CUA Studies in Medieval and Early Modern Canon Law (15 vols.)

Winner of the 2007 History of Women Religious Distinguished Book Award

Whether they were secular canonesses or beguines, tertiaries or Sisters of the Common Life, quasi-religious women in the later Middle Ages lived their lives against a backdrop of struggle and insecurity resulting, in large measure, from their ambivalent legal status. Because they lacked one or more of the canonical earmarks of religious women strictly speaking, they had to justify their unauthorized way of life and to defend themselves against association with those who had been branded unorthodox, unruly, or even heretical. Ambiguous legal status within the organized Church and the contests to which it gave rise are a constant theme in the historiography of quasi-religious women, yet there has been no full-scale study of what it meant at law to be a mulier religiosa.

This book provides a thorough examination of the writings of canon lawyers in the late Middle Ages as they come to terms, both in their academic work and also in their roles as judges and advisers, with women who were not, strictly speaking, religious, but who were popularly thought of as such. It studies the ways in which jurists strove to categorize these women and to clarify the sometimes ambivalent canons relating to their lives in the community. It assesses, among other things, the extent to which lawyers proved responsive to popular as well as learned notions of what constituted religious life for women when the interests of particular clients were at stake.

“A Pernicious Sort of Woman” will be a useful supplement to books devoted to individual quasi-religious women or to specific manifestations of female lay piety. It will be of interest to historians of Christianity and specialists in the law and women’s studies as well as anyone interested in the history of religious women.

Over a period of some five centuries, Europe was transformed by the emergence of barbarian kingdoms in the regions of the former Roman Empire. In the turbulent post-Roman world, the Christian church and its bishops had considerable sway, as these kingdoms developed new institutions such as Christian kingship. Warlike kingdoms competed with each other and took on projects of political consolidation, religious accommodation, and conversion. Religious imperatives shaped the understanding of political culture, alongside aristocratic consensus and cooperation. The Franks ultimately dominated Europe and built a great empire, pursuing a doctrine of missionary warfare. Carolingian kings and nobles were mobilized by a religiously saturated ideology and by the appeal of an aggressive and expansionist political order.

Throughout these changes, bishops played a guiding role. Their special garments, liturgies, and hairstyle indicated their character as a priestly brotherhood, set apart from the rest of society, whose task was to regulate the affairs of men and ensure the benevolence of God. The function of bishops as a cohesive religious order, and their collaboration with kings, meant that their ideas had a special prestige. By their blessings bishops could protect crops, houses, and even the kingdom and its warriors. By their mastery of laws—canon, Roman, and barbarian—the bishops grasped the right nature of the social order and indicated to others God’s plan for the world.

Drawing on the records of nearly 100 bishops’ councils spanning the centuries, alongside royal law, edicts, and capitularies of the same period, this study details how royal law and the very character of kingship among the Franks were profoundly affected by episcopal traditions of law and social order.

The first book to include full texts and photographs from the Apostolic Penitentiary, A Sip from the “Well of Grace” is groundbreaking in its analysis of one of the most important papal offices of the Middle Ages. The Penitentiary alone was responsible for granting absolutions, dispensations, licences, and special declarations in various matters such as marriage, illegitimacy, murder and violence, confession, and clerical ordination. With access to archival records long sealed by the Vatican, Kirsi Salonen and Ludwig Schmugge offer historians many new insights for interpreting an important structure of medieval life.

The book begins with an introduction to the functions of the Apostolic Penitentiary and considers its role among the various papal offices. Also examined are the various circumstances for which Christians turned to its authority. Procedures for cases as well as the canon law regulations behind the cases are discussed, along with an overview of various documents that were produced during the handling of a case in the Penitentiary.

The second part of the book introduces several case studies. Each case is illustrated with the help of original documents preserved both in the Vatican Secret Archives and in numerous local archives in Germany, Italy, and Scandinavia. The original Latin documents are fully edited and accompanied by English translation. Each document is also available in the form of a digital photo, which allows readers to learn concretely what the documents and writing looked like and to exercise palaeographic skills.

A Sip from the “Well of Grace” will be an important addition to any collection on the social and religious history of the later Middle Ages. It is the seventh volume in the ongoing Studies in Medieval and Early Modern Canon Law series.

In the pallium the medieval papacy created a mechanism of control over the far-flung bishops of the Latin church, a prerogative by which the popes shared honor and power with local prelates—and simultaneously wielded power over them. Contributing to the sway and oversight of the Roman church, this vestment became part of the machinery of centralization that helped produce the high medieval papal monarchy.

The pallium was effective because it was a gift with strings attached. This band of white wool encircling the shoulders had been a papal insigne and liturgical vestment since late antiquity. It grew in prominence when the popes began to bestow it regularly on other bishops as a mark of distinction and a sign of their bond to the Roman church. Bonds of Wool analyzes how, through adroit manipulation, this gift came to function as an instrument of papal influence. It explores an abundant array of evidence from diverse genres—including chronicles and letters, saints’ lives and canonical collections, polemical treatises and liturgical commentaries, and hundreds of papal privileges—stretching from the eighth century to the thirteenth and representing nearly every region of Western Europe. These sources reveal that the papal conferral of the pallium was an occasion for intervening in local churches throughout the West and a means of examining, approving, and even disciplining key bishops, who were eventually required to request the pallium from Rome.

The history of the pallium provides an enlightening window on medieval culture. Through it one can perceive how medieval society expressed beliefs and relationships through artifacts and customs, and one can retrieve the aims and attitudes underlying medieval rituals and symbols. Following the story of this simple material object sheds light on some of the ways medieval people structured their society, exercised authority, and communicated ideas and values.

Pope Boniface VIII (1294-1303) published a decree in 1298 that transformed long-standing attitudes toward nuns into universal Church law. Referred to as Periculoso, the first word of the Latin text, this decree announced that all nuns, no matter what rule they observed and no matter where their monasteries were located, were to be perpetually cloistered. With the exception of those who were contagiously ill, nuns were under no circumstances to break the law of enclosure, either by leaving their monasteries or by inviting unauthorized persons into them. Ultimately, the decree altered the lives of nuns, while indirectly abetting the move toward alternatives to the cloister. Although historians of women religious have frequently cited Periculoso as a milestone, the text of the law and the legal comment that its publication occasioned have never before been exhaustively studied.

Canon Law and Cloistered Women provides the most thorough examination to date of the landmark decree. Elizabeth Makowski surveys precedents for Periculoso as well as some of the problems Boniface VIII hoped to solve with his legislation. She further analyzes the commentary on Periculoso, much of it written by practicing lawyers, which unveils late medieval attitudes toward nuns and their male counterparts. Finally, she concludes with a discussion of the attempts to enforce the legislation.

Makowski’s analysis illustrates not only the contribution that similar investigations of local efforts on the Continent might make to our understanding of conventual life, but also the difficulties—so often alluded to by medieval canonists—of making the “ideal” real.

Gratian’s Decretum is one of the major works in European history, a text that in many ways launched the field of canon law. In this new volume, Atria Larson presents to students and scholars alike a critical edition of De penitentia (Decretum C.33 q.3), the foundational text on penance, both for canon law and for theology, of the twelfth century. This edition takes into account recent manuscript discoveries and research into the various recensions of Gratian’s text and proposes a model for how a future critical edition of the entire Decretum could be formatted by offering a facing-page English translation. This translation is the first of this section of Gratian’s De penitentia into any modern language and makes the text accessible to a wider audience. Both the Latin and the English text are presented in a way to make clear the development of Gratian’s text in various stages within two main recensions. The edition and translation are preceded by an introduction relating the latest scholarship on Gratian and his text and are followed by three appendices, including one that provides a transcription of the relevant text from the debated manuscript Sankt Gallen, Stiftsbibliothek 673, and one that lists possible formal sources and related contemporary texts. This book provides a full edition and translation of the text studied in depth in Master of Penance: Gratian and the Development of Penitential Thought and Law in the Twelfth Century (CUA Press, 2014) by the same author.

Liberty and Law examines a previously underappreciated theme in legal history—the idea of permissive natural law. The idea is mentioned only peripherally, if at all, in modern histories of natural law. Yet it engaged the attention of jurists, philosophers, and theologians over a long period and formed an integral part of their teachings. This ensured that natural law was not conceived of as merely a set of commands and prohibitions that restricted human conduct, but also as affirming a realm of human freedom, understood as both freedom from subjection and freedom of choice. Freedom can be used in many ways, and throughout the whole period from 1100 to 1800 the idea of permissive natural law was deployed for various purposes in response to different problems that arose. It was frequently invoked to explain the origin of private property and the beginnings of civil government. Several kinds of permissive natural law were identified. Permission could be positive or negative, depending on whether it was specifically conceded by a legislator or only tacitly allowed. It could free from sin or merely remit some temporal punishment that was due. It could commend some conduct without commanding it or permit some evil without condoning it. Medieval canonists used the concept of permissive natural law to harmonize the discordant texts that they found in their sources; William of Ockham found it a powerful tool in his defense of Franciscan poverty against papal criticisms; for Richard Hooker it justified both the constitutional structure and the ritual practices of the Anglican church; John Selden used it to uphold the inviolability of contracts, most importantly the contract of government; Hugo Grotius made it a central theme in his treatment of the conduct permissible in waging war; in the eighteenth century Jean Barbeyrac and Jean-Jacques Burlamaqui associated the idea with the emerging doctrine of natural rights. In Liberty and Law, Tierney has presented us with a magisterial and provocative way of interpreting legal history.

In the first detailed study of papal penitentiary materials on marriage, renowned medieval historian Ludwig Schmugge tells the exciting stories of seduced maidens, too-closely-related husbands and wives, and thousands of couples who faced lawsuits—all of whom had transgressed marriage law on various grounds in the Middle Ages. This work vividly describes many of the individual cases and offers new insight into the social and legal pressures on marriage in the Middle Ages.

At a time when betrothal, marriage, and sexual morals were strictly subject to the church’s law, petitions from couples abounded. More than two hundred clerics of the penitentiary in the papal curia devoted their time and attention to these petitions alone. With exceptional thoroughness, Schmugge sifted through the thick volumes of registers in the Vatican Secret Archives for his research. Here he presents the exciting, almost unbelievable, and often scandalous fates of these late medieval men and women, while highlighting the important connection between the papal monarchy and the social history of the laity in the later Middle Ages.

This book presents the first full-scale study of the Tractatus de penitentia (C.33 q.3) in Gratian’s Decretum, which became the textbook for canon law and served as the basis of the church’s developing jurisprudence, in theory and in practice. The treatise on penance stands out as a distinct, overtly theological section of Gratian’s work and was long suspected of being a later addition to the Decretum. As a result, the treatise has not received thorough treatment and has often not been included in scholars’ general discussions of Gratian’s work, its nature, and its purpose. Manuscript discoveries in the 1990s proved the treatise to be authentic and to be part of Gratian’s early drafting of his text. This study examines the treatise in its entirety, providing a commentary on the content of the treatise (which extends beyond questions of penance) and an examination of its relationship to the early twelfth-century schools, positing above all a connection to the school of Anselm of Laon. The study also re-examines the question of the nature and purpose of Gratian’s Decretum in light of the original inclusion of De penitentia and of Gratian’s role as a teacher, or master.

The second half of the book traces the influence of De penitentia in the second half of the twelfth century and through the pontificate of Innocent, culminating in the Fourth Lateran Council (1215). That period was crucial for the development of systematic theology and ecclesiastical jurisprudence. Nevertheless, the period was also one in which boundaries between academic fields were far from solidified, which the treatment of De penitentia by various intellectuals demonstrates. The period witnessed as well the development of new kinds of penitential literature and an increase of business at the papal curia. Gratian’s De penitentia exercised influence in both realms. In brief, Gratian’s De penitentia constituted the fundamental text on penance in the period.

In a series of essays based on surviving documents of actual court practices from Perugia and Bologna, as well as laws, statutes, and theoretical works from the 12th and 13th centuries, Massimo Vallerani offers important historical insights into the establishment of a trial-based public justice system. Challenging the long-standing evolutionary paradigm of medieval legal procedures, Vallerani argues that public justice was not the triumph of strong inquisitorial procedure over weak accusatory procedure, but rather a process in which the two procedures developed in tandem. He demonstrates that inquisition and accusation shared many features in their intertwining goals of punishment and reconciliation.

The grand narrative of the evolution of criminal justice is dismantled in this work, originally published in Italian and widely cited as a groundbreaking study of legal procedure. Vallerani contends that accusatio and inquisitio were formed simultaneously to address different needs: to seek and construct different “truths”—the truth of the fact that occurred outside the courtroom as revealed by the probing of the judge, and the truth that emerges inside the triadic model of the courtroom as a result of negotiations between the disputing parties under the guidance of the judge.

Vallerani’s rich approach to his sources includes statistical analysis of the court records, revealing the functioning of the courts in terms of the incidence of torture, the proportions of trials initiated by accusatio and inquisitio, and the percentage of trials suspended at different stages of litigation. Furthermore, he sets legal procedures within the context of a society and political world immersed in violence and conflict and shows how the supplica, or petition for pardon, played a major role in the transformation from communal to signorial government in the early fourteenth century.

With a vigor and passion rarely found in a scholarly text, Manlio Bellomo has written a broad history of the western European legal tradition. It is now made available to an English-speaking audience in an elegant and lucid translation from the original Italian.

From the modern age the author looks back to a time when Europe had a common law that transcended national and legal boundaries. This common law, which Bellomo calls the ius commune, developed in the twelfth century from the fusion of Roman, canon, and feudal law. Existing within the framework of the ius commune were the local laws or iura propria—the myriad laws of everyday life, the laws particular to the various kingdoms, principalities, cities, guilds, and secular and ecclesiastical corporations. Bellomo illustrates how for centuries the ius commune permeated every aspect of the iura propria, marking European law indelibly with its stamp. Because the iura propria emerged from the unifying norms and principles of the ius commune, one cannot properly understand local European systems of law without first understanding the ius commune and its influence on the legal concepts, institutions, procedures, documents, and doctrines of the iura propria.

Linking his extensive history to modern-day concerns, Bellomo begins by arguing that the codification that occurred in European countries during the eighteenth and nineteenth centuries has introduced ambiguity, rigidity, and uncertainty into legal systems. A new common law for the whole of Europe, he asserts, would provide a much better vehicle for legal change and development in a time when the economic barriers between European nations are crumbling. Having set the stage for a historical treatment of the topic, Bellomo then describes the beginnings of the ius commune in the schools of the twelfth century, discusses the development of Italian, French, and German iura propria, and sketches the great jurists who gave common law its intellectual vigor—Gratian, Accursius, Odofredus, Cinus, and Bartolus. He concludes with an account of the humanist jurists of the fifteenth, sixteenth, and early seventeenth centuries.

Instructors will find this text ideal for use in courses in legal history, political history, and the history of canon law.

The Hibernensis is the longest and most comprehensive canon-law text to have circulated in Carolingian Europe. Compiled in Ireland in the late seventh or early eighth century, it exerted a strong and long-lasting influence on the development of European canon law. The present edition offers—for the first time—a complete text of the Hibernensis combining the two main branches of its manuscript transmission. This is accompanied by an English translation and a commentary that is both historical and philological. The Hibernensis is an invaluable source for those interested in church history, the history of canon law, social-economic history, as well as intellectual history, and the history of the book.

Widely recognized as the single most important source for the history of the church in early medieval Ireland, the Hibernensis is also our best index for knowing what books were available in Ireland at the time of its compilation: it consists of excerpted material from the Bible, Church Fathers and doctors, hagiography, church histories, chronicles, wisdom texts, and insular normative material unattested elsewhere. This in addition to the staple sources of canonical collections, comprising the acta of church councils and papal letters. Altogether there are forty-two cited authors and 135 cited texts. But unlike previous canonical collections, the contents of the Hibernensis are not simply derivative: they have been modified and systematically organised, offering an important insight into the manner in which contemporary clerical scholars attempted to define, interpret, and codify law for the use of a growing Christian society.

The Hibernensis is the longest and most comprehensive canon-law text to have circulated in Carolingian Europe. Compiled in Ireland in the late seventh or early eighth century, it exerted a strong and long-lasting influence on the development of European canon law. The present edition offers—for the first time—a complete text of the Hibernensis combining the two main branches of its manuscript transmission. This is accompanied by an English translation and a commentary that is both historical and philological. The Hibernensis is an invaluable source for those interested in church history, the history of canon law, social-economic history, as well as intellectual history, and the history of the book.

Widely recognized as the single most important source for the history of the church in early medieval Ireland, the Hibernensis is also our best index for knowing what books were available in Ireland at the time of its compilation: it consists of excerpted material from the Bible, Church Fathers and doctors, hagiography, church histories, chronicles, wisdom texts, and insular normative material unattested elsewhere. This in addition to the staple sources of canonical collections, comprising the acta of church councils and papal letters. Altogether there are forty-two cited authors and 135 cited texts. But unlike previous canonical collections, the contents of the Hibernensis are not simply derivative: they have been modified and systematically organised, offering an important insight into the manner in which contemporary clerical scholars attempted to define, interpret, and codify law for the use of a growing Christian society.

The first twenty distinctions of the Decretum, which comprise a treatise on law and deal with questions of enduring interest, have now been translated into English. A translation of the ordinary gloss, a scholarly commentary usually found in the margin of the Decretum, is also provided.

Cy-près doctrine, which allows the purpose of a failing or impractical charitable gift to be changed, has been understood since the eighteenth century as a medieval canon law principle, derived from Roman law, to rescue souls by making good their last charitable intentions. The Uses of the Dead offers an alternate origin story for this judicial power, grounded in modern, secular concerns.

Posthumous gifts, which required no sacrifice during life, were in fact broadly understood by canon lawyers and medieval donors themselves to have at best a very limited relationship to salvation. As a consequence, for much of the Middle Ages the preferred method for resolving impossible or impractical gifts was to try to reach a consensus among all of the interested parties to the gift, including the donor’s heirs and the recipients, with the mediation of the local bishop.

When cy-près emerged in the seventeenth century, it cut a charitable gift o from return to the donor’s estate in the event of failure. It also gave the interested parties to the gift (heirs, beneficiaries, or trustees) little authority over resolutions to problematic gifts, which were now considered primarily in relationship to the donor’s intent—even as the intent was ultimately honored only in its breach. The Uses of the Dead shows how cy-près developed out of controversies over church property, particularly monastic property, and whether it might be legally turned over to fund education, poor relief, or national defense.

Renaissance humanists hoped to make better, more prudent uses of property; the Reformation sought to correct superstitious abuses of property and ultimately tended to prevent donors’ heirs from recovering secularized ecclesiastical gifts; and the early modern state attempted to centralize poor relief and charitable efforts under a more rational, centralized supervision. These three factors combined to replace an older equitable ideal with a new equitable rule—one whose use has rapidly expanded in the modern era to allow assorted approximations and judicial redistributions of property.