Pope Innocent III's views on the relationship between the church and the state have generated as much controversy in the twentieth century as they did in the thirteenth, but the debate has had the salutary effect of enhancing our understanding of the complex issues which churchmen and Innocent himself faced in that critical period of European history. Since 1940 when Maccarrone published his study of Innocent's policies, other historians have followed his lead and emphasized the relationship between Innocent and earlier canonistic and theological thought.⁽¹⁾ They have paid particular attention to the web of canonistic theories on church and state in the twelfth and early thirteenth centuries and have attempted to fit Innocent's decretal letters into one of the patterns of early juristic speculations about the relationship between the two powers. The result of this work has been tentative agreement among historians as to what Innocent's claims to exercise authority in the secular sphere encompassed.⁽²⁾ About ten years ago, Brian Tierney and John Watt published rather similar studies on Innocent which steered a course between the two extremes of earlier opinion.⁽³⁾ Innocent, they said, did make major new claims for the papacy in the secular sphere, but even his most trenchant declarations did not claim an absolute right for the exercise of papal power in secular affairs. In Tierney's words, what Innocent asserted were powers which "correspond fairly closely to those of a supreme court of judicature."⁽⁴⁾ Thus both Tierney and Watt believe that the "dualistic" and "hierocratic" interpretations misrepresent Innocent's thought.⁽⁵⁾

The whole thrust of research since Maccarrone has been to emphasize the legal ramifications of Innocent's decretals, and it is not surprising that Tierney and Watt have come to approximately the same conclusions as most thirteenth-century canonists did when they glossed Innocent's decretal letters. The pope could not, said most glossators, claim that all secular dignities and powers were a part of his plenitude of power; yet the pope could exercise secular jurisdiction in a fairly large number of areas. Further, the right to interfere in temporal matters inhered in the papal office, i.e. the papal office contained both priestly and royal prerogatives.⁽⁶⁾ From the lack of response to Tierney and Watt, perhaps one may conclude that either a broad area of agreement has emerged concerning Innocent's views, or that the discussion has reached an impasse---the hierocrats, dualists and a via media (Tierney and Watt) having articulated their respective positions find that new debate along old lines is fruitless.⁽⁷⁾

There is a subplot to the story as well. All parties, even the hierocrats, agree that although there were exceptions, the prevailing thought of the twelfth-century canonists was dualistic. The decretal letters of Pope Alexander III as well as the commentaries of the lawyers put up, legally speaking a fairly rigid wall between sacerdotium and regnum,⁽⁸⁾ and Innocent's decretals, even the dualists concede, establish important exceptions to the general rule of separation. Why, then, did Innocent III change the character of papal and canonistic thought? The dualists maintain that Innocent merely followed in the footsteps of his teacher in Bologna, Huguccio of Pisa, and never deviated from an essentially dualistic position. The hierocrats, perhaps best represented by Walter Ullmann, assert that Innocent upheld the final and inevitable superiority of the spiritual over the temporal and in doing so culminated centuries of preparation for the hierocratic position. Ullmann sees a decisive break between "Huguccio and his English and Spanish followers" and Innocent III.⁽⁹⁾ Tierney and Watt differ on this point. Although Tierney does not explicitly say so, he seems to see a break between Innocent III and his predecessors, while Watt states that "[Innocent's] political legislation emerged logically from a decretist background," and that he was particularly influenced by his teacher, Huguccio, in his thought.⁽¹⁰⁾

Yet Watt presents evidence that argues against such continuity. If Innocent was in tune with earlier canonists, he was almost alone among the thirteenth-century lawyers in interpreting the implications of his predecessors' positions correctly. Most historians agree that the decretal letter Per venerabilem was Innocent's most comprehensive statement on the relationship between the two powers. Nevertheless Watt must conclude that it was only Hostiensis who "brought the canonists back to the real mind of the legislator" when he glossed Per venerabilem.⁽¹¹⁾ In fact, as Watt's study demonstrates, contemporary canonists did a great deal of fussing and grumbling about almost all of Innocent's decretals which touched upon church and state. The obvious question is whether Innocent's thought represented continuity with earlier, accepted canonistic thought, and if so why did the canonists refuse to see the continuity? And if he did break with past canonistic traditions, why did Innocent ride a different horse?

In order to answer these questions, I should like to take another look at Innocent's ideas on church and state from a new perspective. Innocent has usually been characterized as a great lawyer-pope who was trained at Bologna by the twelfth-century canonist, Huguccio of Pisa. Since historians have described Innocent as a lawyer, they have tended to see his decretal letters on sacerdotium and regnum as subtle, well-considered legal briefs or opinions into which Innocent poured his most profound thoughts on the subject, even though some of his letters have perplexed historians because of inexact and nonlegal terminology.⁽¹²⁾ If Innocent was indeed schooled in law at Bologna, this would be entirely proper. A man's education does shape his thought, and nowhere is this truism more apparent than in law. Anyone acquainted with the writings of the lawyers knows that although they often disagreed---sometimes unseemly---their thought could be engagingly predictable. The modern scholar derives a sense of pleasure when he follows an intricate canonistic argument and anticipates the legal maxim with which the canonist will close his case. However, Innocent was not a doctor of laws, nor, very likely, even a polished product of the law school at Bologna.⁽¹³⁾ Therefore instead of interpreting Innocent's most characteristic statements on the relationship between church and state as sophisticated legal briefs, we might more accurately examine them as only crude embodiments of legal principles.

The evidence for Innocent's legal training is as follows. The story that Innocent studied with Huguccio originated in Johannes Andreae's fourteenth-century commentary on the Decretals of Gregory IX. Johannes put forward this notion because he had misinterpreted an earlier gloss in which Hostiensis had pointed out that Innocent III had rejected Magister Huguccio's opinion in one of his decretals. Johannes transformed Hostiensis's statement and declared that Innocent had rejected his master's opinion. Later historians have depended on Johannes's texts to establish that Innocent studied with Huguccio. Since there is no other source for the story that Innocent studied with Huguccio, the tradition must be abandoned.

The only evidence that Innocent studied in Bologna is the anonymous Gesta Innocentii, and the Gesta merely asserted that after studying in Rome, Paris and Bologna, Innocent surpassed all his contemporaries in philosophy and theology, but said nothing about law. Historians have concluded that, since Innocent studied with Huguccio, he must have pursued legal studies. If we disabuse ourselves of the notion that Innocent was Huguccio's student, we find that the evidence for Innocent's legal training is meager. Further, given what little we know about the chronology of Innocent's early life, it seems fairly certain that he studied in Bologna for a maximum of three years---very likely even less.⁽¹⁴⁾ Although it is most reasonable to assume that he did spend his time in Bologna studying law, it is unlikely that two or three years would have been an adequate period of study to learn Roman and canon law well enough to have produced some of the superb decretal letters which we find in his registers. Therefore, I think that we must be chary of characterizing Innocent as a lawyer-pope.⁽¹⁵⁾

There is no question that Innocent studied theology at Paris. Not only do we have the Gesta's praise of his talents, but also a number of theological works and sermons which betray clearly their Parisian origins.⁽¹⁶⁾ Historians have been less kind than the Gesta when they have evaluated Innocent's skills as a theologian. In a recent book, Helmut Roscher remarked that he did not know how a man of Innocent's intelligence could have written such prosaic theology,⁽¹⁷⁾ and anyone who takes the time to read Innocent's theological works and sermons can only concur. His theological speculations are hardly breathtaking; in fact, if one examines his sources closely, it is difficult to find an idea which is uniquely Innocent's.⁽¹⁸⁾

Yet with that said, Innocent's vision of papal monarchy which we find in his sermons and decretal letters is impressive. His conception of papal authority has both grandeur and breadth; it was his profound belief in the dignity and power inherent in the papal office that led Innocent to formulate his novel claims of papal prerogatives in the secular sphere. Innocent made original contributions to the theory of papal monarchy, and he pointed the papacy in a new direction which would have profound implications for the history of the church in the late Middle Ages.⁽¹⁹⁾

Not only were his letters on the relationship between regnum and sacerdotium important, but his other decretal letters had an enormous impact on the development of early canon law. His pontificate produced the first officially sanctioned collection of legislation in the West since the revival of learning in the twelfth century, and his decretal letters touched almost every aspect of contemporary law to the extent that virtually every study of twelfth- and thirteenth-century canon law must focus on legislation which Innocent's curia produced.

We even have colorful descriptions of Innocent's courtroom manner. Two Englishmen, Gerald of Wales and Thomas of Marlborough, sketched vivid portraits of the young pope presiding over the highest court in Christendom.⁽²⁰⁾ The anonymous chronicler who wrote a history of Innocent's early pontificate observed that he heard legal complaints three times a week in his consistory and dealt personally with the more important cases ("causae maiores"). He then listed eight cases which Innocent handled.⁽²¹⁾ Not surprisingly, all of the cases were matters of importance to the ecclesiastical hierarchy: four cases treated translations of bishops which had not been authorized by the papacy; two cases determined archiepiscopal jurisdictional claims over contested bishoprics, and the last two concerned conflicted jurisdictional questions between bishops and other ecclesiastical corporations. The Gesta's author praised Innocent's skill in settling these cases and his ability in bringing the litigating parties together with a just solution of their differences---a quality of his justice for which Innocent was noted. There is an example of this in the Evesham case. Thomas of Marlborough observed that since Evesham had already won the first half of the dispute, Innocent, he thought, would

favor the bishop of Worcester in the second half.⁽²²⁾ Whether or not Thomas is correct, Innocent's relativism is not to be despised. Medieval justice often depended on compromise as a means of preventing subsequent litigation, and compromise may have been the only way to assure that distant litigants would follow papal decisions.

In his account of the Evesham case, Thomas of Marlborough described Innocent as a judge who possessed a keen sense of humor that sometimes obfuscated the legal point at hand and as a strong-minded man who did not tolerate criticism of his actions, even when criticism might have been justified. Two anecdotes support these points. One of the key arguments in the Evesham case centered on the issue of whether the monastery at Evesham could prescribe the rights ("iura") of the bishop of Worcester. The bishop's advocate, Robert, thought not and said to Innocent: "Holy Father, we learned in the schools, and it is the opinion of our masters, that prescription cannot run against episcopal rights." To which Innocent responded, "You and your masters drank too much English beer when you learned that."⁽²³⁾ What has been lost in the humor of the moment is that Innocent's remark (and that of Robert) was not an accurate description of what the lawyers thought about the prescription of episcopal rights. Some episcopal rights could not be prescribed, and Thomas subsequently gave both Innocent and Robert a fairly accurate summary of canonistic thought on prescription.⁽²⁴⁾ Immediately after this exchange, Innocent pointed out to Robert that perhaps frequent vacancies in the episcopal see of Worcester vitiated the monastery's claim of prescription. Innocent's suggestion distressed Thomas. He thought Innocent exceeded a judge's proper role, and he tells us that his tongue could not be restrained:⁽²⁵⁾ "Holy Father, you have been called in plenitude of power and all things are permitted to you, but according to civil law it is not permitted to other judges to aid advocates de facto, but only de iure." Innocent retorted, "that is false; rather a judge may offer aid de facto and de iure.

The andecdote may reveal more of Innocent's character than it does of his knowledge of legal doctrine, but, in fact, few contemporary jurists would have supported Innocent's---or Thomas'---dogmatic assertion. The question had been debated in the schools since the middle of the twelfth century. Huguccio was one of the few jurists who believed that a judge may always offer aid de iure and de facto.⁽²⁶⁾ His opinion was not followed by the next generation of jurists. Very likely either just before or during Innocent's pontificate, Azo formulated the doctrine that a judge could render aid to litigants de facto only from knowledge that he had obtained from the court proceedings.⁽²⁷⁾ He distinguished between what a judge learned in court and what he knew as a private person outside the courtroom. Azo's distinction became the commonly accepted solution to the problem.

Innocent certainly displays some knowledge of legal rules in these two exchanges. But their value as evidence for his erudition must be tempered by the fact that his advocates in the curia would have given him legal advice about procedural rules. Undoubtedly, Thomas enjoyed good legal counsel too. He had hired Master Petrus Beneventanus, the "best advocate in the curia" and compiler of Compilatio tertia.⁽²⁸⁾ Petrus would have been at Thomas' elbow with expert advice. If one may judge by contemporary legal thought, Thomas's answer probably would have been given a higher grade by the Bolognese masters, since it conformed more closely to Azo's. Innocent's statement reflected the jurisprudence of the 1180s.⁽²⁹⁾ Nevertheless, there are several unknown variables that make it difficult to judge Innocent's actions and words by the procedural rules of the time. Did Innocent learn of the vacancies at Worcester from the testimony of witnesses? If so, his suggestion to the bishop's advocate was proper and justified. If not, Thomas' complaint may have had some substance. In any case, I think it is difficult to be sure when we hear Innocent's "voice," and when we hear his voice, what to make of it.⁽³⁰⁾ We may conclude that if he knew Huguccio's opinion, his legal knowledge (or that of his advisors) was a trifle out-of-date.

Innocent sometimes display an imperious and rash manner in the papal consistory.⁽³¹⁾ In spite of his behavior, contemporaries called him "nostri temporis Salomon,"⁽³²⁾ and Hostiensis later named him "pater iuris."⁽³³⁾ Yet to argue that such a man was not a trained lawyer is neither paradoxical nor perverse. Legal history is replete with emperors, kings, lawgivers and even supreme court justices who did not themselves possess subtle legal minds but had other qualities which produced significant changes in law. Innocent was a superb administrator, and this talent helped him to reshape both papal government and papal law.

When we turn to Innocent's decretal letters which deal with the problem of church and state, we immediately encounter a methodological difficulty. I have argued that we cannot evaluate Innocent's legal learning by reading his decretal letters because we cannot be certain whether these letters contain Innocent's own words and ideas or those of a canonist working in the papal curia.⁽³⁴⁾ Of course, the pope must have been the final arbiter of what his letters contained, but there is no proof that the specific ideas in any particular letter are Innocentian. When one considers the seven major letters of Innocent that bear upon the relationship between church and state and that were incorporated into the corpus of ecclesiastical law, it must be admitted that they do not contain either conceptualizations or phraseology (for the most part) that could stamp them as Innocent's. Further, the legal justifications put forward in these decretals permitting the pope to judge in the regnum---ratio peccati, vacante imperio, or reason of heresy---are not concepts which are derived necessarily from the work of the canonists or any other branch of learning.⁽³⁵⁾

However, historians have usually turned to the decretal Per venerabilem as Innocent's most important and characteristic statement on papal power.⁽³⁶⁾ And with good reason. We have a large body of works that Innocent wrote before and after his election to the papal throne, and there are obvious stylistic and thematic correspondences between Per venerabilem and sections of his sermons.⁽³⁷⁾ The major literary images which Innocent used again and again are quite familiar, and most of them occur in Per venerabilem. He relied on the standard biblical texts which theologians and canonists commonly cited when discussing papal power---Matt. 16:18, the vicariate of Christ and papal plenitude of power---and also brought forward a novel figura from the Old Testament to prove his claims to exercise secular jurisdiction. The pope was the vicar of him who was represented by the order of Melchisedech, and by implication, as Christ's vicar the pope had the power of both a priest and a king as a part of his office.⁽³⁸⁾ The symbol of Melchisedech pervades Innocent's writings and occurs in Per venerabilem in conjunction with an obscure passage from Deuteronomy. The only "Innocentian" text that does not appear in the decretal is Jer. 1:10, a passage that Yves Congar has shown was used frequently by earlier popes.⁽³⁹⁾ We turn then to Per venerabilem not only as a touchstone of Innocent's thought, but as a summary of what Innocent said about the relationship between sacerdotium and regnum in his sermons, theological works and decretal letters.⁽⁴⁰⁾

Per venerabilem was sent to William of Montpellier in 1202 in answer to William's request that Innocent legitimize his bastard children so they might inherit their father's possessions and title. Innocent rejected William's plea, but asserted that the pope could grant such a request if the occasion demanded such action.⁽⁴¹⁾ The decretal divides into three parts. In the first part of the letter Innocent declared that an action of legitimization was within the pope's jurisdictional competence and cited several legal precedents to support his contention. In the second, he set forth his reasons for rejecting William's specific request, and in the third he outlined a rationale and justification for papal action not only in William's case (if the pope had wished to act) but in other secular matters as well.

The legal arguments which Innocent put forward in section one are interesting, for there was no legal precedent for William's request. Whether the legal citations represent Innocent's own thought, or merely the arguments of William's lawyers, we cannot be certain. Innocent IV evidently assumed that the first part of the decretal was not really Innocent's formulation of the case, but only the arguments which could be put forward on the count's behalf.⁽⁴²⁾ In any case, the legal precedents cited in the decretal are weak. First, he noted that when a person becomes a bishop, he is exempted from patria potestas. If a bishop then ordains a servus, the latter escapes from the yoke of servitude. Further, argued Innocent, since the pope may legitimize in the spiritual sphere, he may legitimize in secular matters "quod in maiori conceditur licitum esse videtur et in minori" (what is conceded in a greater, also seems to be lawful in a minor), because---as all of his contemporaries would have admitted---the spiritual power requires greater authority and suitability than does temporal power. John Watts remarks at this point that Innocent's basic argument in Per venerabilem was grounded on the Roman law maxim, "in eo plus sit, semper inest minus" (the smaller is always included in the greater).⁽⁴³⁾

The canonists were remarkably unimpressed with Innocent's reasoning, for the objections to Innocent's assertions are obvious: the Roman legal maxim which Innocent cited pertained to officials in the same jurisdictional sphere---any power possessed by a subordinate is also possessed by his superior. But few thirteenth-century canonists (not even Innocent himself) would have conceded that temporal power was merely delegated by the pope. Innocent confused two different concepts in his assertion: the superiority of the spiritual power over the temporal (the spiritual power being of a higher order) with the jurisdictional power which a superior judge could always exercise in lieu of an inferior. The maxim in eo was not the basis for Innocent's claims in Per venerabilem, but was an example of a logical equivocation. If the maxim had been Innocent's fundamental claim in Per venerabilem. then he could have used the same reasoning to justify any incursion into the secular sphere, but as we shall see, he based his right to exercise secular power on quite different grounds.⁽⁴⁴⁾

Innocent's example of the servus who was removed from the power of his secular master when became a priest is a poor analogy to the case in Per venerabilem.⁽⁴⁵⁾ In the ordination of a servus, a bishop frees the man by bringing him into the ecclesiastical hierarchy, but in Per venerabilem, Innocent declared that he could change a person's legal status when the person remained in the temporal sphere. In fact, Innocent IV pointed out Innocent's faulty reasoning when he glossed Per venerabilem. He noted that if a prince legitimized a person in his jurisdiction, that person could not inherit hereditary goods from someone who died intestate under another prince's jurisdiction.⁽⁴⁶⁾ By implication, Innocent IV denied that the pope could routinely legitimize a person in temporal matters and rejected the claims in Per venerabilem, as did most canonists before Hostiensis. Thus, the legal arguments put forward in section one---if they do represent Innocent's own thoughts---are neither subtle nor convincing.

The canonists soon advanced much stronger arguments to justify the pope's right to legitimize in the temporal sphere. Innocent could have asserted, as Vincentius, Johannes Teutonicus and Innocent IV did, that the pope could exercise temporal jurisdiction when legitimizing if all parties concerned agreed to the action, i.e. when the pope exercised "jurisdictio voluntaria."⁽⁴⁷⁾ Or Innocent might have used Hostiensis's intriguing argument at the pope alone could legitimize a person---Hostiensis thought that legitimization, like marriage, should properly fall within the sphere of ecclesiastical law.⁽⁴⁸⁾ In either case, the canonists provided legal rationales which were lacking in section one of the decretal.

In the second part of Per venerabilem, Innocent gave reasons for denying William of Montpellier's request. He took care to show that William's situation was quite different from that of King Philip Augustus, the precedent which William had cited to support his case. The main difference between the two cases, said Innocent, was that Philip had no superior in the temporal sphere, but William did. If he legitimized William's children, Innocent would injure the rights of the French king. This he refused to do.⁽⁴⁹⁾

Finally, in the last and most important section of the letter, Innocent reasserted his right to legitimize in the regnum:⁽⁵⁰⁾
 

Having been convinced by these reasons, we bestowed the requested favor upon the king; we conclude from examples drawn from both the Old and the New Testaments that not only in the patrimony of the church where we hold full power in temporals, but in other regions as well, having examined the circumstances we exercise temporal jurisdiction in certain cases.
 

Here Innocent did not merely claim the power of legitimization in the secular sphere, but to exercise casualiter secular jurisdiction, certis causis inspectis, and turned to the Old Testament for textual support. An argument which occurs in almost all of his writing on church and state was that the pope is a priest in the order of Melchisedech. Melchisedech was a mysterious figure in the book of Genesis who was called a priest of the most high God and king of Salem. Since Melchisedech gave bread and wine to Abraham and blessed him, biblical commentators quickly interpreted Melchisedech as being a forerunner of Christ.⁽⁵¹⁾ To theologians of the twelfth century, Melchisedech represented Christ and the "order of the priesthood," a quality which was common to all priests.⁽⁵²⁾ St. Bernard was the first to connect Melchisedech specifically with the papal office, but he did so in commonly accepted theological terms. In a passage of De consideratione, Bernard said that the pope was a "priest in the order of Melchisedech,"⁽⁵³⁾ that is, priesthood was one of the characteristics of the papal office. Innocent connected the symbol of Melchisedech with the vicariate of Christ in Per venerabilem, and since Melchisedech prefigured Christ, therefore the pope---like Melchisedech---had both royal and spiritual power inherent in his office.⁽⁵⁴⁾

The figure of Melchisedech was transformed into Innocent's most dramatic argument for papal monarchy. In a letter to the bishop of Fermo in 1205, Innocent wrote:⁽⁵⁵⁾
 
 

Although pontifical authority and imperial power are diverse dignities, and the royal and sacerdotal offices are distinct, because the Roman pontiff holds on earth the office of him who is the king of kings and the lord of lords, priest forever in the order of Melchisedech, he not only holds the highest power in spiritual affairs, but truly even in temporal affairs he holds great power from the same lord.
 

Although Fermo was a city in the patrimony of St. Peter, Innocent's use of the Melchisedech imagery in letters which were addressed to persons outside of the patrimony makes clear that he did not intend that the pope's royal powers be confined to the papal states. Per venerabilem is one example. Innocent cited Melchisedech to demonstrate the royal and sacerdotal character of the papal office, and unlike earlier commentators, he emphasized Melchisedech's royalty as well as his priesthood. In Per venerabilem Innocent used Melchisedech with Matt. 16:18 to prove his claim that the pope could exercise temporal power outside of the papal states, "certis causis inspectis."⁽⁵⁶⁾

To modern historians, Innocent's use of the figura of Melchisedech seems to capture the very essence of the medieval biblical exegesis. Innocent himself stated that the Old Testament had a fundamental relationship to the New Testament that could be easily demonstrated. The idea is a commonplace in medieval exegetical thought.⁽⁵⁷⁾ Innocent's use of Melchisedech to prefigure and to justify the temporal power of the pope seems to be an exegetical triumph. I have already shown that commentators in the twelfth century did not anticipate Innocent's explication of Melchisedech, but, as persuasive as Innocent's argument may seem to moderns, I have not found a single canonist after Innocent who cited Melchisedech to establish the pope's right to act in the regnum. The one notable exception to this generalization is Eger cui lenia, a polemical document which emanated from the curia of Pope Innocent IV, but which, as Peter Herde has shown, probably does not reflect the mind of Innocent IV.⁽⁵⁸⁾

Later canonists and theologians did employ Innocent III's assertion that the pope was the vicar of Christ and exercised a plenitude of power as the successor of Christ's first vicar, Peter. However, their position raised problems which Innocent's use of Melchisedech avoided. How could the vicar of Christ claim royal power when Christ himself said that his kingdom was not of this world and that his followers ought to render unto Caesar those things which are Caesar's? The usual answer which the advocates of papal power gave was to demonstrate the superiority of spiritual to temporal power and to cite the text of Matt. 16:18, insisting that when Christ said St. Peter could loose or bind "quodcumque," that meant everything, both in the spiritual as well as the temporal realm.⁽⁵⁹⁾ But in the fourteenth century, Marsilus of Padua still found Innocent's arguments weighty enough to reassert the theological position of the twelfth-century scholastics: Melchisedech's royalty prefigured only Christ, not his vicar.⁽⁶⁰⁾ Marsilius argued the case well, but he was tilting with windmills; almost no contemporary theologian was making such an argument.

The second text which Innocent cited was a passage from Deut. 17:8-12. "It may be that some matters of law will be too hard for your unravelling, between blood and blood, case and case, leper and leper, and your own judges disagree, make your way to the place which your lord God has chosen, and to the priests of Levi's race." Again, Innocent's interpretation of this text is unusual. The Ordinary Gloss stated that, "He instructed the priests of God's church that they render ecclesiastical judgments reverently according to the power given them by God."⁽⁶¹⁾ In Per venerabilem Innocent connects Deut. 17:8 with secular cases and with Matt. 16:18.⁽⁶²⁾ "He indeed is a priest or judge over them, to whom the Lord said in Peter, `Whatsoever you shall bind on earth shall be bound in heaven, and whatsoever you shall loose on earth shall be loosed in heaven,' that is his vicar, who is a priest forever in the order of Melchisedech, appointed by God the judge of the living and the dead." I have found no earlier biblical commentator who uses this passage to justify ecclesiastical interference in secular cases although at least three Gregorian canonical collections did employ the text to support papal judicial power.<sup>(63)</sup> Why did Innocent choose this particular text? I suspect that the Ordinary Gloss's comment on Deut. 17:12 convinced him that the passage was admirably suited to his purpose<sup>(64)</sup>: s.v. sacerdotis imperio. "Of Christ who is a priest forever in the order of Melchisedech, who substituted vicars for himself, to whom he said, `Who hears you, hears me, who spurns you, spurns me [Luke 10:16].'" Innocent undoubtedly read both the gloss and the text of Deut. 17:8-12 together, and the Gloss's reference not only to Melchisedech, but also to Christ's vicars must have persuaded him that the passage was ideal for describing the judicial powers of the papacy---Melchisedech foreshadowed the papal office and Deut. 17:8-12 foreshadowed the pope's power to judge.

Deut. 17:8 created exegetical difficulties for Innocent. He might have cited Deut. 1:17 but in simpler terms. There, Moses, who could also be viewed as a forerunner of the papal office,⁽⁶⁵⁾ said: "if any quarrel seems hard to decide, refer it to me, and I will take cognizance of it myself." Peter the Chanter had incorporated Deut. 1:17 in his description of ecclesiastical judicial power in his Verbum abbreviatum, and even the gloss to Deut. 1:17 seems to be more amenable to Innocent's purpose than Deut. 17:8⁽⁶⁶⁾: s.v. quod si difficile. "Greater men ought to judge greater and more difficult things; lesser men the smaller and easier."

However, Innocent did not use Deut. 1:17, and the tripartite division of judicial cases in Deut. 17:8 caused him to have problems with his terminology. Tierney has shown that Innocent intended that Deut. 17:8 should demonstrate that both secular and ecclesiastical cases which were difficult and ambiguous ought to be referred to the pope. The canonists in Bologna interpreted Innocent's words in this way. Yet the three types of judgment which the text described fit awkwardly into the legal categories of the early thirteenth century. Innocent stated that the three types of judgment in Deuteronomy were secular criminal cases, ecclesiastical criminal cases and a last category of ambiguous secular and ecclesiastical cases. Innocent declared that if difficulties arose in any of these, the troublesome case should be sent to Rome. The divisions of legal cases which Innocent set forth are not only incomplete, but, from a legal point of view, Innocent muddled his thought by a poor choice of terms.

In his Ordo iudiciarius, which was written slightly later than Per venerabilem, Tancred stated that there were four kinds of cases in ecclesiastical justice: criminal, civil, spiritual and mixed.⁽⁶⁷⁾ He might have observed that at least three of these categories could be applied to secular justice as well---secular courts could judge in mixed cases such as disputes which arose between lay patrons to churches but not in purely spiritual matters. There were, in other words, seven different types of cases which Innocent telescoped into his rather crude outline of ecclesiastical and secular justice. He might have alleviated the difficulty in his terminology if he had described the "causa et causa" cases referred to in Deut. 17:8 as civil cases in both secular and ecclesiastical courts, and not as "cases which were ecclesiastical as well as secular." His categories would have then had more symmetry and less confusion. Further, when Innocent described the third set of cases as "tam ecclesiasticum quam civile," he committed a blunder in terminology which I believe no one who had been trained in law would have made. "Civile" could refer to noncriminal matters such as those which dealt with money or to secular problems;⁽⁶⁸⁾ we find both usages among contemporary lawyers. Innocent had used "civile" to mean secular when he described cases of blood and blood, but he introduced an ambiguity into his text when he chose "civile" to describe the third set of cases (although both of the usages of "civile" in Per venerabilem are internally consistent, i.e. they both mean secular) because one could interpret the third set as referring to either civil ecclesiastical or just ecclesiastical cases. The canonists saw the ambiguity immediately and glossed the second "civile" as "seculare."⁽⁶⁹⁾ In sum, Innocent's description of justice based on Deut. 17:8 is hardly satisfying. Because of imprecise definitions, his argument has baffled both thirteenth- and twentieth-century scholars. It is not surprising that later canonists did not consider this intractable text when they wished to illustrate the relationship between papal power and secular justice. Like Melchisedech, the passage lived on in the corpus of canon law, but it was largely ignored.

Finally, Innocent cited St. Paul's first letter to the Corinthians 6:3 to prove that the pope could, in Innocent's words, judge in secular affairs because of his plenitude of power:⁽⁷⁰⁾ "Indeed Paul, in order to explain plenitude of power, wrote to the Corinthians and said: `Know you not that you shall judge angels? How much more the things of the world?'" There was a tradition of sorts for the citation of this text in connection with papal judgmental power,⁽⁷¹⁾ but once again, Innocent's exegesis of the passage is unusual. Twelfth-century theologians interpreted Paul's words to mean that the church could judge in spiritual matters, but they did not interpret "secularia" as meaning temporal affairs.⁽⁷²⁾ St. Paul contrasted heavenly and worldly matters, not spiritual and temporal. Although this passage was used by later papal writers---notably again Eger cui lenia---and led to the question of whether the pope could judge angels,⁽⁷³⁾ 1 Cor. 6:3 was not an important reference for later hierocrats.

Innocent coupled Melchisedech, Deut. 17:8 and 1 Cor. 6:3 with the locus classicus of papal judgmental power, Matt. 16:18 in the decretal Per venerabilem. He linked these biblical texts to the legal and theological concept that the pope was also the vicar of Christ. While all priests were sometimes described as being vicars of Christs, Innocent emphasized that "vicarius Christi" was a special papal title in his writings. Although Innocent often connected the vicariate of Christ with the biblical texts which we have discussed, later writers eliminated Innocent's more strained exegesis and retained his emphasis on the pope's plenitude of power and his vicariate.⁽⁷⁴⁾ That was his lasting contribution to the ideology of the papal office.

Innocent's conception of the papal office was both brilliant and sweeping, but his vision was not based on law or on legal arguments which some of his contemporaries were making. He might have adopted the view of Alanus Anglicus that the pope held both swords, spiritual and the temporal, and that all jurisdiction flowed from the pope. Such an argument had the great virtue of simplicity and, on its own terms, was unassailable. Or he might have settled on the same distinction favored by Vincentius Hispanus and Johannes Teutonicus: the pope could legitimize outside of the papal states through "jurisdictio voluntaria," a distinction which would have preserved a jurisdictional separation of the two powers. Innocent, however, rejected a legal solution and substituted his own "political theology."⁽⁷⁵⁾

Per venerabilem was not a product of a mind which had been honed at the law school in Bologna, for, as a legal document, it was unsatisfactory and stood in sharp contrast to the lawyers' clear expositions on the relationship of the temporal and spiritual spheres. But the decretal was included in the corpus of canon law, and lawyers did have to extract what meaning they could from it. Their difficulties were similar to those which have perplexed modern commentators. If the pope legitimized a person, was that person capable of holding secular offices and inheriting temporal goods and dignities? Did Per venerabilem prove that the pope had ordinary power in temporals? The canonists confronted these knotty problems with mixed success. They were, of course, attempting to fit the decretal into the prevailing framework of canonistic thought.

When the combative canonist, Hostiensis, finally gave a detailed commentary to Per venerabilem in the mid-thirteenth century, he had harsh words for his predecessors. He was a lawyer who adhered to the letter of the law ("textus") and he bristled when he saw earlier canonists trying to vitiate Innocent III's clear intent in Per venerabilem. In his commentary on the beginning of the third part of the decretal, he observed that Tancred and Vincentius erred when they said that the pope could not freely legitimize outside of the patrimony of St. Peter. Such an opinion went contrary to the clear meaning of the text.⁽⁷⁶⁾ He then turned sarcastic when he commented on Bernardus Parmensis's Ordinary Gloss:⁽⁷⁷⁾ "Behold a good gloss which says that only they who live in patrimony of St. Peter can be legitimized by the pope, and the text says not only they." But as I have pointed out, although Hostensis may have brought canonistic thought back to the mind of the legistlator, his solution was hardly an outgrowth of Innocent's arguments.

Innocent's description of the papal right of legitimization in Per venerabilem was based on a series of Old and New Testament texts which were neither part of the canonistic tradition, nor, more surprisingly, part of earlier theological traditions. Innocent lived in an age which relished extravagant biblical exegesis, and he demonstrated that passages in the Old and New Testaments adumbrated his conception of the papal office.⁽⁷⁸⁾ Since this methodology was a standard tool of the medieval exegete, historians have seen Innocent's textual explications as having intellectual verve and, more importantly, respectability. Medieval men must have found Innocent's arguments reasonable because that is the way men thought in the Middle Ages. But this assumption is open to serious question; Innocent's biblical exegesis was not accepted by later writers although his decretals became the loci for canonistic commentary on sacerdotium and regnum.

How does my characterization of Innocent's thought change our view of him? In some ways very little. His pontificate was one of the two or three most important in the medieval period, and his personality and character set the tone of papal government. Since the eleventh-century reform movement, the papal office had become an ever more important element in Christian society, and Innocent brought the power and dignity of the papal office to new heights. He saw that there were problems in Christendom which only the bishop of Rome could remedy. For Innocent, the ultimate purpose of the papacy was embodied in Jer. 1:10, another favorite text. "[The pope should] root up and pull down, overthrow and lay in ruins, build and plant anew."⁽⁷⁹⁾ When he turned his mind to the powers and duties of the papal office, he was masterfully ingenious. He carried the idea that the spiritual power is superior to temporal power to its logical conclusion: in some cases the spiritual power might find it necessary to intervene in secular affairs. But the policies which Innocent III began inexorably led to the excesses of his successors.

We might change our views in one respect. Innocent has been pictured as a calculating lawyer, skillfully paving the way for papal monarchy. Rather I think that it was Innocent's high sense of moral and historical purpose which motivated him to formulate his policies. The older view that Innocent cleverly contrived to gain worldly dominion is belied by his obvious sincerity. At times, he may have been rash, autocratic and shortsighted, but he strove vigorously to shape a meaningful Christian society on earth. If Innocent had been more sophisticated in his thought, more contemplative, better trained in law, his decretals on church and state might have been quite different. Of course, he could rarely, if ever, render a judicial decision which touched upon the delicate jurisdictional boundary between church and state without considering the political impact of his decree. In Per venerabilem, Innocent did not want to offend the king of France or William of Montpellier, and he offered an imperfect solution to a complex problem. But we can better understand the man, if we understand the intellectual milieu from which he framed his answer. And what possible answers there were.

1. Michele Maccarrone, Chiesa e Stato nella Dottrina di Innocenzo III (Rome, 1940).

2. Since Maccarrone wrote there has been a fairly abundant literature on Innocent III. The most important subsequent studies are: Friedrich Kempf, Papsttum und Kaisertum bei Innocenz III.: Die geistigen und rechtlichen Grundlagen seiner Thronstreitpolitik (Miscellanea Historiae Pontificiae, 19; Rome, 1954); Helene Tillman, Papst Innocenz III. (Bonn, 1954); Helmut Roscher, Papst Innocenz III. und die Kreuzzüge (Göttingen, 1969). Christopher R. Cheney, Pope Innocent III and England (Päpste und Papsttum 9; Stuttgart, 1976). See also the books by Laufs and Imkamp discussed in essays II and V of this volume. Both works contain complete bibliographies.

3. Brian Tierney, "The Continuity of Papal Political Theory in the Thirteenth Century," Mediaeval Studies XXVII (1965), 197-218 and "Tria quippe distinguit indicia..., A Note on Innocent III's Decretal Per venerabilem," Speculum XXXVII (1962), 48-59. John Watt, "The Theory of Papal Monarchy in the Thirteenth Century," Traditio XX (1964), 179-317 which was published as a separate monograph (London and New York, 1965).

4. Tierney, "Continuity," p. 238.

5. I agree with the views of Tierney and Watt. A recent, thorough analysis of Walter Ullmann's vision of papal monarchy is Francis Oakley, "Celestial Hierarchies Revisisted: Walter Ullmann's Vision of Medieval Politics," Past and Present LX (1973), 3-48. Ullmann, more than any other single historian, has shaped the debate about political theory. Indeed, the use of the words "state" when refering to the regnum, forum seculare, forum civile, or in temporalibus (all terms used by medieval lawyers) is anathema to Ullmann---a betrayal of gross ignorance on the writer's part. I think that when medieval lawyers do not have precise terminology for referring to the secular sphere, the historian is justified in choosing an English word which conveys clearly the meaning intended, even if the word is a trifle anachronistic. Economic historians encounter no difficulty in describing the economic systems of the Middle Ages with anachronistic terms, why should not historians of political theory if the meaning is clear to all? Professor Richard Helmholz has observed that we speak of the medieval church without difficulty, yet the "church" is a very different institution today.

6. Watt, Theory of Papal Monarchy, is an excellent survey of canonistic opinion after Innocent III.

7. Recent work on Innocent III which sometimes touches on his views of papal power is: K. Schatz, "Papsttum und partikular kirchliche Gewalt bei Innocenz III.," Archivum historiae pontificae VIII (1970), 61-111; Ludwig Buisson, "Exemples et Tradition chez Innocent III," L'Année canonique XV (1971), 109-32; John C. Moore, "Papal Justice Around the Time of Pope Innocent III," Church History XLI (1972), 259-306; James Ross Sweeney, "Innocent III, Hungary and the Bulgarian Coronation: A Study in Medieval Papal Diplomacy," Church History XLII (1973), 320-34.

8. Kempf, Papsttum und Kaisertum, pp. 181-230, provides a good survey of canonistic thought in the twelfth century, along with Sergio Mochi Onory, Fonti canonistiche dell'Idea moderna dello Stato (Milan, 1951). Alfons Stickler's detailed studies which are listed in the bibliographies of the works listed in note 2 are also valuable.

9. Walter Ullmann, Medieval Papalism: The Political Theories of the Medieval Canonists (London, 1949), p. 146.

10. Tierney, "Tria quippe distinguit," pp. 55-56; Watt, Theory of Papal Monarchy, p. 34.

11. Watt, Theory of Papal Monarchy, p. 111.

12. E.g. Tierney, "Tria quippe distinguit," p. 54.

13. The conclusions presented in the following paragraphs are taken from my essay, "The Legal Education of Pope Innocent III," Bulletin of Medieval Canon Law, n.s. IV (1974), 70-77.

14. John C. Moore, "Lotario dei Conti di Segni (Pope Innocent III) in the 1180s," Archivum historiae pontificiae 29 (1991) 255-258, has argued that Innocent might have spent up to three years at Bologna.

15. How much law Innocent could have learned in two years is impossible to estimate. A student who had studied canon law for two years felt inexpert enough to ask Peter of Blois for his opinion of a legal problem, see S. Kuttner and E. Rathbone, "Anglo-Norman Canonists of the Twelfth Century: An Introductory Study," Traditio VII (1949-51), 279-358, at p. 286. My thanks to Paul Hyams for this citation.

16. Innocent's theological works are conveniently printed in PL CCXVII.

17. Roscher, Papst Innocenz III., p. 261.

18. E.g. M. Maccarrone, "Innocenzo III Teologo dell'Eucarestia," Studi su Innocenzo III (Padua, 1972), pp. 341-424.

19. Cf. Watt, Theory of Papal Monarchy, pp. 34-49, also, Kempf, Papsttum und Kaisertum, pp. 194-230, examines earlier canonical theories on church and state and argues that Innocent follows earlier decretists.

20. Tillmann, Innocenz III., p. 237 and pp. 40-41; 50-52, discusses both chroniclers; their anecdotes about the papal court and Innocent are well known, see R. Brentano, Two Churches: England and Italy in the Thirteenth Century (Princeton, 1968), p. 15-17, also Brentano, Rome before Avignon (New York, 1974), pp. 147-53; C. Cheney, From Becket to Langton: English Church Government 1170-1213 (Manchester, 1956), p. 73. For Innocent's personality and wit, see Tillmann, pp. 47-55 and 234-44.

21. PL CCXIV: lxxxi-lxxxix.

22. The Evesham case is justly famous and has been given detailed accounts by G. G. Coulton, Five Centuries of Religion (Cambridge, 1927), II: 346-78 and D. Knowles, The Monastic Order in England, 2nd ed. (Cambridge, 1966), pp. 331-45.

23. Chronicon abbatiae de Evesham, Rolls Series, XXIX (London, 1863), p. 189.

24. Ibid., p. 190. For typical comments of the lawyers on the problem, see the ordinary glosses to C.16 q.3 c.4 s.v. provinciam; X 1.37.18 s.v. de lege iurisdictionis, and X 2.26.15 s.v ius epicopale.

25. Ibid., p. 191.

26. Knut Wolfgang Nörr, Zur Stellung des Richters im gelehrten Prozess der Frühzeit: Iudex secundum allegata non secundum conscientiam iudicat (Münchener Universitätsschriften, Reihe der Juristischen Fakultät, 2; München, 1967) 16-50 for an extended discussion of juristic opinion; Nörr prints the text of Huguccio on p. 48. See also Peter Landau, "Papst Innocenz III. in der richterlichen Praxis: Zugleich ein Beitrag zur Geschichte der Kooperationsmaxime," Festschrift für Rudolf Wassermann (Darmstadt, 1985) 727-31.

27. Nörr, Stellung des Richters 30-31.

28. See K. Pennington, "The Making of a Decretal Collection: The Genesis of Compilatio tertia," Proceedings of the Fifth International Congress of Medieval Canon Law Salamanca (Monumenta iuris canonici, Series C, 6; Città del Vaticano, 1980) 68 n. 6.

29. This is not to deny Landau's point, "Papst Innocenz," 732, that Innocent can be seen in this exchange as "idealen Vertreter einer Kooperationsmaxime" and an even-handed judge. I would only note that these are twentieth- not thirteenth-century virtues.

30. See essay II in this volume for other examples.

31. See, for example, the glosses to D.28 c.4 s.v. filiam and X 1.5.3 s.v. curavimus allegare. For another example of Innocent acting irresponsibly early in his pontificate when he performed his judicial duties, see Cheney, From Becket to Langton, pp. 73-74, where the Lambeth case is discussed, one of those cases singled out by the author of the Gesta for praise. Also the conclusions of Sweeney in "Innocent III, Hungary," pp. 333-34.

32. Ranier of Pomposa, PL CCXVI: 1173, "Cupientes nonnulli, qui de diversis et ultimis etiam mundi partibus ad apostolicam sedem accedunt, audire sapientiam nostri temporis Salomonis, nec non et multi alii honesti viri atque prudentes, qui nobiscum praesentialiter conversantur, justitias et iudicia ipsius in scriptis habere..." Salomon may have been used by intimates when they referred to Innocent, see K. Hampe, "Eine Schilderung des Sommeraufenthaltes der römischen Kurie unter Innocenz III. in Subiaco 1202," Historische Vierteljahrschrift VIII (1905), 509-35 and [anonymous], "Une satire contre Innocent III," Festschrift Bernard Bischoff (Stuttgart, 1971), 372-90, although I do not think that the evidence is overwhelming that the poem in the article is directed against Innocent. R. Brentano, Rome before Avignon, pp. 154-55, argues convincingly that the Subiaco letter is satirical.

33. Pennington, "Legal Education," p. 74. Late in the thirteenth century, the Franciscan chronciler, Salimbene, called Innocent a "professor iuris": "Sane iste Innocentius fuit iuris professor et totum ius, tam canonicum quam civile, sub compendio emendavit in voluminibus tertiarum et quartarum decretalium." Cronica, ed. F. Bernini (Bari, 1942), I: 26. If Innocent had compiled 3 Comp. and 4 Comp., Salimbene's conclusion about his legal knowledge would have more weight. Certainly, Innocent was not a teacher of law. Two other thirteenth-century sources attest to Innocent's legal knwoledge, but both are not reliable. Gerlac, the abbot of Mühlhausen, wrote a chronicle which centers on Bohemian affairs, and there is no evidence that he ever traveled outside of Bohemia. He writes: "Vir sicut juvenis et in utroque jure doctissimus." MGH SS XVII: 709. Gerlac ended his portion of the chronicle in ca. 1208 (although it is extant only to 1198) and died sometime before 1228. He may have been retrospectively impressed by Innocent's legislation as Salimbene was. In the Carmen de Ottonis IV. destitutione, ed. G. W. Leibniz, Scriptores rerum Brunsvicensium (Hannover, 1710), II: 525, the anonymous author as part of an attack on Innocent declared: "Qui decretorum non solum doctus [MS doctor!] es, immo auctor; non solum leges non destruis, immo auges." In context, these lines could be seen as exhortatory rather than descriptive, and they are typical of encomia bestowed on popes. There is no evidence from the rest of the poem that he has personal knowledge of Innocent.

34. Ibid., pp. 75-76.

35. Watt, Theory of Papal Monarchy, pp. 34-55 discusses Innocent's seven letters, and also see Maccarrone, Chiesa e Stato, who has examined the theological tradion with some care; Kempf, Papsttum und Kaisertum, pp. 181-230 has concentrated on the canonists.

36. And most difficult to interpret, see Tierney, "Tria quippe distinguit," pp. 50-51.

37. PL CCXVII: 395. Sermo Dominica "Laetare" (Matt. 16:18 and plenitude of power); Sermo in festo s. Silvestri. col. 481 (Melchisedech and regale sacerdotium); Sermo in festo d. Gregorii I papae, col. 516-17 (Matt. 16:18 and regale sacerdotium); Sermo in festo ss. Petri et Pauli, col. 552-55 (Deut. 17:8 and Matt. 16-18); Sermo II in consec. pont., col. 655-58 (Melchisedech, Matt. 16:18 and Jer. 1:10), Sermo IV in consec. pont., col. 663-66 (Melchisedech), De sacro altaris mysterio, col. 778-79 (Matt. 16:18 and plenitude of power). Some of Innocent's most characteristic statements of papal power occur in his decretal letters which are in Regestum Innocentii III papae super negotio Romani imperii, ed. F. Kempf (Rome, 1947).

38. St. Bernard used Melchisedech to symbolize the pope's priestly office in De consideratione (Sancti Bernardi Opera, ed. J. Leclercq [Rome, 1963], III: 423), but Innocent was the first, so far as I know, to connect Melchisedech with the pope's royal powers. See Walter Ullmann, Growth of Papal Government in the Middle Ages, 2nd ed. (London, 1962), p. 444; Maccarrone, Chiesa e Stato, pp. 48-50; Buisson, "Exemples et Tradition," pp. 130-31. For further literature on the use of Melchisedech, see Michael Wilks, The Problem of Sovereignty in the Later Middle Ages (Cambridge, 1964), p. 258, n.2. As Watt observes, Innocent was the first pope to interject arguments drawn from the Old Testament into canonistic thought, Theory of Papal Monarchy, pp. 44-45, and Melchisedech is Innocent's most striking Old Testament figure.

39. Celestine III, Innocent's predecessor, had cited Jer. 1:10: see Yves M.-J. Congar, "Ecce constitui te super gentes et regna (Jer. 1:10) `in Geschichte und Gegenwart'" Theologie in Geschichte und Gegenwart (Munich, 1957), pp. 671-96 at pp. 681-82.

40. Even so, we cannot be sure that Innocent had a hand in drafting Per venerabilem, for stylistic arguments are obviously subjective. I think, though, that the decretal is probably Innocent's "own" product, and I will follow this assumption for the rest of the paper.

41. The text of Per venerabilem can be found in X 4.17.13, and in Innocent's registers, PL CCXIV: 1130-34.

42. Innocent IV, Commentaria (Frankfurt, 1570), fol. 481r. X 4.17.13 s.v. habeat potestatem. "Allegando loquitur," which might be translated as "he argued the count's case" (perhaps summarizing the arguments presented to the court by the count's advocates).

43. X 4.17.13: "Quod autem super hoc apostolica sedes plenam habeat potestatem, ex illo videtur, quod, diversis causis inspectis, cum quibusdam minus legitime genitis, non naturalibus tantum, sed adulterinis etiam dispensavit sic ad actus spirtuales illos legitimans ut possint in episcopis promoveri. Ex quo verisimilius creditur et probabilius reputatur, ut eos ad actus legitimare valeat saeculares, praesertim si praeter Romanos Pontifices inter homines superiorem alium non cognoscant, qui legitimandi habeat potestatem; quia cum maior in spirtualibus tam providentia quam auctoritas et idoneitas requiratur, quod in maiori conceditur licitum esse videtur et in minori." Watt, Theory of Papal Monarchy, p. 129, n. 49. The maxim is found in Dig. 50.27.110 and a similar rule was included among the rules of law in Boniface VIII's Sext. 5.13.53.

44. The canonists immediately saw that ratio peccati in Novit (X 2.1.13) not only was the fundamental argument in the decretal, but theoretically had no limitations, e.g. Johannes Teutonicus to 4 Comp. 2.2.2 (X 5.40.26) s.v. que ratione, Padua, Bibl. Ant. MS II 35, fol. 257v: "Sed dici potest quod omnes cause indirecte spectant ad ecclesiam, ut supra eodem, Novit, lib. iii" The canonists saw no such argument in Per venerabilem based on the Roman law maxim. The canonical locus classicus for the maxim In eo was X 3.30.27. Yet no canonist that I know of cited Per venerabilem as an example of this maxim when he glossed this decretal until Hostiensis, who changed the interpretation of the decretal so as to make Innocent's use of the maxim valid.

45. X 4.17.13: "Per simile quoque id videtur posse probari, cum eo ipso, quod aliquis ad apicem episcopalis dignitatis attollitur, eximitur a patria potestate. Praeterea etiamsi simplex episcopus scienter servum alterius in presbyterum ordinaret, licet ordinator satsifacere domino iuxta formam canonicam teneretur, ordinatus tamen iugum evaderet servitutis."

46. Innocent IV, Commentaria, fol. 481r: "Nam legitimatus ab uno principe, vel civitate, vel primate, non obtinebit ab intestato bona hereditaria in terra, quae non sit subdita legitimanti, quia sic auferuntur bona consanguineis defuncti, vel fisco qui debet succedere ab intestato." The principle which Innocent states here is that the pope may legitimize a person in the secular sphere as long as he does not prejudice another's rights.

47. Both Vincentius Hispanus and Johannes Teutonicus wrote: "Tamen per hoc non probatur quod papa habeat iurisdictionem in temporalibus, nam legitimare spectat ad voluntariam jurisdictionem, ut ff. de offit. procon. 1.ii"---s.v. potestatem, 3 Comp. 4.12.2 (X 4.17.13), St. Gall MS 697, fol. 119v, Admont MS 22, fol. 224v. Innocent IV, Commentaria, fol. 481r: "Sed contra utramque opinionem videtur, quia non habet iurisdictionem contentiosam in temporalibus, supra de appell. Si duobus, sed dic licet non habeat iurisdictionem contentiosam, tamen voluntariam exercere potest, ff. de offit. procon. 1.2."

48. Watt, Theory of Papal Monarchy, pp. 108-17, discusses Hostiensis's gloss on Per venerabilem.

49. X 4.17.13: "Tu autem nosceris aliis subiacere, unde sine ipsorum forsan iniuria, nisi praestarent assensum nobis, in hoc subdere te non posses, nec eius auctoritatis exsistis, ut dispensandi super his habeas facultatem." Kempf thoroughly discusses the relationship of Per venerabilem to the letter with which Innocent legitimized Philip II's children, Apostolica sedes. See Papsttum und Kaisertum, pp. 256-58.

50. X 4.17.13: "Rationibus igitur inducti, regi gratiam fecimus requisti, causam tam ex veteri quam ex novo testamento trahentes, quod non solum in ecclesiae patrimonio, super quo plenam in temporalibus gerimus potestatem, verum etiam in aliis regionibus, certis causis inspectis, temporalem iurisdictionem casualiter exercemus."

51. Melchisedech occurs in Gen. 14:18. "At vero Melchisedech rex Salem, proferens panem et vinum, erat enim sacerdos Dei altissimi, benedixit ei, et ait: Benedictus Abram Deo excelso qui creavit caelum et terram; et benedictus Deus excelsus, quo protegente, hostes in manibus tuis sunt. Et dedit ei decimas ex omnibus." Melchisedech reappears in the Old and New Testaments as a symbol of priesthood: Ps. 109:4. "Tu es sacerdos in aeternum secundum ordinem Melchisedech." Heb. 5:6, 5:10, 7:11, 7:15, 7:17 also contain references to Melchisedech. Peter Comestor, Historia scholastica, PL CXCVIII: 1094, states: "Hunc Melchisedech aiunt Hebraei fuisse Sem filium Noe et vixisse usque ad Isaac, et omnes primogenitos, a Noe ad Aaron, sacerdotes fuisse."

52. E.g. Ordinary Gloss, PL CXIII: 120. "Quia autem ait: Tu es sacerdos in aeternum secundum ordinem Melchisedech, ministerium nostrum veri ordinis signatur, non per Aaron irrationalibus victimis immolandis, sed oblato pane et vino, idest, corpore Domini et sanguine consecrari."

53. See n. 38.

54. On the royalty of Christ in this period, see F. Quarta, "Regalità di Cristo e del Papa in Innocenzo III," Angelicum XIX (1942), 227-88; J. Leclercq, L'idée de la royauté du Christ au moyen âge (Paris, 1959). The royalty of the priesthood was first described in the New Testament at 1 Peter 2:9 as "regale sacerdotium," see G. Martini, "Regale sacerdotium," Archivio dell Società Romana di Storia Patria IV (1938), 1-166.

55. PL CCXV: 767. "Licet pontificalis auctoritas et imperialis potestas diversae sint dignitates, et officia regni et sacerdotii sint distincta, quia tamen Romanus Pontifex illius agit vices in terris qui est rex regum et dominus dominantium, sacerdos in aeternum secundum ordinem Melchisedech, non solum in spiritualibus habet summam, verum etiam in temporalibus magnum ab ipso Domino potestatem." See Maccarrone, Chiesa e Stato, p. 48. Innocent also graphically described the papal office as encompassing both royal and spiritual power---power which was prefigured by Melchisedech---in his sermon for the feast day of St. Silvester (PL CCXVII: 481): "Fuit ergo B. Silvester sacerdos, non solum magnus, sed maximus, pontificali et regali potestate sublimis. Illius quidem vicarius, qui est `Rex regum, et Dominus dominantium,' (Apoc. 19) `Sacerdos in aeternum, secundum ordinem Melchisedech,' (Psalm 109) ut spiritualiter possit intelligi dictum ad ipsum et successores illius, quod ait beatus Petrus apostolus, primus et praecipuus praedecessor ipsorum: `Vos estis genus electum, regale sacerdotium,' (1 Peter 2) Hos enim elegit Dominus, ut essent sacerdotes et reges.... Ex auctoritate pontificali constituit patriarchas, primates, metropolitanos et praesules; ex potestate vero regali, senatores, praefectos, judices et tabelliones instituit." Kempf, Papsttum und Kaisertum 291, n. 33, argues that "spiritualiter" in the above text might be "specialiter." See also Domenico Maffei, La donazione di Costantino nei giuristi medievali (Milan, 1969) 47-48.

Innocent did not claim that the pope could exercise temporal power everywhere without limitation, but that the pope exercised temporal power as a part of the papal office. Although the office of priest and king was normally separate, the papal office was an exception to this rule. James Powell has pointed out to me that Pope Honorius III carefully avoided Innocent's exaltation of the royal character of papal authority in his sermon for the same day. In striking contrast to Innocent, Honorius followed the form of Innocent's sermon and cited the same biblical texts, but emphasized spiritual and sacerdotal interpretations of the texts. See C. A. Horoy, Opera omnia Honorii tertii, 5 vols. (Paris, 1879-82), II: 94-106.

56. Maccarrone, Ullmann and Tillmann have noted that Innocent borrowed much of his phraseology from St. Bernard of Clairvaux. Can we see the origins of "certis causis inspectis" in a letter of Bernhard? PL CLXXXII: 119: "Mihi propositum est nequaquam egredi de monasterio nisi certis ex causis."

57. PL CCXVII: 606: "Primo ad ostendendam duorum testamentorum concordiam, sicut enim veteri testamento unus fuit legislator...ita et in novo testamento unus fuit legis dator, videlicet Christus." See Beryl Smalley, The Study of the Bible in the Middle Ages, 2nd ed. (Notre Dame, 1964), pp. 214-63 and Henri de Lubac, Exégèse médiévale: Les quatre Sens de l'Écriture (Paris, 1959-64), I: 305-63, and II: 437-558. See Robert Lerner, "Joachim of Fiore as a Link between St. Bernard and Innocent III on the Figural Significance of Melchisedech," Mediaeval Studies 42 (1980) 471-476, for a discussion of the background of Innocent's thought.

58. "Ein Pamphlet der päpstlichen Kurie gegen Kaiser Friedrich II. von 1245/46 (Eger cui lenia)," Deutsches Archiv XXIII (1967), pp. 468-538. See also C. Dolcini, "Eger cui lenia (1245/46): Innocenzo IV, Tolomeo da Lucca e Guglielmo d'Ockham," Rivista di Storia della Chiesa in Italia XXIX (1975), 127-48.

59. For a discussion of Matt. 16:18 in later thought, see Wilks, Problem of Sovereignty, pp. 530-7.

60. Marsilius of Padua. The Defender of the Peace, tr. A. Gewirth (New York, 1956), pp. 392-93. Although Melchisedech was not a cornerstone for later hierocratic thought, both St. Thomas Aquinas and St. Bonaventure connected the papal office with Melchisedech, see Maccarrone, Vicarius Christi: Storia del titolo papale (Rome, 1962), pp. 135-40. Much later the imagery was incorporated into the conciliar canons of Trent and Vatican I.

61. PL CXIII: 469: "Sacerdotes ecclesie Dei instruit ut judicia ecclesiastica secundum potestatem sibi a Deo datam reverentur agant."

62. X 4.17.13: "Is vero super eos sacerdos sive iudex exsistit, cui Dominus inquit in Petro, `Quodcumque ligaveris super terram, erit ligatum et in coelis, et quodcumque solveris super terram erit solutum et in coelis,' eius vicarius, qui est sacerdos in aeternum secundum ordinem Melchisedech, constitutus a Deo iudex vivorum et mortuorum." Innocent then described the three types of judgment: "Tria quippe distinguit iudicia: Primum inter sanguinem et sanguinem, per quod criminale intelligitur et civile; ultimum inter lepram et lepram, per quod ecclesiasticum et criminale notatur; medium inter causam et causam, quod ad utramque refertur, tam ecclesiasticum quam civile, in quibus cum aliquid fuerit difficile, vel ambiguum, ad iudicium est sedis apostolicae recurrendum."

63. In Anselm of Lucca, Collectio canonum, una cum collectione minore, ed. F. Thaner (Innsbruck, 1906-15), I: 75, under the rubric "Vt difficiliora iudicia ad sacerdotes deferantur," and in Diversorum patrum sententie sive Collectio in LXXIV titulos digesta, ed. J. Gilchrist, Monumenta iuris canonici, Series B: Vol. I (Vatican City, 1973), p. 19, under the title "De primatu Romane ecclesie," and the Collection in Three Books, Pistoia, Archivio capitolare, MS 135, fol. 8r under the title "De primatu Romane ecclesie (c. 1)." It is unlikely that Innocent used one of these collections.

64. PL CXIII: 470. "Christi qui est sacerdos in aeternum secundum ordinem Melchisedech, qui vicarios sibi substituit, quibus ait: Qui vos audit, me audit, qui vos spernit, me spernit."

65. On Moses, see Wilks, Problem of Sovereignty, pp. 539-41.

66. PL CXIII: 451. "Majora quaeque et difficilia discernere et judicare debet [sic] majores, parva et facilia minores." Peter the Chanter, Verbum abbreviatum, PL CCV: 86.

67. Libri de iudiciorum ordine, ed. F. C. Bergmann (Göttingen, 1842; r.p. Aalen, 1965), p. 136: "Et quidem causarum alia est criminalis, alia civilis, alia spiritualis, alia mixta."

68. Ibid.: "Si autem causa est civilis, puta de aliqua pecunia."

69. E.g. Johannes Teutonicus to 3 Comp. 4.12.2 (X 4.17.13) s.v. civile. Admont MS 22, fol. 225r. "Seculare." Tierney, "Tria quippe distinguit," p. 54 n. 18 first pointed out the difficulty of "civile" in Per venerabilem.

70. X 4.17.13: "Paulus etiam, ut plenitudinem potestatis exponeret, ad Corinthios scribens ait: Nescitis, quoniam angelos iudicabitis, quanto magis saecularia?"

71. Pope Gregory VII used 1 Cor. 6:3 to justify his actions to Hermann of Metz, cf. Watt, Theory of Papal Monarchy, pp. 26, 38, 57-58.

72. Ordinary Gloss, PL CXIV: 528 s.v. saecularia: "Quia dixerat Apostulus eos posse de minimis judicare, determinat, qui ad huiusmodi negotia definienda sint constituendi, scilicet contemptibles qui sunt in ecclesia. Maiores enim spiritualibus intendere debent." Also Peter Lombard, PL CXCIX: 1576-77.

73. For the use of 1 Cor. 6:3 by later writers see Wilks, Problem of Sovereignty, p. 265, and on the pope judging angels see Maccarrone, Vicarius Christi, pp. 266-67 et passim.

74. Maccarrone, Vicarius Christi, pp. 104-24 et passim.

75. Alfons Stickler, "Alanus Anglicus als Verteidiger des monarchischen Papsttums," Salesianum XXI (1959), pp. 346-406 at pp. 361-63.

76. Hostiensis, Commentaria (Venice, 1581), II: 39r, X 4.17.13 s.v. quod non solum: "Vt T. et Vin. dixerunt etiam postquam viderunt haec verba. Sed salva reverentia tantorum virorum, puto quod nimis perfunctorie transierunt, unde et super his verbis nihil aut modicum glossaverunt ipsi vel alii. Nescio si causa fuerit quia forsan nimis duri erant in opinionibus suis vel quia sicut quidam censuales dicunt quando ad tallia veniunt: `De Deo loquitur, palea est, plana sunt, non sunt multum curandum.' Attamen ad minus nimis presumptuosum est glosam facere contra textum, et recalcitrare tantae imperio potestatis, ut patet infra de excess. prelat. Tanta est clavis." See Appendix I of essay XVII below for further discussion of this text.

77. Ibid., s.v. patrimonio: "Illos solum de patrimonio suo legitimare protest, ut dictum est, secundum B. supra eodem i versic, finali. Ecce bona glossa quae dicit quod illos solum et textus dicit quod non illos solum."

78. On contemporary biblical exegetical techniques, see Lubac, Exégèse médiévale, II: 437-558, and Marjorie Reeves, The Influence of Prophecy in the later Middle Ages: A Study in Joachimism (Oxford, 1969).

79. For a list of texts in which Innocent III cited Jer. 1:10, see Congar, "Ecce constitui te," pp. 680-81.