Further Thoughts on Pope Innocent III's

Knowledge of Law(1)

Ten years ago I wrote a short essay in which I examined the evidence that Pope Innocent III studied law at Bologna with the great twelfth-century canonist, Huguccio of Pisa.(2) I argued that since Johannes Andreae was the first to link Innocent and Huguccio, we should not assume, as had been almost universally done, that Huguccio's thought occupied a special place in Innocent's intellectual formation. I also pointed out that Innocent studied at Bologna for a short time, probably no more than two years, and this period of study would have been insufficient for Innocent to have mastered canon and Roman law. A few years later I wrote another piece in which I illustrated how our understanding of Innocent might be deepened if we approached him as a theologian rather than as a lawyer.(3)

Wilhelm Imkamp's study of Innocent's ecclesiology originated as a doctoral dissertation (1982) of the Pontificia Universitas Gregoriana. I am very sympathetic to his approach. He thinks that earlier scholarship has been one sided in its assessment of Innocent as a great lawyer-pope and concluded that he was, from his education and outlook, primarily a theologian (p. 45). Far too few studies have been done on Innocent's theology, and the result has been that historians have differed significantly over its originality and importance. Walter Ullmann thought that Innocent's talents were far better suited to law than theology, whereas Michele Maccarrone has found Innocent's theological thought more satisfying.(4) Imkamp begins his study with a thorough examination of Innocent's theological works that predate his election to the papal throne and with those works, particularly his sermons, written --- or collected --- afterwards. He discusses their manuscript traditions, dates of composition, and printed editions, providing a much needed foundation for further work. He has discovered a new, unedited sermon in a Nürnberg manuscript (p. 284 n. 82) in which Innocent delved into the meaning of episcopal consecration.

Although Imkamp emphasizes Innocent the theologian rather than Innocent the jurist, he does not accept a number of elements of what he calls the "Pennington thesis" (pp. 38-46). He concedes that Innocent was a theologian by training and finds my argument convincing that two years or less of legal study would not have been sufficient to train a highly skilled jurist. He does not think, however, that we should abandon Huguccio as an important figure in Innocent's intellectual development. Relying on the work of others, he asserts that Huguccio's thought left its mark on Innocent.

Imkamp is not alone in raising questions about my conclusions. Quite recently Werner Maleczek has also challenged interpretation, but he differs from Imkamp significantly in his final conclusions. He admits that there is no evidence that Innocent studied with Huguccio but insists that he must still be considered on of the great jurists to sit on the throne of Saint Peter.(5) He seems to think that two years of studying law in Bologna would have been sufficient to fashion a great lawyer-pope. The question is not trivial. Our presumptions about Innocent's skills form an important element in our understanding of his accomplishments. Consequently, I would like to review Imkamp's and Maleczek's criticism and, I hope with a modicum of fairness, discuss their interpretations.

Imkamp argues that if we evaluate all the letters Innocent sent to Huguccio, and in particular the four included in canonical collections,(6) we may see "welche Wertschätzung der Papst für den grossen Dekretisten besitzt" (p. 41). He also thinks that the significant number of cases Innocent delegated to Huguccio represent a more "intensive" connection between the two men than I have been willing to admit. Therefore, since Innocent was in Bologna at the end of Huguccio's teaching career, he must have studied with him. He finds Innocent's words of praise in a letter of May, 1199, particularly telling:(7)

Quanto te magia novimus in canonico iure peritum, tanto fraternitatem tuam amplius in Domino commendamus, quod in dubiis questionum ad apostolicam sedem recurris, que disponente Domino cunctorum fidelium mater est et magistra, ut opinio, quam in eis quondam habueras, dum alias canonici iuris periciam edoceres, vel corrigatur per sedem apostolicam vel probetur.

These words, thinks Imkamp, must have been motivated by Innocent's warm, personal regard for Huguccio. I would admit that Innocent's praise is striking. However, since there are other arengas praising bishops learned in law in equally warm terms, I think it is prudent not to put too much weight on this evidence.(8) The historical information in arengas of medieval letters is, after all, notoriously difficult to assess.

Yet Imkamp may be right. Innocent may have attended Huguccio's lectures in Bologna. But even if this were true, does it follow that Innocent was Huguccio's disciple? Are we justified in interpreting Innocent's thought by assuming that he tended to follow Huguccio's? Maccarrone and Friedrich Kempf have concluded that Innocent adopted Huguccio's teachings in his letters touching the relationship of Church and State.(9) Maccarrone and others (Imkamp lists them on p. 42) have charted Huguccio's influence on Innocent's theological works. Imkamp states (p. 105) that Innocent adopted Huguccio's important teachings, although it is not clear to me from the context which teachings Imkamp has in mind.

I find the evidence for these generalizations to be thin. Maccarrone and Kempf argue that Huguccio and Innocent were both dualists in matters of Church and State. Even if one accepts the contention that their dualism was essentially the same, they can point to almost no examples of Innocent's having borrowed the wording of Huguccio's great Summa. In spite of his assertion, Imkamp does not demonstrate that Innocent borrowed Huguccio's terminology or his exact words in shaping his ecclesiology. In a few places he can show that they had similar ideas, but nothing he discusses could have come only from Huguccio. To take a similar example from my own work, Huguccio and Innocent were both strong advocates of papal authority and prerogatives. But even though they both, for example, forcefully asserted the right of the pope to sanction the translation of bishops, I have not discovered that Innocent incorporated Huguccio's ideas in the decretals touching upon this problem. Are we to assume that Huguccio's exalted views of papal authority necessarily shaped Innocent's thought? I think not.(10)

If we attempt to follow Imkamp's interpretations that the four letters in the canonical collections and the delegation of various matters to Huguccio represent an "intensive" relationship, how may we interpret the letter of 1201 --- Cum Marthe --- in which Innocent declared that an opinion which Huguccio held --- although he did not refer to him --- was nefarium? Huguccio had written in his Summa that the substance issuing from the side of Christ on the cross was "phlegm" (humor aquaticus). Even before his pontificate Innocent had described this idea as nefas.(11) Huguccio, however, did not learn of Cum Marthe until 1209.(12) Alanus had included Cum Marthe in his canonical collection of 1206.(13) It is somewhat surprising that seven years after its promulgation and three years after its incorporation into a major canonical collection, the decretal finally attracted Huguccio's attention. He wrote to the pope that he would submit to Innocent's judgment, but asked whether the opinion was, in fact, nefarium, especially since many authorities (magni et authentici viri) had held it.

Imkamp describes Innocent's response to Huguccio in In quadam nostra decretali epistola as "collegial and argumentative." I would characterize it as cold and formal. When one considers the alleged circumstances, a former student reproving his old master with whom he had continued to have a close relationship, the tone is not at all what one would expect.(14) It seems to me that if we contrast this letter with Quanto te magis quoted earlier, the most one can conclude is that the evidence for any special relationship between Innocent and Huguccio is inconclusive.

This example is a good illustration of how our assumptions can distort our perceptions about the past. Huguccio cited authorities in his letter to Innocent --- which is not extant --- who also supported his views. However, Huguccio was not the only canonist or theologian who held to this doctrine. Strikingly, even after Huguccio wrote to Innocent in 1209, no one connected Innocent's condemnation to Huguccio. Before Goffredus de Trano the canonists who glossed Cum Marthe and In quadam never seem to have realized that Innocent condemned Huguccio's opinion, although they could have readily surmised this from the inscription, addressed to the Bishop of Ferrara, of In quadam.(15) Goffredus and Hostiensis, who copied Goffredus's gloss, deduce that Hugo, the bishop of Ferrara, seemed to advocate the view Innocent rejects.(16) They do not cite the appropriate passage from Huguccio's Summa.

Modern scholars have written about this problem as if it centered on the opinions of Huguccio and Innocent. Maccarrone thinks that Huguccio's opinion was singular and does not refer to other theologians or canonists.(17) Can we assume that Innocent knew Huguccio's glosses when contemporary canonists did not see a link between them? An anonymous canonist [Ecce vicit Leo] who wrote at the beginning of the thirteenth century, who was noted for his familiarity with French theological thought and who wrote without knowledge of Cum Marthe, cited Huguccio's opinion as simply Dicunt quidam.(18) From the evidence of In quadam and the testimony of Ecce vicit Leo, Huguccio was not the only one holding this opinion, and his name was not automatically connected with it. Innocent may have had no idea that he was condemning Huguccio's position.

Maleczek upholds the traditional view that Innocent was a great jurist and marshals evidence that Innocent studied law at Bologna. He seems, however, to miss the basic point of my articles. I never wrote that Innocent did not study law at Bologna. In fact, I state quite clearly that he probably did. To quote myself:(19) "Although it is most reasonable to assume that he [Innocent] did spend his time in Bologna studying law, it is unlikely that two 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." The interesting and important question is not whether he studied law at Bologna, but whether his legal training turned him into a first-rate canonist. We can, to some extent, measure Innocent's legal training through his works and the canonists' reactions to his decretal letters --- although this second approach is laden with methodological difficulties.(20)

Maleczek cites the opinions of near contemporaries, like the English historian Matthew Paris, who never knew Innocent personally, as evidence of his learning. I do not find Matthew Paris' statement that Innocent was a iurisperitus very compelling. He was hardly an eyewitness. I have already noted a number of thirteenth-century writers who attested to Innocent's legal knowledge --- Salimbene (professor iuris), Gerlac, the abbot of Mühlhausen (in utroque iure doctissimus), and Hostiensis (pater iuris)(21) --- but they were either not in a position to know or may be referring to Innocent's indisputably great impact on thirteenth-century canon law. Maleczek also argues that a passage of the Gesta Innocentii describing how many iurisperiti came to Rome and learned more at the curia than in the schools must be given due weight as a confirmation of Innocent's legal brilliance.(22) There are a number of reasons why I would not give the Gesta's testimony such importance. The Gesta's author demonstrates no special insight into legal affairs; he writes an account that is filled with eulogy; and other observers of Innocent's performance in court were not moved to such admiration.(23) I would say that weighing this type of evidence --- unless we discover the testimony of a reliable eyewitness --- will not help us to determine whether Innocent was a learned lawyer. Each historian may (and will) weigh the evidence differently. We shall not advance our understanding of Innocent and his ideas by heaping up differing opinions and then choosing the maior et sanior pile.

Maleczek also cites the comments of the canonists as evidence of Innocent's juristic skills. I consider this approach more fruitful, but fraught with methodological problems. He takes three passages from Antonio García y García's new edition in which Vincentius Hispanus, Damasus Hungarus, and Johannes Teutonicus refer to Innocent's opinions in their commentaries on the Fourth Lateran Constitutions. Vincentius wrote in his gloss to c.23:(24)

Et si maior pars uult aliunde eligere, minor preualet, etiam si sint duo, quia tunc unus potest eligere alium. Set secus dicerem si omnes consentiunt preter unum in extraneum. Tunc enim non est qui [ex app. crit.] eligat. Se enim non potest eligere et alium iam non potest, quia quilibet consentit in extraneum, et omnes preiudicant sibi. Et hec opinio domini pape, et ita intelligitur extra. iii. de elect. Cum inter dilectos [Cum dilectus male ed. García].

Damasus noted at the same place:(25)

Videtur tamen quod maior pars capituli possit renuntiare illi iuri et eligere de alia ecclesia licet in illa idoneus inueniatur, ut supra de elect. Cum nobis olim, lib. iii. et c. Cum inter dilectos. Set papa Innocentius ita interpretatus est illa iura in quadam disputatione quod minor pars potest contradicere maiori parti eligere uolenti de alia ecclesia, si uelit ostendere quod in eadem ecclesia sit idoneus, etiam si duo tantum sint in minori parte, quia alter illorum posset ostendere reliquum esse dignum.

Both canonists concurred that Innocent thought a minority of two who elected a member of the cathedral chapter prevailed over a majority who elected an outsider.

In spite of the pope's support of local candidates in ecclesiastical elections, canonistic opinion on this point was divided. Several texts in the Decretum (D.61 c.7, c.13, c.16) supported the contention that local candidates were always preferred to outsiders. Damasus's report of quaedam disputatio in which Innocent adopted this doctrine is probably his interpretation of Vincentius's gloss. He leaned heavily on Vincentius's apparatus for his work and may have assumed that Vincentius knew Innocent's opinion from a disputed election settled in the Curia. However, Innocent's view never became part of the canonical tradition. Tancred and Bernardus Parmensis rejected it. They believed that the maior et sanior pars always prevailed.(26)

I think it should be clear that these two passages reveal almost nothing about Innocent's knowledge of law. To maintain that two electors may elect a worthy local candidate does not require deep or profound knowledge of legal theory. The most one can conclude is that Vincentius believed that Innocent supported his opinion, which is very likely true. We shall see that the pope had strong views about the election of local candidates, at least in papal elections.

Maleczek's last example demonstrates how difficult the interpretation of glosses can be if taken out of their juridical context. Johannes Teutonicus reported a remark of Innocent in his gloss to the Fourth Lateran Constitutions:(27) `Eligo istum [to a second prebend] si pape placuerit non magis quam si diceretur, "Cognosco uxorem istius si viro placuerit".' This intriguing passage, one of the few we have that purports to use Innocent's own words, is not easy to understand. Huguccio had first suggested that a grant of a second prebend to a cleric in another bishopric could be granted conditionally `if it will please the cleric's bishop'. Vincentius adopted Huguccio's idea and applied it to prebends requiring a papal dispensation. A canonist, perhaps Johannes himself, must have put Vincentius's argument forward, and it elicited Innocent's sharp reply. The canonists, and Innocent in his decretals, had already adopted the condition si papae placuerit for oaths and vows. It is logical and legally persuasive to apply the same condition to clerics receiving second prebends requiring a dispensation. Innocent, however, did not see the legal force of the argument.(28) At first glance this quotation might seem to be evidence that Innocent did not fully understand the canonistic doctrine at issue, but I think not. Like the passages on electoral theory, it proves only that he thought a particular argument was not convincing and gives us no insight into whether he knew or understood the arguments of the canonists. On the other hand, I think that Maleczek's conclusion about these examples is not tenable: "Dies scheinen mir gewichtige Zeugnisse für die Versiertheit des Papstes im kanonischen Recht" [p. 103, n. 359].

We will better understand Innocent and his place in the thought world of the early thirteenth century after we have placed him as securely as we can in the context of contemporary canonical and theological thought. Imkamp's book is a step in the right direction. He has taken a central element of Innocent's ecclesiology, the church as mother and bride, and thoroughly explored this theme in Innocent's works. Innocent turned repeatedly to matrimonial metaphors to describe the bond between a prelate and his church. Of juristic interest is his terminology describing the marriage between a bishop and his church, a spiritual marriage, which he drew from canonistic descriptions of `carnal marriages'. Innocent developed the main points of his ecclesiology in a sermon that he preached on the anniversary of his consecration. A carnal marriage, said Innocent, originates at the betrothal, is ratified by consent, and is consummated by sexual intercourse. A spiritual marriage begins with an election, is ratified by confirmation, and is consummated at the prelate's consecration.(29) Innocent borrowed his ideas from the canonistic tradition, and, as Robert Benson has observed, subtly altered Huguccio's tripartite schema. `Thus while appropriating the language and the general scheme of his great teacher, Innocent applied Huguccio's concepts with far less concern for the preconfirmatory rights of an electus.'(30)

Imkamp reveals the richness of Innocent's thought and the interrelationship of his ecclesiological images. Innocent used the Eucharist to symbolize the "inseparable unity between Christ and his Church." Christ was the bridegroom who was joined to the Church in holy matrimony; a prelate's marriage to his church mirrored the marriage of Christ. The metaphor also permitted Innocent to shift his emphasis from the Church as bride to the Church as mother. The Roman church became the mater cunctarum ecclesiarum. Very little of this is new with Innocent, but he did create an intricate theory of government out of marital and maternal metaphors. `Ganz ohne Zweifel', concludes Imkamp, `ist Innocenz III. in seiner Brauttheologie origineller und selbstständiger also bei der Behandlung der bisher vorgestellten ekklesiologischen Bilder'. The strength of Imkamp's book is that he thoroughly presents Innocent's ecclesiology and cites numerous parallel texts from his works and letters. It will be a valuable mine of information for future scholars.

In his last chapter, Imkamp discusses the place of the pope in Innocent's ecclesiology, and this chapter is of greatest interest to a legal historian. He examines the image of the pope as `head' [caput] of the church and the extent of the pope's plenitudo potestatis. Innocent employed the imagery of sacramental anointing to describe the distribution of authority within the church. I think he is right when he concludes that `Überhaupt ist die leonianische Formel im Gebrauch unseres Papstes weniger eine exakte, juristische Formel, ... [und] besitzt die leonianische Formel [i.e. plenitudo potestatis] eben keinen festen juristischen Charakter ... In einem zentralen Punkt der Primatsdoktrin zeigt sich unser Autor weniger als Jurist denn als Theologe'.(31)

When Innocent attempted to assert papal control over episcopal translations he used the concept of marriage between a bishop and his church to argue that only the pope, the vicar of God, could separate what God had joined. Imkamp can persuasively show that Innocent quite naturally applied "spiritual marriage" doctrine to the bishop and his church. However, he criticizes Schatz' assertion that `die Theorie von der geistlichen Ehe ein Fremdkörper im Denken Innocenz' III. <ist>' [p. 308] when he used it to justify papal prerogatives over episcopal translations. Far from being a `Fremdkörper', Imkamp argues it is central to Innocent's ecclesiology.

Imkamp has misunderstood Schatz' point.(32) Innocent was on firm ground theologically. A bishop was married to his church, and, therefore, the pope could claim that only a higher authority could separate the two. Imkamp has proven beyond any doubt that Innocent placed the spiritual marriage between a bishop and his church at the center of his ecclesiology. But juristically Innocent involved himself in a morass of contradictions. If he wished to apply the rules governing carnal marriages to the translation of bishops to other churches (wives), following the logic of the comparison, he should have made translations more difficult. However, Innocent did not intend to prevent prelates from contracting `bigamous' marriages or stop them from divorcing their old churches. The translation of a bishop violated established legal principles of spiritual marriage as well. In a spiritual marriage a foreign prelate (extraneus) should not be given to a church, rather, a propinquus should be chosen.

It becomes clear that Innocent did not intend to create a coherent, legally logical system; rather he wished to insure that papal prerogatives were safeguarded. When he employed the metaphor of a bishop's marriage to his church as his justification for sanctioning each translation, he ignored the legal implications of his comparison (if he were aware of them) and accentuate the theological. At this point too I would say that Innocent was more a theologian than a jurist(33).

In the last section of the chapter Imkamp discusses the pope's spiritual marriage to the Roman church. In his sermon commemorating the anniversary of his consecration Innocent compared the pope to a son who married his mother; after his election the bishop of Rome has a daughter for his wife. He then observed that in a spiritual marriage extranei are excluded while propinqui are admitted. The opposite rule applies to carnal marriages [pp. 313-314]. In the course of this discussion Innocent cited three chapters of the Decretum:(34)

De propinquis excludendis a carnali coniugio legistis in canone cautum: Omnes affinitate propinquos ad coniugalem copulam accedere denegamus [C.35 q.2 and 3 c.16]. De extraneis autem a spirituali coniugio excludendis cautum tradit auctoritas ut sit facultas clericis renitendi si se viderint pregravari et aliquid sibi ingeri viderint ex adverso non timeant refutare [D.61 c.13].

These two points are straightforward and interesting. As Imkamp notes, a cluster of citations to law is rare in Innocent's theological works. Immediately after this passage Innocent wrote:(35)

Propterea cautum reperitur in canone ut in apostolatus culmine <unus> de cardinalibus presbyteris aut diaconis consecraretur [D.79 c.3].

The canonists interpreted consecraretur as meaning eligitur; Innocent seems to claim that the pope should be elected from the cardinal priests and deacons without reservation or qualification. Most often Imkamp simply presents Innocent's thought without analyzing it in depth, and at this point he might have explored the implications of this passage for Innocent's knowledge of law.

Chapter three of D.79 is a canon taken from a Roman synod held under Pope Stephen III (768-72) and supports Innocent's contention that extranei are excluded from a spiritual marriage.(36) The canonists, however, treated this text quite differently from Innocent. Huguccio wrote that chapters 3, 4, and 5 of D.79 made the same point: the pope ought to be elected from the cardinals unless no one among them was worthy. Then the electors could resort to a non-cardinal.(37) He also pointed out that the chapter could be interpreted quite differently: if a non-cardinal was elected he should be elevated to the cardinalate before becoming pope. Huguccio, however, did not believe this interpretation was correct. A pope, he argued, never has to be or to have been a cardinal. As an aside, he remarked that the cardinals certainly had the authority to create a cardinal without the pope if they wished.(38)

I have surveyed a few other canonists on this point. Alanus remarked laconically that the pope should be elected from the cardinal-bishops,(39) while Ecce vicit Leo believed --- contra Huguccio --- that if a pope was elected from outside of the Roman church, he should first be made a cardinal.(40) The Glossa Palatina and Johannes Teutonicus do not gloss these chapters --- indicating perhaps that they were not important witnesses in the legal tradition --- but from their discussions at D.23 c.1, the locus classicus for this topic, we know that they generally agreed with Huguccio.(41) I have found no canonist who supports Innocent's interpretation of D.79 c.3. Consequently, it is hard for me to believe that Innocent would have cited D.79 c.3 to support his contention that the pope should be chosen from among the cardinals or would have made such a sweep-ing generalization if he had been aware of the glosses of the canonists.

There is one other example I know in which Innocent ignored canonistic thought when, if he had been a learned lawyer, he should not have. He wrote that heretical priests could not bestow valid sacraments in his treatise De missarum misteriis, a position that followed the views of Parisian theological thought but was universally rejected by the canonists.(42)

I would stress that these two examples taken from his theological works do not prove that Innocent was not a doctor of laws, but I do think that those scholars who simply assume that Innocent was a learned lawyer should pause for a moment before they repeat old platitudes. The point is that we should squeeze as much evidence as possible out of Innocent's works. We should systematically compare his ideas to those of contemporary canonists and theologians (his sermons offer the best evidence). We should not make easy generalizations about Innocent's dependence on Huguccio's thought or that of any other schoolman. Only then shall we be in a position to judge the depth of his knowledge of law and theology.

1. Originally written as a review of Wilhelm Imkamp, Das Kirchenbild Innocenz' III. (1198-1216) (Päpste und Papsttum 22; Stuttgart 1983).

2. The Legal Education of Pope Innocent III, BMCL 4 (1974) 70-77. Reprinted in this volume (I).

3. `Pope Innocent III's Views on Church and State: A Gloss to Per venerabilem', Law, Church, and Society: Essays in Honor of Stephan Kuttner, ed. K. Pennington and R. Sommerville (Philadelphia 1977) 49-67 (Reprinted in this volume [IV]). The legal training of Pope Alexander III has also been convincingly called into question by J.T. Noonan, Jr, `Who Was Rolandus?', Law, Church, and Society 21-48, and R. Weigand, `Magister Rolandus und Papst Alexander III.', AKKR 149 (1980) 1-44.

4. See Ullmann's article in the New Catholic Encyclopedia 7 (1967) 521, and in A Short History of the Papacy in the Middle Ages (London 1972) 207. Maccarrone's study of Innocent's theology of the Eucharist, `Innocenzo III teologo dell'Eucharistia', Divinitas 10 (1966) 362-412, has been reprinted in Studi su Innocenzo III (Italia sacra 17; Padova 1972). More recently he has examined Innocent's theology of marriage in `Sacramentalità e indissolubilità del matrimonio nella dottrina di Innocenzo III', Lateranum 44 (1978) 449-514.

5. Papst und Kardinalskolleg von 1191 bis 1216 (Publikationen des Historischen Instituts beim Österreichischen Kulturinstitut in Rom 6; Wien 1984) 103-104 n. 359.

6. Reg. 2.48(50), Reg. 9.54 and 9.267, Reg. 12.7. X 3.41.8, 3.43.3, 4.19.7 and 5.39.43.

7. 3 Comp. 4.14.1 (X 4.19.7).

8. For example, Innocent's letter, Reg. 1. 58, to Bishop Martín Arias of Zamora: `Preter debitum officii pastoralis, quod nos omnibus constituit debitores, personam tuam tanto amplius diligimus et sincerius amplexamur, quanto amplius es preditus scientia litterarum et tam in canonico quam civili iure peritus', Peter Linehan, The Spanish Church and the Papacy in the Thirteenth Century (Cambridge 1971) 292 describes Martín's reign as "Zamora in 1217 was in a state of both spiritual and temporal collapse after twenty-three years of misrule by Bishop Martín Arias". I am not sure that Linehan is right about the character of Martín's episcopal rule; nevertheless I do not think this arenga proves that Innocent had firsthand knowledge of Martín. Since his name is occasionally cited in legal commentaries, Martin did have a reputation among the canonists; see Wolfgang P. Müller, `Huguccio of Pisa: Canonist, Bishop, and Grammarian?' Viator 22 (1991) 124-125, n. 20. Martin was not, in any case, of the same stature as Huguccio in law. Innocent's arengas could also contain sarcasm. 3 Comp 1.6.18 (X 1.6.33): `Cum in iure peritus existas et copiam habeas peritorum non possumus non mirari quod super quibusdam iuris articulis nos consulere voluisti, qui nihil aut modicum dubitationis continere noscuntur'. In spite of Innocent's sarcasm, the canonists thought the point of sufficient importance to include this decretal into their collections. The theme of this type of arenga --- the Apostolic See should be consulted in dubious matters --- becomes common during Alexander III's pontificate. See 1 Comp. 1.2.1 (X 1.3.1); 1 Comp. 1.21.15 (X 1.29.10); 1 Comp. 2.20.5 (X 2.28.5); 2 Comp. 2.3.1 (X 2.4.2); 2 Comp. 5.18.15 (X 5.39.15). Innocent has a number of variations of this theme in his letters. 3 Comp. 2.5.3 (X 2.12.5); 3 Comp. 2.19.12 (X 2.28.54); 3 Comp. 3.11.1 (X 3.10.7); 3 Comp. 3.12.1 (X 3.11.3); and 3 Comp. 3.24.2 (X 3.31.16).

9. See `Pope Innocent III's Views' 1 n. 2, reprinted in this volume (IV).

10. See my Pope and Bishops: The Papal Monarchy in the Twelfth and Thirteenth Centuries (Philadelphia 1984) chapter 3.

11. De missarum misteriis, PL 217.876.

12. 3 Comp. 3.33.7 (X 3.41.8); Reg. 12.7, PL 216.16-18.

13. Alanus 6.2.1.

14. X 3.41.8, Reg. 21.7.

15. I have checked the glosses of all the canonists who glossed Cum Marthe between 1206 and 1234 and none of them links Innocent's condemnation to Huguccio. If the canonists had known Huguccio's opinion, one would have expected them to point to the appropriate passage in the Pisan's Summa. Innocent dissented from an opinion of Huguccio --- but not by name --- in 3 Comp. 1.9.5 (X 1.11.13); in this case the canonists quickly pointed out that Huguccio held the opinion Innocent rejected. See `Legal Education' 71-73 and Imkamp 42-43.

16. Goffredus de Trano to X 3.41.8 v. epistola decretali, Paris, B.N. lat. 15402, fol. 126r: `Magister H. episcopus Fer. respexit decretalem illam supra eodem titulo, Cum Marthe, ubi improbatur sententia illorum qui dicunt quod in Eucharistia aqua convertitur in fleugma, quod non aqua set fleugma exiuerit de latere Christi quorum opinionem ipse uidebatur amplecti, quod improbat Innocentius'. Hostiensis repeats Goffredus' gloss in his commentary to the same decretal.

17. Maccarrone, `Innocenzo III teologo' 359: "Forse sin dal tempo dell'insegnamento ricevuto da Uguccione a Bologna, egli aveva conosciuta quella singolare opinione..." He does not cite any other theologian --- other than Huguccio --- who believed that the substance flowing from Christ's side was "phlegm." Nor does Imkamp.

18. Ecce vicit Leo (1202-1208) to De con. D.2 c.5, v. quam uuis et sacramentis, Sankt Florian XI. 605, fol. 120r [Paris, B.N. nouv. acq. lat. 1576. fol. 317v]:... `Set queritur in quid transubstantietur aqua? Dicunt quidam quod in alios liquores a sanguine uel in fleuma et huiusmodi. Alii dicunt quod aqua remanet in sua substantia nec transubstantiatur in aliquid...Posset item dici quod absorbetur a uino et fit unum, et hoc dicit Boetius in libro de duabus naturis' [PL 64. 1337-54]. I have checked other glosses to De con. D.2 c.3-5. Johannes Faventinus, Glossa Palatina, Alanus (1st rec.), and Johannes Teutonicus glossed this passage, but they do not discuss this issue.

19. `Pope Innocent III's Views' 51.

20. A recent attempt --- with inconclusive results --- to evaluate Innocent's knowledge of Roman law on the evidence of his registers is J. Michael Rainer, `Innocenz III. und das römische Recht', Römische Historische Mitteilungen 25 (1983) 15-33.

21. Ibid. 63, n. 27.

22. `Legal Education' 75, n. 19.

23. `Pope Innocent III's Views' 52-53 and 63, n. 25.

24. Constitutiones Concilii quarti Lateranensis una cum Commentariis glossatorum, ed. A. García y García (Monumenta Iuris Canonici, Series A: 2; Città del Vaticano 1981) 318.

25. Ibid. 430.

26. Bernardus Parmensis to X 1.6.21 v. aliam. Vincentius and Johannes Teutonicus favored Innocent's electoral theory.

27. Constitutiones, ed. García, 220, following the reading of Johannes' words in some of the manuscripts and in 4 Comp.

28. See my discussion of these texts in Pope and Bishops 137-142.

29. PL 217. 663.

30. R. Benson, The Bishop-Elect: A Study in Medieval Ecclesiastical Office (Princeton 1968) 149.

31. p. 288-289. I came to similar conclusions in my own analysis of this material, see Pope and Bishops 45-58, especially 56-58.

32. K. Schatz, `Papsttum und partikularkirchliche Gewalt bei Innocenz III. (1198-1216)', Archivium Historiae Pontificiae 8 (1970) 107. Schatz warns that if you approach Innocent's thought with the expectation of finding a logically coherent system, you will be disappointed. He does not mean that the marriage metaphor itself was a `Fremdkörper', but, that when applied to the legal relationship of a bishop and his church, it did not create a `widerspruchsfreies System'.

33. For more on this point see Pope and Bishops 85-100.

34. PL 217.663.

35. This passage is garbled in Migne. I take the text from the edition in C.M. Monk's dissertation [University of Kansas, 1975], A Study of Pope Innocent III's Treatise De quadripartita specie nuptiarum, volume 2, p. 6 (third paginated section).

36. S. Kuttner, `Cardinalis: The History of a Canonical Concept', Traditio 3 (1945) 149-150, discusses this text.

37. Huguccio to D.79 c.3 v. Oportebat, Admont 7, fol. 104r [Klosterneuburg 89, fol. 93v]: `Hec tria capitula idem dicunt, scilicet quod de cardinalibus papa debet eligi nisi forte inter eos nullus inueniatur ydoneus, tunc enim decurrendum est ad alios'.

38. Huguccio to D.79 c.4, v. Nullus: `Sub eodem sensu intelligatur hoc capitulum, scilicet ut nullus eligatur in papam nisi cardinalis si ydoneus inueniatur. Vel potest intelligi hoc capitulum in alio sensu, scilicet quod si eligatur non cardinalis debet fieri prius cardinalis quam promoueatur; set a quibus? scilicet a cardinalibus qui habent potestatem eum eligendi et consecrandi. --- Set numquid hoc est necessarium, scilicet ut papa sit uel fiat cardinalis? Non. Credo enim quod possit esse papa quamuis nec sit nec futurus sit cardinalis. Et nota quosdam dicere non posse fieri cardinalem nisi a papa quod credo falsum esse. Possunt enim cardinales facere papam, quare non potius cardinalem?'

39. Alanus [1st rec.] to D.79 c.4 v. cardinalis, Seo de Urgel 113 (2009), fol. 43v: `De episcopis enim cardinalibus est eligendus, arg. supra eodem c. proximo lxi. Obitum [c.16], lxiii. Metropolitano' [c.19].

40. Ecce vicit Leo to D.79 c.4 v. aut presbiter cardinalis, Sankt Florian XI. 605, fol. 28v [Paris, B.N. nouv. acq. lat. 1576, fol. 115v]: `Ergo papa extra Romanam ecclesiam eligatur, quod fieri potest, ut xxiii. di. c.i. Primo antequam eligatur debet fieri cardinalis a cardinalibus. Credimus similiter si de ecclesia debeat aliquis eligi in episcopum, primo professionem debet facere in ecclesia ad quam eligitur'. This gloss should should be read together with Huguccio's gloss to D.23 c.1 v. gremio, Ibid. fol. 9v: `Quia semper unus de cardinalibus debet eligi; idem de episcopo, quia semper de eadem ecclesia est eligendus, lxi. di. Nullus. Semper et abbas de eodem monasterio, ut xviii, q.ii. Quam sit [c.5]. Idem de illis qui eliguntur ad prefecturas quia illi debent eligi qui habent domum uicinam, ut ff. de offic. pref. [MS: elect.] urb. l.ii. [Dig. 1. 12. 2]. Idem de yconomo, ut xvi. [MS: xv] q.ult. Quoniam [MS: Quando] [16 q.7 c.24]; Idem de ecclesiis parochialibus quia in illis debet institui qui sunt de eadem parochia, ut lxxi. di. Hortamur' [c.8]. The gloss in Paris, B.N. nouv. acq. 1576, fol. 45v, is an abbreviated version of the above text.

41. Ordinary Gloss of Johannes Teutonicus to D.23 c.1 v. gremio. Glossa Palatina, D.23 c.1 v. gremio, Salzburg, St. Peter's Archabbey a.XII.9, fol. 18r: `Arg. quod de clericis ipsius ecclesie eligendus est prelatus, si ibi est idoneus, ut xviii. q.ii. Quam sit [c.5]. di. lxv. [lxi. recte] Nullus [c.13], Obitum [c.16], Nec [c.12], di.lxxviiii. Oportebat [c.3], di.lxiii. Metropolitano [c.19]. Tunc sufficit quod sit bonus, nam de alia optimus debet esse'.

42. PL 217. 848-49. See Maccarrone, `Innocenzo III teologo' 358.