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

Text of Innocent's Consilium


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 help me save 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, form the beginning of Innocent's pontificate, in the language of his decretal letters."(1) That note was stiff medicine for a young historian; but 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. Today I would like to look at a few of his letters from the first seven years of Innocent's pontificate and illustrate their relationship to the Ius commune.

My introduction to those letters was through the editing 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) It was this evidence that 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, however, which letters Innocent wrote 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 my title today because Innocent's legal learning must be judged not only by his knowledge of canon law and whatever he might have learned from a short stay in Bologna but also 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 Euorpean law for centuries afterwards. Even if Innocent's legislation has not always viewed benevolently. Three hundred years after his death when François Rabelais condemned papal decretal law with wicked, cutting, scrabrous humor, three of the seven decretals that he singled out as particularly inimical to the Kingdom of France were Innocent's.(4) But I am preaching to the converted. No one in this audience needs to be convinced that Innocent was important. Today I would like to offer examples how Innocent's curia created norms for the Ius commune and to discuss an item in Innocent's registers that I believe can give us 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 and institutions at their peril. I would like to discuss two of these norms today to illustrate the relationship between the Ius commune and Innocent's decretal letters and demonstrate how these norms evolved. Legal historians have noted that many of these 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.(5) "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.(6)

This is not the only model for the creation of maxims. Some, like "necessitas legem non habet," had primarily canonistic roots.(7) The history of the maxim, necessitas legem non habet, from its origins in the early Middle Ages to its maturity in the Ius commune, remains to be written. Legal historians have commonly attributed the maxim to Roman law. But the maxim was unknown to ancient Roman law, although the general concept of necessity was not alien to Roman jurists. Roman law dealt with 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.(8) Anselm of Lucca and Gregory, cardinal of Crisogono, included the letter in their collections, from which the compiler of De consecratione took for his appendix to Gratian's Decretum.(9) Surprisingly the most widely used collections of the eleventh and twelfth centuries, Burchard of Worms and Ivo of Chartres, did not include this chapter. Gratian himself was, as far as I can tell the first jurist to give the maxim its classic form in a dictum of the first recension of his Decretum: "Quia enim necessitas non habet legem, set ipsa sibi facit legem."(10) 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 today, this norm led every jurist of the Ius commune to conclude that "in times of necessity, all property is held in common."(11) Necessity derogated law, the jurists decided, especially when it was "urgens" or "cogens."(12) More on that later. Nota bene: Franck Roumy has written as superb essay on the origins of the concept in "L'oringine et la diffusion de l'adage canonique 'Necessitas non habet legem' (VIIIe-XIIIe s.)," ed. Wolfgang P. Müller and Mary E. Sommar, Medieval Church Law and the Origins of the Western Legal Tradition: A Tribute to Kenneth Pennington (Washington, D.C.: Catholic University Press of America, 2006) 301-319. 

We can perceive long gestation of "necessitas legem non habet" from Bede to Gratian only dimly. However, another important maxim of criminal law, "publicae utilitatis intersit ne crimina remaneant impunita" was born before our eyes 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.(13) Like many of the "regulae iuris" that became part of medieval jurisprudence, "Ne crimina remaneant impunita" had its ultimate origins in Roman law.(14) In the jurisprudence of the Ius commune, Roman law, particularly the Digest, became a rich quarry for building juridical concepts.

The origins of "Ne crimina" seems to have been in 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 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."(15) 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.(16)

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.(17) 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 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.(18) 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."(19) 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 key changes in wording between In auditum and Vt Famae was to link "utilitas" more closely with the idea that crimes should not remain unpunished and substituting "crimina" for "maleficia." Let's look at both changes in turn. "Utilitas" was a key concept in the jurisprudence of the Ius commune.(20) 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.(21) 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.(22)

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 out of private law and into 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 criminal law with the words: "Quoniam rei publice interest ut crimina non remaneant impunita."(23) 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 while he was studying law? Did he only study, study, study, while he was in Bologna or did he occasionally find distractions inside the city walls of Bologna grassa? 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.

Another item in register six is, to my mind, 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." Rubric

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 dubbed a "consilium." That fact is remarkable for two reasons. First, the term, consilium, had become by June, 1203(24) one which designated a response written by a jurist to a particular legal problem.(25) The designation of the text as a consilium resonates with the world of the jurists and the Ius commune. A consilium was not a judgment nor was it 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.(26) A rescript had the authority of the papal office behind it. Second, the consilium was sent "sine bulla." Since this designation is unique in Innocent's registers, we cannot know exactly what that means for its legal force. Taking the two terms together, however, we can draw some conclusions. This consilium was not a 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 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.(27)

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 binding.

We would been wrong, however, to think that Innocent or the jurists thought in such clean and clear categories. The author of Gesta Innocentii changed "consilium" into "consultatio" when he included the consilium into his account of the Fourth Crusade.(28) He introduced the letter with this sentence: "Ad consultationes autem Francorum dominus papa rescripsit hoc modo." I may remark in passing that the Gesta's author changing the technical term "consilium" into the more generic term consultatio betrays a lack of legal expertise. I might further note that "consultatio" was a common one in the margins of Innocent's registers. The canonists, on the other hand, obliterated the rubric and transformed the consilium into a papal letter by giving it the inscription: "Universis crucesignatis."(29)

Let's look at what else the canonists did with it. The 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 in lines 1-88. 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 Sarracens 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. Paterfamilias Consequently, his immediate family --- the crusaders --- did not have to shun contact with him --- the Venetians.(30) This part of the consilium became a part of canon law and provoked a lively debate among the canonists about the validity of contracts concluded with excommunicates.(31) The canonists restricted any general application of Innocent's principle. Crusaders' contracts may be valid nut not others. Venetians 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 Sarracens unless the Venetians had been absolved. He followed this admonition with biblical citations that confirmed his warning in 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 his troops 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) (32) 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)(33) Foraging

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 the surest signs that Innocent himself had a hand in drafting it.

Alanus Anglicus was the first 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 cited the decretal of Pope Gregory VII that Innocent referred to from Gratian's Decretum(34) (line 27-28) Gregory VII and agreed with the pope's conclusions that crusaders could do business with heretics and excommunicants.(35) He noted that there could be a contrary opinion about the licitness of communicating with a paterfamilias(36) 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.(37)

The second half of the consilium was much more problematic for Alanus. Foraging To 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.(38) First, 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."(39) (Line 101) The idea that troops could forage anywhere with impunity must have puzzled, or perhaps even shocked, Alanus. The point is that Innocent considered the crusade so important that he stretched the limits of the norms of canon law and the Ius commune to further the movement. Another example of Innocent's insensitivity to legal norms 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 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.

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.(40) 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.

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 6.30-3. 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.(41)

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 an army 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.(42) When Innocent wrote in lines 116 and 117 (43) Necessity "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 urgens necessity; the law remained in force. Most significantly, Alanus and all the later canonists omitted this section of the decretals from their collections.

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.(44) This bloody, brutal example was commonly allegorized to represent a warning to Jews who insulted the preaching of the Christian Gospel.(45) 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.(46) One might add to Haller's ironic observation that both jurists and theologians would have found his arguments disconcerting.(47)

Through skillful editing, Alanus tried to incorporate the second half of the consilium into canon law; his successors did not. They did not find the claims compelling.(48) Following Alanus, later canonists also 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 fifth year of his pontificate, one would not give him high marks.(49)

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 that today. 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. Was Innocent a great pope? I have no doubt that he was. Was he a great jurist? I still have my doubts. Pace Stephano carissimo.

Syracuse/New York Kenneth Pennington

1. BMCL 4 (1974) 70.

2. I have discussed Petrus' methodology in 'The Making of a Decretal Collection: The Genesis of Compilatio tertia,' Proceedings Salamanca 67-92.

3. W. P. Müller, Huguccio: The Life, Works, and Thought of a Twelfth-Century Jurist (Washington, D.C. 1994) 184.

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

5. Cod., VI 5.12.29. See Stein, Regulae iuris 149-150.

6. Gaines 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.

7. The paternity of this maxim seems to stretch back to the Venerable Bede; see X 5.41.4.

8. The concept of necessitas is much older, see Cortese, La norma giuridica I 262-266, but it too received its full panoply of meanings only during the twelfth and thirteenth centuries.

9. 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 in under De regulis iuris, 1 Comp. 5.37.12 (X 5.41.4): Quod non est licitum in lege, necessitas facit licitum.

10. 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].

11. E.g. Bernardus Parmensis, Ordinary Gloss to X 5.41.4, s.v. necessitas: " unde tempore necessitatis omnia sunt communia

12. See Brian Tierney, The Idea of Natural Rights (Emory University Studies in Law and Religion, 5; Atlanta: 1997) 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,

13. Richard M. Fraher, "The Theoretical Justification for the New Criminal Law of the High Middle Ages: "Rei publicae interest, ne crimina remaneant impunita," University of Illinois Law Review (1984) 577-595. Lotte Kéry, "Canon Law and Criminal Law: Results of a New Study,"  Proceedings of the Twlefth International Congress of Medieval Canon Law, Washington, D.C. (MIC, Series C Subsidia 13; Vatican City: 2007) notes a remarkable text in the letters of Fulbert of Chartres: ‘sed cum iuris sit ad utilitatem rei publicae cunctos punire maleficos’ printed in The Letters and Poems of Fulbert of Chartres, ed. and transl. by F. Behrends (Oxford Medieval Texts; Oxford 1976) 54, no. 29.

14. Peter Stein, Regulae iuris: From Juristic Rules to Legal Maxims (Edinburgh 1966) 144-152.

15. Innocent III, Pope. Die Register Innocenz' III. 1: 1. Pontifikatsjahr, 1198/1199, Texte. Ed. Othmar Hageneder and Anton Haidacher. Publikationen des Historischen Instituts beim Österreichischen Kulturinstitut in Rom. Wien: Verlag der Österreichischen Akademie der Wissenschaften, 1964. No. 546 (549), pp. 790-791. Po. 591

16. 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>

17. 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."

18. Fraher, "Justification" 577-578, thought that the decretal was addressed to the bishop of London and consequently connected the decretal with the Becket controversy.

19. Innocent III, Pope. Die Register Innocenz' III. 6: 6. Pontifikatsjahr, 1203/1204, Texte und Indices. Ed. Othmar Hageneder, John C. Moore, and Andrea Sommerlechner with Christoph Egger and Herwig Weigl. Publikationen des Historischen Instituts beim Österreichischen Kulturinstitut in Rom. Wien: Verlag der Österreichischen Akademie der Wissenschaften, 1995. No. 181 (183), pp. 301-302.

20. Ennio Cortese, La norma giuridica: Spunti teorici nel diritto comune classico (Milano 1962) I 185-186, 262-268 et passim, II 1

21. 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."

22. Innocent III, Pope. Die Register Innocenz' III. 2: 2. Pontifikatsjahr. Ed. Othmar Hageneder, Werner Maleczek, and Alfred A. Strnad.. Publikationen des Historischen Instituts beim Österreichischen Kulturinstitut in Rom. Wien: Verlag der Österreichischen Akademie der Wissenschaften, 1979. No. 258 (270), pp. 496.

23. Fraher, "Crimina impunita" 580. Cf. also Richard M. Fraher, "Tancred's Summula de criminibus: A New Text and a Key to the Ordo iudiciarius," Bulletin of Medieval Canon Law 9 (1979) 23-36.

24. The date of the consilium has been much debated. Some crusade historians wish to push it back to 1202 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. Aside from all other arguments, a line in the consilium (lines 27-28) indicates that the crusaders had left Zara with the Venetians after Innocent had excommunicated them ("dum in navibus eius fueritis"). On this point, see the literature cited by Donald E. Queller and Thomas F. Madden, The Fourth Crusade: The Conquest of Constantinople (2nd Ed. Philadelphia 1997) 90-92.

25. 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: Bulletin of Medieval Canon Law 20 (1990) 48, reprinted in Popes, Canonists and Texts, 1150-1550.

26. 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.

27. E.g. Helmut Roscher, Papst Innocenz III. und die Kreuzzüge (Forschungen zur Kirchen- und Dogmengeschichte, 21; Göttingen 1969) 109; See Alfred J. Andrea and Ilona 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, Alfred 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.

28. Vat. lat. 12111, fol. 34r-35r: Ad consultationes autem Francorum dominus papa rescripsit hoc modo = Migne, PL 214.cxl.

29. Alanus's First and Second Recensions of his collection: 1st Recension: Rudolf von Heckel, Die Dekretalensammlungen des Gilbertus und Alanus nach den Weingartener Handschriften, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kan. Abteilung 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.

30. Elisabeth Vodola, Excommunication in the Middle Ages (Berkeley-Los Angeles-London 1986) 132-135.

31. Ibid. 146-153.

32. Neither of these letters is extant.

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

34. 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].

35. 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. Iam uero rusticus [c.4]; v. et recipi: ipsius tamen non possit exigere quod eis debetur, arg. xv. Nos sanctorum [c.4] [Vercelli, Bibl. cap. 89, fol. 126v].

36. 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. Iuratos {MS inuitos}[c.5], arg. contra [Vercelli, Bibl. cap. 89, fol. 126v].

37. 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.

38. 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.

39. 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.

40. 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 Friedrich Karl von Savigny, Geschichte des römishen Rechts im Mittelalter (5th Ed. reprinted Aalen: 1986) 3.490-504.

41. 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 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.

42. 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.

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

44. Judges 8:4-16.

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

46. Das Papsttum: Idee und Wirklichkeit, 3: Die Vollendung (Basel 1952) 373; cited by Rosher, Papst Innocenz III. 109.

47. 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.

48. 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 evitare.

49. 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.