Published in "Innocent III and the Ius commune," Grundlagen des Rechts: Festschrift für

Peter Landau zum 65. Geburtstag, herausgegeben von Richard Helmholz, Paul Mikat, Jörg

Müller, Michael Stolleis (Rechts- und Staatswissenschaftliche Veröffentlichungen der

Görres-Gesell-schaft, NF 91; Paderborn: Verlag Ferdinand Schöningh, 2000) 349-366

Innocent III and the Ius commune

Kenneth Pennington

Twenty six years ago I published an article on Innocent’s knowledge of law in the Bulletin of

Medieval Canon Law. The editor of the journal, Stephan Kuttner, did not like it. But he liked me.

He hoped that I would change my mind and not publish it. To save me from myself, Stephan waited

two years to print it. When he finally put it in the journal, he wrote a note at the beginning:

‘Although . . . there is no text to prove that Innocent III was a doctor of law or studied with Huguccio

<Pennington> too readily discount<s> the internal evidence for his legal learning, that is, the

consistent professional flavor apparent, from the beginning of Innocent’s pontificate, in the

language of his decretal letters.’1 That note was stiff medicine for a young historian; nonetheless,

I agree with Stephan’s implicit point: we can learn much about Innocent’s and his curial officials’

learning from the letters in his registers. In this essay dedicated to Stephan’s successor, I would

like to look at a few of his letters from the first seven years of Innocent’s pontificate and illustrate

some relationships to the Ius commune and take another look, pace Stephano, at the vexing question

of Innocent’s knowledge of law.

I was introduced to Innocent’s letters when I edited of Johannes Teutonicus’ commentary

on Compilatio tertia. As I worked my way through Johannes, I noticed time and time again how

Petrus Beneventanus had edited them. He changed words, sentences, and even substantive meaning

in the letters to bring them into concordance with his, not Innocent’s, understanding of canonical

jurisprudence.2 This evidence first led me to doubt Innocent’s legal learning.

However, I quickly came to the conclusion that Innocent could not have possibly written all

the letters produced by the papal curia. Consequently, when Petrus Beneventanus edited those

letters we cannot suppose that he imagined Innocent sitting in the papal chancellery writing or

dictating each of them. Petrus had worked in the curia. He undoubtedly knew the people in the

curia who drafted these letters. Today, most scholars agree that although Innocent could not have

participated in the drafting of all his letters, he certainly wrote some of them. To decide which

letters are Innocent’s is no easy task.

When I first wrote about Innocent’s knowledge of law, I formulated my question almost

entirely in terms of canon law and the decretals produced during his pontificate. I understand now

that my approach was far too narrow. I have introduced ‘Ius commune’ into the title of my essay

because Innocent’s legal learning must be judged not only by his knowledge of canon law but also

1 BMCL 4 (1974) 70, reprinted with additional material in K. PENNINTON, Popes, Canonists and Texts, 1150-1550,

Aldershot 1993. 2 I have discussed PETRUS’S methodology in 'The Making of a Decretal Collection: The Genesis of Compilatio tertia,’

Proceedings of the Fifth International Congress of Medieval Canon Law, Salamanca, 1976. Vatican City 1980, 67-

92, reprinted in Popes,, Canonists and Texts.

2

by his knowledge of Roman law and the jurisprudence produced by the happy partnership of both

laws during the twelfth and later centuries. By the end of the twelfth century the study and

knowledge of canon law demanded training in Roman doctrine and principles. This erudition could

not be picked up easily. If Innocent had studied law at the end of the twelfth century, he would

have had to learn many concepts that he could not have found in canonical texts. For example,

when the canonists discussed points of procedure, they relied heavily on the norms that they derived

from Roman law. Common judicial situations, like the defendant’s right to recuse a judge, were

discussed almost entirely by using Roman legal terminology and norms.3

No matter who drafted Innocent’s letters, the Ius commune percolates through them. His

most significant decretals shaped the doctrine and substance European law for centuries afterwards.

Innocent’s legislation has not always been viewed benevolently. Three hundred years after his

death François Rabelais condemned papal decretal law with wicked, cutting, scabrous humor.

Three of the seven decretals that he singled out as particularly inimical to the Kingdom of France

were Innocent’s.4 In the present essay, I would like to offer examples how Innocent’s curia

created norms for the Ius commune through the pope’s decretals and to discuss an item in

Innocent’s registers that I believe can give us further insight into the pope’s legal learning.

If I were to pick out one aspect of the jurisprudence of the Ius commune that was most

important for shaping legal institutions in medieval and early modern Europe it would be the

creation of norms, maxims, and rules of law. Scholars ignore the power of these norms to mold

thought, institutions, and even actions at their peril. We are discovering that the Ius commune’s

influence was far more pervasive than we had thought. Richard Helmholz has recently published

a splendid study of its influence on the most famous document in the English legal tradition,

Magna Carta. Some English historians will cringe at the thought of ‘Romanist’ ideas embedded in

that palladium of Anglo-Saxon liberties, but eventually even they will have to concede that England

too lay within the sphere of the Ius commune.5

Legal historians have long noted that many of the Ius commune’s norms had their origins

in Roman law. A well-known, typical example is Quod omnes tangit ab omnibus approbari debet,

which began life as an unimportant passage in Justinian Code but was transformed by the jurists

of the Ius commune into one of the most striking maxims in Boniface VIII’s Sext.6 Quod omnes

tangit became a cornerstone of public law in the Middle Ages and was immortalized fifty-two years

ago by Gaines Post in a fundamental article that he later expanded in his book.7

There were, however, other models for the creation of maxims. Some, like necessitas legem

3 W. P. MÜLLER, Huguccio: The Life, Works, and Thought of a Twelfth-Century Jurist. Studies in Medieval and Early

Modern Canon Law, 3. Washington, D.C. 1994, 184.

4 FRANÇOIS RABELAIS, Gargantua and Pantagruel. New York-London 1955, 4.53 (p. 562).

5 R. HELMHOLZ, ‘Magna Carta and the Ius commune,’ The University of Chicago Law Review 66 (1999) 297-371.

6 Cod. 5.59.5.2, VI 5.12.29. See P. STEIN, Regulae iuris. From Juristic Rules to Legal Maxims, Edinburgh 1966,

149-150.

7 G. POST, ‘A Romano-Canonical Maxim, Quod omnes tangit in Bracton,’ Traditio 4 (1946) 197-251, reprinted with

additional material in: Studies in Medieval Legal Thought: Public Law and the State 1100-1322, Princeton 1964, 163-

238.

3

non habet, had primarily canonistic roots.8

8 The paternity of this maxim seems to stretch back to the VENERABLE BEDE; see X 5.41.4.

4

The history of necessitas legem non habet, from its origins in the early Middle Ages to its

maturity in the Ius commune, remains to be written. Although legal historians have commonly

attributed the maxim to Roman law, it was unknown to ancient Roman law. The Roman jurists

knew the general concept of necessity, but they conceived of necessity as an exception to legal

sanctions, but never, as far as we can tell, generalized the concept. The Pseudo-Isidorian forger

first gave the concept its classic form in the early Middle Ages when he argued that the sacred rites

should not be celebrated in non-consecrated places, nisi pro summa necessitate contingat, quoniam

necessitas legem non habet, in a letter attributed to Pope Felix.9 The chapter and the maxim

circulated fairly widely in the eleventh and early twelfth centuries. Burchard of Worms included

it in his collection.10 It was also included in the Tripartita that is sometimes attributed to Ivo of

Chartres.11 Both collections circulated widely. Anselm of Lucca and Gregory, cardinal of

Crisogono, included the letter in their collections. The compiler of De consecratione took an

edited version of the letter for his appendix to Gratian’s Decretum from an unknown collection.12

Gratian As far as I can tell Gratian was the first jurist to insert the maxim into the the jurisprudence

of the Ius commune when he quoted it in a dictum of the first recension of his Decretum: Quia

enim necessitas non habet legem, set ipsa sibi facit legem.13 At the end of the twelfth century,

Bernard of Pavia found a similar passage in the Venerabile Bede and placed it among the rules of

law that he attached to his new decretal collection. Raymond of Penafort took it from there and

placed it in the Decretals of Gregory IX (X 5.41.4). These chapters became loci classici for the

discussion of the maxim as it was transformed from an exception applicable to religious rules and

practices to a principle of private and public law. As usual Huguccio gave elegant expression to

the point:

In times of necessity a person is not subject to the law and is not called a breaker of law; that is

guilty of transgressing the law, even though the person had done other than what law commands.

For our purposes, this norm led every jurist of the Ius commune to conclude that ‘in times of

necessity, all property is held in common.’14 Necessity derogated law, the jurists decided,

especially when it was urgens or cogens.15 More on this norm and its importance for judging

9 The concept of necessitas is much older, see E. CORTESE, La norma giuridica. Spunti teorici nel diritto comune

classico, Milano 1962, reprinted Milano 1995, 1.262-266, but it too received its full panoply of meanings only

during the twelfth and thirteenth centuries.

10 Decretum 3.58 (Iudei ergo loca), a longer excerpt of the letter. It circulated in 8 collections. Linda Fowler-

Magerl, KanonesJ (CDRom 2003).

11 Tripartita 1.50.1 (Satius est), a shorter excerpt. This version circulated in 15 canonical collections. See Fowler-

Magerl.

12 De con. D.1 c.11. Much later BERNARD OF PAVIA found the concept, if not the exact wording, in BEDE’s Homily

on the Gospel of Mark, 2:27, and placed it under De regulis iuris, 1 Comp. 5.37.12 (X 5.41.4): Quod non est licitum

in lege, necessitas facit licitum.

13 C.1. q.1 d.p.c.39; to which HUGUCCIO commented, s.v. necessitas non habet legem: Idest in necessitate positus

non subest legi, non dicitur legis esse transgressor, idest reus transgressionis, licet aliter faciat quam precipiat lex,

ut de con. di.i. Sicut non alii [Lons-le-Saunier, Archives departementales du Jura, 16, fol. 126r].

14 E.g. BERNARDUS PARMENSIS, Ordinary Gloss to X 5.41.4, s.v. necessitas: unde tempore necessitatis omnia sunt

communia.

15 See B. TIERNEY, The Idea of Natural Rights, Emory University Studies in Law and Religion, 5; Atlanta 1997,

5

Innocent’s legal learning that later.

We can follow the long gestation of necessitas legem non habet from Bede to Gratian only

dimly. However, the birth of another important maxim of criminal law, publicae utilitatis intersit

ne crimina remaneant impunita is clearly visible in Innocent III’s registers.

Ne crimina remaneant impunita became a standard maxim of the Ius commune in the later

Middle Ages. It was used by canonists and civilians alike. Although not included under the title

De regulis iuris in the Decretales of Gregory IX or the Sext of Boniface VIII, its exclusion did not

impede its illustrious career.16 Like many of the regulae iuris that became part of medieval

jurisprudence, Ne crimina remaneant impunita had its ultimate origins in Roman law.17 In the

jurisprudence of the Ius commune, Roman law, particularly the Digest, became a rich quarry from

which the jurists extracted roughly hewn blocks with which they built sophisticated juridical

concepts.

The origins of Ne crimina remaneant impunita can be traced to the papal chancery during

the first year of Innocent’s pontificate. A certain Hungarian Magister L. Taruisinus, along with

several other clerics, had the temerity to steal two folia from a Register of Pope Alexander III from

under the nose of the papal chancellor. Their crime was reported to Rome. Innocent was furious.

He demanded that King Henry of Hungary take action against the criminals. In the decretal,

Inauditum he wrote to the king that publice interest, quod maleficia non remaneant impunita.18

The English canonist, Alanus Anglicus, included the letter in his decretal collection and provided

it with a brief gloss. Alanus noted that the sentence was a borrowing from a fairly obscure

passage in the section of Justinian’s Digest devoted to the Lex Aquilia.19

It is worth dwelling upon what the jurist who drafted Inauditum did. The passage in the

Lex Aquilia dealt with a matter of private law: the right of a slave owner to receive compensation

for damages to his property. This was a private right. The Roman jurisconsult Julian argued that

wrongs, maleficia, should not go unpunished. A sentence later he added that punishments of

wrongs benefitted the common good.20 The curial jurist combined both of these ideas and applied

them to criminal law. It was a clever adaptation of Roman law, but Alanus was the only major

69-77, esp. 71, n.92, quoting Huguccio. See also G. COUVREUR, Les pauvres. Ont-ils des droits?, Paris 1961, 91-

106 and 141-154, and who prints many texts of Huguccio on pp. 290-296,

16 R. M. FRAHER, The Theoretical Justification for the New Criminal Law of the High Middle Ages. ‘Rei publicae

interest, ne crimina remaneant impunita’, in: University of Illinois Law Review (1984) 577-595.

17 P. STEIN, Regulae iuris. From Juristic Rules to Legal Maxims, Edinburgh 1966, 144-152.

18 INNOCENT III, POPE. Die Register Innocenz' III. 1. 1. Pontifikatsjahr, 1198/1199, Texte. Ed. O. HAGENEDER AND

A. HAIDACHER. Publikationen des Historischen Instituts beim Österreichischen Kulturinstitut in Rom. Wien 1964.

No. 546 (549), pp. 790-791. Po. 591

19 ALANUS 5.12.5 Inauditum hactenus speciem falsitatis. Vercelli, Bibl. Cap. 89, fol. 120r-120v. Gloss of Alanus

to et publice interest quod maleficia non remaneant impunita, fol. 120v: Infra de incid. in can. Vt fame <Alan. K

5.23.2= 3 Comp. 5.21.8 (X 5.39.35)>, ff. ad leg. Aquil. Item uult [Ita uulneratus recte] § penult. <Dig. 9.2.51(52).4>

ff. [C. recte] de [ade male] penis, Superioris [Si operis recte], <Cod. 9.47.14> ff. de fideius. Si a reo § Idem quod

uult [uolgo recte] <Dig. 46.1.70(71).5>.

20 Dig. 9.2.51(52).4: cogitet longe absurdius constitui neutrum lege Aquilia teneri aut alterum potius, cum neque

impunita maleficia esse oporteat nec facile constitui possit, uter potius lege teneatur, multa autem iure civili contra

rationem disputandi pro utilitate communi recepta esse innumerabilibus rebus probari potest.

6

compiler who included Inauditum in a canonical collection.

The maxim resurfaced four years later in another decretal, Vt famae written to the

archbishop of Lund.21 In this decretal Innocent permitted prelates in Sweden to jail clerics who

persistently committed violence. They could delegate the task of forcibly apprehending these

criminals to laymen because publice utilitatis intersit, ne crimina remaneant impunita.22

Bernardus Compostellanus, Petrus Beneventanus, and Raymond of Pennafort placed Vt famae in

their collections, and the maxim very quickly became a standard point of reference in medieval

criminal law. As Richard Fraher has argued, this maxim spoke to the age; one might observe that

it speaks to every age.

The curial drafters of the decretals made key changes in the wording of Vt Famae. They

linked utilitas more closely with the idea that crimes should not remain unpunished and substituted

crimina for the word maleficia in the Lex Aquilia and Inauditum. Both changes were significant.

Utilitas was a key concept in the jurisprudence of the Ius commune.23 From the early days of his

pontificate Innocent’s letters maintained that the pope had great power, plenitudo potestatis, but

that he should exercise his power for the public utility.24 The norm of utilitas was often combined

with necessitas in his letters: Quia vero summa necessitas exigit et communis requirit utilitas

(Because the highest necessity demands it and the common good requires it) was the elegant

formulation that Innocent used during the second year of his pontificate, in a letter in which the

pope proclaimed the need for a new crusade.25 This necessitas, it should be noted, is very different

from necessitas legem non habet. This necessitas of waging a Holy War against the Sarracens

enhances the authority of the of the pope and the legal order; it does not derogate or abrogate it as

the famous maxim does.

The change from maleficium to crimen was also significant. Maleficium could, in Roman

law, mean a private wrong, a delict, or a public wrong, a crime. By changing the word to crimen

he took the maxim completely out of the sphere of private law and placed it firmly in the realm of

public law. In Vt famae the curial jurist --- who may have been the same one who formulated the

phrase in the earlier letter --- formulated a maxim whose thought and language conformed perfectly

to the concepts of the Ius commune. By 1210 Tancredus of Bologna began his important tract on

21

FRAHER, Justification 577–578, thought that the decretal was addressed to the bishop of London and

consequently connected the decretal with the Becket controversy.

22 INNOCENT III, POPE. Die Register Innocenz' III. 6. 6. Pontifikatsjahr, 1203/1204, Texte und Indices. Ed. O.

HAGENEDER, J. C. MOORE, AND A. SOMMERLECHNER WITH C. EGGER AND HERWIG WEIGL. Publikationen des

Historischen Instituts beim Österreichischen Kulturinstitut in Rom. Wien 1995. No. 181 (183), pp. 301-302. The

letter was included in a number of decretal collections, including 3 Comp. 5.21.8 (X 5.39.35).

23 CORTESE, La norma giuridica 1.185-186, 262-268 et passim, 2.1

24 INNOCENT III, POPE. Die Register Innocenz' III. 6. 6. Pontifikatsjahr 6.16 (Po. 1858), p.29: sic tamen apostolica

sedes auctoritatem propriam moderatur, ut plus quod expedit quam quod licet attendens, potentiam suam publice

utilitati conformet ibique causas. This decretal was included in the collections of ALANUS 2.1.6, BERNARDUS

COMPOSTELLANUS 2.2.6, and 4 Comp. 2.2.4, but not into the Decretals of Gregory IX. In Pope and Bishops. The

Papal Monarchy in the Twelfth and Thirteenth Centuries, Philadelphia 1983, 24, I mistakenly asserted that the

decretal can be found only in BERNARDUS’ collection.

25 INNOCENT III, POPE. Die Register Innocenz' III. 2. 2. Pontifikatsjahr, ed. O. HAGENEDER, W. MALECZEK, AND A.

STRNAD. Publikationen des Historischen Instituts beim Österreichischen Kulturinstitut in Rom. Wien 1979. No.

258 (270), pp. 496.

7

criminal law with the words: Quoniam rei publice interest ut crimina non remaneant impunita.26

The maxim’s career was established.

The most important question is, can we credit Innocent III with the authorship of this rule

of law? Can we imagine that his knowledge was Roman law was so profound that he would have

known this obscure passage in Julian’s commentary on the Lex Aquilia? How much do we think

Innocent learned during the two or three years he studied law? Whatever your answers may be to

those questions, this example is a splendid illustration of how Innocent’s decretal letters shaped

the jurisprudence of the Ius commune.

The birth of Ne crimina remaneant impunita does not, I believe, shed any light on

Innocent’s legal learning. My own answer to the questions I posed in the previous paragraph is

that the ‘consistent professional flavor apparent , from the beginning of Innocent’s pontificate, in

the language of his decretal letters’, was due to a gaggle of jurists who worked in the curia in

various capacities. They, I think, were responsible for the creation of Ne crimina remaneant

impunita. Another item in register six is, however, very good evidence for assessing Innocent’s

thought, his knowledge of law, and his state of mind at a crucial point during the time that the

knights on the Fourth Crusade were making their way to Constantinople. It has the clear imprint

of Innocent’s mind and prose. The tract has the rubric Consilium quod dominus papa Innocentius

misit crucesignatis sine bulla.

If ever we might know something of Innocent’s mind, it would be here. No other letter in

the entire corpus of his letters was labeled a consilium. That fact is remarkable for two reasons.

First, by June, 120327 consilium had become the term designating a response written by jurists to

a particular legal problem.28 The papal curia’s description of the text as a consilium resonates

with the world of the jurists and the Ius commune. A consilium was not a judgment nor a binding

statement of law on those for whom it was written. Most importantly, it was not a rescript. A

rescript was an authoritative response of the pope to legal questions posed by judges or litigants.

During Innocent’s pontificate, Pastoralis officii diligentia was the most important rescript

produced by his curia. It, however, was dated, sent with a papal seal attached.29 A rescript had

the authority of the papal office behind it. A consilium, even if written by the pope, was advisory

and not normative. Second, the consilium was sent sine bulla. Since this designation is also unique

in Innocent’s registers, we cannot know exactly what that phrase was intended to convey. Taking

the two terms together, however, we can draw some conclusions. This consilium was not a

26

FRAHER, Crimina impunita 580. Cf. also R. M. FRAHER, Tancred’s Summula de criminibus. A New Text and a

Key to the Ordo iudiciarius, in: BMCL 9 (1979) 23-36.

27 The date of the consilium has been much debated. Some crusade historians wish to push it back to early 1203

and connect it with the crusaders’ stay in Zara. HAGENEDER, rightly I think, dates it to the time of the letters

surrounding it in the registers. On this point, see the literature cited by D. E. QUELLER AND T. F. MADDEN, The

Fourth Crusade. The Conquest of Constantinople, 2nd Ed. Philadelphia 1997, 90-92.

28 Very few consilia survive from this period. For examples see the two drafted by LOTHARIUS OF CREMONA ca.

1209 in K. PENNINGTON, Lotharius of Cremona, in: BMCL 20 (1990) 48, reprinted in Popes, Canonists and Texts,

1150-1550.

29 A rescript could also be subject to criticism. An anonymous canonist (perhaps BERNARDUS COMPOSTELLANUS?)

wrote in the margin of Modena, Bibl. Estense 968, fol. 77v to the section of Pastoralis included in later collections

under the title De decimis (3 Comp. 3.23.5) in BERNARDUS COMPOSTELLANUS’ collection, s.v. Explicari preterea

postulasti: O Innocenti innocenter respondes, set obscure.

8

definitive judgment, and we may understand sine bulla as underlining that point.

From these two pieces of evidence, I think that we can conclude that Innocent or the curia

did not send the consilium as a judgment or as a binding statement. This fact has been consistently

overlooked by crusade historians who have universally described it as a ‘papal letter’ sent by

Innocent to the crusaders.30 If it had been a papal letter, its legal force would have been

substantially greater. From Innocent’s point of view, we may understand this consilium as

exhortative but not authoritative, suggestive but not dispositive.

The consilium was a unique item in Innocent’s registers. Its legal significance for the

period is fairly clear. A more interesting and important question is why Innocent or his curial

officials labeled this tract a consilium? The possibilities are intriguing because they would reflect

Innocent’s attitudes and motivations at a key moment during the Fourth Crusade. Historians have

debated whether Innocent violated ethical boundaries when he continued to support the crusade

after it had captured Zara.31 This tract raises the question whether curial opposition to or concern

about the Fourth Crusade forced Innocent to send a letter to the army that was advisory rather than

binding, hortatory rather than mandatory. We lack, of course, evidence about the attitudes of the

cardinals towards the crusade and its misadventures. But it is not difficult to imagine that members

of the curia might have objected to the letter on political and legal grounds. We might conclude,

without violating the evidence too much, that Innocent sent the tract over the objections of some

cardinals and was persuaded that it should not be a firm papal endorsement of the crusaders’

current situation and goals (exactly what Innocent knew about their plans at the moment that he

wrote the letter is not known) but only an advisory letter. Since no copy of the letter that the

crusaders received survives, we cannot know how it was labeled and how it was addressed.

In his brilliant study of the College of Cardinals, Werner Maleczek noted that after 1203

Innocent’s use of the cardinals changed. After that time he relied on a small circle of men who

became his trusted advisors. Further, from 1203 on, Maleczek found that Innocent incorporated

the phrase de fratrum nostrorum consilio less and less in his letters. He concluded that ‘this was

an indication that the pope asked for the advice of the entire college less frequently than before’.32

Can the political background of this consilium be a part of the reason why Innocent changed his

strategy of governance? We can never know for certain, but the evidence is suggestive. If nothing

else, Innocent exercise his power with a constant eye on papal prerogatives. Nothing in his

character would lead one to believe that he would encourage or tolerate dissent or opposition to

30

E.g. H. ROSCHER, Papst Innocenz III. und die Kreuzzüge. Forschungen zur Kirchen- und Dogmengeschichte, 21.

Göttingen 1969, 109; See A. J. ANDREA AND I. MOTSIFF, Pope Innocent III and the Diversion of the Fourth Crusade

Army to Zara, in: Byzantinoslavica. Revue internationale des études Byzantines 33 (1972) 6-25, at 23-25, A. J.

ANDREA, Conrad of Krosigk, Bishop of Halbertstadt, Crusader and Monk of Sittichenbach. His Ecclesiastical

Career, 1184-1225, in: Analecta cisterciensia 43 (1987) 11-91, at pp. 28-29, and QUELLER AND MADDEN, The

Fourth Crusade 90-92.

31

QUELLER AND MADDEN, The Fourth Crusade 250-255 and a stimulating essay presenting two divergent points

of view, A. J. ANDREA AND J. C. MOORE, A Question of Character. Two Views on Innocent III and the Fourth

Crusade, that will be published in the Proceedings of the 1998 Conference in Rome, Innocenzo III. Urbs et Orbis,

by the Istituto storico italiano per il Medio Evo and the Società Romana di Storia Patria.

32 W. MALECZEK, Papst und Kardinalskolleg von 1191 bis 1216. Die Kardinäle unter Coelestin III. und Innocenz

III. Publikationen des Historischen Instituts beim österreichischen Kulturisntitut in Rom, Abhandlungen, 6. Wien

1984, 354-355.

9

his policies. After six years in office, Innocent may have discovered, as many rulers have, that

ignoring dissent and isolating dissidents suited his vision of papal monarchy.33

By the time the tract circulated outside of the papal curia in other sources, the crusade was

generally viewed as a success. Latins ruled in Constantinople, and Innocent’s policies looked

measured and wise. The author of Gesta Innocentii included the consilium into his account of the

Fourth Crusade34 and introduced the letter with this sentence: Ad consultationes autem Francorum

dominus papa rescripsit hoc modo. By transforming Innocent’s consilium into a rescriptum

(rescripsit has a precise, technical meaning in law; a rescript is a formal response to a question of

law) and omitting the rubric of the register, the author has endowed, perhaps unwittingly, much

more legal force to the letter than the register’s rubric gave it. This choice of language could

indicate a lack of legal knowledge. Or, since the author of the Gesta was a part of the pope’s inner

circle, perhaps the change was quite intentional. In any case, later canonists tacitly transformed

the consilium in exactly the same way as the author of the Gesta had: they obliterated the rubric

and transformed the consilium into a papal letter by giving it the inscription: Universis

crucesignatis.35 Most probably, the canonists probably did not have access to the papal registers

to see its original form.

I would argue that the canonists’ treatment of the consilium is the primary evidence for

judging its jurisprudence. Several canonists put the tract (now transformed through its inscription

into a decretal letter)in their decretal collections. They and other canonists then glossed it. The

original consilium divides neatly into two parts. The crusaders must have asked Innocent two

different but related questions in the Spring of 1203 as they made their way from Zara to

Constantinople. The first question was answered by the text (lines 1-88[ see text in

Appendix]). It must have asked whether the crusaders could sail with the excommunicated

Venetians without falling under the ban of excommunication themselves. Innocent responded by

permitting the crusaders to sail with the Venetians until they reached the lands of the Saracens or

the province of Jerusalem. He justified his position in two ways. If he had ordered the crusaders

to abandon the Venetian ships after they had already paid for passage, the Venetians would be

rewarded for their intransigence. Citing a decretal of Pope Gregory VII, Innocent also argued that

the Venetians could be compared to an excommunicated paterfamilias(lines 31-35). Consequently, his immediate family --- the crusaders --- did not have to shun contact with him ---

the Venetians.36 This part of the consilium became a part of canon law and provoked a lively

33

I have discussed Innocent’s ideology of papal monarchy in Pope and Bishops, chapters one and two. I reprinted

a revised version of chapter one in Popes, Canonists and Texts.

34 Vat. lat. 12111, fol. 34r-35r: Ad consultationes autem Francorum dominus papa rescripsit hoc modo = Migne,

PL 214.cxl.

35 ALANUS’S First and Second Recensions of his collection: 1st Recension: R. VON HECKEL, Die

Dekretalensammlungen des Gilbertus und Alanus nach den Weingartener Handschriften, in: ZRG, KA 29 (1940)

116-357 at 303-304. 2nd Recension: Vercelli, Bibl. cap. 89, fol. 126v and Salzburg, St. Peter’s Archabbey, a.IX.18,

fol. 235r-235v; Bern. 5.22.13 (Modena, Bibl. Estense 968, fol. 233r) and 3 Comp. 5.21.7 repeat ALANUS’s

inscription.

36 E. VODOLA, Excommunication in the Middle Ages (Berkeley-Los Angeles-London 1986) 132-135.

10

debate among the canonists about the validity of contracts concluded with excommunicates.37 The

canonists restricted any general application of Innocent’s principle. They concluded that the

crusaders’ contracts may be valid but they did not extend this privilege to the contracts of other

Christians who had business dealings with excommunicates. At the end of the first section

included in the canonical collections (lines 44-53) Innocent warned the crusaders not to wage

war with the Venetians after they reached the lands of the Saracens unless the Venetians had been

absolved. He followed this admonition with biblical citations that confirmed his warning (lines

55-88). Innocent used a series of biblical texts to prove that those who waged war burdened with

sin suffered the travail of defeat.

The second part (lines 89-143) responds to a question how the crusaders could obtain

provisions if they did not have sufficient funds or the support of the emperor in Constantinople.

Innocent assured the crusaders that he will write to the emperor in Constantinople and ask that he

provide for the crusaders’ needs. The emperor had already promised aid (lines 89-93) .38

However, if the emperor did not render aid --- a possibility that Innocent must have thought likely

by this time --- the crusaders could take what they needed from the local populace (lines 97-

104):39

it may not seem absurd that you may, remembering to fear the Lord, take those things with the

intention of making reparations and only those things that are necessary, without any injury of

persons. In this you may imitate the earthly emperor, concerning whom it is provided for in civil

law that if his army were in need of food, it can gather provisions from anywhere.

As with the first section of the consilium, Innocent appended a thicket of biblical citations with

which he attempted to reinforce the legal arguments. These theological sections of the consilium

are, to my mind, the surest signs that Innocent himself had a hand in drafting it.

Alanus Anglicus was the first canonist to place the consilium in his collection, and he also

provided it with a gloss. His editing of text and comments provide some understanding how a

jurist reacted to Innocent’s handling of legal ideas. The first point to make is that Alanus included

both sections of the consilium but excised the biblical arguments entirely. The canonists did not

always find Innocent’s biblical arguments unpersuasive. They cheerfully included most of his

theological thought in decretals like Per venerabilem. But here Innocent’s biblical exegesis did

not strike a responsive chord. It is noteworthy that Innocent’s biblical passages are cited in no

other letters of the six years for which we have annotated editions.

Neither Alanus’ editing nor his commentary on the first part of the consilium departs from

Innocent’s ideas. He referred to the decretal of Pope Gregory VII that Innocent had cited from

Gratian’s Decretum40 (line 27-28) and agreed with the pope’s conclusions that crusaders could

37

Ibid. 146-153.

38 Neither of these letters is extant. Historians gave argued whether this statement was a lie or whether the pope’s

and emperor’s letters have been lost; see QUELLER AND MADDEN, The Fourth Crusade 250-255 and A. J. ANDREA

AND J. C. MOORE, A Question of Character (note 29).

39 No. 102, lines 30-34 (p. 167).

40 ALANUS, Apparatus to 2nd recension of his collection, 5.22.10 v. necessaria emere ac recipere: supra xi. q.iii.

Quoniam multos [c.103] [Vercelli, Bibl. cap. 89, fol. 126v].

11

do business with heretics and excommunicates.41 He noted that there could be a contrary opinion

about the licitness of communicating with a paterfamilias42 but underlined Innocent’s admonition

that the crusaders should not continue to associate with the Venetians once they reached the Holy

Land with a reference to a prohibition of Pope Urban II that vassals should not render feudal duties

to excommunicated lords.43

The second half of the consilium was much more problematic for Alanus. When he first

read Innocent’s assertion that ‘the earthly emperor, concerning whom it is provided for in civil

law that if his army were in need of food, it can gather provisions from anywhere’, Alanus must

have scratched his head. Perhaps he searched his law books for the reference --- but in vain.44

He had no idea to which provision of civil law Innocent referred. Second, when he edited the

consilium for his decretal collection he deleted the all important undecumque.45 (Line 101) The

idea that troops could forage anywhere with impunity must have puzzled, or perhaps even shocked,

Alanus (and some in the College of Cardinals?). The point is that Innocent considered the crusade

so important that he went beyond the limits of the norms of canon law and the Ius commune to

further its goals. Although we accept the right of the state to confiscate the property of non-

combatants in war time, medieval jurists never countenanced plundering the innocent. Several

centuries later Honoré Bonet upheld the property rights of private persons in war in his treatise on

the law of war:46

May it please God to put into the hearts of kings to command that in all wars poor laborers should

be left secure and in peace, for in these days all wars are directed against the poor laboring people

and against their goods and chattels. I do not call that war, but it seems to me to be pillage and

robbery.

Another example of Innocent’s insensitivity to legal norms when he wished to further the crusade

movement can be found in a letter that he wrote a few years earlier. In 1201 he issued a decretal

in which he declared that a man could take the cross without his wife’s permission. His ruling was

41

ALANUS, Apparatus to 2nd recension of his collection, 5.22.10 v. ab excommunicatis exigi: etiam in iudicio; set

excommunicatus compelletur per procuratorem respondere, ut supra de iudic. Intelleximus, lib. i. [1 Comp. 2.1.9

(X 2.1.7)] ubi de hoc plenius; v. possit: supra xxiii. q.vi. Iam uero rusticus [c.4]; v. et recipi: ipsius tamen non possit

exigere quod eis debetur, arg. xv. q.vi. Nos sanctorum [c.4] [Vercelli, Bibl. cap. 89, fol. 126v].

42 ALANUS, Apparatus to 2nd recension of his collection, 5.22.10 v. si paterfamilias excommunicatur: supra xi. q.iii.

Quoniam multos [c.103]; supra xv. q.vi. Iuratos {MS inuitos}[c.5], arg. contra [Vercelli, Bibl. cap. 89, fol. 126v].

43 ALANUS, Apparatus to 2nd recension of his collection, 5.22.10 v. cum eis nullatenus presumatis prelium Domini

preliari: supra xxiiii. q.iii. Cum quibus [c.36], arg. [Vercelli, Bibl. cap. 89, fol. 126v]. ALANUS argued that debitors

did not have to pay excommunicated creditors in his gloss on Urban’s letter: see the text printed in VODOLA,

Excommunication 221.

44 Alanus provided no citation to Innocent’s words de quo cautum est in iure civili in his apparatus; jurists never

overlooked these citations if they knew them.

45 I have collated the text in ALANUS’ collection contained in Salzberg, St. Peter’s Archabbey a.IX.18, fol. 235r-

235v and in Vercelli, Bibl. cap. 89. The author of the Gesta Innocentii (Vat. lat. 12111, fol. 34v) also included

undecumque in his version of the text, proving the adverb was in the original letter and underlining, perhaps, the

author’s lack of legal skills.

46 The Tree of Battles of Honoré Bonet, edited and translated by G. W. COOPLAND, Cambridge, Mass. 1949, Part

4, c.102, p. 189.

12

a clear violation of the rights of women by the standards of twelfth-century law and was meant to

eliminate one more annoying legal impediment for the crusaders.47

In searching for the source of Innocent’s claim that ‘civil law’ supported his contention

that crusaders could forage at will for food, the editors of Innocent’s registers have conjectured

that he may have been thinking of Justinian’s Novella 130.1-2 that was found in collation 10 of

the medieval-early modern Authenticum. This constitution is, indeed, the only one that deals with

the issue of provisioning armies in the entire corpus of Roman law. It, however, does not permit

foraging indiscriminately but dictated that the army should be provided for by Roman provincial

magistrates. Further, the tenth collation of the Authenticum did not exist in the early thirteenth

century. There were only nine collations during Innocent’s pontificate. The tenth, a collection of

miscellanea, was added at an uncertain, later time.48 Consequently Innocent and his jurists at the

curia could not have known or have cited this Novella. The upshot is that Alanus did not know,

and we still do not know what text of Roman law Innocent had in mind.49

Alanus chose to emphasize that in case of necessity, not just armies but all men were

justified foraging for food. Strikingly, he cited another letter of Innocent in his gloss in which

urgens necessitas justified the derogation of law. As we have already seen, canon law provided

that if human beings were in dire need, they could take what they must have to sustain themselves.

This was not theft. In his gloss to the consilium, Alanus cited a chapter in Compilatio prima that

contained a passage from Proverbs 6.30 (Small blame to the thief when he steals to fill his hungry

belly). The canonists almost universally interpreted this passage as defending theft in times of

need. Necessity, Alanus emphasized in his gloss, sanctioned many things that were not normally

permitted.50

47

J.A. BRUNDAGE has written about this policy of Innocent: The Crusader's Wife. A Canonistic Quandary, in:

StudGrat 12, Collectanea Stephan Kuttner 2 (1967) 425-441 and The Crusader's Wife Revisited, in: StudGrat 14,

Collectanea Stephan Kuttner 4 (1967) 243-251.

48 I know of no jurist who cited the tenth collation in the early thirteenth century (I have checked every citation to

the Authenticum in LAURENTIUS HISPANUS’ and JOHANNES TEUTONICUS’ apparatus to Compilatio tertia; they cite

only the first nine collations); for further information about what little we know about the medieval Authenticum

and its reception, see F. K. VON SAVIGNY, Geschichte des römishen Rechts im Mittelalter (5th Ed. reprinted Aalen

1986) 3.490-504.

49 MOORE in A. J. ANDREA AND J. C. MOORE, A Question of Character (note 29) has put forward the argument that

Innocent could have referred to angaria (Cod. 10.27.1 and Cod. 10.48.1-2). The strongest argument against

Moore’s idea is that Alanus did not see the connection between angaria and Innocent’s claim that the crusaders

could take provisions from anyone at any place. Further, angaria was a duty owed by a subject. The term was also

used to describe financial duties of clerics and institutions within the church in Gratian (C.10 q.3 c.10; C. 12 q.2

c.69; C.16 q.1 c.62; C.17 q.4 c.42; C.18 q.2 c.31). Until there is some evidence that any jurist of the period

interpreted angaria as a right of authorities to take property for which there was not a corresponding duty on the

part of the owner, MOORE’S argument will remain unconvincing.

50 ALANUS, Apparatus to 2nd recension of his collection, 5.22.10 v. eius exercitius indiguerit alimentis poterit ea

accipere: supra de con. di.v. Discipulos [c. 26], supra de furt. Non est grandis {MS: grande} [1 Comp. 5.26.3 (X

—)], lib.i. supra de ieiuniis, Consilium [Alan. 6.11[6.4.1] = Alan. 2nd rec. 6.5.2; 3 Comp. 3.33.2 and 3.35.2 (X

3.41.4 and 3.46.2)] [Vercelli, Bibl. cap. 89, fol. 127r]. The section of the decretal to which ALANUS refers is 3

Comp. 3.35.2 (X 3.46.2): tibi breviter respondemus quod in tali articulo illos non credimus puniendos, quod tam

urgens necessitas excusavit, and in fine: Super quo tibi respondemus quod cum non subiaceat legi necessitas,

desiderium infirmorum, cum urgens necessitas exigit, supportare potes et debes, ut maius in eis periculum evitetur.

ALANUS glossed these passages in Vercelli, Bibl. Cap. 89, fol. 134r-134v: v. non credimus puniendos: supra de

13

Both Innocent and Alanus stressed the importance of necessity in their arguments.

However, in the context of the jurisprudence of the Ius commune, this point is all important:

although the jurists would have granted that a person in extreme need and on the brink of starvation

--- urgens or cogens necessitas --- would have the right to forage for provisions, they would not

have conceived this right as a general privilege for a group of people.51 This was an individual

right, a ius, not a collective right. When Innocent wrote in lines 116 and 117 52 ‘Necessity,

especially when justifying necessary actions, excuses many things’ to support his argument, no

jurist would have agreed. As a general, non-technical observation, they might have cheerfully

consented to it. But as a reason for allowing soldiers to forage and take the property of others, the

argument did not convince them. That was not compelling necessity; the law remained in force.

Most significantly, Alanus and all the later canonists omitted this section of the decretals from

their collections. The argument had no persuasive force in the Ius commune.

Innocent’s biblical citations are as unusual as his legal arguments. In the Book of Judges,

Gideon killed the old men of Succoth and destroyed Penuel because those cities did not provide

provisions to his army.53 This bloody, brutal example was commonly allegorized to represent a

warning to Jews who insulted the preaching of the Christian Gospel.54 As Innocent did so often,

he departed from the accepted interpretation of the passage to create a novel argument that suited

his purpose. As Johannes Haller acidly commented when he analyzed Innocent’s thought in this

consilium: Um Gründe war der geschulte Jurist auch hier nicht verlegen.55 One might add to

Haller’s ironic observation that both jurists and theologians would have found his arguments

disconcerting.56

Through skillful editing, Alanus tried to incorporate a part of the second half of the

consilium into canon law; his successors did not.57 Following Alanus, later canonists also

sentent. excom. Si uere (MS: bene) [Coll. Alani 2nd rec. 5.22.10], supra de furt. Non grandis est, lib.i. supra de

con. di.v. Discipulos et c. Canonem, supra de uoto et uoti re. c.ult. v. subiaceat legi necessitas: supra de con. di.i.

Sicut non alii [c.11]. v. si infirmorum: supra de con. di.v. Carnem [c.32], supra de pen. Ad apostolice [Coll. Alani

5.20.5 = 2nd rec. 5.21.5], contra arg. v. potes et debes: sine aliqua compensatione, ut differat a precendenti casu,

et est bene notandum.

51 The key issue was the right of a poor or a starving person to food; see BRIAN TIERNEY, The Idea of Natural

Rights. Studies on Natural Rights, Natural Law and Church Law 1150-1625, Emory University Studies in Law and

Religion, 5. Atlanta 1997, 70-77.

52 No. 102, p. 168, lines 5-6.

53 Judges 8:4-16. JESSALYNN BIRD, Innocent III, Peter the Chanter’s Circle, and the New Crusade. Theory,

Implementation, Aftermath, that will be published in the Proceedings of the 1998 Conference in Rome, Innocenzo

III. Urbs et Orbis, by the Istituto storico italiano per il Medio Evo and the Società Romana di Storia Patria, has

brought another example of Innocent’s connecting Gideon to the crusade.

54 Ordinary Gloss to Judges 8, Migne, PL 108.1167.

55 Das Papsttum. Idee und Wirklichkeit, 3. Die Vollendung (Basel 1952) 373; cited by ROSCHER, Papst Innocenz

III. 109.

56 For another example of Innocent’s using biblical arguments in unusual ways, see my essay Pope Innocent III’s

Views on Church and State. A Gloss to Per venerabilem, in: Popes, Canonists and Texts.

57 BERNARDUS COMPOSTELLANUS 5.22.13 [Modena, Bibl. Estense 968, fol. 233r-233v] and PETRUS

BENEVENTANUS 3 Comp. 5.21.7 (X 5.39.34). Both BERNARDUS AND PETRUS ended the decretal at nequiveritis

14

eliminated all of Innocent’s theological arguments. One may conclude that if one were to judge

Innocent’s legal learning on the basis of this consilium that he wrote in the sixth year of his

pontificate, one would not give him high marks.58

Twelve years ago I wrote that ‘we should squeeze as much evidence as possible out of

Innocent’s works’ and ‘systematically compare his ideas to those of contemporary canonists and

theologians’. I have tried to do just that in this essay. What have the results been? If you believe

that Innocent was responsible for the creation of the maxim ne crimina remaneant impunita you

could argue that his legal learning was deep and broad. If you think that he that he had a hand in

drafting the consilium for the crusaders, he does not sparkle. At the very least this evidence drawn

from the papal registers will give pause to those scholars who think that Innocent’s letters ‘reflect

a single mind’. I also think that having a better understanding of the legal ramifications of his

consilium will permit crusade historians to continue their hoary arguments about Innocent’s

purpose and intent as he continued to support the errant Fourth Crusade. Was Innocent a great

pope? I have no doubt that he was. Was he a great jurist? I still have my doubts.59

Innocent’s consilium, without the line numbers mentioned in my text, can be

consulted at:

http://faculty.cua.edu/pennington/Medieval%20Papacy/ConsiliumZaraLatinE

ng.htm

evitare.

58 For the sake of brevity I have not explored the theological arguments in the consilium, but I think that their form

and substance prove that Innocent himself had a hand in drafting it.

59 RICHARD KAY and PETER D. CLARKE have also recently illustrated Innocent’s dubious grasp of legal concepts;

see KAY, Innocent III as Canonist and Theologian: The Case of Spiritual Matrimony and CLARKE, Innocent III,

Canon Law and the Punishment of the Guiltless, both in Pope Innocent III and his World, ed. JOHN C. MOORE,

Aldershot-Brookfield-Singapore-Sidney 1999, 35-49 and 271-285.