Pont Senn. 8. Comp. Ilase, Streitschr. 11. 2. p. 90sa.
f) Greg. VII. 1. Y. Ep. 11. L VI. Ep. 14.
CHAP. ir. ECCLKS. LAW. §195. PKIMACY. § lOG. CAltDINALS. 215
were as.sembled only to receive and perform it. The ascendency of the pope
above councils was claimed with great caution, and only in some occasional
instances. His authority was much increased by the pi/r/rir/Kcjes to tlie eter-
nal city, for even in the midst of her ruins, the glory of the ancient and tlie
eacredness of the modern world combined with her wonderful attractions to
render it a place of concourse for the people and princes of the West. The
first instance of the canonization of a person at a distance was that of
Ulrich, the holy Bishop of Augsburg (993), and was occasioned by peculiar
external circumstances. In the twelfth century, this privilege, which in
itself may be regarded as trifling, but became important on account of the
idea from Avhich it sprung, and to Avhose realization it contributed, (d) was
claimed as exclusively belonging to the pope. A papal Coronation is no-
where met with until after the time of Nicolas I., and on the first occasion
of the kind on which they were both present, the emperor led the animal on
which the pope was carried. The kissing of the pope's foot sprung from an
Italian custom. In the estimation of the i)eople it was not an idle display,
but very significant as the offering of pious humility to Him whom the pope
represented. By means of Legates^ the papal power became almost onmi-
present. The rapacity of these legates, the venality of the ecclesiastical
courts, and the illiberal Italian spirit of some of the popes, began to be mat-
ters of public complaint and derision. But as a general thing, the affections
of the people were still firmly attached to the papacy, and the blessings
which it procured in the unity, freedom, and reformation of the Church
were generally acknowledged.
§ 196. Tlie Cardinals.
nomassini vet et nov. Ecc. <liS(\ P. I. 1. II. c. llSss. Jiuddi'usdc oTiix. cardinalitiae dign.
Jena. 1693. 12. Jfunitori, de Cardin. institutione. (Antiqi]. Ital. iiitd. aovi. vol. IV. p. 1.t2.)
In the primitive Church the cardinals were the ordinary spiritual oflicers
of the Church (incardinati). Even after the tenth century they were the
canons of a cathedral. But in the Romish sense of the term during the
eleventh century, the cardinals were the highest spiritual oflicers (i. e., the
deacons and presbyters) of the Church in Rome, and seven suburhican bishops
whose sees Avere then for the most part much reduced in size. («) These car-
dinals, in opposition not only to the Roman people and the emperor, but gradu-
ally even to the other clergy, maintained that it was their sole prerogative to elect
the pope (§ 180). Alexander III. ordained (1179) that no one could be a legally
elected pope who had not received the votes of two thirds of the legally
assembled cardinals. {1} The cardinals were generally selected by the pope
fi'om among the Italians, and constituted his ecclesiastical and civil council.
Though they possessed no power to control any person of eminent talents in
</) Mansi vol. XIX. p. IGOss. Mahillon, Acta SS. Ord. Ben. Saec. V. Praef. N. 99.— Deer. Greg.
I. IIL tit. 45. c. 1. — Lamheriini, de server. Del canonizationo 1. IV. {Benedicti XIV. 0\)\\ Horn.
1747. vol. I.-IV. 4.) Ileilmann, Consecratio Sanctorum ad a.iruSiidiaii.'; veleruiii Iloiu. eflicta.
Hal. 1754. 4.
o) JBunsen, Hlppol. p. 152s.
b) Cone. Later. IIL c. 1. (^Mansi vol. XXII. p. 217.) [Lando7i, p. 292.]
216 MEDIAEVAL CIIUECU HISTORY. PEE. IIL A. D. SOO-1210.
the papal chair, their influence was generally suflicient to insnre a certain
uniformity of action in oppo.sition to those sudden changes which individuals
would have introduced. In consequence of their rank ahove the archhishops,
the pope was surrounded with a courtly splendor, and an opportunity was
aflforded hy which he could reward great services, and place men of eminent
talents under obligations to himself.
§ 197. The Ulshops, and the JJibhoj/s^ Chapters.
So high did the pope stand in the estimation of the people, that the
bishops lost nothing in dignity by their subordination to him. On the other
hand, it was by his assistance that they were generally, able to preserve their
independence in opposition to the princes of the various countries in which
they lived. There were a few great bishoprics Avhose Chorhiskops had from
the most ancient times acted as the bishops' vicars in all spiritual atfairs
with an authority which was uncertain and often usurped by the princes,
but never dangerous to the bishopric, (a) The right of the bishop to ap-
point all ecclesiastical otficei-s in his diocese, was limited by the right of
patronage^ which even a layman could lawfully acquire by founding a
church or a prebend. (V) The arch'bishop>s^ besides the power of presiding
in the synods of their own dioceses, merely possessed that of confirm-
ing and ordaining the bishops, in which, however, they were obliged to have
the concurrence of the popes or their legates. They generally possessed
very extensive dioceses, and on account of their rank they acquired special
political privileges. At the coronation of Otho I. the three Elienish arch-
bishops for the first time took precedence of all the officers of the empire.
Some of the other archbishops acquired a kind of primacy over a whole
kingdom, as Adalbert of Bremen (d. 1072), a man of a brilliant mind, but
consistent only in his vanity, and ready to sacrifice the whole Church to the
promotion of the interests of his see, in which he hoped to become a patriarch
of the Norti!. (c) In such instances, however, the popes always hastened to
form another archbishopric in the same country to guard against the
establishment of a national patriarchate. In many dioceses, when their
bishops were to be appointed, the nobility and people of the archbishopric con-
tended with the king and neighboring bishops for the right of choice, and not
unfrequently those who were appointed by the latter were most terribly re-
pulsed, (d) After a gradual attainment of their exclusive riglits in this matter,
the canons obtained by their prerogative and their prospect of the election, a
position more and more independent of the bishop, and secured to them by
treaties. The canonical life was generally abandoned during the tenth century,
but some zealous popes and bishops insisted upon its re-establishment. In the
midst of much contention two classes of canons were then formed (canonici
saeculares and regulares), and even monks became possessors of some chap-
ters. The canons were not all clergymen, but they were required by the
a) Balm. Capitul. vol. I. p. 327s. SSOs. Against Gfrorer: W. B. Wenck, d. frank. Eeich. nach dem
Vertr. v. Verdun. Lpz. 1S51. Append. 8.
V) IT. L. Lippert, L. v. Patronat. Giess. 1S29. J. Kaim, KPatronat. Lps. 1S45. vol. I.
c) Adam. Biem. 1. III. comp. Jaffe p. 571. d) E. g. Lambert. Schofn. ad. ann. 1066.
CHAP. I r. ECCL.VS. LAW. § 197. ClLVrTERS. § 19S. JURISDICTION. 217
synodal reg;u]ations to have at least a siiLdeaoon'.s cliargo. Any vacancies
which occurred in the Chaj-)tcr were supplied generally by a vote of its own
members, from whose number its various oflicers were chosen. A dean or
prior, sometimes both, presided over tlie whole. After the close of the
eighth century, it gradually became common to divide the large dioceses into
archdeaconries, and these again into rural chapters. The orhdcacons were the
regular and sometimes even tlien the troublesome deputies of the bishops, but
they were not regarded as indispensable to a complete chapter. When the ca-
nons were absent for a long period, they now began to hire vicars to officiate in
their ])laces, and to mark the liours by singing. The livings connected with
the cathedrals were then sufficient to become objects of cupidity to the no-
bility, Avhose still increasing importance enabled them to take possession of
most of the benefices. Against the coteries formed by a petty aristocracy,
wealthy proprietors, patronizing, relatives, and provincial prejudices, the
poi)es endeavored to maintain the liberal principles of Christianity, which
asserted the derivation of all men from the same original ancestry, pro-
nounced the poor blessed, acknowledged no kindred but the children of God,
and recognized no birthright in tlie kingdom of God but that which is ac-
quired in regeneration, (c) The domestic chaplains employed by the nobility
easily made themselves independent of the bishops by a servile dependence
upon their employers. (/)
§ 198. Ecclesiastical Jurisdiction.
Greg. Deer. II. de judiciis. Biener, Beitrage z. Gosch. des Inquisitionsproc Lpi!. 1827. St.
Titrck, de jarisdictionis civ. per med. aevuni cum eccl. conjunctae orig. et pro^essu. Monast. 1832
1. The clergy could be tried only before the episcopal tribunal. The
civil authorities were utterly unable to enforce their penal code in opposition
to the indulgence or partiality of this court, except in those instances in
which the wounded honor of the Church itself required the surrender of
the culprit. Tlie highest ecclesiastical penalty was a hopeless banishment to
a convent, and sometimes a walling in of the culprit. 2. The ecclesiastical
court also claimed jurisdiction over all matters more or less intimately con-
nected with the Church, or with religion in general, such as marriages,
wills, oaths, usury, and all legal causes relating to the crusades. In conse-
quence of this confusion of moral and legal subjects, this court invaded very
considerably the sanctuary of the family. Ecclesiastical laws were formed
against nearly all public offences, and when might every where prevailed
against right, were powerful enough to extort respect from those who would
have despised every human authority. The cause of humanity and of
national rights formed also a powerful advocate in the Church by means of
these penal courts. 3. A few individuals only arrogated to themselves the
right to interfere in every municipal cause when requested by one of the
«) Innoc. III. 1. VI. Ep. 121. IX. 130. More nnmerous examples can be found in the next
period, c. g. Greg. Deer. III. tit 5. c. 37. comp. Seufert, Gesch. d. deutscli. Adds in d. Donicapiteln.
1790. Ilarter, Innoc. vol. III. p. 236.
/) Agohard, do privileg. ct jure sacerdotuin. p. 123.
218 MEDIAEVAL CIIUECII IIISTOPvY. PER. III. A. D. S00-121G.
party, or -when the oflfence charged was of a moral nature (denunciatio evan-
gelica).* The ancient custom of the synodal courts was gradually restrained
by the introduction of the Eoman law.
§ 199. Proiieriy of the Church