BENEDICTIONS OF THE ARCHBISHOPS IN THE PRESENCE OF THE EMPEROR.
When the mass is celebrated in the presence of the emperor or king, the
archbishops of Mainz, Trier, and Cologne, or any two of them, being
present, the archbishops shall perform the services on the different
days in turn in the order of their consecration, each one on his day
officiating in the confession which is said before the mass, in the
presenting of the gospel to be kissed, in the giving of peace after the
_Agnus Dei_, in the benedictions after the mass and before meals, and in
returning thanks after meals. Each archbishop on his day should invite
the other archbishops to participate in the services, to set a good
example to men by honoring one another.
PART II.
(Published at Metz. December 25, 1356.)
CHAPTER XXIV.
1. If any person shall have joined in a conspiracy or taken oath to join
in a conspiracy with any other persons, princes, knights, or private
persons, to slay one of the electoral princes of the holy empire, he
shall be judged guilty of offence against the majesty of the emperor,
and shall be executed, and all his goods shall be forfeited to the royal
treasury; for we regard the electoral princes as members of our own
body, and visit offences against them with the same severity as against
ourself. [The rest of the chapter is devoted to the effects of the
confiscation and attainder upon children and heirs of criminals, etc.]
CHAPTER XXV.
If it is proper that the integrity of the ordinary principalities should
be preserved, for the better securing of justice and peace for the
subjects, it is even more important that the great principalities of the
electoral princes should be kept intact in their domains, honors, and
rights. Therefore we determine and decree by this imperial edict that
the lands, districts, fiefs, and other possessions of the great
principalities, namely, the kingdom of Bohemia, the palatinate of the
Rhine, the duchy of Saxony, and the mark of Brandenburg, should never
under any circumstances be separated, divided, or dismembered. In order
that they may be preserved in their integrity, the first-born son in
each case shall succeed to them, and shall exercise ownership and
dominion in them, unless he be incapacitated for ruling by reason of
imbecility, or other notorious defect. In that case, he shall not be
allowed to inherit, but the succession shall go to the nearest male lay
heir on the paternal side.
CHAPTER XXVI.
1. On the day of the imperial diet, all the electoral princes shall
proceed to the imperial palace about the first hour, and shall assist
the emperor or king in donning the insignia; then they shall proceed on
horseback to the place of the diet with the emperor or king, preserving
the order of precedence indicated above. The archchancellor of the
kingdom in which the diet is held shall bear the seals of the empire or
kingdom upon a silver staff; the secular princes shall bear the sceptre,
globe, and sword, as indicated above; the German and Lombard crowns
shall be borne, in this order, by princes of inferior rank named for
this office by the emperor, immediately before the archbishop of Trier,
who precedes the emperor, now wearing the imperial crown.
2. The empress or queen, clad in her insignia, shall also proceed to the
place of the diet with her officials and ladies, taking her place behind
the emperor or king and behind the king of Bohemia, who follows
immediately after the emperor or king.
CHAPTER XXVII.
THE OFFICES OF THE ELECTORAL PRINCES AT THE DIET.
1. After the emperor or king is seated on his throne, the duke of Saxony
shall appear before the place of the diet on horseback with a silver
staff and a silver measure, each of the value of twelve marks in silver,
and shall fill his measure with oats from a heap that has been placed
before the building in which the diet is held. This heap of oats shall
be as high as the breast of the horse on which he rides. He shall then
give this measure of oats to the first servant that approaches. Then he
shall thrust his staff into the heap of oats and go away, and the
vice-marshal, the count of Pappenheim, or in his absence the marshal of
the court, shall distribute the oats. After the emperor or king has
taken his place at the table the ecclesiastical electors, supported by
other prelates, shall stand before the table and one of them shall
pronounce the blessing, according to the order of precedence established
above; after the benediction the chancellor of the court shall present
the seals to the archbishops, and they shall bear them to the emperor,
all three touching with their hands the staff on which they are
suspended, the archchancellor of the kingdom in which the diet is held
marching in the middle and the other two on either side of him. They
shall lay the seals reverently before the emperor or king, who shall
immediately return them to the archbishops. The archchancellor of the
kingdom in which the diet is held shall wear the great seal of the
empire about his neck during the dinner and until he returns to his
abode. The staff, which shall be of silver of the value of twelve marks,
and the seals, shall be handed over to the chancellor of the court. The
archbishop who bears the great seal shall return this also to the
chancellor of the court by one of his own servants, mounted on a horse
which shall be presented to the chancellor of the court as a perquisite
of his office and as a token of the love of the archchancellor.
2. The margrave of Brandenburg, the archchamberlain of the empire, shall
approach on horseback, bearing water in silver basins of the value of
twelve marks, and a beautifully embroidered napkin, and shall dismount
and offer the emperor or king water to wash his hands.
3. The count palatine of the Rhine shall approach on horseback, bearing
four silver dishes, each of the value of three marks, filled with food,
and shall dismount and carry them in and place them on the table before
the emperor or king.
4. Then the king of Bohemia, the archcupbearer of the empire, shall ride
up, bearing a silver cup or goblet, of the value of twelve marks, filled
with wine and water mixed, and shall dismount and offer the goblet to
the emperor or king to drink.
5. When the offices have been performed by the secular electoral
princes, the vice-marshal, the count of Falkenstein, shall receive the
horse and the silver basins of the margrave of Brandenburg; the master
of the kitchen, the count of Nortemberg, shall receive the horse and the
dishes of the count palatine of the Rhine; the vice-cupbearer, the count
of Limburg, shall receive the horse and the goblet of the king of
Bohemia; the vice-marshal, the count of Pappenheim, shall receive the
horse, the staff, and the measure of the duke of Saxony. If these
officials are not present, the ordinary officials of the court shall
receive these gifts in their places.
CHAPTER XXVIII.
(Description of the banqueting table, etc.)
CHAPTER XXIX.
1. We have learned from records and traditions, that it has been the
custom in the past to hold the election of the king of the Romans in
Frankfort, the coronation in Aachen, and the first diet in Nürnberg;
therefore we decree that in the future these ceremonies shall be held in
these places, unless there shall be some legitimate obstacle....
CHAPTER XXX.
THE RIGHTS OF THE OFFICIALS OF THE COURT WHEN THE PRINCES OF THE EMPIRE
RECEIVE THEIR FIEFS.
(Special fees paid by the princes to these officials.)
CHAPTER XXXI.
(Requiring the secular electors to learn the Italian and Slavic
languages.)
160 a and 160 b. The Acquisition of the Mark of Brandenburg by the
Hohenzollern Family, 1411.
160 a. The Cities of the Mark Make Complaints to Sigismund, 1411.
(German.)
Magdeburger Schöppenchronik, edited by Janicke, in Chroniken der
deutschen Städte, VII, pp. 331 f.
The importance of the acquisition of the mark of Brandenburg by a member
of the Hohenzollern family could not at that time have been foreseen.
The mark, being a great sandy marsh, did not seem a valuable possession,
and the nobles, especially the great von Quitzow family, were
devastating it with their feuds. The cities, here as everywhere else in
Germany, were for order and peace. It seems to have been due in part to
their complaints and appeals to Sigismund that he chose the able and
vigorous Frederick of Hohenzollern, burggrave of Nürnberg, as governor
of the mark. This was an important event in the fortunes of the
Hohenzollern family. Frederick and his successors managed their affairs
so well that Brandenburg became the basis on which the power of the
family was built up.
In the same year that Jost, the margrave, died, the king of Hungary,
Sigismund, who had been elected king of the Romans, sent messengers to
the cities of the old and new marks to Magdeburg and ordered them to
come to Berlin on the Sunday of Midlent to hear his will concerning
them. The king's representatives, John Waldaw, _præpositus_ of the
church at Berlin, and Wend von Eylenburg, met the aldermen of the cities
at Berlin at the appointed time and asked them: "Since Jost, the
margrave, is dead and the king is the hereditary lord of the land, are
you willing to recognize his lordship over you and to support him?" And
the aldermen answered him that they were. The cities and the nobles of
the land were then ordered to come to Hungary and do homage to the king
on the next St. Walpurgis day (May 1). The cities sent representatives
from among their aldermen, but none of the nobles of the land came
except Jaspar Gans von Putlitz. They did homage to the king and remained
with him so long that they did not reach home until St. James's day
(July 25). They complained to the king about the wretched condition of
the land and its troubles, and especially about the von Quitzows and
certain other nobles and their supporters who controlled the land by
means of the castles of which they had got possession, and who were
doing great damage to the land and were carrying on war with the
neighboring lords and their lands. They besought the king to take
measures to prevent such war, violence, and damage. The king then said
to the aldermen that he himself could not come into the mark because he
had been chosen king of the Romans, and he must therefore endeavor to
rule the realm and to restore unity to the church [_i.e._, end the
schism]; but he would send them a governor who would be able to help
them. He then named the noble prince, Frederick, burggrave of Nürnberg,
as the governor of the mark. This rejoiced the aldermen very much and
restored their confidence. They were well pleased, and left the king and
joyfully returned home.
160 b. Sigismund Orders the People of the Mark to Receive Frederick of
Hohenzollern as their Governor, 1412. (German.)
Riedel, Codex Diplomaticus Brandenburgensis, III, p. 178.
We, Sigismund, etc. Dear and faithful subjects: We hereby inform you
again that we have made the noble Frederick, burggrave of Nürnberg, our
dear uncle, counsellor, and prince, the head and governor of the whole
mark of Brandenburg. We have given him letters to that effect. And when
your representatives came to Ofen and did homage to us on behalf of the
nobles and cities of the mark we orally commanded them to receive the
said Frederick. Therefore we again strictly command you to receive him
without any delay or opposition and to render him the homage which you
owe us as your hereditary margrave, and pay homage to him according to
the instructions which are contained in the letters which we have given
him. He will confirm and renew all your liberties, rights, good customs,
and charters, and preserve their validity just as I have done. Given at
Ofen, 1412, etc.
V. THE CHURCH FROM 1250 TO 1500
161. Bull of Nicholas III Condemning all Heretics, 1280.
Bullarium Romanum, III, ii, pp. 26 f.
In spite of the vigorous efforts of the popes to destroy heresy (see
nos. 116-118) and all that the inquisitors could do, heresies increased.
This bull of Nicholas III shows that more vigorous measures were being
used.
Nicholas, etc. We hereby excommunicate and anathematize all heretics,
the Cathari, Patareni, the Poor Men of Lyon, Passageni, Josepheni, the
Arnoldists, Speronists, and all others by whatever name they may be
called. (1) When condemned by the church, they shall be given over to
the secular judge to be punished. Clergymen shall be degraded before
being punished. (2) If any, after being seized, repent and wish to do
proper penance, they shall be imprisoned for life. (3) We condemn as
heretics all who believe the errors of heretics. (4) We decree that all
who receive, defend, or aid heretics, shall be excommunicated. If anyone
remains under excommunication a year and a day, he shall be proscribed.
(5) He shall not be eligible to hold a public office, or to vote in the
election of officials. (6) His word shall not be accepted. (7) He can
not serve as a witness nor can he make a will. (8) He shall not succeed
to an inheritance. (9) He cannot bring suit against anyone, but suit may
be brought against him. (10) If he is a judge, his sentences shall be
invalid, and he shall not be permitted to hear cases. (11) If he is an
advocate, he shall not be permitted to perform the duties of his office.
(12) If he is a notary, the documents which he draws up shall be invalid
and condemned with him. (13) If he is a clergyman, he shall be deposed
from his office and deprived of every benefice. (14) Those who associate
with the excommunicated shall themselves be excommunicated and properly
punished. (15) If those who are suspected of heresy can not prove their
innocence, they shall be excommunicated. If they remain under the ban of
excommunication a year, they shall be condemned as heretics. (16) They
shall have no right of appeal. (17) If judges, advocates, or notaries
serve them in an official way, they shall be deprived of their office.
(18) The clergy shall not administer to them the sacraments, nor give
them a part of the alms. If they do, they shall be deprived of their
office and they can never be restored to it without the special
permission of the pope. Whoever grants them Christian burial shall be
excommunicated until he makes proper satisfaction. He shall not be
absolved until he has with his own hands publicly dug up their bodies
and cast them forth, and no one shall ever be buried in the same place.
(19) We prohibit all laymen to discuss matters of the catholic faith. If
anyone does so, he shall be excommunicated. (20) Whoever knows of
heretics, or those who are holding secret meetings, or those who do not
conform in all respects to the orthodox faith, shall make it known to
his confessor, or to someone else who will bring it to the knowledge of
the bishop or the inquisitor. If he does not do so, he shall be
excommunicated. (21) Heretics and all who receive, support, or aid them,
and all their children to the second generation, shall not be admitted
to an ecclesiastical office or benefice. If any such have been admitted,
their admission is illegal and invalid. For we now deprive all such of
their benefices forever, and they shall never be admitted to others. If
parents with their children have been freed [from excommunication], and
their parents afterwards return to the heresy, their children are, by
their parents' act, again brought under excommunication.
162. The Bull "Clericis Laicos" of Boniface VIII, 1298.
Tosti, Histoire de Boniface VIII, I, pp. 395 ff.
In theory all ecclesiastical persons and possessions were immune from
secular taxation, but the pope frequently permitted temporal rulers to
levy a tax on them for the aid of the state in times of public
necessity. At the command of the pope such taxes had been assessed (1)
to carry on the crusades (the Saladin tithe), (2) to make war on
Frederick II, (3) to put down the heresy of the Albigenses, (4) to
resist Peter of Aragon when he attacked Sicily, etc. It frequently
happened that the large sums raised for the crusades went into the
king's treasury, and were spent for other things. The kings, especially
of England and France, found this a very convenient way of raising
money. The immediate cause of the publication of this bull was the heavy
assessments which the kings of England and France had just made on their
clergy. Boniface recognized that the immunities and liberties of the
church were thereby being destroyed. In spite of the protests of both
pope and clergy, neither king restored the money or ceased to levy
taxes. New names for them were so skilfully invented, and such arguments
were used, that the clergy could not refuse to pay without seeming to be
disloyal and unpatriotic. Boniface VIII issued this bull to put a stop
to the taxation which he regarded as the pillaging of the churches. It
must be observed that the pope does not prohibit such taxes altogether.
He preserves his authority and the immunities of the church by retaining
the right to sanction whatever taxes may be assessed on the clergy and
the possessions of the church.
The kings of both England and France were engaged in policies which
necessitated large expenditures, and hence they were in need of money.
Besides, they were trying to centralize all authority in their hands and
consequently found these ecclesiastical immunities a great obstacle in
their way. We have here an evidence that the national governments had
begun their long struggle against the temporal authority of the pope,
for the question as to whether the king may tax the church and clergy
was one phase of this struggle.
It is said that in times past laymen practiced great violence against
the clergy, and our experience clearly shows that they are doing so at
present, since they are not content to keep within the limits prescribed
for them, but strive to do that which is prohibited and illegal. And
they pay no attention to the fact that they are forbidden to exercise
authority over the clergy and ecclesiastical persons and their
possessions. But they are laying heavy burdens on bishops, churches, and
clergy, both regular and secular, by taxing them, levying contributions
on them, and extorting the half, or the tenth, or the twentieth, or some
other part of their income and possessions. They are striving in many
ways to reduce the clergy to servitude and to subject them to their own
sway. And we grieve to say it, but some bishops and clergy, fearing
where they should not, and seeking a temporary peace, and fearing more
to offend man than God, submit, improvidently rather than rashly, to
these abuses [and pay the sums demanded], without receiving the papal
permission. Wishing to prevent these evils, with the counsel of our
brethren, and by our apostolic authority, we decree that if any bishops
or clergy, regular or secular, of any grade, condition, or rank, shall
pay, or promise, or consent to pay to laymen any contributions, or
taxes, or the tenth, or the twentieth, or the hundredth, or any other
part of their income or of their possessions, or of their value, real or
estimated, under the name of aid, or loan, or subvention, or subsidy, or
gift, or under any other name or pretext, without the permission of the
pope, they shall, by the very act, incur the sentence of
excommunication. And we also decree that emperors, kings, princes,
dukes, counts, barons, _podestà_, _capitanei_, and governors of cities,
fortresses, and of all other places everywhere, by whatever names such
governors may be called, and all other persons of whatever power,
condition, or rank, who shall impose, demand, or receive such taxes, or
shall seize, or cause to be seized, the property of churches or of the
clergy, which has been deposited in sacred buildings, or shall receive
such property after it has been seized, or shall give aid, counsel, or
support in such things either openly or secretly, shall by that very act
incur the sentence of excommunication. We also put under the interdict
all communities which shall be culpable in such matters. And under the
threat of deposition we strictly command all bishops and clergy, in
accordance with their oath of obedience, not to submit to such taxes
without the express permission of the pope. They shall not pay anything
under the pretext that they had already promised or agreed to do so
before the prohibition came to their knowledge. They shall not pay, nor
shall the above-named laymen receive anything in any way. And if the
ones shall pay, or the others receive anything, they shall by that very
act fall under the sentence of excommunication. From this sentence of
excommunication and interdict no one can be absolved except in the
moment of death, without the authority and special permission of the
pope....
163. Boniface VIII Announces the Jubilee Year, 1300.
Tosti, Histoire de Boniface VIII, II, pp. 467 f.
Boniface, bishop, etc. We know that in times past generous indulgences
and remissions of sins have been granted those who should come to the
illustrious churches of the prince of the apostles [St. Peter's in
Rome]. Our office requires us to desire and most gladly to procure the
salvation of all, and so, regarding all such remissions and indulgences
as valid, by our apostolic authority we confirm, approve, and renew
them, and reinforce them with this present writing. In order therefore
that the most blessed apostles, Peter and Paul, may be more highly
honored in that the faithful devoutly visit their churches, and that
those who do so may feel that they are filled with spiritual gifts, we,
through the mercy of omnipotent God and trusting in the merits and
authority of his apostles [Peter and Paul], at the advice of our
brethren and in the fulness of our apostolic power, grant the fullest
and broadest forgiveness of all their sins to all who, during the whole
of this 1300th year, and to all who, in every hundredth year to come,
shall reverently come to these churches and truly repent and confess. We
decree that those Romans who wish to participate in this indulgence
shall visit these churches at least once a day for thirty days, either
consecutively or at intervals, and all who are not Romans shall visit
them in the same way for fifteen days. But the more devoutly and
frequently anyone visits them, the more surely will he deserve and
obtain the indulgence.
164. The Bull "Unam Sanctam" of Boniface VIII, 1302.
Raynaldus, anno 1302, sec. 13; Revue des Questions Historiques, vol.
46, pp. 255 f.
Boniface VIII had become involved in a bitter struggle with Philip IV of
France over the question of sovereignty. Boniface went so far as to
summon the French clergy to a council at Rome for the purpose of
dictating a settlement of all the disorders in France. In reply to this,
Philip IV assembled his states-general and assured himself of the almost
unanimous support of his people against the pope, and sent him an
embassy with a refusal and a warning. The pope was not disconcerted by
this, but plied the ambassadors with the most extravagant statements of
his secular power. On the heels of this he published this famous bull,
_Unam sanctam_, which is the classic mediæval expression of the papal
claims to universal temporal sovereignty. It is an excellent example of
mediæval reasoning.
The true faith compels us to believe that there is one holy catholic
apostolic church, and this we firmly believe and plainly confess. And
outside of her there is no salvation or remission of sins, as the
Bridegroom says in the Song of Solomon: "My dove, my undefiled is but
one; she is the only one of her mother, she is the choice one of her
that bare her" [Song of Sol. 6:9]; which represents the one mystical
body, whose head is Christ, but the head of Christ is God [1 Cor. 11.3].
In this church there is "one Lord, one faith, one baptism" [Eph. 4:5].
For in the time of the flood there was only one ark, that of Noah,
prefiguring the one church, and it was "finished above in one cubit"
[Gen. 6:16], and had but one helmsman and master, namely, Noah. And we
read that all things on the earth outside of this ark were destroyed.
This church we venerate as the only one, since the Lord said by the
prophet: "Deliver my soul from the sword; my darling from the power of
the dog" [Ps. 22:20]. He prayed for his soul, that is, for himself, the
head; and at the same time for the body; and he named his body, that is,
the one church, because there is but one Bridegroom [cf. John 3:29], and
because of the unity of the faith, of the sacraments, and of his love
for the church. This is the seamless robe of the Lord which was not rent
but parted by lot [John 19:23]. Therefore there is one body of the one
and only church, and one head, not two heads, as if the church were a
monster. And this head is Christ and his vicar, Peter and his successor;
for the Lord himself said to Peter: "Feed my sheep" [John 21:16]. And he
said "my sheep," in general, not these or those sheep in particular;
from which it is clear that all were committed to him. If therefore
Greeks or anyone else say that they are not subject to Peter and his
successors, they thereby necessarily confess that they are not of the
sheep of Christ. For the Lord says in the Gospel of John, that there is
one fold and only one shepherd [John 10:16]. By the words of the gospel
we are taught that the two swords, namely, the spiritual authority and
the temporal are in the power of the church. For when the apostles said
"Here are two swords" [Luke 22:38]--that is, in the church, since it was
the apostles who were speaking--the Lord did not answer, "It is too
much," but "It is enough." Whoever denies that the temporal sword is in
the power of Peter does not properly understand the word of the Lord
when he said: "Put up thy sword into the sheath" [John 18:11]. Both
swords, therefore, the spiritual and the temporal, are in the power of
the church. The former is to be used by the church, the latter for the
church; the one by the hand of the priest, the other by the hand of
kings and knights, but at the command and permission of the priest.
Moreover, it is necessary for one sword to be under the other, and the
temporal authority to be subjected to the spiritual; for the apostle
says, "For there is no power but of God: and the powers that are
ordained of God" [Rom. 13:1]; but they would not be ordained [i.e.,
arranged or set in order; note the play on the words] unless one were
subjected to the other, and, as it were, the lower made the higher by
the other. For, according to St. Dionysius, it is a law of divinity that
the lowest is made the highest through the intermediate. According to
the law of the universe all things are not equally and directly reduced
to order, but the lowest are fitted into their order through the
intermediate, and the lower through the higher.{78} And we must
necessarily admit that the spiritual power surpasses any earthly power
in dignity and honor, because spiritual things surpass temporal things.
We clearly see that this is true from the paying of tithes, from the
benediction, from the sanctification, from the receiving of the power,
and from the governing of these things. For the truth itself declares
that the spiritual power must establish the temporal power and pass
judgment on it if it is not good. Thus the prophecy of Jeremiah
concerning the church and the ecclesiastical power is fulfilled: "See, I
have this day set thee over the nations and over the kingdoms, to root
out, and to pull down, and to destroy, and to throw down, to build, and
to plant" [Jer. 1:10]. Therefore if the temporal power errs, it will be
judged by the spiritual power, and if the lower spiritual power errs, it
will be judged by its superior. But if the highest spiritual power errs,
it can not be judged by men, but by God alone. For the apostle says:
"But he that is spiritual judgeth all things, yet he himself is judged
of no man" [1 Cor. 2:15]. Now this authority, although it is given to
man and exercised through man, is not human, but divine. For it was
given by the word of the Lord to Peter, and the rock was made firm to
him and his successors, in Christ himself, whom he had confessed. For
the Lord said to Peter: "Whatsoever thou shalt bind on earth shall be
bound in heaven: and whatsoever thou shalt loose on earth shall be
loosed in heaven" [Matt. 16:19]. Therefore whosoever resisteth this
power thus ordained of God, resisteth the ordinance of God [Rom. 13:2],
unless there are two principles (beginnings), as Manichæus pretends
there are. But this we judge to be false and heretical. For Moses says
that, not in the beginnings, but in the beginning [note the play on
words], God created the heaven and the earth [Gen. 1:1]. We therefore
declare, say, and affirm that submission on the part of every man to the
bishop of Rome is altogether necessary for his salvation.
{78} This is an example of scholastic reasoning. While obscure, it
seems to be a general argument for, or explanation of, the existence of
order in the universe.
165. Conclusions Drawn by Marsilius of Padua from his "Defensor Pacis."
Marsilius of Padua, Defensor Pacis, Part III, ch. ii; Goldast,
Monarchia Sancti Romani Imperii, II, pp. 309 ff.
The _Defensor Pacis_ is a treatise on politics written by Marsilius, or
Marsiglio, a canon of the church of Padua, in 1324. His authority is the
_Politics_ of Aristotle, which Marsilius knew from a Latin summary
current in the Middle Age. From this as a basis he constructs a
political theory and tests the existing institutions by it. The work is
divided into three parts; the first two form a diffuse essay, and the
last is a summary of his arguments in the form of forty-two
_conclusiones_, which are translated here, because they give in a
concise form the essential points of his theory. As regards the
political situation of his own time, the general tendency of the
treatise is imperial and anti-papal; it was used by Ludwig IV [the
Bavarian] in his conflict with the Avignon popes. Hence it was regarded
by the papal party as unorthodox and heretical. In the bull of John
XXII, 1327, five statements were selected and condemned as heresies (see
no. 166). His views on the origin and nature of the state are
Aristotelian: the state is a perfected community existing for the good
of the people; the supreme power resides in the body of the citizens,
who make the laws, and choose the form of government, etc. The prince
rules by the authority of the whole body of citizens. To this body
Marsilius gives the name _legislator_. The elective monarchy is the form
of government preferred by Marsilius, whose ideal state thus corresponds
in theory with the holy Roman empire. His views on the relation of the
state and the church are very different from the views common in the
Middle Age. The supreme institution is the state which has established
the priesthood or the church to look after the spiritual welfare of its
citizens. Hence the state has the right to control the church, but the
church has not the corresponding right to control the state. The
treatment of the church in itself is also interesting. Marsilius attacks
the Petrine theory and the whole papal structure. All bishops are equal
in religious authority, deriving their power immediately from Christ. If
one priest or bishop is placed over another it is for the purpose of
organization, and the authority of the superior is derived from the
state. He also asserts that within the church the supreme authority is
not the pope, but the general council of Christians.
Conclusion 1. The one divine canonical Scripture, the conclusions that
necessarily follow from it, and the interpretation placed upon it by the
common consent of Christians, are true, and belief in them is necessary
to the salvation of those to whom they are made known.
2. The general council of Christians or its majority alone has the
authority to define doubtful passages of the divine law, and to
determine those that are to be regarded as articles of the Christian
faith, belief in which is essential to salvation; and no partial council
or single person of any position has the authority to decide these
questions.
3. The gospels teach that no temporal punishment or penalty should be
used to compel observance of divine commandments.
4. It is necessary to salvation to obey the commandments of the new
divine law [the New Testament] and the conclusions that follow
necessarily from it and the precepts of reason; but it is not necessary
to salvation to obey all the commandments of the ancient law [the Old
Testament].
5. No mortal has the right to dispense with the commands or prohibitions
of the new divine law; but the general council and the Christian
"legislator"{79} alone have the right to prohibit things which are
permitted by the new law, under penalties in this world or the next, and
no partial council or single person of any position has that right.
6. The whole body of citizens or its majority alone is the human
"legislator."
7. Decretals and decrees of the bishop of Rome, or of any other bishops
or body of bishops, have no power to coerce anyone by secular penalties
or punishments, except by the authorization of the human "legislator."
8. The "legislator" alone or the one who rules by its authority has the
power to dispense with human laws.
9. The elective principality or other office derives its authority from
the election of the body having the right to elect, and not from the
confirmation or approval of any other power.
10. The election of any prince or other official, especially one who has
the coercive power,{80} is determined solely by the expressed will of
the "legislator."
11. There can be only one supreme ruling power in a state or kingdom.
12. The number and the qualifications of persons who hold state offices
and all civil matters are to be determined solely by the Christian ruler
according to the law or approved custom [of the state].
13. No prince, still more, no partial council or single person of any
position, has full authority and control over other persons, laymen or
clergy, without the authorization of the "legislator."
14. No bishop or priest has coercive authority or jurisdiction over any
layman or clergyman, even if he is a heretic.
15. The prince who rules by the authority of the "legislator" has
jurisdiction over the persons and possessions of every single mortal of
every station, whether lay or clerical, and over every body of laymen or
clergy.
16. No bishop or priest or body of bishops or priests has the authority
to excommunicate anyone or to interdict the performance of divine
services, without the authorization of the "legislator."
17. All bishops derive their authority in equal measure immediately from
Christ, and it cannot be proved from the divine law that one bishop
should be over or under another, in temporal or spiritual matters.
18. The other bishops, singly or in a body, have the same right by
divine authority to excommunicate or otherwise exercise authority over
the bishop of Rome, having obtained the consent of the "legislator," as
the bishop of Rome has to excommunicate or control them.
19. No mortal has the authority to permit marriages that are prohibited
by the divine law, especially by the New Testament. The right to permit
marriages which are prohibited by human law belongs solely to the
"legislator" or to the one who rules by its authority.
20. The right to legitimatize children born of illegitimate union so
that they may receive inheritances, or other civil or ecclesiastical
offices or benefits, belongs solely to the "legislator."
21. The "legislator" alone has the right to promote to ecclesiastical
orders, and to judge of the qualifications of persons for these offices,
by a coercive decision, and no priest or bishop has the right to promote
anyone without its authority.
22. The prince who rules by the authority of the laws of Christians, has
the right to determine the number of churches and temples, and the
number of priests, deacons, and other clergy who shall serve in them.
23. "Separable"{81} ecclesiastical offices may be conferred or taken
away only by the authority of the "legislator"; the same is true of
ecclesiastical benefices and other property devoted to pious purposes.
24. No bishop or body of bishops has the right to establish notaries or
other civil officials.
25. No bishop or body of bishops may give permission to teach or
practice in any profession or occupation, but this right belongs to the
Christian "legislator" or to the one who rules by its authority.
26. In ecclesiastical offices and benefices those who have received
consecration as deacons or priests, or have been otherwise irrevocably
dedicated to God, should be preferred to those who have not been thus
consecrated.
27. The human "legislator" has the right to use ecclesiastical
temporalities for the common public good and defence, after the needs of
the priests and clergy, the expenses of divine worship, and the
necessities of the poor have been satisfied.
28. All properties established for pious purposes or for works of mercy,
such as those that are left by will for the making of a crusade, the
redeeming of captives, or the support of the poor, and similar purposes,
may be disposed of by the prince alone according to the decision of the
"legislator" and the purpose of the testator or giver.
29. The Christian "legislator" alone has the right to forbid or permit
the establishment of religious orders or houses.
30. The prince alone, acting in accordance with the laws of the
"legislator," has the authority to condemn heretics, delinquents, and
all others who should endure temporal punishment, to inflict bodily
punishment upon them, and to exact fines from them.
31. No subject who is bound to another by a legal oath may be released
from his obligation by any bishop or priest, unless the "legislator" has
decided by a coercive decision that there is just cause for it.
32. The general council of all Christians alone has the authority to
create a metropolitan bishop or church, and to reduce him or it from
that position.
33. The Christian "legislator" or the one who rules by its authority
over Christian states, alone has the right to convoke either a general
or local council of priests, bishops, and other Christians, by coercive
power; and no man may be compelled by threats of temporal or spiritual
punishment to obey the decrees of a council convoked in any other way.
34. The general council of Christians or the Christian "legislator"
alone has the authority to ordain fasts and other prohibitions of the
use of food; the council or "legislator" alone may prohibit the practice
of mechanical arts or teaching which divine law permits to be practiced
on any day, and the "legislator" or the one who rules by its authority
alone may constrain men to obey the prohibition by temporal penalties.
35. The general council of Christians alone has the authority to
canonize anyone or to order anyone to be adored as a saint.
36. The general council of Christians alone has the authority to forbid
the marriage of priests, bishops, and other clergy, and to make other
laws concerning ecclesiastical discipline, and that council or the one
to whom it delegates its authority alone may dispense with these laws.
37. It is always permitted to appeal to the "legislator" from a coercive
decision rendered by a bishop or priest with the authorization of the
"legislator."
38. Those who are pledged to observe complete poverty may not have in
their possession any immovable property, unless it be with the fixed
intention of selling it as soon as possible and giving the money to the
poor; they may not have such rights in either movable or immovable
property as would enable them, for example, to recover them by a
coercive decision from any person who should take or try to take them
away.
39. The people as a community and as individuals, according to their
several means, are required by divine law to support the bishops and
other clergy authorized by the gospel, so that they may have food and
clothing and the other necessaries of life; but the people are not
required to pay tithes or other taxes beyond the amount necessary for
such support.
40. The Christian "legislator" or the one who rules by its authority has
the right to compel bishops and other clergy who live in the province
under its control and whom it supplies with the necessities of life, to
perform divine services and administer the sacrament.
41. The bishop of Rome and any other ecclesiastical or spiritual
minister may be advanced to a "separable" ecclesiastical office only by
the Christian "legislator" or the one who rules by its authority, or by
the general council of Christians; and they may be suspended from or
deprived of office by the same authority.
{79} In regard to the "legislator," Marsilius cites Aristotle as
follows: "The legislator or the effective cause of the law is the
people, the whole body of the citizens, or the majority of that body,
expressing its will and choice in a general meeting of the citizens, and
commanding or deciding that certain things shall be done or left undone,
under threat of temporal penalty or punishment."
{80} "Coercive" or "coactive" power is the power, residing in the ruler
or the officials of the state and derived from the "legislator," to
compel observance of the laws or decrees of the state by force or threat
of penalty. A coercive judgment is a judgment given by an official who
has the power to enforce his decisions. Marsilius maintains that
coercive power and coercive judgments are the prerogatives of the state
and cannot be exercised by the church.
{81} "Separable" offices of the clergy, according to Marsilius, are
those functions commonly exercised by the clergy, which are not
essentially bound up with their spiritual character. The terms essential
and non-essential are used as synonymous respectively with inseparable
and separable. The essential or inseparable powers of the clergy are
"the power to bless the bread and wine, and turn them into the blessed
body and blood of Christ, to administer the other sacraments of the
church, and to bind and to loose men from their sins." Non-essential or
separable functions are the government or control of one priest over
others (_i.e._, the offices of bishop, archbishop, etc.), the
administration of the sacraments, etc., in a certain place and to a
certain people, and the administration of temporal possessions of the
church. In respect to their separable functions the clergy are under the
control of the state.
166. Condemnation of Marsilius of Padua. 1327.
Densinger, p. 141.
The following sentences taken from Marsilius of Padua and John of Jandun
were condemned by John XXII, 1327. See introductory note to no. 165.
(1) When Christ ordered the coin which was taken from the fish's mouth
to be paid to the tax collector, he paid tribute to Cæsar; and he did
this not out of condescension or kindness, but because he had to pay it.
From this it is clear that all temporal powers and possessions of the
church are subject to the emperor, and he may take them as his own.
(2) That St. Peter had no more authority than the other apostles, and
was not the head over the other apostles; and that Christ left behind no
head of the church, and did not appoint anyone as his vicar.
(3) That the emperor has the right to make and depose popes and to
punish them.
(4) That all priests, whether pope or archbishop or simple priest, are,
in accordance with the appointment of Christ, of equal authority and
jurisdiction.
(6) That the whole church together can not punish any man with coactive
punishment, without the permission of the emperor.
The above articles are contrary to the holy scriptures and hostile to
the catholic faith and we [John XXII] declare them to be heretical and
erroneous, and the aforesaid Marsilius and John [of Jandun] to be open
and notorious heretics, or rather heresiarchs.
167. The Beginning of the Schism. The Manifesto of the Revolting
Cardinals. Aug. 5, 1378.
Baluzius, Vitæ Paparum Avenioneosium, I, pp. 468 ff.
At the death of Gregory XI in 1378, the cardinals elected Bartholomew,
archbishop of Bari, who took the title Urban VI. He soon announced that
he would not remove his court to Avignon, as many of the cardinals
wished him to do, but would remain in Rome. For various reasons the
cardinals of the French party became more and more displeased with Urban
and soon rebelled against him and deposed him. After publishing a
manifesto, in which they defended their action, they elected Robert of
Geneva, who called himself Clement VII. The manifesto is long and full
of invective and generalities, but contains very little argument and few
facts. We give only the essential part of it.
... After the apostolic seat was made vacant by the death of our lord,
pope Gregory XI, who died in March, we assembled in conclave for the
election of a pope, as is the law and custom, in the papal palace, in
which Gregory had died.... Officials of the city with a great multitude
of the people, for the most part armed and called together for this
purpose by the ringing of bells, surrounded the palace in a threatening
manner and even entered it and almost filled it. To the terror caused by
their presence they added threats that unless we should at once elect a
Roman or an Italian they would kill us. They gave us no time to
deliberate but compelled us unwillingly, through violence and fear, to
elect an Italian without delay. In order to escape the danger which
threatened us from such a mob, we elected Bartholomew, archbishop of
Bari, thinking that he would have enough conscience not to accept the
election, since every one knew that it was made under such wicked
threats. But he was unmindful of his own salvation and burning with
ambition, and so, to the great scandal of the clergy and of the
Christian people, and contrary to the laws of the church, he accepted
this election which was offered him, although not all the cardinals were
present at the election, and it was extorted from us by the threats and
demands of the officials and people of the city. And although such an
election is null and void, and the danger from the people still
threatened us, he was enthroned and crowned, and called himself pope and
apostolic. But according to the holy fathers and to the law of the
church, he should be called apostate, anathema, Antichrist, and the
mocker and destroyer of Christianity....
168. The University of Paris and the Schism, 1393.
D'Achery, Spicilegium, I, pp. 777 f.
In 1393 the king of France asked the University of Paris to devise a way
of ending the schism. In response to this request, each member of the
faculty was asked to propose in writing the way which seemed best to
him, and to advance all the possible arguments in its favor. A
commission of fifty-four professors, masters, and doctors was then
appointed to examine all the proposed ways and means. After mature
deliberation this commission proposed three possible ways of ending the
schism and drew them up in writing and forwarded them to the king. They
discussed at some length the relative advantages and disadvantages of
each way. Their letter to the king is a long one. We give only three
brief extracts from it, to show the three ways which they proposed.
The first way. Now the first way to end the schism is that both parties
should entirely renounce and resign all rights which they may have or
claim to have to the papal office....
The second way. But if both cling tenaciously to their rights and refuse
to resign, as they have done up to now, we would propose the way of
arbitration. That is, that they should together choose worthy and
suitable men, or permit such to be chosen in a regular and canonical
way, and these shall have the full power and authority to discuss the
case and decide it, and if necessary and expedient, and approved by
those who according to the canon law have the authority [that is, the
cardinals], they may also have the right to proceed to the election of a
pope.
The third way. If the rival popes, after being urged in a brotherly and
friendly manner, will not accept either of the above ways, there is a
third way which we propose as an excellent remedy for this sacrilegious
schism. We mean that the matter shall be left to a general council. This
general council might be composed, according to canon law, only of
prelates, or, since many of them are very illiterate, and many of them
are bitter partisans of one or the other pope, there might be joined
with the prelates an equal number of masters and doctors of theology and
law from the faculties of approved universities. Or if this does not
seem sufficient to anyone, there might be added besides one or more
representatives from cathedral chapters and the chief monastic orders,
in order that all decisions might be rendered only after most careful
examination and mature deliberation.
169. The Council of Pisa Declares it is Competent to Try the Popes.
1409.
Raynaldus, anno 1409, sec. 71.
There was no recognized legal machinery in the church by which the
schism could be ended, and there was no emperor, as in the days of
Innocent II, who was willing to end it by force. It was decided to leave
the matter to a general council, but there was some doubt as to (1)
whether a council could be legally called by anyone except a pope, and
(2) whether the council was legally empowered to cite the two papal
claimants before it and decide the case between them. Finally a council
was called by the cardinals; it met at Pisa and proceeded first to
assert its legality and authority. The conciliar movement, begun by this
council, was foreshadowed in earlier documents. See nos. 165 and 168.
This holy and general council, representing the universal church,
decrees and declares that the united college of cardinals was empowered
to call the council, and that the power to call such a council belongs
of right to the aforesaid holy college of cardinals, especially now when
there is a detestable schism. The council further declared that this
holy council, representing the universal church, caused both claimants
of the papal throne to be cited in the gates and doors of the churches
of Pisa to come and hear the final decision [in the matter of the
schism] pronounced, or to give a good and sufficient reason why such
sentence should not be rendered.
170. An Oath of the Cardinals to Reform the Church. Council of Pisa,
1409.
Raynaldus, anno 1409, sec. 71.
In the great councils of Pisa and Constance there were two parties, the
one in favor of reforming the church at once and ending the schism
afterwards (that is, by electing another pope), and the other in favor
of first electing the pope and then carrying out the reform under his
direction. The latter party was victorious, but before proceeding to the
election, each cardinal was compelled to take an oath that, if elected,
he would not dissolve the council until a thorough reform of the church
was brought about.
We, each and all, bishops, priests, and deacons of the holy Roman
church, congregated in the city of Pisa for the purpose of ending the
schism and of restoring the unity of the church, on our word of honor
promise God, the holy Roman church, and this holy council now collected
here for the aforesaid purpose, that, if any one of us is elected pope,
he shall continue the present council and not dissolve it, nor, so far
as is in his power, permit it to be dissolved until, through it and with
its advice, a proper, reasonable, and sufficient reformation of the
universal church in its head and in its members shall have been
accomplished.
171. The Council of Constance Claims Supreme Authority, 1415.
V. d. Hardt, II, p. 98.
See introductory note to nos. 168, 169.
This holy synod of Constance, being a general council, and legally
assembled in the Holy Spirit for the praise of God and for ending the
present schism, and for the union and reformation of the church of God
in its head and in its members, in order more easily, more securely,
more completely, and more fully to bring about the union and reformation
of the church of God, ordains, declares, and decrees as follows: And
first it declares that this synod, legally assembled, is a general
council, and represents the catholic church militant and has its
authority directly from Christ; and everybody, of whatever rank or
dignity, including also the pope, is bound to obey this council in those
things which pertain to the faith, to the ending of this schism, and to
a general reformation of the church in its head and members. Likewise it
declares that if anyone, of whatever rank, condition, or dignity,
including also the pope, shall refuse to obey the commands, statutes,
ordinances, or orders of this holy council, or of any other holy council
properly assembled, in regard to the ending of the schism and to the
reformation of the church, he shall be subject to the proper punishment;
and unless he repents, he shall be duly punished; and if necessary,
recourse shall be had to other aids of justice.
172. Reforms Demanded by the Council of Constance, 1417.
V. d. Hardt, IV, p. 1452.
The reforming party in the council of Constance had been defeated in its
attempt to fix the order of business which the council should follow. As
in the council at Pisa, it had been determined that the pope should be
elected first and then the reform be worked out. The leaders of the
reform party were fearful that no reform would be accomplished, and so
as a kind of compromise and as a last desperate effort they succeeded in
having the council enact that reforms should be made in the following
eighteen points.
The holy council at Constance determined and decreed that before this
holy council shall be dissolved, the future pope, by the grace of God
soon to be elected, with the aid of this holy council, or of men
appointed by each nation, shall reform the church in its head and in the
Roman curia, in conformity to the right standard and good government of
the church. And reforms shall be made in the following matters: 1. In
the number, character, and nationality of the cardinals. 2. In papal
reservations. 3. In annates, and in common services and little services.
4. In the granting of benefices and expectancies. 5. In determining what
cases may be tried in the papal court. 6. In appeals to the papal court.
7. In the offices of the _cancellaria_, and of the penitentiary. 8. In
the exemptions and incorporations made during the schism. 9. In the
matter of commends. 10. In the confirmation of elections. 11. In the
disposition of the income of churches, monasteries, and benefices during
the time when they are vacant. 12. That no ecclesiastical property be
alienated. 13. It shall be determined for what causes and how a pope may
be disciplined and deposed. 14. A plan shall be devised for putting an
end to simony. 15. In the matter of dispensations. 16. In the provision
for the pope and cardinals. 17. In indulgences. 18. In assessing tithes.
The following notes explain the various points of the reform program:
1. Various cardinals were frequently charged with luxurious living and
even with grave immorality. For some time French cardinals had been in
the majority. The demand was now made that all nations should have an
equal representation in the college of cardinals. 2. The popes
arbitrarily reserved the right to appoint to the richest livings, and
their appointees had to pay well for their appointments. 3. Annates were
(1) the income for a year, collected from every living or benefice when
it became vacant by the death of the holder; (2) the income of a
bishopric for a year, paid by the newly elected bishop. Under "common
services and little services" were included various other payments, in
addition to the annates, which every newly elected bishop was expected
to pay the pope. 4. The pope strove to increase the number of benefices
and livings to which he might appoint. It was not uncommon to sell the
"expectation" to a benefice; that is, while the holder of a benefice was
still alive the right or expectation of succeeding him in his benefice
at his death was sold to some one. 5. The popes wished to increase the
number of cases or trials that could be tried only in the papal court.
There was no clear principle to determine which cases must be tried in
the papal court, and which not. There were certain costs connected with
every trial, and hence such trials were a source of income to the papal
court. 6. So many appeals were made to Rome by those who had lost their
cases at home or who feared they would lose them, that the papal court
was overwhelmed with work and could not try them promptly. Appeals to
Rome were often made to gain time and to defeat justice. 7. The
"cancellaria" was the office in which the papal secretaries wrote the
bulls, letters, etc., of the pope. The penitentiary was the office "in
which are examined and delivered out the secret bulls, graces, and
dispensations relating to cases of conscience, confession, and the
like." 8. By exemptions is meant the freeing of a monastery from the
jurisdiction of the bishop in whose diocese the monastery is situated.
"Incorporation" is the depriving a parish church of its income and
giving it to another church. 9. A "commend" is the granting of a
benefice temporarily on the condition that a certain sum be paid for it
annually. 10. The pope must confirm the election of all bishops, abbots,
etc. 11. At the death of a bishop the pope claimed the income of his
bishopric until his successor was elected. The same is true of
monasteries and many ecclesiastical benefices.
173. Concerning General Councils. The Council of Constance, 39th
Session, October 9, 1417.
V. d. Hardt, IV, p. 1435.
The conciliar idea was that a general council, since it represented the
whole church, was the highest authority in the church, to which even the
pope must submit. The promoters of this idea planned to have a general
council meet at regular intervals.
A good way to till the field of the Lord is to hold general councils
frequently, because by them the briers, thorns, and thistles of
heresies, errors, and schisms are rooted out, abuses reformed, and the
way of the Lord made more fruitful. But if general councils are not
held, all these evils spread and flourish. We therefore decree by this
perpetual edict that general councils shall be held as follows: The
first one shall be held five years after the close of this council, the
second one seven years after the close of the first, and forever
thereafter one shall be held every ten years. One month before the close
of each council the pope, with the approval and consent of the council,
shall fix the place for holding the next council. If the pope fails to
name the place the council must do so.
174. Pius II, by the Bull "Execrabilis," Condemns Appeals to a General
Council, 1459.
Densinger, p. 172.
In the great struggle with the councils the pope had come out
victorious. He had successfully resisted all attempts to make any
important changes in the administration of the church, or to introduce
the reforms which were so loudly called for. Although the council at
Basel had brought the conciliar idea into disrepute, there were many who
still called for a general council as the only means of securing the
reforms which were demanded. Pius II condemned and prohibited all such
appeals.
The execrable and hitherto unknown abuse has grown up in our day, that
certain persons, imbued with the spirit of rebellion, and not from a
desire to secure a better judgment, but to escape the punishment of some
offence which they have committed, presume to appeal from the pope to a
future council, in spite of the fact that the pope is the vicar of Jesus
Christ and to him, in the person of St. Peter, the following was said:
"Feed my sheep" [John 21:16] and "Whatsoever thou shalt bind on earth
shall be bound in heaven" [Matt. 16:18]. Wishing therefore to expel this
pestiferous poison from the church of Christ and to care for the
salvation of the flock entrusted to us, and to remove every cause of
offence from the fold of our Saviour, with the advice and consent of our
brothers, the cardinals of the holy Roman church, and of all the
prelates, and of those who have been trained in the canon and civil law,
who are at our court, and with our own sure knowledge, we condemn all
such appeals and prohibit them as erroneous and detestable.
175. William III of Saxony Forbids Appeals to Foreign Courts, 1446.
Schilter, De libertate ecclesiarum Germaniæ, pp. 808 ff.
At this time secular rulers were everywhere growing in power, and
centralizing the authority in their own hands, which led them to try to
diminish the power of the clergy. This document shows the legal
confusion which then existed, caused in part by the usurpations which
the ecclesiastical courts practiced. Following the examples of the kings
of England and France, William III, duke of Saxony, limited
ecclesiastical courts to their proper jurisdiction and forbade the
clergy to try secular cases. As a sovereign power he also forbade all
appeals to foreign courts, which of course included the pope.
My country suffers dishonor, and great loss and injury, in that many of
its inhabitants resort to foreign courts. Be it known that we have
decreed that hereafter no inhabitant of our country shall summon or sue
another before any foreign court, ecclesiastical or secular, for any
matter whatsoever. If the case is ecclesiastical and legally comes under
the jurisdiction of an ecclesiastical court, the plaintiff shall bring
it before some ecclesiastical court in our country, and be content with
the decision rendered there. There shall be no appeal to a foreign
court. If the case is secular, it shall be brought and pleaded before
the secular court where the defendant belongs. It shall be tried before
that court under whose jurisdiction the case falls, and the plaintiff
shall be content with the decision rendered. If any inhabitant of our
land is not content with the decision, but appeals to a foreign court in
any way, he shall be held to be an outlaw. He shall be banished for life
and never be permitted to return to this country; and anyone may attack
him and his property without any hindrance, because he is an outlaw....
We and our subjects have for a long time been annoyed and troubled
beyond measure by the ecclesiastical judges who hear cases which do not
belong under their jurisdiction. For although they are only
ecclesiastical judges, they hear ecclesiastical and secular cases. And
very often they render unjust decisions. The effect of this is the
spread of unbelief among the people, who neglect and dishonor God and
the holy church. The glory of God and the honor of the church demand
that this abuse be stopped. We will therefore do all we can to have the
princes and prelates who have jurisdiction in our land reform their
ecclesiastical courts. For these ecclesiastical courts shall refuse to
hear secular cases and try only ecclesiastical cases. We forbid all
persons in our land to summon, sue, or denounce another on a secular
charge before an ecclesiastical court....
176. Papal Charter for the Establishment of the University of Avignon,
1303.
Bullarium Romanum, III, ii, pp. 101 f.
It was regarded as the exclusive right of the pope to establish a
university, or _studium generale_, as it was called. We give the
document by which he established the University of Avignon as a sample
of these numerous papal establishments. It contains a clear and
interesting account of the examinations and the conferring of the
Master's degree.
The city of Avignon for many reasons is eminently suited and fitted to
become the seat of a university. Believing that it would be for the
public good if those who cultivate wisdom were introduced into the city,
and that they would in time bear rich fruit, by this document we grant
that a university may be established there, in which Masters
[_magistri_] may teach, and scholars freely study and hear lectures, in
all faculties. And when those who study in the university attain a high
degree of knowledge, and ask for the permission to teach others, we
grant that they may be examined in the canon and civil law, and in
medicine, and in the liberal arts, and that they may be decorated with
the title of Master in those faculties. All who are to be promoted to
this honor shall be presented to the bishop of Avignon. He shall call
together all the Masters in the faculty concerned, and without any
charge he shall examine the candidates to discover their learning,
eloquence, manner of reading [lecturing], and the other things which are
required in those who are to be made Doctors or Masters. He shall then
consult the Masters about the examination and they shall vote on the
question of granting the degree [that is, decide whether the candidate
passed the examination or not]. But their vote shall be kept secret, and
the bishop shall never tell how they voted on the question. Those whom
he finds fit, he shall approve, and grant them the permission to teach
others. But those whom he finds are not fit, he shall refuse without
fear or favor. If the bishopric of Avignon is vacant, the candidates
shall present themselves to the _præpositus_ of the church, who shall
examine them and approve them in the way prescribed for the bishop.
Those who are examined and approved in Avignon and receive the license
to teach, shall thereafter have the full and free right to read and
teach everywhere, in that faculty in which they have been approved,
without further examination or approval by anyone else.
In order that such examinations may be properly held, we command that
all Masters who wish to read in the University of Avignon shall, before
beginning their work there as teachers, take a public oath that they
will come in person to all the examinations whenever called, and that
they will, _gratis_ and without fear or favor, faithfully give the
bishop their judgment about the examination, in order that those who are
worthy may be approved, and those who are unworthy may be rejected.
Those who refuse to take this oath shall not be permitted to read in the
university, or to be present at the examinations, or to share in any of
the advantages or benefits of the university.
In order that the Doctors [teachers] and scholars of the university may
be able to devote themselves freely to their studies, and to make good
progress in them, we grant that all who are in the university, whether
teachers or scholars, shall have all the privileges, liberties, and
immunities which are generally granted to teachers and scholars of other
universities.
177. Popular Dissatisfaction that the Church had so much Wealth, _ca._
1480.
Goldast's Reichssatzung, p. 280.
We give a brief passage from an unknown author to illustrate the growing
dissatisfaction of the common people that the church had so much wealth.
It betrays a dangerous temper of mind. In the light of this the
suppression of monasteries and the seizure of ecclesiastical property
which was carried out on so large a scale in the sixteenth century does
not seem strange.
It is as clear as day that by means of smooth and crafty words the
clergy have deprived us of our rightful possessions. For they blinded
the eyes of our forefathers, and persuaded them to buy the kingdom of
heaven with their lands and possessions. If you priests give the poor
and the chosen children of God their paternal inheritance, which before
God you owe them, God will perhaps grant you such grace that you will
know yourselves. But so long as you spend your money on your dear
harlots and profligates, instead of upon the children of God, you may be
sure that God will reward you according to your merits. For you have
angered and overburdened all the people of the empire. The time is
coming when your possessions will be seized and divided as if they were
the possessions of an enemy. As you have oppressed the people, they will
rise up against you so that you will not know where to find a place to
stay.
178. Complaints of the Germans against the Pope, 1510.
Gebhardt, Gravamina gegen den Römischen Hof, pp. 83 f.
This is a brief list of the complaints made by the Germans in 1510 and
presented to Julius II. Most of them, it will be observed, are concerned
with the financial burdens with which the Germans felt that they were
overwhelmed.
(1) That popes do not feel bound to observe the bulls, agreements,
privileges, and letters which have been issued by their predecessors,
but often dispense with, suspend, and revoke them at the request of
people even of low birth. (2) That the pope sometimes refuses to confirm
the canonical election of bishops. (3) That the pope sometimes rejects
the election of _præpositi_ [provosts], although made by chapters which
have paid a high price for the right to elect. ... (4) That the better
benefices and higher offices are reserved for the cardinals and the
chief officials of the papal court. (5) That an unlimited number of
expectancies are granted, and many are given for the same office to
different persons. And many expectancies are sold to one and the same
person. From this practice, lawsuits arise daily, which cause all
concerned to incur heavy expenses. For if a man buys an expectancy, he
will probably never get the office, but he will surely become involved
in a lawsuit about it which will cost him a great deal of money. On this
account the proverbial saying has arisen: "If anyone obtains an
expectancy from Rome, let him lay aside one or two hundred gold coins,
for he will need them in his lawsuit about it." (6) Even when a
bishopric is several times within a few years made vacant by death, the
pope without any mercy demands the prompt and full payment of the
annates. And sometimes when the pope creates new offices and enlarges
his court, more is demanded as annates than is just.... (7) Churches are
given to members of the papal court, some of whom are better fitted to
be mule drivers than pastors. (8) Old indulgences are revoked and new
ones sold, merely to raise money, although the laymen are thereby made
to murmur against their clergy. (9) Tithes are collected under the
pretext that a war is to be made against the Turks, but nothing of the
kind is ever done. (10) Cases which could easily be settled in Germany,
since there are good and just judges there, are indiscriminately called
before the papal court at Rome. St. Bernard, in writing to Eugene III,
severely criticised this practice.
179. Abuses in the Sale of Indulgences, 1512.
Fr. Myconius, Geschichte der Reformation.
Several references have been made to the need of a reform in the matter
of indulgences. Cardinal Raymond, papal legate in 1503, complained that
the agents who sold indulgences were actuated only by the basest motives
of gain and were thoroughly dishonest. Myconius (his German name was
Mecum) was a Franciscan monk who became a Protestant.
We have thought it best to give first a statement of the doctrine of
indulgences in order that the abuses in their sale may be more clearly
apparent.
"It is the catholic doctrine that when a sin is forgiven its punishment
is not necessarily at the same time remitted. Through the power of the
keys the eternal punishment is remitted, but generally there remain
temporal punishments which must be satisfied either in this world by
means of good works, or in the next by enduring punishment in purgatory.
The Bible, by examples as well as by statements, teaches that with the
removal of the eternal guilt and punishment, the temporal punishment is
not always remitted. Adam and Eve, after committing sin, repented and
were justified by God, but they were driven out of Paradise and
compelled to endure infinite misfortunes, and even death itself, as a
punishment of their sin. We are taught the same by the example of the
Israelites who were pardoned for their sin of murmuring through the
prayers of Moses, but, as a punishment for their sin, were excluded from
the promised land and perished in the wilderness.... From this it is
seen that the Bible demands not only the conversion of the heart, but
also that we render satisfaction by enduring temporal punishment for the
sin....
"This satisfaction which we must render [_i.e._, this temporal
punishment which we must endure] is a part of the sacrament of penance,
and must be imposed on us by the minister of penance [_i.e._, the
priest]. The doctrine of indulgences is inseparably connected with that
of satisfaction. By indulgence is meant a remission of the temporal
punishment made by a priest by means of the application of the treasure
of the church. The treasure of the church is the whole sum of the merits
of Jesus Christ ... in addition to all the good works or merits of all
the saints.... In the church, as St. Thomas Aquinas well says, some have
done greater penance than the measure of their sins demanded. Others
have suffered with patience many unjust tribulations, with which they
would have expiated the temporal punishments of many more sins than they
have committed. [All such good works in excess of what they needed to
make satisfaction for their own sins are called works of supererogation,
and being meritorious, their merit is added to the treasure of the
church and may, at the discretion of the church, be applied to the
benefit of others who are lacking in such good works.] One of the ways
in which the church distributes this common possession (treasure of
merits) is by means of indulgences."--From the _Theologia Dommatica_ of
Prof. Dati, vol. iii, Chap. XXIX, Florence, 1893.
Anno 1512. Tetzel gained by his preaching in Germany an immense sum of
money which he sent to Rome. A very large sum was collected at the new
mining works at St. Annaberg, where I heard him for two years. It is
incredible what this ignorant and impudent monk used to say.... He
declared that if they contributed readily and bought grace and
indulgence, all the hills of St. Annaberg would become pure massive
silver. Also, that, as soon as the coin clinked in the chest, the soul
for whom the money was paid would go straight to heaven.... The
indulgence was so highly prized that when the agent came to a city the
bull was carried on a satin or gold cloth, and all the priests and
monks, the town council, schoolmaster, scholars, men, women, girls, and
children went out in procession to meet it with banners, candles, and
songs. All the bells were rung and organs played. He was conducted into
the church, a red cross was erected in the centre of the church, and the
pope's banner displayed....
Anno 1517. It is incredible what this ignorant monk said and preached.
He gave sealed letters stating that even the sins which a man was
intending to commit would be forgiven. He said the pope had more power
than all the apostles, all the angels and saints, even than the Virgin
Mary herself. For these were all subject to Christ, but the pope was
equal to Christ. After his ascension into heaven Christ had nothing more
to do with the management of the church until the judgment day, but had
committed all that to the pope as his vicar and vicegerent.
VI. FEUDALISM
Feudalism, as the prevailing order of society, socially, economically,
and politically, makes its appearance toward the end of the tenth
century. During the disorders consequent upon the disintegration of the
empire of the Carolingians (see nos. 15-25) the government failed to
supply protection and security, and ceased to act as a bond to hold men
together. As a result, certain local, private elements of society, which
were very generally diffused throughout that empire, were raised to the
rank of public political institutions. It is our purpose to illustrate
the origins and growth of feudalism, and the characteristic features of
the feudal state. The elements which lay at the basis of the feudal
system may be classified under three heads: (1) The personal dependence
of one man upon another; (2) dependent tenure of land, in which the
holder and user of the land was not the owner, but held it of or from
another; (3) the possession by private persons or corporations of
extensive sovereign rights over their lands and tenants. These elements
were present in various degrees and forms in the German tribes before
the migrations and in the later Roman empire, but it will be sufficient
for our purpose to show the existence and the character of these
elements in the tribal kingdoms and the Frankish kingdom under the
Merovingians, for in these states the German and Roman people and
institutions were united to form the society of the Middle Age. Then we
shall attempt to illustrate the growth and development of these elements
in the late Merovingian and in the Carolingian periods, and finally the
characteristic features of society in the feudal age. The difficulty in
illustrating the situation from public documents will be readily
understood; it is due to the fact that these institutions were only
partly legal or public, and to the fact that the makers of the laws took
for granted a knowledge of the institutions and did not think it
necessary to describe or explain them. It is hoped, however, that the
notes to the passages translated will make clear their meaning and
importance.
180-197. Origins.
180-183. Personal Dependence.
In the documents of the tribal kingdoms and Merovingian kingdom (_ca._
500-700) there are many evidences of the importance for society of the
dependence of one man upon another, and of the fact that this relation
was superseding in importance the relation of the private man to the
state. On the one hand, men became dependents and retainers of the king
and the great officials and lords for mutual advantages, the superior
gaining the prestige that came with the possession of a large following,
and the dependents gaining employment under and connection with the
great persons of the state. On the other hand, poor land-owners, or
persons without lands of their own, commended themselves to landlords
for the purpose of receiving protection and support. In both cases the
personal dependence was connected with the holding of land, for the king
or great lord frequently gave land to his followers, while the poor man
who commended himself to another usually did it for the purpose of
acquiring land to cultivate; this side of the relation, however, will be
seen more clearly under the next section.
180. Form for the Creation of an Antrustio by the King.
Marculf's Formulæ, I, no. 18; M. G. LL. 4to, V, p. 55.
Most of the following documents are taken from books of formulæ; that
is, collections of forms of documents made by various persons to serve
as examples for the drawing up of charters, etc. They were probably made
from actual documents by leaving out the names and inserting _ille_
(such an one) or similar expressions. The formulæ of Marculf were
written at the end of the seventh century. We quote them from the
edition in the _Monumenta Germaniæ_, Leges, vol. v, giving only the
pages in that volume after the first reference.
It is right that those who have promised us unbroken faith should be
rewarded by our aid and protection. Now since our faithful subject
(name) with the will of God has come to our palace with his arms and has
there sworn in our hands to keep his trust and fidelity to us, therefore
we decree and command by the present writing that henceforth the said
(name) is to be numbered among our _antrustiones_.{82} If anyone shall
presume to slay him, let him know that he shall have to pay 600 solidi
as a wergeld for him.
{82} The position of the _antrustio_ is explained in the note to the
Salic law, XLI, no. 4. See also the reference to the _leudes_ in no.
189.
181. Form for the Suspending of Lawsuits.
Marculf, I, no. 23; p. 57.
One great advantage that the dependent possessed was the support and
influence of his lord in judicial trials and other matters of the sort.
Know that we have ordered the apostolic man (name) [a bishop] or the
illustrious man (name) [a secular official or lord] to go to a certain
place, and we now command that as long as he is away all his lawsuits,
and those of his clients and dependents and people that live within his
jurisdiction, are to be suspended. Therefore we decree and order by the
present writing that until he returns all his cases and those of his
clients, both those who go with him and those who stay on his lands, and
of his people who live within his jurisdiction, shall be suspended, and
afterwards he shall do justice to everyone and receive justice from
everyone.
182. Form for Commendation. Middle of Eighth Century.
Formulæ Turonenses, no. 43; p. 158.
Notice the reason given by the person who commends himself, the effects
of commendation on both parties, and the binding nature of the
agreement. The reason alleged (extreme poverty) is probably a mere form
of speech, and was not present in each actual instance of commendation.
To my great lord, (name), I, (name). Since, as was well known, I had not
wherewith to feed and clothe myself, I came to you and told you my wish,
to commend myself to you and to put myself under your protection. I have
now done so, on the condition that you shall supply me with food and
clothing as far as I shall merit by my services, and that as long as I
live I shall perform such services for you as are becoming to a freeman,
and shall never have the right to withdraw from your power and
protection, but shall remain under them all the days of my life. It is
agreed that if either of us shall try to break this compact he shall
pay -- solidi, and the compact shall still hold. It is also agreed that
two copies of this letter shall be made and signed by us, which also has
been done.
183. Form by which the King Allows a Powerful Person to Undertake the
Cases of a Poor Person.
Marculf, i, no. 21; pp. 56 f.
Our faithful subject, (name), with the will of God has come to us and
told us that he is not able on account of his weakness to defend or to
prosecute his cases before the court. Therefore he has besought us to
allow the illustrious man (name) to take up his cases for him, both in
the local court and in the royal court, whether he prosecutes or is
prosecuted, and he has commended his affairs to him in our presence by
the staff. Therefore we command, in accordance with the desire of both
parties, that the aforesaid man (name) may undertake the cases of the
other (name), and that he shall do justice for him and for all his
possessions, and get justice for him from others; this shall be so, as
long as both desire it.
184-188. Dependent Tenure of Land.
Absolute ownership of land was giving place to possession of land owned
by others than the holder. The greater landlords (the king, the church,
and the great officials and lords) sought to acquire cultivators for
their lands, while the poorer land-owners and the persons without lands
of their own sought a means of livelihood or protection. The usual form
was the benefice or the precarium. The benefice was the name applied
generally in this time to land the use of which was granted by the owner
to others for a term of years, for life, or in perpetuity. The
_precarium_ was a form of the benefice, the name being technically
applied to lands thus granted in response to a letter of request or
prayer (_litteræ precariæ_). It will be seen from the documents that the
lands were usually those that had been given originally by the poor
land-holder to the greater landlord and then received back as benefice
or _precarium_. The reason was undoubtedly in many cases the desire of
the owner to come under the protection of the greater landlord. The king
also gave land to his followers and officials, either to bind them to
him or to reward them for services; it is probable, although not
certain, that these lands, in part at least, were held only for life or
a term of years, on condition of services or faithfulness, and so were
in a sense benefices.
184. Form for the Gift of Land to a Church to be Received back by the
Giver as a Benefice.
Marculf, II, no. 3; pp. 74 ff.
... I, (name), and my wife, (name), in the name of the Lord, give by
this letter of gift, and transfer from our ownership to the ownership
and authority of the monastery of (name), over which the venerable abbot
(name) presides, and which was founded in the honor of (name) by (name)
in the county of (name), the following villas{83} (name), situated in
the county of (name), with all the lands, houses, buildings, tenants,
slaves, vineyards, woods, fields, pastures, meadows, streams, and all
other belongings and dependencies, and all things movable and immovable
which are found in the said villas now or may be added later; in order
that under the protection of Christ they may be used for the support and
maintenance of the monks who dwell in the aforesaid monastery. We do
this on the condition that as long as either of us shall live we may
possess the aforesaid villas, without prejudice to the ownership of the
monastery and without diminution of the value of them, except that we
shall be allowed to emancipate any of the slaves that dwell on the lands
for the salvation of our souls. After the death of both of us, the
aforesaid villas with any additions or improvements which may have been
made, shall return immediately to the possession of the said monastery
and the said abbot and his successors, without undertaking any judicial
process or obtaining the consent of the heirs.
{83} The term _villa_, as used in these documents, means a domain or
estate with a group or village of dependent cultivators.
185. Form for a Precarial Letter.
Marculf, II, no. 5; pp. 77 f.
To our lord and father in Christ, the holy and apostolic bishop (name),
I (name), and my wife (name). It is well known that we have given in the
name of the Lord our villa of (name), situated in the county of (name),
in its entirety and with all that we possessed there, by a letter of
gift to the church of (name), founded in the honor of (name), and that
you have received it on behalf of the said church. And in response to
our petition you have granted that as long as we or either of us shall
live we shall hold the said villa as a benefice with the right of
usufruct,{84} with the understanding that we shall not diminish its
value in any way or alienate anything that belongs to it, but shall hold
it without prejudice to the ownership of the said church or bishop.
Therefore we have written this precarial letter in witness that our
possession shall not work any prejudice to your ownership or any injury
to the said villa; but that we only have the use of it during our lives,
and that after we are dead you shall immediately recover it with all the
additions and improvements which we may have made, by virtue of this
precarial letter, which shall be renewed every five years, and without
requiring any judicial process or obtaining the consent of the heirs;
and that thereafter you shall hold it forever, or do with it whatever
may seem to you to be to the best interests of the said church.
{84} To hold land with the right of usufruct or to have the usufruct of
land, means to hold, use, and enjoy the products of land the ownership
of which belongs to another. Thus a benefice is a form of usufruct. It
corresponds practically to modern long lease, which is sometimes
expressed in our legal usage as lease for 99 years, etc.
186. Form of Precarial Letter.
Marculf, II, no. 39; pp. 98 f.
To our lord and father in Christ, the holy and apostolic bishop (name),
I (name), and my wife (name). Since you have permitted us, as long as we
or either of us shall live, to hold the land (name) belonging to your
church (name), which (name) gave to the said church for the salvation of
his soul, therefore for this permission and for the salvation of our
souls we have given this other place (name), to belong to the said
church and to you and your successors after we are both dead. This we
have done on the condition that as long as we live we may possess the
said places, both that which you have permitted us to use and the one
which we have given you for the salvation of our souls, with the right
of usufruct, without diminishing its value or prejudicing the rights of
your church; and that after we are dead the said places shall
immediately revert to your ownership by virtue of this precarial letter,
without requiring any renewal of the letter, and in spite of any
opposition from our heirs or from anyone else.
187. Form of Precarial Letter.
Formulæ Bituricenses, no. 2; p. 169.
To the lords (names), we (name), and (name). It is well known that our
father lived on your lands and made a precarial letter to you for them,
which we now renew and sign, humbly beseeching you to allow us to remain
on the same lands.{85} In order that our possession of the lands may not
prejudice the rights of you and your successors in them, we have
deposited with you this precarial letter, agreeing that if we ever
forget its terms, or ever refuse to obey you or your agents in anything
which you command, or ever assert that this is not your land, we may be
punished according to the severity of the law as wicked violators of
your rights, and may be driven from the lands without judicial sentence.
{85} This and the following document are instances of a very common
practice; the heirs of the holder of a precarium took it over on the
same terms. The result was that the relation tended to become permanent,
and a regular class of dependent land-holders grew up. Notice also the
subjection of the holders of the precarium to the grantors, in this case
secular lords.
188. Gift of Land to be Received back and Held in Perpetuity for a Fixed
Rent.
Formulæ Augienses, B, no. 8; pp. 352 f.
The first part of the form, including the original gift of the land, is
omitted in the original, but may be supplied from a preceding number.
I do this on the condition that as long as I live I may hold the said
lands for the said rent, and that my children and their posterity may do
the same forever.
189. Treaty of Andelot, 587.
M. G. LL. 4to, II, I, no. 6; Gregory of Tours, IX, ch. 20.
This is a treaty between two of the Merovingian kings, Gunthram of
Burgundy and Childebert II of Austrasia. It forms an incident in the
civil war begun between Sigebert and Chilperic; see no. 5, Gregory of
Tours, IV, ch. 28, and note.
It illustrates the practice of the kings of giving land to their
followers and officials. This was very important in the creation of a
landed aristocracy. See the remarks above in regard to the nature of
these gifts (introductory note to nos. 184-188).
In accordance with the treaties made between Gunthram and Sigebert of
blessed memory, it is likewise agreed that those _leudes_,{86} who after
the death of Chlothar I first gave their oaths to Gunthram and then
later removed to other parts, are to be made to return from the places
where they are now dwelling. It is also agreed that those who, after the
death of Chlothar I, gave their oaths to Sigebert and then removed to
other parts are in a similar manner to be made to return. Likewise
whatever the aforesaid kings bestowed or with the consent of God wished
to bestow upon churches or upon their faithful subjects, shall remain in
the possession of the churches or subjects. And whatever shall be
restored in this way to the subject of either king, legally and justly,
shall be held by that person as his own.... And let each one possess in
security whatever he has received through the munificence of preceding
kings, to the time of the death of Chlothar I of blessed memory, and if
anything has been taken from the faithful subjects since that time, it
shall be restored to them from this moment.... Likewise it is agreed
that neither of the kings shall entice away the _leudes_ of the other or
receive them; but if some of the _leudes_ believe they are justified in
leaving their king by reason of injuries done to them, they are to be
compensated for their injuries, and made to return....
{86} The _leudes_ are evidently the personal dependents of the king,
that is, _antrustiones_. They were probably given land by the king.
Notice the other references in the treaty to persons holding land from
the "munificence" of the king. The same thing is referred to in nos.
190, 193, 194.
190-194. Grants of Immunity.
In the feudal age practically every landlord exercised over his lands
and tenants rights and authority which are now regarded as sovereign
rights belonging to the state. This was due in the main to the practice
of the Merovingian and Carolingian kings of granting immunity to the
churches and the great landlords, a practice which naturally grew with
the increasing weakness of the monarchy and the growth of the power of
the nobles. A grant of immunity operated to exclude the public officials
from lands, which were then in theory under the immediate control of the
king. In the late Merovingian period the weakness of the kings and the
disorganization of the public administration left the control of
immunity domains really in the hands of the landlords. The holder of
land covered by a grant of immunity thus came to represent the state to
the people on his lands. He established courts for the trial of cases
arising among his tenants or represented them before the public courts;
he was also frequently given the right to collect the taxes, revenues,
tolls, etc., from the lands of people, which would otherwise go to the
royal treasury. Most of the grants of immunity which have come down to
us are in favor of church lands, but they were also granted to secular
lords. The churches preserved their documents better than secular
persons did.
190. Precept of Chlothar II, 584-628.
M. G. LL. 4to, II, 1, no. 8.
Notice the references to immunity, to grants of land to "churches and
powerful persons" (lords and officials), and the implied right of such
landlords to appoint judges for trial of cases among their tenants
(private jurisdiction).
11. We grant to the churches the taxes from the fields and pastures and
the tithes of swine, so that no collector or titheman shall enter the
lands of a church to gather such dues for the royal treasury. Public
officials shall not demand any services from the churches of clergymen
who have acquired immunity from our father or grandfather.
12. Whatever has been given to churches or to clergymen or to any person
through the munificence of our aforesaid predecessors of blessed memory
is to belong to them in all security.
14. The property of churches, priests, and of the poor who cannot
protect themselves, shall be under the protection of public officials
until their cases can be brought to the king and justice be done; only
in so far, however, as it shall not infringe on the rights of immunity
which have been granted by former kings to any church or powerful person
or to anyone else, for the keeping of peace and the preservation of
discipline.
19. Bishops and powerful persons who have possessions in various regions
shall not appoint travelling judges or any judges except such as belong
to the county in which they serve.
191. Grant of Immunity to a Monastery, 673.
M. G. DD. folio, I, pp. 30 f; Altmann und Bernheim, no. 112.
Childeric, king of the Franks, illustrious man.... We have commanded it
to be made known to all that the venerable and pious abbot Berchar came
to us and asked us to grant him a certain place in the forest of Vervo
in Gascony, in which he might build a monastery, and to give him
material and resources by which he might construct a monastery there and
establish a congregation of monks. Now the request of this great man
pleased us and we granted him what he asked. Then having built his
monastery ... in the honor of Sts. Peter and Paul and the other saints,
he besought us, in order to make secure the whole undertaking, to bestow
complete immunity upon the monastery. Therefore, we, moved to this by
the kindness which Heaven has shown to us, have hearkened to the prayer
of this man ... and with the consent of our bishops and nobles do now
concede entire immunity over the whole possessions of this monastery ...
for the peace of our kingdom and for the reverence which we have for
this religious place. We command that no public official of any
authority shall presume to enter the lands of this monastery ... for the
purpose of hearing cases, of seizing securities, of collecting taxes, of
demanding entertainment, or of extorting tolls from cities or markets;
nor shall he presume to exact any taxes or payments whatever, but the
monks shall rule and possess, both in our time and in the future, all
the property of this monastery in all places and lands, where they have
possessions, as aforesaid, without being subject to the entrance of
officials or to exactions on the part of the royal treasury....
192. Form of a Grant of Immunity to a Monastery.
Marculf, I, no. 3; pp. 43 f.
We believe that our reign will best be rendered memorable, if we bestow
suitable benefits on churches (or whatever you wish to insert here),
with pious purpose, and if we secure these benefits under the protection
of God by putting them in writing. Therefore, be it known to you that we
have granted the request of that apostolic man, the bishop of (name),
for the salvation of our souls; namely, that no public official may
enter the lands which his church holds now, by our gift or by the gift
of anyone else, or which his church may receive in the future, for the
purpose of trying cases, or collecting taxes; but that the said bishop
and his successors shall hold the said lands in the name of the Lord
with full immunity. We decree therefore that neither you nor any of your
subordinates or successors, nor any other public official shall presume
to enter the lands of the said church for the purpose of trying cases,
of collecting taxes or revenues, or receiving entertainment or seizing
supplies or securities. All the taxes and other revenues which the royal
treasury has a right to demand from the people on the lands of the said
church, whether they be freemen or slaves, Romans or barbarians, we now
bestow on the said church for our future salvation, to be used by the
officials of the church forever for the best interests of the church.
193. Form by which the King Granted Lands with Immunity to Secular
Persons.
Marculf, I, no. 14; pp. 52 f; Altmann und Bernheim, no. 113.
Those who from their early youth have served us or our parents
faithfully are justly rewarded by the gifts of our munificence. Know
therefore that we have granted to that illustrious man (name), with
greatest good will, the villa called (name), situated in the county of
(name), with all its possessions and extent, in full as it was formerly
held by him _or_ by our treasury. Therefore by the present charter which
we command to be observed forever, we decree that the said (name) shall
possess the villa of (name), as has been said, in its entirety, with
lands, houses, buildings, inhabitants, slaves, woods, pastures, meadows,
streams, mills, and all its appurtenances and belongings, and with all
the subjects of the royal treasury who dwell on the lands, and he shall
hold it forever with full immunity from the entrance of any public
official for the purpose of exacting the royal portion of the fines from
cases arising there; to the extent finally that he shall have, hold, and
possess it in full ownership, no one having the right to expect its
transfer, and with the right of leaving it to his successors or to
anyone whom he desires, and to do with it whatever else he wishes.
194. Grant of Immunity to a Secular Person, 815.
Altmann und Bernheim, no. 114.
In the name of our Lord and Savior Jesus Christ. Ludwig, by divine
providence emperor, Augustus. Be it known to all our subjects, present
and future, that our faithful subject, John, has come to us and
commended himself to us, and has besought us to confirm to him the
possession of lands [described] which he and his sons and their men have
cleared and occupied. He has shown us the charter which he received from
our father Karl the Great. We have consented to do this and have done
even more; we have given him certain villas [named] with their extent
and dependencies ... granting that he and his sons and his posterity may
hold them in peace and security. No count, _vicarius_, or their
subordinates, or any other public official shall presume to judge or
constrain any persons living on those lands, but John and his sons and
their posterity shall judge and constrain them....
195-208. Growth of the Feudal Elements During the Late Merovingian and
the Carolingian Period.
The elements which we have just described and illustrated were
essentially private in their nature. They assumed, however, political
importance in the threatened dissolution of society, due to the failure
of the public government. In a period when the state was unable to give
adequate protection to the common individual, that person naturally
regarded his allegiance to his real protector, his lord or landlord, as
of more importance to him than his relation to the state. The natural
tendency of powerful persons to increase their power over their
dependents and their independence of higher authority was given its
opportunity by the weakness of the monarchy and the central government.
The four centuries from 550-950 were in the main a period of disorder,
interrupted, of course, by the period of Carolingian strength, including
the reigns of Karl Martel, Pippin, and Karl the Great. During these four
centuries the existing feudal elements developed and hardened into a
system of society, and two new features were added: the feudalizing of
offices, and the connection of land-holding with military service. These
are so characteristic of the feudal age that their origin is illustrated
here.
195-196. The Feudalizing of Public Offices.