Introduction
Two decretals, X 5.12.8 and X 5.12.9, seem relevant regarding contributory negligence.296 The first text I want to discuss is a decretal from Pope Alexander
III297 issued somewhere between 1159 and 1181298 contained in the Compilatio
prima (1 Comp. 5.10.9) and the Liber Extra (1234), namely, X 5.12.8:
Idem Cusentinensi Archiepiscopo. Continebatur in literis tuis, quod, quum diaconus, praesentium lator, et quidam alii clerici a uineis ecclesiae opere consummato redirent, leuiandi laboris gratia quendam ludum imitati sunt uiatorum, proiicientes baculos suos in longum; studebant enim iacere in directum, et alter alterius fustem ferire. Cuius ludi, sicut asserunt, solet esse conditio, ut, qui alterius baculum percuteret, quasi uictor, pro equo alio, cuius baculus percussus est, uteretur; sed praefati clerici, equitandi licentia non utentes, sola erant iactione contenti, ut, dum alacrius ad baculos suos concurrerent, laborem itineris non sentirent. Quidam autem laicus, sicut praedictus diaconus asserit, dum baculum eiusdem diaconi percussisset, incautus in eum equitaturus insiliit, et sic a falce illius diaconi, qua erat accinctus, mortale uulnus accepit, de quo post dies octo exspirauit. Ideoque mandamus, quatenus eundem diaconum sine licentia Romani Pontificis ad superiorem gradum non adscendere, uel in diaconatus officio nullo unquam tempore ministrare permittas, sed eum dispensatiue ministrare in subdiaconatus officio patiaris.299
The same [Pope Alexander III] to the Archbishop of Cosenza (Italy). In your petition it is stated that a deacon, the applicant of this petition, and other clerics, after completing their work at the church-owned vineyard, would have returned, [and,] as a relief after work, for pleasure simulated a certain game pilgrims used to play. While throwing their sticks at a spot far away, they practised throwing in a certain direction, and moreover that one stick would touch the other’s. The rule of the game, as we consider it, used to be that, whose stick hit someone else’s stick,300 as if he were a victor, for reward was allowed to use the other as a horse,
i.e. the one whose stick was hit; but the above-mentioned clerics did not make
296 Kuttner 1935, p. 241f.; Luig 1969, p. 202.
297 The pontificate of Pope Alexander III, born Orlando Bandinelli, was from 1159 to 1181. 298 Jaffé 1851, p. 798, nr. 8921.
299 Friedberg 1881, col. 796.
300 Petrus Pantoja de Ayala (†1584) explained it in such a way that the stick of one person should hit the other one’s in the air; see his Comment. ad D. 11.5.2, nr. 45.
use of this possibility to horse ride, but were satisfied with the throwing,301 in a
way that, while they swung their sticks quite excitedly, would not feel the effort of the journey. A certain layman, however, as the above-mentioned deacon stated, while he had hit the stick of the same deacon, jumped on him with imprudence (incautus) in order to ‘horse ride’, and in this way he received a fatal injury by the sickle of that deacon, which he (the deacon) had fastened [to his belt], as a result of which the layman died after eight days.302 Therefore, we order that you
(i.e. bishop of Cosenza), insofar as the same deacon will not ascend to a higher rank without the permission of the Roman pontifex (the Pope) and you will never permit him to exercise the office of deacon, permit him, by way of dispensation, to serve in the office of subdeacon.303
Facts of the case: an exciting game
Reading the text of X 5.12.8, one immediately wonders what kind of game the clerics were playing. Apparently, the game, which travellers used to play, was very widespread. It was known under the Greek name commonovolon. The word commonovolon is probably a corruption of the word condomonobolon,304
the game of jumping with a leaping pole,305 as mentioned in (and permitted
by) C. 3.43.1.4.306
301 A later addition gives a different wording which also makes sense, namely, iactatione (with the gesture).
302 Another translation of the contents of X 5.12.8 can be found in Schilling & Sintenis 1838, p. 735f., and Kuttner 1935, p. 241 (German), Bellini 2003, p. 375 (Italian); a somewhat different summary can be found in Katz 1881, p. 19: ‘Mehrere Geistliche und Laien kehren mit Sicheln vom Weinberge zurück. Auf dem Rückwege spielen sie ein Spiel, bei dem ein Jeder sich bemüht, mit seiner Sichel die Sichel des Andern niederzuschlagen, und dann nach Art eines Reiters sich auf den Rücken des Besiegten zu schwingen. Ein Laie springt auf den Rücken eines Geistlichen, der seine Sichel über die Schulter trug. Er springt in das Messer hinein und stirbt in Folge der Verletzung.’
303 The case of X 5.12.8 was also expounded by Bernardus Parmensis (†1266) in the casus (to X 5.12.8) as reproduced in the Glossa ordinaria.
304 Or contomonobolon, as the reading in the old edition of Kriegel 1887, p. 217f. 305 According to the Great Dictionary of the Greek Language of Dimitrakos, κοντομονόβολον resembles the contemporary game of pole-jumping; it was performed by acrobats and balancers of the Byzantine amphitheatres to leap across moats and to jump over bodies of enraged beasts with the use of a long pole (stick), in the hippodrome (racetracks); reference is made to the fragment in Justinian’s Code. See also Zamora Manzano 2011, p. 93: El monobolon (μονόβολον) que consistía en el salto sin pértiga o libre, el otro tipo de salto en el que ésta si se usaba condomonobolon (κονπομονόβολον). See also already Glück 1809, p. 326: ‘Contomonobolos ist das Springen mit Hülfe einer Stange oder Springstocks.’ He referred to I. Cuiacius (saltus conto
suffultus) <Paratitla, ad C. 3.43; see edn. 1751, p. 345, EvD>, P. de Ayala [<Comment. ad C. 3.43, nr.
5 (edn. 1733, col. 1086): Contomonobolos saltus etiam, non singularis et simplex, sed cum conti seu
sudis adminiculo …] and Th. Balsamon (<scholion ad Photius’ Nomocanon, tit. XIII, cap. 29, edn.
1615, p. 243: saltus>, EvD). However, Glück also referred to G. Pancirolus <Thesaurus variarum
lectionum, lib. I, cap. 47; see edn. 1610, p. 59, EvD), who stated that ‘Contomonobulum ludus est conti et ipsius semel iaculandi’.
While the players threw their sticks at a spot far away, they practised throwing far away, i.e. in a certain direction (straight ahead), and tried to touch another’s stick, but apparently with some kind of armour to protect the armpits,307 to make it more difficult to hit the stick.308 Hundreds of years later,
Petrus Pantoja de Ayala (†1584)309 seems to refer to this game of throwing
sticks.310 As appears from X 5.12.8, the clerics did not completely practise the
game as it used to be practised, since they did not use the possibility to horse ride (the more dangerous part of the game).311
Interpretations of the canonists
Various canonists gave interpretations of the papal decision by providing possible explanations for the declared culpability of the deacon in question. In general, as I have mentioned before, canonists argued that in a case of ac- cidental homicide, the homicide had to be imputed to the wrongdoer if his culpa existed either (1) by acting in contravention of legal provisions or (2) by doing something permissible, but without using due diligence.
and get drunk; see on this text as well as the later commentaries on this text Hallebeek 2012, p. 145ff. Furthermore, according to C 3.43.1<.4> (which became known around ca. 1205), no one is allowed to gamble except in five types of games and for no more than one solidum. According to
authentica Interdicimus just after C. 1.3.17, clerics were even forbidden to play or watch a board
game or to visit any spectacle. See also J. de Breitenbach, Repetitio ad X 5.12.9, fo. 8r: … ubi quinque
ludi admittuntur, scilicet Comelon. Et est ludus ubi iactus uel lapis in longum protrahitur. Sicut forte est ludere ad paletum, uel sagittare. Hydolomonon. Et est ludus ubi iactus uel lapis in breue spatium retrahitur. Sicut forte est ludus pilarum. … The game comelon was a game of throwing a
spear for distance, as was maybe also the case with paletum or with the shooting of arrows. The same formulation can be found (under a slightly different term, i.e. comonbelon) with DuCange
et al., Glossarium mediae et infimae latinitatis, II, col. 459b. s.v. comonbelon: deinde vero ordinent quinque ludos; Comonbelon, id est, ludus, ubi lapis in longum projicitur; Comondiaulion, id est, ludus, ubi lapis vel palus in breve spacium projicitur; - The constitution Alearum lusus (C. 3.43.1,
dating from 529) of Justinian was originally a Greek constitution but summarised and translated into Latin in the Middle Ages. See Hallebeek 2012, p. 154, 158, who argues that the translation into Latin was probably done by Petrus de Cardona.
307 DuCangeet al., Glossarium mediae et infimae latinitatis, VI, col. 108b. s.v. palectus: vel Palettus, Armorum genus, quod palmulam lusoriam, Gall. Palette, referret, sic appellari videtur. …
308 Johannes Andreae, Commentaria, ad X 5.12.8, nr. 1; Henricus de Segusio, Commentaria, ad X 5.12.8, nr. 1.
309 Little information is available on Pedro/Petrus Pantoja de Ayala (or: Ajala); a short description can be found in Jöcher 1750 (repr. 1960), col. 166; Vidal y Diaz 1869, p. 543f.
310 Pedro Pantoja de Ayala mentioned the game of throwing sticks in his commentary on D. 11.5.2, nr. 40 and compared it with the game of his own time called tirar bohordos (throwing lances at a wooden board while riding on a horse and trying to keep the lance sticking upright in the wood or going through it; see on the game of bohordos Del Mar Agudo Romeo 1993, esp. p. 20f.).
(1) The culpa could be sought in the following way. The game could be considered dangerous and therefore participation was prohibited for clerics312
or the game described was unbecoming of a cleric313 (since taking part in
a dangerous game was regarded as acting culpably314) or the horse-riding
condition was not suited for a cleric.315 Furthermore, some argued that the
custom attached to the game was forbidden or that participation in the game was prohibited because of the intermingling with a layman.316
(2) Even if the game with its horse-riding condition was allowed (licitus), the deacon’s act was not performed with due care.317 Firstly, his sickle was disguised
and therefore totally invisible, and he should have been aware that this could be dangerous because of the horse-riding custom of the game. Secondly, he should have removed the sickle from his belt, knowing the customs of the game.318
There seems to have been a difference of opinion between Panormitanus who ar- gued that it was permitted for clerics to play a game for relief and pleasure,319 but
argued that the game was nevertheless not allowed because of the intermingling
312 See Bernardus Parmensis in gloss eiusdem Diaconi; Antonio a Butrio, Commentaria, ad X 5.12.8, nr. 5; - In general, in cases where injuries were inflicted during a game, and led to a fatal outcome, the canonists raised the question whether the game was permitted or prohibited. Dangerous games were considered res illicitae; see Kuttner 1935, p. 240, in accordance with the Roman fragment in D. 9.2.10 (ludus noxius in culpa est).
313 See Bernardus Parmensis in gloss ludum ad X 5.12.8.
314 According to Bellini 2003, p. 375, this game was dangerous because of its similarity with dice, and it was forbidden by the Church as such, especially when practised by religious people (religiosi).
315 Henricus de Segusio, Commentaria, ad X 5.12.8 (begin) and see also Johannes Andreae,
Commentaria, ad X 5.12.8, nr. 4.
316 Sinibaldus Fliscus, Commentaria, ad X 5.12.8; Bernardus Parmensis in gloss eiusdem
Diaconi and gloss Romanis Pontificis ad X 5.12.8; Henricus de Segusio, Summa. De homicidio uoluntario uel casuali. Qua pena feriatur, fo. 242v; Antonio a Butrio, Commentaria, ad X 5.12.8,
nr. 5; Nicolaus de Tudeschis, Commentaria, ad X 5.12.8, nr. 1ff., and see also additiones a and b of Alexander de Nevo (ca. 1419–1485) to this fragment of Nicolaus de Tudeschis. See also, e.g., Felinus Sandeus, Commentaria, ad X 5.12.8. See also Breitenbach, Repetitio ad X 5.12.9, fo. 7v.
317 See Bernardus Parmensis at the end of the casus (to X 5.12.8); Henricus de Segusio,
Commentaria, ad X 5.12.8, nr. 1f.; see also the Italian theologian and Dominican Sylvester
Mazzolini da Prierio (1456/57–1523) in his Summa Summarium (1514), a manual for confessors, who argued that despite the fact that the game was allowed (licitae), it was not performed with due care. Because the deacon knew the customs of the game, he should have removed the sickle. See Sylvester de Prierio, Summa Summarium. Rursus de homicidio secundo, inquantum est
casuale, nr. 5.
318 Gloss Romanis Pontificis ad X 5.12.8; Antonio a Butrio, Commentaria, ad X 5.12.8, nr. 6. See also Katz 1881, p. 19: ‘Die gl. Romani imputirt dem Geistlichen culpa, weil er wissen musste, dass es bei diesem Spiel Sitte ist, auf den Rücken des Andern zu springen, und er daher die Sichel nicht über die Schulter nehmen durfte.’
with a layman, and others who argued that the game was permitted even with such a condition, but the deacon nevertheless acted culpably because, knowing the custom of the game, he did not remove his sickle.
But what would have been the case if the (sub)deacon clearly had refused permission to be used for a horse ride? Could any negligence be imputed to him then? Hostiensis (Henricus de Segusio, ca. 1200–1271)320 argued that because
of the game the deacon should have considered the possibility that someone could jump on him. However, according to Parnormitanus, he could have doubt on this matter; nevertheless, a decision was better taken in favour of the cleric.321
Hostiensis argued that even though the deacon had not given permission to the layman to jump on him to horse ride, he nevertheless should be judged to be at fault because he should have been aware of the custom of the game: the layman did no wrong, because the custom of the game allowed him to horse ride. The fact that clerics did not make use of the horse-riding rule does not excuse the deacon. He acted culpably all the same, because he should have been aware of the fact that someone could jump on him and he should have taken precautions.322
An interesting argument is put forward by Sinibaldus Fliscus (†1254),323 who
states that the deacon can also be considered to have acted culpably because the sickle was disguised. The sickle was girded in such a way that it was invisible to others, and therefore the layman who jumped on the cleric was excused by law since he could not possibly have seen the sickle (so no contributory negli- gence on his side occurred). Furthermore, if horse-riding was a custom in this game, the loser had to remove the sickle so the winner could ride on his back. Despite the fact that clerics made no use of the possibility of horse-riding, the act of the deacon could still be imputed to him. He had been careless since he could have given up his right to horse ride, but did not have the right to take away that right from other players.324
320 The decretalist Henricus de Segusio (Hostiensis) studied law in Bologna. He received the bishopric of Sisteron, became archbishop of Embrun and, in 1262, received the cardinalate from Pope Urban IV in the form of the bishopric of Ostia whence he was later called Hostiensis.
321 Nicolaus de Tudeschis, Commentaria, ad X 5.12.8, nr. 3.
322 Henricus de Segusio, Commentaria, ad X 5.12.8, nr. 1; see also Antonio a Butrio,
Commentaria, ad X 5.12.8, nr. 6.
323 Pope Innocent IV was born in Genoa before 1200. Born Sinibaldo dei Fieschi (Fliscus), he studied law in Parma and perhaps in Bologna. He worked as a jurist at the papal curia beginning in 1226 and was for some time the auditor of the court of audientia litterarum
contradictarum. He was made a cardinal by Pope Gregory IX in 1227. He was elected Pope in 1243
and held the pontificate until his death in 1254.
324 Sinibaldus Fliscus, Commentaria, ad X 5.12.8 and see also Johannes Andreae,
On irregularity
In canon law, an irregularity (namely, irregularitas ex delicto) prevented the priest from canonically performing the sacraments and the other duties of his office.325 Irregularity can have three effects: the prohibition of promotion in
the law of ordination, the prohibition to exercise an office (without removal of the degree of consecration) and deposition from the present ordination and office.326 The institute of irregularity was intended to safeguard the dignity of
the Church, by the selection of a clergy of an irreproachable state.In order not to give offence to the faithful, not in order to punish the guilty person,327 the
Church prevented ordination and promotion in cases where ordinees did not have sufficient external dignity.328
Persons who wanted to be promoted to holy orders (subdiaconate, diaco- nate or priesthood) even though they had been involved in a casual homicide had to be given dispensation.329 Dispensation could be given by the Pope (later
delegated to the Penitentiary) to persons who pursued an ecclesiastical career but were considered irregular and thus incapable of acting in an ecclesiastical office. After a papal dispensation they could continue with or enter into their ecclesiastical career despite their defect.330 Candidates for an ecclesiastical
office could not be illegitimate, they had to be old enough, bodily defects were not allowed, they had to be qualified enough to be able to act in the office and had to have a good reputation.331 Persons who did not meet these requirements
were considered irregular. Such irregularity was suspendable by a papal dis- pensation, which cancelled the irregularity.332
The case of X 5.12.8 deals with an irregularitas ex delicto because homicide (homicidium) was concerned. Committing a crime led to the non-fulfilment of the requirement ‘to have a good reputation’. The dispensation had to be granted by papal authority because it concerned the holy orders; with regard to minor orders the local bishop could grant dispensation suo iure.333 Indeed,
325 Kjeldsen 2009, p. 2.
326 See, e.g., Breitenbach, Repetitio ad X 5.12.9, fo. 3r, and on fo. 4r. See also Metz 1954, p. 96, who writes: ‘… irrégularité, qui entraîne l’interdiction d’accéder aux ordres ecclésiastiques, d’avancer aux ordres supérieurs s’il en a déjà reçu ou d’exercer les fonctions dont il a été investi.’
327 According to Metz 1954, p. 96, ‘… elle ne constitue pas une peine …’ and on p. 97: ‘Mais la mesure prise à son egard n’a pas un caractère pénal.’
328 See Kuttner 1935, p. 187f., 232ff.; Metz 1954, p. 96f.
329 See Göller 1911, II, p. 3 (bulls of Pius II and Paul II); Salonen 2001, p. 62. Certain grants of absolution, dispensation or special licenses in matters reserved to the Pope were dealt with by the Penitentiary, i.e. those especially delegated by the Pope to the poenitentiarius maior or to the office in general; see also Göller 1907, I, p. 100ff.
330 Salonen 2001, p. 67.
331 On these requirements, see also Salonen 2001, p. 178ff. 332 Salonen 2001, p. 68.
only in the case of an accidental homicide could dispensation be granted but, with regard to the major or holy orders, only by the Pope. Furthermore, the (arch)bishop could not give dispensation iure suo, but only as commissarius of the Pope, since as to the holy orders only the Pope could grant dispensation and a bishop could grant dispensation iure suo only for the minor orders.334
Contributory negligence of the deacon?
In this case, despite the imprudence (incautus) of the layman, the deacon was considered responsible and was degraded (to the position of subdeacon). Therefore, one could argue that, despite the contributory negligence of the injured party, the wrongdoer was held responsible because the contributory negligence was less serious than the negligence of the wrongdoer. However, the commentaries of the decretalists do not explain X 5.12.8 in this way.335 They
directly focused on the question of the negligence of the deacon,336 the most
relevant question in the appeal to the Pope. It has been unjustly suggested in the secondary literature that the fact that one aimed directly at the question of the negligence of the deacon was because of the lack of a partial solution in case of contributory negligence (still an all-or-nothing approach337) and
that therefore the jurists tended to attribute the ‘sole guilt’ to the party that acted with the highest degree of negligence.338 The source (X 5.12.8) does
not necessarily lead to this conclusion. The question of the negligence of the deacon was the only relevant issue in this trial and more specifically the question whether the deacon could still be promoted and/or exercise his