la jurisprudencia internacional como fuente en el sistema

convent; a similar clause appears, not in the Rule of the Teutonic Knights, but in the Laws (III, 24). The Hospitallers (para. 14) were to celebrate thirty masses for each deceased brother, the priests were to chant

6Riley-Smith, p. 49; and see pp. 47-48, for analysis of the Rule: paras. 3, and part of 14 and 16 seem to be statutes inserted into the body of the Rule.

the psalms, and the lay brothers were to recite one hundred fifty Pater Nosters; the brother priests present were to offer a candle and a penny at the first Requiem Mass, and the money collected, along with the deceased brother*s clothes, was to be distributed to the poor. The Rule of the Hospitallers did not contain as detailed regulations for the liturgical horariunand for the

anniversaries of deceased brethren, but additional regulations adopted by the chapter in 1177, or included in the Usances, are in many instances similar to those of the Teutonic Knights.

Since at their foundation the Teutonic Knights were to follow the Rule of the Hospitallers in providing hospitals and caring for the sick, the regulations of the Hospitallers relating to this problem are of special interest. Three short paragraphs in the primitive Rule deal with these matters. Paragraphs 5 and 6 set forth the procedure for seeking alms to maintain the hospital: brothers, clerics as well as lay, were to be sent out to seek alms for the poor, and all the alms collected were to be delivered to the master who in turn delivered them to the hospital; also the commanders of the provin­ cial houses had to deliver to the hospital one-third of their bread, wine and all other produce. This latter requirement is missing from the statutes of the Teutonic Knights. Paragraph 16 dealt with the care of the sick:

after arrival in the Hospital of St. John, the sick had to confess their sins and receive Holy Communion; they were fed according to the resources of the house; on Sundays the Epistles and the Gospels were read to them, the brethren went to them in procession, and the house was asperged with holy water. The Teutonic Knights

obviously borrowed these early regulations, but added regulations more definite and more detailed than the original regulations for the Hospital of St. John, for the Rule of the Teutonic Knights provided for physi- cians and medicine. But, from at least 1176 (the year of the earliest extant statutes), the Hospitallers were

7

issuing many supplementary regulations. For example, in 1181, the hospital in Jerusalem was ordered to employ four physicians who knew how to examine urine, diagnose disease, and administer appropriate remedies. Provisioning was better organized by fixing the deliv­ eries from the subordinate houses: 200 cotton sheets to be sent to Jerusalem yearly, 4,000 ells of fustian, 2,000 ells of cotton cloth for coverlets, and 4 quin­ tals of sugar for making syrups and medicine for the sick (paras. 2, 8, 9); the sick were to be given fresh meat, pork, mutton or chicken three days a week, also

7

See Riley-Smith, pp. 335-338, passim, for the distinction between the hospital for the sick poor and the infirmary for the sick brethren.

comfortable beds, long enough and wide enough, each with its own sheets, and also each was to have fur cloaks and boots for going to the latrines (paras. 1, 3, 4); abandoned children were to be received and fed in the hospital, and cradles were to be made for babies born to women pilgrims (paras. 3, 5); the almoner was to give twelve pennies to prisoners when they were released from jail, and the convent was to feed thirty poor persons every day at the convent table (paras. 5, 7). The Rule of the Teutonic Knights (paras. 4-7) includes regulations for the hospital, evidently taken over from the Hospitallers, but the Laws and the Customs include no further regulations. Thus, though the

German House started as a foundation to care for the sick poor, by about 1244 such care seemingly played a decreasing role in the activities of the Teutonic Knights.

At least seven paragraphs of the Rule of the Hospitallers deal with discipline (paras. 9-13, 17-18,

and parts of 14 and 16). What were regarded as the most detestable sins by the Hospitallers? First comes

unchastity: "if any of the brethren...shall fall into fornication, if he sin in secret, let him do his penance in secret; ...if it be well known...on the Sunday after Mass, when the people shall have left the church, let him be severely beaten and flogged with hard rods...

or leathern thongs..., and let him be expelled from the company." If the expelled brother repents of his sin, he may be readmitted, after a year of penance (para. 9). For evil living a brother shall not be denounced to the people or to the pious, but first he shall be asked to chastise himself; if he refuses

to amend, then the master shall be informed, but false accusers are to be punished (para. 18).

Less serious was the sin of quarreling among the brethren, which entailed a penance of a beating, eating on the floor for seven days with only bread and water on Wednesdays and Fridays (the septaine) . For striking another brother, the penance was similar, but for forty days (the quarantaine) ; striking of brethren at service was forbidden (para. 12). The quarantaine was imposed also for leaving the house without permission (para. 10). Silence was required when at table and in bed, and drinking after compline was forbidden (para. 11).

Most serious was the sin of owning private property: if a brother acquired any money, it was tied around his neck and he was led naked through the house with another brother beating him severely (para. 13). Giving away funds of the Hospitallers meant expulsion from the order (para. 16).

The disciplinary system of the Hospitallers was later greatly expanded. Penalties, similar to those in other religious orders, were divided into five grades: <1) immediate deprivation of wine or cooked food, or both, (2) the septaine,(3) the quaran- taine, (4) loss of the habit, which in fact meant

expulsion from the order, though it might be temporary, and (5) expulsion from the order forever. The last two grades resemble the penances for the most serious offenses of the Teutonic Knights. For the first three grades, there is some similarity, but the Germans did not slavishly follow the Hospitallers in drawing up their code. Indeed the penal regutations of the Hospitallers are more akin to those of the Templars with no systematic arrangement of offenses and penal­

ties according to seriousness, but with separate offenses listed with the appropriate punishments; in each order the disciplinary regulations constitute a complex of clauses in the Rule, augmented in the ensuing years by statutes, case law, customs, in contrast to the codification by the Teutonic Knights ■in the middle years of the thirteenth century (Laws III,

33-45).

The penal regulations of the Hospitallers had certain peculiarities. "Since all /Brethren/ are in the same Religion /i.e., order/, and all, both clerics

and lay brethren, make the same promise, it /is not a/ proper /thinji/ that there /should/ be any distinction /in regard to punishment/1' (Esgarts, para. 10); this

regulation corresponds approximately to the Laws of the Teutonic Knights (III, para. 40-44). But the Esgarts further declared (para. 55):

for all the words and misdeeds, for which, if done against another brother, he would undergo the Septaine; if done against a lay person, he shall have no sentence; and in like manner, for any­ thing which, if done against another

brother, he would undergo the Quarantaine, if done against a lay person, he shall undergo the Septaine.

Furthermore, for offenses for which, if done against a brother, a Hospitaller lost his habit; if done against a lay person, he was to do a quarantaine. No such

distinctions are made in the Laws of the Teutonic Knights. However, generally the penalties are in line

with those of the Teutonic Knights and the Templars: for striking a Christian, the septaine; if blood is drawn through striking, the quarantaine; for wounding with sword, lance, stick, stone, mace or any cutting weapon, the quarantaine; for killing a Christian, loss of habit (Esgarts, para. 55); for dissipating the order’s money-—-loss of habit (para. 8); for alienating the order’s immovable property— expulsion forever

(para. 9). The sins of heresy, bearing false witness, flight to the Saracens, desertion on the battlefield

and unnatural vice were also unpardonable and entailed expulsion from the order forever (paras. 33-34).

The hierarchy and military organization of the Hospitallers were established by the Statutes of 1206. The arrangements for electing a master (paras. 3-7) were similar to those of the Teutonic Knights and Templars. The new master

shall promise in the Chapter that he will maintain the good customs of the House and the Statutes, and that he will direct the business of the House with the advice of the brethren; and likewise that he will keep those things which shall be ordained by the brethren of the Chapter-General (para. 3).

Thus, as with the Knights Templars and the Teutonic Knights, the master was the chief executive, the chapter - the legislative body, from whom the master had to seek

advice in important matters.

i

The Laws of 1206 deal also with the military activities of the brethren. A brother knight was enti­ tled to four horses, but a brother sergeant-at~arms only to two horses, and all the brethren-at-arms with their equipment, arms, and horses, were under the command of the marshal (Laws 1206, para. 11). When a brother needed new equipment or clothing, he had to hand over the old, and be satisfied with the equipment which was given to him (para. 12). Regulations on the provision of equipment and horses to the master and

the marshal were similar (paras. 10-11) to the regula­ tions of the Teutonic Order and the Templars, but no detailed regulations for military campaigns and conduct in battle are extant for the Hospitallers.

However, the Laws of 1206 introduced a new element, quite foreign to the statutes of the Teutonic Knights, namely knighting within the order. Sons of knights, if brought up in the order, might be made knights after they have reached the age of knighthood, if so demanded in case they might be sent overseas /i.e., to Europe/ or into battle. While the Laws of

1206 somewhat leniently allowed knighting within the order of those to whom knighthood was promised before admission to the order, the Laws of 1262 stipulated that only sons of knights or those of knightly family might be made knights within the order (para. 19); also that only knights of the order, who were sons of a knight and of legitimate birth, might be elect id as masters (para. 11). These regulations, evolving as class distinctions were hardening, obviously were aimed against the infiltration of non-noble persons into the ranks of the fighting knights, and for the advancement of the ruling class of the order by making it a strictly segregated, privileged, and noble class. The distinction between secular and religious knights

was maintained: no person, either clerk or layman, was to have any authority over the brethren in a house of the order (Laws of 1262, para. 32). And no sick brother in the infirmary was to be allowed to read romances or to play chess (para. 39): games and courtly love for the worldly knights, celibacy and serving the Virgin Mary for the religious knights.

This analysis of the regulations of the Templars and the Knights Hospitallers shows that the Teutonic Knights, in compiling their statutes, followed the Hospitallers, though not completely, in regard to running the hospital and caring for the sick, and to a lesser degree, in other matters. By admitting needy people into the hospital, the Teutonic Knights also cared for the poor, but since regulations for the care of the poor are found also in the Rule of the Templars, in this respect the Teutonic Knights followed Hospital­ lers and Templars alike. In regard to the knights and military organization, the administration of the Order and the office-holders, the Germans took the Templars as their model for the most part. The detailed regu­ lations in the Statutes of the Templars were not taken over by the Teutonic Knights in their Customs. It

seems also that in the early years, the Teutonic Knights followed the Templars in regard to worship and to priests, though, here again the Hospitallers and the Teutonic

Knights had many common regulations.

Other Pos sible So ur ces:

The Disciplinary Code of the Dominicans, The Decrees of the Fourth Lateran Council,

and The Papal Privileges

The question has been raised, and answered affirmatively by Perlbach, whether the penal code of the Teutonic Knights (Laws III, 33-45), the only section of their statutes which really does not follow the

pattern of the regulations of either the Templars or the Hospitallers, may not have been derived from the Dominicans."*" Their statutes graded offenses in four categories— lesser, major, serious, and most serious.

Close examination shows a number of divergen­ cies. The statutes of the Teutonic Knights devote a paragraph to each category, giving a detailed list of the offenses with, at the end of the paragraph, the penalties for that particular category. Chapters XVI to XIX in the Dominican Constitution, as revised by

"S?erlbach, pp. xxxvii-xxxix.

94

2

Raymond of Penafort, third master (1238-1240), describe the four categories of offenses, from lesser to most serious, but Chapters XVI and XVII specify the penalties at the end, Chapter XVIII has penalties scattered all through, and Chapter XIX says nothing at all about penalties. Moreover, Chapter XX adds an offense, not included in the four categories, namely leaving the order; and gives the penalty.

The offenses in the various categories only occasionally correspond in the two codes. The Domini­ cans list some thirty minor offenses; the Germans, ten, of which only one, on abusive language (Laws III, 36, no. 7), resembles one in the Dominican list (Ch. XVI,

For the text used here, see "Die Konstitutionen des Predigerordens in der Redaction Raimunds von Penafort," ed. Heinrich Denifle, Archiv fur Literatur- und- Kirchen- geschichte des Mittelalters, 5:536-564 (1889), lost

original restored and edited by Denifle. See Archdale A. King, Liturgies of the Religious Orders (London: Longmans, Green and Co., 1955)7 p. 327, for the original constitutions of 1228, revised by the third master, Raymond of Penafort (1238-40), confirmed by the general chapter 1239, 1240, 1241, revised again by the fifth master, Humbert of Romans, 1257, and put into effect in 1259. For text of the Constitution of 1228, see Die Konstitutionen des Predigerordens un-ter Jordan von

Sachsen, ed. Heribert C. Scheeben, in ^Quellen und Forschungen zur Geschichte des Dominikanerordens in Deutschland," ed. H. Wilms, vol. 38 (Cologne: Albertus Magnus Verlag, 1939); and on this constitution, Denifle, "Die Konstitutionen des Prediger-Ordens vom Jahre 1228," Archiv fur Literatur » und - Kirchengeschichte des

Mittelalters, 1:165-226 (1865). For text of the Consti- tution of 1257, see Holstenius, Codex, vol. IV, 10-128; and discussion in G. R. Galbraith, The Constitution of the Dominican Order 1216 to 1360, University of Man- Chester Publications, Historical Series, vol. 44 (Man­ chester, 1925).

para. 3). The Dominicans left the penalty for minor offenses to the discretion of the superior, but the stipulation is a later addition— of 1249— to the

3

redaction of Raymond of Penafort. Most of the minor offenses listed by the Dominicans involve negligent behavior during divine office— a state of affairs ?■

seemingly disregarded by the Teutonic Knights. Of the fifteen offenses classified as major by the, Dominicans, only two, receiving and sending letters^ and complaining about food, drinks and clothing (Ch. XVII, paras. 2,3) resemble offenses listed by the Teutonic Knights (taws III, para. 37, nos. 2,6), and the Germans specify not complaining, but throwing away food, drink, arms and clothing. On the other hand, trifling with women and telling lies were listed by the Dominicans as major offenses (Ch. XVII, paras. 2, 1), but were considered minor by the Germans (taws III, para. 36, nos. 2, 4).

The Dominican Code lists only two most serious offenses, frequent relapse or refusal to repent and submit to punishment (Ch. XIX) in contrast to six most serious offenses in the German Code (Laws III, para. 39),

^Denifle, ”Die Konstitutionen des Predigerordens in der Redaction Raimunds von Penafort,” p. 545, note 3.

4

Clause added in 1243, see Holstenius, C o d e , IV, 53, note "f1*

and in the lists of serious offenses only three are similar (Ch. XVIII, paras. 1, 4, 5 corresponding to Laws III, para. 38, nos. 2, 6, 8). The penalties for

these serious offenses show some variation.

Thus the Teutonic Knights may have borrowed from the Dominican friars the principle of dividing offenses into four categories, but with this any clear connection between the two penal codes ends. Certainly, as might be expected, many offenses listed in one are found in the other, though not always in the same category. However, the German penal system also con­ tains many offenses and penalties in common with that of the Knights Templars. But the German penal code is unique in its rigorous and systematic listing of offenses and penalties for each group according to the same principle: first the offenses, then the punish­ ments. None of the other penal codes in question knows

such an orderly system, nor does any of them list the offenses and punishments separately for knights and clerics (Laws III, 40-44). It seems that the penal code of the Teutonic Order is not only the best organized section of the entire statutes, but also the most independently compiled. Perhaps this inde­ pendence in compilation positively influenced its homogeneity.