UACJ

The final category of excised formulaic language under analysis is collectively termed the “language of affection,” because it gives expression to a personal, affective connection between the pope – as author of the decretal – and the recipient of the letter or the other parties to the case that prompted its issuance. The papal chancery maintained a consistent and rigid set of protocols that addressed church officials, clergy and laymen

223 There are twenty-five decretals alone whose incipits are a variation of the form Constitutus in praesentia nostra or In nostra praesentia.

according to their relationship to the pope as universal bishop.²²⁴ Patriarchs, archbishops and bishops were spoken to (and of) as venerabili fratres, “reverend brothers,” while all other clergy from abbots down to simple clerics were called dilecti filii, “beloved sons.”

Laymen were similarly addressed as dilecti filii without distinction, with the exception of royalty, whose status made them special objects of the pope’s affection as his carissimi in Christo filii (“dearest children in Christ”) and illustres (“illustrious”).

Instances of such language, whether applied to clergy or laity, were legion in Raymond’s source material, and so their removal involved a great deal of careful sifting.

Next to the self-referential language pointing to the physical mode of the decretal’s transmission (per apostolica scripta), the language of affection stands as the formulaic terminology that he excised most consistently.²²⁵ Not counting those instances that fell within the incipit, around 90% of such occurrences were eliminated.²²⁶

The first example, X 3.17.3, Cum dilecti filii, encompasses several forms of the language of affection assigned to members of the regular clergy, metropolitan officials and bishops. All of them were eliminated except for the one occurrence of dilecti filii in the incipit, demonstrating the inviolability of the opening words of Raymond’s sources.

X 3.17.3, Cum dilecti filii (Alexander III to the bishop of Arras)

224 For a representative explication of address formulae, see the Audientia litterarum contradictarum formulary (N^a1): Herde, Audientia litterarum contradictarum, vol. 2, pp. 16-7. Even though it post-dates the Decretals, many of the protocols – like the rules for how to address recipients of papal letters – go back to the time when most of the sources for the Decretals were generated. Affectionate forms of address, in particular, are remarkably consistent even going back to the earliest formularies, including the Liber diurnus. The language of affection employed in the model superscriptiones of the Liber diurnus differs only in intensity (dilectissimus as opposed to dilecti), and the greater number of variations depending upon the rank of the addressee; cf., Liber diurnus ou receuil des formules usitées par la chancellerie pontificale du Ve au XIe siècle, ed. Eugène de Rozière (Paris, 1869) §1-12, pp. 1-15.

225 On per apostolica scripta and the other language of embodiment, see above, § 1.11.3, p. 99.

226 There are close to one-hundred decretals that integrate some form of these address formulae into their incipits, which is one measure of how prevalent such language was in the Decretals.

Cum dilecti filii nostri Belvacenses canonici contra religiosos viros abbatem et fratres Cariloci proponerent querimoniam, quod silvam, quae Nigra vallis dicitur, a quibusdam eorum ignorante capitulo pro X. libris, XL. marchas tunc valentem, comparassent, post multas commissiones tandem causam ipsam venerabili fratri nostro Morinensi episcopo et dilecto filio decano Remensi sub certa forma commisimus terminandam…

After our beloved sons the canons of Beauvais had set forth a complaint against the abbot and brothers of Charlieu, that some of the canons without the knowledge of the chapter had purchased for ten livres the forest, which is known as Black Valley [Nugerot?] and at the time comprised fifteen marks,²²⁷ after many commissions we finally committed the settlement of this case with specific instructions to our venerable brother the bishop of Thérouanne and the beloved son the deacon of Reims.

The well-known decretal X 4.17.14, Per venerabilem, provides another example of how Raymond dispensed with language establishing an affectionate connection between the pope and the parties to a proceeding.²²⁸ In this case, Raymond removed the carissimi in Christo filii honorifics applied to the French King Phillip II and his second, and spurned wife Ingeborg of Denmark (for the sake of clarity and brevity only one half of the relevant sentence from the middle of the decretal is given below).

X 4.17.14, Per venerabilem (Innocent III to the nobleman G. of Montpellier)

…Cum enim carissimus in Christo filius noster Philippus rex Francorum illustris carissimam in Christo filiam nostram I. Francorum reginam illustrem dimiserit, et ex alia postmodum superducta puerum susceperit et puellam...

Indeed when our dearest son in Christ Philip, the illustrious King of France, dismissed our dearest daughter in Christ, the illustrious Queen I., and had begotten from his subsequent wife a son and a daughter...

227 In French territory marcha could mean a unit of measurement as well as currency. Given the context, the fifteen-mark valuation seems to refer to the measurement of land rather than its monetary value.

228 On the canonistic significance of Per venerabilem, see above, note 169. The French royal couple were not direct parties to the case, but the issues of child legitimation arising from their complicated separation and Phillip’s subsequent remarriage had been cited as a precedent by the individual to whom Innocent had addressed the letter.

1.12 Conclusion

All of the examples given above – deliberative consultation with the cardinals;

appeals to corroborative sources of authority; the embodiment of the law in written instruments and its localization in the papal presence; the language of affection – exist outside the sphere of narrowly-defined, legally-significant language. To put it another way, the presence or absence of any of these elements from an individual capitulum had no effect on its subsequent interpretation and consonance with the existing body of canon law.²²⁹ Raymond’s changes in these areas cannot be analyzed, therefore, using methods such as the examination of the pre-existence and after-life of each affected decretal.

When viewed as a whole, however, and plotted along the arc of the overall development of canon law, these small editorial interventions acquire meaning.

As has been stated on multiple occasions, the Decretals was not simply an assemblage of individual texts, but an effort to form a unified and coherent corpus out of the mass of decretal law built up over the century prior to the collection. Streamlining the legal content and reducing the length of his texts were the most obvious and visible parts of Raymond’s editorial practice. Yet the selective excision of certain formulae also demonstrates Raymond’s interest in shaping the language that gave expression to the law.

It is not clear whether this interest was guided by a fully-articulated image of how the law should be communicated, or, what is more likely, whether Raymond was intuiting

concepts emergent from the marriage of canonical and civil jurisprudence. Setting aside

229 With respect to the individual decretal itself, however, an element like the terms of affection directed towards the recipient of a decretal were, like the papal cursus, important markers of authenticity. When a papal letter called a patriarch dilectus filius or an abbot venerabilis frater it was a dead giveaway that a forger was at work. In a letter included in the Decretals (X 5.20.6, Quam gravi poenae), Pope Innocent III himself recommended inspecting a decretal for its proper usage of the language of affection to test for forgeries.

for the moment questions of origin, the analysis will focus on the consequences of Raymond’s editing of the formulaic material for the communication of the law, in the hope of stimulating further discussion about the conceptualization of the law in the first half of the thirteenth century.

As remarked above, determining the significance of this aspect of Raymond’s editing must go beyond considering each individual instance. With a clause like de fratrum nostrorum consilio, however, it would be important to know in a general way whether its presence or absence from a decretal maps onto any actual difference in the process by which it was produced, or the relative weight assigned to its authority. There are, unfortunately, no known instances contemporary to the Decretals of a dispute over the inclusion or excision of the de fratrum nostrorum consilio clause, and so it is difficult to pinpoint the exact legal valence it would have had for Raymond. Forty years later, however, Gregory X (1271-6) would come into conflict with the college over procedures enacted to avoid the three-year vacancy after the death of his predecessor, Clement IV (1265-8), created by wrangling among the cardinals over whom to elect.²³⁰ After consulting with the college, Gregory promulgated Ubi periculum as c. 3 among the constitutions of the second council of Lyons (1274). Despite treating a matter of such central importance, the constitution lacked the de fratrum nostrorum consilio formula.²³¹ Its absence turns out to have been deliberate, since the provisions in Ubi periculum that constrained the power of cardinals during periods of sede vacante had been vehemently opposed by them, and they had refused to assent to the text as written. In this case,

230 For a discussion of the incident in reference to the de fratrum nostrorum consilio formula, see: Zacour,

“The cardinals’ view of the papacy,” pp. 430-1.

therefore, the de fratrum nostrotum consilio clause carried with it both the idea of

consultation and consent, though Gregory X ultimately succeeded in getting through Ubi periculum despite their opposition.

In a very basic sense, therefore, Raymond’s elimination of the de fratrum nostrorum consilio formula (“on the advice of our brothers”) along with its variants foregrounds the unaided, juridical authority of the papacy, and its capacity to pronounce the law directly, without recourse to a deliberative process with other members of the papal curia. The resulting construction – if one may speak in a positive sense of something’s absence – is of the law as a direct emanation of the papal will, signaled by the various verbal expressions employed according to the class of legal pronouncements involved: mandamus, “order”; declaramus, “declare”; (ad)iudicamus, “(ad)judge”;

excommunicamus, “excommunicate”; duximus irritandum, “consider invalid,” and so forth. The image of papal authority thus fashioned in the Decretals, at least in its juridical dimensions, approximates more closely the famous interpretation applied by Roman Law jurisprudence to the lex regia: “quod principi placuit, legis habet vigorem,”

i.e., “what pleases the prince has the force of law” (Dig 1.4.1.pr; Inst 1.2.3). The continuation of this passage in the Digest beyond the maxim demonstrates even more clearly the idea that the establishment of law rested solely on its being a communication of the legislator – whether that communication came via rescript, judicial sentence or statute – rather than any attendant process of consultation or formal enactment.

231 The constitution is printed in: Mansi, Sacrorum conciliorum nova et amplissima collectio, vol. 24 (Venice, 1780) coll. 81-6. It would later be included by Boniface VIII in the Liber Sextus at VI 1.6.3.

Therefore, whatever the emperor has determined by a letter over his signature or has decreed on judicial investigation or has pronounced in an interlocutory matter or has prescribed by an edict is undoubtedly a law.²³²

Whether or not Raymond had the lex regia directly in mind when editing the Decretals, it is hard not to overlook the similarities produced by his excision of the deliberative role of the cardinals.

It is important to note once more that Raymond’s marginalization of the cardinals’

consultative role in the Decretals appears to be a rhetorical rather than an historical reality. Although specific studies of the college under Gregory’s pontificate are lacking, the trajectory of their involvement in the juridical appartus of the curia in the second half of the thirteenth century only points toward an increased role. Moreover, in the

mainstream of canonistic thought they ended up being accorded a constitutional role in deciding the more important matters that were brought to Rome for decision.²³³ These later developments do not absolutely exclude the possibility that Raymond’s efforts were connected to a larger effort during Gregory’s pontificate of pushing back against the power of the college. That is a question, though, for future research to determine.

The assumptions about papal authority implicit in the language of the law produced by Raymond’s editing are only part of the story, however. More broadly, the rhetorical constructions reveal the operation of the law as simultaneously more

depersonalized, abstract and direct, i.e., without mediation. The language of affection provides a case in point. The removal of affectionate titles like dilectus filius and

232 The Digest of Justinian, rev. English edition, trans. Alan Watson, vol. 1 (Philadelphia, 1998) p. 14. The original is as follows: “Quodcumque igitur imperator per epistulam et subscriptionem statuit vel

cognoscens decrevit vel de plano interlocutus est vel edicto praecepit, legem esse constat.”

233 See: Zacour, “The cardinals’ view of the papacy,” pp. 424-5; Pennington, The Prince and the Law, 1200-1600: Sovereignty and Rights in the Western Legal Tradition (Berkeley, 1993) pp. 72ff.

venerabilis frater is part of a process of rationalization similar to what many case-based legal systems underwent, as jurists and legislators attempted to impose some measure of systematic order on a mass of historically-contingent legislation. In the same way that the abbreviation of names (e.g., from Iohannes to I.) functioned to efface the individual personality of litigants, so the removal of affectionate forms of address assist in the creation of a purely abstract subject of rights, laws and so forth, concretized only insofar as that subject held ecclesiastical office (bishop, judge, monk), possessed legal standing (plaintiff, defendent, witness), or existed within a social relationship (husband, wife, lord, serf). The language, in this case, was following the law towards the establishment of universally valid norms and procedures.

The removal of the language of familiarity also provides a graphic illustration of the reconfiguration of the relationship between the papacy and other members of the Church, whether clerical or lay, insofar as they were intertwined within the system of canon law. Rather than the pastoral relationship implicit in the affectionate titles, the Decretals represents the connection between the pope and the rest of the Church as founded solely on the basis of law, and particularly, the papacy’s role as the hub and fount of legal authority within the Church.

The elimination of corroborative sources of authority, as well as language referencing the physical embodiment or localization of the law can be undertood in a similar manner. Raymond inherited a body of sources in which legal pronouncements – whether legislative in the proper sense (conciliar canons, statutes), judicial (appeal

settlements) or merely administrative (collation of benefices) – frequently reflect the need to justify their own authority through appeals to tradition, other legal precedents, and so

forth. The rhetorical construction of the law created through the elimination of references to corroborative sources of authority thus underscores the idea of the self-sufficiency of the law flowing from papal jurisidction, understood literally as iuris dictio “the

pronouncement of the law.” Extra appeals to consonance or discord with canonical tradition (contra/secundum canones), conformity with patristic authority (auctoritate Sanctorum Patrum), or even agreement with civil law provided no additional weight to the mere statement of the law in each text of the Decretals.

Furthermore, the removal of references to the physical aspects of the decretal (per apostolica scripta; auctoritate praesentium [litterarum]), as well as language specifying where a case was heard or judgment pronounced (coram nobis; in nostra praesentia;

apud sedem apostolicam) tend toward the disembodiment of the law and its abstraction from the mode of transmission. This tendency is peculiar, insofar as the thirteenth century is the age of written law, whether exemplified through the growth of written administration in most European chanceries, the codification of regional legal traditions (e.g., the Libri feudorum and the Sachsenspiegel) or the fixing of local and institutional customs into writing.²²³⁴ In one sense, Raymond’s removal of the language of

embodiment can be taken as a measure of the normalization of legal authority exercised through written instruments. In another, one is witnessing the near-universal tendency of established authority to obscure the mechanisms of its own ascendance.

The course charted by Raymond’s editing can be clearly ascertained among the Gregorian constitutions. Composed specifically for promulgation in the Decretals, these constitutions did not contain the formulaic material normally found in other decretals.

Raymond felt no need, however, to replicate even in a functional way the rhetorical elements used by decretals to call attention to and reinforce their own authority. Instead, the Gregorian constitutions offer direct, unmediated statements of the law that are

depersonalized – whether in respect to their source or to their intended application. They are, in addition, completely un-self-conscious as to the their own authority – that

authority is simply assumed.

X 1.6.58, Publicato scrutinio (Gregory IX)

Publicato scrutinio variare nequeunt electores, cum sit facienda collatio, et electio celebranda. Ad quod per superiorem, si oportuerit, compellantur.

Once the electoral list has been published, the electors themselves may not be changed, because the assembly needs to be held and the election celebrated; to which the electors may by compelled, if necessary, by a superior.

All of the tendecies identified in Raymond’s editing of the formulaic material – as well as his construction of the Gregorian constitutions – would come to dominate the way

collections in the later thirteenth century were put together, culminating with Boniface VIII’s Liber sextus.

A final example drawn from the Gregorian texts may serve as a concluding remark about the significance of Raymond’s excision of the formulaic elements from his source material. To fill out the title on heresy, Raymond chose a solemn

excommunication decree to place at X 5.6.15, Excommunicamus et anathematizamus. X 5.6.15 was directed by Gregory IX against all heretics and their supporters, calling out by

234 On written administration, see: Clanchy, From Memory to Written Record, passim; on customaries, see:

Le Bras, L’Âge classique, pp. 208-12.

name a variety of contemporary heretical movements both famous and obscure.²³⁵ Raymond drew X 5.6.15 wholly from a February, 1231 decree immediately targeting heretical groups that had arisen in Rome during one of Gregory’s prolonged absences from the city (Auvray 539). Yet the opening lines were virtually identical to an earlier decree passed in April of 1229, which also leveled a general excommunication against named and unnamed heretical groups before adding more explicit condemnations of the Holy Roman Emperor Frederick II, as well as various other “oppressors” of the Church (Auvray 332). A comparison of the two decrees follows:

Auvray 332, Reg. Vat. 14 (fol. 133v): an. 3, no. 46

Excommunicamus et anathematizamus ex parte Dei Omnipotentis, Patris, et Filii, et Spiritus Sancti, auctoritate quoque beatorum apostolorum Petri et Pauli ac nostra, omnes hereticos Catharos, Paterinos, Pauperes de Lugduno, Arnaldistas, Speronistas et Passaginos, et omnes alios, quocumque nomine censeantur, et omnes fautores, receptatores et defensores eorum…

We excommunicate and anathematize on behalf of God Almighty, the Father, Son and Holy Spirit; and by the authority of the blessed apostles Peter and Paul – as well as by our own – all heretics: Cathars, Paterenes, Poor of Lyons, Arnaldists, Speronists, and Passagini; and all others, by whatever name they may be

reckoned, as well as all of their supporters, harborers and defenders.

Auvray 539, Reg. 15 (fol. 49v): an. 4, no. 107 (Source for X 5.7.15)²³⁶

Excommunicamus et anathematizamus universos hereticos: Catharos, Patarenos, Pauperes de Lugduno, Passaginos, Ioseppinos, Arnaldistas, Speronistas, et alios, quibuscumque nominibus censeantur, facies quidem habentes diversas, sed caudas

Excommunicamus et anathematizamus universos hereticos: Catharos, Patarenos, Pauperes de Lugduno, Passaginos, Ioseppinos, Arnaldistas, Speronistas, et alios, quibuscumque nominibus censeantur, facies quidem habentes diversas, sed caudas