Pope Innocent III and Secular Law

Chapter 3
Pope Innocent III and Secular Law


James M. Powell†


On the feast of the Ascension, 1207, Pope Innocent III left Rome and went to Viterbo, where he was received “with great joy, glory and honor.”1 According to the Gesta Innocentii III, his purpose was to use Viterbo as an example that heresy would not be tolerated in the papal state by promulgating a statute against it. The Patarene heretics, however, did not await his coming; they had already left town. What needs to be made clear, however, is that Innocent was acting in his role as temporal rather than as spiritual ruler. Daniel Waley, though he says that the pope is making use of his temporal authority, refers to this statute as an ecclesiastical ordinance.2 But Waley does put this legislation into its proper framework, the Parliament of Viterbo, which he describes as of “greatest importance for the papal state.”3 At Viterbo, Innocent was acting as a secular ruler, promulgating law to be enforced in secular courts. Although Waley has argued that the statutes published in Viterbo did not constitute a “full code” of laws, the present chapter will show that they served as a model for future legislation.


The Parliament of Viterbo may well have been regarded by contemporaries as the culmination of Innocent’s efforts to restore the papal state.4 Indeed, he has often been described as the founder of that state.5 Immediately after his consecration, he made his policy clear. He first exacted an oath from Peter de Vico, the Prefect of the City, and followed that up by sending missi to the “entire patrimony of the church” to obtain oaths of loyalty.6 The Gesta makes much of this early progress. It uses the verb recuperavit in a manner that leaves no doubt regarding the view in the Roman curia regarding Innocent’s policies.7 The argument here is based on the idea that rights were lost during the immediate past. This is a reference to the period from 1191 to 1197, during which the German king Henry VI worked to establish his rule in Italy, in the north, then in the Duchy of Spoleto and the March of Ancona, which provided the gateway to the Norman kingdom of Sicily, which he claimed on behalf of his wife. But it also referred to the efforts of communes and lordships, both lay and ecclesiastical, to secure greater autonomy. The concept of recuperation was basic to Innocent’s policies. If, however, Henry’s successes had largely created or exacerbated problems in the lands of the Patrimony of St. Peter, his death in 1197 opened the opportunity for the youthful Innocent to re-assert papal rights. Even if we regard the word culmination as too strong, it is still evident that the Parliament of 1207 marked an important milestone in Innocent III’s policy of recuperations.


For this reason, we need to look at the statutes promulgated on this occasion in some detail. In the first place, the statute “Ad eliminandum” is not merely a reissue of “Vergentis in senium,” Innocent’s letter of 1199 directed against heresy in Viterbo. “Ad eliminandum” is in the form of a statute to be inscribed “in capitulari,” and sworn to annually by “potestates, consules seu rectores …”.8 In this way, Innocent gave the force of secular law to the provisions of “Vergentis in senium.” Innocent also condemned any constitutions enacted by laymen against churches or ecclesiastics, invoking both spiritual and temporal authority.9 “Cum iuratum sit,” which was issued on the same day, required all officials to take an oath to uphold the public peace. It provided that:


Si vero quisquam offenderit, non statim reoffendatur, sed moneatur prius ut emendet offensam. Et si super emendatione orta fuerit contradictio, nisi per alium sedari potuerit, ad arbitrium rectoris apostolici patrimonii referatur.10


[Indeed, if anyone should suffer an injury, he should not immediately repay that injury, but he should be admonished first to adjudicate the injury. And if disagreement should arise about the judgment, unless it can be settled by someone else, it should be referred to the decision of the rector of the apostolic patrimony.]


Failure to follow this course would label the offender a public enemy. Disputes should be settled either by agreements or by trials, with the right of appeal to the pope or the rector. The statute continues with provisions for the restoration of stolen goods. It provides little in the way of details regarding the various kinds of crimes, so we must consider that it was intended to supplement rather than replace local laws on these matters.


Having returned to Rome from Viterbo, Innocent journeyed southward to the Campagna and entered the kingdom of Sicily in June, 1208, establishing his court at San Germano, at the foot of Monte Cassino. This was no usual summer respite from the heat of Rome. Since the death of Queen Constance in 1198, who had laid claim to the kingdom in her own right as daughter of King Roger on the death of her husband, Henry VI, Innocent had served as guardian of their son, Frederick Roger, who was now about 12 years old. The years in the kingdom between 1198 and 1207 had witnessed almost continuous conflict. The German ministerial, Markward of Anweiler, to whom Henry had granted Romagna, the March of Ancona, and the County of Abruzzi, had claimed to act on behalf of Henry on the basis of his Last Will and invaded the kingdom. The pope’s position was based on the will of Queen Constance. He organized resistance against Markward and defended the interests of the young king, even at times against the royal familiars. Markward died in 1202, but the kingdom remained in precarious shape. The author of Gesta says that Innocent undertook this difficult journey because of the miserable state of the kingdom. He summoned the counts and barons and the leaders of the cities, or as Richard of San Germano says, the prelates and magnates, and he appointed Counts Peter of Celano and Richard d’Aquila, Count of Fondi, to aid the king and defend the kingdom.11 They were also enjoined to secure the observance of the peace on the following terms:


Quicumque ordinationem istam receperint, ad invicem sibi pacem observent, et si quisquam ab aliquo fuerit offensus, non statim reoffendat eundem, set apud predictos comites querelam deponat, qui eam secundum rationem et regni consuetudinem faciant emendari. Qui autem ordinationem istam recipere noluerint, vel recusaverint, tamquam hostes publici habeantur, et a ceteris impugnentur.12


[Whoever shall receive this ordinance should observe the peace among themselves, and if anyone has been injured by another, he should not immediately repay the injury, but should lay the dispute before the aforementioned counts, who should order it to be adjudicated according to reason and the custom of the kingdom. But any who are unwilling or refuse to receive it, should be held as public enemies, and punished by the rest.]


It is immediately apparent that Innocent followed the same model in establishing the government of the kingdom of Sicily under the king that he had in the papal states. What is particularly interesting is his repetition of the terms offendere and reoffendere