Collectio Fontanensis: A Decretal Collection of the Twelfth Century for an English Cistercian Abbey
Pope Alexander III arrived in Venice on May 9, 1177 and stayed there until October 16, 1177—more than five months.1 His main achievement during this period was his meeting with the Emperor Frederick Barbarossa on July 24 to 25 and an ensuing peace treaty.2 One day after this meeting he announced the results of the negotiations to the apostolic delegate Roger, Archbishop of York, and to Hugh, Bishop of Durham,3 a letter which constitutes our main source for these memorable events. Eleven days later he sent a similar letter to Richard, Archbishop of Canterbury, and his suffragans.4 On June 15 and August 2 he wrote two further letters to Roger of York and Bishop-elect Geoffrey of Lincoln which discussed an agreement between the two bishops and advised them to look for the payment of tithes by a British nunnery.5 Roger of York held a prominent place among Alexander’s correspondents in the year 1177; he had served as apostolic delegate since 1164.6 The pope, however, also wanted to control Archbishop Roger’s activities as ecclesiastical judge and administrator. On June 30 he sent a letter to Abbot Robert of the Cistercian abbey of Fountains in Yorkshire and to Magister Vacarius, probably the most learned expert in legal questions in England during these years.7
This letter has been preserved in many English, French, and Italian decretal collections of the time, probably appearing first in the Collectio Cantabrigensis in 1178.8 It then made its way into the Breviarium decretalium of Bernard of Pavia and finally into Gregory’s IX Liber Extra in 1234.9 The decretal letter deals with a case involving questions of marriage and adultery.10 A parishioner of Norman descent (Andegavensis) from the diocese of York had appealed to the pope with the aid of his brother. He explained that a certain W. de Romare had once captured him, imprisoned him “in vinculis ferreis,” and forced him to give a promise under oath to marry a certain woman.11 After being released from prison, however, he had married another woman with whom he had some children. The woman to whom he had first promised marriage then complained to Archbishop Roger of York, who exacted an oath from the Norman husband that he would abstain from living with the second woman whom he had married, until he received an ecclesiastical judgment in his lawsuit.12 In the meantime the woman who made the accusation died, but the Norman man, obviously very scrupulous, did not dare to return to his wife and his children. Having no confidence in Roger of York, he appealed to the pope.13 Alexander III appointed the abbot of Fountains and Vacarius as judges delegate; he must have known that the abbot was trained in difficult questions of canon law. The papal mandate advises the judges to base their decisions on which of two possibilities was valid. If the man had been forced to swear, had not consented to the marriage, and had not had intercourse later with the first woman, he should be allowed to return to the second woman, the mother of his children. But if there had been a marriage with the first woman, either by consent or by copula carnalis, he should be forbidden to return to the second woman and be threatened with excommunication for any violation of the prohibition. He should, however, have the option of marrying another woman, his adultery not being punished by an interdiction of another marriage.14
The main point of this decretal is Alexander’s interdiction of marriage for a couple which had previously lived in an adulterous quasi-marriage even after the death of the first wife.15 It was a controversial question in canon law up to the end of the twelfth century, as Bernard of Pavia wrote in his Summa decretalium: “Si vero quaeratur de eo, qui sua uxore relicta aliam sibi coniugis nomine copulavit, et defuncta prima vult habere secundam, variae super hoc inveniuntur doctorum opiniones.”16 Alexander III placed more confidence in the abbot’s and Vacarius’ skills as examining judges than in those of Roger of York. Fountains Abbey must have had a certain reputation at the papal curia as a centre of knowledge in canon law in 1177.
The Fountains Collection
The best testimony for the great interest in canon law taken by the monks of Fountains Abbey is the so-called Collectio Fontanensis, a collection of decretals put together in Fountains Abbey around 1180 and preserved in a manuscript donated by Archbishop Laud to Oxford’s Bodleian Library.17 Among the numerous decretal collections compiled in England after 1170 the Fountains Collection is the only one which was obviously compiled in a monastery, and it reflects the legal, intellectual, and economic interests of an important twelfth-century Cistercian abbey. It is the monastic decretal collection par excellence at least prior to the collection of Rainer of Pomposa during Innocent III’s pontificate.18 Walther Holtzmann discovered this collection during his work on the papal records in England in the 1930s,19 and it was still unknown to Stephan Kuttner when he published his famous “Repertorium der Kanonistik” in 1937. Charles Duggan gave the first description of the collection in 1963 in his book Twelfth-Century Decretal Collections.20 Holtzmann had prepared an analysis of the contents of this collection, which Christopher and Mary Cheney published posthumously in 1979 from his papers.21 For this chapter I was able to compare a photostat of the collection with Holtzmann/Cheney’s analysis.
The Bodleian manuscript is a miscellaneous one; the text of the Collectio Fontanensis is found on 21 folio pages.22 The collection has 146 chapters altogether, most of them decretals by Pope Alexander III, the only later text being a letter of Pope Lucius III to the general chapter of the Cistercians in 1182.23 There are some decretals by Innocent II, Eugenius III, and Adrian IV,24 conciliar canons from the 1148 Council of Reims, the 1163 Council of Tours, the 1175 Council of Westminster,25 and some isolated pre-Gratianic texts, e.g. a fragment from Gregory I’s register.26 The collection obviously concentrates on the “ius novum” of Alexander III’s pontificate.
Three scribes can be distinguished, dividing the whole compilation into three different parts.27 Originally these parts must have existed independently from one another because some decretals are found several times in the collection in those sections, sometimes in a different redaction of the text. Those three parts, however, form a unified whole in the manuscript. The same miniaturist copied the chapter initials in all three parts, and the scribe of the decretals in part II also wrote subject-rubrics for parts I and II. According to Holtzmann’s paleographical assessment, the script of the first and the third part can be dated to the late twelfth century, whereas the scribe of part II and of the rubrics is supposed to have written in the early thirteenth century.28 I have some doubts about the latter date because of the uncertainties of paleographical dating for this period—the rubrics reflect the beginnings of canonistic work on the decretals and are related in style to other rubrics in decretal collections between 1180 and 1190. I would conclude that the whole corpus of the collection with its 146 texts already formed a unified work prior to 1190.
The second part of the collection has a remarkable difference in style from the two other parts. Part II has 55 chapters; with two exceptions, the first 25 of these chapters, ending with the letter of Lucius III already mentioned, are not found in any other decretal collection.29 These unique texts begin with a general privilege for Fountains Abbey from Pope Innocent II in 1142 or 114330 with the remaining texts concerning Fountains Abbey or the exemption of the Cistercian order from the common law of the church, such as papal privileges for monastic tithes or the protection of the Cistercian estates divided into “granges.”31 The entire group of texts is a compilation of monastic law finding its meridian in the last chapter by Lucius III: a letter from the pope to the general chapter of the Cistercians assuring the order of his favorable inclination towards their community.32 Charles Duggan thought that these chapters were copied as an extract from the Cartulary of Fountains,33 but none of them are included in the volumes of the Fountains cartulary, and some among them do not deal with Fountains at all but with general problems of the Cistercians. These 25 texts in part II can mostly be classified as papal decretals with some local connection and importance for Fountains. They were not taken over from an already existing decretal collection, but probably collected from individual items available at Fountains and compiled as the first section of part II shortly after 1182, beginning with Innocent II’s privilege for Fountains and ending with Lucius III’s letter of friendship to the Cistercians.
All parts of the Fountains Collection therefore can be classified as decretal collections. At least three efforts were made in Fountains after 1180 to obtain knowledge about the “ius novum” formed by the decretals.
Canon law of the twelfth century was a law of remedies for the practitioner. We saw the abbot of Fountains acting as judge delegate. It is not surprising then that we have a considerable number of decretals dealing with procedural law in our collection. Nearly one-third of the decretals in our collection deal with questions of procedure law. The relatively new system of delegate judges and the freedom of appeal to the pope gave rise to many difficult questions not covered by the texts of the Decretum Gratiani. Papal legislation had never defined explicitly the jurisdiction of the delegate judges.
The Fountains Collection contains the following directives governing the courts of judges delegate. The pope sometimes appointed a second group of delegate judges for a lawsuit already commissioned to other judges delegate.34 The mandate of the judges delegate was generally supposed to be extended up to the execution of the sentence.35 The mandate to the delegate judges was supposed to be a personal one, but the successor of an abbot also succeeded in the former’s position as judge delegate.36 A delegate judge could subdelegate his commission with the possibility of appeal from his subdelegate to himself or to the pope.37 In one of the Fountains decretals we read the sentence: “Nec canones nec consuetudo Romanae ecclesiae habet, ut quis delegatos iudices a Romana ecclesia recusare valeat, nisi remedium appellationis ei fuerit reservatum.”38 We see that the pope could avoid any recusation of judges delegate by adding the “appellatione remota” clause to his commission.39 The delegate could force the parties of the lawsuit to come to the sessions,40 and the delegate judge usually had full power to execute his sentence.41
On the other hand, the freedom of appeal to the pope both controlled and restricted the jurisdiction of the delegate and served as the cornerstone of the church’s constitutional law.42 This theory found ample expression in the texts of the collection. The very first decretal proclaimed the principle of freedom to appeal even in cases where appeal had been generally excluded by the “appellatione remota” clause,43 which was explained in another decretal by the principle that appeals should be always accepted in cases of manifest iniquity of a judicial decision.44 This fundamental right of appeal to the pope could not be excluded even by a renunciation confirmed with an oath.45 The papal decretal law, however, also tried to avoid a delay or even a frustration of sanctions from deliberately paralyzing the course of ecclesiastical jurisdiction. For enormous crimes the penalty of excommunication might have been put into effect already by the time of the appeal.46 Finally, appeal was granted at every stage of the lawsuit prior to any sentence of the inferior judge.47
Many decretals also deal with other questions of procedural law, e.g. with proof by records or by witnesses.48 A number of texts in our collection confirm the impact of twelfth-century decretal law on the development of the law of proofs.
There are three other fields of canon law which are covered by a great number of decretals: property law of the church, marriage law, and monastic law. The preservation of church property was crucially important for the recently founded Cistercian monasteries which developed the new system of “granges” for the administration of their real estate.49 The abbot had some freedom in making donations from the property of the monastery according to custom,50 but the chapter of the convent had to give its assent if an abbot gave away a grange from the real estate of the monastery.51 The collection also has numerous letters dealing with the controversial question of the extension of monastic tithes. Could the monks keep tithes only from newly cultivated land, the noval tithes, or also from old fields now acquired by Cistercian monasteries? Adrian IV had restricted monastic freedom of tithes to newly cultivated land.52 Alexander III changed Adrian’s policy; he sent many letters concerning tithes to Cistercian monasteries.53 Some of them are preserved by the Fountains Collection and grant specific privileges to Fountains to keep all tithes due “de laboribus suis” and “de nutrimentis animalium.”54 The monks of Fountains Abbey were freed from paying tithes of the produce they raised by their own hand or from the food of their animals. The privilege “de laboribus” also would mean that serfs and mercenaries working for the monastery could not be compelled to pay tithes to their parish priests instead of to the monastery.55
A very important financial question was the distribution of income between the monastery and the vicars appointed for ministry in the abbey’s churches. The pope directed the monks to provide for the sustenance of their vicars,56 and a certain share had to be reserved for the priests in pastoral service.57 Papal decretal law tried to balance the privilege of a dynamic monastic community with the needs of the parish priests.
Nearly a fifth of the decretals compiled in Fountains Abbey are concerned with marriage law. This field of canon law adopted many new rules in the twelfth century developed by the papal decretals.58 Alexander III’s legislative creativity, for example, is most obvious in procedural law and in marriage law. A monastic collection had to take into account the papal law on the relationship between solemn vows to enter into a monastery and an already existing marriage of the same person. These problems are covered by seven chapters in our collection.59 We also find some decretals dealing with other actual and controversial problems in the canon law of marriage at the end of Alexander’s pontificate. One of them was adultery and the possibility for adulterers to enter into a legitimate marriage after their crime.60 Another problem was the distinction between betrothal and marriage, first distinguished and assigned with different consequences in Alexander’s decretals.61 Some decretals deal with the specific rules for procedure in marriage cases, e.g. the requirements for witnesses in questions of consanguinity.62 There are also decretals ordering that the requirement of cohabitation for a married couple be enforced.63 A forged decretal taken over by the Fountains Collection upheld the Gratianic copula-theory for the beginning of a marriage.64 The activity of the abbot of Fountains as a judge delegate in difficult marriage cases can explain the reception of so many marriage decretals in this collection. Our collection even includes a forgery prohibiting marriages under condition, a problem for canon law discovered very soon after the redaction of the Decretum Gratiani.65
The Fountains Collection contains many texts with rules and privileges for monks and monasteries. Apart from the questions concerning monastic tithes there are chapters dealing with other rules for monasteries. Alexander III ordered a special exemption of the Cistercians from episcopal jurisdiction in a decretal sent to Archbishop William of Sens. This decretal was preserved only in the Fountains Collection and in two Portuguese manuscripts from a Cistercian monastery in Portugal.66 According to another decretal the bishop should not prevent free elections of abbots by the monks.67 The monasteries were asked to admit as monks crusaders who had been victims of a robbery and could not get to Jerusalem.68 The right of the abbot of Fountains to excommunicate monks in a monastery subordinate to Fountains is firmly established by three papal decretals.69 To take money from somebody who wants to enter a monastery is strictly forbidden and defined as simony.70 Monks are not allowed to study law or medicine—the so-called “scientiae lucrativae.”71
It is not possible to enumerate all areas of canon law covered by the decretals of the Fountains Collection, but I want to mention a few more. There are texts on celibacy72 and on advowson.73 The collection has a strong tendency to oppose the heredity of churches which could result from admitting sons of priests as successors to their fathers. Five decretals in our collection condemned this abuse.74