“Cum Essem in Constantie . . .” Medieval Law and Its Practice

“Cum essem in Constantie . . .” Medieval Law and Its Practice

Edited by

John Hudson (St. Andrews)

Editorial Board

Paul Brand (All Souls College, Oxford) Emanuele Conte (Università Roma Tre/ehess, Paris) Dirk Heirbaut (University of Ghent) Richard Helmholz (University of Chicago) Caroline Humfress (Birkbeck, London) Magnus Ryan (Peterhouse, Cambridge) Robin Chapman Stacey (University of Washington)

Volume 19

The titles published in this series are listed at brill.com/mlip “Cum essem in Constantie . . .”

Raffaele Fulgosio and the Council of Constance 1414–1415

Martin John Cable

LEIDEN | BOSTON Cover illustration: The cover of Francesco Alvarotti’s Consilia et allegationes, MS. Biblioteca Classense, Ravenna, 450 c. 2r. Reproduced by kind permission of the Istituzione Biblioteca Classense, Ravenna.

Library of Congress Cataloging-in-Publication Data

Cable, Martin John, author. “Cum essem in Constantie . . .” : Raffaele Fulgosio and the Council of Constance 1414–1415 / by Martin John Cable. pages cm. — (Medieval law and its practice ; volume 19) Includes bibliographical references and index. ISBN 978-90-04-30481-9 (hardback : alk. paper) — ISBN 978-90-04-30585-4 (e-book) 1. Fulgosio, Raffaele, 1367–1427. 2. Lawyers—Italy—Padua—Biography. 3. Law teachers—Italy—Padua— Biography. 4. Law, Medieval. 5. Council of Constance Konstanz, Germany (1414–1418) : 6. Constitutum Constantini. 7. Università di Padova. Facoltà di giurisprudenza—History—To 1500. I. Title.

KJA1790.C33 2015 262’.52—dc23 2015032043

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. issn 1873-8176 isbn 978-90-04-30481-9 (hardback) isbn 978-90-04-30585-4 (e-book)

Copyright 2015 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change.

This book is printed on acid-free paper. Contents

Preface and Acknowledgements ix Abbreviations xii

Introduction 1 1 Texts and Contexts 3 2 Historical Overview: The Schism until the Council of Constance 6 3 Biography: Payoffs and Pitfalls 11

1 Podcasts from the Past 19 1.a The Print Tradition of the Commentaries 20 1.b Manuscript Sources for the Commentaries 25 1.c Dating the Sources of the Printed Commentaries 29 2.a Fulgosio’s Life and Career 47 2.b Fulgosio’s Education 52 2.c From Pavia to Padua 61 2.d Fulgosio’s Married Life 76

2 Fulgosio’s Teaching Style and Professional Work 87 1.a Teacher and Lecturer 87 1.b Extraordinary and Ordinary Lectures 106 2.a Working Lawyer 109 2.b Due Process: Abuses and Exceptions 115 2.c Legal Fictions and the Imperial Prerogative 119 2.d Successive Procedural Contributions 134 2.e Diplomatic Activity and Advice: The Treaty of 1412/1413 137 2.f Other Legal and Professional Work 144

3 Fulgosio’s Arrival at the General Council 147 1 Conciliar Advocate 151 2 The Marche Case and the Question of Obedience 155

4 The Arrival of the Emperor Sigismund at Constance, Part One: Fulgosio and the Christmas Day Controversy of 1414 162 1 Status and Rank: The Besançon Case 164 2.a A New Source for Sigismund’s Arrival at Constance 166 2.b Fulgosio’s Recollection of Sigismund’s Arrival 167 vi contents

2.c Fulgosio’s Later Recollection of Sigismund’s Arrival 173 2.d Fulgosio’s Opponent in the Debate 177 2.e Dating the Debate 179 3 Aragon and the Empire 180

5 Fulgosio and the Question of Suffrage and Representation at the Council of Constance 185 1.a Voting by Nation at Constance 185 1.b Fulgosio and the Debate on Suffrage 190 1.c Fulgosio’s Consilium on Voting by Proxy 194 1.d Fulgosio’s Private View 197 1.e Dating Fulgosio’s Contribution 198 2 Sub-Sub-Delegation 201

6 Fulgosio, the Case of the Anonymous Archbishop and the Legal Legacy of the Great Schism at Constance 207 1.a Identifying the Litigants 208 1.b Fulgosio’s Consilium 212 2.a The Impact of Pisa and the Great Schism 216 2.b Guaranteeing Property Rights in the Settlement of the Schism 220 2.c Dating Fulgosio’s Contribution 223

7 Fulgosio and the Defence of Pope John XXIII at Constance 226 1 Papal Simony 226 2 Fulgosio’s Defence of John XXIII 228

8 Sigismund’s Arrival at Constance, Part Two: Fulgosio and the Donation of Constantine 236 1.a Re-Examining Fulgosio’s Comments on the Donation 238 1.b Fulgosio’s Intervention 245 1.c Conclusion 250

9 Return from Constance to Padua 254

10 Fulgosio and Constance after Constance 268 1.a The Jean Petit Tyrannicide Case 268 1.b Fulgosio’s Consilium 273 2 The Defence of the Jews of Ferrara 278 Contents vii

11 Fulgosio’s Final Years in Padua 285 1 Succession Disputes: Canosa and Straubing/Holland 286 2 Fulgosio’s Death 288 3 Beccaria’s Death 295

12 Conclusions 300 1 Dissimulation and Identity 300 2 The Donation of Constantine 303 3 The History of the Council of Constance 304 4 University Teaching Practice 306 5 Legal History and Humanism 307

Appendices 1 The Last Will and Testament of Raffaele Fulgosio Padua, 11 September, 1427 317 2 The Last Will and Testament of Giovanina Fulgosio Padua, 1 September, 1437 324 3 The Inventory of Giovanina Fulgosio’s Possessions Padua, July 1439 330 4 Data Table for Graphs 339

Bibliography 350 Index 382

Preface and Acknowledgements

This book developed from my earlier study of the early fifteenth century lawyer Gimignano Inghirami of Prato. Inghirami was a judge on the bench of the church’s highest court, the rota romana, both before and during the Council of Constance when the court together with the rest of the machinery of papal government transferred to the southern German city for four years beginning in 1414. An archive closely connected to Inghirami and his work is preserved in his native city and provided the source material for my study of his and the rota’s activities while at Constance. I was particularly interested in any cases which involved litigants who had belonged to opposing ‘obedience’ communities during the Great Schism which divided the church from 1378 to 1417. Furthermore, I was keen to locate any case papers which referred to the decrees which were issued at Constance to address the legal legacy of the schism and its obedience divide. How, for example, were benefice rights which the members of one obedience community had obtained from ‘their’ pope reconciled with the title claims over the same rights which members of an opposing obedience had similarly obtained from ‘their’ claimant to the papal office? To answer such questions some recognition of the legal validity of actions taken within the boundaries of each obedience was necessary; however to achieve that meant determining what those boundaries were and where they lay. For a fundamentally intangible matter like ‘obedience to a particular pope’ this posed yet more profound questions about the extent to which a community’s existence could be mapped on to the physical contours of the world. An obedience was, in a certain sense, an association of like-minded people who shared the joint recognition of a single pope. To map that community to specific cities, kingdoms or regions always represented an approximation for where that community began and ended, however this ‘territorial’ solution was one which the council proposed and which courts like those presided over by Inghirami had sometimes to consider in the aftermath of the schism. Where a particular town, city or kingdom had recognised a particular papal contender as pope, his actions were valid there and the position of those who recognised his opponent that of a (largely unprotected) minority. Such a territorial treatment of the issue seemed to me to be a very early (and completely unintentional) experiment in how religious divisions and opposed religious communities might be reconciled. Nothing less, in fact, than a very early example of the secularisation of such issues which emerged as a solution to confessional division from the early modern onwards and in which religious affiliation increasingly became relegated to a matter of purely private concern. x preface and acknowledgements

Evidence of several cases which were before the courts emerged from my research, however Inghirami’s position as a judge naturally meant that the court records preserved in his archive were often not written by him but by the procurators, advocates and others who represented litigating parties. It occurred to me that advocates in particular presented a more promising research object than the judges before whom they pleaded a case. Among possible candidates for advocates working at the council of Constance, Raffaele Fulgosio seemed the most promising individual to pursue. He was first and foremost a professor and jurist, chiefly at Padua university, yet had served as an advocate at the council. Printed editions of his commentaria and consilia also survived whilst it was also known that he had referred in his commentaries to having witnessed a discussion about the Donation of Constantine at the council. I was hopeful therefore that, in addition to the record of this episode, the volumes of his consilia would contain some evidence of his contributions to cases or debates at the assembly. Before an opportunity to study the consilia appeared, I however turned to his commentary on the Digest to study his discussion of the Donation. Reading the commentary, it was evident that Fulgosio referred to the council on several further occasions in addition to recalling a debate on the Donation and furthermore that conversational recollections of this kind made frequent appearances in the text. It occurred to me that the detail contained in both the commentaries and consilia when combined with archive research might be sufficient to attempt a book-length recreation of Fulgosio’s time as an advocate at the council and provide an insight in to his life before and after it as a jurist, university lecturer and working lawyer. The result approaches, I hope, the kind of book that I have often wanted to write: Namely, a study of intellectual history which combines the world of ideas with an insight in to the every day realities, both professional and domestic, of those involved in debating or discussing those ideas. And although many of the political, philosophical or legal questions which Fulgosio and his age considered important are rather alien to us now, many more still remain familiar and relevant. At Constance Fulgosio would discuss topics like representation by delegates at an assembly, or resistance to tyranny, whilst his professional work would see him tackle a range of questions provoked by perennial human disputes about property or money as well as engaging with principles like the central place of due process. The more domestic aspects of Fulgosio’s life in early fifteenth century Padua are also very alien in many respects to our own, however just as with his work as a lawyer, many elements of them are not. The everyday realities of Fulgosio's home life, for example, as revealed by archive research, or the picture conjured up by a study of Fulgosio’s remarks about his university class room often Preface And Acknowledgements xi have a familiar ring to them. They are a reminder that, for all their dryness and seemingly ancient character, works like Fulgosio’s commentaria or consilia were nevertheless once the product of lectures given to a living class room of noisy, sometimes attentive and sometimes distracted students, or composed at a paper-strewn desk in a study whilst elsewhere in the home a meal was being prepared from well-provisioned stores on a stove lit from a good supply of firewood.

Kernow, 2015. 600 years since Raffaele Fulgosio attended the Council of Constance.

Acknowledgements

I am grateful to the Istituzione Biblioteca Classense in Ravenna for permission to reproduce the manuscript printed on the cover and the examples of Fulgosio’s seal which are shown below on page 73. Abbreviations

ACC H. Finke, Acta Concilii Constantiensis, (Münster: Regensberg Buchhandlung, 1896–1928) AHC Annuarium Historiae Conciliorum AN Archivio notarile ASF Archvio di Stato di Firenze ASI Archivio Storico Italiano ASL Archivio Storico Lombardo ASLU Archivio di Stato di Lucca ASPd Archivio di Stato di Padova ASPv Archivio di Stato di Pavia ASPc Archivio di Stato di Piacenza ASVe Archivio di Stato di Venezia ASVi Archivio di Stato di Vicenza C. Codex Justinianus CODEX I/II R. Fulgosio, In D. Justiniani Codicem commentariorum, (Lyon: H. et heredes A. de la Porte, 1547) Consilia R. Fulgosio & R. Raimondi, Consilia sive responsa actvissimorvm iuris interpretum Raphaelis Cumani, nempe et Fvlgosii, (Venice: G. Bidonum, 1575) Consilia 1607 R. Fulgosio & P. de Castro, Consilia postuma criminalia, feudalia, testamentaria, (Amberg: J. Schönfeld, 1607) D. Decretum gratiani DBI Dizionario biografico degli italiani Dig. Digestum vetus DIGEST I/II R. Fulgosio, in primam (secundam-) Pandectarum partem commentariorum, (Lyon: Grande Compagnie des Libraires, 1554) £/£(Pc) Lire or Livres/Lire piacentine MANSI J.D. Mansi, Sacrorum consiliorum nova et amplissima collectio, (Venice, 1784–1785), XXVII & XXVIII Nov. Novellae constitutiones QFIAB Quellen und Forschungen aus italienischen Archiven und Bibliotheken QSUP Quaderni per la storia della università di Padova RQ Römische Quartalschrift VI Liber sextus X Liber Extra Introduction

The cover of this book depicts the mid-fifteenth century Paduan jurist Francesco Alvarotti surrounded by a selection of law books. Some of the lawyer’s volumes are open on stands placed around him, a few are closed but ready to hand whilst others have been clasped firmly shut. The portrait of Alvarotti comes from a collection of the jurist’s legal consilia,1 but appears to depict him engaged in an altogether more public activity than the solitary composition of the professional opinions for case or client which the collection contains. With his hand pointing to a text and standing directly facing the viewing audience, Alvarotti appears poised to speak and to be captured in the process of giving a lecture. To Alvarotti’s right and sat on the floor is an individual dressed in red and either sharpening his pen or about to write. He is a scribe or student (his cloak may be an indication of this) and appears to be creating a copy of the master’s teaching. The scene may therefore depict a simple classroom one, with the jurist discussing the text to which he is pointing and a student or scribe making a copy of his teaching either for his own study or for subsequent sale. It is known that a veritable industry in the copying of legal texts existed at universities like Padua where Alvarotti taught, with manuscripts, often subdivided in to more manageable and affordable sections or peciae, being prepared by scribes or copyists and then sold on by stationers or university beadles to students and others.2 Students could also pay to make private

1 The collection was copied by the lawyer Jacopo de Rubieri who was given the text by Alvarotti’s nephew after the latter’s death. On Rubieri’s library and the collections of wood cuts which it contained, together with a discussion of the Alvarotti portrait, see: Giancarlo Schizzerotto, Le incisioni quattrocentesche della Classense, (Ravenna: Zaccarini, 1971), 47–49 who also points out how Alvarotti was depicted as dressed in the latest fashions for the mid- fifteenth century (ibid., 49). 2 Both classes of individual were tightly regulated regarding the sale of books by university statutes at Padua: Heinrich Denifle, ‘Die Statuten der Juristen-Universität Padua vom Jahre 1331’, Archiv für Literatur- und Kirchengeschichte des Mittelalters, 6 (1892), 450–463. On the pecia system of book production more generally, see: Graham Pollard, ‘The Pecia System in the Medieval Universities’, in: eds. Malcolm Parkes and Andrew Watson, Medieval Scribes, Manuscripts and Libraries: Essays Presented to N.R. Ker, (London: Scolar Press, 1978), 145–161; Richard and Mary Rouse, ‘The Dissemination of Texts in Pecia at Bologna and Paris’, in: eds. Peter Rück and Martin Boghardt, Rationalisierung der Buchherstellung im Mittelalter und in der frühen Neuzeit: Ergebnisse eines buchgeschichtlichen Seminars, Wolfenbüttel 12.–14. November 1990, (Wetter: Schröder, 1994), 69–78.

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004305854_002 2 Introduction copies of original manuscripts held by the beadle or individual to whom a teacher had in effect granted a monopoly on their publication. They might also be employed in the copying of texts for further onward distribution.3 The scribe or student sat on the floor in front of Alvarotti can be viewed therefore as one part of this industrial process by which an individual jurist’s lectures became distributed far beyond the confines of his class room. About twenty years before Alvarotti wrote his consilia, he had been a student at Padua himself and may conceivably have engaged in the same copyist activities for his own teacher, a man who certainly had his lessons recorded by scribes or students. This man was Raffaele Fulgosio, for whom no pictorial likeness as immediate as the depiction of his erstwhile student survives. A portrait of Fulgosio captured like Alvarotti in the act of teaching can however be discerned by reading his multi-volume commentaries on the civil law. Once the complex copyist production process and later print tradition by which these texts have come down to us are acknowledged, they offer a very good source for reconstructing something of what it was like to attend a lecture given by Fulgosio at the University of Padua in the early fifteenth century. The Alvarotti portrait permits us, in short, to see a jurist-lecturer at work. If they are read in a certain way, Fulgosio’s commentaries can allow us to hear one. This approach to Fulgosio’s commentaries does not consider them therefore only as works of abstract jurisprudence but recognises them as being in part the product of a series of lectures once given to a class room full of students. That course was often itself more vocational in character than purely academic with the lecturer preparing students for the practical working lives in the law which they would later lead. In the case of Padua, this might often mean obtaining a position within the burgeoning bureaucracy established to administer Venice’s then rapidly-growing empire. After he studied under Fulgosio, for instance, Alvarotti would take on such a posting as judicial vicar- general of Venice’s recently acquired patriarchate of Friuli.4 This sense of the commentaries as representing in part the record of a vocational course of lectures rather than a jurist’s purely abstract thought comes

3 See: Luciano Gargan, ‘ “Dum eram studens Padue”. Studenti-copisti a Padova nel Tre e Quattrocento’, in: eds. Francesco Piovan and Luciana Sitran Rea, Studenti, università, città nella storia padovana. Atti del convegno, Padova 6–8 febbraio 1998, (Trieste, 2001), 33–35. 4 Giovanni Ziletti, Criminalivm Consiliorvm atqve responsorvm . . . volvmen, (Venice: I. Ziletti, 1562), I: 131. Alvarotti would later however go on to lecture at the university of Padua from c.1430: Mirella Blason Berton, ‘Una famiglia di giuristi padovani: Pietro, Giacomo e Francesco Alvarotti (Speroni) e la loro biblioteca di diritto (1460)’, Bollettino del museo civico di Padova, 53 (1964), 116–124. Introduction 3 particularly across when they are read in sequence, from cover to cover, with the modern reader being permitted as a result to relive something of the experience of the jurist and his class as they progressed day-by-day and text-by- text through the corpus of law. A certain appreciation of the pace at which these lectures must have taken place emerges from this reading and a corresponding sense that the occasions within lectures when it would have been possible for Fulgosio to move beyond vocational instruction and expound his own ideas or develop new interpretations of the law must have been restricted.5 The commentaries clearly can not be universally characterised as being simply a record of class room instruction for budding future lawyers, however when the sections which do represent such lectures are recognised they can reveal a portrait of a jurist not writing on jurisprudence in the privacy of his own study and the company of his own thoughts, but a lecturer addressing his students in a living, working classroom environment. In these sections, the commentaries therefore become less like a written source and more like an oral one.

1 Texts and Contexts

The depiction of Fulgosio the working teacher-lawyer which emerges from this reading of his commentaries is complimented by the use of more traditional sources. For the university of Padua this material chiefly comprises the university’s statutes which regulated the conduct of lecturers, students and university officials together with rotuli and similar material relating to the appointment of lecturers.6 Such sources are useful for the light which they shed on teaching practices at Padua however studying Fulgosio’s commentaries in detail also offers the possibility of comparing theory with practice and to assess how far teaching may have in reality deviated from what was officially required of lecturers and students by university statutes.7

5 Public disputations, the subjects for which participants could select, and repetitiones on specific texts of the legal canon would have permitted greater opportunities to discuss issues of concern or controversy. On these two forms of activity see: Hermann Lange and Maximiliane Kreichbaum, Romisches Recht im Mittelalter, (Munich: C.H. Beck, 2007), 59–60. 6 For a summary of the material for the university of Padua: Annalisa Belloni, ‘Neue Erkenntnisse über den Rechtsunterricht in Padua im fünfzehnten Jahrhundert’, Ius Commune, 13, (1985), 2–4. 7 Dieter Girgensohn has pointed to the greater possible use that could be made of legal commentaries as a source for teaching practice and jurist biography in: ‘Per la storia 4 Introduction

This material can be enriched yet further in the case of Fulgosio by the evidence of Fulgosio’s output as a lawyer to be found within his extensive collection of legal consilia, especially when remarks in Fulgosio’s commentaries about a particular consilium which the jurist had written can be matched with the original consilium itself and where that consilium can be contextualised. This is not only important for the additional colour and background detail which this information can provide about the specific consilium but also because of the formative role which context might have played on what a jurist like Fulgosio wrote. A jurist petitioned to provide a particular consilium was, in one sense, simply a working professional responding to a question which was framed by the conditions or requirements of his client or by the constraints which were imposed by the technical and procedural location of that consilium within the particular court process to which it would contribute. Consilia were often not therefore isolated theoretical discussions about the law, politics or morality, but legal opinions furnished within the context of a petitioning client or a legal process then actively underway before a court. Sometimes that context meant, for example, that they were more judicial or determinative in character, on other occasions however they were more partisan in nature and closer in character to the documents which advocates plead- ing a case for one party in a case might present in court. Attempting to identify any supporting archival material which may survive relating to the case connected to a consilium, is therefore also important.8 In a particular consilium, for example, a jurist like Fulgosio may have been replying to a particular legal problem only after he had read the supporting documentation, witness testimony and submissions which procurators and others representing parties in the case had presented to the court and which had been passed to him together with the request to write. These documents will often no longer be attached to the jurist’s consilium, especially in the collections of such works which were printed in the fifteenth and sixteenth centuries, but

dell’insegnamento giuridico nel Quattrocento: risultati raggiunti e ricerche auspicabili’, QSUP, 22/23 (1989/90), 311–319. 8 The later, early modern publishers and users of collections of consilia simply did not need the historical background of case papers and supporting documentation on which a jurist had worked in order to print or appreciate their works. Jurists themselves had no reason to keep this paper work either once their consilium was written. The documents relating to a case therefore sometimes only survive in the archival records of the courts or those who worked at them. See the discussion, for example, in: Julius Kirschner, ‘Consilia as Authority in late medieval Italy: The Case of Florence’ in: eds. Idem, Mario Ascheri and Ingrid Baumgärtner, Legal Consulting in the Civil Law Tradition, (Berkeley, 1999), 117. Introduction 5 they may still survive in the court registers or notarial archives with which Italy’s archives in particular are so richly furnished. Reconnecting a particular consilium back to at least some of the documentary evidence with which it was once in dialogue means that an attempt can be made to restore the consilium to its original procedural context as a document which contributed to a case before the courts. This restorative process not only greatly enhances understanding of what the jurist argued in that consilium but can also, even more importantly, begin to address the question of why the jurist may have argued as he did. A vivid picture of the life of a working lawyer in Padua in the opening decades of the fifteenth century can emerge from this process of contextuali- sation regarding both Fulgosio’s commentaries and his consilia. This would be interesting enough for what it reveals about teaching practice in Padua university and the professional life of a working lawyer at the time were it not for the fact that, in the winter of 1414, Raffaele Fulgosio left his class room behind and journeyed north across the Alps in order to attend the Council of Constance where he was appointed as a prominent conciliar official. When the evidence from the lessons which he gave on his return from the council is analysed closely and contextualised, much of Fulgosio’s activity whilst he was at the council can be reconstructed. In so-doing, a potential new source for the council in its formative and under-documented opening period can therefore be revealed.9

9 The main sources for the early period of the council are the chronicles of Cerretano (Heinrich Finke, ACC, II: 171–348) and Dietrich Vrie, the record maintained by Andreas of Regensburg (Georg Leidinger, Andreas von Regensburg. Sämtliche Werke, (Munich: Universitäts- Buchhandlung, 1903)), and the documents printed by J.D. Mansi in the eighteenth century (MANSI, XXVII–XXVIII) and van der Hardt at the end of the seventeenth (Hermann van der Hardt, Magnum oecumenicum constantiense concilium de universali ecclesiae, (Frankfurt a.M. & Leipzig, 1697–1700) – which contains Vrie’s chronicle). The opening period of the council has been studied by: Walter Brandmüller, Das Konzil von Konstanz, (Paderborn: F. Schöningh, 1997), vol. I, and Louise Loomis, John Mundy and Kennerly Woody, The Council of Constance, (New York/London: Columbia University Press, 1961). For specific episodes in the first months at Constance, Albert Lenné examined the struggle for the recognition of the Gregorian delegation in: ‘Der erste literarische Kampf auf dem Konstanzer Konzil in November und Dezember 1414’, RQ, 28 (1914), 3–40, whilst Julius Katterback also considered the opening period of the council in: Der Zweite literarische Kampf auf dem Konstanzer Konzil, (Freiburg i.Br., 1919). 6 Introduction

2 Historical Overview: The Schism until the Council of Constance

The primary goal of the Council of Constance (1414–1418) was simple to state but difficult to accomplish. The council had been convened to put an end to the Great Schism which had divided the western church between supporters of competing candidates for the papacy since 1378. Fulgosio was born only two years before the outbreak of the schism and would have therefore only ever known the church as a community which was divided in to two rival ‘Obedience’ camps each headed by its own pope. The regions of Italy in which he grew up, studied and worked were relatively less affected by the great divide than other parts of the peninsular and Europe more generally, however any contact with individuals from, for example, France or the Spanish kingdoms meant meeting a member of a community led by a pope in Avignon who was considered to be a schismatic by his opponent in Rome towards whom the majority of Italians directed their loyalty.10 Indeed, one of Fulgosio’s own teachers was caught in just such a position of being a member of a different ‘Obedience’ to that of the majority. In addition to the disturbing effect on individual Christian consciences of the need to choose, (or more correctly to be directed by one’s superiors to choose), between indistinguishable candidates in a papal ‘hall of mirrors’ where one of the two identical images was known to be that of the genuine pope and the other to be that of an impostor but where it was impossible to say definitively which was which, the schism was also a deeply troubling development for the Law.11 With the advent of the schism, the possession of a valid

10 For maps indicating the general geographical positions of the obediences, see: Odilo Engels, ‘Die Obedienzen des Abendländischen Schismas’, in: Hubert Jedin et al., eds., Atlas zur Kirchengeschichte, (Freiburg i. Br.: Herder, 1970), 48–52; R.N. Swanson, Universities, Academics and the Great Schism, (Cambridge: Cambridge University Press, 1979), maps 1 & 2. For an example of how, on a more local level, the schism could create a patchwork of obedience affiliation see: Hugues Labarthe and Laurent Sévegres, ‘Le système d’information géographique pour la cartographie des obédiences en Gascogne à l’époque du grand schisme 1378–1420: un outil heuristique?’, in: Le Midi et le Grand Schisme d’Occident, (Toulouse: CNRS, 2004), map 1. 11 Since no doctrinal question separated the rival communities of the schism, theirs was a division which, beyond perhaps the popes themselves, had created no real schismatics. As the theologian Pierre d’Ailly remarked, the schism was “divisio seu diversitas opinio- num circa oboedientiam papae” which had not created real schismatics in the sense of individuals who maliciously desired separation from the Church or for the Church to be divided. (Paul Tschackert, Peter von Ailli, (Gotha: F.A. Perthes, 1877), Apx: 32). The great Introduction 7 legal title to office no longer neatly aligned with the ability to wield the power of that office. Both papal contenders claimed that they alone held the title of pope, however neither of them was able to enjoy the automatic obedience which that title ought rightly to have bestowed upon them. The formal processes by which the Law customarily policed definitive and rightful access to power were therefore divorced from the reality of power. The ability to govern no longer relied solely on the possession of a legal title obtained through a legal process of coronation, election or ceremonial anointment, but was determined instead by the acceptance and acknowledgement of that individual’s de facto power by the faithful. During the schism, an individual wielded power as

schism was not therefore a true schism in that it was a division which had separated communities who themselves did not desire that division and of which they were only the unwilling and entirely passive victims. As Jacques Leclercq once noted, the great schism constituted a “schisme sans schismatiques” or a division without schism which was contained entirely within the notion of unity: Jacques Leclercq, ‘Points de vue sur le grande schisme d’occident’, in: ed. Lambert Beauduin, 1054–1954 L’Église et les Églises, (Brussels: Éditions de Chevetogne, 1955), ii: 239–240. The efforts to resolve the schism by deciding the dispute in favour of either one candidate or another after 1378 were extensive but ultimately unsuccessful. Jurists like Bartolomeo de Saliceto, Baldus de Ubaldis and Giovanni Lignano all wrote on the events of 1378 and, in particular, the law surrounding papal elections in which coercion had occurred (which was the allegation of the Avignon party regarding the first election of 1378). See: Niccolò del Re, ‘Il ‘consilium pro Urbano VI’ di Bartolomeo da Saliceto’, in: Collectanea vaticana in honorem Anselmi M. Card. Albareda, (Vatican City: BAV, 1962), 213– 263; Michael Siedelmeyer, Die Anfänge des grossen abendländischen Schismas, (Münster: Aschendorff, 1940); Walter Ullmann, The Origins of the Great Schism: A Study in Fourteenth Century Ecclesiastical History, (London: Burns Oates and Washbourne Ltd., 1948); James A. Wahl, ‘Baldus de Ubaldis: A Study in reluctant conciliarism’, Manuscripta, xviii, 1974, 21–30. All three eminent jurists agreed that, had Urban VI’s election been genuinely coerced (with that term suitably defined) then it would indeed have been invalid. They agreed however that the election had not met the definition of having been legally occasioned by fear and was thus not invalid. Since these were all ultimately judgements of fact (i.e. what had actually transpired in the conclave of 1378), the schism even without the addition of powerful secular support to sustain it and jurists writing on the opposing side, was indeterminable. The obligation of ordinary Christians to obey and not judge their ecclesiastical superiors also meant that, for them, a decision on which pope was genuine and which not was impossible to make. On the events of 1378 which gave rise to the schism, see: Olderico Přerovský, L’elezione di Urbano VI e l’insorgere dello scisma d’occidente, (Rome: Biblioteca Vallicelliana, 1960); Walter Brandmüller, ‘Zur Frage nach der Gültigkeit der Wahl Urbans VI.’, AHC, 6 (1974), 78–120; Marc Dykmans, ‘La Troisième élection du pape Urbain VI’, Archivum Historiae Pontificae, 15 (1977), 217–264. 8 Introduction pope where he was recognised as pope by the community over whom he ruled. The candidate towards whose image the community pointed in the hall of mirrors, as it were, became pope rather than being so independently of the community’s viewpoint and thanks to his possession of a valid legal title acquired by means of a valid legal process. Reconnecting title to power was the goal of reunification. In the decades after 1378 the rival papal contenders were petitioned, with steadily increasing degrees of urgency and impatience, to abandon their respective claims and clear the way for a new pope to be elected who could command universal obedience not because he was recognised by a particular community but because he alone held the unique legal entitlement to be obeyed. Achieving this goal proved very difficult and the church remained divided between competing claimants for the papacy for much of Fulgosio’s lifetime until he was in early middle age. The division in the church even survived the deaths of the initial competitors for the papal throne in 1378, as each Obedience elected successors to the two original protagonists and then to their successors in turn each time that both papal offices fell vacant;12 whilst none of these series of would-be pontiffs proved to be especially keen on abandoning what he saw as his legitimate title in order that his opponent would be encouraged to forsake his erroneous claim. Ultimately the reductive logic repeatedly won out that it was wrong for a candidate to give up what he saw as his valid coin in exchange for the surrender of the counterfeit version which he felt was held by his rival. By 1408, therefore, and after repeated failures to coax the popes to abandon their claims voluntarily, revolutionary measures were necessary to break the deadlock.13 Cardinals from both Obediences thus abandoned their papal

12 For reference, the popes of the schism from 1378 to 1417 were, in order of succession: Roman – Urban VI, Boniface IX, Innocent VII, Gregory XII; Avignon – Clement VII, Benedict XIII; Pisan – Alexander V, John XXIII; Martin V was elected pope at the Council of Constance in 1417 which, with the exception of pockets of isolated support for the Avignon Obedience, brought the schism to an end. 13 Various proposals to end the schism were made including the holding of a general council, however the leading initiative was the partially concerted effort by European powers to ‘subtract’ obedience from the popes to encourage them to resolve the division. The policy was chiefly adopted in France and Hungary; see: Imre Bard, ‘The Break of 1404 between the Hungarian Church and Rome’, Ungarn-Jahrbuch, 10 (1979), 56–69; Howard Kaminsky, ‘The Politics of France’s Subtraction of Obedience from Pope Benedict XIII, 27 July, 1398’, Proceedings of the American Philosophical Society, 115 (1971), 366–397 and idem, Simon de Cramaud: de subtraccione obediencie, (Cambridge MA: The Medieval Introduction 9 masters and jointly convened a general council of the church to assemble at Pisa in 1409. At this assembly both competing popes, Gregory XII for the ‘Roman’ obedience and his rival Benedict XIII of the ‘Avignon’ papal line, were deposed and a new man elected in their stead to unite Christendom. The attempt at reunion was however only partially successful. Although much of Europe backed the revolutionary move, both Gregory XII and Benedict XIII continued to enjoy significant support despite their depositions. Within a short period it therefore became clear that rather than uniting the church around one pope the Council of Pisa had only added a third claimant to the contest and a further uncertain image to the bewildering hall of mirrors. Alexander V had been the pope elected at Pisa however he did not live long and was quickly succeeded in 1410 by a condottiere pope rather more suited to winning allegiance by force of arms than by force of argument; John XXIII.14 His fortunes were mixed, but had reached a particularly low financial and military ebb when, under pressure from amongst others the newly elected Emperor, Sigismund of Hungary, he agreed to summon a new council to assemble in the lakeside city of Constance in the winter of 1414 with the goal of ending the schism once and for all. The schism and the early stages of its conciliar solution thus comprised the broad movements in ecclesiastical politics of Fulgosio’s time. To sketch a similar overview of secular politics, a division can be made between the political situation locally, regionally and internationally. Local, for the youthful Fulgosio, meant the city of Piacenza and, even more intimately, the noble house of Fulgosi from which he came. As a Guelf family, the biggest influence on the fortunes of the Fulgosi in this period were the wars which were waged between different papal leagues on one hand and the Visconti of Milan on the other through the 1370s and 1380s. The family does not appear to have emerged from this violent period in and around Piacenza among the net victors. The

Academy of America, 1984); Guillaume Mollat, ‘L’Application en France de la Soutraction d’Obedience à Benoït XIII jusqu’au Concile de Pise’, Revue du Moyen Age Latin, 1 (1945), 149–164; Hélène Millet and Emmanuel Poulle, Le Vote de la Soustraction d’Obédience en 1398, (Paris: CNRS, 1988). 14 On John XXIII see: Walter Brandmüller, ‘Infeliciter electus fuit in Papam. Zur Wahl Johannes’ XXIII.’, in: idem, Papst und Konzil im Großen Schismas (1378–1431). Studien und Quellen, (Paderborn et al.: F. Schöningh, 1990), 71–85 idem, ‘Johannes XXIII. im Urteil der Geschichte – oder die Macht des Klischees’, AHC, 32 (2000), 106–145; Gabriel Loirette, ‘Le Pape Jean XXIII et le grande schisme d’occident (1410–1415)’, Actes de l’Académie nationale des sciences, belles-lettres et arts de Bordeaux, 33 (1968), 62–82 and François-Charles Uginet, ‘Giovanni XXIII, antipapa’, DBI, 55 (2001), 621–627. 10 Introduction

Visconti and their allies however were increasingly in the ascendant both locally and regionally. Much of Fulgosio’s early life was lived against a backdrop of the changes in fortune of the Visconti dukes in Northern Italy, firstly during his youth and the wars of that time and then again during the period of instability ushered in by the death of Gian Galeazzo Visconti in 1402. The uncertainty over his succession, together with the rise of such condottieri as Facino Cane, dominated much of the regional politics of Northern Italy in the first decade of the new century. The political turbulence of the times may have been one factor in Fulgosio’s change in career direction in the middle of this decade. By its end he had taken up his post at the university in Padua; a city which in 1406 had fallen under the domination of Venice; the main regional rival in Northern Italy to Milanese and Visconti power. The period in which Fulgosio arrived at and taught in Padua was one of great territorial expansion by the hitherto largely maritime Venetian republic on the Italian mainland. In 1404 and 1405 both Vicenza and Verona had become Venetian possessions; and when, therefore, we read in Fulgosio’s works his discussion of cases from these cities it is worth recalling that these were only comparatively recent additions to the Venetian empire. Thanks to its empire, Venice was an even greater international power than Milan. Its expansion both on the Italian mainland and down the Adriatic and beyond had seen the republic clash with Sigismund firstly in his capacity as King of Hungary and, from 1411, in his new position as Rex Romanorum and Emperor-elect. A trade and military war between Venice and Sigismund was on-going at around the time that Fulgosio began lecturing in Padua and the city was seriously threatened with invasion by Sigismund’s troops shortly after the jurist began to teach there. At the Council of Constance some of these international and secular rivalries and divisions merged with ecclesiastical ones and it is important to register the extent to which the assembly, although primarily ecclesiastical in character, also constituted a major European summit of secular powers. The council was, for example, organised along national lines with English, French, German, Italian and ultimately Spanish ‘Nations’ making up the groupings in to which the council was subdivided. This development, although not unprecedented, effectively supplanted the church’s existing hierarchical structure founded on distinctions like those between archbishops and bishops, or abbots and monks. The number of secular attendees and amount of secular matters considered at the assembly are further indications of the council’s credentials as simultaneously both a secular European summit and an ecclesiastical body. When he Introduction 11 attended and held high office at the assembly, Fulgosio himself would do so as a layman. He was also married.

3 Biography: Payoffs and Pitfalls

Exploring some of the aforementioned historical developments through the medium of biography has its benefits, but is not without its dangers.15 Studying a single character gives a constant focus to a work and provides an useful sense of a timeline. There is also the possibility of establishing an instant connection between reader and biographical object and a concomitant reduction in abstract discussion or in the unnerving necessity to acknowledge that historical developments may owe more to the intangible forces of collective behaviour than the willed actions of a single individual or group of individuals. The customary caveats concerning the art of biography like the tendency to over- emphasise the historical importance of the biographical object or to fall victim to the Biographical Fallacy and believe that the study of a life holds the key to understanding an individual’s works need however to be continually guarded against. In the case of Fulgosio and despite the intervening passage of so many centuries, even the well-known biographical error of over-identification by the biographer with the object of his or her study remains a distinct hazard. For, as this study will hopefully show, Raffaele Fulgosio appears to have been an individual who was possessed of both approachability and good-humour; and such genial character traits as these have a tendency to transcend time, place and culture even over such a great span of time. As a counter-balance, it is worth registering that Fulgosio enjoyed a very privileged and wealthy lifestyle

15 Academic studies on the lives of individual jurists have been popular in recent years. One can mention, for example, the major studies by: Roberta Bargagli, Bartolomeo Sozzini. Giurista e politico (1436–1506), (Milan: A. Giuffè, 2000); Ingrid Baumgärtner, Martinus Garatus Laudensis. Ein italienischer Rechtsgelehrter des 15. Jahrhunderts, (Cologne/Vienna: Böhlau, 1986); Joseph Canning, The Political Thought of Baldus de Ubaldis, (Cambridge: Cambridge University Press, 1987); Heinrich Heimpel, Die Vener von Gmünd und Straßburg 1162–1447, (Göttingen: Vandenhoeck & Ruprecht, 1982); Domenico Maffei and Paola Maffei, Angelo Gambiglioni, giureconsulto aretino del Quattrocento: La vita, i libri, le opere, (Rome: Fondazione Sergio Mochi Onory per la storia del diritto italiano, 1994); Thomas Woelki, Lodovico Pontano (ca. 1409–1439). Eine Juristenkarriere an Universität, Fürstenhof, Kurie und Konzil, (Leiden: Brill, 2011) as well as the volume of articles dedicated to Bartolomeo Cipolla: ed. Giovanni Rossi, Bartolomeo Cipolla: Un giurista veronese del quattrocento tra cattedra, foro e luoghi del potere, (Padua, 2009). 12 Introduction which would have permitted such natural characteristics as he possessed full room in which to flourish. How things seemed to the men and women equally as capable of good humour and approachability as he was but compelled to work unpaid on his family’s feudal estate or as slaves in his richly furnished home in Padua is another matter. The biography of a medieval jurist presents other dangers however in addition to the more generic pitfalls of the genre. Chief among these is the question of private viewpoint or opinion and its relation to the texts with which a jurist has come to be identified. Sufficient regard needs to be paid to the context which gave rise to these documents lest the views expressed within them should be taken automatically to be representative of the jurist’s own private opinions. The legal commentaries, for example, could represent Fulgosio’s own opinions, however their occasional origins as lectures may mean that instead of expressing his own point of view on a subject Fulgosio was merely passing on to his students interesting or instructive legal arguments which had perhaps proved to be successful in a case or disputation, but whose conclusions he did not necessarily share. Furnishing his students with an arsenal of possible arguments which they could use in their professional careers would have been part of his role as a teacher and, in that context, expounding his own point of view may have been less of a priority. Such caveats are yet more relevant in the case of the consilia. As with the commentaries, there was certainly a place within consilia for a jurist to articulate his more fully considered legal views or to give vent to his more consistent political or philosophical convictions, most notably but not exclusively in consilia sapientis; the opinions which constituted, as it were, the outsourcing of a verdict by a court or panel of judges to learned jurists. Consilia, or the documents which have come down to us in collections of consilia, could however also be of a rather more partisan and client-focused character; the product of a working lawyer responding to the particular and very specific circumstances of a single case or the needs of a single client.16 Some of the documents within Fulgosio’s consilia collections are, for instance, effectively opinions directed towards advocates or procurators involved in a case who had sought out Fulgosio’s advice. This class of document would by their nature not be necessarily concerned with the eventual outcome of a trial or even any general

16 This distinction between the different types of consilia, and in particular that between the quasi-judicial consilium sapientis and consilia written “pro parte” has been stressed by Mario Ascheri. See, for example, Mario Ascheri, ‘I consilia come acta processuali’ in: ed. Giovanna Nicolaj, La diplomatica dei documenti giudiziari (dai placiti agli acta-secc. XII–XV). Bologna, 12–15 settembre 2001, (2004), 310–311. Introduction 13 point of legal principle that it might prove or sustain. Instead they primarily represented a sub-set of justice which was concerned to see that each litigant in a trial had a fair hearing and was able to put his or her case as effectively as possible. Providing arguments to support one side in a case in this way, either directly as that party’s advocate or in an advisory capacity towards that party’s counsel, was to fulfil one element of justice which the trial as a whole would represent more fully in all its collective procedural stages right through to any appeal and pronouncement of final verdict. Partisan arguments could therefore be presented by a jurist like Fulgosio safe in the knowledge that lawyers acting for the other party would complete the overall legal picture17 and that justice in its more ample sense would thus be ultimately and rightly served. Fulgosio was also bound by the overarching obligation of jurists of the ius commune to uphold the principles of due process and this included ensuring that each opposing point of view in a dispute or party in a case should have an adequate legal defence. To achieve that in the context of a variety of different client circumstances and case details might entail defending positions which were inconsistent with the views which Fulgosio may have personally expressed elsewhere. On more than one occasion at the Council of Constance, as will be seen below, Fulgosio was required for example to defend legal positions which he himself either did not hold or about which he was ambivalent but which were necessary for the party for whom he was then acting. Care should therefore be exercised in reading Fulgosio’s consilia before ascribing particular private views, particularly political opinions, to the jurist. Similarly, what may appear to be examples in different texts of ideological inconsistency or indecisiveness on the part of Fulgosio may simply be the result of the jurist working in different contexts and under a different set of professional obligations. As a composer of consilia he had not necessarily been commissioned to provide an authoritative judgement on an abstract or theoretical question of law but could have been engaged by a client more for his talents in textual reinterpretation or rhetoric; skills which could help that

17 Manlio Bellomo has underlined the extent to which jurists would have encountered on a daily basis legal questions with students or clients which would have required matching legal texts to the facts of a case in the knowledge that that matching process was only one possible solution amongst others; cautioning the students of consilia today accordingly about this element of the incomplete which such documents might contain. See: Manlio Bellomo, ‘Factum proponitur certum, sed dubium est de iure’, in: ed. Idem, Die Kunst der Disputation. Probleme der Rechtsauslegung und Rechtsanwendung im 13. und 14. Jahrhundert, (Munich: Oldenbourg, 1997), 21. 14 Introduction client’s cause to proceed more successfully before the courts or allow it to escape from a legal cul de sac into which the case had inadvertently stumbled.18 Wherever possible, therefore, the context within which the jurist was employed when he wrote his text must be sought out: who his audience were, if a legal process was involved and at what point within it did Fulgosio make his contribution and why, and whether his work was written in conjunction with that of other jurists.19 Contextualising in this way can also help to expose subtleties within Fulgosio’s position which were occasioned by any conflict between his own private views on the one hand and what was required of him as a working lawyer in a given set of circumstances, on the other. This is all the more important if the capacity for dissimulation present in Fulgosio’s age is to be appreciated. As this work will have several occasions to show, saying

18 See, for example, the discussion of the use of interpretation and rhetoric by lawyers in certain inheritance cases studied by Thomas Kuehn in: Thomas Kuehn, ‘A Late Medieval Conflict of Laws: Inheritance by Illegitimates in Ius Commune and Ius Proprium’, Law and History Review, 15 (1997), 271–272. In analysing local statutes which permitted certain illegitimate children from inheriting their parents’ estate, Kuehn noted how that instead of contrasting those statutes with the ius commune’s declared opposition to them, jurists worked instead to interpret them and that “interpretation reflected the interest of their client or of the court that sought their expertise.” (ibid., 271). 19 Kenneth Pennington has drawn attention to the need for greater sensitivity to the terminology used by jurists in consilia to describe the nature of what they were doing; and noted how words like consulere and allegare had specific meanings with respect to the context in which the jurist was working (see: Kenneth Pennington, ‘Allegationes, Solutiones, and Dubitationes: Baldus de Ubaldis’ Revisions of his Consilia’, in: ed. Bellomo, Die Kunst der Disputation, 40). The terminology which jurists used was also not necessarily their own but could simply be a function of the procedural point which a case had reached when documents were submitted to them for consideration. Allegationes were, for example, a standard procedural document in the court process presented to a court by both sides which mixed both factual and legal points (to which a jurist might have contributed), whilst Dubia can be understood as legal points arising in a case which required a jurist’s expertise to clarify. For the timing of allegationes within the court process at Padua, for example, and their procedural relationship to the appointment of consulators, see: Sven Ufe Tjarks, Das „Venezianische‟ Stadtrecht Paduas von 1420: Zugleich eine Untersuchung, (Berlin: Akademie, 2013), 359. For the appearance of both allegationes and dubia in archival documents relating to a case before the rota romana, see: Martin John Cable, ‘Resolving benefice disputes after the Great Schism: The survival of the council of Constance’s 4 July 1415 decrees ‘Omnia et singula’ and ‘Pro majori pace’ in two disputes from Auch and Rieti brought before the rota auditor Gimignano Inghirami at the time of the council of Basle’, AHC, 38 (2006), 321, 385 & 394–395. Introduction 15 something which was at odds with one’s own views or intentions, or masking them in some way, was often an unavoidable necessity or a prudent precaution. Jurists like Fulgosio were however not simply lawyers constrained by the particular circumstances of a case or client to argue in a particular way even against their own private convictions nor were they simply the passive providers of legal opinions on demand to shore up a client’s position in return for a fee. They were also the guardians and developers of the principles contained within the ius commune; the collectively-accumulated, transnational body of legal wisdom and jurisprudential best practice which united much of the medieval legal world. The precise character which this unity took has been the subject of some scholarly debate. One school of thought would see the ius commune as having constituted a relatively systematic body of legal thought which, by virtue of its defence of a common set of legal standards, stressed its superiority over examples of innovative local legislation whilst also frus- trating attempts by states and princes to marginalise private rights.20 Another viewpoint sees the unity which the ius commune offered as less systematic or insistent on its superiority. Instead it is seen to have encompassed a pluralism of authorities, with local legislation for example happily co-existing with the universal teaching of the ius commune even when the two were contrary. It would also be characterised by a greater degree of indifference with regards to the relationship between ascendant political power and the law.21 However that one views the nature of the unity which the ius commune brought it nevertheless represented a common set of legal principles towards

20 See, for example, Calasso, Medio evo del diritto I. Le fonti, (Milan: A. Giuffrè, 1954), 453– 466; 469–501 and the modification of the thesis by Manlio Bellomo, The Common Legal Past of Europe 1000–1800, trs. Lydia G. Cochrane, (Washington DC: Catholic University of America Press, 1995), 149–186 who, in place of a stress on the hierarchical supremacy of the ius commune, emphasizes its role as a body of standard terms which lawyers and judges could not ignore or practically work without even if they were not always applied in practice or were contradicted by local law. Also see the analysis of Ennio Cortese of the development of perceptions of Roman Law from being a definitive set of unitary rules to a body of jurisprudence providing instead support for the ius proprium, particularly in providing completeness where that was lacking in the ius proprium: Ennio Cortese, Il diritto nella storia medievale, (Rome: Il Cigno Galileo Galilei, 1999), II: 392. 21 I have in mind here particularly the arguments advanced by Paolo Grossi in contrast to those of Francesco Calasso: Paolo Grossi, L’ordine giuridico medievale, (Bari: Laterza, 2012), 50–52; 223–229; 233–235 and in: Idem, ‘Il sistema giuridico medievale e la civiltà comunale’, in: ed. Andrea Zorzi, La civiltà comunale italiana nella storiografia internazionale, (Florence: Firenze University Press, 2008), 1–18. Also see: Kuehn, ‘A Late Medieval Conflict of Laws’, 245–246. 16 Introduction which a jurist like Fulgosio referred even when he was working in a partisan capacity for a specific client. His work in that professional, private capacity was always undertaken in the context of the discipline and standards of the ius commune which he and other jurists superintended; even if those principles may indeed have permitted a greater degree of latitude in terms of the acceptance of contradictions and welcoming pluralism than would necessarily be understood by the notion of standards and principles today. One way in which the nature of the unity which the ius commune represented can be examined is to consider the extent to which its principles and teaching were systematically applied by jurists outside the classroom to the ‘real world’ examples of legal questions and cases which came before the courts. Did jurists insist, for example, that the verdicts which both their quasi- judicial and partisan consilia in their different ways recommended that judges should hand down be systematically subject to the principles of the ius commune; or were those principles less like a source of superior authority to which judgements should defer and more like a pool of resources from which a jurist could draw in order to make his case. In other words, instead of citing a principle of the ius commune as an authority to which a judgement should adhere because that principle was authoritative and the ius commune was universal, the principle was invoked in order to help support an argument whose primary methodology was rhetorical or interpretational. A jurist might, for instance, adjust the ‘meaning’ of a particular text in a case through semantics and interpretation, with that argument being supported by reference to a principle drawn from the ius commune. In part such considerations about whether the principles of the ius commune were a source of superior legislative authority or merely a pool of resources to be used by jurists were simply a reflection of the dual lives which many of them lived as both university professors and working professionals.22 In the former incarnation there was much greater scope for a jurist to defend, formulate and make declarations of principle, whereas in his provision of legal advice to a party in a case before the courts his rhetorical and interpretational

22 See, for example, Thomas Kuehn’s characterisation of the contrast between the lecture hall where a jurist’s output might be likened to the Anglo-Saxon system of judicial review but whose work in the court room might resemble instead a series of rhetorical tools used “to advance a client’s cause in the name of justice”. Kuehn, ‘A Late Medieval Conflict of Laws’, 272; and Manlio Bellomo’s discussion of the interplay between theory and practice with respect to the ius commune and the role of the “theoretical content and methodolog- ical tools” of the latter in shaping the “professional mentality” of the practical, working jurist: Bellomo, Common Legal Past, 185–186. Introduction 17 skills may have been more valued with that situation itself also not necessarily demanding of him that he audit both his client’s cause and the case in general for any universal principles on which it touched or contained, whilst nevertheless being unable to escape his own awareness of the existence of such principles. Clearly a certain sense of general obligation always weighed on a good lawyer to recognise the universal theme or principle in the very particular, private case on which he provided advice or with which he was involved. This was part of, in short, the province of what would be now termed professional ethics. The requirement, for instance, to present a client’s case in the best light either in consilia or more directly as an advocate could never totally abrogate a jurist’s obligations to uphold the universal principles of the law. Advocates, for example, had been historically obliged to swear an oath not to defend cases which they knew to be unjust and although this specific practice had fallen in to disuse, a general understanding remained that on appointment to office an advocate became subject to certain professional obligations regarding his disputational conduct.23 Questions of professional ethics were not however confined to the jurist’s role as an advisor for clients or courts but also informed his role as a teacher and his other professional guises. One could even speak of a jurist as representing in his own person a continuum of different identities, each exposed to a slightly different set of ethical obligations as the jurist’s position on that continuum moved from the more objective and abstract roles of university professor or quasi-judge to the more subjective and practical employments of partisan advisor or legal representative. As a pure theorist working in his class room or private study, for example, the construction of new or better solutions to legal puzzles, harmonised with existing collectively-established legal wisdom and contributing to its gradual accumulation was the jurist’s goal; as well as potentially the development and expression of his own private theories on the Law more generally. As a writer of certain types of consilia, he might be obliged to be similarly objective in his provision of a quasi-judicial, definitive ruling on a particular case or legal question which would blend together the novelty of his solution with existing legal teaching; however in another consilium his professional identity might switch to that of a more subjective and partisan assistant in the defence of one party in a suit but who nevertheless still retained professional obligations to the universal principles of law. In a further different guise, that of a good teacher, his

23 See: Raffaella Bianchi Riva, L’avvocato non difenda cause ingiuste. Richerche sulla deontolo- gia forense in età medievale e moderna, (Milan: Giuffrè, 2012), 30–64. 18 Introduction vocation was to prepare the next generation of lawyers. This may have involved educating those students in opinions which he himself did not personally share but which would be useful for them in their future careers either to use or at least know. This requirement to teach ideas which he did not necessarily share formed part of his wider professional obligation to see that the Law’s courts, chambers and lecture rooms remained staffed by officials who were not only effective practitioners but were also themselves ethically robust and able to distinguish between private opinion and collective legal wisdom themselves. Finally, at the more partisan end of the continuum, the jurist employed as an advocate before the courts had his moral identity determined by the successful harmonisation of, on the one hand, his obligation to plead his client’s cause well and, on the other, the greater and more universal causes of due process and justice which presenting that particular case as effectively but also as justly as possible was itself one constituent part. At one or other point in his life Raffaele Fulgosio performed all of these professional roles and this reality is reflected in his collective works. CHAPTER 1 Podcasts from the Past

Perhaps it was simply boredom, or the fastidious nervousness of someone who feared that he might otherwise omit something important. Whatever the explanation for his actions, the present book has much to thank the anonymous scribe who, some 600 years ago, kept such an accurate but often apparently undiscerning record of the lessons taught by Raffaele Fulgosio. Where others might have transcribed only the master’s lectures on the vast text of the civil law, this scribe often also recorded the more informal asides, comments and opinions made by the lecturer to his students in early fifteenth century Padua. And thanks to the accidents of publishing history, these conversations from inside a medieval classroom can still be read, centuries later, within the four printed volumes of Fulgosio’s commentaries on the law. Fulgosio’s remarks could be mundane. A report about the weather, for example, or a comment about how far his class had progressed, or not, through the timetable for the course which they were studying. However the jurist also commented about political events, reminisced about his own life or discussed his professional output as a lawyer. Taken together these remarks have the power therefore to transport us back across the centuries and allow us, as it were, to sit beside the overly diligent scribe in that far-off classroom in late medieval Padua and re-live the lessons which Fulgosio once taught. Seemingly very dry legal documents therefore come alive as a recording of the daily reality of a late medieval lawyer-professor at work in his classroom; explaining the meaning of a particular law for his students, for example, or sharing an anecdote with them from his life or professional work beyond the classroom for his clients or before the courts.1 This ancient ‘podcast’ is not, however, an easily accessible source. That the voices recorded in it can still be heard at all is also thanks to the seemingly unintentional choices made by Fulgosio’s later publishers and the meandering

1 It is the argument of this book that the anecdotes and remarks contained in Fulgosio’s commentaries are indeed those of the jurist and do not represent, for example, student marginalia which are also known to feature in such texts. Many of the remarks can be corroborated by known facts from Fulgosio’s life or make sense only in the context of a lecturer discussing matters with his students. In the few cases where remarks in the commentaries could potentially derive from a different source (for example in student annotation of the text) they will be pointed out below.

1.a The Print Tradition of the Commentaries

The works in which the record of Fulgosio’s teaching is contained are his lengthy commentaries on the two main texts of the civil law corpus: the Codex of the emperor Justinian and the Digestum vetus. Both works were commonly subdivided in to two volumes and this subdivision had its own effect on the route which Fulgosio’s commentaries took from manuscript to print since the texts were not all published together. All four volumes were printed at different times and fell prey as a result to varying degrees of editorial intervention and modification. The first commentary text to be published was the second volume of Fulgosio’s commentary on the Digest which emerged from the Brescia press of Angelo Britannico in 1499. Britannico had earlier worked as a publisher in Padua and, like his brothers, had quite possibly studied at the university there in the 1470s.2 It seems perfectly conceivable therefore that Britannico acquired the manuscript on which his edition of volume two of Fulgosio’s Digest commentary was based whilst he or his brothers were students in Padua or at a later date as a result of friendships which they had forged during their time there. At the very least this would allow the possibility that this first edition derived from a manuscript source from the city where Fulgosio had taught seventy years before and perhaps from someone who once had a connection to him. In comments at the end of his 1499 volume, Britannico stated that a fellow lawyer from Brescia, Nicolò Villa, had edited the text and added that, were there to be enough interest in the current edition, he also had further volumes of Fulgosio’s lectures and those of his one-time colleague at Padua university, Raffaele Raimondi, to offer to the public.3 Britannico was furthermore in possession of a licence from the Venetian authorities to print them. If the lectures to which Britannico was referring were volume one of Fulgosio’s Digest

2 On Britannico: Giuseppe Nova, Stampatori, librai ed editori bresciani in Italia nel Cinquecento, (Brescia, 2000), 117. For an overview of the publishing history of Fulgosio’s Digest commentary: Giovanna Murano, ‘Raffaele Fulgosio (1367–1427)’ in: Idem and Giovanna Morelli, Autographa. I.1. Giuristi, giudici e notai (sec. XII–XVI med.), (Bologna: CLUEB, 2012), 146–147. 3 Raffaele Fulgosio, Lectura ingeniosi acutissimi que iure consulti domini Raphaelis Fulgosi Placentini super secunda parte ff. veteris, (Brescia: A. Britannico, 1499) (British Library ISTC: IF00330000), no pagination but final folio. Podcasts From The Past 21 commentary then it would appear that he was unsuccessful in bringing them to print since no edition of the first part of the Digest subsequently appeared, although an edition of Raffaele Raimondi’s work was printed a year later by a different publisher in Venice.4 Fulgosio’s Digest commentary therefore had to wait almost another half a century before it finally appeared in print in full. The first volume of this edition of the Digest appeared in Lyon in 1544 under the imprint of Hugues de la Porte who obtained a licence in August 1544 from the Paris parlement to publish courses of civil and canon law and the monopoly to print Fulgosio’s works for the next six years. The works were to be printed, the licence declared, in large, fine volumes with good characters and to be well-edited.5 What precisely this might mean is a moot point, for the edition of Fulgosio’s Digest commentary which saw the light of day from Porte’s press included many of the conversational asides and verbatim remarks which afford such an insight in to Fulgosio’s class room. It is however by virtue of the oversight or insouci- ance of the editor, or perhaps even the speed with which the volume had to be completed following the granting of a royal licence, that the podcast-like record of some of Fulgosio’s lessons has been preserved. This record does not however appear uniformly across the commentaries. Volume II of the Digest in particular contains much less class-room based material. It is possible that this reflects a change in editorial tone due to de la Porte having worked from two different sources and using an original manuscript or manuscripts for volume I, whilst basing volume II on an updated version of Britannico’s original 1499 edition. Volume II of de la Porte’s work is indeed almost identical to Britannico’s edition with only a small number of corrections from the earlier text and, interestingly, the deletion of some non- teaching comments made by Fulgosio.6 The edition does however contain at least one comment not in the edition printed in 1499 which suggests that de la Porte had a manuscript source identical to that used by Britannico but

4 Raffaele Raimondi, Commentaria super prima parte ff. novi, (Venice: B. Staginum, 1500). 5 Henri-Louis Baudrier, Bibliographie lyonnaise. Recherches sur les imprimeurs, libraires, relieurs et fondeurs de lettres de Lyon au XVIe siècle, (Paris: F. de Nobele, 1964), VII: 266–267. 6 For example, a Boccacio-esque tale of an unchaste bishop appears at the end of book thir- teen after the text ‘Titius’ [Dig.13.7.43.1] in Britannico’s 1499 volume but is absent in the 1554 volume (DIGEST II, 93r). The underlying similarity of the two editions and probable common manuscript source is evidenced for example by the appearance of Fulgosio’s conversational reference to lessons which had taken place ‘yesterday’ or the remark that ‘the day before (“pridie”) the class had broken up’ which appear in both editions within the text ‘Per liberam’ [Dig.13.7.11.6]. Numerous other texts are also identical in both editions. 22 CHAPTER 1 which contained items which the Brescia printer had decided, for whatever reason, to omit.7 The two printers may therefore have worked from the same or a very similar manuscript source for volume two of the Digest commentary and reached slightly different conclusions on which of Fulgosio’s occasional non-teaching comments to retain and which of them to remove. Volume I however may have only ever existed as a less well-edited and imperfect manuscript8 and proved rather more problematic for the printers to set as a result. Britannico may have been discouraged from printing it, choosing instead to publish the more straightforward volume II first and then never returning to back-fill his edition of the commentary with a version of volume I;9 while de la Porte may have been keener to market a complete set of volumes even when this meant including a version of volume one which contained more of Fulgosio’s marginalia. Whatever the precise provenance of the two editions, it is largely in the two volumes printed by de la Porte in 1544, together with the reprints which appeared ten years later and following the expiry of de la Porte’s royal licence by the Grande Compagnie des Libraires which had been formed three decades earlier in Lyon by Italian immigrants and of which de la Porte had been a leading member, that Fulgosio’s commentary on the Digestum vetus is now best known. And we can only be grateful for whatever printing tradition it was that caused those two volumes, henceforth referred to as Digest I and Digest II,10 to be so different in tone. For it is in Digest I that so many of Fulgosio’s recollections of his time at the Council of Constance are contained and it is easy to imagine that these, to sixteenth-century eyes, largely academic remarks might easily have been erased by a more zealous editor preparing what was supposed to be a well-edited and fine course book for legal study.

7 The remarks are those concerning Santa Lucia discussed below, at pp. 100–101 which are absent in Britannico’s 1499 volume. 8 In addition to the greater number of Fulgosio’s class-room comments and other reflections, Digest I also includes a repetitio which Fulgosio gave in Siena and the complete text of a consilium relating to the town of Marostica: DIGEST I, 126r. This would suggest that the manuscript edition of the commentary was a more disorderly set of documents, which perhaps had, at some point, become bundled together. 9 Perhaps Nicolò Villa had purged volume two of such comments when Britannico brought the work to print but had not repeated his endeavours with volume one. 10 All references to ‘DIGEST I’ or II in this book refer exclusively to the Lyon 1554 reprint of the commentaries unless otherwise indicated. The volumes were printed for the company by Claude Servain. Podcasts From The Past 23

In contrast to the Digest commentary, Fulgosio’s work on the Codex was published rather more straight forwardly. It only ever appeared in a single edition; again divided in to two volumes and published by Hugues de la Porte in Lyon in 1547 at the printing press of Stephanus Rufinus and Joannes Ansultus.11 In his preface, de la Porte mentioned that this work had not been produced from a single surviving exemplar but had instead been assembled from more than one source.12 A similar history may well have lain behind the appearance of Digest I. Certainly both of the Digest and Codex commentaries sold well for de la Porte and the Grande Compagnie in Lyon. In his account books for 1567 and 1569 the printer recorded that 410 peciae of Digest II had been sold at £14 6/- each whilst works which he identified as ‘Lectura’ or ‘Opera Fulgosii’ but which were presumably the Codex had sold a total of 1,546 copies at £3 10/- per copy.13 The fact that the works were counted in peciae, the short sections in to which manuscripts were historically subdivided for later binding by their owners, makes it difficult to assess how many complete volumes de la Porte was selling at this time. The difference in unit price between the Digest and ‘Lectura’ (they cost approximately four times as much) would suggest that the peciae were possibly of different lengths.14 Something like three dozen copies of both the Digest and Codex survive in libraries across Europe today15 which would

11 See Baudrier, Bibliographie Lyonnaise, VII: 319. As with the Digest, the two volumes of the Codex commentary will hereafter be referred to as Codex I and Codex II. 12 “Nam cum exemplar illud, quod primum gravissimo et olei et operae dispendio ex Italia afferri curaveram, multis in locis mutilum, ubique autem depravatissime scriptum depre- hendissem, nihil mihi de editione tentandum existimavi, nisi prius quantum potuissem exemplarium copiam undique et precibus et pretio contraxissem: ut quoniam ex codicis unius imitatione absoluta editio confici non posset, ex multorum certe collatione eam assequeremur.” CODEX I, unpaginated. 13 Jeanne-Marie Dureau-Lapeyssonnie, ‘Recherches sur les grandes compagnies de libraires lyonnais au XVIe siècle’, in eds. Roger Chartier et al., Nouvelles études lyonnaises, (Geneva: Droz, 1969), 52–53. 14 In an inventory of books belonging to Pierre Lizet made on 15 June 1554, a work described as the latest edition of ‘Lectura Fulgosi’ and bound in four volumes was valued at £4 10/-. Louis Doüet d’Arcq, ‘Prisée de la bibliothèque du Président Lizet en 1554’, Bibliothèque de l’École des Chartes, 37 (1876), 378). A separate single, apparently unbound volume of the Lectura was also in Lizet’s library and valued at only 7s/6d (ibid., 375) which may suggest it was only a section from the whole work. 15 I count the following editions of the Lyon Digest and Codex commentaries surviving today (those volumes consulted by the author are marked: ): DIGEST (41 copies): Belgium [KBR Brussels], Denmark [UB Copenhagen], France [BnF Paris; BNU Strasbourg], Germany [HAB Wolfenbüttel; UB Rostock; UB Helmstadt; 24 CHAPTER 1 translate to a survival rate of anything from considerably less than 10% to as much as perhaps 20% or more.16 Whilst the history of how Fulgosio’s works ultimately came to be printed may well explain why Digest I in particular preserves more of the jurist’s conversational or informal remarks than the other volumes, it is also conceivable that the differences evidence a real change in tone on the part of Fulgosio himself as he taught different parts of the law at different times. They may be the result of a teacher who adopted a more casual tone with one group of students, but who was at other times more restrained. It is also possible that Fulgosio taught different classes, some more advanced than others, at different stages in their study of the law with the resulting difference in tone, at times approachable and friendly, at other times distant and more scholarly, being captured in the manuscript tradition and then passed on in the printed volumes. In the form in which they have come down to us, therefore, Fulgosio’s legal commentaries are complex, multilayered texts and should be treated with caution as source materials. A variety of influences have affected them across time: the different editorial approaches adopted by different publishers across the fifteenth and sixteenth centuries, the different manuscript traditions from which the later printers worked and, deeper still beneath these archaeological layers, perhaps genuine differences in tone within those manuscripts themselves reflecting changes in Fulgosio’s own teaching techniques or

StB Hamburg; ULB Halle; UB Griefswald; UB Augsburg, StB Munich; UB Giessen; StB Augsburg; StadtB Mainz; UB Tübingen; UB Freiburg], Italy [Bib. Civ. Arezzo; Bib. Forteg. Pistoia; Bib. St. Lucca; Uni. Studi. Milan; Bib. com. Pass.-Land. Piacenza; Bib. St. Cremona; Bib. uni. Pisa; Bib. Manfr. Faenza; BNC, Bib. Casan. & Bib. Vallic. Rome; Bib. dioc. Narni; Bib. civ. Vicenza; Bib. Uni Bologna; Bib. Univ. Pavia], Netherlands [UB Leiden; UB Utrecht; Tresoar Leeuwarden], Spain [Madrid], Switzerland [UB Basle; Méd. Valais Sion], UK [BL London; Cambridge UL; Peterborough Cath.]. CODEX (36 copies): Austria [ÖNB Vienna], Belgium [KBR, Brussels], France [Bib. Mun. Avignon; BnF Paris; B St Gen., Paris], Germany [HAB Wolfenbüttel; FB Gotha; UB Osnabrück; DomB. Hildesheim; SUB Göttingen; UB Hamburg; StB Berlin; ULB Halle; UB Erlangen-Nürnburg, StB Munich; StadtB Mainz; UB Tübingen], Italy [BNC, Vallic. & Bib. Scien giurid. Rome; Bib. uni Pisa; Uni. Studi. Milan; Bib. prov. Genoa; Bib. Uni Bologna; Bib. civ. Fermo; Bib. dioc. Narni; Bib. civ. Vicenza], Netherlands [UB Leiden; Tresoar Leeuwarden], Spain [Bib. nac. Madrid; Bib. Univ. Valladolid], Switzerland [UB Basel], UK [Cath. Lib, Cantab.; Oxford (3 copies)]. 16 If we assume that the price of the lectura or opera represented their being c. 4 times smaller than the Digest copies and that those copies themselves were, for example, sub- divisions of the complete commentary, then 205 volumes of the Digest and 193 of the Codex results. Based on the number of surviving editions mentioned above this would yield 20% and c. 18.5% respectively. Podcasts From The Past 25 the type of students to whom he was lecturing. Equally, the scribe keeping the record of those lessons may have changed and a more discerning, self-editing individual taken over the pen from his more unquestioning predecessor as lecture note-keeper. The multiform, overlapping nature of the commentaries may help to explain why later authors have come to quite divergent assessments of their scholarly value. No less an authority than Friedrich Carl von Savigny for example, writing in the 1830s, praised Fulgosio’s commentary on the Codex in particular as a formally planned book and not simply a collection of lecture notes;17 an assessment which Woldemar Engelmann a century later considered to be quite wrong. Referring specifically to Fulgosio’s commentary on the Digest rather than the Codex, he drew attention to the many student comments and asides which it contained and how it was not at all like the serious legal work which Von Savigny had once eulogised.18 Whilst one would on the whole agree more with Engelmann’s overall analysis, both his and Von Savigny’s assessments can perhaps be reconciled by noting the multi-layered and changing character of the commentaries, with certain sections within them containing significantly more evidence of teaching remarks than others.

1.b Manuscript Sources for the Commentaries

Fortunately manuscript sources for some sections of the commentaries survive and can be used to help distinguish between some of the layers within the commentary texts. In addition to copies of repetitiones which Fulgosio gave on specific single texts of the legal corpus,19 his commentary on the first four chapters of Digest I survives in a Venetian manuscript20 whilst a version

17 Freidrich Carl von Savigny, Geschichte des römischen Rechts im Mittelalter, (Heidelberg: J.C.B. Mohr, 1831), VI: 241. 18 Woldemar Engelmann, Die Wiedergeburt der Rechtskultur in Italien durch die wissen- schaftliche Lehre, (Leipzig: K.F. Koelhers Antiquarium, 1938), xx. 19 A CODEX I text, ‘Cum mota inofficiosi’ [C.2.4.6], is in: ms. Collegio di Spagna, Bologna, 255, 6r–7v, another lesson on ‘Si pater’ [C.6.25.4] is in Madrid (ms. Biblioteca Nacional de España, 2146, 29r–34v) and dated as having been given in 1409: “Clarissimus vir dominus Raphael de Fulgossis de Plazencia dictam repetitionem fecit anno domini mill.° cccc° ix°” ibid., 34v. In the Vatican a repetitio on ‘Summa trinitate’ [C.1.1.0] survives (Biblioteca apostolica vaticana, Lat. 10726, 511), and a further repetitio is in Turin (Biblioteca nazionale, F III 3). Finally, Fulgosio’s analysis of C.6.28.4 is printed in: Repetitiones diverse excellentissi doctorum, (Venice, 1532), III: 2, 124r–128r. 20 ms. Biblioteca Marciana, Zan 513 (=1662). For a description of the manuscript: Joseph Valentinelli, Bibliotheca manuscripta ad S. Marci Venetiarum, (Venice, 1870), 4–5. 26 CHAPTER 1 of his analysis of Digest II is still in Padua.21 A Münster manuscript destroyed by bombing in the Second World War would also appear to have contained Fulgosio’s commentary on three books of the Codex;22 whilst a series of recol- lectae of Fulgosio’s lectures on book six of Codex I survives in Seu d’Urgell.23 The partial version of Digest I now in Venice is datable to the academic year of 1423–24. The text’s scribe recorded, for example, that, having reached a certain point in their ‘ordinary’ lecture course on 20 December 1423 teaching for the year came to an end for the Christmas vacation. By the following May the class had reached further in their studious journey through the canons of the civil code when the manuscript shows that Fulgosio’s long-term friend and beadle, Arcangelo de’Medici, made his end of term collection.24 This neat picture of Fulgosio working his way through the texts of the civil law with his pupils in 1423/4 is contradicted somewhat by other references in

21 ms. Biblioteca capitolare, D20. For a description of the manuscript: Silvio Bernardinello, Catalogo dei codici della Biblioteca Capitolare di Padova, (Padua: Ist. per la Storia Eccl. Padovana, 2007). 22 The manuscript, ms. Universitäts- und Landesbibliothek, Münster 153, appears in the catalogue of 1889 as “Raphaelis Fulgosi quaestionum practicarum libri VII, VIII, IX” with an incipit “Quomodo et quando Iudex pro(ferre) debet partibus absen(tibus)” and an explicit; “infamis et extra ordinem” located on a mutilated final folio. (Joseph Staender, Chirographorvm in regia bibliotheca pavlina Monasteriensi Catologvs, (Bratislava: G. Koebner, 1889), 130). This would appear therefore to be not a set of questions or consilia but instead to be Fulgosio’s commentaries on books 7–9 of the Codex starting at C.7.43, “quomodo et quando judex sententiam proferre debet presentibus”, and continuing to C.9.45.2 which includes the text “eo qui destitit infamia nihilo minus notando et extra ordinem”. 23 Antonio García y García et al., Catálogo de los manuscritos jurídicos de la Biblioteca Capitular de la Seu d’Urgell, (Seu d’Urgell: Bisbat d’Urgell, 2009), 367 regarding Ms. 2117. Also see: Paola Maffei, ‘I codici urgellensi e la giurisprudenza italiana fra Tre e Quattrocento. Appunti su alcune particolarità’, Tijdschrift voor Rechtsgeschiedenis, 78 (2010), 392. 24 ms. Biblioteca Marciana, Venice, Zan 513 (=1662), 104v & 156r. The university’s general beadle also made his collection on 5 May 1424 at ibid., 151v; while the class broke up for the spring vacation on 14 April 1424 at: ibid., 150v. The university had both general beadles and individuals who effectively worked for one lecturer. An indication of the kind of duties required of them comes from a rule approved by Fulgosio and other lecturers at the University of Pavia in 1395. Beadles were to inform students of the date and time of each class, look after their books or procure them for students and to make sure that the windows of classrooms were kept closed to keep the rain from scholars’ books. (Rodolfo Maiocchi, Codice diplomatico dell’università di Pavia, (Pavia, 1905), I: 245). A certain number of collections from students for these services a year were allowed at set dates. On beadles at Padua, see: Pietro Verrua, ‘Studenti, librai, strozzini, bidelli e dazio’, in: La Bibliofilia, 6 (1928), 223–228. Podcasts From The Past 27 the manuscript. At a different point in the text to the first record of Christmas arriving in 1423, the scribe records that having reached the text Dig.1.14.1 Fulgosio brought his ‘extraordinary’ lectures to an end for the Christmas break on 20 December 1423.25 In other words, on that same December day Fulgosio had apparently been teaching two classes and had reached different points in the text when the time came to break-up for the winter. The question of Fulgosio’s ordinary and extraordinary teaching will be considered in the next chapter, however the indication that Fulgosio may at times have been lecturing two courses simultaneously at Padua, perhaps in the morning and afternoon, is a further reminder of the multi-layered nature of the source material in which his lessons are contained.26 In comparison to the manuscript version of Digest I, the surviving manuscript of Digest II is less easy to date but is a more internally consistent document. It was probably written in the academic year 1417/18. Evidence for this is located in the first half of the work, where Fulgosio’s temporary absence from Padua is mentioned. The jurist, a comment in the text records, had been in Venice but on his return had written up in his study the laws which his absence had not allowed him to teach in person and had given the results to the scribes.27 The picture which this comment gives is of a teacher called momentarily away from his classroom on business, with his pupils continuing to plough their way through the texts of the law in his absence under a locum. A sense of the steady progress through the corpus of law which the students’ course represented is also revealed by these remarks, with the class studying each law in the Digest in turn as the year went by and scribes maintaining a real-time record of those same lessons. Fulgosio was writing up in his study the lessons which he would have given had he not been called away in order that the copy of his teaching which the scribes had been keeping was complete.28 There may

Arcangelo Medici’s long service for Fulgosio and his appearance in a number of personal documents related to the jurist suggest that his duties were not only confined to the classroom and were those more of a general assistant. 25 ms. Biblioteca Marciana, Venice, Zan 513 (=1662), 38r. 26 There is also evidence later in the Venetian manuscript that it records lessons being led in 1425 by Marco Zacchi, perhaps in Fulgosio’s absence: ibid., 244r–245r. 27 “hic dom. Rapha. scripsit in camera leges quas obmiscit pro eundo venetias et eas dedit scriptoribus.” ms. Biblioteca Capitolare, Padua, D20, unpaginated but at: Dig. 12.6.8. 28 The possibility that the distinction between the terms scribe and stationer (those licensed to sell books) was to some extent blurred has been raised by Mary and Richard Rouse, ‘Dissemination’, 76. If this held in the case of the texts completed by Fulgosio on his return to Padua and handed to the scribes then the remark takes on a different sense and would depict a jurist involved in the production line of texts for the book publication industry. 28 CHAPTER 1 indeed have been mercantile reasons for this catch-up process: the resulting manuscript could be sold to students.29 The sense of the text representing a record of a class’s steady progression through the laws played out in real time is apparent again when, a little further on in the text, a lecturer identified only as Giovanni Francesco, but who was probably the known Paduan jurist, Gianfrancesco Capidolista is recorded as completing his stint as Fulgosio’s locum since the jurist had now returned from Venice.30 Capidolista’s appearance allows a date for the manuscript of Digest II to be suggested. He was exiled from Padua in August 1419 by the Venice authorities due to certain anti-Venetian comments which he had allegedly made and did not return to teach there until late 1421.31 His time standing-in for the absent Fulgosio must therefore have either pre-dated his exile or been after his return;32 and since Fulgosio is only recorded in the 1420s lecturing on Digest II in 1421/233 it would suggest that the manuscript was more likely a result of Fulgosio’s teaching prior to Capidolista’s exile and thus compiled in around 1417/18.

29 There were also fines for those lecturers who failed to teach a particular lesson: Denifle, ‘Die Statuten der Juristen-Universität Padua’, 470–471. 30 ms. Biblioteca Capitolare, Padua, D20, unpaginated, but at Dig.12.6.38. It is possible that Capidolista’s standing in for Fulgosio during the latter’s absence is the origin of the comment by Capidolista that he had once lectured concurrently with Fulgosio on the canon law (for the comment: Annalisa Belloni, Professori giuristi a Padova nel secolo XV: Profili bio-bibliografici e cattedre, (Frankfurt a.M.: P. Lang, 1986), 308). Whilst Capidolista had actually here taken over Fulgosio’s lessons on the civil law Digest and not a canon law course, this idea would support the suggestion that at least at this date, lecturing ‘concurrently’ might not necessarily only mean ‘in competition with’ but also ‘in combination with’ or ‘concurrently’; in this case with the students’ journey through the Digest being taken on by Capidolista while Fulgosio was momentarily absent. 31 Capidolista was denounced to the Venetian authorities by the bishop of Padua and his fellow Padua lawyer and professor Prosdocimo de’Conti: Donato Gallo, Università e signoria a Padova dal XIV al XV secolo, (Trieste, 1998), 55. On Capodilista’s return to Padua in November 1421, Fulgosio was one of three jurists charged with investigating owed examination fees which may indicate his involvement in the arrangements to rehabilitate Capodilista in to the teaching schedule. On the inves- tigation, see: Idem, ‘Lauree inedite in diritto civile e canonico presso lo studio di Padova (1419–1422, 1423, 1424, 1428)’, QSUP, 20 (1987), 32; Idem, Università e signoria, 32. 32 On Capidolista: Mirella Tocci, ‘Giovan Francesco Capodilista’, DBI, (Rome, 1975), XVIII: 638–640; Matteo Melchiorre, ‘Canonici giuristi a Padova nel quattrocento. Note su Antonio Capodolista e Giovanni Francesco Pavini’, QSUP, 44 (2011), 98. 33 Belloni, Professori giuristi a Padova, 307. Podcasts From The Past 29

Taken together with the existence of a manuscript in Madrid reproducing a lesson given by Fulgosio in 1409 on a single text within the Codex,34 therefore, a good range of datable manuscript sources exists against which to compare the printed editions of Fulgosio’s commentaries. This is also useful in order to detect whether Fulgosio’s comments changed over time.

1.c Dating the Sources of the Printed Commentaries

In addition to the manuscript sources, individual lessons reproduced in the printed commentaries can also occasionally be dated, both thanks to direct comments in the texts themselves and through indirect references. In Codex I, for instance, in a characteristic remark to his students ahead of their lesson for the day (“before I begin to discuss the next text, I wanted to let you know some news”), Fulgosio explained how he had just learned about an uprising in Bologna and wanted to report it to them. The jurist then speculated about the event’s effect on refugees from the plague.35 This must be a reference to

34 ms. Biblioteca nacional de España, Madrid, 2146, 29r–34v. 35 “antequam intrem in l. fi. (i.e. the next text in the chapter which they were studying – the next text which follows is then indeed the last of the section) volo vobis dicere unum novum, nescio si sit verum. Fertur quod civitas Bononiensis rebellavit Romane ecclesie: certe si est verum, ego sum propositi, quod epidemia, que ibi fuit per sex annos exulavit ab illa civitate. Nam ibi erit multis concursus gentium et armigerorum: tamen pro ea cum qua eam nescio quid sequatur, nondum tamen venerunt litere ab illis partibus, sed a quodam castro unius de Gonzadinis”. CODEX I, 121v. It is interesting that Fulgosio had obtained information from a castle belonging to the Gozzadini, a banking family and leading actor in Bologna politics whose plotted opposition to the papal legate Baldassare Cossa, the future John XXIII, had been suppressed in 1404 with the execution of Gabbione Gozzadini and the seizure of the family’s castles. The head of the family, Gabbione’s father Nanne, was forced in to exile often under the protection of Nicolò of Este, the Marquis of Ferrara. (See: Giorgio Tamba, ‘Nanne Gozzadini’, DBI, 58 (2002), 215–221). Fulgosio is known to have been assisted, as will be seen below, in travelling to Padua by Nicolò of Este in 1408 and the evidence of contacts with Bologna via the Gozzadini may indicate that Fulgosio’s ties to the Marquis brought him in to contact with the Bologna family. Fulgosio also wrote a consilium which in part concerned the estate of Nanne Gozzadini and the subject of the value to be put on Gozzadini possessions by the Bologna authorities at the time of their sequestration. The consilium must post-date Nanne Gozzadini’s death in 1407 but was presumably composed not too long thereafter and could thus be from around the same time that Fulgosio was receiving news from castles held by the Gozzadini. The consilium is in: Paulus de Castro, Consilia antiqua et nova, (Venice: J. & G. de Gregoriis, 1493), I: 134r–135v. 30 CHAPTER 1 the Ciompi revolt against the rule of Pope John XXIII in Bologna which began on 12 May 1411.36 If it is assumed that news of the uprising took a few days to reach Padua then Fulgosio must have been addressing his students around the middle of May in 1411.37 This is contradicted however only a few pages earlier in the same text, where Fulgosio remarked to his students that it was “25 years ago yesterday” that Bernabò Visconti was seized and taken prisoner in Milan.38 Since the coup to depose Bernabò occurred on 6 May 1385, this would date Fulgosio’s lesson that day to 7 May 1410. Fulgosio made this remark during a discussion of how errors of calculation should be treated by the law and it seems unlikely therefore that his reference to twenty-five years ago was simply the result of a scribal slip for the less significant anniversary of twenty-six.39 Two lessons which are found in close proximity in the Codex text and both took place in the month of May were nevertheless separated then by twelve months. One explanation for this anomaly would be that the Codex commentary was a text which built up over time with Fulgosio’s lessons being, as it were, laid over one another as he and his class made successive passes through the same corpus. As they proceeded through the text in 1410, Fulgosio’s scribe had registered the jurist’s commemoration of Bernabò’s capture; however when Fulgosio and his students passed through the same section of the law a year later, his comment about the ‘Ciompi’ revolt was recorded by the scribe. Together with the evidence from the 1423 manuscript of possible parallel lesson teaching, this may also suggest that Fulgosio was teaching ordinary and extraordinary lessons simultaneously and that these courses focused on different texts from the

36 Oreste Vancini, ‘Una rivoluzione di ‘Ciompi’ in Bologna 1411–1412’, Studi di storia e di critica dedicati a Pio Carlo Falletti, (Bologna, 1915), 565. 37 The situation in Bologna was still perceived from Venice to be severe in August 1412 when Gasparino Barzizza, at least one of whose sons studied under Fulgosio in Padua, forbade one of them to exchange Padua for Bologna university: Remigio Sabbadini, ‘Dalle nuove lettere di Gasparino Barzizza’, in: Rendiconti del R. Istituto lombardo di scienze e lettere, 62 (1929), 885. 38 “Nam heri fuerunt xxv anni quod magnificus d.d. Barnabo fuit captus in civitate Mediolani, die videlicet vi maii”. CODEX I, 114v. 39 I.e. “xxv” could have easily been misread for “xxvi”. However the argument which Fulgosio was making to his students in the text had already referred to a hypothetical birth happening at the time of Bernabò’s capture being wrongly cited in a text as having occurred twenty-nine years ago when it could only have been twenty-four given that the twenty- fifth anniversary was, Fulgosio noted, ‘only yesterday’. Fulgosio evidently knew the date of Bernabò Visconti’s capture by heart since he used it on a separate occasion as a reference point when recording an episode in his life when aged eighteen: see below, p. 52. Podcasts From The Past 31

Codex. Thus, one set of texts was studied in ordinary, detailed morning lessons and another set in the afternoon session; and the result of this parallel passage through the corpus became recorded in the text which has come down to us. Fortunately in addition to these pieces of direct dating evidence there are several comments in the printed Codex from which indirect dating evidence for lessons can be derived. Often these datable comments result from Fulgosio’s habit of bringing home the importance of a particular legal text for his students by sharing an example drawn from his everyday workload as a jurist. These are also some of the most human and intimate passages in the text and bring it alive as a simple record of a teacher captured in the process of instructing his students. Having discussed a legal text in more theoretical terms, Fulgosio would then explain to his students how he had once used an argument in practice similar to the one which he was now discussing with them in theory. On occasion Fulgosio refers to cases which he had argued in court as an advocate; however often his real world examples are drawn from his advisory and consilia work. Helpfully and in a way which vividly brings home the quality of the commentaries as a record of daily lectures, Fulgosio often also added an indication of when this had been by adding that his advice had been given ‘only the other day’, or ‘last year’, or ‘during the recent holidays’. When the particular case or consilium to which Fulgosio referred in this way can be identified, that case or consilium can be used to date indirectly the lesson in which Fulgosio mentioned it. Many of Fulgosio’s legal consilia survive and contain datable evidence to assist in this process. An example taken from the Codex commentary is illustrative of this indirect dating method. During his lecture on the text ‘si per impressionem’ [C.2.19.11], Fulgosio had just taught his students about a law concerning public officials who forcibly expropriated the property of citizens under their rule. He then continued: “And the same thing happened the other day (“pridie”) when I had to advise about a case from Genoa where the brother of a certain Consul from the island of Capua forced a Tartar to accept his daughter in marriage and to pay him a dowry.” Fulgosio then proceeded to explain to his students how the text ‘si per impressionem’ could be used to address this real-world example.40 He then showed his students how, although the particular law did not address the case directly, it could nevertheless be made to work by extension.

40 “et hic mihi contingit pridie consulere ex una causa ex partibus Janue. Quidam erat consul Capue unius insule: frater huius consulis per impressionem coegit unum Tartarum accipere unam suam filiam in uxorem et sibi dotem constituere, licet non daretur.” CODEX I, 99v. 32 CHAPTER 1

This is a good example of Fulgosio’s teaching style. The dry legislation which he was lecturing on was being brought to life for his audience by an example drawn from real life. He had also taught his students the useful legal lesson of how laws which were not directly relevant to a case could nevertheless be extended by rhetorical skill to fit that case. But when Fulgosio told his Codex students that he had given this legal advice “pridie”, when was this? To answer this it is worth registering that Fulgosio said pridie and not, as he would often do elsewhere, heri. “Recently” or “The other day” would probably be more appropriate therefore as collo- quial English translations. The date when he worked on the Genoa case can be identified by consulting Fulgosio’s printed and manuscript consilia and locating the document which he wrote on the occasion. One of these manuscripts, now in Madrid, relates to the then-Genoese possession of Feoydisia (or “Caffa” or ”Capua” as it was then styled) in the Crimea and a case involving a former consul there, Constantino Lercari, his brother Antoninico, a third individual named Steffano Matiros and a deposit which the latter had made with a Genoese bank as a dowry for a marriage to Antoninico’s unnamed daughter.41 The involvement of the bank and the status of the marriage made the case a complicated one which had run its jurisdictional course through the merchants’ and appellant court in Feoydisia and had now come before the bench of the then French governor of Genoa. This consilium is clearly therefore the same one to which Fulgosio referred when he discussed the text ‘si per impressionem’ whilst lecturing on the Codex to his students. That same legal text was indeed one of those which the jurist used in his consilium to discuss the position of the promise which Lercari had extorted from Matiros in order to argue that the deposit made with the bank was invalid.42 The consilium is dated as having been written in 141043 and therefore Fulgosio’s remarks to his Codex students about the consilium being one which he had only recently completed must have been made in a lecture either later that same year or in early in 1411. In addition to bringing back to life one of Fulgosio’s classroom teaching techniques, these remarks about his own consilia which are scattered through the commentaries are also insightful for their frankness. When read in isolation, for example, the ‘Feoydisia’ consilium is a dry legal document about the

41 Lercari is recorded as a consol in Feoydisia from 1404 to 1409 in: M. Canale, Commentari storici della Crimea del suo commercio e dei suoi dominatori, (Genoa, 1855), ii: 332. 42 ms. Biblioteca nacional de España, Madrid, 2146, 36r. 43 Ibid., 34v. Two documents referred to within the text of the consilium are dated as May 1408 (ibid., 35r) and help to confirm that Fulgosio wrote the consilium in 1410. Podcasts From The Past 33 validity of a bank deposit. Taken in conjunction with Fulgosio’s discussion of his consilium in his Codex lectures to his students however, the case comes alive and something of the underlying interest for contemporaries is revealed: a public official had abused his position to coerce a local subject to take his niece as his wife and to pay a dowry. In other words, through comments like these by the jurist about his own consilia a contemporary voice talking more frankly about legal cases in terms of their importance to people at the time can be heard. Furthermore these remarks can also reveal which legal aspects of the cases the jurist found most interesting or relevant and even indicate how successful or otherwise he felt that he had been in making his contribution to them. By reconnecting Fulgosio’s occasional remarks to his students about his own consilia and the surviving datable consilia themselves in this way a general picture of when Fulgosio was probably teaching the texts which have come down to us as the printed Codex commentary can be determined. These results are shown in the following graphs, in which the folio of the commentary, which I take as an approximation for how far through the text Fulgosio and his class had proceeded, is shown on the x-axis and the date on the y. The vertical blocks show date ranges for events referred to in the text with the period of Fulgosio’s stay in Constance outlined as a horizontal box. The broad picture is therefore of the two printed commentaries on the Codex arising from Fulgosio’s lectures prior to (Codex I) and immediately after (Codex II) his time at Constance. This overall picture does however contain one notable contradiction. Towards the end of Codex I the jurist humorously remarked with respect to a particular legal argument that he had never “in the forty-six years which I have spent in the Law” thought of the point which he had just made. “And you might think I am an old man, but I began to study the law when I was still only a youth”.44 If Fulgosio, as we shall see, began his legal education as a teenager in 1381/2 then forty-six years brings us to a time when Fulgosio was sixty years old and in the very last year of his life. The comment could therefore be an example of an elderly Fulgosio lecturing for the last time on the Codex and remarking on how he was still, despite his years, discovering new things within its texts every single day. This would also mean that the printed edition of the Codex I commentary consists of lectures which Fulgosio gave when he was first at Padua, augmented many years later when he passed through the same course in later life. If so, then the text could

44 “. . . et sic videtur dicendum quod cum iam anni xlvi versatus sum in legibus, nunquam cogitavi hec que nunc vobis dixi, ideo homo dietim aliqua cogitat. Nec tamen putetis ob hoc me ita senem: quia nondum pubes cepi audire leges”. CODEX I, 223v. 34 CHAPTER 1

CODEX I 1428 1426 1424 1422 1420 1418 1416 1414 1412 1410 1408 1406

1 9

Fol.: 16 30 36 46 56 58 71 80 99 109 112 114 117 121 123 163 167 223

CODEX II 1428 1426 1424 1422 1420 1418 1416 1414 1412 1410 1408 1406

Fol.: 17 28 35 38 53 53 64 68 82 89 99 105 128 133 139 149 152 159 165 187 187 207 227 247 252

DIGEST I 1428represent his accumulated lectures at Padua; a sort of repository of all his 1426years teaching the course kept as an official, definitive exemplar or even as 1424Fulgosio’s personal copy. It would have made as much sense then as now for a 1422teacher lecturing repeatedly on the same course to re-use the material which 1420he had first produced on arriving at the university. Other solutions are however 1418possible. Fulgosio’s reference to having spent forty-six years in the law comes 1416from a single instance of the number “xlvi” in the text which could be a copy- 1414ist or printer error, perhaps for “xxvi”, twenty-six, which would date Fulgosio’s 1412 1410 1408 1406

Fol.: 20 25 31 52 61 92 139 153 156 171 185 216 224 238 Podcasts From The Past 35 remark to c.1407 when he was only in early middle-age. If this or something like it were the correct date, then Fulgosio’s possibly jokey remark to his young students about his appearing to be old but that he was an early starter in life would also need to be taken on board. The weight of dating evidence would however suggest that the edition of the Codex which has come down to us in the printed commentaries predominantly originated with lessons which Fulgosio gave in the period from his arrival in Padua in 1408 to directly after his return from Constance in 1415. On a more detailed level, the evidence from Codex I in particular suggests that Fulgosio taught that course twice over the two academic years from 1409 to 1411, having perhaps lectured on the entire Codex once already since his arrival in Padua. It is known that studies in Padua in 1411 and the spring of 1412 were greatly disturbed by the threat of Hungarian invasion, with one scholar recording in February 1412 that he was about to join his fellow students and abandon the city.45 These events may explain the unusual pattern of Fulgosio’s teaching on the Codex at around this time, with Codex I apparently being taught twice. A move then to teach Digest I for the year 1411/12 would have matched a pattern in his teaching programme of lecturing on the first volumes of both codes and then their second parts thereafter.46 Fulgosio’s student Alvarotti also owned a copy of a manuscript of his master’s teaching on Digest I written in 1414 which, if it was a copy of a lecture given at Padua, would indicate that Fulgosio had taught that subject at least once by 1414.47 This text could have been a transcription of lectures originally given in the year 1411/12. Fulgosio is believed to have taught Codex II in 1412/13 and then Digest II the following year. This academic year would have finished, as was customary, in September 1414. The start of Fulgosio’s lectures for the next academic year, 1414/15, would have then however been interrupted by his departure for Constance. In the list of lecturing dates for Fulgosio prepared by Annalisa Belloni, the jurist is listed as having taught Codex I in what would have been an academic year (1414/15) severely curtailed by Fulgosio’s absence at the council.48 This would have fit the regular

45 Sabbadini, Nuove lettere di Gasparino Barzizza, 884. 46 The pattern is supported by Fulgosio’s comment in Codex I to having lectured the year previously on Digest II: Codex I, 71r and see below, p. 111. 47 Blason Berton, ‘Una famiglia di giuristi padovani’, 132–134. Also see the discussion regarding the use of these inventory texts for dating the lectures in: Belloni, Professori giuristi a Padova, 212. 48 Belloni, Professori giuristi a Padova, 66–68. The sequence of lectures given by Belloni is: Codex I 1410/11, Codex II 1412/13, Digest II 1413/14, Codex I 1414/15, Digest I 1415/16, Codex II 1416/17, Digest II 1417/18. 36 CHAPTER 1 pattern of teaching Codex I and Digest I in successive years followed by their second volumes before repeating the four-year sequence again commencing with Codex I. The indications from the printed commentaries point however to the second volume of the Codex, at least in the printed edition, being the more likely subject that Fulgosio taught in the partial academic year remaining to him and his students in 1415 after his return from Constance. He would then have moved to teach Digest I at the start of the new academic year in October 1415. This hypothesis would explain the absence, except in its introduction, of any reference to the Council of Constance within Codex I, whilst Codex II contains several remarks related to the assembly. A lecturer would have ordinarily begun the course for an academic year by discussing the Prohemium to the body of law which he was about to teach.49 It can be speculated therefore that Fulgosio’s introduction, although attached to Codex I, was given immediately after his return to Padua from Constance, with the jurist then resuming his lectures at whatever point his Codex II class had reached by this time with their locum. They would then have continued their work until the end of the academic year in September 1415. In contrast to the Codex, the printed commentary to Digest I contains references to Constance scattered throughout its text, with a long discussion of events at the assembly contained in the introduction which, if this hypothesis is correct, Fulgosio would have given at the start of the new academic year in October 1415. He would then have lectured on the Digest for the rest of the academic year, with his reflections about the council appearing as he and his class worked their way through the course. That the text on which the printed edition of Digest I is based is slightly later in date than the Codex II can be detected thanks again to Fulgosio’s habit of mentioning his own consilia and how recently he had completed them. In book two of Digest I, for instance, Fulgosio both mentions his time at Constance and, just some twenty folio later, that it was “not very long ago” that he had been consulted about a case from the town of Feltre and that his opinion had been ignored by the judges in the dispute.50 The consilium which Fulgosio wrote on this occasion can be identified and was in response to a

49 For a discussion of teaching practice specifically at Padua, see: Lange and Kreichbaum, Romisches Recht im Mittelalter, 75–78. 50 Fulgosio was discussing the Digest text ‘Si Satisdatum’ [Dig.2.8.7.2] and states that: “non est multus temporis ex civitate Feltrensis” that he was asked about a case where he considered whether “iudex pecuniam apud se oblatam iussit apud se deponi. Arguebam primo non recte depositum, quia non debebat ipse se eligere”. He added however that Podcasts From The Past 37 case whose details had been brought personally to the jurist by one Victor de Zovanetto in a sealed bag;51 the fact that Feltre was at this time under the rule of the Emperor Sigismund appearing not to have presented an obstacle for a jurist in Venetian Padua to be asked to give his opinion on the matter.52 The consilium itself contains references to documents written in August 1412 and also identifies the judge before whom the case was then being heard as the vicar of Feltre, Francesco Grazioli of Imola. Grazioli held this post in 1413/14, having probably taking up office in October 1413 and then remained in Feltre until the following September or October.53 Fulgosio must therefore have written his consilium for the case late in 1413 or during 1414. The Digest I lecture in which he then referred to having written the consilium “not very long ago” must have taken place in or shortly after 1414. It is quite possible therefore that the Feltre consilium was one which Fulgosio had composed immediately before he attended the council of Constance and recalled to his students directly after his return from the assembly. Fulgosio was more precise in his relative dating of another consilium to be found only a further forty folio on in Digest I (and still within the second of its twelve books). He described this text to his students as having been written

“ex hac solo causa non fui ausus iudicare.” DIGEST I, 52v. Fulgosio’s reference to Constance occurs in the same book of Digest I, at ibid., 36r [Dig.2.1.5]. 51 Fulgosio, Consilia, 197v–198v. 52 Although the fact that Fulgosio declares that his consilium ‘was not heard’ may be an indication that a contribution from Venetian Padua was unwelcome at this time. Fulgosio nevertheless wrote several consilia directed to Belluno or Feltre in the period of imperial rule which ran from 1411 to 1420. 53 Grazioli was vicar to the rector of nearby Belluno from 24 March 1413, with a successor then taking up office on 10 December 1413 (Francesco de Pellegrini, Serie dei podestà e capitani e dei vicarii o giudici di Belluno dal 1200 al 1420, (Belluno, 1893), 38). Documents from 8 October 1413 however indicate that a different vicar was in Belluno by October 1413, whilst Grazioli himself appears in documents as the vicar of Feltre in 1414, but had disappeared from the record by November 1414. (Francesco de Pellegrini, Documenti antichi, (Belluno: Germano Sommavilla, 1993), V: 203, 217, 219, 223–4, 236). Officers like Grazioli could spend their careers moving from one posting as a vicar sitting on behalf of the podestà as a magistrate on the bench in one city before moving elsewhere. Grazioli had, for example, already been vicar both in Belluno (1406 – ibid., 37) and in Feltre (1405 – Pietro Rugo, Riflessi storici del dominio e della caduta della repubblica veneta nelle lapidi della città di Feltre, (Belluno, 1998), xvii). His later successor in Belluno, Antonio di Rocca d’Ascoli, would serve as vicar there in 1416 before moving in turn to Feltre in 1417 (For Ascoli in Feltre in November 1417: Giambatista Verci, Storia della marca trivigiana e veronese, (Venice: G. Storti, 1791), XIX: 107; For Ascoli in Feltre a year earlier: ms. Biblioteca Classense Ravenna, 485/VII, p.123–130). 38 CHAPTER 1

“only a few days ago”.54 At the point in his lectures where Fulgosio made this remark he and his class had reached a Digest text which considered the legal position of someone who, through ignorance, had received property to which he or she had no right. This prompted Fulgosio to record a consilium which he had just written for a case in Lucca where a court had handed down a verdict which Fulgosio had sought to argue was ‘manifestly inequitable’ and could therefore be appealed. He had also considered the legal position of the victori- ous party in the case given that the injustice was ‘manifest’ or obvious to all concerned. The victor would therefore have knowingly obtained something to which he knew that he had no right. The consilium which Fulgosio wrote on this case and later mentioned to his students can also be identified among his surviving consilia and related to the long-running legal battle between the Lucca wool merchant Francesco Berindelli, his sons and a fellow countryman now with business interests also in Venice, Simone Turellini.55 The latter had won a dispute between the two businesses brought before the merchants’ court in Lucca, with its then judge Nicolò Pendragon of Pistoia issuing a verdict against which the statutes of the merchants’ court declared that no appeal could be heard.56 Fulgosio had been sent a copy of Pendragon’s verdict and the statutes from Lucca which granted the merchants’ court such power, together with much of the witness testimony which had been produced in the case. His consilium then argued on the basis of this documentation that the verdict had been manifestly unjust and that there was a moral duty under natural law on the part of the courts to redress the situation notwithstanding the unappealable nature of verdicts handed down by the merchants’ court.

54 “a paucis admodum diebus”. DIGEST I, 92v on the text, Dig. 2.14.35. 55 Fulgosio’s consilium appealing against the verdict by arguing, inter alia, that the inequity of the verdict was manifest is contained in: Ioannes de Imola, Consilia, (Venice: D. Zenarum, 1581), 89r–91v. Further consilia on the long running case by Fulgosio, Raffaele Raimondi and others are also in Fulgosio’s own consilia collection but the subject matter which Fulgosio discussed with his students in his Digest Commentary relating to ‘manifest inequity’ is the consilium in the Imola collection. Turellini was involved with the silk trade in Venice: Luca Molà, La comunità dei lucchesi a Venezia. Immigratione e industria della seta nel tardo medioevo, (Venice, 1994), 149. Francesco Berindelli would die before March 1414 (ASLU, Curia Civile, 899, 35r), but the legal case would continue in the name of his sons. 56 Imola, Consilia, 89r. Podcasts From The Past 39

By studying the archives of the merchants’ court in Lucca the date of Fulgosio’s consilium can be estimated.57 Much of the testimony which would have been presented to lawyers in the case and, in all probability, also shown to a consulator like Fulgosio also survives in the archives. Judge Pendragon himself, for example, appears in documents as serving on the bench of the merchants’ court in Lucca in 1412 whilst, in February that year, private documents show him appointing procurators to act for his daughter (who had remained in neighbouring Pistoia) during his absence in Lucca.58 A month later he pronounced verdict on a related aspect of Berindelli v. Turellini as the chief justice of the merchants’ court.59 In February 1415 and therefore after his time in Lucca Pendragon would write from Pistoia to deny comments which had been attributed to him from his time as a judge in Lucca by parties in an unfortunately unidentifiable case.60 The verdict which Fulgosio would have to address in his consilium was one which Pendragon handed down on 28 March 1412 and in which he ordered that the Berindelli brothers pay 200 florins to Simone Turellini.61 In June 1413 the Berindelli brothers petitioned Lucca’s ruler, Paolo Guinigi, to have the court’s decision overturned and Guinigi granted their request “if and in as much as it is legal to do so”.62 If the Berindelli brothers could in effect prove that it was legally permissible for a verdict of the merchants’ court to be appealed despite the statutes to the contrary, then their appeal could go ahead.

57 For a discussion of the court records in Lucca, see: Susanne Lepsius, ‘Kontrolle von Amtsträgern durch Schrift. Luccheser Notare und Richter im Syndikatsprozeß’, in: eds. Idem and Thomas Wetzstein, Als die Welt in die Akten kam: Prozessschriftgut im europäischen Mittelalter, (Frankfurt a.M.: V. Klostermann, 2008), 389–473. Also see: Mario Seghieri, ‘Giurisprudenza lucchese nel medioevo. Due cause – una di diritto canonico, l’altra di giure civile – dibattute avanti il tribunale ecclesiastico’, Actum luce, 23 (1994), 81–110. 58 ASLU, Archivio dei notari 348, 81r where Pendragon describes himself as “ad presens iudex curie mercatorum”. The date has been modified from the local reporting style in Lucca. 59 Pendragon was the named judge in the verdict which was issued on 11 March 1412 (adjusted from Lucca style) on a separate aspect of Berindelli v. Turellini at: ASLU, Corte de’Mercanti, 508, 81v. This document from the merchants’ court archive contains much of the witness testimony related to the case. Giovanni de Pontremulo was the chief judge in June 1413 (ASLU, Corte de’mercanti, 144, 60v) which would indicate that Pendragon’s tenure was complete by that date. 60 ed. Eugenio Lazzareschi, Carteggio di Guido Manfredi, cancelliere della repubblica di Lucca, (Pescia: A. Benedetti, 1933), 90. 61 ASLU, Archivio dei notari 327, 36r. 62 “si et inquantum de iure teneatur admittere (i.e. the Berindelli’s petition) et non aliter vel alio modo” ASLU, Governo di Paolo Guinigi 31, c.69. 40 CHAPTER 1

It is from this date that the contribution of Fulgosio in the case, together with the views which were also submitted by his fellow jurists Joannes de Imola, Paolo da Castro and Nellus de San Gimignano, must have originated; for all of their consilia considered in one way or another whether decisions of the Lucca merchants’ court could ever be appealed. There is however good evidence that Fulgosio did not make his contribution to the case immediately after the possibility of an appeal had been admitted by Guinigi in June 1413. The Berindelli brothers appear to have sought justice first of all through the initiation of a second process brought before arbitrators chosen by both parties in the case (a common and more economical option for litigants) which could re-consider the matter but did not technically represent an appeal of the original verdict of the merchants’ court. This parallel process found in the Berindellis’ favour a year later, in June 1414,63 and fined Turellini 600 florins. This set the scene for an archetypal jurisdictional stand-off between the two conflicting verdicts and processes. On 19 June 1414 the Berindelli brothers sought to execute the verdict in their favour for 600 florins,64 while Turellini attempted to execute the Merchants’ court order for his opponents to pay him 200 florins shortly thereafter. The jurisdictional confrontation was then played out in a dramatic scene in the palace of the merchants’ court itself. On 15 September 1414, when Turellini petitioned the merchants’ court to enforce the payment of the 200 florins which he was owed, the notary acting for the Berindelli brothers was prompted to read a statement complaining that the court had no jurisdiction because a locum for one of the judges on its bench was under age and the counsellor for whom he was supposedly covering was actually in Lucca at the time. This de facto appeal of the merchant court verdict provoked an angry commo- tion and the notary was ejected from the court room and forced to shout the Berindellis’ complaint from beyond its precincts.65

63 The compromise agreement of 20 January (finalised 12 February), under whose auspices the arbitrators would act is at: ASLU, Archivio dei notari 327, 25v; a prorogue of the hearing on 24 March (ibid., 32v) and the eventual verdict at: ibid., 35r–36r. These dates coincide with those recorded by Raffaele Raimondi in his consilium on the affair: Fulgosio, Consilia, 4v. 64 This was unpaid by the first week of December when the court of the podestà ordered it to be paid: ASLU, Curia Civile 903, 95v–96r. 65 ASLU, Archivio dei notari 338, 23r–v. The complaint read by the notary was read “alta voce in limine et ex limen hostii dicte curie” (ibid., 23v). Podcasts From The Past 41

All of this could be formulaic theatre of course but the fact that the judge expelling the notary did so angrily would perhaps suggest that there was something more spontaneous to the episode.66 The criticisms of the court’s legitimacy also do not look that legally sophisticated or to have been prepared in advance by legal experts. In physically expelling Berindelli’s notary from the courtroom, the episode had however displayed in theatrical terms the impos- sibility according to statute of any appeal against a verdict of the merchants’ court. A decision had gone against the Berindelli and there was no forum within the court in which for them to appeal: when they did protest, their representative and, as it were, the appeal which he represented were thrown out of the auditorium. One can well imagine that with the failure of such an apparently impromptu attempt to oppose the execution of the verdict, the Berindelli brothers next turned to more learned counsel to help them overturn a verdict from a court which countenanced no appeal. In a later consilium on the same dispute, Fulgosio would confirm that the Berindelli brothers had opposed the execution of the verdict at this time as having involved an invalid judge,67 however in the short term both he and other jurists would be required to develop rather more sophisticated arguments to justify the appeal which Paolo Guinigi had enigmatically suggested in 1413 could proceed if it was legal for it to do so. The consilium which Fulgosio told his Padua Digest I students he had composed ‘only a few days’ before was therefore most likely written at this juncture after the drama played out at the merchants’ court in Lucca on 15 September 1414. At the opening of his consilium, Fulgosio noted that he had seen Pendragon’s original verdict and copies of the statutes of the merchants’ court which prohibited any appeal against its verdicts. Fulgosio however noted

66 The judge ordered the court official “cum clamore” to expel the Berindelli notary: ibid., 23v. 67 In his later consilium, Fulgosio notes that, within the two months which the arbitrators had given Turellini from the date of their verdict to pay 600fl. he had attempted to enforce the verdict in his own favour for 200fl. before the merchants’ court: Fulgosio, Consilia, 200r–v. These undated comments in Fulgosio’s consilium broadly tie-in with the timescale revealed from the Lucca archives: The arbitrators’ verdict fining Turellini 600fl. was executed on 19 June 1414, while Turellini had turned to the Merchants’ court on 15 September to have the verdict in his favour for 200fl. executed. Fulgosio also gives the objections which Berindelli & Co. presented at this time to the merchants’ court against its 200fl. verdict: “non mereri executionem. Primo quia lata a iudice non competenti, Item quia nulla, Item iniqua. Item quia de ea pendet supplicatio ad principem.” Ibid., 200r–v. The reference to the inequitable nature of the verdict indicates that it was the same verdict which Fulgosio’s consilium on manifest inequity sought to overturn. 42 CHAPTER 1 that he had also read the consilia and allegationes already produced on the dispute by jurists in both Florence and Bologna who were acting for each party.68 The production of these texts and their transportation back and forth to Padua would have taken time and, if the jurists had all been engaged after the fracas of 15 September then it may have been some time before Fulgosio received the bundle of documents together with consilia prepared for the two parties by Joannes de Imola, Paolo da Castro and Nellus de San Gimignano and then began to compose his own contribution to the case.69 It is quite conceivable therefore that Fulgosio did not submit his consilium until after his return from Constance in 1415 or 1416. Furthermore, in contrast to the more ‘pro parte’ contributions of his learned colleagues, Fulgosio’s consilium has a more subtle approach, as if his were a contribution harmonising the various responses of others and this would perhaps indicate that his consilium came from a later stage in the attempt to win right to appeal when arguments to help the judges make a decision rather than ones to put the case for each side had become more appropriate. Fulgosio’s consilium is less com- bative and contains more concrete, practical reasons for allowing an appeal than the more abstract works of his fellow jurists on the topic. Where they had, for example, asserted from natural law that appeals were necessary or made the point that the statutory monopoly of the merchants’ court on giving a verdict effectively trespassed on every Christian’s ability to petition the Emperor or Pope, Fulgosio gave more concrete reasons for permitting an appeal by suggesting that the original verdict itself was so manifestly flawed and unjust that it required, as it were in and of itself, an appeal to be heard. That was an argument which was less about questions of jurisdiction or an invocation of lofty,

68 Imola, Consilia, 89r–v. Joannes de Imola himself, for instance, is recording as having acted for one side and Paolo da Castro for the adverse party: Fulgosio, Consilia, 4v. The fact that the whole case centred from a legal point of view on the statute which gave the merchants’ court its privilege not to have its verdicts appealed elsewhere may conceivably be an explanation for the historic belief that Joannes de Imola and Paolo da Castro had a hand in reframing Luccan statutes. A consilium discussing such a statute and glossing or explaining, as it were, its ‘underlying’ meaning may well have looked like rewriting or adapting a statute, particularly to those reading those consilia at a later date in the jurists’ respective published volumes. The belief that the two jurists had a role in rewriting Luccan statutes (but without reference to the Berindelli case) is analysed in: Bernardo Gius, ‘Sulla tradizione che Paolo da Castro e Giovanni da Imola avessero parte nella compilazione degli statuti lucchesi’, Atti della Regia Academia Lucchese di Scienze, Lettere ed Arti, 10 (1840), 19–53. 69 There were procedural deadlines for the submission of consilia. See, for example, the situation in Padua: Tjarks, Das „Venezianische‟ Stadtrecht Paduas von 1420, 360. Podcasts From The Past 43 timeless principles of natural or international law (or even access-to-justice), and more tightly focused instead on the nitty-gritty of the verdict which the bench led by Pendragon had handed down. It also might have allowed room for a face-saving compromise. If the verdict had been in and of itself manifestly erroneous then it was less a verdict appealed and more an annulment of something which had never been a true verdict in the first place. There would be less need for the officials in Lucca to wrestle with any conflict between the appellant protections afforded litigants by the ius commune and the local statute claims of the merchants’ court. It is quite conceivable therefore that, when Fulgosio referred in his lectures to his consilium for the Berindelli brothers as having been only just completed, then he was talking to his Digest students in 1415 or 1416. If Fulgosio was keeping the same lecturing pace as he maintained in 1423/24 he would also have been lecturing on the text which prompted his discussion of the Berindelli case at around Easter time;70 that is in March or April 1416. In addition to evidence from cases like those from Feltre and Lucca, some of Fulgosio’s more conversational remarks in the Digest commentary also point to it having been written during the academic year 1415/16. Another legal text within the corpus, for example, prompted Fulgosio to discuss jousting tournaments with his students. Having considered the legal question of whether a crime was committed if someone was killed during such events, Fulgosio went on to consider if students were allowed to compete in them, “like”, he added, “Nicolò Contarini did last year”.71 The most likely occasion for Contarini having competed in a joust was the colourful tournament held on the piazza San Marco in April 1415 to mark the accession of a new doge in Venice; and in particular the giostra in which Venetian noblemen, as Contarini was, took part from 25 April.72 Contarini was a student of civil law at Padua from 1411 and throughout the rest of the decade and thus could easily have numbered

70 The same text on which Fulgosio discusses the Berindelli case in the printed Digest commentary is located in the Venetian manuscript at ms. Biblioteca Marciana, Venice, Zan 513 (=1662), 149v–150r and it was at ibid., 150v that Fulgosio’s (or the university’s) beadle was recorded as having made his collection in April 1424, indicating that classes customarily reached the text in the spring as they made their way steadily through the Digest. 71 Fulgosio refers to the tournaments as a “Hastiludium” or “Zostra” and then about scholars being involved “ut fecit anno preterito dominus Nicolaus Contareno”. DIGEST I, 238r. Fulgosio also mentions the tournament which was held on 17 November to commemo- rate Padua’s submission to Venetian rule in 1406. 72 On the tournament: Marin Sanudo, ‘Vitae ducum venetorum . . .’, in: ed. Lodovico Muratori, Rerum Italicarum Scriptores, (Milan: Soc. Palatinae, 1733), xxii, 895. Sanudo lists the competitors in the tournament but not those who took part in the giostra which followed it. 44 CHAPTER 1 among Fulgosio’s scholars at this time. If he was indeed a competitor at the joust in April 1415, then it was at some point in 1416 that Fulgosio recalled the event for his Digest I class.73 Such a date would be corroborated by a remark which Fulgosio made only a few pages further on in Digest I from his reference to Contarini where the jurist again recalled a consilium which he had written only “a few days ago”, this time from the city of Vicenza.74 The opinion which Fulgosio wrote on this occasion can once again be identified among his consilia and concerned a petition to the podestà of Vicenza regarding the estate of Niccolò de Trissino.75 As with the Berindelli case from Lucca, documents which were prepared at the time of this petition survive to this day in the archives in Vicenza and include a summary of the case history from which the following facts can be summarized.76 In his will of 1403 Niccolò de Trissino had divided his estate between his nephews with a separate legacy to Enrico, the son of his uncle.77 Enrico’s branch of the family was to keep this legacy provided that Enrico produced male heirs. An agreement between the beneficiaries immediately after Niccolò’s death confirmed that they would not dispute this arrangement, however when Enrico was murdered in 1414/1578 a dispute nevertheless

73 Contarini appears at regular intervals in university records of the period, for example in April 1414 and 1416 (Caspare Zonta, Acta graduum academicorum gymnasii Patavini ab anno 1406 ad annum 1450, (Padua, 1970), IV: 130 & 151), however he is not present in any document from April 1415. Whilst this does not mean that he was necessarily absent at that time, it nevertheless does not contradict the idea that he was then at the tournament. 74 The Digest law then under discussion [Dig.10.2.57] was similar, Fulgosio said, to a question which he was recently posed: “sunt pauci dies quod consultus fui ex civitate Vincentie inter duos cognatos ex forma statui accepti sunt duo arbitri et amicabiles compositores, post litem contestatam apud istos arbitros, iste partes de communi consensu alium tertium acceperunt: qui causam diffinivit: dubitabant an talis sententia istius ultimi valeret et argumentum est ex hac lege quod sic: quia compromissum factum ad istum, sit quedam transactio facta inter eos, nec illa sententia est revocanda nisi ratione etatis. Ego tamen dixi revocandam propter iniquitatem ipsius sententie.” DIGEST I, 251r. The subject of arbitration will be discussed in more detail below. 75 Fulgosio, Consilia, 184v–185r. 76 ASVi, AN, b.3. VI, 53r–61v. 77 Niccolò, who was son of the notary Pax, bequeathed a third of his residual estate each to: (i) Lodovico, son of Niccolò’s then-deceased brother Antonio, (ii) Lodovico’s own son Nicolinò and, finally, (iii) Pietro, the son of Lodovico’s then-deceased brother Pasino. Enrico q. Federico (who was Niccolò’s brother) received a specific legacy of assets in Vicenza and Arzignano: ibid., 53r–v. 78 On 27 April 1415 Enrico’s heir Federico referred to Enrico as having acted as a father to him “a nativitate ipsius Federici usque ad tempus et horam nephandissimum exercabilis Podcasts From The Past 45 arose. Enrico’s only son was illegitimate and although Enrico’s legal heir, his nephew Federico who was absent in Padua, shared half of his inheritance with Enrico’s son,79 the ownership of the assets entrusted to Enrico in 1403 by Niccolò was still queried by Niccolò’s nephews. Legal proceedings began shortly after April 1415 when Federico voluntarily shared half of his inheritance with Enrico’s illegitimate son. These evidently proved expensive. In the papers subsequently submitted to the podestà in Vicenza the parties claimed that legal proceedings had been both arduous and costly “due to the many advocates and consulators employed on both sides”.80 The podestà was thus petitioned to rubber-stamp a financial settlement between the parties which would bring their dispute to an end. This was duly agreed in March 1417 and signed by both sides shortly afterwards.81 Fulgosio’s consilium clearly related to the attempt to have the podestà receive the petition and thus must pre-date the final agreement and thus date to some time during the winter of 1416/17. Fulgosio’s remark to his Digest students that he had written on the Vicenza case ‘a few days ago’ must therefore date to a similar time. As with the Codex texts, if these and the other datable references found within the printed Digest I commentary are charted, the overall picture is of it

funestique casus et violente mortis dicti Henrici”, ibid., 19r. It was also reported in Venice in March 1416 that an individual had been implicated in the death of Enrico de Trissino: ASVe, Senato: Deliberazioni Secreti, Lib. 6, 42r. 79 On 27 April 1415: ASVi, AN, b.3 VI, 18r–22r. Federico stated in the donation that he was twenty-four years of age but not yet twenty-five, whilst documents from later that year show him in Padua buying cloth for his wife (ibid., 26r–v). His age and absence in Padua may indicate that Federico was then a student in Padua. 80 “propter multitudinem advocatorum et consultorum in dicta causa pro utraque”. Ibid., 56r. 81 Niccolò de Trissino’s great nephew Pietro, whose rights had been signed away as a child in the agreement between the relations in 1403 was to be paid 1,200 gold ducats in instalments on condition that he would now accept the rights of Enrico’s heirs to the assets under Niccolò’s will and compensate them for their legal and other expenses totalling 600 ducats which was also to be paid in instalments: ibid., 56v–57v. Fulgosio’s costs were presumably contained within the 600 ducats. Separate disputes relating to Enrico de Trissino’s own estate as opposed to that related to the legacy bequeathed him by Niccolò would latterly however rumble on. Raffaele Raimondi would write a consilium concerning the entitlements of Enrico’s daughters (Fulgosio, Consilia, 68r–v), whilst both Fulgosio himself (see below) and the leading jurist Panormitanus would write on disputes arising from Enrico’s will (Panormitanus, Consilia et quaestiones, (Turin: Heirs of Nicolaus Bevilacqua, 1577), 18r–19r). 46 CHAPTER 1 DIGEST I 1428 1426 1424 1422 1420 1418 1416 1414 1412 1410 1408 1406

Fol.: 20 25 31 52 61 92 139 153 156 171 185 216 224 238

representing Fulgosio’s lectures in the academic year immediately after he was at Constance.82 In the later, Venetian manuscript of Fulgosio’s Digest I commentaries from 1423/24 neither the case from Feltre nor the dispute from Lucca are recalled by Fulgosio when he discussed the same legal texts which had prompted his discussion of them in the printed editions of Digest I.83 This could indicate that they only came to mind when he was lecturing on the relevant texts in 1415/16 because they were recent and were thus absent from his later lessons. It is also possible that in the later manuscript such comments were simply not recorded by the scribe concerned. It is generally the case that the manuscript editions lack the kind of references to consilia which Fulgosio had written which appear so frequently in the printed commentaries.

82 Digest II contains very few references to cases or events and I have therefore not provided a graph for this commentary. 83 ms. Biblioteca Marciana, Zan 513 (=1662), 95rff; 149v–150r. Fulgosio’s comments about Nicolò Contarini and discussion of the Vicenza case are in books nine and ten respectively of Digest I and these books are not among those included in the Venetian manuscript which spans books one to four. Podcasts From The Past 47

2.a Fulgosio’s Life and Career

The wealth of detail contained in the printed commentaries can be used to enrich what is already known about Fulgosio’s life and career from existing sources.84 Fulgosio came from a prominent Guelf family in Piacenza, one of the factions in to which the city was institutionally divided,85 with its rural power base to the south-west of the city in lands between the Nure and Riglio valleys and among the foothills of the Piacentine Appennines. A traditional power centre for the family was the striking, hilltop castle complex of Gropparello. Nearby the family held the fortified manor house of Veggiola as well as the neighbouring castle of Ronco and further land and castles at both Castione and Zena in the hills between the Nure and Riglio valleys. Below Castione, on the banks of and overlooking the river Nure itself, the Fulgosi also had possessions in Riva, whilst the fortified homestead of Montechino near to Gropparello was also claimed by the family.86 Factional and regional conflict had however taken its toll on the family’s interests through the late fourteenth century, in particular as a result of the successive conflicts between the Visconti in Milan and the papacy in the 1360s and 1370s including the War of Eight Saints. An ill-fated attack for example during this period led by Raffaele Fulgosio’s great-uncle, Guglielmo, on another local family with whose fortunes those of the Fulgosi were tied, the Anguissola, saw many of his supporters thrown from the castle’s walls and

84 For existing biographical surveys of Fulgosio, see: Belloni, Professori giuristi a Padova, 306–311; Krystyna Bukowska Gorgoni, ‘Raffaele Fulgosio’, DBI, 50 (1998), 699–702; Lange and Kreichbaum, Romisches Recht im Mittelalter, 802–803; Giovanna Murano, ‘Raffaele Fulgosio (1367–1427)’ in: eds. Idem and Giovanna Morelli, Autographa. I.1. Giuristi, giudici e notai (sec. XII–XVI med.), (Bologna: CLUEB, 2012), 144–147; Maria Gigliola di Renzo Villata and Gian Paolo Massetto, ‘La Facoltà legale: L’insegnamento del diritto civile: (1361–1535). Docenti e discipline’, in: ed. Dario Mantovani, Almum Studium Papiense. L’Università di Pavia dal Medioevo al XXI secolo, (Milan: Cisalpino, 2012), I: 442–444 and Chiara Valsecchi, ‘Raffaele Fulgosio’, in: eds. Maria Luisa Carlino, Giuseppe de Giudici, Ersilia Fabbricatore, Eloisa Mura and Martina Sammarco, Dizionario biografico dei giuristi italiani (XII–XX secolo), (Milan: Il Mulino, 2013), I: 913–915. 85 On the decline of the Fulgosi in this regard in the later fifteenth century: Roberto Bellosta, ‘Le «squadre» in Consiglio: assemblee cittadine ed élite di governo urbana a Piacenza nella seconda metà del Quattrocento tra divisioni di parte e ingerenze ducali’, Nuova rivista storica, 87 (2003), 47ff. 86 For examples of the castles held by the Fulgosi, see: Lodovico Muratori, ‘Chronicon Placentinum’, in: Rerum Italicarum Scriptores, (Milan: Soc. Palatinae, 1730), XVI: 525. 48 CHAPTER 1 the Fulgosi’s own castle of Veggiola then sacked and set alight in reprisal.87 On another or possibly related occasion Gropparello was also attacked by anti- Guelf forces and in testimony presented to a Milan court Fulgosio’s grand father, Branca, protested that the assault had been unprovoked and sought to have the legal case which had been brought as a result of it transferred from Milan to be heard by a court in Piacenza.88 It is possible that this case represented an effort on Branca’s part to recover through the courts what the family had by then irretrievably lost by feat of arms, since it appears that by around the time of Raffaele Fulgosio’s youth, the family no longer held the fortress of Gropparello but were installed instead in the rather more vulnerable castle cum manor-house of Veggiola.89 By the last decades of the fourteenth century therefore the fortunes of a Fulgosi family which had once seen both Fulgosio’s grandfather Branca and his great-uncle Galluccio knighted and their brother become Bishop of Pavia were rather on the wane.90 In to this often violent world Raffaele Fulgosio was born in 1367. He was one of at least nine children fathered by Giovanni, the son of Branca Fulgosi.91 Raffaele does not appear to have been the eldest of Giovanni’s children. This position appears to have been held by his brother Antonio. His other brothers were Castellino, Ladislavo, Bartolomeo (who appears to have been the youngest) and Pietro Galucci.92 He also had at least three sisters: Caterina, Elenora

87 Luciano Scarabelli, Istoria civile dei ducati di Parma Piacenza e Guastalla, (Italy, 1858), II: 50. A marriage between members of the Fulgosi and Anguissola families was then arranged to attempt to end the rivalry; with a papal dispensation being necessary. 88 See: Andrea Corna, Castelli e rocche del piacentino, (Piacenza: Unione Tip., 1931), 175–176. 89 The castle of Gropparello survives in good condition to this day. Towers and other structures also survive at both Veggiola and Castione. The impression given by both latter places is of fortified and self-contained settlements which did not develop in to larger villages with streets or houses beyond the immediate central farmsteads. 90 On Branca as a knight in 1382: ASPc, AN b.458 Prot. I, 50r & 58v. On Galluccio: ‘Pier Felice degli Uberti, ‘Il diritto nobiliare nel ducato di Milano dall età feudale ai sovrani Spagnoli’, Hidalguía, 53 (2006), 568. Branca and Galluccio’s brother, Giovanni, was bishop of Pavia until 1342: Cristoforo Poggiali, Memorie storiche della città di Piacenza, (Piacenza, 1759), 229–230. 91 Branca and his brothers Gallucio and Bishop Giovanni were all themselves the sons of one Obertino Fulgosi, himself son of Monaco. See, for instance, Galluccio Fulgosi described in 1381 at: ASPc, AN b. 458, prot. I, 37r; and the references to Obertino Fulgosi in: Ettore Falcon and Roberta Peveri, eds., Il “Registrum Magnum” del comune di Piacenza, (Milan: Giuffrè, 1988), IV: 1217 92 In a document written in Piacenza in June 1389, for example, the brothers with the exception of Bartolomeo were all mentioned. Antonio and Castellino, sons of the late Giovanni son of the late Branca Fulgosi, Cristoforo son of the late Pietro Gallucci son of the said Podcasts From The Past 49 and Ziliola.93 Both Fulgosio’s father, Giovanni, and his brother Pietro died before 1382 when Fulgosio would have been fifteen years old94 and during Fulgosio’s youth the family was presided over in place of his father by his grandfather, Branca. The family must therefore have been characterised by something of a generation gap with an elderly head of household governing over youthful and still untested grandchildren. Fulgosio’s grandfather would live until at least 1387,95 (his great-grandmother was also still alive in 1390)96 however the missing generation between Branca and his grandsons caused by the death of Fulgosio’s father must have added to the difficulties facing the Fulgosi in this period. In archival documents from this period, members of the family are recorded as regularly present in both Veggiola and Piacenza itself. Branca Fulgosi had a house there which was possibly the same building which either his grandson, Antonio, later owned in the town97 or the one which Fulgosio himself would later possess in the central Saint Donnino quarter. At least during Fulgosio’s

Giovanni all agreed to the document, a rental agreement relating to lands in Veggiola, on behalf of Antonio’s and Castellino’s absent brothers, Ladislavo and Raffaele: ASPc, AN b. 458, Prot. II, 39r/v. Bartolomeo may have been the youngest member of the family and unable to consent to the agreement. He appears however as son of the late Giovanni Fulgosi in documents for the first time in a document issued ‘at the market in Veggiola’ in October 1390: ibid., AN b. 458, Prot. II, 44r/v. 93 Caterina, ‘daughter of the late Giovanni Fulgosi, widow of Marsiglio Bracciforti and now wife of Guiglelmo Vicedomini’ appointed procurators in the castle of Veggiola on 21 September 1383: ibid., AN b. 458, Prot. I, 90v. Land which Caterina owned in 1398 is also mentioned in: ibid., AN b. 588–589, 285v. Elenora “filia q. Johannis Fulg. olim f. q. Branche” entered in to a property sale agreement for the value of £(Pc) 50 in Veggiola, “in quadam caminata Antoni fulgoxi inter ambas turres” of the said castle on 5 October 1390: ibid., AN b. 458, Prot. II, 40r/v. Ziliola Fulgosi would be remembered in Fulgosio’s will. 94 Giovanni Fulgosi is recorded as deceased in a document made in Veggiola as early as 8 December 1382: (ASPc, AN b. 458, Prot. I, 63v); whilst documents indicate that Branca Fulgosi was acting as administrator of Pietro Gallucci’s estate in November 1382: ibid., AN b. 458, Prot. I, 59v. 95 Branca was a witness to a document in Piacenza as late as 11 July 1387 (ibid., AN b. 458, Prot. I, 237v), however he is referred to as deceased by 13 June 1389 (ibid., AN b. 458, Prot. II, 39r/v). 96 She appears in a document appointing procurators in Piacenza on 15 November 1390 as Caterina, the wife of the late Oberti Fulgosi and daughter of the late Oberto del Cario: ibid., AN b. 458, Prot. II, 44v. She also appears in a property sale in 1385 at: ibid., AN b.409, 103r. 97 ASPc, AN b. 458, Prot II. 26v–28r where it is evident that it had at least two floors. 50 CHAPTER 1 youth, archival records suggest that the family spent more time in Veggiola than in Piacenza and scattered references in these documents help to paint something of a picture of the domestic setting in which the jurist quite possibly spent his childhood. The ‘castle’ or manor house complex in Veggiola had, for example, an inner court yard with chambers allotted to individual members of the family, whilst the presence of an area designated for the holding of a market indicates that the complex merged the features of a home with those of a small village estate.98 The compact and enclosed settlement also possessed two towers, remnants of at least one of which remain visible to this day. Something of the family’s position as local nobility can also be detected both from a range of feudal agreements with which the family were involved99 and rather more vividly from testimony supplied during a legal case in 1440 brought in relation to the family’s possessions in neighbouring Castione, across the Riglio valley from Veggiola, and which was studied by Giorgio Chittolini. In these documents witnesses from the village recalled details of their lives under the lordship of both Raffaele Fulgosio’s brother, the by-then deceased Antonio Fulgosi, and Antonio’s son Aluisio.100 The Fulgosi had long exercised feudal rights over the village, the witnesses explained, with one individual stating that, by 1440, of the around thirty families locally only four or five were still required to work in the Fulgosi’s fields. Customarily, another witness recalled, this involved having to prepare the family’s vines from the last season and then

98 In 1385 notaries recorded for instance the places where various documents were signed in the following terms: “in camera cubiculari domini Branche Fulgoxi” and “in castro lavezolle in prima caminata fulgoxiorum” (ASPc, AN b.458 Prot I, 127r); (1385) “in castro lavezolle super hostio domus mag. Gerardi de lavezola” (ibid., AN b. 458, Prot. I, 138v); “in lavezole sub portili” (ibid., AN b. 458, Prot. I, 139r); “Lavezola in domo habit. magistri fratrum fulgoxiorum” (ibid., AN b. 458, Prot. I, 143v). In 1390 and 1392 we also find places referenced to as: “super mercato lavezolle” and “iuxta hostium cancellorum de lavezolle” (ibid., AN b. 458, Prot. II, 44r/v & 59r). When Elenora Fulgosi transacted on property in 1390 she did so in a document signed “in lavezolla in quadam caminata Antoni fulgoxi inter ambas turres” (ibid., AN b. 458, Prot. II, 40r/v). whilst in c. 1395 her brother acknowledged receipt of certain monies: “in caminata Lavislavi [Fulgosi]” (ibid., AN b. 588–589, 248r). In 1383 Caterina Fulgosi also appointed procurators when she was recorded as being ‘in the courtyard of the castle’ (ibid., AN b. 458, Prot. I, 90v). 99 For example, with regard to land possessed in Riva where, in 1392, Bartolomeo Fulgosi received a rent payment due to his brothers, Raffaele, Antonio and Castellino as well as their nephew, Cristoforo the son of Pietro Galucci: ASPc, AN b.458, Prot. II, 64r. 100 The documents presented in the case are discussed in: Giorgio Chittolini, ‘La ‘signoria’ degli Anguissola su Riva, Grazzano e Montesanto fra Tre e Quattrocento’, Nuova rivista storica, 58 (1974), 298–300. Podcasts From The Past 51 return to harvest them the next year. On top of this feudal service, the Fulgosi levied a tax on the villagers’ own produce; taking a percentage of the grape harvest and one in every ten of the farm animals born in the village. The local womenfolk could also be required to provide a certain quantity of linen.101 From the Fulgosi’s perspective such rights and income must have equated to a life of noble affluence, even if those rights were returning less and less financially. Nevertheless, one should imagine Fulgosio’s early life as that of a second or third son born to a family with a town house and interests in Piacenza and residing from time to time in their rural estate at Veggiola with all the privileges, if perhaps not quite the monetary wealth, of local feudal lords. By the time of the 1440 legal case, for example, the Fulgosi had lost power in Castione to families whose financial means could out bid their own to command the loyalty of the village. With his grandfather and uncle involved in the conflicts between and among Guelf and Visconti forces in and around Piacenza and the sacking of Veggiola still a traumatic episode within the living memories of his immediate family, Fulgosio’s youth can not be characterised as having been spent in a tranquil rural idyll, despite the many noble and rustic advantages which the comforts of Veggiola and the Fulgosi estate more generally would still have afforded. A further indication of the violent background to the future jurist’s childhood occurred in 1373 when Fulgosio was only six years old. His brother- in-law, Marsiglio Bracciforti, who was then serving as a vicar-general locally on behalf of Galeazzo Visconti was imprisoned in Piacenza by Marsiglio Anguissola and subsequently executed.102 Bracciforti’s widow, Caterina Fulgosi, together with the help of her grandfather Branca and others went to court to recover the monies due to her from her late husband’s family. A series of legal questions arising in the case were even passed to the celebrated jurist Baldus de Ubaldis for consideration at some point after Galeazzo Visconti’s death in 1378 and before Branca Fulgosi’s in c. 1387–9.103 It would be to members of the

101 Ibid., 298. The portion extracted from the grape harvest was twelve stoppelli per carro, or something in the order of 5%. 102 Pietro Campi, Dell’Historia ecclesiastica di Piacenza, (Piacenza: G. Bazachi, 1662), III: 146; Poggiali, Memorie storiche, 372. 103 Baldus’s consilium replying to eight dubia raised by the case is printed in: Baldus de Ubaldis, Consiliorvm sive responsorvum, (Venice, 1580), I: 8v–9v and mentions that Galeazzo Visconti was dead and that a separate process to the one considered by Baldus was then on-going involving Branca Fulgosi. This would date the consilium to having been written between 1378 and 1389. It is conceivable that the procurators whom Caterina Fulgosi appointed in September 1383 (see above, note 93) were connected to the case analysed by Baldus. 52 CHAPTER 1 same Anguissola that the Fulgosi possessions in Castione would eventually be ceded two generations later.

2.b Fulgosio’s Education

It seems reasonable to assume that the young Fulgosio received his very early education either in Piacenza or Veggiola. The jurist remained silent on this, the very earliest period of his life in his often more loquacious commentaries, however he did refer on several occasions there to the later stages of his education, which he customarily measured from the point when he began to study the law. These studies began, Fulgosio indicated, when he was only fourteen, in 1381/2.104 Given that he was later recorded as a student there, it seems highly likely that Fulgosio’s legal education began in Pavia rather than in his native Piacenza. Scarcely a year in to his studies, Fulgosio would later tell his own class, he had disputed privately with a fellow student on the civil text Dig.12.2.38, a law which considered whether those who refused to swear on oath gave away their guilt through their reticence.105 A sense of the confidence which Fulgosio had in his own abilities at this early age can be obtained from an anecdote which he later recounted in the commentaries. Following a comment that advocates tended to idolize the ordinary glossators on the law, just as the ancients worshiped idols, Fulgosio remarked that he would rather use the glossator’s argument in disputes because if he were to present the text of the law without them opposing counsel would only respond by giving the glossator’s interpretation on that text anyway.106 Fulgosio then recorded how, as a youth, he had dared to do the opposite and had cited the text of the law directly against an opinion of his own professor. “I thought I was so smart at that time”, he recalled. “On one occasion when a group of us were at a meal together, I dared to cite a legal text which opposed the teaching of my professor on a particular matter. ‘You’re contradicting what the glossator says’, one of the group said and I responded ‘So what? If the glossator says x on this I’d still say the same thing anyway and [ignore] the authority of the glossator’. I had thought that the views of the glossators were marginalia like the books of grammar or the commentaries on Virgil and Ovid, but it’s not so. They

104 CODEX II, 66r where Fulgosio records that he was eighteen in the year when Bernabò Visconti was captured and that he was then in his fourth year of study. 105 DIGEST I, 90r & 104v. 106 Fulgosio’s comment was summarized by Conrad Ritterhusius in: Fulgosio, Consilia 1607, 183. Podcasts From The Past 53 were wise and authoritative men [. . .] who could observe the whole corpus of law and more reliance should be placed on them who could see so much than on those of us who cannot see.”107 Like many a young student, in other words, the teenage Fulgosio had thought that he could disregard the dusty authority of tradition and start on a question from first principles by himself; in this case treating the glossators not as authorities to revere but as additional commentators whose arguments one could deduce oneself directly from the text of the law without need of their intercession. The youthful Fulgosio was learning therefore that what held for the books which would have formed the core of his pre-legal education (Latin grammars, and perhaps the Latin poets), did not necessarily hold for the collected and cumulative body of legal wisdom built up and represented by the glossators and their works. Fulgosio’s anecdote is interesting enough in its own right as an example of the jurist’s teaching methods – using an example from his own youth to educate his youthful students as if he, their teacher, was more like their peer than their superior – however his remark also had a more serious aspect. Fulgosio was explaining in effect why the humanities and the law could not be studied in the same way. The youthful Fulgosio had partly acted in the way which some later humanists would do and had sought to look beyond the commentators and glossators and read the original text of the law in an unadulterated version. One of the criticisms levelled, for example, by Lorenzo Valla in his scandalizing 1433 attack on the fourteenth-century jurist Bartolus of Sassoferrato was that, by over-exalting the glossators, lawyers like Bartolus had succeeded in obscur- ing the pure, classical origins of the law.108 The error which the young Fulgosio had made was similar in that he had treated the law as if it was no different to

107 “Ego recordor, et istud sit pro novo, quod dum essem scholaris, eram satis acutus, et dum semel essemus multi socii in una collatione, ausu fui unum textum allegare contra sententiam doctoris mei: tantam audaciam habui dicit unus socius: tu loqueris contra glos- sam que dicit sic et ego respondi: et si glossator dicit sic, ego dico sic, ignarus authoritatis glossatorum. credebam enim quod essent speciales apostille que sunt in libris gramatice sicut super Virgilio et Ovidio, sed tamen non ita est. Fuerunt enim glossatores maxime scientie viri et authoritatis. si aliud non esset, quam glossarum ordinatio, et de quibus potest dici id quod arbitror, de nullo dici posse, videlicet quod totum corpus iuris viderunt: magis ergo standum est eis, qui viderunt quam nobis qui non videmus.” CODEX II, 183v. Fulgosio’s prefacing of these comments with the remark that they were ‘pro novo’ will be considered below. 108 See: Giovanni Rossi, ‘Valla e il diritto: l’«Epistola contra Bartolum» e le « Elegantiae». Percorsi di ricerca e proposte interpretative’, in: ed. Mariangela Regoliosi, Pubblicare il Valla, (Florence: Polistampa, 2008), 539. 54 CHAPTER 1 the works of Ovid or Virgil which could be read directly by an individual reader who could form his own opinion on them and not a text which could only be fully understood indirectly through the accumulated commentaries of others, above all the glossators. Valla would scandalize the lawyers in his audience and among his readers by criticizing much of this later glossatorial tradition as sti- flingly technocratic. The youthful Fulgosio had brashly asserted, notably and importantly in the context of a private meal rather than, as Valla would later do, publicly, that he could do away with those later glossators as well. He had however learned his lesson. Fulgosio’s education continued and, at the age of eighteen years he lectured publicly on the Codex text ‘si a patre’ [C.4.5.5] in front of “many doctors at the university”. “I was praised so much”, he proudly continued to recall to his Padua class, “that I was asked if I was looking for a wife because a certain doctor offered me his step-daughter’s hand. I’m telling you this not for your entertainment but to encourage in you a sense of achievement and virtue.”109 Fulgosio married at least twice during his life, with his first recorded wife being Mabilina, daughter of Bartolomeo Malvicini di Fontana, whom he married in 1396. It seems likely that Fulgosio would have therefore turned down the professor’s offer in 1385; and the intention of the comment to his students seems to have been to say something which would surprise or humour them. For a young man aged only eighteen and in Fulgosio’s position to have married would have been unusual in the late fourteenth century; and Fulgosio’s revelation to his similarly-young student charges that, when he was scarcely little older than they probably then were, he had been offered a wife was evidently said to them for their amusement precisely because it would have been unusual. A marriage alliance for a young man in Fulgosio’s station was more likely to have been organised after he had established himself rather more in life. The fact that Fulgosio’s known first wife was a Piacenza noblewomen (he needed a papal dispensation to marry Mabilina because of consanguinity),110 also suggests that in questions of matrimony he was required to think of his family’s local dynastic interests and that such an impromptu match as was proposed when he was eighteen would not have necessarily met with the plans

109 “Et fuit in anno decimooctavo etatis mee et fuit anno quo ceptus fuit dominus Barnabos et cum repetiissem et doctores multi fuissent fui valde laudatus a doctoribus. Et si voluis- sem quesissem uxorem: quia tunc quidam doctor querebat mihi dare filiam uxoris. Hoc dico non ad iactantiam sed ut animos vestros excitetis et virtus laudata crescit”. CODEX II, 66r. 110 The dispensation was dated 11 April 1396: Poggiali, Memorie storiche, I: 24. Podcasts From The Past 55 which his family had for him.111 His grandfather Branca was still alive at this date and Fulgosio certainly remained in contact with his family at home in Piacenza while he pursued his studies in Pavia. On 18 April 1384, for example, he appointed procurators in Piacenza to act on his behalf in an unknown matter,112 whilst he returned in person to Veggiola to sign a document on 24 September 1385 in a private home within the Fulgosi family’s castle there together with his brother Antonio.113 The academic year at Pavia ended on 7 September and Fulgosio had clearly therefore returned home to Veggiola during the vacation and in advance of the resumption of his studies on 18 October.114 Although Fulgosio would have had to return to Pavia directly after this visit home, he was however now in the final stages of his education. In 1386, aged nineteen, he stood in for one of his professors to teach the Digest text ‘Qui Romae’ [Dig.45.1.12.2] and a year later, on 11 September 1387, obtained his licentiate in civil law and began to teach at the university in his own right, albeit without remuneration.115 He was presented for his licence by Filippo Cassoli, Cristoforo Castiglioni116 and Nicolò Spinelli. Cassoli and Castiglioni are known to have held their lectures at a property which they had jointly rented at St Peter’s gate in Pavia117 and it must have been there that the young Fulgosio attended his two masters’ lecturers in civil law. His third promoter, Nicolò Spinelli, had spent rather more of his career as a diplomat than as a lecturer. Indeed he had only recently returned to Pavia from France some months

111 Fulgosio’s brother Antonio would however marry the daughter of a jurist. A month before Raffaele Fulgosio married Mabilina Malvicini, Antonio authorised their brother Castellino to act on his behalf in negotiations for him to marry Dorothea, the daughter of Ugolino Garimberti of Parma, a doctor of laws: ASPc, AN b. 189, Prot. 19, 27v–28r. 112 ASPc, AN 458, Prot. I, 108r. 113 As befitting his academic status, Fulgosio is referred to as “Lord” in the document, in addition to being recognised as Antonio’s brother: ibid., AN 458, Prot. I, 138v. The document was notarised in their presence “in castro Lavezole super hostio domus mag. Gerardi de lavezola”. 114 According to university statutes, the academic year at Pavia ended on 7 September and began again on 18 October: Renzo Villata and Massetto, ‘La Facoltà legale’, I: 429. 115 “in 15 anno repeti, private tamen l. manifeste turpitudinis ff. de iureiurand. [Dig.12.2.38] in xix anno legit pro doctor meo l. qui rome [Dig. 45.1.12.2] in xx anno fui licentiatus in iure civili et eodem anno cepi legere sine salario: tamen in xxiii factus fui doctor in utroque iure et incepi etiam antequam essem doctor, legere et salaratius” DIGEST I, 104v. 116 On the two jurists: Francesco Aimerito, ‘Cristoforo Castiglione’, in: eds. Maria Luisa Carlino, Giuseppe de Giudici, Ersilia Fabbricatore, Eloisa Mura and Martina Sammarco, Dizionario biografico dei giuristi italiani (XII–XX secolo), (Milan: Il Mulino, 2013), I: 485; Angela Dillon Bussi, ‘Filippo Cassoli’, DBI, 21 (1978), 520–523. 117 Ibid., 521–522. 56 CHAPTER 1 before Fulgosio was awarded his licentiate in June 1387. Fulgosio can not therefore have studied civil law for very long under Spinelli and must have done so privately as no record survives of Spinelli having lectured publicly at Pavia at this time. Nevertheless Fulgosio would later often refer to his teacher in his own lectures and appears to have been on close and amicable terms with him.118 In 1395 one of Spinelli’s sons signed documents relating to an important family property sale at Fulgosio’s home in Pavia,119 whilst Spinelli was present a year later when another son gained his own degree in law having studied under Fulgosio.120 Spinelli would have been an important individual for the young Fulgosio to have been associated with. He had been chancellor to the Queen of Naples and had been active at some of the highest levels of European diplomacy for much of the preceding twenty years. In particular he had been deeply involved in political events during the outbreak of the great schism when the kingdom of Naples, in contrast to much of Italy, had sided with the later Avignon claimant to the papal throne against his Roman rival. Spinelli had even facilitated the meeting at which those cardinals who had fled Rome in 1378 following the contested election of Urban VI had moved to elect Clement VII instead, thereby initiating the schism. Spinelli continued to support the Clementine cause after he had left Neapolitan service and even his return to Pavia in 1387 from France had included his being authorised by the pope in Avignon to work for the con- version of both Milan and Florence from their allegiance to the pope’s Roman opponent.121 The prospect of accomplishing this in 1387 was remote, however in Spinelli Fulgosio certainly had a teacher and guide who had had direct experience of the biggest legal challenge facing the contemporary church and who had personally experienced some of the material consequences of the schism for private individuals when he had his property sequestrated by one pope because of his loyalty to another. Fulgosio was also receiving tuition therefore from a man who, in the eyes of the Roman obedience, was technically a schismatic. When Spinelli visited Venice for example a year after he presented

118 Giacinto Romano, Niccolò Spinelli da Giovinazzo. Diplomatico del XIV secolo, (Naples, 1902), 465. 119 Ibid., 634; ASPv, AN 7, II, 121r–122r. 120 Romano, Niccolò Spinelli, 465. 121 Sharon Dale, ‘Contra damnationis filios: the Visconti in fourteenth-century papal diplomacy’, Journal of Medieval History, 33 (2007), 27. Podcasts From The Past 57

Fulgosio for his licentiate, the prior of the monastery where he lodged was reported to Rome for having harboured a schismatic.122 Spinelli’s unusual status as a ‘Clementine’ in ‘Urbanist’ Pavia clearly presented no obstacle for its university or for the twenty year old Fulgosio himself.123 It would however have made an interesting situation for a young scholar like Fulgosio who, having completed his civil law studies and attained his licentiate in them, was just then beginning to work on canon law as well as lecture in his own right. Spinelli was active on behalf of the Visconti duke in this period on embassies like the one which had taken him to Venice and caused the prior there so much difficulty, and does not appear to have been one of Fulgosio’s canon law tutors, nevertheless he continued to be someone with whom Fulgosio was connected. Prior to his return to France to serve the Duke of Anjou in 1394, Spinelli would also pen a memorandum in which he blamed much of the political turmoil of central Italy and the schism itself on the papacy’s historical claim to temporal power over the papal states. He proposed that this be replaced by a protectorate under his master, Louis of Anjou; with the pope left as a purely spiritual ruler.124 It is obviously unknown whether Fulgosio was aware of Spinelli’s ideas or the world of political patronage which may have prompted or required the elderly diplomat to formulate them, however they were certainly controversial thoughts and ones which touched on a subject with which Fulgosio would much later come in to contact at the Council of Constance. Although Fulgosio does not appear to have studied canon law under Spinelli, he was studying the subject while Spinelli was in Pavia. Fulgosio would later tell his Padua students that, in 1387 for example, he had formally disputed on a canon law text discussing the position of certain legal agents with respect to their principals, ‘Cum olim abbas’ [X.1.29.32], although he also confessed that he no longer remembered what he had specifically argued at the time.125 Fulgosio’s studies on ecclesiastical law culminated on 23 November 1389 when

122 Romano, Niccolò Spinelli, 382. The Venetian authorities allowed the prior, who governed the Crociferi monastery where Spinelli had lodged and which was often used as a place for visitors to stay, to appeal to the pope against the accusations which had been made against him. The Crociferi order in Venice held a valuable monopoly on accom- modating certain visitors to the city; see: Silvia Lunardon, ‘L’ospedale dei Crociferi’, in eds. Idem et al., Hospitale S. Mariae cruciferorum. L’ospizio dei crociferi a Venezia, (Venice: IRE, 1985), 32. 123 It may be conjectured that the reason Spinelli was not lecturing publicly at Pavia was due to the question marks over his status. 124 For Spinelli’s document: Romano, Niccolò Spinelli, 611–623. 125 CODEX II, 153v where Fulgosio says he was then in his sixth year of study. 58 CHAPTER 1 he received a licence in canon law to add to the one which he already held permitting him to teach its civil counterpart.126 He had also already begun to do just that, earning a salary of ten lire to lecture on civil law during the academic year commencing in 1389.127 Fulgosio’s two professors in canon law identified in his licence were Gualterino Zazzi and Giovanni Castiglioni whom Fulgosio would also later confirm in a consilium had been his canon law tutor.128 It must have also been around this time that Fulgosio began to earn his first significant amount of money from writing consilia. In a case brought before the college of doctors at Pavia when he was still “at a tender age”, Fulgosio later explained to his students, he had presented an over abundance of arguments to the court because it was the first consilium that he had ever written for a dispute of any value (in this case, a dispute valued at 5,000 ducats).129 The final stage in Fulgosio’s formal legal education came on 23 January 1391 when the jurist, by this time twenty-four years old, was made a doctor of both laws in a ceremony at Pavia cathedral. The performance of the most personal elements of the occasion fell to his teachers: Cristoforo and Giovanni

126 Romano, Niccolò Spinelli, 609. 127 Maiocchi, Codice diplomatico, I: 152; Giacomo Parodi, Elenchus privilegiorum et actuum publici Ticinensis studii, (Pavia, 1753), 132. Fulgosio’s two masters, Castiglioni and Zazzi were earning salaries six to eight times as great as their student two years earlier: Dante Zanetti, ‘A l’Université de Pavie au XVe siècle: les salaires des professeurs’, Annales. Économies, Sociétés, Civilisations, 17 (1962), 4 24. Fulgosio’s salary was comparable to the amount paid to debutant lawyers at Pavia. See: Paolo Rosso, ‘Professori, studenti e nationes’ in: ed. Mantovani, Almum Studium Papiense, I: 391. 128 ms. Biblioteca Marciana, Venice, V, 2 (=2324), 384v–385r. Fulgosio refers to Castiglioni as by then deceased which would date the consilium to after 31 July 1409 when his master, by then bishop of Vicenza (a fact which Fulgosio also points out), died: Conrad Eubel, Hierarchia catholica medii aevi, (Münster: Librariae Regensbergianiae, 1913), I: 526. The consilium is partially printed in: Fulgosio, Consilia, 178v where Fulgosio’s remarks about his former teacher are also found. The consilium is related to the same case as: ms. Biblioteca Marciana, Venice, V, 2 (=2324), 382v–383v which is also printed as consilium 122 in Fulgosio, Consilia, 187r–v. 129 “Ego vero multum dubitabam: quoniam erat primum consilium, quod unquam fecissem de tanta quantitate. Nam causa erat quinque millium ducatorum”, CODEX, I: 127r. Fulgosio often records the value of a case in which he had been involved even when, as in this example, he was recollecting something from around twenty years earlier. The value of the case could be a surrogate for an estimation of its legal complexity, however more mercenary reasons about how much he would personally earn from the dispute are also likely. Podcasts From The Past 59

Castiglioni and Nicolò Spinelli who presented him with the ring, cap and gar- ments which signified his attainment of his doctorate.130 With the exception of return visits to Piacenza in 1391 where Fulgosio is recorded in the house owned by his brothers there131 and again in 1396 to attend his own wedding, Fulgosio would remain at Pavia university for the next decade and a half, transferring with it to his native Piacenza for two years in 1398 when an outbreak of plague forced the Studium in to exile and during which time Fulgosio would briefly become its chancellor.132 Fulgosio’s salary at the university rose steadily during the period, reaching twenty-six lire a month by the turn of the century.133 A prominent position at the university was also likely to draw Fulgosio in to the circle of the Milanese Visconti dukes, by whom his teacher Spinelli was also employed. Fulgosio would indeed later recount to his students how, aged just twenty-five (i.e. in 1392), he had been privately asked for his view of a case by the procurator acting for one party within it, even after a formal opinion had been given against the procurator by three doctors from the jurists’ college in Milan: Fulgosio’s teacher Cristoforo Castiglioni together with Baldus de Ubaldis and Ubertus de Lampugnano.134 “The procurator told me the facts

130 The document is printed in: Romano, Niccolò Spinelli, 608–10. Fulgosio mentions his age at the time in: CODEX II, 66r. Giovanni Castiglioni had become Bishop of Vicenza only a few weeks before: Eubel, Hierarchia, I: 526. 131 Cristoforo Poggiali, Memorie per la storia letteraria di Piacenza, (Piacenza: N. Orcesi, 1789), I: 24 where Fulgosio appointed his brothers as procurators presumably for a legal case which he and they were involved in locally. Fulgosio is referred to as living in the house, although this could have simply been a temporary formality. In 1401 the brothers would accept the appointment of arbiters to determine a dispute in which they were involved: ibid., 24. 132 Maiocchi, Codice diplomatico, II: 7. Two legal documents notarised at Fulgosio’s home in Piacenza in the summer of 1401, i.e. between semesters, indicate that he probably combined teaching with general legal work as he would later do in Padua: ibid., II: 4 & 8. On the transfer to Piacenza: Emilio Nasalli, Il trasferimento dello studio visconteo di Pavia a Piacenza dal 1398 al 1402, (Milan, 1927) and Pietro Vaccari, Storia della Università di Pavia, (Pavia: Università di Pavia, 1957), 49 where it is evident that some lecturers remained in Pavia. 133 Maiocchi, Codice diplomatico, I: 420. 134 CODEX II, 98r. Fulgosio’s references to Baldus and Uberto da Lampugnano being deceased, but his teacher Castiglioni not being so would date his remarks to between 1400 and 1425. All three jurists were, with Fulgosio, members of the college of jurists at Pavia: Maiocchi, Codice diplomatico, I: 423–424. A decade before Fulgosio’s intellectual encounter with Lampugnano, he had given a public debate at Prague in 1385 on very much the same question of post-election imperial 60 CHAPTER 1 of the case and I agreed with the three doctors”, Fulgosio said. “The procurator replied ‘But you examine the problem better than they do’, which pleased me. When I reflected on the matter some more however it occurred to me that it would in fact be possible to defend [the procurator’s] position.”135 This evidence of Fulgosio’s pride in his youthful ability to best, at least in private conversation, his illustrious teachers would indicate that as a newly laure- ated lawyer he was near to the Visconti courts and the cases which were being brought before them at this time. Towards the end of the century he also acted as an advocate himself in Milan before those tribunals.136 Fulgosio was also present at the ducal grand hall in Milan on 19 February 1403 together with other Piacenza noblemen to swear allegiance to the new duke, Gian Maria Visconti. Fulgosio represented his family and civic faction in this ceremony, taking the hand of the duke to swear allegiance both on his own behalf and that of his brothers.137 Such activities show how much the

rights which Fulgosio himself would address in Constance. Jiří Kejř, ‘Die Prager Vorträge von Uberto de Lampugnano’, Studia Gratiana, 27 (1996), 248–269. 135 As so often the launch pad for this reminiscence was Fulgosio’s discussion of a matter the class was then considering. He continued: “una confirmatur sententia quam dixi, contra illustres iuris civilis doctores tunc superstites, cum quidam testimento suo instituisset filiam in mille aureis dotis nomine, et in casu quo filia moriretur in etate pupillari dispo- suisset ut mille aurei venirent ad pauperes Christi; et cum questio esset commissa tribus doctoribus illustribus et egregii collegii Mediolani do. Baldo, Alberto Lampugnano, quorum anime sunt in pace. Tertio dominus meus dominus Christopherus de Castilliono, qui superestes est, consulverunt contra pauperes [. . .] Cum autem pars pauperum invenisset se preventum ab aliis illustribus doctoribus, procurator pauperum venit ad me, qui tunc eram iuvenis xxv anno, et in primis narrato casu et dixi idem quod illi doctores. Sed ille dixit inspiciatis melius et ego fui contentus. Cum autem inspexissem, comperi me posse defendere partem pauperum”, CODEX II, 98r. Jurists were more likely to discuss a case with the procurators of a litigant, as Fulgosio shows in this real world example, than with the client directly: Kirschner, ‘Consilia as Authority in late medieval Italy’, 114. 136 See, for example: DIGEST I, 185v where Fulgosio, after discussing a particular legal question told his students that “cum hec questio incidisset de quinquaginta millibus ducatis et hec questio fuisset commissa collegio Placentinorum, ego fui advocatus pro una parte et ivi Mediolanum et allegabam [the text which they were then studying, ‘Et non tantum’ [Dig. 5.3.19]”. Given that Fulgosio is known to have been in Piacenza for two years from 1398, it would suggest that his journey to Milan to act as an advocate in the case brought to the college of jurists in Piacenza dates from this time. Fulgosio separately also refers to a case where his opinion was linked to the college of Milan jurists at: ibid., 254v. 137 Caterina Santoro, Il registro di Giovannolo Besozzi, (Milan, 1937), 22–23. Fulgosio would later relate to his students in Padua that one of his younger brothers had achieved public fame (i.e. served the public) before he had in life because he had sons of his own; however in 1403 Fulgosio represented the whole Fulgosi faction in the ceremony before the duke. “Memini me fratrem habuisse minorem me etate, sed maiorem Podcasts From The Past 61 jurist still combined his academic career with obligations to the noble house from which he had come. It also indicates his proximity to his father in law, Bartolomeo Malvicini, at this time;138 since he was next in line after Fulgosio to kneel before the new duke and proffer his hand in obedience. In addition to such familial obligations, Fulgosio was also engaged to prepare a re- compilation of the statute book of Mantua by Francesco Gonzaga; a work of editorship which he had certainly completed by 1404 but which he probably finished a few years before.139

2.c From Pavia to Padua

In 1407, however, and in what were very tumultuous times following the death of Gian Galeazzo Visconti, Fulgosio was invited to abandon his post in Pavia and transfer to Padua. It is customarily assumed that since the jurist did not go to Padua until 1408 that Fulgosio turned this offer down. This is possible, however it is worth considering that such an invitation may have been part of an elaborate ritual by which a man like Fulgosio arranged a move to a new university. Even an individual of Fulgosio’s standing and growing wealth may have been unable to be seen negotiating a transfer directly, and on the basis of equality, with Padua university’s new Venetian overlords. It may have

propter numerum liberorum: et ideo prius fuisse admissum ad honores, id est administrationem reipublice, quam ego” CODEX I, 101v. Fulgosio’s brother Antonio seems to be the most likely candidate in this regard. He was, for example, sitting as an arbitrator on cases in his home in Piacenza as early as 1389: ASPc, AN b. 458, 26v–28r (for a later example in 1396 see: Falconi and Peveri, Registrum Magnum, IV, 1210). However, like Fulgosio, he did not marry until 1396, doing so a month before Fulgosio, and thus for Antonio to have been preferred over Fulgosio because of the fact that he had sons of his own suggests a date of 1398 (1397 if they were twins) at the earliest. Whatever titles or local honours Antonio Fulgosio was holding at around this time would need to be compared to the fact that Raffaele Fulgosio was by that time a lecturer at Pavia; itself presumably counting as a position of civic honour. In 1407 when a similar act of allegiance occurred, Fulgosio brother Ladislavo attended as a procurator for another individual: Leopoldo Cerri, ‘I Leccacorvi marchesi di Seminò’, Bollettino storico piacentino, 11 (1916), 96. 138 On the family at this time: Luigi Arata, ‘Il rettore Antonino Malvicini e la famiglia Malvicini Fontana’, Bollettino storico piacentino, 11 (1916), 228–232. 139 Isabella Lazzarini, ‘Il diritto urbano in una signoria cittadina: gli statuti mantovani dai Bonacolsi ai Gonzaga (1313–1404)’, in: eds. Giorgio Chittolini and Dietmar Willoweit, Statuti, città, territori in Italia e Germania tra Medioevo ed Eta moderna, (Bologna, 1991), 399; Mario Vani, ‘Gli statuti di Francesco Gonzaga IV Capitano’, Atti e Memorie dell’accademia nazionale virgiliana di scienze lettere ed arti, 56 (1988), 190–195. 62 CHAPTER 1 been necessary to orchestrate matters more politely in order that the request from Venice appeared to be a petition by one city (Venice) to another (Pavia) rather than simply being an invitation directed by Venice to Fulgosio personally. What Fulgosio may have possessed at this time, therefore, was something more comparable to an option to relocate; something which, given the right circumstances and a suitable pretext, he could execute, but which could not be immediately accepted by him without his having first won round his paymasters in Pavia to the idea. Obtaining their approval may have been necessary before Fulgosio could have simply accepted Venice’s proposal directly. The political situation in Pavia at the time during the youth of its count, Filippo Maria Visconti, may also have necessitated that Fulgosio act with dis- cretion. Castellino Beccaria, possibly by this date a relation by marriage to Fulgosio, dominated both the city and the person of Filippo Maria,140 however opposition to him was increasing in early 1408 and culminated when an alliance led by the condottiere Facino Cane organised itself against both Filippo Maria and his brother, Gian Maria. By March 1409 Beccaria had abandoned Filippo Maria and sided with Cane,141 however these political developments would have been highly disruptive for private individuals caught in their midst. The declining influence of Beccaria in Pavia and the rise of Facino Cane may therefore have been the occasion for Fulgosio to leave the city and seek a post elsewhere.142 He was certainly personally connected to at least one individual who earned Cane’s displeasure. In 1408 the general beadle of the university of Pavia, Giovanni Vallegiani de Mortara, was imprisoned by Cane.143 Two years

140 See: Nicola Criniti, ‘Castellino Beccaria di Robecco’, DBI, 7 (1970), 454–458. 141 Ibid., 456. 142 His teacher, Cristoforo Castiglioni, grandfather of the author of the Courtier, is said to have left Pavia around 1405 due to an outbreak of plague and the advent of war involving Facino Cane. He was also said to have taken up arms himself before transferring to Parma: Paolo Sangiorgio, Cenni storici sulle due università di Pavia e di Milano, (Milan, 1831), 49. In his Codex commentary Fulgosio mentions an outbreak of plague in Pavia during which public officials took refuge by working in their own homes: “et vidi tamen tempore epidemie in civitate Papie officiales privatas domos habitantes”, CODEX I, 48r. 143 See the letter dated as 18 January 1408 in which the university petitioned for a replacement due to de Mortara’s absence of more than six months as a result of his imprisonment: Maiocchi, Codice diplomatico, II, 100. Mortara’s salary as a beadle appears in the financial records of the university for both the years 1407/8 and 1408/9. In the latter academic year he was only paid a fraction of his salary due to his imprisonment, with his replacement receiving the payments instead. This would indicate that it was in January 1409 rather than 1408 that the university had to seek a replacement for their imprisoned beadle. Podcasts From The Past 63 later however Vallegiani was free and was employed as Fulgosio’s personal beadle in Padua.144 If a man later associated with Fulgosio like Vallegiani had sufficiently won Cane’s disfavour in 1408 to be imprisoned, then it is possible that his later master had also not been popular with the condottiere at this time. A year before Vallegiani was seized, Fulgosio had abandoned Pavia in order to take up his next teaching post against the backdrop of such potentially difficult political conditions and where it may have been prudent or necessary to leave the city quickly. Fulgosio would later remark to his students in Padua, for instance, that all of the consilia from his time in Pavia had been lost or destroyed.145 Fulgosio did not however abandon Pavia in 1407 and journey directly to Padua. His next academic post would instead be a short term appointment in Siena; which may be a further indication that he had to find a new posting hastily. Several pieces of evidence record the jurist’s time and activities in Siena. A repetitio which he gave at Siena in 1407 appears within the printed commentary on the Codex text ‘Cum quis’ [C.1.18.10],146 and a Bologna manuscript also shows that Fulgosio lectured on the text C.2.4.6 whilst there as well.147 This would suggest that a certain amount of ad hoc teaching was required of him there on different books of the Codex. In the Digest Fulgosio also remarked that he had lectured on one of its texts, ‘item si [rem] distraxit’ [Dig. 5.3.25.1], whilst in Siena which further suggests a certain open-ended teaching programme.148 On the journey south to Siena, Fulgosio first passed through Genoa

On the activities of the general beadle at Pavia with regard to the production and circulation of books and, in particular the records of their activities which survive in annota- tions within manuscript codices, see: Simona Gavinelli, ‘Manoscritti a Pavia tra Studium e biblioteca del castello’, in. ed. Mantovani, Almum Studium Papiense, I: 715–717. The name of Mortara’s predecessor, Ambrogio Mazzi (general beadle in c. 1406/7) appears in one of the civil law codices studied by Gavinelli, however Mortara does not. 144 In a document signed at Fulgosio’s own home there: ASPd, AN2, 71r. Mortara would later return to Pavia as a beadle in 1419 and seven years later had become a student of law there himself: Maiocchi, Codice diplomatico, II: 186 & 234. 145 See below, p. 109. 146 CODEX I, 36v–39v. 147 ms. Collegio di Spagna, Bologna, 255, 6r–7v. 148 DIGEST I, 184r. The studium in Siena was closed for a time at this period and re-opened in October 1414. From 1408, little teaching activity was undertaken. See: Peter Denley, ‘Academic rivalry and Interchange: the Universities of Florence and Siena’, in: eds. Idem and Caroline Elam, Florence and Italy. Renaissance Studies in honour of Nicolai Rubinstein, (London: Committee for Medieval Studies: Westfield College, 1988), 195. Fulgosio’s experience of apparently fragmentary teaching would appear to fit this picture of interrupted activity at the university. 64 CHAPTER 1 and recalled in his commentaries how he was quizzed whilst there about the legal position of an amnesty granted by Boucicault, the city’s French governor.149 Fulgosio’s residence in Siena for the teaching year 1407/8 is of especial interest since it coincided with one of the most critical moments in the history of the great schism. Through the winter of 1407 the papal court of Gregory XII resided in the Tuscan city,150 having made its peripatetic way up through Italy with the ostensible objective that the Roman pope Gregory would meet his adversary from Avignon, Benedict XIII, in Savona in what would have been, had it taken place, surely one of the more extraordinary summits in history. The failure of both popes to meet in Savona and negotiate an end to their schism would be the catalyst for the cardinals from both colleges to abandon their papal masters and convene the Council of Pisa, setting thereby in train a sequence of events which would culminate in the Council of Constance. Whilst he was in Siena Fulgosio clearly had some contact with the curia since his collection of consilia includes a case involving an auditor of the rota who had imprisoned an individual in Siena on the request of a local merchant in what appeared to be an incidence of a judge overstepping his jurisdiction. The unnamed auditor was also apparently in contravention of an agreement which Gregory and the city fathers in Siena had made to the effect that the pope’s courts would not intervene in secular cases in the city whilst the pope was in residence except for those matters related to lay members of the curia.151 These references to Gregory’s curia being in Siena mean that this consilium must date to after January 1408. A second consilium involving the abbot of a monastery in Volterra and dating from after 1406 is further evidence of Fulgosio’s involvement with cases in

149 DIGEST I, 11v. I have been unable to identify the specific amnesty concerned, however the amnesty granted by the French governor’s lieutenant in 1398 to former rebels (Eugène Jarry, Les Origines de la Domination Française a Gênes (1395–1402), (Paris: Picard et Fils, 1896), 568–574) gives an indication of the legal questions that may have been presented to Fulgosio. What effect, for example, did such general amnesties for previous crimes have on the validity of civil disputes before the courts? Another possibility for the identity of the amnesty would be the treaty signed between Genoa and Venice in 1404 whose terms included the forgiveness of crimes committed by either side against the other: Pasquale Lisciandrelli, Trattati e negoziazioni politiche della Repubblica di Genova (958–1797). Regesti, (Genoa, 1960), 138–139. 150 The fact that Fulgosio’s presence coincided with the pope’s residence in the city is confirmed by ms. Collegio di Spagna, Bologna, ms. 83, 178v; a short consilium which Fulgosio signed as having been written in 1408 “in the time of Gregory XII” and while he was lecturing in Siena. 151 Fulgosio, Consilia, 227r–v. Podcasts From The Past 65

Siena connected to the curia,152 whilst two more, secular consilia concerning the city also date from around this time, one of which being a case brought before the city commune concerning the seizure of Piombino in which Fulgosio referred to having in his possession a consilium by Giovanni Lignano and six other Bologna jurists relevant to the question.153 At Padua a few years later Fulgosio would recall this Piombino consilium and how he had used the earlier work by Lignano and others as support.154 Fulgosio’s sojourn at Siena came to an end in the autumn of 1408 as the final stages of his transfer to Padua were completed. On 10 September, as the Venetian authorities gave instructions to their ambassador ahead of his embassy to both the Sienese and the papal curia, they added to the list of matters related to ending the schism which he was to raise that he should also formally petition for Fulgosio to come to Padua for the forthcoming academic semester.155 Fulgosio was already personally obliged to go to Padua for the next two years according to a document dated 21 June,156 and the ambassador’s task may only have been to gain the formal, face-saving permission from Fulgosio’s Sienese paymasters for the jurist to now leave the city. This public display of protocol may however have obscured a more private set of arrangements. Fulgosio had already been asked by the Venetians in 1407 to go to Padua and the documents which were produced in the summer of 1408 in Siena in which Fulgosio was contracted for a two year teaching spell may have simply represented Fulgosio publishing that earlier agreement which he had kept private until then. Rather than then ask the permission of his Siena masters directly to leave, therefore, he could present the document as if it were an invitation by Venice newly received which was then followed up by the ambassador’s formal request to Siena in September. Fulgosio did not however leave for Padua immediately. On 25 September he added his name to those jurists who supported independent action by the cardinals to end the schism in the face of the increasingly recalcitrant pope.

152 Ibid., 205r–v. 153 Ibid., 239r–240v (which concerns the hospital of de Scala in Siena and whose causa must pre-date December 1407 due to the identity of the bishop of Siena involved). 154 DIGEST II, 81r. In the Digest the case is said to relate to Feltre and not Siena, but as the substance of the legal question (whether a theft could be judged by a court not having jurisdiction over the location of the theft) and the common reference to the consilium of Lignano and the six other jurists are the same, I think that the Digest remark can be matched to the Piombino consilium. Feltre may even be a printer’s misreading of Volterra. 155 See: Dieter Girgensohn, Kirche, Politik und adelige Regierung in der Republik Venedig zu Beginn des 15. Jahrhunderts, (Göttingen, 1996), II, 319–320 & 444. 156 Ibid., 444. 66 CHAPTER 1

In moves which would ultimately lead to their abandoning Gregory XII and uniting with the anti-college under Benedict XIII who would similarly defect from their papal master, Gregory’s cardinals had canvassed the opinions of jurists while they were in Siena as to the legal justification for independent action on their part.157 Fulgosio added his name at this time to a consilium written by Paolo da Castro supporting the cardinals’ actions which was then sent to Bologna where the jurists Pietro Ancharano, Antonio da Budrio and Matteo Mattesiliani and others added their own opinions in the first weeks of October.158 Fulgosio agreed with Castro’s opinion that the cardinals were required to attend the planned summit with Benedict’s curia at Savona even if Gregory himself refused to do so.159 If necessary a council should then be convened which could ultimately judge the pope, Castro wrote.160 Although he had not authored the consilium himself, Fulgosio had nevertheless added his name to the growing body of consensus amongst jurists for action to end the schism in the form firstly of independent action by the cardinals and secondly by means of a general council. It is conceivable that Fulgosio personally conveyed Castro’s consilium together with his corroborat- ing signature to Bologna in order for the jurists there to add their weight to the cardinals’ cause in October. Certainly he can not have stayed too much longer in Siena after adding his name to Castro’s consilium on 25 September for by

157 Johannes Vincke, Schriftstücke zum Pisaner Konzil, (Bonn, 1942), 29–39. 158 It was alleged by Gregory and his supporters that both Budrio and Ancharano in particular had been under pressure from Baldassare Cossa, the papal legate ruling Bologna (and who would later become John XXIII), to give the opinions which they did. Budrio was said to have wished to recant what he had argued at the time of his death shortly after the consilium was written. See, for example, the accusations levelled in: Julius Weizsäcker, Deutsche Reichstagsakten (DRTA), (Gotha: Perthes, 1888), VI: 401–402 and Caesar Baronius, Annales ecclesiastici, (Paris: Barri-Ducis, 1874), XXVII: 237–238. Also see: Alison Williams Lewin, ‘Cum Status Ecclesie Noster Sit: Florence and the Council of Pisa (1409)’, Church History, 62 (1993), 183. 159 Fulgosio’s contribution is recorded in a note added to a manuscript of Paulo de Castro’s consilium in Bologna identified by Domenico Maffei. Fulgosio assented to Castro’s consilium “in omnibus”: Domenico Maffei, I Codici del Collegio di Spagna di Bologna, (Milan: Giuffrè, 1992), 534–535. Also see: Andrea Padovani, ‘Consilia e Tractatus di giuristi italiani negli anni del grande scisma (1405–1409)’, GLOSSAE. European Journal of Legal History, 10 (2013), 443 (available at http://www.glossae.eu). Castro’s consilium (without any indication of Fulgosio’s contribution to it) was printed in: Paolo da Castro, Consiliorum sive responsorum . . . volumen primum, (Venice: Haeredes Nicolai Beuilaquae, 1580), 213r–214r. The opinions of Antonio da Budrio (continued by Matteo Mattesiliani) follow the text at ibid., 214r–215v. 160 Ibid., 213v. Podcasts From The Past 67

8 November he was already in Padua. On that day he appeared for the first time as a lecturer in the register of the city’s university.161 Fulgosio himself provided an insight in to the more prosaic aspects of what it meant for a jurist to make the journey north from Siena to Padua at this time. Shortly after his arrival in his new home he would recount to his students how he had left Siena in order to come “here” and added a remark about how financially onerous making that journey had been, alleging that scholars with books, especially law books, were particularly targeted by duties and taxes. “Even if a law book is only worth a shilling, because it’s a book of law you have to pay nine or ten shillings in duty”, he joked. “When I came here from Siena, I would have had to pay more than 500 ducats had I not had safe conduct letters from the Doge ordering people to let me travel without paying duty. [Nicolò], Marquis of Este and some of my Florentine friends also paid the Gabella for me.”162 The costs and difficulties of moving what were after all very valuable legal books from city to city at this time are well known. Professors and students in Padua were fortunate in being exempt from duty on any books which they imported or exported in to the city,163 but this was not the case everywhere. In the winter of 1428 the commune of Florence was required to write a series of letters to Siena on behalf of the jurist Ludovic of Rome who had taken up a lectureship in Florence but whose books had been retained by the custom authorities.164 Fulgosio was thus fortunate in travelling under the Doge’s protection and enjoying, in effect, subsidised travel costs.

161 See: Gallo, Università e signoria, 105. 162 “etiam si non valeret unum solidum, dummodo sit liber legum, solvantur credo novem vel decem solidi. tractant enim peius scholares quam alios. Et credo quod fuerit factum propter studium Bononiense credentes se inde magnum lucrum consecuturos. de civitate Ferrarie quanta pedagia solvantur, per illos passus, non dico vobis. In veritate dum ego venirem a civitate Senarum hunc, solvissem plus quam quinquiginta ducatos de datiis, nisi quod habebam literas passus a serenissimus ducali dominio, que rogabant omnes amicos et benivolos quatenus me transire permitterent absque alicuius datii, vel gabelle solutione, quas mihi servavit illustris marchio Astensis et etiam Florentini, interventu quorundam amicorum quos ibi habebam” CODEX, I, 185v. It is interesting that Nicolò of Este apparently helped Fulgosio in his travels at this juncture as both Fulgosio and his colleague Raffaele Raimondi were later petitioned to abandon Padua and teach at Ferrara by Este. 163 Luciano Gargan, ‘L’enigmatico “conduxit”. Libri e dogana a Padova fra Tre e Quattrocento’, QSUP, 16 (1983), 5. 164 ms. Archivio di Stato di Firenze (ASF), Signori: Missive I Cancelleria 32, 5r, 6v–7r, 20r–v, 22r, 25r. Similar case relating to students from Bologna are at ibid., 38v & 113r. The series 68 CHAPTER 1

Fulgosio began to teach at Padua almost immediately after his arrival in November 1408 and soon began to draw his salary of 500 ducats a year; a sum which gives some sense of the scale of the duty on books to which Fulgosio claimed that he was exposed. The jurist also quickly set up home in Padua. It was there for example that, on 19 August 1409, he invested a sum equal to his entire annual salary with local merchants for three years.165 This was the first of a series of similar medium term investments that the jurist made which were structured as trading partnerships with silk and other merchants to share trading profits but were in effect loans. A further 500 gold ducats, for example, followed a year later,166 and returns on the investments began to flow shortly thereafter. Fulgosio must then already have been wealthy to have invested his entire annual salary almost immediately on his arrival at Padua and to have had sufficient resources to fund his household expenditure for the rest of the year. The jurist might protest in his commentaries about the financial folly of his youth, but he had apparently learned to manage his finances more appropriately as a middle-aged lecturer at the university. Ahead of the Christmas vacation shortly after his arrival in Padua Fulgosio told his students a cautionary tale from his youth which gives some indication of how his financial life had developed. “When I was in the second year of my studies”, he recalled, “a noble invited me and several others to a meal at Christmas. When we had finished eating some of the group began to gamble. Seeing them I thought it was crazy that I didn’t join in too and soon one of the friends in the group had lent me a ducat which I immediately succeeded in losing. I fell in to a deep melancholy, for back then one ducat was to me what 100 would be today as I didn’t have that much money. I still carried on playing though. One ducat became two, and two quickly became three. In the end I had bet sixteen ducats and was desperate, for I had pledged my books against the loan to the friend through my grandfather (“meo avo”). I then decided to play no more and afterwards gradually got my books back over time. If I now want to play I only use a sixth- or quarter-ducat. If I win it cheers me up and I celebrate, and if I lose I just walk away from the game [. . .] And so I say to you that if you want to gamble, don’t do so because you want to win but play just for fun. And if you lose don’t borrow from others like I once did to try and win back your money. For such

of similar records in Florence for the period when Fulgosio was struggling to get to Padua are lost but it is easy to imagine that letters like those for Ludovic of Rome were written to secure the free passage of Fulgosio and his books. 165 ASPd, AN 481, 73r–74r. 166 ASPd, AN 481, 141r–142v. Podcasts From The Past 69 things will distract you from your studies and you’ll just be storing up troubles for yourselves. But now let’s break up for the vacation.”167 Having told his cautionary tale, Fulgosio therefore let his class depart for the Christmas holiday. Fulgosio’s apparent reference in the tale to his grandfather, Branca, and his understandable teenage anxiety both to repay the money he had so rashly borrowed is very interesting. Perhaps the then fifteen year old Fulgosio had secured the money on Branca’s good name and was worried, as well a teenager might be, that he had dragged his grandfather in to being involved in his youthful mistake. That we know that Fulgosio’s father died while he was still very young and that the Fulgosi family was headed instead by Fulgosio’s grandfather adds an illuminating aspect to Fulgosio’s later recollection of the episode to his students. For Fulgosio to have referred without explanation to his grandfather in recounting the tale suggests that he had already shared more information with his students about his own upbringing. The knowledge of the circumstances of the Fulgosi family also explains what might otherwise be a confusing reference to a grandparent in the jurist’s narrative.168

167 “volo vobis dicere quid mihi contingit cum secundo anno iam in studio stetissem. Quidam nobilis in veritate in istis festis (Fulgosio had already mentioned that the vacation propter nativitatem domini nostri was now upon them) me ad prandiam invitavit et plerosque alios et cum pransi fuimus alii consocii ceperunt ludere. Ego videns socii ludere, repute- bam quod absurdum quod ego non luderem: et mutatus fui ab uno socio unum ducatum et statim eum amissi et in veritate magnam melancholiam habui. Nam plus dolebam tunc de uno ducato quam facere nunc de centum, quia pecunie tunc non errant mihi in abun- dantia. Deinde volens ipsum ducatum recuperare ivi usque ad secundum, deinde usque ad tertium, et in tantum quod ivi usque ad xvi et vix tunc fui in desperatione nam libros pignori posueram uni socio avo meo. Or cum sic vidi, deliberavi amplius non ludere: et modum ut melius potui, quesivi exigendi libros meos paulatim, et deliberationem meam bene observavi. Nam si volo ludere accipio semissem, aut quadrantem unius ducati. Si vinco solatior, et gaudeo. Si perdo statim recedo. [. . .] Dico vobis si vultis ludere, non luda- tis pro aviditate vincendi, sed pro solatio et si perditis non ponatis de aliis dicendo volo recuperare amissos, ne incidatis in casum in quem incidi: quia talis amissio interdum faceret vos a studio deviare et sic damnum damno adderetis. Or faciamus hic punctum.” CODEX I, 56r. 168 The “second year” of studies to which Fulgosio refers would have been c. 1383/4. A good example of the family’s position with Branca at its head at around this time can be seen in a document from February 1385 regarding a debt of £(Pc) 100 in which Antonio, Castellino and Ladislavo Fulgosi were described collectively as “fratres Fulgoxi” and as having agreed to the text in the presence of Branca “eorum avo”: ASPc, AN b. 458, Prot. I, 128v. The young Raffaele Fulgosio was also then clearly deferring to his grandfather as head of the family when in difficulty at this time just as his brothers were doing with their own affairs at home in Piacenza. 70 CHAPTER 1

As will be seen in the next chapter, the adult Fulgosio did not always keep away from the gaming tables of Padua, although it is not known if he kept to his teenage policy against pouring good money after bad in the mistaken belief, common to gamblers, that his luck was bound to turn soon. Business investments appear however to have been the way that Fulgosio sought out risk as an adult as an arrangement in to which he entered in 1413 indicates. This was an episode of what might be best described as tax farming and related to Fulgosio’s university salary. On 20 July that year Fulgosio turned down a better financial offer of 1,000 ducats a year to teach in Parma and accepted just 850 to remain in Padua; a decision that is traditionally ascribed to the jurist’s affection for Padua or regard for his teaching career there.169 On exactly the same day that Fulgosio rejected the offer from Parma and Venice secured his continued appointment as a lecturer at Padua however, the senate there also acceded to a petition by students of the university to have the money raised from the city’s tax on prostitutes used to secure the jobs of two doctors of law: Pietro Ancharano and Fulgosio.170 The fact that the two events occurred on precisely the same day suggests that Fulgosio forwent the enhanced salary offered by Parma for a smaller basic wage at Padua but with the additional benefit of receiving a share of the proceeds of the tax. He was swapping a fixed income offer from Parma in other words for a variable, and potentially much larger, amount from Venice. Although the scheme was annulled only two years later, it does both show the esteem in which Fulgosio was held by his students and provides an indication of his own attitude to money and risk. The jurist was clearly wealthy enough to risk a portion of his fixed salary in return for a potentially far larger, but uncertain, reward. Something of the affluent life enjoyed by Fulgosio in Padua at this time can be gauged by considering what is known about his home. This was located in the centre of the city and archival references provide some clues to its size and character. The building was sided by loggia, while Fulgosio’s study was to be found on a second floor.171 It was evidently large enough to accommodate comfortably, if the number of witnesses listed in various documents attested at the house are taken as a guide, half a dozen or more people at a time, even if sometimes

169 See, for example: G. Cogo, ‘Brunoro dalla Scala e l’invasione degli Ungari del 1411’, Nuovo archivio veneto, 5 (1893), 314. 170 Giovanni Scarabello, ‘Per una storia della prostituzione a Venezia tra il XIII e il XVIII secolo’, Studi veneziani, 47 (2004), 26. 171 ASPd, AN481, 142v & 326r. Also see: Roberto Cessi, ‘Il Soggiorno di Lorenzo e Leon Battista Alberti a Padova’, Archivio storico italiano, 40 (1907), 261: “in domo habitationis . . domini Raphaelis Fulgoxii in studio suo posito a latere superiori dicte domus”. Podcasts From The Past 71 the individuals are recorded as having signed the document whilst in the shade under the loggia outside. The house was certainly however large enough to allow Fulgosio to rent accommodation to students there. His nephew, Aluisio Fulgosi, was one such tenant in 1426 when he came to the city to study under his uncle.172 It was quite common for lecturers to rent rooms to their students in this way. Fulgosio’s colleague Prosdocimo de’Conti would play host to the young Nikolaus von Kues for example when he pursued his studies in Padua.173 Despite its central location the house retained a certain rusticity. Fulgosio’s neighbour, for instance, the jurist once informed his students in yet another aside from lectures, kept a hay store near to Fulgosio’s home which Fulgosio considered to be a fire hazard.174 Fulgosio himself stored grain in an outhouse in his garden, and also kept chickens there, stored wine and jars of food preserved in oil and stacked firewood ready for winter.175 In an inventory taken after the death of his wife, Giovanina Beccaria, even a quantity of cheese was recorded as being stored which it may be conjectured was a type of gorgonzola.176 Inside the home itself, colourful cloths and hangings abounded, with silks and beddings decorated with garlands, pictures of animals and lilies. Giovanina Beccaria also possessed significant amounts of jewellery, whilst other valuables were stored by the couple in large chests and, in the case of money, locked away in a box made from ivory. To manage the household and attend to domestic chores, Fulgosio and Giovanina Beccaria owned two slaves, Margherita and Buona,177 whom

172 A civil law student named Gracino fil. Bonifacio de Gentilibus de Tertona is recorded as living at Fulgosio’s home in May 1412: Paolo Sambin, ‘Su Giacomo della Torre (†1414)’, QSUP 6 (1972), 156. A document from 1426, ASPd, AN989 c. 32, shows that this practice continued. In it two civil law students, Simone di Campagna and Jacobus fil. Stephani of Brescia, were recorded as residing in Fulgosio’s home in 1426 together with Fulgosio’s nephew, Aluisio. 173 Paolo Sambin, ‘Nicolò da Cusa, studente a Padova e abitante nella casa di Prosdocimo Conti suo maestro’, QSUP, 12 (1979), 141–145; who also lists other students whom Conti accommodated (ibid., 144). On Prosdocimo de’Conti’s career, see: Belloni, Professori giuristi a Padova, 303–306; Benjamin G. Kohl, ‘The Paduan elite under Francesco Novello da Carrara (1390–1405). A selected prosopography’, QFIAB, 77 (1977), 217–218. 174 DIGEST I, 224r. Fulgosio was discussing a legal text about the rights of property owners to object to the actions of their neighbours particularly regarding fire hazards and added “et sic habeo etiam ego vicinum qui tenet fenum prope domum suam”. 175 These items appear in the inventory taken after Beccaria’s death in 1437 and printed in Appendix Two below. 176 ASPd, AN 628, 571r which mentions “caxeis dulcis”. 177 ASPd, AN145, c.131. Beccaria was known familiarly as Giovanina: ibid., AN482, 411r. 72 CHAPTER 1

Beccaria bought from a Venetian widow in 1420.178 Fulgosio also had the services of personal retainers.179 The family could also afford to eat with silver cutlery engraved with the Fulgosi coat of arms, while both a black and white belt180 and the seal which Fulgosio used to sign legal documents were decorated with the same Fulgosi heraldic symbols.181 To help with university administration, Fulgosio also had his own usher or beadle. Giovanni Vallegiani held this role in 1410 after his liberation from imprisonment at the hands of Facino Cane in Pavia; whilst Arcangelo de’Medici appears to have succeeded him and appears in several documents related to both the jurist’s academic and personal life. As has been mentioned above, de’Medici collected his fee from Fulgosio’s students at the end of the teaching year in 1423, and can be seen as present as early as 1416 in the Fulgosio household as a witness to a property transaction.182 This was the sale of a property recorded in Giovanina Beccaria’s name and, in common with the 1413 tax farming agreement, appears to have been a further investment ruse. Beccaria, who was originally from Pavia, had recently petitioned for Paduan citizenship which was a precondition to her then being able to transact with local property.183 Her husband then lent her the money

178 Paolo Sambin, ‘Giuristi padovani del Quattrocento tra attività universitaria e attività pub- blica. I. Paolo d’Arezzo (†1433) e i suoi libri’, in: Università e società nei secoli XII–XVI, Atti del nono Convegno Internazionale di studio (Pistoia, 20–25 settembre 1979), (Pistoia, 1982), 386. 179 See, for example, the accusation of theft from Fulgosio’s stable made by Fulgosio’s familiar, Angelinus de Alemania, in August 1410 against one Martinus de Alemania: ASPd, Atti giudiziari civili, Sigillo b.41 f.1, 13v. Angelinus testified “quod die sabati xxiii infrascriptis mensis hora xvi furate fuerunt de stabulo dicti domini Raphaelis res” which belonged to Angelinus and which he proceeded to list. Other witnesses from other houses alleged that Martinus had stolen from them as well. Angelinus would remain as Fulgosio’s familiar until the time of his death and received a small legacy in Fulgosio’s will: see Appendix 1. 180 ASPd, AN628, 571r. 181 Many examples of Fulgosio’s seal are attached to his consilia in: ms. Biblioteca Classense Ravenna, 485 vol. III and VII. A copy of Fulgosio’s handwriting and his seal from a Florentine manuscript are also printed in: Murano, ‘Raffaele Fulgosio’, 144. 182 ASPd, AN486, 434v & 437r. 183 A statute of 1271 had set out the law requiring foreigners to become citizens before they could acquire property locally: Gli Statuti de Padova, (Padua: G. Fabriano, 1551), 139v. This law also stated that new citizens should have been resident in Padua for at least ten years prior to becoming a citizen. It seems unlikely that Beccaria would have met this requirement by 1416 if she and her husband had only arrived in 1408. I am unaware of any age bar for admission to citizenship in Padua; a legal requirement which would be useful in determining Beccaria’s minimum age in 1416. Podcasts From The Past 73

FIGURE 1.1 An example of Fulgosio’s seal attached to a consilium. ms. Biblioteca Classense Ravenna, 485/VII, c. 135.

FIGURE 1.2 Detail of Fulgosio’s seal with its legend: RAFFAEL FULGOSI UTRIUSQ. IUR. DOC. ms. Biblioteca Classense Ravenna, 485/VII, c. 135. 74 CHAPTER 1 to fund the property transaction,184 in an arrangement which smacks of tax planning. Purchasing the house, which was in the countryside beyond the Savonarola Gate in the north west of the city, in Beccaria’s name rather than his own may have meant that Fulgosio did not need to secure Paduan citizenship himself, which in theory would have debarred him from lecturing at the university.185 However the arrangement also meant that he would not be liable for local taxes. A Padua statute issued just four years after Giovanina Beccaria bought the property reaffirmed that those who had been newly granted citizenship were obliged to pay these levies.186 By having his wife become a citizen and purchase the property in her own name, Fulgosio may have been able to preserve his exemption from contributions to the Paduan authorities.187 He may also simply have made the arrangements in order that, as a Piacenza nobleman, he retained his citizenship in his homeland and thus protected his property rights there. There could, however, have been other less-mercenary and more human reasons why the couple chose to buy a house in this way outside the city together with its “woodshed with a straw roof”.188 A separation whereby Beccaria left the city to live on her own seems rather implausible for the time but is a remote possibility, whereas the possession of a home in the country to which the couple could flee on the all too frequent occasions when the plague brought its manifold miseries to the city of Padua seems more likely. Fulgosio is known to have fled the city because of the threat from the disease in 1420 and it was common practice for individuals in his situation to do that, as was most famously recorded in Boccaccio’s tales. Fulgosio’s illustrious colleague at Padua, Francesco Zabarella, is known to have adopted the policy,189 as did his master Cristoforo Castiglioni when the disease broke out in Pavia in 1424.190

184 ASPd, AN486, 434v (for the sale), 435v–436v (for the loan from Fulgosio), AN482, 411r–414r; AN4873, 135r (for Beccaria’s citizenship petition in May 1416). The properties were at Santa Maria Nuova (i.e. the modern Chiesanuova). 185 Denifle, ‘Die Statuten der Juristen-Universität Padua’, 420–421. 186 Statuti de Padova, 139v–143r (sic). New citizens were also obliged to swear allegiance to Padua’s Venetian overlords. 187 In his will, Fulgosio would bequeath a property which he owned in Santa Maria Nuova to his nephew which may indicate that he felt that the property was in effect his own rather than separately belonging to his wife. In her will, however, Beccaria would leave money to the church and hospital or school in Santa Maria Nuova. 188 ASPd, AN486, 412v. 189 ed. Leonardo Smith, Epistolario di Pier Paolo Vergerio, (Rome: Istituto storico italiano, 1934), 422. 190 Parodi, Elenchus privilegiorum, 25. Podcasts From The Past 75

The fact however that Beccaria purchased more than one property at this time191 would tend to suggest that the primary goal of the acquisitions was investment, with the deals structured in such a way so as to minimise tax, protect Fulgosio’s own citizenship status and earn rental income. Whatever the explanation for the property transactions made through or on behalf of Beccaria, she and Fulgosio nevertheless appear to have got on well. In the printed commentaries, Fulgosio occasionally spoke about his wife and did so with affection. “Those who have beautiful wives as I do”, he told his students one day while discussing, not so charmingly, a text about prostitution, “will always be uneasy”,192 whilst on one excessively hot summer day he remarked: “But the hottest time of the year is upon us. I don’t know how you’ll all cope. I recommend two things. Firstly, just as I said to my wife that she should put away her heavy fur clothes in the [linen] chest, you ought to do the same as it’s now the worst time of the year for heat. Secondly, you ought to do what I’m doing, for the liver suffers when it’s humid and if I don’t do this I can scarcely live. I don’t think that any of you will be opposed to these suggestions. But this will do for today’s bit of admin (pro novo), let’s now get on with our next lesson.”193 What precisely Fulgosio was doing when he encouraged his class to follow his example for the good of his liver is not clear, perhaps loosening a shirt but- ton, but the class room scene which his comments depict is certainly immediate and vivid. The short sentences which the scribe uses clearly capture Fulgosio mid-flight, chatting to his students before the start of a class and advising them on their attire in summer,194 and perhaps backing up what he

191 At least three properties were purchased by Beccaria; the two referenced above and a third discussed by Paolo Sambin, Giuristi padovani, 370. 192 DIGEST I, 189v: “Illi enim qui habent pulchras uxores, ut ego habeo, multas malas haberent inquietationes: sed iudicio meo, ille auth. loquitur de lenonibus qui emunt puellas. Ipsas autem mulieres que se sponte prostituunt non nominat ille text.” 193 “Hora venit in veritate isti sunt magni calores. nescio quomodo faciatis vos. Ego duo proposui. primum est, quia dixi uxore mee, quod ipsa ponat amicum suum in coffino. Ita etiam debetis vos facere. nam est pessima res tempore istorum calorum. Aliud est, quia ego facio, quod iecur natet in humido. aliter enim vivere non possem. ita credo vos facere. non credo quod multum sitis inimici sitis. hoc sufficiat pro novo nunc prosequamur lectionem nostram.” CODEX I, 148r. The inventory drawn up in 1439 (see Appendix 2) indicates that Fulgosio and his wife possessed numerous chests (‘coffini’) for storing clothes. 194 Students of the time appear to have worn specifically identifiable clothing like a brown cloak, with a scarlet one reserved for the rectors of student groups. See: Erice Rigoni, ‘Il tribunale degli scolari dell’università di Padova nel medioevo’, in: Atti e Memorie della r. accademia di scienze e lettere ed arti in Padova, 59 (1942/3), 24–25. 76 CHAPTER 1 was saying with actions. A few folio earlier in his commentary and thus a few days before in the class’s studious journey through the legal corpus, Fulgosio had referred to the heat wave that he and his students were then enduring. It was, he declared, the worst that he had experienced in twenty years. “You can’t sleep . . . and are constantly thirsty”, he said and implied that it was a divine punishment for corruption in civic or perhaps university elections.195 On another occasion Fulgosio explained how he would use a sign or ring to communicate with his wife. “Sometimes when a friend is collecting something at my house, I will give him a signet and say that he should give this to my wife, as otherwise she won’t hand over what is at the house”.196 The ring would be a way, in other words, for Raffaele to let Giovanina know that the visitor was genuine and was to be allowed to take whatever there was at the house to collect. The overall picture then is of a very affluent household being quietly managed together by the couple with Giovanina, who was from a prosperous background herself, both willing and able to take a full part: transacting in her own right to buy household slaves or real estate. Later, after her husband’s death, she appears to have taken on the burden of administrating his complex financial estate and, amongst other things, also organised the building of, and closely supervised the expensive artwork for, his lavish tomb.197

2.d Fulgosio’s Married Life

Giovanina Beccaria was not, however as was seen above, Fulgosio’s first wife. In 1396 he had married a distant relation in Piacenza, Mabilina Malvicini, from a noble family with long connections to the Fulgosi family and possessing, like

195 In an ambiguous reference perhaps to the election of university rectors, Fulgosio remarked: “Hec sunt meliora, quam practice quas quotidie facitis. Sciatis in veritate quod uterque vincet. Nam ille qui plures voces habebit, vincet suum propositum, ille qui pauciores, vincet ducentos ducatos, quos expenderet in ipso rectoratu. Et credatis mihi, quod iste practice erunt causa plurimarum infirmitatum. Nam calores ut videtis sunt ita intensi, sicut viderim iam xx ann. et vos immediate post cibum vaditis, et non potestis dormire, nec dirigere: sitis vobis abundat, et vos bibitis multum. In veritate non transiet annus, quod aliquem penitebit. Or redeamus ad propositum.” CODEX I, 146r. 196 “Sicut aliquando amico accepturo aliquid ad domum meam, dabo signum, et dicam des uxori mee: quia aliter non daret” CODEX II, 24r. This could of course have also been a hypothetical example explaining a more general point to his students. 197 See below, in chapter 11. Podcasts From The Past 77 them, solid Guelf credentials.198 Mabilina’s father, Bartolomeo, for example had been at the head of forces which seized a castle in the name of the pope in 1373.199 He was also wealthy enough to have individuals deposit money with him200 and was one of the ambassadors from Piacenza who returned from Milan in 1397 with a privilege from the Visconti to found the university in the city,201 where Fulgosio and others began to lecture shortly thereafter when Pavia university transferred lessons temporarily there. The two families were close enough for a papal dispensation due to consanguinity to be necessary before the marriage could proceed,202 whilst Fulgosio’s deceased brother, Pietro, had owed money to Bartolomeo Malvicini in 1385 which Raffaele’s grandfather, Branca, had had to settle as the administrator of Pietro’s estate. This would indicate that the families were also bound by financial connections as well.203 On 23 September 1396, therefore, and less than two weeks after Mabilina had in the presence of her father sold certain assets presumably in order to exclude them from the estate which would later become her husband’s,204 Bartolomeo Malvicini and Fulgosio agreed the terms for Mabilina’s dowry. Fulgosio was to receive land worth £(Pc) 800 in Borgonovo Val Tidone to the north-west of the traditional centres of Fulgosi power and a further £(Pc) 1,600 in cash.205 A sum of £(Pc) 120 was earmarked for the wedding celebrations themselves and Fulgosio promised, as was customary, to

198 Fulgosio’s great-uncle, Galluccio, was summoned to Avignon by the pope in the fourteenth century together with Dondacio Malvicini, Bartolomeo’s father, and other Piacenza noblemen for example: Poggiali, Memorie storiche, 246. The families would unite their interests, in effect signalling the decline of the Fulgosi, by the end of the fifteenth Century. See: Bellosta, ‘Le «squadre» in Consiglio’, 49–50. 199 Umberto Locati, Cronica dell’origine di Piacenza, (Cremona: Vincenzo Conti, 1564), 212–213. 200 As evidenced for example in the amounts being deposited with him in c. 1381/83 at: ASPc, AN b.458. Prot. I, 42v–43r, 44r, 89r. 201 ed. Lodovico Muratori, ‘Chronicon Placentinum’, in: Rerum Italicarum Scriptores, (Milan: Soc. Palatinae, 1730), 557. 202 Campi, Dell’Historia ecclesiastica di Piacenza, III: 173. The Malvicini had been active in seeking out similar licenses from the pope in the past. In 1390 and shortly before his death, Mabilina’s elderly grandfather Dondacio travelled to Ferrara and Pavia to obtain a plenary indulgence from the papal legate there for his own sins and those of his wife, also named Mabilina: ibid., 168. 203 ASPc, AN b. 409 Prot. 7, 97v–98r. 204 ASPc, AN b. 189 Prot. 19, 35r. The land sold was valued at 100 gold florins. Mabilina attested in the document that she was over twenty-five years old. 205 ASPc, AN b. 189 Prot. 19, 44r–45v. Fulgosio is described as a doctor of both laws in the document and as the son of Giovanni Fulgosi, son himself of the late Branca. 78 CHAPTER 1 give his future bride a gold ring. The couple must have married later that very same day in Piacenza as a second document issued on 23 September refers to Mabilina as Fulgosio’s wife. In it Fulgosio indefinitely leased back to his new father-in-law the lands which he had received as a dowry in Borgonovo, receiving two capons for the grant and accepting an on-going annual payment from Bartolomeo of sixteen bushels of wheat.206 If, as seems likely, Mabilina was indeed Fulgosio’s first wife then their marriage was however soon to end in tragedy. For, when recalling his first marriage several years later, Fulgosio would tell his students that his wife had not lived for very long. As so often with Fulgosio, the prompt for this autobiographi- cal remark had apparently been the legal text which he was then teaching his students and which had recalled the tragic event to mind. The legal text concerned related to whether a dowry was repayable should a man’s wife die before their marriage had been consummated. The text prompted Fulgosio firstly to tell his students about a case from Pavia for which he had given his formal opinion “a year and a month ago”.207 A bride there had fallen ill and died only three days after being married. Along with several other jurists Fulgosio had been asked whether the dowry should be kept by the widower or be repaid to the bride’s family. He had argued that it should not as there had been the expenses of the wedding, clothes and so forth to be paid for and local statute did not make the status of the dowry dependent on the marriage being consummated. “Little faith was however given to our consilia”, continued Fulgosio who claimed that this was because “he who rules [in Pavia] now, ruled then as well” (a possible reference to Facino Cane). The dowry was therefore returned.208 Once again, by finding which of Fulgosio’s surviving consilia these remarks to his students related, we can both attempt to date Fulgosio’s class room remarks about the case and identify the couple in Pavia who were involved in it. They were in fact a jurist whom Fulgosio would have personally known from his own time in Pavia, Agostino d’Ozzola and his wife Giovanna of Milan.209 Fulgosio’s consilium on the case may well come

206 ASPc, AN b. 189 Prot. 19, 45v–46v with a further document in which Bartolomeo paid the first year’s rent at 46v–47r. 207 “questionum quam vidi de facto ultimo anno, et ultimo mense, quo discessi a Papia”. CODEX I, 16v. 208 “quia tunc regnebat potens, que nunc regnat, modica fides fuit data nostris consiliis”. The dowry was therefore paid “quod satis fuit iniquum”. Ibid., 16v. 209 Fulgosio, Consilia, 56r–v. The consilium is filed with those of Fulgosio’s colleague Raimondi who wrote the text which Fulgosio then also signed. At least one of the fellow jurists writing on the case therefore which Fulgosio mentioned in his printed commentaries must have been Raimondi. “Giovanna di Milan”, the consilium informs us, had been married Podcasts From The Past 79 from 1410–11 and he would therefore have been recalling it with his students a ‘year and a month later’, in 1411 or 1412.210 In his description, Fulgosio intimated

before and had two sons, but had married Agostino Iocula (A scribal corruption I think for “d’Ozzola”) of Pavia who was then in the Duke of Milan’s service and resided in Milan, although “the marriage was consummated in Pavia”. Agostino d’Ozzola was a jurist from Pavia, who was awarded his licence in civil law at the university just two years after Fulgosio received his own degree. Both men matricu- lated in to the college of doctors at Pavia in May 1400. (Maiocchi, Codice diplomatico, I: 152, 425). In 1402 d’Ozzola was sent on university business to Milan (ibid., II: 77) and in 1414 was serving in some capacity as a collector of taxes for Milan from Pavia. It was there, on 31 May 1414, for example that Duke Filippo Maria Visconti allowed tax payers in Pavia who had already paid their dues via d’Ozzola that year to use that payment as a credit against a new levy which the duke wanted to raise (Carlo Morbio, Codice visconteo-sforzeco, (Milan, 1846), 165). Whatever the precise nature of Ozzola’s role in tax collection (he is not listed as ducal treasurer or tax collector in Milan at this time (see: Caterina Santoro, Gli uffici del comune di Milano e del dominio visconteo-sforzesco (1216–1515), (Milan, 1968), 174–175), he was evidently performing some kind of treasury or tax collection role with respect to Pavia and on behalf of Filippo Maria. A year later he would serve as podestà in Visconti- controlled Cremona (ibid., 323 where, in a possible original scribal error, he is recorded as being from Parma), however by 1420 he had left Visconti service. In July that year he was in Muggia, representing the town when it came under Venetian rule and rewriting a local statute. He was then employed in Trieste in 1421 (Pietro Kandler, Codice diplomatico istriano, (Trieste: Coen, 1850), IV: 1636) and became a Venetian citizen in September the same year. (Online database: Civesveneciarum.net, “Augustinus de Ozula”). In 1426 d’Ozzola nevertheless sought to encourage anti-Venetian forces, writing to both the deposed patriarch of Friuli, Ludwig of Teck, to encourage him to invade the now Venetian-controlled patriarchate and the Visconti duke to confirm his support: Luigi Osio, Documenti diplomatici tratti dagli Archivj Milanesi, (Milan: G. Bernardoni di Giovanni, 1869), II/i, 184–187. In the same year he is also recorded as a teacher in Pavia once more: Maiocchi, Codice diplomatico, II: 228). 210 Putting the biographical details about d’Ozzola alongside the information contained in Fulgosio and Raimondi’s consilium can help us to estimate when the jurists composed it and therefore when Fulgosio told his Codex students in Padua that he had written the work “a year and a month” ago. Given that Fulgosio and Raimondi co-authored the consilium it would seem likely that it must post-date the latter’s arrival in Padua in 1409. The consilium itself also tells us that, shortly after the death of his wife, Agostino, who had been in Visconti service in Milan, returned to Pavia and lived there. The implication of this remark is that d’Ozzola had married in Pavia and said that the marriage was consummated there but had only returned to the city after his wife’s death which would have contradicted that statement. The most likely date range for when d’Ozzola returned to Pavia from the details of his biography would be at some point prior to 1414 when he is recorded as acting as a treasurer of some kind for Filippo Maria Visconti in Pavia. If, prior to 1414, he was with Duke of 80 CHAPTER 1 that the case centred on the question of whether the marriage had actually been consummated. D’Ozzola had apparently stated that it had been, in Pavia, however other evidence in the case appeared to suggest that he had been in Milan at the time.211 After discussing this case with his class, Fulgosio continued to add a very personal comment. Using the expression “pro novo” as he frequently did when

Milan in Milan then this would suggest he was in the service of Gian Maria Visconti who was Duke until his death in 1412 while Filippo Maria was based in Pavia. Perhaps having been in Gian Maria’s service in Milan d’Ozzola returned from there to Pavia during Facino Cane’s rule of the city from 1410. Pavian natives living in Milan were forbidden to leave the city in December 1410 (I Registri dell ufficio degli statuti, 22.), and it can be speculated that this had delayed or complicated the arrangements for his marriage, perhaps requiring the wedding to take place by proxy. We also have Fulgosio’s remark in the commentaries about Pavia being ruled at the time he gave his consilium by “he who rules there now”, which adds to the picture the complicated political situation in Pavia. This is probably a reference to Facino Cane who died in Pavia in 1412. This would date Fulgosio’s remarks to his Codex I students to 1409–12 and the case itself to a year and a month before then in 1408–11. If Fulgosio was addressing his students later, when Visconti rule resumed in Pavia, then the case would post-date d’Ozzola’s departure for Cremona. It seems more likely therefore that d’Ozzola contracted a marriage from Milan with Giovanna who was then in Pavia in c.1410, but returned there only after her death to face a law suit brought by her family over the dowry before Facino Cane’s courts. Fulgosio then recounted his contribution to the case to his students prior to Cane’s death in 1412. If Fulgosio was as unpopular with Cane as the beadle who worked for him in Padua at around the same date (i.e. c. 1410) had been, then this could be one explanation for why Fulgosio’s consilium was ignored. Fulgosio’s wife, Giovanina Beccaria was also however from Pavia and from a family some of whose members were also intimately connected to events in Pavia at the time. In 1409 Filippo Maria Visconti ordered that the house of Castellino and Lancelotto Beccaria in Pavia be daubed with a painting of the two men being hung (Giuseppe Garone, I reggitori di Novara, (Novara: F. Merati, 1865), 218). Castellino was indeed killed after Visconti rule resumed in the city. 211 This insight in to the background to the d’Ozzola case is a good example of how Fulgosio’s commentaries permit the human aspect of a case to be seen better than is often possible from the dry, legal record contained in his consilia. His consilium merely mentions that the couple’s marriage was consummated in Pavia and that Agostino was in service in Milan. It is only from Fulgosio’s commentaries that we are able to understand why this remark was relevant. Doubts about whether the marriage had been consummated at all were being alluded to in the consilium, possibly because eagle-eyed lawyers in the case had noticed that documents presented by d’Ozzola showed him to have been in Milan at a time when the short-lived marriage was supposedly consummated in Pavia. Fulgosio’s linking of this with his own personal experiences thus brings the reality of the case in to the open in a way that is not apparent by reading the consilium in isolation. Podcasts From The Past 81 recounting personal or informal remarks to his students as if to indicate to them that what he was telling them was for information purposes only (his comments about their clothing in summer for example were prefaced in the same way), he commented that “this legal question wasn’t relevant to me in my first marriage, even though at the time it caused me a great deal of anxiety.” “My first wife had not been with me even for five nights when she fell ill and died. The marriage had however been consummated and the dowry was therefore paid in full, in reality in the flower of her virginity because, if the truth be told, she was still just a girl.”212 If this was, as seems likely, Mabilina Malvicini then she was actually not that much younger than her then thirty-year-old husband Fulgosio himself at the time of her marriage and possible untimely death. As part of the pre-marital legal arrangements in September 1396 she had attested in a document to having been more than twenty-five years old. The fact that this legally required enquiry was made of her suggests that she must have appeared youthful enough to invite the question. It seems likely therefore that the couple were of similar ages when they married.213 The jurist’s recollection in his lectures of the tragic fate of his first wife must however be unpacked somewhat. His remarks appear to be a partly veiled admission in the privacy of the class room that, at the time of his first marriage, he had lied in order to keep a dowry which should have been repaid since his marriage had never been consummated. This was also the strong implication in the d’Ozzola case. It is also quite possible to read Fulgosio’s statement in a rather less charitable light than that of a bereaved husband remembering in later life the tragic fate of his young first wife. The concern which he was recording may have been rather more mercenary in nature. The ‘anxiety’ which

212 “Nunc pro novo: hec dubitatio locum non habuit in persona mea in primo matrimonio, licet fuerit mihi tunc magna tribulatio: cum prima mea uxore non steti nisi quinque noc- tibus, et ipsa infirma et mortua est: quia secutus fuit copula carnalis, lucratus fui dotem satis amplam, in veritate in flore sue virginitatis, et secundum veritatem erat satis pulchra puella.” CODEX I, 16v. 213 In, to modern eyes, deeply conservative fashion Fulgosio would lament to his Codex students how standards were falling nowadays and it was increasingly common to see older women marrying younger men. He had also seen very old men marry young women and added a comment explaining this to those of his students who were not ‘men of the world’: “hodie vero, hoc correptum est, et de iure et de facto. Nam mulieres veteres accipiunt libentius iuvenes, quam senes. Et non innitio homini mundi nisi vobis qui estis iuvenes: licet dicatur communiter quod quantum potest levare unum sextarium frumenti potest generare et vidi magnos viros senes accipientes uxores iuvenes et inter se et famu- los suos generare filios.”, CODEX I, 236r. 82 CHAPTER 1 he was remembering may have been that, as in the d’Ozzola case, he would be forced to return the dowry, in this case the £(Pc) 2,000 of land and cash which he had received from Mabilina’s father. Fulgosio has traditionally been thought to have married on two further occasions during his life following the death of his first wife, with a Giovanna Nicelli from a local Piacenza noble family thought to have been his second spouse.214 This tradition appears to have originated from a misreading of a marriage record from later in the fifteenth century involving a later, although possibly distantly related, “Raffaele Fulgosi”.215 It would appear therefore that following the death of his first wife Mabilina, Fulgosio in fact only remarried once, to Giovanina Beccaria from Pavia whose first documentary appearance as Fulgosio’s spouse is in 1411 when the couple were in Padua.216 If Mabilina died in 1396, it can therefore be speculated that it was during Fulgosio’s time as a lecturer in Pavia from around the start of the new century until his departure for Siena in 1407 that Fulgosio married for a second and final time. Giovanina Beccaria’s identity remains somewhat unclear. Her father was an Antonio Beccaria,217 however this was a popular name and several men named Antonio from or connected to the extensive and politically important Beccaria family in Pavia appear in records of the time.218 An Antonio Beccaria

214 As, for example, in: Bukowska Gorgoni, ‘Raffaele Fulgosio’, 700. 215 This later Raffaele Fulgosio married Giovanna Nicelli in 1457. See the records and associated corroborative will and marriage documents relating to Giovanna’s sisters from the same period in: Daniele Andreozzi, Nascita di un disordine. Una famiglia signorile e una valle piacentina tra XV e XVI secolo, (Milan: Unicopli, 1993), 35. This Raffaele Fulgosio would also be the last of the main branch of the Fulgosi: Bellosta, ‘Le «squadre» in Consiglio’, 49. The confusion may have originated due to the presence of a 1474 document within the archive of the Malvicini (i.e. Fulgosio’s earlier wife’s) family which relates to this later Raffaele Fulgosio and his wife Giovanna Nicelli: ASPc, Fondo Eredità Mandelli, Ser. III, 3, c.7. 216 Both Fulgosio and Beccaria appear as man and wife as witnesses to a document from 10 May 1411 in: ASPd, Atti giudiziari civili, Sigillo b. 42 f. 1, 34r. 217 ASPd, AN 145, c.130r from 1427 where Giovanina Beccaria is recorded as the daughter of the late Antonio Beccaria. 218 See, for example, the discussion concerning an Antonio Beccaria mentioned in Pier Candido Decembrio’s life of Fillipo Maria Visconti: Muratori, Rerum italicarum scriptores, XX: 239–241. On the Beccaria family in Pavia, see: Riccardo Rao, ‘Il sistema politico pavese durante la signoria di Beccaria (1315–1356): <élite> e pluralismo’, in: Mélanges d’École française de Rome. Moyen Âge, 119 (2007), 151–187 and Flavio Fagnani, ‘Origine e sviluppi della signoria dei Beccaria su Arena Po’, Bollettino della Società pavese di storia patria, 42 (1990), 55–119. Podcasts From The Past 83 arbitrated a family dispute in 1392, for example, and acted as a procurator in a truce agreed in 1407 involving, amongst others, Castellino Beccaria, the de facto ruler of Pavia at the time, and his brother Lancelotto;219 men who were soon to be embroiled in a series of conflicts with Filippo Maria Visconti which would culminate in both of their executions. Documents indicate that Giovanina Beccaria also had a brother named Mussetto220 and, in October 1413, an individual of that name, whose father was, like Giovanina’s, named Antonio Beccaria, was accused by Filippo Maria Visconti of rebellion and had his property around Pavia confiscated as a result.221 It seems highly likely that this Mussetto Beccaria was indeed Giovanina’s brother and that they therefore both belonged to a branch of the extended Beccaria family who were close cousins to Castellino and Lancelotto Beccaria, the military and political figure- heads of the family. The charge of rebellion against Mussetto makes sense in this regard as it occurred during the years when Castellino and Lancelotto were engaged in a three-way, on/off, power struggle for Pavia with the new Visconti duke on one side and Facino Cane on the other.222 It is possible furthermore that Mussetto and Giovanina were from the ‘Santa Giuletta’ branch of the family. A Mussetto Beccaria from Santa Giuletta was named among those seeking the intervention

219 Fagnani, ‘Origine e sviluppi’, 109–111. 220 ASPd, AN 628, c.221r where Giovanina Beccaria’s niece, Donina, is also mentioned, possibly Mussetto’s daughter. 221 Antonio Noto and Bruno Viviano, Visconti e Sforza fra le colonne del Palazzo Archinto, (Milan: Giuffrè, 1980), 32. Mussetto had obtained the properties concerned from Nicolino Beccaria whom Visconti had already proceeded against. Presumably as a result of finding that the possessions from which he had ejected Nicolino were technically now held in the name of Mussetto, the duke had proceeded against Mussetto as well and donated the confiscated lands to a local abbey. In a truce agreed in September 1415, Mussetto’s banish- ment was reversed and his property restored: Giacinto Romano, ‘Contributi alla storia della ricostituzione del Ducato milanese sotto Filippo Maria Visconti (1412–1421)’, ASL, ser. 3. 7 (1897), 76. A Mussetto Beccaria “filius q. Antonii” was also a witness to a document in Pavia on 14 May 1413 at: Francesco Gasparolo, L’Abadia di Santa Giustina. Il monastero di Santo Stefano o Santa Maria di Banno, (Alessandria: Succ. Gazzotti, 1912), II: 50–55. 222 Castellino Beccaria had held significant if not de facto power in Pavia at the time of the duke’s minority and sided with Cane against Visconti in 1408 and again in 1410 when Beccaria helped Cane to seize and sack the city. Conflict between the Beccaria family led by Lancelotto after Castellino’s murder or execution in 1413 and the Visconti continued then, broken by truces, through the early years of the 1410s. See: Criniti, ‘Castellino Beccaria di Robecco’, 454–458. 84 CHAPTER 1 of the emperor Sigismund in the conflict against the Visconti in 1413.223 This idea is lent further credence by a consilium which Fulgosio himself would compose concerning actions taken by a ‘Mussetto de Beccaria’ in respect of an unnamed daughter. The legal background to the consilium is unclear, however having discussed Mussetto’s actions, Fulgosio moved on to consider the apparently connected question of feudal rights relating to the knight, Manfredo Beccaria.224 This would appear to have been the patriarch of the family from whom both Castellino and Lancelotto’s Robecco branch of the family and that of Santa Giuletta were descended. For this Mussetto Beccaria to have been involved in a legal matter together with the patriarch of both Robecco and Santa Giuletta branches of the dynasty suggests that he was a relation from those branches; and the fact that Fulgosio wrote the consilium suggests that it was a document which he had prepared for his brother-in-law. Santa Giuletta lies to the south of Pavia towards the historic Beccaria stronghold of Voghera and Giovanina Beccaria can therefore be imagined growing up in the castle or fortified homestead there in the rural foothills of the Apennines in a similar geographical setting with respect to the plain below containing Pavia as Fulgosio’s youthful home in Veggiola held with respect to Piacenza. In 1397 Mussetto Beccaria of Santa Giuletta competed in a joust held in Pavia, with both Castellino Beccaria and Agostino d’Ozzola, the future dowry litigant, numbering amongst those in attendance.225 Mussetto also played a prominent role at the funeral of Gian Galeazzo Visconti in Pavia in 1402226 and it is easy to imagine Giovanina Beccaria being present at these important events in the city involving her (probable) brother and at a time when their relative Castellino Beccaria was the pre-eminent political figure in Pavia. In 1400 his position was such that he would even play host to the Eastern Emperor.227 Fulgosio was also in the city for much of this period lecturing at the university and a marriage between the son of a Guelf nobleman from Piacenza and the daughter of a cousin of the city’s de facto ruler (and Ghibelline) at this time makes some sense. When the couple’s marriage was actually arranged is however not known. Fulgosio did remark in his commentaries that when he

223 Alessandro Cerioli, Pietra de’Giorgi nell’Oltrepò pavese e dintorni, (Milan: Scuola Tipo- litografica figli provvidenza, 1906), II: 364. 224 Fulgosio, Consilia, 300v–301v. It is conceivable that the unnamed daughter of Mussetto Beccaria in the case was Giovanina Beccaria’s known niece, Donina. The feudal lord of the rights related to Manfredo Beccaria was the abbot of San Pietro in Ciel d’Oro in Pavia. 225 Giuseppe Robolini, Notizie appartenenti alla storia della sua patria, (Pavia: Fusi & Corrili, 1838), V: 301. 226 Giovanni Vidari, Frammenti storici dell’agro ticinese, (Pavia: Fusi, 1886), 293. 227 Criniti, ‘Castellino Beccaria di Robecco’, 456. Podcasts From The Past 85 married a woman from Pavia the dowry agreement was governed by Piacenza and not Pavian law228 which could suggest either that he had specifically negotiated this concession from the bride’s family or that the marriage negotiations took place by proxy, perhaps when Fulgosio had returned to Piacenza during the plague-enforced exile of Pavia university there at the turn of the century. A further possibility could be the time of the truce agreed in 1406 between Castellino Beccaria and Piacenza’s Guelf families which did not explicitly include the Fulgosi but did include their Guelf associates, including the family of Fulgosio’s first wife, the Malvicini. If Beccaria married Fulgosio at around this time, then she may have accompanied him when he left Pavia and headed firstly to Genoa and then on to teach in Siena. Alternatively she could have joined him when he finally reached Padua in 1408. From this point, however, the peripatetic years were to be behind both Fulgosio and his wife and a long period of stable and affluent residence in the city began. Fulgosio appears to have kept out of the local political intrigues which occasionally flared in newly Venetian Padua. He himself had no personal reason to object to Venetian overlordship and much to be grateful to it for, not least financially. However there was equally no particular reason for him not to form friendships and associations with individuals who had been connected to the former régime. Fulgosio’s student, Francesco Alvarotti, for example, was the grandson of the ruler of Padua whom Venice had toppled;229 whilst Giovanina Beccaria’s niece would marry Peragino Badoer of Peraga who had been among the ambassadors who had formally handed Padua over to its new masters in 1406.230

228 Fulgosio noted in the Codex: “Ego Placentinus accepi uxorem Papiae, et constitui donationem uxori, stare teneor secundum statutum Placentiae, non Papiae.” (cited by von Savigny, Geschichte, 237) The dowry for Fulgosio’s first marriage in 1396 also included, as was customary, a statement that the agreement was to be governed by Piacenza law: ASPc, AN b. 189, 45r. 229 Blason Berton, ‘Una famiglia di giuristi padovani’, 99. Fulgosio also wrote a consilium which indirectly mentioned the heirs of Francesco da Carrara: Fulgosio, Consilia, 150v–151r. 230 Donina Beccaria was the wife of Peragino Badoer: ASPd, AN 628, c.221r. Badoer also competed at the joust held to celebrate Padua’s conquest: Sanudo, ‘Vitae ducum’, 831–832. The family had had a complicated relationship with the ruling Carrara dynasty in Padua. Peragino and his brother were implicated in the pro-Milanese actions of their family against Cararra rule of Padua in c.1389, but unlike their relatives were acquit- ted: David Syme, Galeazzo Gatari, The Fortunes of Francesco Novello da Carrara, Lord of Padua, (Edinburgh: Constable & Co., 1830), 37–38. Some relatives of the Peraga were however compelled to go in to exile at this time; see: Kohl, ‘The Paduan elite’, 212. Also see: Melchiorre, ‘Canonici giuristi a Padova’, 97–98. 86 CHAPTER 1

Fulgosio’s lectures at the university in Padua proceeded therefore without particular regard to local political considerations; moving on each year through the heat of the summer and the passage of festive seasons of fast or celebration and, when not required to visit Venice for business or driven in to temporary absence by the plague, Fulgosio appears to have remained in Padua living together with Beccaria in the same district and probably the same home, for the rest of his life. The only major exception to this homely routine was in the winter of 1414/15 when he headed north towards a destination regularly visible in the hazy skyline from Padua: the Alps and on from there to the lakeside city of Constance. CHAPTER 2 Fulgosio’s Teaching Style and Professional Work

“Pro novo”, “Pro solatio” and “Pro serio?”

1.a Teacher and Lecturer

That Fulgosio was a good teacher is an idea which has come down to the present day through early modern studies and is evidenced both in the premium in salary which he commanded compared to his peers and in the successive attempts made by cities like Venice or Ferrara to recruit him for their respective universities. The printed commentaries can however be used to make a more direct assessment of Fulgosio’s teaching quality and style. This is particularly the case with respect to the jurist’s habit of discussing his recent professional work or consilia with his students. Not only would this practice have brought home to Fulgosio’s students how the specific legal text which they had now reached in their long journey through the legal corpus was relevant to the busy, real world audible outside their classroom, but it would also have helped them to hone the debating and disputational skills which would be useful to them in their later professional lives. That Fulgosio so often provides a sense of timescale in these remarks – stating that he had been consulted on a matter ‘the other day’ or ‘last week’ and so forth – must have made his students feel very much like they were sharing in the active working life of a professional lawyer. The legal texts which they were studying were not dry, arcane texts embodying abstract or quasi-philosophical discussions but living texts which their master was using on a daily basis to answer the legal questions which were put to him. And they were being trained for a life to be lived, like his, in the Law. The kind of career that might await them is alluded to by Fulgosio at one point in the Digest when he explained to his students how they would need a particular law “when you become potestates terrarum”, or in other words governors (podestà) of one of the cities in the then fast-expanding Venetian empire or elsewhere in Italy.1

1 “quando vos eritis potestates terrarum servabitis hanc legem” DIGEST I, 27v. An unscientific snapshot at the careers of some of Fulgosio’s students graduating in, for example, July and August 1415 just after his return from Constance evidences how common this career path was. The students receiving their degrees from this period (Zonta,

Fulgosio’s bringing together of dry legislation and the real world for his students was not however limited to examples extracted from his formal consilia, advisory or advocacy work. He would also show them how the law could be used to comprehend a variety of informal questions in the world at large. Fulgosio appears to have succeeded in teaching this important lesson about the all-encompassing nature of the law whilst retaining a personable charm. In the Codex, for example, the good-humoured Fulgosio told his students that he would like to “pose them a question which I was posed yesterday evening after dinner and which comes from a real situation. As you know, it’s said that Doctor Raffaele Fulgosio is a great doctor and that he knows everything”. The puzzle which the jurist placed before his students concerned a game of dice played for money. Fulgosio’s description of the game would suggest that it was a variation of that referred to in France at this time as ‘trinquet’ in which a board was drawn up with white and black areas and then marked with numbers. Players collected points depending on the value rolled by their die, the areas on to which those dice fell and their conjunction with the numbers on the board.2 “Yesterday”, Fulgosio continued, “a certain Florentine was in the loggia where they play the tables and he designed three white and nine black tables, ordering them in his own way. And he dared anyone to throw a white, saying he’d give them odds of two to one, but there were no takers. A Venetian then appeared who held himself to be a great master of such things and said that he would play and take white. He said he’d bet ten ducats and the Florentine twenty. But, looking in his purse, the Venetian could only find nine new ducats but, as he thought he would win, he said that he’d bet nine if the Florentine did the same which both then did willingly. The game was thus set up and they began to play and the Florentine won. A friend of the Venetian then said to him, ‘You know what you should’ve done: you made a mistake calculating the table, if you’d done it like this you’d have won’. The Venetian agreed and the Florentine said that he was prepared to bet again and they both agreed that both would now bet twenty-five ducats each. Each man went home and two hours later returned with the money, the game was set up again, they played and the Florentine won again.”

Acta, IV: 92) were for instance: Goffredo di Gaeta (later an advocate at the Naples court); Troilo Boncompagni (later a senator in Rome and podestà in Florence and Siena); Innocento Cornio (later a vicar for a count in Urbino); Paolo Dotti (later a jurist in his own right in Padua); Giovanni q. ser Jacobi of Macerata (unknown). 2 On trinquet: Jean-Michel Mehl, Les Jeux aux Royaume de France du XIIIe au début du XVIe siècle, (Paris: Fayard, 1990), 95–96. Teaching Style and Professional Work 89

“This made the Venetian very depressed as he had now lost 34 ducats and he returned home where he set up the same table, got some dice and began to play by himself to see if there was any way that he could win and he discovered that it was impossible to win unless the Florentine had, as they say, smacked his head against a brick wall, or in this case had played deliberately badly. So considering that he wanted his money back, he petitioned the podestà claiming that the game was not really a game as it’s in the very nature of a game that it is something which either side stands a chance of winning.” “I was asked about the legal position”, Fulgosio continued, “and responded that gambling was banned by common law as were number games but given that by [local] statute it was legal, I said that I had never seen in all the corpus of law a similar case. But I said I knew several people who were more knowl- edgeable in these things than me, for when you are sick you summon a doctor not a lawyer, and so in gambling one ought to speak to those who are expert in such matters.” “So I wanted to pose the question to you, as I know that you are very expert on certain things and so you will want to think about the problem and give me your judgement, for the more I learn about something the better I understand it.”3

3 Fulgosio explained that he wanted to pose a question to them “que mihi fuit formata heri post cenam et pendet de facto: quia dicitur quod do. Raphael Fulg. est unus magnus doctor: creditur quod omnia sciam. Unus Florentinus pridie in logia, ubi luditur ad tabulas, facit unum partitum ponendo tres tabulas albas et novem nigras eas ordinando suo modo: et si quis accipiebat albas, ponere volebat duo pro uno: et breviter neminem invenit qui volu- erit ipsum accipiere: tandem unus Venetus venit tenens se magnum magistrum de talibus et dato sibi partito, dixit se velle accipiere albas et convenerunt, quod Venetus poneret decem ducatos et Florentinus viginti. Iste Venetus querit in bursa et non invenit nisi novem ducatos: dixit Venetus, credens se vicisse: ponam istos novem: ponas tu alios novem, dixit Florentinus libentissime et ita fecerunt. Ordinato partito incipiunt ludere et finaliter Florentinus vicit: unus socius illius Veneti, qui videbat, dixit Veneto, O tu nescis, quod tu facias: tu errasti ducendo tabulas: si tu sic duxisses tu vicisses: Venetus respicit et dicit tu dicis verum dicit Florentinus ego sum paratus iterum ponere, si tu vis et convenerunt quod quilibet poneret vigintiquinque ducatos, ambo vadunt ad domum, et intra duas horas quilibet venit cum vigintiquinque ducatis et ordinato iterum partito, incipiunt ludere et vicit Florentinus. Iste autem Venetus valde mestus de trigintaquatuor ducatis, quos perdidit, vadit domum et accipit unum tabularium et tabulas et aleas, et incipit per se ludere, si aliquo modo potuisset vincere et invenit quod non erat possibile quod vinceret, nisi Florentinus dedisset de capite contra murum, ut ita loquar, hoc est, nisi lusisset peius quam fecisset: ideo consyderans de modo rehabendi suos denarios, petit eos coram dominio potestate, dicens hoc non est partitum nam partita sunt quando uterque potest vincere et ubi operatur ingenium ludentium: quesitum fuit a me, quid iuris: ego respondi quod de iure commune ludens est prohibitus et ideo haberet repetitionem nummorum. Sed dato quod esset licitus per statuta, vel alio modo, 90 CHAPTER 2

Once again, then, Fulgosio provides a vivid anecdote of everyday life in early fifteenth century Padua, complete with snippets of dialogue like those between the Venetian, his perhaps not-so-helpful friend encouraging him to continue playing rather than to cut his losses, and the canny Florentine. There is also humour on Fulgosio’s part. The several experts on gambling whom he said he knew appear to have been his own students, or at least he was willing to make the joke to them the next day that they were those experts. When Fulgosio says “And so I wanted to put the question to you”, one could almost hear a break in the text; a break for the class to chuckle politely. There was a serious side to the question as well of course. Although strongly condemned by the church and generally considered illegal gambling was nevertheless sometimes licensed by the state as Fulgosio had indicated. In Padua, for instance, the practice was permitted within certain specifically prescribed areas of the town and was regulated by a system of fines for those who were, like one suspects many of Fulgosio’s own students, too young to play.4 Whether those like the Florentine in Fulgosio’s example who were running games of chance were obliged to run them fairly was therefore a very interesting legal question. Did an activity which was considered immoral and, although sanctioned in prescribed areas, generally felt to be prohibited still have to abide by general principles of fairness and justice? Most legal questions concerning gambling at this time were criminal cases in which those running gambling without licence were punished and not civil suits like the one which Fulgosio had described in which individual gamblers accused those running a game of having, in effect, rigged it. Fulgosio had pointed out, after all, that the Venetian and Florentine had been playing ‘[under] the loggia where such games take place’. The players were therefore presumably playing their game in one of those areas of Padua where gambling was permitted. Under local statute, therefore, the game was legal. The puzzle to be brought before the courts was whether the game had been fair.

dixi me non invenire in toto corpore iuris talem casum, vel similem: sed ego haberem unum vel duos de istis, qui sciunt bene de talibus, et starem eorum dicto. Nam quando unus est infirmus nunquam mittitur pro uno legum doctore, qui curet eum, sed pro uno medico. Ita in ludo debet adhiberi unus vel duo, qui sint periti in illa arte. cuilibet enim in arte sua experto credendum est. Or hanc questionem volui vobis proponere quia scio vos de quacumque re peritissimos et ideo velitis modicum cogitare et mihi iudicium vestrum dare, ut cum super hoc amplius ero edoctus, melius sciam”. CODEX I, 186v–187r. 4 Aldo Angelo Settia, ‘La “battaglia”: un gioco violento fra permissività e interdizione’, in: Gherardo Ortalli, Gioco e giustizia nell’Italia di Comune, (Treviso/Rome: Fondazione Benetton Studi Ricerche, 1993), 128. Gambling was illegal for those under fourteen, but subject to fines based on age for those aged in the bands, fifteen to twenty and twenty or older. Teaching Style and Professional Work 91

Determining that on its own may well have been a challenge given the defi- ciencies in mathematical knowledge about probability at the time (although if any university in Europe had the expertise to do so it was likely to be Padua). As a purely legal question however, the case was a very good example of the kind of out-of-the-ordinary question that might well come before a local court like that of the Padua podestà and it was to employment in top level administrative positions like a podestà that many of Fulgosio’s students were destined. He had furthermore indicated to them in his anecdote the automatic response of a trained jurist to such an unusual question. Scour in your own mind the corpus of law for any legislation concerning the question or anything which could be reasonably made to relate to it by metaphor or extension. To be able to do that, and to do it well, meant knowing the law inside out. A man claims that what should be a game of chance is actually fixed such that only an opponent who deliberately played to lose would in fact lose. Is that an illegal game? One might say that a game in which an opponent who played badly and therefore lost is fair because it is a test of his or her ability. But what if the odds were fixed in the game in the opponent’s favour? Was there any local legislation regarding this? Could one apply other laws which dealt more generally with fairness or deceit to the case? Or did the fact that, as Fulgosio was clear to point out, the players had entered the game willingly represent an acceptance on their part to expose themselves to whatever level of risk it inherently contained? It is evident, then, that the anecdote was to some extent a light-hearted lesson for Fulgosio’s class, but he had also recounted the tale with enough legal clues, like the mention of the gamblers having freely consented to the game, to set his students a challenge. Just like their future professional selves sitting on a regional government bench, they would have to think about the matter and give Fulgosio their judgement. It was a test case for them to practice on in the safety of the classroom, working the matter through perhaps with their teacher. It is clear that Fulgosio had not been formally asked his opinion on the matter himself. In the quote above he does not use the formal word for consulted or advocacy, but the expression “quesitum fuit a me”, ‘I was asked’. A group of friends had asked his private view of the interesting matter and he had responded by noting the obvious points that gambling was supposedly illegal, but that he could not remember (“invenire”) any case similar in the whole corpus of law.5 These expressions are mundane but they are important

5 The fact that Fulgosio stated that he was unaware of any text in the legal corpus specifically addressing the puzzle may have been a trigger phrase which allowed the point to become a 92 CHAPTER 2 because they are clues as to the situation, formal or informal, disputational or judicial, in which Fulgosio was discussing a legal point. Posed a puzzle one evening after dinner about a fracas over a betting game, Fulgosio had replied that he could not think of a single example like the case at hand in the whole of the law books which he had read. These expressions would have an echo in a rather more important question which Fulgosio was to be posed at the Council of Constance. The tale of the gambling Florentine and Venetian provides a very good glimpse in to Fulgosio’s classroom. Often in a light-hearted way, the approachable Fulgosio was using real world examples to help his students comprehend the law and refine their legal thinking. To any student who had heard, perhaps only the preceding Christmas, Fulgosio recount his youthful experience of gambling, there was also something not a little familiar in his tale of a gam- bler who had lost a large amount of money but continued to bet in the hope of winning it all back. Even the expression about how perturbed the Venetian was after the loss of his money echoes what Fulgosio had confessed to feeling himself about his own youthful gambling debts. Despite his advice to his students about betting he was also, from the evidence of this tale at least, still not exactly a stranger to the gambling tables to be found in the shadows of Padua’s loggias. It is clear therefore that Fulgosio often taught his students by means of pos- ing his students questions to be considered or formally disputed. Jurists were known to draw on their own professional case-work to create such quaestiones which could then form the subject of a disputation between or among masters and students in this way6 and for lessons too to be conducted by means of such disputations.7 Fulgosio appears to have used the technique frequently. “You will now think about a response to this question”, the jurist told his students for example at one point in their study of the Codex, “it’s easy to discover the answer if you try”.8 At another point he finished putting both sides of an argument by adding “I doubt what I’ve just said but won’t resolve it [for you] now,

‘quaestio iuris’ worthy to be disputed since no definitive legal answer to it was apparent. See: Bellomo, ‘Factum proponitur certum . . .’, 20. 6 On the use of quaestiones in this way as didactic tools, see: Manlio Bellomo, Aspetti dell’insegnamento giuridico nelle Università medievali: 1. Le ‘Quaestiones disputatae’ (Reggio Calabria: Edizione parallelo, 1974), 78–81. 7 On the idea of lectures by means of disputation, see: Bellomo, ‘Factum proponitur certum . . .’, 9. 8 “Cogitabitis de responso, quoniam querentis facile erit invenire.”, CODEX II, 99v. Teaching Style and Professional Work 93 you’ll have to think about it.”9 On other occasions, a matter was simply left, as he put it at one point in the Digest, for his students to think about it.10 On other occasions, however, Fulgosio shared with his class news which he had heard and which contained legally interesting elements or topics which could perhaps be turned into a class room disputational question. “Since it’s now reached the time to tell news”, Fulgosio remarked, once again delineating a passage of informal discussion to his students with the formula ‘pro novo’,11 “I’ll let you know about one [bit of news], which I heard in Venice. For I was told there about certain brigands who wait in ambush in the morning to attack those going to pray, which is wonderful to imagine happening in such a splendid city. They hide out in the quieter streets and when someone passes by he is robbed, or if he is not inclined to let himself be robbed, he’s killed. This all finally came to the notice of the city authorities who issued a general proclamation that if one of the gang of thieves should make himself known he would be paid 4,000 lire, or 2,000 if he wasn’t from their group. One of the gang duly appeared before the authorities to whom he ought to have reported the crime and accused himself and his associates. Hearing this, the authorities locked him up in a certain room. A little while after, another member of the gang appeared before the authorities and accused himself and his friends of the crimes and also sought the reward. He too was detained in the same small cell. A third man then appeared and was arrested too.” “When I heard all this, I began to ask myself whether all three should get the ransom, as the proclamation was ‘general’ or whether just the first or second man, or if they should share it. But since these men aren’t worthy of any sympathy, it doesn’t need to be discussed. It would be more equitable however, if not all of them are executed, especially as it’s in the public interest not to do so because, if a similar situation ever occurred, it’s a good way to discover who the members of a gang are.”12

9 “dubito [i.e. what he had just discussed], et pro nunc non determino, cogitabitis”, CODEX II, 216r. 10 “Aliud dubio moveo, super quo similiter relinquam vos cogitantes”, DIGEST I, 35r. 11 In this case as follows: “Quoniam nunc incipit tempus dicendorum novorum”, CODEX II, 76r. 12 “quoniam nunc incipit tempus dicendorum novorum, idcirco vobis referam unum, quod in civitate Venetiarum audivi. Nanque dictum mihi fuerat, quod quidam latrunculi sur- rexerant insidiantes de mane, euntibus ad predicationem: quod mirabile est profecto in tam splendida civitate cogitasse. Hi stabant in viis, non multum frequentatis, sed in qui- busdam arctissimis et minus aliis usitatis. Et cum aliquis transisset, spoliebant eum. Et si quis esset qui non pateretur se spoliari occidebant illum; tandem devenit hoc ad noti- tiam dominorum, qui prudentissime ut in aliis fecerunt fieri proclamationem generalem, 94 CHAPTER 2

Fulgosio may well have recounted this anecdote as another test case for his students to work through with him, however it also indicates the strong and natural bias within his character to considering all kinds of questions from a legal perspective; jumping in this case to consider potential legal puzzles even where he had neither been asked formally or informally his opinion on them. The reaction which this teaching style produced in Fulgosio’s students can obviously only be imagined, however it seems likely that a teacher who would link the dry subject of his lesson to real world anecdotes, often recounting them with humour, would have been popular. That some of Fulgosio’s students recalled what their teacher had recounted to them in this way can be observed in the work of one of his students. Several years later, the former student added a comment to the end of a fourteenth century consilium written by Giovanni Lignano and Riccardo Saliceto which dealt with a theft which had been committed in one jurisdiction but punished in another, that he had once “heard Raffaele Fulgosio when he lectured at Padua say that five other Bolognese professors also signed this consilium”.13 The legal opinion at the end of which this comment came was the same one, in other words, that Fulgosio had used in his own work about the city of Piombino in c.1409 which Fulgosio, as was seen in chapter one, had discussed shortly afterwards with his students in Padua. There he had told them how he owned a copy of Lignano’s consilium and that

ut si quis ex sociis criminis manifestaret, haberet ex publico quatuor millia librarum. Si extraneus duo millia. Facta proclamatione, unus ex sociis accessit ad dominos, quibus hoc denunciari debebat, et socios et se accusavit, hec cum audissent domini prudenter fecerunt eum in quadem camera detineri. Paulo vero post, venit alter socius, qui similiter se et socios accusavit et petebat premium qui etiam in carcerem detentus fuit, modo vero spatio per quadrantem unius hore. Ecce tertius socius venit, domni dixerunt illi, vos bene veneritis et fecerunt eum similiter detineri. Cum hoc audissem incepi dubitare, an omnes debeant habere premium: quia proclama erat generale, an vero primus vel secundus. Et si quidem si causa esset favorabilis, esset in utraque parte. Sed quia hi non sunt digni favore, non est disputandum. Equissimum tamen, ut non omnes morirentur, et presertim quia publice utilitatis interest, ne si similis casus occurreret, inveniretur qui socios accusaret.” CODEX II, 76r. Fulgosio’s possible dining host, the banker Gabriele Sorzano (see below, pp. 102–103), was a victim of a similar attack in the 1380s in which he was robbed. The punishments exacted on the robber band at that time would doubtless have been the fate of the individuals discussed by Fulgosio. Of Soranzo’s assailants, one was taken before the banker’s bank and had his hand severed and hung around his head before being taken to the Rialto, executed and quartered. Two other members of the band were blinded and lost their right hands, whilst a fourth assailant was never captured. Reinhold C. Müller, The Venetian Money Markets: Banks, Panics, and the Public Debt, 1200–1500, (London, 1977), 76. 13 ms. Biblioteca Marciana, Venice, V,2 (=2324), 103r. Teaching Style and Professional Work 95 six other Bolognese jurists had co-signed it and that he had quoted from the consilium when writing his own consilium for the case in Siena. Several years later, his student recalled having heard Fulgosio discuss the consilium and was therefore able to identify it. The student had learnt his lesson well. The fact that he recalled Fulgosio having said that he owned the text and had quoted from it, may also indicate that his teacher continued over the years to refer to it in his lectures; or that the student was studying there in the same year that the printed commentaries captured Fulgosio discussing the text. If it is the former then this is of note because in the non-printed, manuscript versions of the commentaries the kind of anecdotes and recollections which we have been considering are generally not as prevalent. In those texts Fulgosio referred much less often to his own consilia or professional work. This could be because his teaching style grew more straight-laced with time, or because unlike the scribe or scribes behind the printed commentaries the writer of the manuscript commentaries excluded Fulgosio’s marginalia and story-telling recollections. The evidence from the former student suggests that it is the latter explanation which is more likely and that Fulgosio kept up a teaching style full of real world examples and anecdotes drawn from his own professional life, being prompted to remember them as he came to a new legal text in the course. Another example of the same phenomenon comes from the work of Fulgosio’s known student, Francesco Alvarotti. Writing in the 1430s and in his capacity as vicar general of Friuli, Alvarotti recalled his teacher’s lectures many years before. The case that Alvarotti then had before him involved the validity of certain notarised documents and this caused Alvarotti to record something that his teacher had once taught him. Fulgosio, he recalled, had told his students about a case about which he had been consulted and which concerned a notary from Vicenza who had been banned for twenty years but who had continued to work in a neighbouring city. Because the population there were unaware of his defrocking, the documents which he had notarised there remained valid.14 Fulgosio had recalled his Vicenza consilium, Alvarotti said, while lecturing on the Digest I text Dig.2.13.6. No such discussion is found on this canon in the printed and surviving manuscript copies of Fulgosio’s commentaries. The consilium which Fulgosio had recalled, however, can be identified. It was an

14 Ziletti, Criminalivm Consiliorvm, I: 131. The principle of ‘common error’ was used to justify the validity of the documents. On the usage of the principle with respect to the schism at this time see: Martin John Cable, Real and Personal Obedience. Pluralism, Sovereignty and ‘communis error’ in the Great Western Schism, (Morrisville, 2006), 19–38. 96 CHAPTER 2 opinion written by Fulgosio’s Padua colleague Raffaele Raimondi to which both Fulgosio and another colleague at Padua, Enrico Alano, added their views.15 The case concerned one Florinus de Lusiana who had been banned from being a notary in Vicenza in 1397 on pain of having his right hand severed, but who had spent more than the last twenty years continuing to work in neighbouring Asigliano. The consilium cannot therefore have been written, and therefore been discussed by Fulgosio in his class room with Alvarotti present, before 1417 at the earliest and probably a little later as Alvarotti gained his doctorate in around 1424/25.16 The fact that Fulgosio’s discussion of the consilium does not appear in the printed commentary of Dig.2.13.6 therefore again suggests that this commentary was written in the period immediately after Fulgosio’s return from Constance in 1415; whilst the omission of the remarks in the manuscript version of Fulgosio’s commentary written in 1423 is probably more due to the scribes for that document generally not recording Fulgosio’s ‘pro novo’ case studies. In addition to sharing his professional experiences with his students or using them as debating points for the class room, Fulgosio also appears to have told his students stories simply for their amusement. We can still hear in the following tale for example that Fulgosio had the ability to tell a joke. Discussing a law which mentioned horses, Fulgosio noted how the text was relevant to those who did not know how to ride. In a pre-mechanised age one can well imagine the serious use that a lawyer might have to make of a text dealing with those who could not ride in, for example, justifying legitimate non-performance of a contract. If an individual could not ride, then perhaps a missed deadline for a contract, a delivery of goods for instance, might be legally excusable. Such laws, in other words, always had their serious sides and potential applications. Fulgosio mentioned for example that sailors were one category of individuals who were often unable to ride. “And when I was in Genoa”, he continued, “I once heard a tale (unum novum) about this”. “A certain Genoese was put on to a horse but had no idea how to ride. Trying to keep the animal still he used his spurs but this only made the horse start to move. When he saw that he couldn’t stop it he called out ‘Hold my horse!’, ‘Hold my horse!’. Letting go of the reins, he clung to the saddle and, seeing that no one ran to his aid, called out, ‘I’ll give a hundred lire to anyone who’ll catch this horse’. But still no one ran to help him. Finally the horse stumbled and he was able to get off and began to curse he who had made the horse because he’d not

15 Fulgosio, Consilia, 32r–v. 16 Blason Berton, ‘Una famiglia di giuristi padovani’, 118. Teaching Style and Professional Work 97 fitted it with an anchor. It was just like the Venetian man who, whenever he wanted his horse to move, would push his foot against a wall.”17 It seems unlikely that Fulgosio told this story to his students for anything other than their entertainment. One can easily imagine that, when told by a jovial teacher perhaps using gestures and a certain pace, this story was likely to delight students in the otherwise stuffy atmosphere of a classroom. The highly irreverent if not blasphemous punch-line about ‘he who created the horse’ being abused for not having the foresight to equip it with an anchor can also surely have not been lost on even the least pious of Fulgosio’s students. One of the essences of humour is, of course, saying something out loud which it is improper even to have thought. On a different occasion, Fulgosio recounted to his students “for fun” (“pro solatio”) a tale which he had heard from his own teacher, Filippo Cassoli. While in Piacenza, Cassoli had been very successful, Fulgosio said, when a particular man had been convicted by the courts of killing another man’s donkey. Cassoli had however contested the verdict, Fulgosio continued, by invoking the authority of a law supposedly called “de asinis pro bestis non pronendis”, or ‘on asses not being considered livestock’ and, Fulgosio added, “the judge was so ignorant that he believed it!”18 Such make-believe legal citations are reminiscent of the comic lists imagined by Rabelais, and the fact that Fulgosio was clearly content to relay them to his students shows an attitude to the law and indeed to legal process that could be irreverent, cynical almost, but also certainly amusing. In the eyes of some, however, it may have been viewed as counterproductive as a teaching method.

17 “Not. secundum illos qui nesciunt equitare, prout sunt communiter domini qui conver- santur in mari: ego dum semel essem Janue audivi unum novum, dum unus Januensis esset super equo, et nesciret equitare, ipse tenebat calcaria affixa equo: quare equus incepit currere, et dum videret se non posse retinere equum, incepit clamare, tenete equum, tenete equum: et dimissa habena tenebat se ad arzonum et finaliter videns quod nemo accurrebat, clamavit si quis tenuerit equum ego dabo sibi centum libras, et nemo accurrebat finaliter equus lapsus se retinuit et iste descendit et incepit maledicere eum qui fecit equum quia non fecit ei ancoram, ita fuit de illo Veneto qui cum ascenderet equum, et vellet quod equus iret, posuit pedem ad muram”, DIGEST I, 238r. 18 “et pro solatio audivi a domino meo do. Philippo de casol. quod ipse haberet multas opes Placentie, et aliquis homo suus accusaretur quod occidisset unum asinum: et iudex con- demnasset cum vigore statuti quod loquebatur de occidentibus bestias alienas, dominus meus dixit sibi quod male facerent: quia erat tex. de hoc in tit. de asinis pro bestis non pronendis: ille iudex quia erat grossus homo credidit. Veruntamen ex communi usu loquendi appellatione bestie continentur asini, que forte similiter continetur in statutis”. DIGEST I, 237v. 98 CHAPTER 2

Cristoforo Castiglioni, who had jointly rented the school room in Pavia with Filippo Cassoli where Fulgosio had probably studied civil law was accused only a few years later in the middle of the fifteenth century of having taught in a disordered manner. “Although the learned are intrigued by a muddle (‘confusio’)”, the critic, a near-contemporary of Fulgosio, would remark, “students are made stupid by it.”19 This criticism of Castiglioni from someone who could conceivably have known the jurist personally suggests that Fulgosio’s teacher had a reputation for lecturing in something of an unconventional manner. In a famous story, his colleague Cassoli was said to have been embarrass- ingly bested by Baldus de Ubaldis in a public debate at Pavia around 1390, just after Fulgosio studied with Cassoli there, when Baldus asked a factual question which Cassoli could not answer and which left him both speechless and “in a confounded muddle”.20 If this story is accurate then Fulgosio’s teacher comes over as something of a boastful showman, a little too confident in his own mastery of his subject, and perhaps rather more interested in performing before an audience than in the more prosaic aspects of teaching. Given that Cassoli and Castiglioni taught together at their own school in Pavia and the existence of comparable criticisms of Castiglioni’s unconventional teaching style, it is possible that both men had a tendency to favour popularity in the class room or celebrity in the university over dry scholarly rigour. Fulgosio too, it should be noted, shared his master’s Castiglioni’s propensity according to the mid-century critic for ‘muddled’ teaching.21 In the irreverent and humourous comments contained in his commentaries, we can perhaps sense something of Fulgosio’s and perhaps therefore his own teachers’ unconventional style and observe a lecturer not being quite as schoolmasterly and distant from his students as he might be. Fulgosio is instead a teacher who entertains his students with a story or two from time to time, perhaps sacrificing by doing so time that might have been better spent on serious study by the class as a result.

19 Lanfranco de Oriano, Repetitiones, (Venice, 1472), unpaginated. 20 The event was recalled by Paolo da Castro: “Ego vidi de isto tex. [which Castro was discussing] fieri verecundiam cuidam doct. vocato Phillipo de Aregio, et legeret hic [i.e. Padua where Castro was then lecturing] et postea venit Papiam, ubi primo legerat et fuerat doctor omnium illorum doctorum, unde fecit quodlibetum super rubric. de testa. asserens velle respondere de quolibet in materia ultimarum voluntarum. Bal. interrogavit eum, ubi habemus quod substitutio vulgaris facta in legato non comprehendat nisi casum quo noluerit vel potuerit. Breviter obmutuit et Bal. apperuit librum et legit istum tex. unde resultavit illi maxima confusio.” Paulus de Castro, In secundam Infortiati partem commentaria, (Lyon, 1585), 92v. 21 Oriano, Repetitiones, unpaginated. Teaching Style and Professional Work 99

At times, Fulgosio appears even to have simply retold popular tales of the day, in what, in the age of Boccaccio and Chaucer, was a high point for the genre. At the end of one section in Digest II for example he recounts a mildly salacious tale about a bishop which one would not be surprised to read in the more restrained pages of Poggio’s often very unrestrained Facetiae. “To compliment the end of this section”, Fulgosio said once again prefacing his joke with a ‘pro novo’ type statement to indicate that it was not a formal teaching point, “there was once a bishop who had been chaste for forty years but who had now fallen ill. His friends came to him and tried to cure him by telling him that his tension would be eased were he to lie with a woman, but he refused to do this. Seeing him so obstinate, his relatives encouraged him by telling him what St. Jerome had once written about a man who refused to drink wine even though it would cure him.” The man had died and was thus deemed responsible for his own death and therefore damned. “This story moved the bishop who then took a wife and his tension was eased. Afterwards however he did not cease to regret it. His family thought that it was the sin which he regretted and urged him not to, but he replied and said ‘I don’t regret the sin, I just regret not having done it earlier!’ ”22 It seems quite likely that such tales were in circulation at the time and Fulgosio was simply passing them on to his students. On other occasions, however the joke appears to have been Fulgosio’s own. Commenting on a glossator’s analysis of a legal text concerning prostitutes in which words relating to sharing things equally appeared, Fulgosio recalled a scene presumably from a brothel which is appalling to modern eyes but was doubtless received by his

22 “Pro complemento huius titoli [which they had been studying] volo ponere unum novum: cum quidam episcopus castus stessiset per quadraginta annos: infirmatus est: et accepit viros eminentissimos ut curam eius facerent: qui sibi dixerunt quod liberari non posset nisi cum muliere ageret: quibus resistit. Tamen parentus eius videntes eius duritiam, ne moreretur hortati sunt ut vellet cum muliere agere: et allegebant ei quod scribit sanctus Hieronymous.” Jerome had recounted how an individual had not wanted to drink wine even though it might cure him. However “quia nunquam biberat et damnatus est quia causam morti prebuit. Unde ille episcopus motus hoc: cum muliere egit et liberatus est: postea non cessabat lugere: parentes eius opinabantur quod lugeret peccatum suum hor- tabantur eum ne lugere: quia ex sua persona multas animas salvas faceret sanctitate sua: quibus respondit non lugeo ex peccato sed lugeo quin citius incepi: or vos estis stulti et facistis senem stultum.” This tale only appears in the 1499 edition of Digest II and is deleted in the better known 1554 edition: Fulgosio, Lectura . . . super secunda parte ff veteris, § ‘Titius’. I have been unable to find a version of this particular tale in the published literature on tales of the period which I have consulted. 100 CHAPTER 2 all-male student audience with laddish amusement. “A man”, Fulgosio began after his customary ‘pro novo’ type remark, “once offered a girl to a group of men and asked them to share a part of her, choosing either that part of her above or below her belt. The men were in doubt as to which they should chose and I said that for the sake of decency I would chose the part above the ‘zone’ [i.e. above her waist], but I would actually take that part above the zone which began at her ankle”.23 Fulgosio was thus playing on the twin meanings of zone which then had a specific meaning of the waist and also the more general meaning which it preserves today. He explained his joke to his students as being in order that they “would remain in good humour and instead of books you should have a bit of fun and games [ . . . ] But now it’s time for us to go.”24 Fulgosio could of course also be very serious, and never more so than when he mentioned religion, or was encouraging his students to be devout. In Digest II, for example, he prefaced his discussion of the next law which the class were to study as follows: “Today is St. Lucia’s day, who is a saint devoted to scholars because she pro- tects the health of the eyes which are of such great use to them. When I was in Venice, without having planned it, it occurred to me to visit the church which is dedicated to her and, with great piety, I saw her body there and found myself in a state of great devotion. I learnt that whoever saw the relic would preserve their sight for the rest of their life in the same condition as it was at the time that they had seen her. And with devotion I looked at her then, and trust now, that she will ever maintain my sight; and this I relate to you in order to increase your piety. But now let’s return to studying the law . . .”25

23 Fulgosio’s joke appears in both 1554 and 1499 editions of Digest II: “Ego fui oblitus dicere unum novum in glos. que dixit de equo individuo, quod quidam obtulit puellam, ut aut liceret habere partem superiorem a cingulo, aut inferiorem: cumque multi dubitar- ent, ego tandem pro honestate dixi, ego eligerem partem supra zonam, modo ea esset in calcaneis aut talis.” DIGEST II, 46v. The 1499 edition has in contrast: “Ego fui oblitus dicere unum novum in glos. que dixit de equo individuo, quod quidam obtulit puellam, et ut haberet partem alteram tam hoc est vel a corrigia vel cingulo infra: erant in dubio quid eligerent: ego dixi quod pro honestate eligerem partem supra zonam: sed ponerem zonam sibi in calcaneis et in talis.” Fulgosio, Lectura . . . super secunda parte ff veteris, § ‘Sed quod meretrix datur’. 24 “hoc vobis dico quid adhuc remanet calor vobis solacii et loco librorum taxillos habuistis: satis editis et fecistis solacia et ludos: nunc tempus est abire” ibid. The 1554 has the text here a little more tidied up: “hec ego vobis solatii causa dico quod video vos calore nimio gravatos et defessos. At nunc abeundi tempus”, DIGEST II, 46v. 25 “Hodie est Sancta Lucia que est specialis et devotisimma studentibus propter salutem oculorum, que maxime est studentibus opportuna. Et dico vobis quod cum essem Venetiis Teaching Style and Professional Work 101

According to the study by Ana Munk, the first record of a visitor to Santa Lucia’s shrine in Venice dates from 1395,26 two decades before Fulgosio’s own impromptu pilgrimage. His recollection of it is different however in that it shows his reaction to the relic and what it meant for him, as an individual living by his ability to read and write and praying to be long able to continue to do so. Fulgosio was also known to fast. On the eve of the Annunciation one year, Fulgosio told his students that he was fasting and recorded a discussion that he had once had “when I was dining with Lord Gabriele, of late memory”. “The question was posed as to whether the Annunciation or the Resurrection was the more important festival and it was concluded that it was the latter. The Cardinal of Florence, who was then still just a doctor (i.e. Francesco Zabarella) argued the opposite and when I heard him do so I enthusiastically sided with him and made an argument that when during the Creed the Incarnation is mentioned we both bow and kneel. When however the sentence ‘he was resur- rected from the dead’ is proclaimed we do nothing. And therefore it seems that the feast of the Incarnation is the more important. And this is one of the vigils when I fast and you all ought to do so as well, especially as you are young.”27

et non ex proposita occurrisset visitare ecclesiam suam: vidi cum maxima devotione corpus suum et fui et reperi me in optima devotione seu conditione et audiebam quod qui videt corpus suum remanet in ea integritate oculorum qua fuit tunc quando vidit corpus in toto tempore vite sue: et cum illa devotione vidi et confido quod ipsa conservabit mihi lumen, et de hoc dico: ut augeam vobis devotionem. Or redeamus ad legem.” DIGEST II, 37r. This comment is notably absent from the earlier, 1499 edition of DIGEST II: Fulgosio, Lectura . . . super secunda parte ff veteris, § ‘In Instrumentis’. Santa Lucia was also a non-teaching day at Padua and it is therefore possible that this comment by Fulgosio was not given in a lecture but dictated to a scribe or written. 26 Ana Munk, ‘The Art of Relic Cults in Trecento Venice: Corpi Sancti as a Pictorial Motif and Artistic Motivation’, Radovi Instituta za povijest umjetnosti, 30 (2006), 84. The only other notable link between Fulgosio and art is that, in 1417, he and Prosdocimo de’Conti acted as arbitrators in a dispute involving the Scrovegni family, owners of the Arena chapel decorated by Giotto: ASPd, AN4873, 184v, 189r, 200r. 27 “cum essem in quodam convivio cum domino Gabriele quondam bone memorie, fuit proposita quedam questio. An festum resurrectionis dominice sit maius an incarnationis et quasi omnes concluserunt quod resurectionis erat maius. Dominus autem Florentinus, qui erat tunc simplex doctor, dixit oppositum, et cum audissem eum ita dixisse inconti- nenti adhesi opinioni eius et fecit argumentum tunc pro ista parte quia videtis quod in simbolo cum sit mentio incarnationis nos facimus honorem capitis et pedibus. Cum vero dicitur resurrexisse a mortuis, nihil facimus. Unde hoc apparet quod est maius festum. 102 CHAPTER 2

Zabarella became archbishop of Florence in 1410 and was made a cardinal in the following year. He left Padua to take up his new post in Florence in February 1411.28 Fulgosio’s recollection of the meal which they had both attended must therefore date from sometime after Zabarella ceased to be ‘simply a doctor’, either in 1410 when he became an archbishop or in 1411. It probably also predates Zabarella’s death in September 1417 given that Fulgosio does not refer to his colleague as then deceased. The convivial discussion which they had held, and which one could almost imagine as the beginning of a humanist dialogue by Leonardo Bruni, Poggio or even by Zabarella himself who composed his own dialogue ‘On Happiness’ in around 1400,29 must have taken place at some point in 1409/10.30 The identity of their host for the evening, Gabriele, is however unclear. One candidate for a local nobleman who died at around this time would be the Venetian banker, Gabriele Soranzo who died in 1410.31 If he was the two jurists’ host then it would place Fulgosio in Venice, in the company of a leading banking family, dining perhaps at their palace in Campo San Polo.32

Et hoc est unum ex vigiliis quibus ego ieiuno. Ideo et vos tanto magis debetis ieiunare quia estis iuvenes” CODEX II, 89v. 28 Dieter Girgensohn, ‘Francesco Zabarella aus Padua. Gelehrsamkeit und politisches Wirken eines Rechtsprofessors während des großen abendländischen Schismas’, Zeitschrift für Rechtsgeschichte. Kanonistische Abteilung, 79 (1993), 245. 29 Zabarella’s dialogue, de felicitate, contains several non-theological discussions on religious themes (for example about whether smell and taste existed in heaven (Francesco Zabarella, De felicitate libri tres, (Padua: Frambotti, 1655), 104–108) and one could well imagine a discussion about whether one feast in the liturgical calendar was greater than another featuring in the dialogue’s pages. It does not, however. Fulgosio’s comments are a reminder that dialogues were not wholly literary creations but sometimes had their background in a culture of debates held at meals like the one attended by Fulgosio rather than being only gatherings imagined by the dialogue writer. 30 Fulgosio’s recollection of the meal with Zabarella in c. 1409/10 can also be compared to the occasion recorded in August 1411 of a joke being shared at a convivial gathering involving the, by-then cardinal: ed. Smith, Epistolario di Vergerio, 333. 31 On Soranzo: Müller, The Venetian Money Market, 175. Another candidate at this point would be the Catalan professor, Gabriele Raymundi, a fellow teacher with Fulgosio at Padua, but he is recorded as teaching in Bologna in 1415/16 and would not have been deceased at the time Fulgosio mentioned a ‘late’ Lord Gabriel. See: Antonio Pérez Martín, Proles aegidiana, (Bologna: Real Colegio de España, 1979), 230. 32 Fulgosio does not appear however to have used Soranzo’s bank. As his business investments matured, for example, he had the money deposited with a different Venetian banker: ASPd, AN481, 326r. Soranzo was however the Venetian banker with whom Luca Spinelli, the son of Fulgosio’s teacher, made arrangements when he signed legal documents at Fulgosio’s home in Pavia in 1395: Romano, Niccolò Spinelli, 636. Teaching Style and Professional Work 103

Another member of the Soranzo family would be, like Fulgosio, a Venetian delegate to the Council of Constance.33 Whoever Gabriele was, the meal does at least show that Fulgosio was on sociable terms with Zabarella, although apparently a little in awe of his eminent colleague as evidenced by Fulgosio’s suggestion that he had been rather too easily swayed to take Zabarella’s side in the prandial debate. Zabarella came from a wealthy and prominent family in Padua and is known to have maintained a court, with the musician Johannes Ciconia for example enjoying the jurist’s patronage and composing at least two motets specifically for his patron. One, ‘Doctorem principum’, was written in the immediate aftermath of the council of Pisa in 1409 and Ciconia is known to have often been at Zabarella’s home in this period – acting as a witness there for example to property transactions in 1410 and 1411.34 Such was the cultural and cultured environment in which Fulgosio would have moved when he dined with Zabarella and Gabriele. Fulgosio’s classroom then was a lively environment where the teacher was as likely to be encouraging his young students to be religious as he was to be telling them a funny tale which he had recently heard, advising them on what clothes to wear in summer, or how to gamble responsibly. The commentaries also occasionally contain evidence of short interjections in the classroom, as for instance when Fulgosio remarked at the end of one particular text and thus presumably at the end of a day’s lesson, “I see that you are all really impatient and the time is right so we’ll make an end here”35 or elsewhere, when Fulgosio is recorded saying “if the lessons were easy today, tomorrow they’re going to be really tricky”.36 Short comments like this almost allow a picture to be summoned up of a class full of students keen for their lesson for the day to be over and long- ing to race outside to the sunshine as their master tries unsuccessfully to hold their attention, warning them over the sound of disorder that things will be harder when they return on the morrow. In 1399 the jurists at Padua had been

33 See below, p. 148. After his death, two of Gabriele Soranzo’s sons competed in the jousting tournament of 1415 mentioned above in which Fulgosio’s possible student Contarini may have taken part: Sanudo, ‘Vitae ducum venetorum’, 895. 34 Anna Hallmark, ‘Protector, imo verus pater: Francesco Zabarella’s Patronage of Johannes Ciconia’, in: Jessie Owens and Anthony Cummings, Music in Renaissance Cities and Courts. Studies in honour of Lewis Lockwood, (Michigan: Harmonie Park, 1997), 161 & 168. 35 “Ego video vos satis impatientes et tempora satis adaptantur, ideo fit finis.” CODEX II, 170v. 36 CODEX I, 62v where Fulgosio again refers to at least some of his students as youths: “et iuvenes si hodie habuerunt lectionem facilem et placidam, cras habebunt difficilem et scabrosam”. 104 CHAPTER 2 provided with a house in the central St. Antonio quarter of the city where they could hold lessons in canon and civil law37 and Fulgosio’s own lessons are best imagined to have taken place there, not far from his home in the contrada of St. Niccolò. According to university statute, lessons were strictly structured around the ringing of the cathedral bell,38 which makes this picture of a lecturer hurrying to finish a day’s lesson even more vivid and familiar. On one occasion the text appears to have shown the teacher struggling to retain the attention of his students who were more interested in gambling or playing than in their studies. “You should impose a year of abstinence from dice, in the enjoyment of which you will in my judgement doubtless be involved until the end of the night rather than attending lectures”, Fulgosio remarked at one point adding a comment that indicated that not all students continued with their course through the year after it began in the autumn. “Some students study strongly until All Saints, some until St Martin’s, a third group until Christmas. A fourth type even last until the [summer] sun has begun to burst through their windows and diverts them from their studies. There is a final group however who continue to study even in the heat [of summer] and these are the best. You shouldn’t think that without hard work you will achieve great things and shouldn’t therefore want to be anything except in the final group of students.”39 Such comments also provide an indication of the rhythm of lessons as the class proceeded through their set annual timetable. Like any teacher working through a pre-determined or fixed course of vocational instruction, Fulgosio was also often acutely aware of how far he and his students had progressed in their joint journey through the legal codes, often comparing their current

37 Giuseppe Giomo, ‘L’Archivio antico dell’Università di Padova’, Nuovo archivio veneto, 6 (1893), 381. 38 Denifle, ‘Die Statuten der Juristen-Universität Padua’, 470. 39 “imponatis anno (sic: animo) perpetuum silentium in taxilliis in dulcedine quorum meo iudicio staretis usque in finem noctis, non ita staretis ad audiendum lectionem. Aliqui studentes fortiter usque ad festum omnium sanctorum. Aliqui ad festum Sancti Martini. Tertia species et latior scholarium qui student usque ad nativitatem. Sunt quarti qui durant quousque sol incipit percutere fenestrellas suas et incipiunt divertere a studio. Et aliqui sunt perfectiores: qui etiam in caloribus student et moderati: et illi sunt valentis- simi qui ceteros excellunt: non credatis quod absque labore gravi: magni parentur. Non ergo velitis esse de aliqua specie nisi de ultima specie.” Fulgosio, Lectura . . . super secunda parte ff veteris, § ‘Sed quod meretrix datur’. The remark is deleted from the 1554 version of DIGEST II. It is also one of the few comments which could I think be attributed not to the teacher Fulgosio but to a student writing marginalia in the text which would later become the printed commentaries. Teaching Style and Professional Work 105 progress to that from a previous year40 or even remarking on one occasion that the next text that they were to look at should take less than a quarter of an hour to study.41 On other occasions the speed by which his current class was proceeding could be compared to his experiences lecturing elsewhere. One Easter, for example, he told his Padua students how “when I lectured on this particular text elsewhere, we did so before Lent, but now you see because of this pointless and unexpectedly sudden holiday, progress can’t be made. And you’ll therefore have to suffer being in school, over-running for time, in order that we can catch up.”42 On other occasions, his own teachers provided the benchmark.43 His master, Nicolò Spinelli, Fulgosio noted towards the beginning of Digest I, had bound himself and a fellow teacher to lecture the whole of the Digestum vetus in a single year and had criticised his former pupil Fulgosio for the slow progress which he made when teaching the same text; lecturing only eight or ten books (from the twenty-four) of the Digest in the course of a year. “I said that it was not possible, nor was there enough time in a year, to lecture on all twenty-four books in a single year and cited a particular legal text in support of my argument, but he and his colleague continued in spite of this argument and he was very annoyed by my response.”44

40 As in CODEX I, 189r where he notes that the class had failed to reach the same point in the text as last year. 41 “Ego expediam istam legem in minori spacio quadrantis unius hore.” DIGEST II, 41r. 42 “ut dixi vobis, alias cum legerem istam partem, ante festum carnisprivii legerem titulum. Nunc autem videtis propter vana et inopinata festum repentina, non posse fieri proces- sum. Unde debetis pati stare vos in scholis, tempore debito, ut fiat processus.” CODEX II, 92r. What the unexpected holiday was around the time of Lent that Fulgosio was complaining of is unclear. It would seem highly unlikely that he would have protested in such terms against one of the many religious days when no lessons took place (for a list of these, see: Denifle, ‘Statuten der Juristen-Universität Padua’, 467–468). It may be therefore that Fulgosio’s objection was to one of the holidays for the ‘collecting of herbs’ which were set aside by statute to be held on four days in May but which could be called by a beadle on other impromptu occasions as well. (ibid., 468) 43 DIGEST I, 147r where Fulgosio notes that in a book that he owned from Bologna, a pause was made at the text he and his students were studying today on the “tenth of this month, from which we are rather distant from”. He again blamed the vacations that there had been for the discrepancy. 44 “et allegavi semel hunc text. [i.e. which they were studying] contra bone memorie dominum meum d. Nicolaum de spinelis de Neapoli comitem et hoc: qui iactavit se, et dominum Ray. de Forli uno anno legisse totum ff. veterem [i.e. the Digest vetus] et reprehendet doctores modernos, et specialiter me increpebat de modicitate processus cum viii vel x libros ff. veteris perlegamus in anno. dicebam non esse possibile, neque tempus anni 106 CHAPTER 2

1.b Extraordinary and Ordinary Lectures

This would all mean that Fulgosio customarily took something like two academic years to work through the Digest with his students, with a similar bi-annual cycle being experienced for the Codex. The university’s courses in the Digestum vetus and Codex were designated ‘ordinary’ and held during the morning. This was the flagship lecture series on which Fulgosio was focused throughout his time at Padua.45 Other courses on the civil law, as Giovanni Giacomo Can’s fifteenth century account of teaching practices at Padua indicates, were held in the afternoon and termed, at least in Fulgosio’s time, ‘extraordinary’.46 The two terms were however somewhat illusive and could also designate (amongst other things) lectures which were held on normal teaching days (ordinary) in contrast to those held on days not customarily timetabled for lessons (extraordinary) or the type of tenure which a particular professor held. The record from sources like Diplovatius is that Fulgosio lectured on the main two civil law texts while at Padua and that he thus lectured ordinarily and did so exclusively in the morning. Sources like these together with university statutes and rotuli are informative about teaching practice at Padua, however the commentaries themselves also contain a record of ordinary and extraordinary teaching and the picture which emerges from studying them is rather less clear. The change from ‘ordinary’ lectures to the beginning of ‘extraordinary’ teaching is, for example, often registered in the commentaries47 and whilst

sufficere ad librorum xxiiii traditionem per hunc text: et sic contra istum tex. faciebant, quo responso valde indignatus fuit.” DIGEST I, 5r. 45 See the tables and discussion in: Belloni, Professori giuristi a Padova, 66–68. Also see the contemporary record by Diplovatius that Fulgosio lectured on the Codex and Digest at Padua in ordinary lectures and ‘de mane’: Hermann Kantorowicz, Giuseppe Rabotti and Fritz Schulz, eds., Thomae Diplovatatii Liber de claris iuris consultis: pars posterior, (Bologna: Institutum Gratianum, 1968), 339. 46 See: Annalisa Belloni, ‘L’insegnamento giuridico nelle università italiane’, in: eds. Luciano Gargan and Oronzo Limone, Luoghi e metodi d’insegnamento nell’Italia medioevale. Atti del convengo internazionale di studi, (Lecce: Congedo, 1986), 146–147; Idem, ‘Neue Erkenntnisse über den Rechtsunterricht in Padua im fünfzehnten Jahrhundert’, Ius Commune, 13, (1985), 5. 47 For a common example of such transfers, see Digest I, 23v where the text reported: “hic non sunt alia, veniamus ad lectionem ordinariam” or the intriguing remark in Fulgosio’s Codex I lectures: “Or nunc schole sunt replete scholaribus, veniamus ad lecturam ordi- nam”, Codex I, 46v. Teaching Style and Professional Work 107 this could simply be a record of Fulgosio switching from lecturing on standard teaching days to non-standard ones, there is some suggestion that a certain qualitative distinction was captured by the alteration from ‘ordinary’ to ‘extraordinary’ lectures as if two courses were being taught with certain texts or sections of the legal code ear-marked as suitable for an advanced course of study, whilst other texts were studied by a more entry-level class of students. The former would then be ordinary and the latter extraordinary. As was discussed in chapter one, there is some indication within the commentaries to suggest that Fulgosio taught ordinary and extraordinary classes simultaneously, perhaps with his more advanced, morning class studying one set of texts and a different class working through a different series of texts from the same civil law volume in the afternoon. At the opening of one text in the Digest, for example, Fulgosio told his students that the law which they were about to study was “much harder than it should be in Extraordinariis”.48 This could be a light-hearted reference to the texts requiring more work than was suitable for a non-standard teaching day; however it could also be an indication that Fulgosio was forewarning his less advanced, extraordinary, students about texts for whose difficulty they may have been unprepared. A possible indication of classes being held both in the morning and afternoon is also suggested by a particular legal text concerning proconsuls where Fulgosio remarked to his class: “I’ll tell you something which occurred to me this morning”. He continued to explain to his class how certain words in the legal text could be interpreted before adding: “But this morning while lecturing I wondered why” this particular text had only mentioned one thing and not another.49 This comment would appear to show that Fulgosio was addressing his afternoon students about an observation which he had made while lecturing in the morning. This reading of the commentaries would also offer an explanation as to why, in December 1423, Fulgosio had reached two different points in the Digest on

48 DIGEST I, 27r. Fulgosio uses the same word, “scabrosior”, to describe the law as he would elsewhere when telling his departing students that tomorrow’s lesson would be harder than today’s. 49 “unum dicam vobis quod mihi hoc mane occurrit ad l. solent. [Dig.1.16.6] in princip. super eodem et hunc sensum ibi non dixi, intelligit ibi gloss. ut ipse innocentem liberet. Ipse scilicet proconsul. Ego autem hoc mane legens miratus sum, quare dicat solum de libera- tione, videtur ergo sensus ut ipse liberet, si legatus et tunc optime sequitur.” DIGEST I, 25r. These apparent references to different lessons are also at a point in this text, as has already been noted above, where the change from ordinary to extraordinary teaching was reported. 108 CHAPTER 2 the same day, one reading in an ‘extraordinary’ lecture and the other much further on in the text in his ‘ordinary’ lessons. Indeed the point that Fulgosio had reached ‘in extraordinariis’ in 1423 was very near to the point in the earlier printed commentaries where we find the comments which were just quoted above about a particular text being difficult for ‘extraordinary’ students. This would suggest that these particular texts, and we are talking in this instance about Fulgosio’s discussion of the laws concerning public officials, were being taught to less advanced scholars.50 It can even be conjectured that, for those desiring a career lower down the hierarchy of public administration, following an introductory course where only these texts were studied and not in advanced detail, made a great deal of sense. It would provide them with edited highlights of the legal code, with more advanced scholars able to proceed from this entry level course to more detailed study, or to follow both courses simultaneously. Fulgosio certainly refers in his text to arguments which he had made solely for the benefit of the younger students in his class.51 This idea would however have several important ramifications, not least concerning Fulgosio’s time at Constance. Where the type of lesson which Fulgosio was teaching when he recalled his time at the council is known, the type of student to whom he was lecturing can be identified. It is, for example, in the final text in the ‘extraordinary’ section mentioned above, that Fulgosio would discuss being involved at Constance in matters which he considered more worthy of a theologian. If the theory about ordinary and extraordinary teaching is correct, therefore, it was to his more junior students that these remarks were directed.

50 We hear, for instance, Fulgosio tell his students about the effect of a local ruling which had occurred ‘just this year’, when a podestà had acted although his successor was en route to take up his post (presumably from Venice) and thus his powers were technically extinguished although he evidently did not yet know this. The imparting of such practical advice would have been very useful for those students aiming at a later career in such administrative-judicial roles. DIGEST I, 25r: “et scio hoc anno evenisse in hac civitate, dum potestas novus esset longe hinc per quinque milliaria ad stratam, predecessor eius tulit unam sententiam, revocabatur in dubium, tamen obtinuit: quia tulit eam ignorans eum venisse”. 51 For example: “Or iterum ego pono casum pro iuvenibus” in DIGEST II, 62v with this section ending with the comment “Or hec sufficiunt nunc apud iuvenes: ipsi sunt contenti. Nunc venio ad ipsum apparatum.” Ibid., 63r. Teaching Style and Professional Work 109

2.a Working Lawyer

The evidence for Fulgosio’s professional life outside the confines of the class room is chiefly contained within his collection of consilia. Fulgosio’s references in his commentaries to his written legal opinions can often be matched to individual consilia in his collection and the evidence of this reconciliation suggests that a high proportion of his written legal opinions survive. Although Fulgosio himself recorded that he had lost all the copies of the consilia which he had written during his time in Pavia,52 many of the texts from his time in Padua appear not to have suffered a similar fate. Some of these texts were replies to clients or parties in a particular case who required heavyweight advice to overcome a legal stumbling block which their cause had encountered; whilst other texts were quasi-judicial in nature, either representing a ready-made judgement upon which a local judge could rely or articulating the justification for a different court to allow a particular appeal against a previous verdict. The consilia were therefore profoundly connected to the day-to-day reality and detail of legal processes before the courts. The advice given by jurists like Fulgosio in consilia was therefore both an important practical part of the procedural machinery ensuring that where difficult or new legal questions were encountered they did not prevent justice proceeding effectively and the means by which the principles of the ius commune remained an ever-present force at the heart of the Law as it interacted with the realities of the world. The obligation to serve the law generally and a client particularly could create the potential for tension or the need for a trade-off. To accomplish the former as a university lecturer meant defending the collectively approved and cumulatively accreted body of legal wisdom whilst also contributing to its development or improvement; whilst in advising a client in a case there was a greater demand for arguments which, whilst remaining in accord with that teaching, were also effective. This might mean that a jurist’s own, privately held ideas which he expressed more freely in the lecture room had to be put aside when a client in a particular case wanted to be provided with an effective defence. An example of the different professional forces which acted upon a jurist like Fulgosio in this way can be observed by considering a consilium which Fulgosio wrote concerning the subject of arbitration for a case from Verona and which he subsequently discussed in the haven of his

52 CODEX I, 107r: “Nam omnia consilia, que feci in civitate Papie bene scio deperdita”. One consilium by Fulgosio dating from his time in Pavia and relating to a case from Lodi survives in: ms. Archivio storico diocesano, Lucca, MS419, 200v–202r. 110 CHAPTER 2 class room with his students. The comparison of Fulgosio’s analysis of the jurisprudential themes behind the case and the realities of his own contribution to it provides a good example of the interaction between school room theory and court room practice which a lawyer-lecturer like Fulgosio faced. Fulgosio discussed the topic on which the Verona consilium had touched during the course of his Codex I lectures when he and his class had reached the text ‘si diversa’ [C.2.4.14]. This text prompted Fulgosio to consider the law surrounding the private agreements in to which litigating parties occasionally entered in order to have their disputes settled by arbitration rather than before a judge.53 Long-standing questions of jurisprudence arose regarding the relationship between these two methods of justice, particularly as arbitration was linked to the law of contract. In an arbitral agreement (or ‘compromise’), two parties agreed to abide by the decision which their chosen arbitrators would reach.54 Where their agreement similarly obliged the arbiters to pronounce that verdict in accordance with the law and having followed correct legal procedure, then their verdict would be intrinsically as sound as a verdict of a state court, with the exception that this outcome had been created by private and mutual agreement. The cause of the verdict was different, in other words, but its effect was the same. A more complex situation arose when a dispute went to arbitration after judicial proceedings had already taken place. Fulgosio explained to his Codex students how Baldus de Ubaldis had argued that the arbitral agreement which created this situation would be valid if it included a clause acknowledging the

53 On the use of and jurisprudence surrounding arbitration in this period, see: Karl S. Bader, ‘Arbiter arbitrator seu amicabilis compositor. Zur Verbreitung einer kanonistischen Formel in Gebieten nördlich der Alpen’, Zeitschrift der Savigny-Stiftung für Rechtgeschichte. Kanonistische Abteilung, 77 (1960), 239–276; Linda Fowler, ‘Forms of Arbitration’, in: Proceedings of the Fourth International Congress of Medieval Canon Law, (Vatican City: Biblioteca Apostolica Vaticana, 1976), 133–161; Thomas Kuehn, Law, Family and Women: Toward a Legal Anthropology of Renaissance Italy, (Chicago: Chicago University Press, 1994), 19–74; Chiara Tenella Sillani, L’Arbitrato di equità. Modelli, regole, prassi, (Milan: A. Giuffrè, 2006), 70–111 and Karl-Heinz Ziegler, ‘Arbiter, arbitrator and amicabilis compositor’, Zeitschrift für Rechtsgeschichte. Romantische Abteilung, 84 (1967), 376–381. 54 Terminological differences concerning those chosen to adjudicate were theoretically important, with jurists distinguishing between arbiters whose activities were likened to those of a judge seeking to decide a dispute and arbitrators who sought to resolve the dis- agreement between the parties. The distinction mirrored that between ‘procedural’ and ‘contractual’ arbitration and also represented a change in judicial character from more distant private determination of a case to being the facilitator of an amicable agreement between two parties in dispute. Teaching Style and Professional Work 111 previous verdict and obliged the arbiters to reach a legal and factually valid verdict themselves. Two parties could, if they phrased their agreement correctly therefore, have a civil dispute between them re-heard by private arbitration even after a state verdict had been returned on it. In his discussion of the topic, however, Fulgosio questioned this thesis and expressed instead a version of the view which Roman law had long taught that such a compromise was a pact (transactio) and could not overturn a previously-returned, definitive judicial verdict.55 Two parties involved in a civil suit could not appeal a definitive court verdict by means of private arbitration no matter how carefully they worded their arbitral agreement and how much it insisted on the essential judicial and legal quality of the process to which the arbiters would adhere. The arbitral agreement was closer in nature, as it were, to a contract rather than being the creation of a surrogate judicial process. The commitment to act according to law within the arbitral agreement was thus more like a contractual promise between the two parties and their chosen arbitrators than the creation of a distinct and binding legal process. Fulgosio did however note the existence of a divergence of opinions on the question of arbitral agreements to appeal a previous court verdict. Baldus had argued that such compromises would be valid, however Bartolus held that such agreements were transactiones and therefore invalid. Bartolus had, however, appeared to contradict his identification of such agreements as being essentially contractual elsewhere and Fulgosio therefore explained to his Codex I students how, when he had taught his Digest II class the same topic ‘last year’, he had argued robustly against Bartolus on the question.56 He further reminded

55 “dicit Baldus quod valet compromissum cum illa clausula, non obstante sententia, si arbi- tratum sit de iure, et de facto, valde dubito. Nostis enim legi per Joannem Andree singulariter in authen. ut differ. iudic §. i. [Nov. 86.1] quod tale compromissum de iure et de facto est transactio et Bartolus reportavit in l. post rem. ff. eo [Dig.2.15.7] et in l.eleganter ff. de condictione indebiti. [Dig. 12.6.23]. Nostis enim quod transactio post rem iudicatam non valet . . . sic non deberet valere compromissum istud”. CODEX I, 71r. Fulgosio began his discussion of the topic by noting that he had written a consilium connected to the theme regarding a request from Verona: “et ita ex facto consultus ex civitate Verone”, ibid., 71r. In all Fulgosio mentioned the same consilium on arbitration for Verona on three separate occasions during his Codex I lectures: (i) here, (ii) at Ibid., 46r – “Hoc mihi contingit in uno consilio misso Veronam” and (iii) at Ibid., 123r. 56 “Memini tamen me anno preterito fortiter arguisse contra Barto. in dicta l. eleganter [Dig.12.6.23] ex eiusdem sententia: quoniam posuit in l. quod si Ephesi. ff. de eo quid certo loco. [Dig.13.4.4] et l. i.i. ubi in rem actio [C.3.19.0] ubi dicit tale compromissum de iure et de facto non esse proprie transactionem”. Ibid., 71r. This contradictory opinion by Bartolus concerned the essence of the agreement in to which both parties had entered. 112 CHAPTER 2 them of what he had lectured to them on the subject of transactiones himself ‘yesterday’ and concluded therefore that doubts still remained concerning whether such arbitral compromises were valid when they acknowledged the existence of the preceding verdict.57 Fulgosio nevertheless proceeded to consider what type of verdict might be reconsidered by arbitration in this way, working from the hypothesis that Baldus’s view was correct.58 A verdict about which there was some doubt for example might be suitable for arbitration to reconsider; i.e. one that was not definitive or which merited appeal. In a later text within Codex I, ‘ex sententia’ [C.2.55.1], Fulgosio returned to the topic of arbitration again and also to the consilium which he had written for Verona which had confronted the topic in a real world situation. Unlike his earlier discussion of the legal question where he had only mentioned in passing that he had written the consilium for Verona on the issue, in this second section Fulgosio remarked that this had been written “pridie” and explained its contents to his students in more detail. Two parties in Verona had agreed, Fulgosio explained, to have their dispute settled by arbitration subject to the provision that the arbiters’ verdict be reached ‘according to law’. When this verdict was duly pronounced one party had however disagreed with it, thereby incurring the penalty for noncompliance which was written in to the compromissum. Bartolus and Angelo degli Ubaldi, Fulgosio then explained to his students, had said that a phrase like ‘according to law’ was in effect a contractual clause to the agreement which, were it not honoured, would render the verdict invalid. Fulgosio now remarked to his students that, in his consilium for the Verona case, he had repeated Bartolus’s and Angelo degli Ubaldi’s arguments,59 before

Fulgosio did indeed discuss Bartolus’s teaching in the way he described in the Codex in his own commentary to Dig. 12.6.23: DIGEST II, 52r. His remark in Codex I that he had made the argument on Dig.12.6.23 a year before indicates that he was lecturing on the first volume of the Codex having taught Digest II the previous year. 57 “Sed si vultis defendere quod sit transactio reminiscamini eius quod audivistis heri in l. super possessione [C.2.4.9].” CODEX I, 71r. Fulgosio summarised his argument from C.2.4.9 before concluding: “Et sic videretur non valere compromissum, sicut non valeret transactio, et sic videtis dictum Bald. remanere dubitandum, an valeat compromissum licet illa clausula adiiciatur.” Ibid., 71r. 58 “posito sine preiudicio, quod [the compromissum] valeat”. Ibid., 71r. 59 “Quod facit ad quandam questionem quem habui pridie ex civitate Verone. Partes com- promiserunt in aliquos, ut de iure tantum iudicarent, et non alio modo: ita adiecerant licet non esset necesse. Ipsi iudicaverunt non de iure: una ex partibus non paret sententie: an pena commitatur: est alibi sententia. Bart. quod ista verba ut iudicet secundum leges intelligantur esse qualitas mandati, seu compromissi, ideo si non iudicetur secundam leges non tenet sententia, quasi excesserit fines compromissi argu. in. c. cum dilecta Teaching Style and Professional Work 113 adding that “As I am accustomed in my lectures to hold the opposite argument, in case that I should appear to be contradictory, I added [in my consilium] that I said contrary things in my collection [of lectures]. Afterwards the opposing opinion was consulted from another jurist who showed that the phrase ‘judge according to the law or de jure’ referred to the effect of a verdict and not its substance.”60 The verdict would therefore stand because the parties had agreed that the arbiters’ decision would be equivalent to a judicial verdict and would create a binding obligation upon them and not that the manner by which the arbiters reached their decision created a contractual term whose breach would render the agreement as a whole invalid. Such an arbitration agreement was, in other words, more ‘procedural’, then ‘contractual’. In his consilium, however, Fulgosio had set out the latter argument even though in his lectures he had tended towards the former and criticised Bartolus in particular on the matter. The opposing consulator in the Verona case however had been the one to present an argument which was closer therefore to the one which Fulgosio expounded in his lectures. He admitted as much by revealing, in closing to his students, that: “when I was later asked to defend my consilium I said that even if what the other party said was true, I always had the proposition that the penalty under the agreement was not due.”61 Even if he agreed with what his opponent had argued therefore, Fulgosio already felt that he had prepared another argument upon which to fall back in the case. The question remains however, why Fulgosio had used the argument derived from Bartolus in his consilium even though he had criticized Bartolus on the topic in his lectures. Deferral to Bartolus’s greater authority could be one answer; however the opposing consulator had evidently felt under no such obligation and had instead been comfortable to present an argument which treated arbitration less like a pact and more like a binding private agreement for two parties to have their dispute legally tried. Reverence for Bartolus had not prevented that consulator from arguing as he had done. One could argue

extra de rescrip. [X.1.3.22] et l. diligenter ff. manda. [Dig.17.1.5] quam sententiam, vi audivi sequitur Ange. in l. societatem §. arbitrorum. ff. pro socio [Dig.17.2.76] et eam sententiam in consilio recitavi.” Ibid., 123r. 60 “Sed quia soleo in cathedra contrarium tenere, ne mihi contrarius viderer: adieci, sed contrarium forte in meis collectis inveniretur. Postea per unum solennem doctorem fuit consultum contrarium: quoniam ista verba quod iudicet secundam leges vel de iure respiciunt effectum sententie, non substantiam, ut videbitis in simil in l. iii. j. eo. quod ipse allegebat.” Ibid., 123r. 61 “Et dum postea essem requisitus ad defensionem consilii mei: dixi quod et si verum esset quod diversa pars allegabat, tamen habeo propositum quod non committitur pena, nam nihil interest nullus sit ipso iure.” CODEX I, 123r. 114 CHAPTER 2 that, in contrast to his opponent, Fulgosio felt more concerned to uphold generally accepted legal opinion, rather than insisting on presenting his own opinion as he had expressed it in his lectures. Prominent jurists like Fulgosio were there to defend and promulgate the established, common view. Another possibility, however is simply that Fulgosio felt that the argument which he presented although at odds with his own lectures was better suited to his client’s cause and that this was more important than maintaining consistency between his consilium and his lectures. Fortunately, the consilium which Fulgosio discussed with his Codex students survives amongst his collection of consilia and can therefore be both compared to his lecture room post-factum analysis and assessed as a document in its own right.62 The case recorded there did indeed come from Verona and concerned a dispute which had been brought both to arbitration and before the podestà of the city by two litigants, Bertono a Pemellis and a certain Castellano. Bertono had then subsequently contested the decision which the arbiters had reached on the dispute. The occasional use of more informal language in the consilium suggests that it may have actually taken the form of a letter which Fulgosio wrote in reply to an enquiry from lawyers in Verona acting for one party in the dispute. Having summarised the legal issues and noted the evidence which he had seen on the case, Fulgosio began to consider the matter and put forward his first “auxilium propositum per Bertonum”. The argument which he then presented was, as Fulgosio would later recount to his Codex students, based on the teaching of Bartolus and Angelo degli Ubaldi that, where agreements to appoint arbiters included a clause that they should reach their verdict according to law the agreement was a compromise and if its terms were not met the verdict it produced would be invalid.63 In quite conversational terms Fulgosio then proceeded to qualify what he had argued, just as he would later inform his Codex students he had done, by pointing out that it ran counter to his own lectures.64

62 The consilium is printed in: Fulgosio, Consilia, 229v–231r. 63 “ubi forma in compromisso proferendae sententiae praebita non servetur, non valet ita lata sententia per . . . arg. ff. mandati l. diligenter [Dig.17.1.5] et de rescrip. ca. cum dilecta [X.1.3.22] fuit autem ita in proposito, nam concesserunt partes potestatem dictis arbitris procedendi quidem quomodo voluerint, pronuncidandi autem tantum de iure et secundum iuris dispositionem iudicandi non aliter nec alio modo.” Ibid., 230r. Fulgosio also cited, as he would relate to his Codex students, Angelo degli Ubaldi on Dig.17.2.76 (see above, note 59). 64 “et quanquam haec sententia fortassis in cursu lectionum, ne me quis de contrarietate redarguat, disputative complacuisse comperta sit, quoniam tamen non ille sum, qui me tam exclesis doctoribus ac tam insignibus verticibus iuris, quale fuere Bar. et Ang. temere Teaching Style and Professional Work 115

A complex set of professional obligations thus acted upon Fulgosio. On behalf of the petitioning client, who in this case appears to have been Bertono or his representatives, he may have felt obliged to provide arguments which would best further his cause even when these were contrary to the ones which he held and had taught in his lectures. Those arguments were however in agreement with the more generally accepted opinion on the matter held by authorities like Bartolus and therefore, by presenting them, Fulgosio had also met his obligation to support the commonly accepted and received view of his fellow jurists. In both his consilium and in his lectures he was careful however to alert the recipients of his consilium and his students respectively to the inconsistency. A desire to pre-empt the accusation of such a discrepancy by drawing attention to it himself may have motivated this; as well as, in the case of his consilium, a further obligation to its recipients to warn them of a potential weakness in his arguments which an opponent may have sought to exploit. As a working lawyer involved with cases before the courts, then, Fulgosio had to operate within constraints which were not present in his lecture room. There he could present a critique of Bartolus, provided his professionalism as a teacher ensured that the mainstream argument was also taught. In his consilia however he might sometimes be required to present arguments which were effective for the client but which were not his own. When he did so he was observing a duty to the standards of the ius commune, either in terms of presenting the generally accepted rather than his private legal view or because the system of justice which he and other jurists superintended demanded that parties in a case were furnished with an adequate legal defence. Whether it was the former or latter which motivated Fulgosio in the specific case of the Verona dispute is unclear, however the correct application of due process remained a focus of attention as it was for many of his fellow jurists.

2.b Due Process: Abuses and Exceptions

Fulgosio’s concern for the proper functioning of due process can be observed in the criticism which he occasionally expressed in his commentaries concerning how certain of his consilia were received. As was seen above in the Ozzola case from Pavia, Fulgosio had thought that his opinion should have

parem existimo, et in causarum diffinitionibus mihi licere non paterer, ut s[cilicet] eorum sententiae, cui neminem contradixisse comperui, meam solam existimationem antefer- ram. Caeteris etiam iudicare non vereor.” Ibid., 230r. 116 CHAPTER 2 been persuasive, but believed that it had been ignored by the city’s ruler. What Fulgosio appeared to be objecting to here, beyond his own misfortune in the case, was undue influence on judges. Due process had been undermined and Fulgosio’s remarks within the commentaries capture his displeasure at this and also indicate his profound belief in the fundamental role of legal process. In another example of pressure or influence, this time not by local rulers against a judge or on the conduct of a specific legal process but on the subtle pressures sometimes exerted on jurists themselves in the provision of consilia, Fulgosio recounted to his students how “it wasn’t that long ago” that he had been asked to give a consilium on an inheritance dispute. In his will, a father with a pregnant wife had bequeathed his estate firstly to his son and then to his sisters. In the absence of a son, the sisters had therefore inherited and sold their inheritance, but the man’s wife had in the meantime given birth to a son. “The best jurists in Italy of the last fourteen years gave their view of the matter: Bartolomeo da Saliceto, Pietro Ancharano, Pietro di Novara and all the doctors from Florence, Bologna, Rome and Perugia” Fulgosio continued. It was incred- ible, he said, because they effectively ignored the wishes of the testator. “But as I’ve said already, when the case derives from this city, no one wants to write against it on account of the other doctors being so united on the issue. Even Zabarella signed with the others.”65 Despite so many of the celebrated jurists of the day being involved in this case, the consilium that they wrote on it is not identifiable. It does not appear for example in the published collections of either Ancharano or Zabarella. The fact that Saliceto was involved would date the affair to before his death in 1412, whilst Fulgosio’s unusual comment that ‘all the best Italian jurists of the last fourteen years’ signed the document perhaps suggests that he was recording the episode to his students in 1414. What Fulgosio appears to have objected to in this case was a perceived disinclination among jurists either to argue against the Paduan or Venetian authorities or to rupture the consensus established by their peers. For his part, Fulgosio appears to have wanted his fellow jurists in the case to support a very literal reading of the testator’s intentions and not seek to extend the meaning of these terms to encompass things which had not been specifically stated in the testator’s will. In a consilium co-signed with his colleague Raffaele Raimondi, which represents the closest fit to the case as described by Fulgosio

65 “Sed sicut dixi, cum hes res esset in hac civitate ducta, nullus voluit scribere contrarium, propter tantam annexitatem doctorum, et dominus Fr. de Zabarellis scripsit cum illis doctoribus.” CODEX II, 53v. Teaching Style and Professional Work 117 in his commentary, Fulgosio made this very point66 and was later recalled as having maintained the same argument by Paolo da Castro.67 In a final and more dramatic example of Fulgosio’s fundamental respect for fair and due process, he also recalled an event for his students which probably concerned the Duke of Milan. “I remember”, Fulgosio told his students, “when there was a war in Lombardy, just like there is today, and plough shears were turned in to swords and peasants in to militia. In the time of the [present] Duke, he to whom the Duke had transferred his authority (plenitudinem potestatem) punished them setting aside all due process (remissa omni iuris solemnitate). He made the peasants put out their hands and if he saw that they weren’t rough, he had them hung.” “It’s clear”, Fulgosio continued, “that such power cannot be understood to include the omission of due process under natural law, nor can statute repeal such things, just as statute can’t prolong legal hearings.”68

66 Fulgosio, Consilia, 2v. 67 Paulus de Castro, Consiliorum . . . volumen, (Venice: Haeredes N. Bevilaquae, 1580–1581), II, 126r. 68 “Memini quod esset guerra in partibus Lombardie, sicut est nunc, quod ex aratris facti sunt enses. Et fuerunt facti rustici predones, et tempore huius ducis, fecit cui dedit plenitudinem potestatem, remissa omni iuris solemnitate, ut debeant eos punire. Ipse autem faciebat rusticos ostendere palmas manuum suarum, et si videbat eas teneras sine alio faciebat eos suspendi. Certe per talem potestatem, non intelligitur remissa iuris natu- ralis solemnitas, nec potest iste statuti derogare, quinimo nec instantias poterit prorogare secundum Angellum [de Ubaldis] hic. (i.e. on the text which they were discussing, ‘Milites in expeditione’ [C.6.21.15])”. CODEX II, 36v. Fulgosio’s enigmatic reference to ‘the present duke’ unfortunately provides imperfect dating evidence to determine when it was that he discussed the outrage against the peasants with his students in Padua. Given the Lombard context it seems likely that he was referring to the duke of Milan, however the doge of Venice is also a possibility. For Milan two possible rulers and for Venice one doge would fit Fulgosio’s description. The implication of his remark is that the events concerned happened several years before but nevertheless still under the ‘present duke’. In other words the duke concerned had ruled for some years at the point when Fulgosio spoke. If a duke of Milan is intended, then this would suggest either Gian Maria Visconti (1402–May 1412) or Filippo Maria Visconti (1412–1447). If Fulgosio was referring to the present doge, then Michele Steno who was doge from 1400 until 26 December 1413 would be probable, although Tommaso Mocenigo (1413–1423) is possible. Given what is known elsewhere about the general date of the Codex II commentary the first rulers in both these lists seem more likely which would date Fulgosio’s comments to either before May 1412 or December 1414. However, a later date for the lessons under both second candidates is also possible. 118 CHAPTER 2

The statement that rulers were unable to set aside due process and that a statute doing so would be invalid was a standard sentiment of the natural law defence of due process. Even by statute and through the use of his plenitude potestatis, a ruler could not remove from a defendant, for example, the opportunity afforded to him or her by natural law to be summoned to appear prior to a verdict being pronounced.69 The Lombard peasants should, in short, have stood trial. Fulgosio’s remarks about the unfortunate peasants again appear to have been fundamentally conversational in nature as the jurist did not proceed to consider the more complicated legal questions arising from the topic regarding those occasions when rulers might legitimately modify or restrict due process. There were, for instance, certain ‘trigger’ phrases whose inclusion in a princely edict might have been held to permit a ruler to derogate from the obligation to respect every aspect of due process or to trespass knowingly and detrimentally on pre-existing private, particularly property, rights. Fulgosio would encounter such princely actions in practice in his consilia, however the case-specific nature and demands of these consilia placed a limit on the extent to which a theory could be developed to reconcile, on the one hand, the protections afforded to individuals by due process with, on the other, the legitimate ability of rulers to set aside elements of these natural protections in specific, if highly exceptional, circumstances. The modern principle, for example, that a government may legitimately sus- pend elements of due process or derogate from its obligations to, for instance, Human Rights Conventions during states of emergency but only once certain conditions are met like the temporary nature of the emergency, the formality of its declaration (a concern for the precise use of terminology which echoes the focus on trigger phrases within medieval jurisprudence) or the continued preservation of certain inalienable rights and freedoms, had its equivalent in the stand-off between due process and derogating princely edicts; however

In his discussion of the text C.6.21.15 (which concerned the relaxation for soldiers of the strict requirements for the creation of a valid will), Angelo degli Ubaldi had briefly discussed the limits on what a ruler could amend with respect to due process: Angelus de Ubaldis, Super secundo usque ad nonum librum Codicis, (Lyon: M. Huss, c. 1478/79) [ISTC iu00002000], unpaginated but in volume VI. 69 In a much used phrase from the thirteenth century jurist Guillaume Durant, it was asserted that even the Devil would not be denied the chance to answer the charges levelled against him. See: Kenneth Pennington, ‘Due Process, Community, and the Prince in the Evolution of the Ordo iudiciarius’, Rivista internazionale di diritto comune, 9 (1998), 25. Teaching Style and Professional Work 119 these questions were most often considered from the perspective of their effect on private rights and not primarily from the viewpoint of the prince. Existing legal thought was for example very well developed concerning the protections afforded by natural law to accused persons like the clean-handed peasants, whilst a large corpus of work also considered the detail surrounding the trigger phrases which a ruler might invoke in an edict, decree or ‘rescript’, in order to derogate from due process or to override or dramatically amend existing rights. What was absent, however, was a proper forum in which to reconcile the twin, sometimes consonant and sometimes conflicting, needs of the private and public good; upholding private rights and protections on the one hand but recognising that a ruler might sometimes have legitimate cause to set some of these aside for the public good. In encountering the topic however largely in the context of case-related consilia, Fulgosio like other jurists could only engage with the public law side of the equation when it came in to contact with private rights.

2.c Legal Fictions and the Imperial Prerogative

Fulgosio considered one such trigger phrase which a ruler might (or might not) be able to use to trespass on, in this case, the province of natural law when he contributed to an inheritance dispute brought before the courts from the town of Riva di Trento on the shores of Lake Garda. In this Fulgosio had to consider an imperial dispensation which appeared to transform someone’s natural born status. A woman, Joanna, the daughter of Michele q. Simone de Montagnana, had been left the entire estate of her aunt subject to the proviso that she married a native of Riva. If she did not, she would only receive a third of her aunt’s estate with the remainder then going to the town itself. After the testatrix’s death, a document had been obtained from the emperor (in 1396) declaring that a man from Verona, Nicolò de Quinto, was to be retrospectively considered as having been a native of Riva.70 Joanna was also intending to marry Nicolò and thereby secure her full inheritance. Lawyers were then consulted in advance of her marriage to give their opinion as to whether, once married,

70 The document issued by the then-emperor Wenzel (on 17 April 1396) is referenced by a later document reconfirming it written in Constance on 17 January 1415 by the Emperor Sigismund: Regesta Imperii XI, 1 N. 1389. All the consilia concerning the dispute refer only to the document issued by Wenzel which suggests that they pre-date Sigismund’s intervention. 120 CHAPTER 2

Joanna would be entitled to receive all of her aunt’s inheritance or would merely inherit a third share.71 In his contribution to the case Fulgosio had to consider the validity of this imperial dispensation. Was someone who had been created a native of a town by imperial edict eligible to meet the condition laid down by the testatrix that Joanna’s husband be both a resident of Riva and had been born there? To what extent could an emperor override natural law and transform the status of someone who was not born in a town or place in to someone who was, in the eyes of the law, a native? To what extent were legal fictions of this kind possible? Fulgosio’s answer to the questions posed by the dispute is contained in his consilia collection and, based on this printed consilium,72 his response can be seen as a principled objection to unfettered princely power and a declaration of at least natural law limitations on a ruler’s plenitude of power. Fulgosio certainly makes some powerful and persuasive arguments in the consilium against a ruler’s ability to invade the jurisdiction, as it were, of natural law: Joanna’s fiancée was not a native of Riva, not in any natural or real sense, and it had been the testatrix’s specific request that he should be before Joanna should receive her full inheritance. Fulgosio dismissed the argument that princes could override natural law provided that they used derogating phrases acknowledging that they were doing so.73 He was more inclined to equity and natural justice, he remarked, to which there was nothing more worthy for men to aspire and added the complaint that too many people petitioned rulers nowadays.74 The testatrix’s intentions should therefore be strictly adhered to. She had wanted her estate specifically to go to her niece once she was married to a native man, not that that man should be a foreigner who was made to appear to be a native by means of a legal fiction. Joanna was not therefore to receive all of her inheritance. The town of Riva would instead inherit the lion’s share of it.

71 “Queritur cum dicta domina Iohanna predicto Nicolao postea nupserit, an tota hereditas spectet ad eam, an pro duabus partibus ad communem Rippe”, ms. Universitätsbibliothek Graz, 356, 17r. It is from the summary of the case in this document (ibid., 16v–17r) that the full name of Joanna is given and the fact that it was the Emperor Wenzel whom her future spouse (or his father) petitioned in order to obtain a variation of his civil birth place. 72 Fulgosio, Consilia, 144r–145v. 73 For a discussion of the printed consilium as an example of Fulgosio’s views on the limits of a ruler’s plenitude of power, see: Jane Black, Absolutism in Renaissance Milan, (Oxford: OUP, 2009), 154–155. 74 Fulgosio, Consilia, 144v. Teaching Style and Professional Work 121

This is all very powerful and persuasive but it is important to register that Fulgosio’s consilium also includes other arguments in support of the city of Riva’s cause and with regard to the status of Joanna’s marriage (for example whether it could be said to be freely entered in to). The style is more partisan, therefore, with Fulgosio providing arguments largely in support of one side in the case. Even his brief, initial arguments in favour of Joanna are only a rhetorical device to be stated so as later to be put down, much as an advocate might do. The focus is also often not on the civil position of Joanna’s husband- to-be, but on the way that the imperial document had affected the property rights of the city of Riva by preventing them obtaining the inheritance that would otherwise have been theirs. Rather feebly, Fulgosio also added for good measure that the emperor’s intervention was ineffective because Riva as a corporation was subject in temporal matters to the local bishop and not to the empire. Fulgosio’s printed consilium therefore looks much less like a judicial or definitive assessment of the entire matter and more like the arguments which an advocate or someone providing arguments for one side in the dispute might have made. The use of persuasive or provocative language may indeed be a sign of this. Evidence from the manuscript version of the consilium also points in this direction. In this, Fulgosio’s work sits along side, and interacts with, contributions from other lawyers who were also asked to provide their opinion on the case. Raffaele Raimondi, Enrico Alano, Signorino degli Omodei and Egidius de Cremona had all written consilia supporting the validity of the imperial rescript and had thus found that Joanna should receive her aunt’s entire inheritance.75 Fulgosio’s consilium argued for the other point of view and was counter-signed by his former professor of canon law in Pavia, Giovanni Castiglioni.76 These consilia were then followed by a consilium from

75 The jurists’ contributions are at: ms. UB Graz, 356, 17r–22r. Degli Omodei is styled: “Signerinus Thomedeus legum doctor”. Raimondi argued, for instance, that amending rights under a will was a matter for the civil law and that the emperor had the power to remove such rights, particularly when appropriate derogating clauses were used (“Cum hic appareat ‘de certa scientia’ principis et assit clausula derogatoria et generalis et specialis”). However he also added texts to support the idea that “dominia et ea que sunt iuris gentium possit principes per rescriptum tollere” and that the prince could be presumed always to be acting from a just cause (“et insurgit presumpcio iuris et de iure in principe ut subsit in iusta causa, ita quod non est admittitur probacio in contrarium propter plenitudinem potestatis sue”). Ibid., 19r–v. 76 The manuscript version of Fulgosio’s consilium differs slightly from the printed edition towards its end. Giovanni Castiglioni refers to himself in the consilium as a member of the college of Milan jurists (ibid., 24v). Castiglioni’s presence provides an ultimate end date for 122 CHAPTER 2

Pietro Ancharano whose opening paragraph catalogued some of the process history of the case, in particular the fact that an earlier decision on the dispute had been handed down by a court in Riva but that the matter was now before judges in Verona.77 Ancharano’s contribution was also somewhat different in tone to Fulgosio’s. In it he referred back to some of the points which Fulgosio and the other lawyers had made78 and, in contrast to them, appears rather more resolutional than advocatorial. His consilium also appears to be addressed to the judges on the Verona bench who were hearing the case, and not to any of the procurators or advocates for both parties involved in it. It is as if Ancharano had been tasked with resolving for the judges the conflicting technical views provided by the earlier jurists who had advised perhaps before the case came to law on the legal position should Joanna proceed to marry Nicolò.79 Ancharano’s arguments were more subtle and harmonising. It was understandable, Ancharano wrote, why some of the other jurists like Fulgosio were disturbed by the impact of the imperial document and therefore why they had taken the side which they had,80 however he proposed a solution based on distinguishing between an emperor removing current and future rights. The town of Riva had never had a right to the share in the inheritance as this was only ever conditional on Joanna not having married a local man and so the emperor could not have removed the town’s inheritance from them. Instead he had removed the possibility that they could have possessed such rights in future by making Nicolò a ‘native’ of the city and thus facilitating his marriage to Joanna. Ancharano also made short shrift of Fulgosio’s argument about the secular jurisdiction to which Riva belonged, invoking the Donation of Constantine in so-doing.81

Fulgosio’s contribution to the case since he died in July 1409. The consilium thus probably predates Fulgosio’s arrival in Padua. The other jurists involved in the case would all outlive Castiglioni. 77 Ibid., 24v & 19v. 78 Ibid., 24v–28r. Ancharano signs at the end as a consistorial “advocatus pauperum”. The date at which Ancharano became an advocate is unclear. He does not for example feature in the lists prepared by H. Kochendörffer in: Idem, ‘Päpstliche Kurialen während des grossen Schismas’, Neues Archiv der Gesellschaft für ältere deutsche Geschichtskunde, 30 (1905), 595–597. 79 Ancharano states that he will resolve the contrary consilia provided hitherto in the case by the jurists: ms. UB Graz, 356, 25v. 80 “Et per istam rationem moti sunt quid. ex prefatus doctoribus ad consulendum pro ista parte”. Ibid., 26v. 81 “Non obstat quod ultimo (i.e. by Fulgosio) dicitur civitas Tridentina sit subiecta ecclesie non imperio et per consequens imperator non potuerit ibi concedere rescriptum. Teaching Style and Professional Work 123

Viewed in this context, Fulgosio’s consilium looks more like one contribution to a case before the courts among many, and one, moreover, which supplied the legal support for one party to the dispute. These opinions were then harmonised by the more verdict-like consilium written by Ancharano to help the judges in Verona reach their eventual decision.82 It is difficult therefore to be certain whether Fulgosio’s contribution to the case represented his own deeply held views on the legal questions of whether a testator’s intentions should be adhered to very literally or on the power and scope of imperial rescripts. He may have been acting in the capacity of one of the several identities which a lawyer might be required to take on and, in this case, have provided arguments to support one party in the dispute (the town) to counter those which other jurists had presented and which found in favour of Joanna’s claim. If this was so, then Fulgosio would have been selective in what he argued; marshalling the points which favoured his side of the argument and tending to downplay those which did not. Something of the choices which a jurist faced concerning which arguments he would and would not use in a consilium can be discerned in a separate case which Fulgosio discussed with his Digest students and which also touched on the question of imperial or princely rescripts which had a transformative effect on an individual’s legal status. In this case the legal fiction had turned an illegitimate child in to a legitimate son or daughter by means of an imperial grant issued through a count palatine who had been delegated imperial powers.83 In the case before Fulgosio, this act of legitimation had prejudiced the inheritance rights of the family’s legitimate offspring. Ideally, an emperor would only legitimate illegitimate children when a couple had not produced legitimate

Nam cum sit infra lites Imperii presumitur concessa in feudum et non plene iure, sic etiam civitas Vercellen. [ . . . . ] Nam licet quo ad donacionem factam pape Silvestro per Constantinum fuerunt opiniones quod non valeat de quibus in Clem. i. de iureiurando [Clem.2.9.1.] tamquam imperator possit donare civitates imperii et donare et abdicare a se supprimam potestatem donando inferioribus ecclesiis pleno iure credo procul dubio quod non posit per rationes et iura notate per doctores [ . . . . ]. Concludendum est quod princeps concedendo dictam civitatem non videtur a se abdicasse supprimam potestatem principi reservatam puta legittimandi spurios, creandi tabelliones et fringendi originarios nativios qui non sunt ut est in casu nostro”, ibid., 27v–28r. Fulgosio had not mentioned the Donation. 82 Ancharano concluded his consilium for example: “Et pro ista sublate sunt omnes raciones et notiones que in dictis consiliis pro parte contraria sunt inducte”. Ibid., 28r. 83 A grant of legitimation, “per rescriptum principis”, was one of the forms by which the illegitimate could be legitimised. See: Thomas Kuehn, Illegitimacy in Renaissance Florence, (Michigan: University of Michegin, 2002), 49. 124 CHAPTER 2 heirs of their own. However a problem ensued if, having already obtained legitimation for illegitimate offspring, a couple subsequently produced legitimate children and this puzzle was the object of much consideration by jurists.84 In the case which Fulgosio had to consider the especially relevant commentary written by Angelo degli Ubaldi, the brother of Baldus, gave Fulgosio cause for concern. Prompted to recall the case by certain words within the text of the Digest [Dig. 2.4.16.] on which he was then lecturing to his Padua students, Fulgosio recounted how: “Not more than three years ago, I wrote a consilium on a similar case”. This concerned the precise details of how an imperial act of legitimation derogated from existing laws which prohibited acts of legitimation which were detrimental to pre-existing legitimate offspring. Fulgosio proceeded to explain that he was only aware of one discussion of this specific subject, by Angelo degli Ubaldi, but since Ubaldi’s argument appeared to render the legitimation by the count palatine null and void Fulgosio was reluctant to write a consilium (“nolui consulere”) based on Ubaldi’s argument. Instead he chose to focus more closely on the text of the imperial rescript by which the legitimation was originally achieved in order to judge it ineffective rather than void.85

84 Ibid., 54–57. 85 “Et non est tertius annus quod consultus fui de simili casu (to the law which they were then discussing, Dig.2.4.16 and which considered the word ‘specialiter’): rescriptum principis concessum comiti Palatino non obstante lege specialiter et expressa prohibente spurios legitimari, sunt quidem qui putant specialiter debere derogare Authent. ex com- plexu C. de incest[uoso] nupt. [Nov.89.15] et bene sumitur. nunquid talis clausula suf- ficiet: quesivi nec inveni aliquam tangentem, sed hoc dicit Angel. [de Ubaldis] et nolui consulere, quia volebat ut irritarem legitimationem, sed secundum dominum Angelum si rescriptum est factum non motu proprio, quod in dubio non presumitur factum motu proprio, nisi princeps specialiter dicat, motu proprio, ut in preallegatis capit. si motu proprio. [VI.3.4.23] rescriptum non erit efficax. Et per consequens nec legitimatio”, DIGEST I, 61v. Angelo degli Ubaldi did indeed discuss the situation of the legitimation of illegitimate offspring and their relationship with regard to the succession rights of legitimate children. The Justinian text from the Liber Authenticorum prohibited such succession when the legitimate children were alive and Ubaldi further explained that the law was general. To override it, therefore, would require recognition by a prince that he was setting its prohibition aside specifically in the case of the petitioner. Having considered various succession conflicts between illegitimate and legitimate children, Ubaldi noted: “Restat modo videre qualiter filii spurii et naturales legitimentur. Circa quid dic quod spurii unico modo legitimari possent scilicet per rescriptum principis dicentis quod eum legitimatum facit non obstante hac lex (i.e. Nov. 89.15), aliter eum legitimare non potest quia ex quo spurius est caret omni commodo huius constitutionis.” (Angelus de Ubaldis, Lectura autenticorum, (Lyon: Heirs of Jacopo Giunti, 1549), 29r). Ubaldi then proceeded to consider the Teaching Style and Professional Work 125

Fulgosio was faced, in other words, with a situation where the text of the imperial rescript permitting the legitimation of a child had included a derogating phrase; in this case the clause ‘non obstantium’.86 Legally this would represent an acknowledgement by the emperor that his actions might be detrimental to, or destructive of, existing rights. It was a signal that, in short, the imperial prerogative was being invoked in order to override existing laws and rights. Fulgosio knew that Ubaldi had argued that in such a statement a prince needed to refer specifically to the petitioner or the rights which were being trespassed upon in the rescript. A Non obstante clause had to be, in other words, particular and not general.87 When understood as particular in character, it was closer to the granting of an exception to an existing (and general) law. In contrast, if the clause was understood to be general it did nor represent the making of a specific exception to an existing law but was more blanket in nature. It had become, as it were, a new rule itself rather than only being an exception to an existing one. Understood as particular, therefore, the clause represented the acknowledgement by a prince that existing legislation or rights existed which were generally applicable but to which a specific exception could be made in the case of specifically named individuals and their specific circumstances or rights. If such a clause was not phrased ‘specialiter’ or particular then Fulgosio understood Ubaldi’s argument to mean that it, and the rescript document in which it was found, would be void.

position of those offspring born to a man’s mistress whom the man subsequently married and then also explained that a man who had fathered sons with another man’s wife could also see those children legitimated by princely rescript provided it acknowledged through the use of the derogating phrase non obstante that it was acting against Justinian’s injunction against such legitimation. (“Idem etiam si amasius fuisset vir alterius quid tunc essent nati ex damnato coitu et sic est necessarium rescriptum principis ut eos legitimet non obstat hic lex.” (Ibid., 29r). The key point in all these examples of princely derogation from the general principle expressed in Nov.89.15 was that the prince would state that the legitimation of x was being done notwithstanding the imperial edict specifically for x. Referring specifically to x was necessary as the rule in Nov. 89.15 was itself general. 86 For a discussion of a late fifteenth century case which considered the effect of such an imperial dispensation clause but in the context of a local statute which permitted illegitimate offspring to enjoy inheritance rights, see: Kuehn, ‘A Late Medieval Conflict of Laws’, 265–268. 87 The use of the clause non obstante by the royal prerogative to dispense from existing laws was a matter of controversy in seventeenth century England. At the time of the Bill of Rights in 1689 parliament debated a bill to curtail its use. See: Corinne Weston and Janelle Renfrow Greenberg, Subjects and Sovereigns: The Grand Controversy Over Legal Sovereignty in Stuart England, (Cambridge: Cambridge University Press, 2003), 30. 126 CHAPTER 2

This obviously introduced the question of whether there were limitations to what a prince or emperor could accomplish by means of a rescript in answer to a petitioner’s request for redress and thus, in turn, to the boundaries of what was an acceptable use of the imperial prerogative. It further implied that although a ruler could legislate to create general rules and laws, he or she could only grant petitions which constituted specific exceptions to those same already established laws. The ruler could not set aside those laws or rights generally by means of a rescript for that was to create a new law in place of the old rather than to amend an existing one in specific and exceptional circumstances. Given the manner in which the case touched on the questions of the imperial or princely prerogative, it is perhaps unsurprising that Fulgosio explained to his students that he had looked for a second derogating phrase in the document; the phrase motu proprio. This effectively would draw attention away from the question of the status of the imperial rescript and focus it instead on the subject who had petitioned the emperor (or his count) in the first place. It was established that a petition to which a ruler had responded by including this phrase was taken to be automatically just.88 In other words, and in the context of a rescript, it indicated that the petitioner had requested something which a prince could legitimately concede. By focusing on this clause, or its absence, Fulgosio would potentially be able to blame the petitioner of the rescript for any error in it rather than the prince. Once again, the consilium which Fulgosio told his Digest class that he was reluctant to compose is identifiable within the pages of his consilia collection. The eventual solution which Fulgosio found to the case can therefore be compared to his later class room analysis of the consilium and the concerns about it which he had expressed there. The individuals involved in the dispute are also revealed and included one of Fulgosio’s recently qualified students, Paolo Dotti, who would later become an eminent jurist in his own right.89 Paolo, together with his brother Dotto and their two sisters, stood to inherit much of

88 On the meaning of the phrase ‘motu proprio’, see: Black, Absolutism, 206–207. 89 Fulgosio, Consilia, 145r–146r. The consilium does not name the testator whose estate was being disputed and refers to the testator’s wife only as being named “A”, however Paolo and Dotto Dotti are mentioned in the text as well as two sisters, Diamante and Elena, a nun in Verona. This ties with what is known of the Dotti family and allows the testator to be identified as Francesco Dotti who had served the pre-Venetian Carrara rulers of Padua and who died in 1416. His third wife was named Antonia. Francesco moved to Venice after the submission of Padua to the city. On the family see: Kohl, ‘The Paduan elite’, 222–224; 257. Teaching Style and Professional Work 127 their father’s, Francesco’s, estate but two illegitimate sons born to Francesco’s sons from an earlier marriage, Antonio and Gian Pietro, were also named as potential beneficiaries in the will and had been retrospectively legitimated by imperial rescript. After Francesco’s death the case had come before the courts, possibly in Venice as Francesco had relocated there after Padua submitted to the republic’s rule in 1405. In his consilium Fulgosio firstly considered the relevance to the case of a statute from Verona which debarred daughters from taking precedence in an inheritance before any surviving male heirs. This statute had probably been brought forward by those acting for Antonio and Gian Pietro to support their case since it appeared to bar the Dotti sisters from receiving anything ahead of their two half-nephews. Fulgosio examined the text of the statute in order to align its terminology with regard to offspring with the standards of the ius commune and then to interpret it as referring only to legitimate male heirs and not illegitimate male offspring who had subsequently been legitimated.90

The date of Francesco’s death and Fulgosio’s reference to his consilium having been written ‘not more than three years ago’ would date his lesson to his students in Padua concerning the contested inheritance to, at the earliest, 1418 or 1419. Paolo Dotti qualified as one of Fulgosio’s students shortly after the latter’s return from Constance in the summer of 1415: see above, p. 88. 90 Fulgosio began the consilium: “Pro determinatione eius, de quo queritur, sciendum est quod statutum Veronense de quo supra et quod excludit filia et eis descendentis personas propter superstites masculos liberos et ex masculis venientes a successione parentum non habet locum in casu nostro, ubi proponitur superfuisse tammodo naturales nepotes licet legitimatos, quin proprie non dicuntur filii qui spurii nati sint licet posset legitimari, cum non eis conveniat diffinitio filii postea per legislatorem”. In other words Fulgosio had been asked if the statute disinheriting daughters whilst anyone survived from the male line was relevant to the case and had noted that the statute had not included the qualifi- cation that ‘sons’ signified ‘sons who were born illegitimately but were later legitimated’. In Fulgosio’s view that additional clause would have been necessary. In interpreting the text he then commented how such local statutes were always subject to correction to bring them, in effect, in line with the ius commune which was a further argument in support of his interpretation of what the statute signified. Its use of the term ‘son’ was, he concluded, that which was ordinarily understood by that term; i.e. legitimate sons born within wedlock. His argument aligning the statute with the requirements of the ius commune was thus a tool to help shore up a specific reading of it which made it of less use for Antonio and Gian Pietro. Since it was interpreted to refer to naturally legitimate male offspring they could not rely on it. Its references to male heirs did not apply to the situation of subsequently legitimated children: “Satis autem est operatutum statutum Veronense, si de filiis iustis et ex legitimo matrimonio natis, ut filias ex eis prolem descendentem 128 CHAPTER 2

This had the effect of making the statute irrelevant for Antonio and Gian Pietro’s case. To further support this potentially partisan interpretation of the statute’s references to male heirs, Fulgosio proceeded to discuss other examples from the law which restricted the term ‘male sons’ to only those born in wedlock and not those born outside it but legitimated afterwards. He cited legislation, for example, which claimed that Constantinople (‘New Rome’) had not permitted illegitimate children to become members of its civic council. Fulgosio famously then equated New Rome with contemporary Venice;91 an argument which was sure to stimulate a sense of civic pride among any of the Venetian judges and officers populating the court. It was only at this point, with the Verona statute set aside, that he turned to consider the difficult problem of the princely rescript. Such documents were normally only issued to counts palatine, Fulgosio explained, to allow the legitimation of children when a family had no surviving, legitimate sons. The resulting rescript would then be ‘specific’ rather than generic.92 To petition the prince however when legitimate children were still alive would be ineffective as the prince would not licence a count palatine to issue a document in such circumstances.93 The error, so to speak, was thus placed, as Fulgosio would later suggest in his class room recollection, on the petitioner for having sought such a concession and not the prince for having issued it. Fulgosio now turned to consider the presence of the derogating phrase, ‘non obstantium’, in the imperial instrument which had been issued and had

excluserit, intelligatur, et ad spurios quamquam post legitimatos non trahatur.” Fulgosio, Consilia, 145r–v. Fulgosio’s analysis of the local statute in this regard is therefore comparable to that of the cases studied by Thomas Kuehn from later in the fifteenth century (Kuehn, ‘A Late Medieval Conflict of Laws’, 271). Fulgosio was happy to reinterpret the local statute in order that it matched the needs of the case with the ius commune being invoked as a means to achieve that. 91 See: Lange and Kreichbaum, Romisches Recht im Mittelalter, 805. 92 “concedit principis dictis comitibus palatinis specialiter et nominatim dispensare, cum in rescripto gratiae post verbum naturales adiecit bastardos, spurios, et manseres et alios quoscunque etc.”. Fulgosio, Consilia, 145v. 93 “Circa autem primum quo prohibitum est per ius principi supplicari, hoc est super legit- imatione naturalium, et multomagis aliorum ex illicito coitu genitorum, cum legitima soboles existat, tunc non concedit princeps dictis comitibus hoc facere, quod specialiter vitium est impetrarii.” Ibid., 145v. Teaching Style and Professional Work 129 indeed apparently legitimated the illegitimate Dotti nephews to the detriment of their young (but legitimate) half-uncles. Such a clause, Fulgosio noted interestingly, derogated from existing laws and rights generally rather than specifically. In other words a prince did not need to specify which statutes were being affected by its issuance but could override them in general through a rescript. The princely prerogative was not limited by having to operate only as a specific exception to an existing law; it could set that law aside generally. This manifestation of the breadth of the princely prerogative had however consequences for the case of the legitimation of illegitimate children. That was an action which needed to be specific in nature and therefore to use a non obstante clause to accomplish it represented a contradiction. It could not be in the ‘mind of the prince’, therefore Fulgosio explained, to achieve the legitimation of illegitimate children when legitimate offspring survived by the use of such a general clause.94 Unlike Angelo degli Ubaldi, therefore, Fulgosio argued that the non obstantium clause was general but the subject matter to which it was directed needed to be specific in order for it to be effective. It was, as it were, the wrong legal tool for the job. Ubaldi’s point was that a non obstante clause was itself particular and not general. It specifically referred to the law which it was setting aside and to the petitioner who had submitted a request to the prince. It was in itself an exception to a rule. Fulgosio however was arguing the rather less supportable point that such a clause was not specific in nature but general. The imperial prerogative could exercise wide power in other words with respect to existing laws through such a clause. However, in the case of the legitimation of illegitimate children whilst their legitimate siblings were still alive, an emper- or’s or ruler’s rescript had to be specific in derogating from existing laws. In other words the clause non obstante was not relevant. It set aside laws generally while the nature of the subject matter to which it was directed needed to be an exception to a rule and not a new rule. The clause was ineffective because it was, as it were, a round peg for a square hole. The effect of this argument was to divert attention from the non obstantium clause and redirect it to the rest of the princely text. Here Fulgosio acknowledged that a ruler could indeed legitimate illegitimate children to the detriment of their legitimate siblings provided that the prince specifically mentioned that he was knowingly trespassing on those existing rights and

94 “Nec ex clausula non obstantium post subiecta licet colligere, eam fuisse mentem principis, cum ipsa clausula generaliter, non specialiter aliquibus legibus deroget”, Fulgosio, Consilia, 145v. 130 CHAPTER 2 local laws. It was not the phrase non obstantium however which accomplished this but other specific phrases in a princely document and Fulgosio asserted that he had seen such clauses in princely rescripts which would be effective. In the Dotti case, however, they were absent.95 In the context of the consilium this meant that Fulgosio could conclude that Francesco Dotti’s testament which had included the bequests to his legitimated illegitimate grandsons, was invalid and the Dotti siblings would therefore succeed instead by law of intestacy to their respective shares of their father’s estate. The formerly illegitimate grandsons meanwhile had not had their legitimation termed void, but the document which had legitimated them had been shown to be ineffective. The entire case had however shown the difficulty which Fulgosio was under when a private case touched on the status of imperial rescripts, as he had intimated in his revealing remark to his class regarding his unease about providing the consilium. The case introduced the whole question of the limits of the imperial prerogative to set aside existing rights and laws directly and also about when it was appropriate for a subject to petition a prince to obtain redress for injustices which the subject had suffered but which could not be remedied under existing laws or within the framework of existing rights. Fulgosio was evidently unwilling to use Ubaldi’s arguments and strike out the princely instrument as ipso iure invalid for not clearly constituting an exception to existing laws. Instead he had stressed the overpowering, general nature of the clause non obstante, and by deduction also the breadth of the princely prerogative, in order that its presence was ineffective. Without the inclusion of separate princely clauses to indicate that specific rights were being overridden the entire document was shown to be similarly ineffective. That cleared the way for the blame to be laid at the door of the petitioner for having sought out the imperial grant. An unjust petition (signalled by the absence in the prince’s reply of the phrase motu proprio) had been answered by the ruler but that answer was legally correct in that it was ineffective. The injustice of the petition, the incorrectness of that means of redress for

95 “Et ideo vidi nonnulla rescripta ampliorem indulgentia gratiam comitibus palatinis, dicunt enim ita, quod nullum liberis legitimis per legitimandos fiat praeiudicium, quin liberi legitimi suam ratam et virilem portionem consequantur, tunc enim manifesta est sententia principis concedentis, ipsos illegitime natos per palatinos comites legitimari posse, etiam si extant legitimi. At in re proposita cum eiusmodi verba non sunt in rescripta comprehensa, existimo non posse illegitime natos exstantibus legitimis legimos fieri”. Ibid., 145v. Teaching Style and Professional Work 131 the matter under consideration, was reflected as it were in the resulting inef- fectiveness of the imperial grant. This outcome all emerged however as the product of the jurist’s complex reinterpretation of the texts in the case which fashioned it in to a single, harmonious narrative and thus a legally defensible position. What Fulgosio’s consilium had also succeeded in doing was therefore to remove the obstacle which the entry of the imperial rescript in to the case represented in order that a local verdict could be reached on the dispute. A local court could form an opinion on whether it had been just for a private individual to have petitioned the emperor. It was not in the position however to determine definitively what an emperor could or could not do. In order to achieve the result of setting the rescript aside however, Fulgosio had been obliged to present arguments which were in favour of the power of the prerogative. This was however an argumentative consequence of sidelining the rescript, just as reinterpreting the terminology of the Verona statute was an argument to set it aside; and not necessarily a result of Fulgosio wishing to discuss princely power or the standing of local statutes. In other words, in order to construct a series of arguments which would yield the result that the rescript was ineffective (rather than void) and the petitioner unjust, Fulgosio had to use an argument which asserted the power of the prerogative. The result was what primarily mattered, not necessarily the means to achieve that outcome; although these too perhaps unnerved Fulgosio in the way that they necessitated using an argument which was at odds with Ubaldi’s teaching. A tension therefore existed between the need to present the appropriate result for both client and court and the need to be consistent with an important authority of the ius commune with this tension giving rise in turn to Fulgosio’s initial reservation about penning a consilium at all. He did not initially want to offer a consilium because he anticipated that he would have to make the argument which he did. How far Fulgosio’s discussion of the Dotti case represented his full view on the question of the use of the imperial or princely prerogative or even of his political views on the nature of the extents and limits of princely power is therefore a moot point. The trend of the consilium was certainly supportive of the idea that the prerogative should only be used in exceptional cases and that petitioners should only seek out such redress as a last resort precisely because of the exceptional nature of such means. However to achieve this solution Fulgosio had had to argue how pervasive and powerful the emperor’s use of the clause non obstante was and that it could override existing imperial law generally rather than being the means to allow specific exceptions to those 132 CHAPTER 2 laws. To a certain degree therefore Fulgosio was then trapped in a circular argument in which many lawyers across the centuries would find themselves when considering royal or imperial prerogatives;96 namely that if the crown or emperor could exercise the prerogative to dispense generally from its or his own laws then those laws, even when they too explicitly stated that no derogation was possible, would be overturned. In the Dotti case, this circular argument or contradiction was present in the idea that the non obstante clause was general yet the subject matter of the case, inheritance by illegitimates, had by law to be treated as an exception. The two authorities therefore clashed. Either an unspecific right to override existing laws carried more authority or existing laws which barred unspecific overrides did, however Fulgosio did not really offer a solution to this conundrum. Nor was this likely given that the context of the consilium was a private law case; particularly one where Fulgosio was quite probably writing for one party in that dispute. That he was is suggested firstly by the manner in which he referred to the Verona statute as if it were a document used to support Antonio and Gian Pietro’s claims and in his (from their point of view) unfa- vourable reinterpretation of its terms. Fulgosio’s rhetorical invocation of New Rome also suggests a more partisan, advocatorial-like consilium whilst at its very end Fulgosio noted that he had responded to the dubitationes which had arisen from the factual statements in the case.97 These were the legal questions thrown up by the more factual or testimonial submissions by the parties in the case. It may be therefore that Fulgosio had written his consilium in support of the cause of his student Dotti and that he did so in spite of reserva- tions about what would be required of him in terms of discussing the imperial prerogative. Such a consilium for a private case did not represent an ideal forum in which to discuss the broader legal aspects of the imperial prerogative. The court before which the case came could not form an opinion on so weighty a subject

96 For example, see the discussion of a fifteenth century case by a seventeenth century English lawyer in: Weston and Greenberg, Subjects and Sovereigns, 23. The case concerned a statute which declared that its terms would be void notwithstanding (non obstante) whether the crown acceded to a petition to the contrary, however this raised the question of whether a non obstante clause in the crown’s grant of that petition would in turn override the statute (one non obstante clause overriding another). This was possible, the lawyer remarked because “[T]he King, by his royalty is trusted with the government, pardons and publick business: particular cases may happen which deserve remission, upon consideration of circumstances.” 97 “Ex quibus omnibus apparet responsum ad propositam consultationem, et ad eas, quae ex dicta facti narratione insurgant dubitationes.” Fulgosio, Consilia, 146r. Teaching Style and Professional Work 133 and the practical concerns and closed-ended nature of a private case would have put limits on the jurist’s attempts to consider the question more fully. Nevertheless something of Fulgosio’s view of the subject can be detected in his consilium; or emerged out from it as a consequence of his argument. He did not rule out that princes could use the prerogative, however the effect of his consilium was to set the bar for when this power could be used rather high. In drafting rescripts, a prince’s chancellery would have to exercise a high level of textual precision for their master to be able to affect existing rights detrimentally. That, at least was the logic of the consilium. Whether Fulgosio faced with such a rescript in a new case would have accepted its validity or sought to re-interpret that text in turn so as to set it aside is another matter. Similarly whether he did that in order to hold a determined political line against assertions of the princely prerogative or only because his new client in that case required their position to be defended by setting that text aside is another matter. On balance it does however seem that Fulgosio in principle supported the prerogative provided it was correctly used as a means of exceptional redress. However this idea was, as it were, a by-product of his argument in the case; it was that which was left over after he had presented that case and not the prime reason for the consilium. It did not, in short, comprise a complete discussion of the proper role of the imperial or princely prerogative within the wider judicial system. Its object was not to discuss that topic, although elements of it emerged from discussing the private case, but skilfully to remove it as an obstacle to the prosecution of the case both by presenting arguments for litigants which carefully side-stepped the subject of princely power and also by cleansing the dispute of its discussion of rescripts and the imperial prerogative in order that a local judge could legitimately deliver a verdict upon it. In other words, the skill of the consulator was to balance not appearing controversial on the topic of princely rescripts (for a private case was not the place for this), whilst nevertheless remaining in tune with existing legal teaching on the topic (Fulgosio’s concern for what Angelo degli Ubaldi had argued) with the need both to present an effective case for one party in the dispute to which the jurist owed a duty and to do so in a way which would ultimately permit a judge to reach a just verdict. A more complete discussion of the role of the prerogative as a subject on its own would have probably had to accept that there was a legitimate place in the judicial system for a correctly functioning petitioning process which could redress those injustices which existing law could not remedy or private rights impeded. In a society, for instance, which was so-often threatened by disease and untimely death, a ruler’s intervention to permit exceptions to inheritance law might serve an essential social or public purpose. However 134 CHAPTER 2 there were also limits to this exceptional use of power. At some point the exceptional circumstances which a ruler condoned when he or she granted a petition had to reconnect back to the body of existing legislation. Too many petitions would have devalued the laws to which those petitions constituted exceptions. When those petitions were of the right quantity and quality however, any such exception only served to prove the legislative rule.

2.d Successive Procedural Contributions

The private legal cases in which Fulgosio encountered such questions could famously be protracted and a sense of the jurist continuing to be involved in a particular case over the course of its procedural life is often apparent in the consilia collection. In particularly long-running disputes the jurist could be required to contribute consilia at different intervals during the trial and these repeated contributions suggest a degree of on-going link either with the court concerned or parties in the dispute. Fulgosio appears, for instance, to have been involved with a second and possibly related legal dispute involving Joanna de Montagnana after his original contribution to her Riva inheritance contest.98 In two consilia, one naming some of the individuals involved and the second not,99 Fulgosio was questioned about a verdict which a court in Verona had pronounced in favour of the wife of Nicolò de Quinto who had taken her husband to court because he had absented himself from the city. If this woman was, as seems likely, Joanna de Montagnana, then she had petitioned for Nicolò to appear before the court in order that matters relating to her dowry could be attended to. De Quinto had not however returned and the court had found against him in absentia and appointed a curator to manage his wife’s dowry on his behalf.100 That curator had the power therefore to buy and sell property which, given what is known from the earlier case involving Nicolò de Quinto and Joanna de Montagnana, may well have been connected to her Riva inheritance. Both of the two consilia which Fulgosio wrote on the

98 The same held for the consilia which Fulgosio wrote at different times for the Trissino inheritance cases and Berindelli v. Turellini. 99 The consilia are: Fulgosio, Consilia, 181r–v and 181v–182v. The second consilium does not refer to any of the litigants by name, in contrast to the first where Nicolò de Quinto is mentioned and the allegation is made that he was absent from Verona. The second consilium however clearly contains the same subject matter and relates to the same case. 100 Ibid., 181r. Teaching Style and Professional Work 135 question consider whether the court’s verdict was valid and could be executed. The first concerned itself specifically with whether a curator could be appointed in such circumstances and had a more advisory tone as if recounting points which an advocate in the case might take on board or use. The second consilium however, which does not refer to the litigants by name, is more akin to a judgement in the way that it considers more general points of law like the trial of absentees or how far the Verona court’s jurisdiction ran territorially. It nevertheless found the court’s verdict to be invalid, but explicitly stated this in contrast to his first consilium which only argued as much.101 Both of the consilia were agreed however that Joanna de Montagnana, if it was indeed she, would be unsuccessful in her attempt to win back control of her property from her absent husband, perhaps the very same property which the couple had once fought so hard to inherit from her aunt. The Joanna de Montagnana case was heard before the courts in Verona and Fulgosio’s consilia collection contains many cases which were from this and other newly Venetian possessions. Evidence of his non-teaching activity in Padua itself is less predominant in the consilia. The commentaries do however contain some indications of his involvement in cases before the courts more locally. “The other day (alia die)”, Fulgosio for example told his class at one juncture, “I was quizzed (interrogatus) by a Jewish man who is a doctor in their law. The vicar wanted to compel him to provide a consilium according to Jewish law concerning a certain marriage dispute and he didn’t want to do this. And he asked me (petiit a me), if according to our law he could be obliged to provide one and I said yes.”102 It seems likely that this case is identical with the same one which Fulgosio mentioned elsewhere in the Codex as then being before the court of the podestà in Padua. Here he remarked to his students that he had given an opinion on the Jewish marital case more formally. “The other day (pridie)”, he told them, “I alleged (allegebam) in the palace103 that Jewish marriages ought to be

101 Ibid., 182v. 102 “fui interrogatus alia die a quodam Judeo qui est doctor in sua lege. Nam vicarius colebat eum compellere ut consuleret quid iuris est secundum suam legem in quodam matrimonio, et ipse non volebat: et petiit a me, si secundum nostra iura poterat cogi et dixi quod sic.” CODEX I, 80v. 103 The court of the Podestà was situated in the Palazzo della Ragione (Tjarks, Das „Venezianische‟ Stadtrecht Paduas von 1420, 80–81; 129) which was destroyed by fire in 1420. Fulgosio’s colleague, Raffaele Raimondi mentioned the fire and destruction of the palace as well as the subsequent effects on prices in his legal commentary. Discussing how prices changed as well as the precautions which he had personally taken, Raimondi noted: “sicut nunc est in apotecis que carius locarentur et venderentur propter combustionem palacii 136 CHAPTER 2 assessed not under their own laws, but under Roman law.”104 If the two cases were indeed one and the same, then Fulgosio had effectively advised the Jewish lawyer privately that, under Christian law, a consilium could legally be demanded from him by a judge, but had then, in another capacity, told the court that such disputes were ultimately subject to Roman and not Jewish law which would by definition have made anything the Jewish lawyer had argued redundant. The two events are however reconcilable: like a good lawyer Fulgosio was responding within the precise terms and context of what he had been asked. His Jewish counterpart had asked him the precise question about whether consilia could be forcibly demanded of a jurist and Fulgosio had responded within the frame of that question. Whether that consilium once provided was ultimately pertinent in the case was a different question. Furthermore, in the second instance Fulgosio appears to have been acting in some advocatorial capacity in the case and may have therefore been assisting one party to the dispute, presumably the side which had the most to benefit

quod combustum fuit die ii Februarii 1420 de quo timui et omnia exportavi de domo.” Raimondi, Commentaria, 61r. 104 Fulgosio mentions a case “de facto pendente in hac civitate coram potestatem de matrimonio” in which the question appeared of which laws should be used to judge a Jewish matrimonial dispute. Fulgosio said that “pridie allegebam in palatio” that “matrimonium debet Judeos celebrare non secundum leges suas, sed iure Romano”. CODEX I, 21v. A very good candidate for the case to which Fulgosio referred in his Codex lectures is the dispute over whether a marriage had definitively been contracted between two Jewish children, Elias f. Maneoli and Ester, daughter of Abraham, testimony concerning which was taken at length by the podestà court in Padua from November 1410 to at least February 1411. (See the case documentation in: ASPd, Atti giudiziari civili, Sigillo b. 41 f.2., 5r–60v). The case centred on whether the agreement to marry which the children’s parents, particularly Ester’s, had given was binding with the court hearing much testimony from the community about Jewish law and practices surrounding agreements to marry. This included testimony from one “Simon legum ebrorum doctor” (ibid., 8r). Fulgosio’s argument would appear to have been that the court need not use Jewish custom or law to determine whether a binding marital contract had been established but could use Roman law to do so instead. If Elias’s and Ester’s was the case before the podestà to which Fulgosio referred in his Codex commentary then it would corroborate a date for the printed commentary of c.1410/11. The fact that the court heard so much testimony evidencing Jewish practice and law (and requested for instance translations of documents from Hebrew (ibid., 29v)) would however suggest that, if it were the case concerned, either Fulgosio’s opinion was disregarded or that the testimony comes from an early point in the trial and Fulgosio’s intervention a little later. In February 1411 Fulgosio stood as trustee for an unconnected Jewish man named Elias (q. leonis) who was imprisoned for debts: ASPd, Atti giudiziari civili, Sigillo b.41. f.5, 38r. Teaching Style and Professional Work 137 from a reading of the dispute under Roman rather than Jewish law. Given that this would have been in Padua Fulgosio would have therefore been performing a task which, as a teacher, was regulated. Writing consilia was one thing, but acting as an advocate in the city whilst also lecturing there was another, particularly if, as Fulgosio explained in a different context, the party for whom the advocate acted was in litigation with the same Venetian state which paid that advocate a lecturer’s salary.105 Fulgosio explained that he had once witnessed this in practice in Padua, however an exception had been made in order that the advocate who was in the state’s pay could represent the litigant opposing the state. This conflict of interest was not as bad, Fulgosio effectively taught his students, as that the litigant concerned should find himself bereft of an advocate.106

2.e Diplomatic Activity and Advice: The Treaty of 1412/1413

In addition to these cases from Padua and beyond, Fulgosio’s commentaries also indicate that he was summoned away from his lectures on occasion to provide legal advice, in particular for his Venetian masters. In Codex I, for example, Fulgosio interrupted his lesson and told his class that “we would go on very well from there, but I’ve been summoned together with Taddeo da Vimercate by the Venetian authorities. I hope that we’ll soon return but in the meantime I’ve provided you with someone to lecture in my stead. I couldn’t do this earlier because it was very late yesterday evening when I was informed that I would need to go to Venice today. So you’ll have to forgive me if today’s lesson is rather short.”107 He had arranged for Giovanni da Gubbio, Fulgosio explained, to stand in for him in his absence.

105 For an example of a lecturer at the university acting as an advocate before the Padua courts, see the position held by Fulgosio’s colleague, Prosdocimo de’Conti in 1414 at: ASPd, Atti giudiziari civili, Aquila b.20 f.2, 9r. 106 Fulgosio explained to his Codex students that those paid by the state as lecturers could not serve as advocates for a party against the state, however he recounted that this could be allowed by exception and had indeed happened in a case in which he was involved: “ut fuit in hac civitate, postquam hic extiti. Nam salaratius de publico erat advocatus contra ducale dominium, dum alius doctor et ego essemus advocati pro dominio et hoc fuit bene ex permissione dominii. Nam iniquum esset, quod altera pars deberet carere advocatis”. CODEX I, 80r. 107 “Ultra bene procederem, sed sum vocatus una cum Thaddeo de Vico Mercato a serenis- sima dominatione Venetorum: bene credo quod reditus noster erit celer: interim tamen providebo vobis de uno, qui loco meo legat. Nam adhuc non potui providere: quia heri 138 CHAPTER 2

Taddeo da Vimercate taught at Padua from 1408 but left the university sometime after September 1414, and therefore his and Fulgosio’s visit to Venice must date to the period 1408–1414. Giovanni da Gubbio was one of Fulgosio’s own students who received his doctorate in civil law with Fulgosio as his promoter on 19 January 1412.108 By the following October he had been incorporated in to the jurists’ guild in Florence where he remained through the first half of the century,109 however before this transfer it would have made a great deal of sense for Fulgosio to have handed over stewardship of his class to his newly- qualified protégé. A sense of responsibility taken early on in life was something which Fulgosio had celebrated, after all, when he reminisced about his own junior career. This would all suggest that Gubbio stood in for Fulgosio in 1412, whilst the proximity of Fulgosio’s announcement of his being summoned to Venice to the Christmas advice to his students about gambling (they are scarcely two pages apart) would suggest a further fine tuning of the date of Fulgosio and Vimercate’s absence to the early spring; a period when there was a significant threat to the city from Sigismund’s Hungarian troops and which was characterised by reports of an exodus of students and staff from the university. This date of early spring would be valid if the two remarks originated in the same ordinary or extraordinary lesson series, for there is evidence again of Fulgosio teaching two classes at different points in the text at this time. His comment about being summoned to Venice comes at folio 58r of Codex I and his remarks about gambling at 56r. On folio 62v we find the jurist making the comment about tomorrow’s lesson being more difficult than today’s which was noted above and on folio 78v recounting a case which he had heard about in Venice, whilst on folio 80v he mentioned the enquiry which the Jewish professor had made of him. On the same page the scribe then added: “At this point Raffaele went to Venice and Giovanni da Gubbio lectured until the text

erat tarda hora, quando mihi notificatum fuit, quod oportebat me hodie ire venetias. Ideo mihi parcatis si lectionem modicum brevem facio”. CODEX I, 58r. According to the statute of 1331 a lecturer who had legitimate cause to be absent was supposed to gain the approval of the student body and pay a deposit against his delayed return. (Denifle, ‘Die Statuten der Juristen-Universität Padua’, 428) This two stage approval process can not have occurred in Fulgosio’s case here as his comments indicate a more immediate departure and imply that he did not require approval at all. A summons direct from the Venetian authorities quite probably took precedence over university statutes. 108 Zonta, Acta, IV: 96. His licence in civil law had been awarded only a fortnight before: ibid., 94. 109 Paolo Mari, ‘Giovanni Buongirolami’, DBI, 15 (1972), 234–236. Teaching Style and Professional Work 139

‘de errore advocatorum’ [C.2.9.0] by way of extraordinary teaching”.110 When that text was duly reached a folio later, the scribe recorded that Fulgosio had returned from Venice and resumed teaching.111 It would appear therefore that Fulgosio went to Venice and Gubbio covered for him twice that year, once in the departure recorded at folio 58r and again when Gubbio was said to start teaching in his stead at folio 80v. There is evidence for this in the university records. Fulgosio is recorded as absent (“ex causa”) on 12 February but present again on 10 March 1412 and was then absent again on 22 August but had reappeared by 5 October.112 It is possible therefore that Gubbio was Fulgosio’s locum during both of these absences and that the two entries in the commentaries reflect both periods, however absence in late August and September would have been towards the end of the academic year which would not fit with the proximity of the teaching texts to one another in the commentary text. Gubbio also had to make his journey southwards to Florence by October. Another explanation is that Fulgosio left his students in the hands of Gubbio only once, with the event being picked up by the tape recorder quality of the commentaries on two separate occasions seen from the point of view of two different lesson types which were independently proceeding through two different series of legal texts. The scribe next provided an insight in to how Fulgosio was expected to redress his absence on his resumption of teaching. “Later, during the vacations” (presumably Easter), the lord Raffaele wrote on certain of the texts (i.e. which Gubbio had taught for him) and said to me that he did not want to write on all of them as he could think of nothing new to say and didn’t want to tire himself out by rewriting what others had already written.”113 After returning from Venice therefore Fulgosio was expected to provide his students with a written

110 “Hic d. Raph. ivit Venetias pro eo legit domi. Joan. de Eugubio usque ad tit. ‘de errore advoc.’ [C.2.9.0] pro modum extraordinarium”. CODEX I, 80v. In this context, Gubbio was lecturing extraordinarily because he was a locum. 111 Ibid., 81r. 112 Zonta, Acta, IV: 98, 100, 107–108. Fulgosio is recorded as present on 30 January 1412 (ibid., 97) and as late as 23 July (ibid., 105) prior to these two periods of absence. 113 “Et postea cum ipse dom. Raphael in vacationibus scriberet quasdem leges in titulo de iis qui not. infra dixit mihi se non velle super iis scribere quia nihil nova sentiebat. Et ideo nolebat fatigare se in scripta per alios rescribendo”. CODEX I, 80v. At ibid., 81r the scribe duly recorded: “Hic do. Raph. venit de Venetiis”, whilst Fulgosio told his students at ibid., 82v that he had been in Venice and that he could think of nothing new to add to what other doctors had said on the laws which in his absence he had missed, adding “et nunc non sunt bene disposite mens ad studium, et manus ad calamum”. 140 CHAPTER 2 version of his views on the texts which he would have otherwise taught them and to catch up in this way during the vacation. This would also suggest that writing up his views in the privacy of his study was not the customary way in which the commentaries came in to being but was the exception. This would lend support to the idea that the commentaries were ordinarily transcribed ‘live’ during a class. The same phenomenon was observed, as was seen above, when Gianfrancesco Capidolista covered for the absent Fulgosio who “wrote up the laws in his study which he had omitted to teach by going to Venice and gave them to the scribes”.114 Fulgosio and Vimercate may simply have been summoned to Venice in 1412 to advise on a private legal case before the courts there, however Fulgosio is also known to have provided more public law advice to the republic of San Marco. He would be called to the city in 1426, for example, to discuss the peace between the Visconti and Venice, with Cardinal Giordano Orsini despatched there by the pope as a negotiator.115 In his commentaries however, Fulgosio also recounted the advice which he provided to Venice on an earlier peace treaty. This was negotiated with Sigismund, the King of Hungary, who was, Fulgosio explained, “then only emperor-elect”. The papacy was also involved as a mediator.116 The treaty to which Fulgosio referred must therefore be the one which was finally signed on 17 April 1413 and which brought an end to a conflict which had begun two years earlier between Sigismund and the Venetian empire. Fulgosio’s involvement in the drafting of this treaty is therefore a very good candidate for the occasion for his and Vimercate’s absence prior to the Easter vacation in 1412. The fact that when he recalled this event, Fulgosio referred to Sigismund as having been, at that time, emperor-elect and thus uncrowned would indicate that he was doing so after Sigismund’s coronation in Aachen in late 1414.117 In all likelihood this would mean that Fulgosio’s recollection of the treaty comes from a lesson that he was teaching after he had been to the council of Constance and that this section of the Digest dates to 1415 or after.

The ‘ordinary’ class reached the Easter vacation at ibid., 103v with Fulgosio typically complaining a day or so before at how quickly the time was going and the need to press on with their lessons: ibid., 102r. 114 See above, page 27. 115 Francesco Zanotto, Il palazzo ducale di Venezia, (Venice, 1861), III, 29; Jacopo Facciolati, Fasti Gymnasii Patavini, (Padua, 1757), 26–28. Facciolati further argued that Fulgosio had been called to Venice on two other occasions in 1418 and 1421. 116 CODEX II, 227v. The text of Fulgosio’s comment is given below. 117 Fulgosio would not live to see Sigismund’s later coronations in Milan or Rome. Teaching Style and Professional Work 141

The specific advice which had been sought from Fulgosio regarding the treaty concerned the papacy’s involvement in the preliminary negotiations of the peace process. John XXIII had sent the Cardinal of Piacenza to mediate in the conflict and Fulgosio recalled to his students how he had advised Venice on the terms of the ‘compromesso’ involving the papacy which would form the framework for the eventual treaty. In other words, rather like the contractual process from offer to final settlement, both parties would agree to the terms under which a treaty would be negotiated and the mediator would then come up with that agreement based on those outlined terms. One of those terms concerned the involvement of the papacy as a guarantor under the truce who would resolve disputes arising between Venice and Sigismund once the treaty between them was signed. Fulgosio’s involvement appears to have been with respect to the wording regarding the role to be played by the papacy as an enduring arbiter of disputes during the five year truce envisaged by the treaty. A particular phrase had caught Fulgosio’s eye in the draft agreement and he had brought it to the attention of the Venetian authorities. The draft had stated that the pope could decide all matters of contention between the former combatants except for those which the parties themselves would decide. “I said that this ‘except for’ ”, Fulgosio told his students, “was undermined by the end of the same document where the sense was that the papacy could decide on all matters, even those where the parties did not want it to and thus could make a binding decision without therefore their consent. It was not the intention of Venice to make a compromise agreement in these term so that they could be judged without their agreement and I advised the man who was writing this clause in the contract that it would be better therefore to add the word ‘not’ instead of ‘except’ so that the contract’s meaning was clear that the papacy could determine everything except for those matters which without the agreement of the parties it could not judge. He begrudgingly made the change, from which I sus- pected that the ‘except for’ had originally been put there maliciously so that it would be undermined later in the document.”118

118 “Dum esset controversia inter regem Ungarie, tunc electum in imperatorem, et ducale dominium Venetorum, compromissum fuit factum in summum pontificem in hac forma, ut ipse summus pontifex de omnibus et quibuscunque controversiis, nisi ex partium voluntate pronunicare posset. Ego dicebam quod illud nisi, exponebatur in fine unde erat sensus quod de omnibus controversiis posset pronunciare: etiam invita altera parte, et sine voluntate eius, dominium autem Venetorum, non habebat intentionem sic compro- mittendum: ut sine eorum voluntate posset iudicare: unde eo qui eram pro formandis eorum capitulis, consulvi debere apponi in ipso contractu, dictionem non: ut sit sensus 142 CHAPTER 2

Fulgosio then had helped the Venetian cause by identifying a clause in the tri-party agreement with the papacy which might later have come back to haunt them. As a working lawyer, well versed in the ways by which texts like those in the imperial rescript cases could be interpreted and manipulated, Fulgosio would have known how the terms of an agreement might later be held up to close inspection and it was thus vital to ensure that what was being agreed was clear and matched the genuine intentions of the parties. In this case he was arguing to the benefit of Venice, but the same desire would have held for all parties, if they were not, as Fulgosio alleged, being deliberately crafty: they would want their actual intentions to match their written contractual intentions. There could then not be any doubt at a later point. The fact that Fulgosio had given this advice at a preliminary stage in negotiations is noteworthy. Together with other powers,119 the papacy was involved in preliminary moves for a peace from early 1412 and Fulgosio’s contribution appears to have come from this period, perhaps as the Venetian authorities considered the basic framework of an eventual treaty and the role that the papacy would play within it. Negotiations for the final treaty itself began in earnest in January 1413 when Venice sent representatives to meet with Sigismund and a series of conferences, moving from town to town in Friuli, continued between the two parties. These culminated in the signing of the treaty in April in Casteletto in Friuli.120 Fulgosio’s remarks that he had told ‘he who was writing the contract’ to make the wording change to the draft agreement indicates that he was in personal contact with those framing that draft rather than advising on it from a distance. It seems more probable that this was done in Venice in preliminary preparations for the treaty and that Fulgosio did not travel to Friuli and assist with the more direct and detailed negotiations there. This would further fit with an absence from Padua before Easter in 1412 when Giovanni da Gubbio is more likely to have been in Padua to act as Fulgosio’s locum.121 Given that this

quod de omnibus controversiis nisi partium voluntate pronunciare non possit: diversa pars dicebat non referre nisi quia erat ornatior sermo, apponendo dictionem non: et vix consensit apponi: unde ego suspiciatus sum, quod malitiose apposita fuerat dictio nisi, que exponitur in fine.” CODEX II, 227v. 119 S. Romanin, Storia documentata di Venezia, (Venice: P. Naratovich, 1855), IV: 62. 120 Ibid., 61–62. 121 Since the dating of Gubbio’s involvement is dependent on the date of his degree in January 1412, we also have to consider the possibility of an error in the sources. Given local dating conventions it is always possible that January 1412 was actually 1413 which would push Fulgosio’s absence from Padua in to the spring of that year and much closer to the signing of the treaty. The fact that Gubbio was evidently incorporated in to the jurists’ Teaching Style and Professional Work 143 would have been at a time when the war was still actively underway, Fulgosio should therefore be imagined making his way to Venice with the effects of that conflict, like the threatened Hungarian invasion of Padua, very apparent all around him.122 When the text of the final 1413 treaty itself is examined, it is clear that Fulgosio’s subtle amendment to the text was indeed incorporated in to the final treaty. A clause saying ‘except’ had indeed been replaced there by Fulgosio’s ‘not’.123 This contribution, albeit at an early stage in the negotiations and about such nuances of meaning was nevertheless important and furthermore indicates that Fulgosio would have had at least some contact at this time with officials delegated from the papacy to work on the agreement and perhaps even from Sigismund’s court as well. Fulgosio was also evidently someone whose legal advice Venice called upon at this time and the value of his contribution may have also been registered, if not perhaps on this occasion so-welcomed, by those around the emperor and closely linked to the papacy. It would be these three powers – Venice, the papacy and the emperor – which would be the main focal points of Fulgosio’s time at Constance and contact with them immediately prior to the assembly may well explain why Fulgosio was chosen, only around two years later, by the Venetian authorities to go to the council.124 Fulgosio’s companion Vimercate would also enjoy a prominent career as a jurist- diplomat. Having left Padua, where he was not a popular lecturer, Vimercate taught briefly in Parma in 1415 but then served as an ambassador for Milan to Sigismund and the Council of Constance in 1417 and was rewarded with imperial appointments as a result.125

guild in Florence in October 1412 however would tend to corroborate the earlier date for his degree award. 122 On the war between Venice and Sigismund, see: M. Mallet and J. Hale, The Military Organisation of a Renaissance State: Venice c.1400 to 1617, (Cambridge: CUP, 2006), 26–28. 123 The relevant clause was: “Item ut tempore dictarum treguarum, et sufferentiarum devinire possit ad pacem bonam, ac perpetuis temporibus duraturam, dictae partes eli- gant, et assumant in amicabilem compositorem omnem differentiarum existentium inter predictas partes prefatum dominum Johannem supremum pontificem [i.e. John XXIII], qui tamen non possit nisi de partium voluntate amicabiliter finalem concordiam facere.” Verci, Storia della marca trivigiana e veronese, XIX: doc.65 (my emphasis). 124 It is also intriguing to consider whether Fulgosio’s contact with the emperor at this time may have also been linked to a loan agreement between his wife’s possible relative, Felicina, the wife of Castellino Beccaria, and Sigismund signed in June 1414. For the document: S. Marinus, Beccariae gentis imagines ex eiusdem historijs, (Pavia, 1598), 86–87. 125 Belloni, Professori giuristi a Padova, 316; Gisela Beinhoff, Die Italiener am Hof Kaiser Sigismunds (1410–1433), (Frankfurt a.M.: P. Lang, 1995), 114. 144 CHAPTER 2

2.f Other Legal and Professional Work

In addition to such public law advice to the Venetian authorities and despite the predominantly civil law nature of his legal output, Fulgosio also occasionally advised on criminal cases. A quasi-judicial opinion was sought from him, for example, in a case before the courts in Belluno concerning the appropriate sentence to be handed down in a case of attempted rape. In a world where peasants were hung without trial for having un-calloused hands, or notaries were sentenced to lose their writing hand when found guilty of false record- keeping, Fulgosio advised that a youth of about sixteen who had attempted to rape a twelve year old girl at knifepoint should be banished from the town for a few years.126 One part of Fulgosio’s job as a lecturer was to train the men who would have to sit in judgement on such cases in the often newly conquered or acquired towns of the Venetian terraferma and a well trained official would have known when to seek expert opinion like Fulgosio’s on an unclear area of the law. On occasion too, Fulgosio would fulfil a judicial position more directly when he acted, as many prominent citizens did,127 as an arbitrator appointed and accepted by contesting parties in a dispute to resolve the matter privately between them. He served in this role for example in 1417 when two contesting parties including members of the Scrovegni family, owners of the Arena chapel, agreed at Fulgosio’s home to abide by whatever decision Fulgosio and his fellow jurist Prosdocimo de’Conti might make concerning their dispute.128 It was in a similar context that the humanist Sicco Polenton appears to have written to Fulgosio in January 1416, hoping that a matter being adjudicated by Fulgosio should go in Sicco’s favour.129 Fulgosio was clearly not a regular correspondent with humanists of the day and the letter from Sicco is not one of literary friendship but rather one which concerns practical details. A similar thing can be said about the communica- tion which Fulgosio had with the humanist Francesco Barbaro in January 1425.

Vimercate also taught at the university in Budapest: Florio Banfi, ‘Pier Paolo Vergerio il vecchio in Ungharia’, Archivio di scienze, lettere ed arti della società italo-ungherese, 2 (1940), 3. 126 ms. Biblioteca Marciana, Venice, V,2 (=2324), 178v–179r. Raffaele Raimondi also wrote on the same case: Fulgosio, Consilia, 48r–v. 127 Antonio Fulgosi for example was appointed as an arbitrator in Piacenza. See above, p. 61n. 128 ASPd, AN4873, 184v, 189r, 200r. 129 Arnaldo Segarizzi, La Catinia: Le orazioni e le epistole di Sicco Polenton, (Bergamo, 1899), 86. Teaching Style and Professional Work 145

Barbaro had been appointed as podestà in Vicenza a year before and Fulgosio had written to him to offer his congratulations. Barbaro had then asked a jurist acquaintance to take the post of his vicar in the city who was charged with the day to day running of the podestà’s court, but the jurist had turned the opportunity down. Barbaro now asked Fulgosio if he could recommend anyone and Fulgosio suggested the name of Giacomo Alvarotti who subsequently accepted the position.130 Fulgosio’s role as an educator is also apparent here. It was in order to prepare candidates for positions like that offered by Barbaro that Fulgosio’s teaching was often directed. In a possible extension of legal work following on from operating as an arbitrator, Fulgosio also appears to have been involved in the setting up of business ventures, presumably through assisting in the drafting of contracts. On 8 October 1410, for example, and thus after lectures had finished for the academic year, the jurist was a witness in his own home together with his then-beadle, Giovanni Vallegiani da Mortara, to the formation of a new company to make woollen cloth.131 Mercantile activities like these and the wealth they created also provided many other legal disputes for a busy lawyer like Fulgosio to tackle in the periods between lecturing. At the end of 1414, however, this comfortable existence blending lecturing and advisory work, the theoretical and the practical, was to be interrupted again just as it had been by the peace negotiations in 1412 when Fulgosio was summoned from Padua to contribute once more to an important international event. Fulgosio was still in Padua to attend a court session involving the mother of his pupil Alvarotti on 4 September 1414;132 and, a few days later, his lectures for the academic year 1413/14 came to an end, as they were accustomed to do.133 Fulgosio was still in Padua as late as 27 September but,

130 ed. Remigio Sabbadini, Epistolario di Guarino Veronese, (Venice, 1919), III: 179; ed. Claudio Griggio, Francesco Barbaro. Epistolario, (Florence, 1991), II: 59–60; Remigio Sabbadini, Centotrenta lettere inedite di Francesco Barbaro, (Salerno, 1884), 15. Giacomo Alvarotti was Francesco Alvarotti’s uncle: Blason Berton, ‘Una famiglia di giuristi padovani’, 99. 131 ASPd, AN2, 70r. An Italian version of the agreement, presumably the original draft, was drawn up earlier: ibid., 71r. A little over a week later Fulgosio was present in his own home for the signing of an agreement drawn up by Lorenzo, Riccardo and Benedetto Alberti to divide their father’s estate on which he had presumably advised: Cessi, ‘Il Soggiorno di Lorenzo e Leon Battista Alberti a Padova’ 245 & 261–268. 132 ASPd, AN486, 120r–v. 133 Lessons ended at around the holiday for the nativity of St. Mary on 8 September (see, for example, Fulgosio’s comments at: Codex I, 242r). 146 CHAPTER 2 a month later on 27 October, university records declared him to be absent.134 Teaching for the new academic year would have begun on the day after St Luke’s day (18 October), and salary payments to lecturers for the up-coming academic session were technically to be distributed at All Souls (1 November). It is possible therefore that Fulgosio had to leave Padua without receiving the first instalment of his bi-annual salary; and it is very likely that he would not have begun to teach the opening lessons of the new academic year. Those students enrolled to take his lectures would have to await Fulgosio’s return the following spring, by which time the jurist would have changed the character of his reminiscences with which he educated or amused his class. Instead of anecdotes about how ‘a few days ago I wrote for a case in Lucca’ or ‘once, when I was in Genoa’ his lessons would then often be prefaced with a new series of recollections: “Cum essem in Constantie”. When I was in Constance . . .

134 Zonta, Acta, IV: 92–93. Fulgosio was also recorded as absent again on 4 November. CHAPTER 3 Fulgosio’s Arrival at the General Council

“Cum essem in Constantie . . .”

Raffaele Fulgosio was an unusual candidate to attend the Council of Constance. He was a married layman for one thing, with a slave-run household and extensive teaching, professional and financial commitments in Padua. His career to- date had also been largely focused on the civil law and had only incidentally touched on the canon law or ecclesiastical questions. The question therefore has to be asked why Fulgosio was chosen as a delegate to the assembly. Given the control which it exercised over both Padua and its university it seems highly likely that the authorities in Venice were behind Fulgosio’s selection. Even if the university had wished to send a representative to the council on its own account to defend its corporate interests, which many other universities across the continent did,1 this would probably have required the consent of the university’s Venetian masters particularly given the salary which Fulgosio was being paid and the only recently successful efforts by the republic to entice the jurist to Padua. Those same considerations and commitments would also have surely precluded Fulgosio from having independently chosen to attend the council. It therefore seems more likely that the Venetian authorities lay behind his selection, either by directly commanding him to attend or indirectly by approving his selection by Padua university. The republic did not however select Fulgosio as one of its formal representatives at the council. These were ambassadorial posts reserved for two of its own citizens even if these proved somewhat difficult to fill. As early as September 1414 when planning for the year ahead, the authorities in Venice had discussed the need for representation at the forthcoming council.2 Their initial choices for delegates to the assembly, who included the future doge Francesco Foscari, turned down the opportunity however to attend. Foscari had been recently involved in diplomatic missions to both Sigismund in 1413 and the pope and therefore, like Fulgosio, would have been an ideal candidate to send to the council. Fulgosio’s involvement in the treaty negotiations with Sigismund around that same year would have made him a natural replacement since

1 See, for example, for France: Henri Denifle, ‘Les Délégués des univerités françaises au concile de Constance’, Revue des Bibliothèques, 2 (1892), 341–348. 2 ASVe, Avogardia di Comun, A-28-10, 196.

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004305854_005 148 CHAPTER 3 much of what had been of concern to Venice in the tri-party peace negotiations between the city, Sigismund and the papacy would remain relevant in the context of the council. The assembly would also easily have been seen in those same terms by the government in Venice. The council’s mission to unite and reform the church may not have been the most immediate area of concern for the city-state, but defending its interests and those of the pope to whom Venice was broadly allied was and having a lawyer of Fulgosio’s standing to defend those interests would have been a significant advantage. As a non-Venetian citizen such a formal role as a delegate was probably unavailable to Fulgosio. Instead, the two individuals who finally agreed to attend the council on behalf of Venice were both local noblemen. Bartolomeo Morosini was a member of that cadre of officials from whose ranks governors and officials for Venice’s onshore possessions were drawn and who were just the kind of individuals likely to be trained by Fulgosio in Padua; whilst Francesco Soranzo was a member of the same family as the man with whom Fulgosio may have dined only a few years previously. Soranzo and Morosini departed Venice on 25 September with the intention of meeting the pope in Bologna and then accompanying the papal party on their journey north to Constance thereafter.3 Fulgosio was still in Padua on 27 September and it is therefore possible that he joined the two Venetian ambassadors if they passed through the city en route for Bologna. As was seen above, Fulgosio had left Padua by 27 October. Conciliar records indicate that Fulgosio arrived at Constance with a six-man retinue,4 who must have accompanied him from Padua. If the party did not leave Padua in the company of the Venetian embassy, then it is possible that Fulgosio’s group joined the Bishop of Padua who set out for Verona, according to his now lost journal, to meet John XXIII on 6 October 1414 as the pope passed through that city on his journey north. The episcopal party remained in the city for a short period, meeting with the pope until 8 October before returning to Padua five days later.5

3 Sanudo, ‘Vitae ducum venetorum’, 891. 4 For Fulgosio’s entourage: MANSI, XXVIII, 634. 5 Francesco Scipione, Dissertazione nona sopra l’istoria ecclesiastica padovana, (Padua: Seminario, 1817), 13. The bishop appointed a procurator on 21 September (ASPd, AN287, 231r) which may well tie in with a planned absence in October. That people from Verona were departing for the council at this time can be seen in the unsuccessful attempt by the Venetian authorities on 27 October to have a rebel, Antonio de Maffei, brought to Venice. This was not possible, a report declared, as he “had recently gone with the Cardinal of Fiesco” to the council: ASVe, Collegio notariato, Antic. seg. 13, 20v. Arrival at the General Council 149

The bishop appeared, therefore, to have been more concerned to meet the pope on his way to the council rather than to attend the assembly himself. Travelling to Verona and then returning to Padua would have been a convenient way to petition the pope for privileges or concessions, with the forthcoming council perhaps being of only secondary interest. The opportunity to petition the pontiff either at the council or while John was nearby in Verona probably explains why, on 1 October, a law student from Cyprus named Filippo Chareri authorised one of Fulgosio’s own students, Francesco Zenari,6 to supplicate the pope on his behalf for a licence to marry a Greek Orthodox woman stating that he himself intended to convert to the Latin rite although his future wife would remain Orthodox.7 It seems quite conceivable that Zenari took the request to the pope in Verona in the company of the bishop and his entourage a few days after the authorisation, and that the student returned with them then to Padua where Zenari was recorded as present once more on 4 November.8 If one of Fulgosio’s students journeyed with the episcopal party to Verona at this time then it seems quite possible that his master did so as well, with his student and the bishop’s men returning from there after meeting the pope, whilst Fulgosio continued north in the company of the pope and curial officials. Both parties, the Venetian and Paduan, were set to rendezvous with the pope, either in Bologna or Verona, and therefore whether or not Fulgosio initially travelled with them or not, it seems quite likely that he too would have subsequently joined the papal party and accompanied it over the Alps to Constance. That journey was one which the Florentine humanist Leonardo

The Venetian authorities had written to John XXIII on 6 September to discuss the pope’s travel plans and to inform him that they had advised their rector in Verona to prepare to provide the pope with horses there. The rector replied to discuss the matter on 28 September: Finke, ACC, I: 262–3. 6 Fulgosio was Zenari’s promoter and presented him with his insignia as a doctor when he was awarded his degree in 1417: Zonta, Acta, IV: 166 (Francesco Alvarotti was also in attendance). Zenari appears in records, together with Fulgosio, as a civil law student in 1412 and 1413: ibid., IV: 107 & 118. In 1422 he was also one of the nineteen members of the jurists’ faculty at Padua together with Fulgosio: Gallo, ‘Lauree inedite in diritto civile e canonico’, 30. Raffaele Raimondi wrote a consilium concerning the death of Zenari’s wife, Elisabeth, whom he had married in 1416: Fulgosio, Consilia, 37v–38v. 7 ASPd, AN2, 296r. In a similar manner, a little less than a month before on 3 September 1414, Pietro Zabarella was empowered to supplicate John XXIII on behalf of the rector of the church of Vigonza: ASPd, Atti giudiziari civili, Aquila b.20,f.10,8r. 8 Zonta, Acta, IV: 135. 150 CHAPTER 3

Bruni would make later that same winter, in December 1414, and a picture of what Fulgosio’s journey may have been like can be gained from reading the highly stylised narrative which Bruni made recalling his Alpine adventure. Bruni describes the mountains towering over either side of the travellers as his group made their way towards the Brenner pass and notes how the party’s horses were sometimes forced to travel in single file as the mountain paths were so narrow. At Merano, the group took the mountain pass, with Bruni observing the high Alpine lakes and conjecturing that they were the source of the Danube. Like many an individual before and since, Bruni was moved by the inhuman scale of the mountains, but a descent soon brought the party to lower ground from whose countryside of orchards and vineyards Bruni says the Rhine was soon reached. From there a boat conveyed the travellers on to Constance.9 A month before Bruni made his journey, the papal party took a very similar route via Merano and doubtless observed similarly monumental sights on their way. As the party struggled over the c. 1,800m high Arlberg pass, John XXIII’s carriage overturned in the snow.10 And, just as at Verona, every station at which the papal party overnighted also seemed to be marked by petitioners availing themselves of the unusual opportunity to secure a concession in person from the pope or to have existing rights reconfirmed by the passing pontiff.11 John finally reached Constance on 28 October and even if Fulgosio had not been within the papal party on the journey north, he could not have been far behind them on the road for his first appearance in the conciliar records dates from 11 November. On that date the pope formally requested the Venetian authorities to permit Fulgosio to remain at Constance until the council should end. John XXIII evidently had a post already in mind for Fulgosio which would require his constant presence at the assembly.12 On 16 November, as the initial

9 Ed. Laurentio Mehus, Leonardi Bruni Arretini epistolarum libri VIII, (Florence: Bernardi Paperini, 1741), 102–109. 10 Thomas Martin Buck, ‘Text, Bild Geschichte. Papst Johannes XXIII wird auf dem Arlberg umgeworfen’, AHC, 30 (1998), 37–110. 11 Georg Schmid, ‘Itinerarium Johanns XXIII. zum Concil von Konstanz 1414’, in: ed. Stephan Ehses, Festschrift zum elfhundertjährigen Jubiläum des deutschen Campo Santo in Rom, (Freiburg i.Br.: Herder’sche, 1897), 200–206. 12 Finke, ACC, I: 263. Given that the letter was written on 11 November it would seem logical that Fulgosio was present in Constance for the opening of the assembly on 5 November. Arrival at the General Council 151 administrative matters of the council were settled, Fulgosio was indeed named by the assembly as one of its four official advocates.13

1 Conciliar Advocate

Fulgosio had last worked as an advocate as a young man in Pavia and Milan. It was an advocate’s job to present the case for one party in a dispute and, as a conciliar advocate, Fulgosio would thus be required to plead on behalf either of the council itself or private parties whose case or dispute had been brought before the assembly. Those parties were themselves represented by their procurators who handled the more managerial or procedural aspects of the case or dispute, ensuring for instance that testimony, legal representations and other documents were presented correctly and in accordance with legal deadlines.14 Whilst a procurator’s legal skills were sufficient for him to defend a client on his own in relatively straightforward cases, an advocate was necessary for more complex disputes. Although he too acted for the party concerned, his focus would by definition be less on the factual aspects of a case and more on its more purely legal elements viewed nevertheless from his client’s perspective. The advocate, as Jason del Maino expressed it later in the fifteenth century, defended his client’s case from reason and by virtue of his legal knowledge.15 The advocate was therefore theoretically subject to a slightly greater potential conflict between the requirement to plead his client’s cause successfully and his professional duty to uphold the truths of the Law more generally. This slightly enhanced objectivity with respect to procurators was even reflected in social terms. In many cities advocates formed collective colleges or guilds with judges and not procurators. In the subjective/objective continuum of the courtroom, advocates were slightly closer than the partisan procurators to the (hopefully) objective judge. Nevertheless advocates and procurators worked hand-in-hand before the courts to defend their clients. On the same day that Fulgosio was appointed a conciliar advocate, for example, and to complete its necessary stock of court officials, the council also named his Piacenza

13 Ursinus Durand and Edmund Martène, Veterum scriptorum et monumentorum . . . amplissima collectio, (Paris, 1733), VII, 1409. 14 On the role of the procurators and advocates at Constance, see: Loomis, Mundy and Woody, Council of Constance, 58. 15 Guido Alpa, ‘Per un progetto di storia dell’avvocatura’, in: Idem and Remo Danovi, Un progetto di ricerca sulla storia dell’avvocatura, (Bologna: Il Mulino, 2003), 22. 152 CHAPTER 3 countryman, Giovanni Scribani and the Frenchman Henry of Piro as conciliar procurators who would represent the council itself when the assembly became itself one party in a case or dispute. These would be questions or disputes of the highest importance brought before the council. Over the lifetime of the council, for example, the procurators and advocates would be involved in the prosecution and eventual deposition of the pope and in such episodes as the Jean Petit tyrannicide controversy and the dispute between the bishop of Strasbourg and his cathedral chapter which distracted the council from other business over the course of several months in 1415/16.16 As an appointed conciliar advocate, therefore, Fulgosio could reasonably have expected that he would be called upon to defend the position of either one party or the other in the very high-profile cases or disputed legal questions which were to be adjudicated by the council itself rather than being pursued through more traditional channels of justice like the rota romana. The judges and officers of that court had accompanied John XXIII north to Constance and continued to hear cases whilst at the council; the numbers of which were only likely to multiply given the number of clerics who would come in person to the council and would take the opportunity to pursue a legal dispute whilst there. The rota romana was also already staffed with its own corps of consistorial advocates, probably numbering a dozen or more in total;17 indeed it was from their current or former ranks that Fulgosio’s colleagues as conciliar advocates were drawn. All three of the men chosen with Fulgosio on 16 November were currently, or had been, consistorial advocates. Pietro Ancharano whose services, together with those of Fulgosio himself, the students of Padua had tried to secure through the farming of the tax on Venetian prostitutes only a year earlier in 1413 was teaching at Bologna, but had worked as a consistorial

16 On the dispute which absorbed much conciliar time and followed the bishop’s imprisonment by his chapter, see: Heinrich Finke, ‘Der Strassburger Elektenprocess vor dem Konstanzer Konzil’, Strassburger Studien, 2 (1884), 101–112; 285–304; 403–430. The advocates acting for each side were: Ardicino della Porta, for the chapter, and Gasper of Perugia, for the bishop: ibid., 286. 17 See: Walter Brandmüller, ‘Simon de Lellis de Teramo. Ein Konsistorialadvokat auf den Konzilien von Konstanz und Basel’, AHC, 12 (1980), 234. Arrival at the General Council 153 advocate shortly before,18 while Simon of Perugia and Ardicino della Porta were still serving in that capacity when they were appointed at Constance.19 Like these men, Fulgosio was qualified in canon law, but, unlike them, he had not spent his career at the papal curia or been deeply involved in canon law cases. Unlike all of them, for example, in 1407/8 when the cardinals had sought out the opinions of jurists ahead of their action against the pope, Fulgosio had not written personally on the question but had only subscribed to a consilium written by another jurist, Paolo da Castro. In contrast, all three of his future colleagues, Ancharano, Simon de Perugia and Ardicino della Porta, authored their own individual opinions for the cardinals at this critical period between 1407 to 1408 which had culminated in the convocation of the council of Pisa.20 At that council furthermore both Ancharano and Perugia had played prominent and significant roles.21 For his part, Ardicino della Porta would also later become a cardinal.22

18 Two examples of Ancharano signing as a consistorial advocate are: ms. Universitätsbibliothek Graz, 356, 28r and ms. Biblioteca Roncioniana Prato, Q’v 21, 119v which dates to after 1409. Ancharano was also one of the advocates (together with, amongst others, Ardicino della Porta, the later conciliar advocate Agostino del Lante and the conciliar procurator Giovanni Scribani) who presented Jan Hus’s formal exceptio for not answering in person his summons to the papal curia: Franciscus Palacký, Documenta Mag. Johannis Hus vitam, doctrinam, causam in Constaniensi concilio actam . . . illustrantia, (Prague: Friderici Tempsky, 1869), I: 190. 19 Kochendörffer, ‘Päpstliche Kurialen’, 596. 20 Ancharano for example wrote from Bologna in response to questions about whether independent action by the cardinals would constitute the illegal deposition of the pope and whether they could compel obedience among the faithful: Vincke, Schriftstücke, 112–121, whilst Perugia and della Porta were among those advocates and other jurists linked to the curia canvassed for their opinion in late 1407 on the associated question of whether the cardinals were obliged to complete the work of union if the pope refused to do so, in this case by being held to their promises to unite with the rival college in Savona even when they could not procure ships to take them there: ms. Biblioteca comunale Passerini-Landi, Piacenza, Landi 24, 282v–286v & 331v. (Ancharano also provided a consilium at this time: ibid., 314r. A consilium of Bartolomeo Saliceto in this collection, who was by then an old man and who had written a tract on the schism at its outset in 1378/9, dates the whole collection to October 1407; ibid., 328v). 21 For Ancharano’s activity at the council and earlier tract on the schism, see Swanson, Universities, Academics and the Great Schism, 209–210. For Perugia’s role at the council of Pisa, see below, p. 178. 22 On della Porta’s career, see: Carolus Cartharius, Advocatorvm sacri consistorii syllabvm, (Rome: Z. Masottus, 1656), xxvi; Walter Brandmüller, ‘Simon de Lellis de Teramo’, 260. 154 CHAPTER 3

Fulgosio was therefore an unusual choice for an advocate at Constance, particularly given the high number of other consistorial advocates in the papal party who might reasonably have expected to obtain such a prominent post but would be left instead with processing relatively mundane benefice disputes through the rota courts rather than occupying themselves with the kind of high-profile cases with which a conciliar advocate was likely to have to deal.23 One can therefore conjecture that Fulgosio’s appointment was partly political and not simply a reflection of his not inconsiderable legal talents. It is conceivable that he had already been marked out in Venice for such a post close to the papal and general management of the forthcoming assembly. This is of course not to say that Fulgosio was unqualified to fulfil the role to which he had been appointed. Not all of the matters to be discussed by the council would be religious or ecclesiastical in nature and even consistorial advocates themselves were often laymen with wives and families rather than being members of the clergy.24 Nevertheless Fulgosio does appear to have been aware that his position had its anomalies. On his return to Padua he would remark to his students as he discussed a topic which he said ought rightly to be discussed only by theologians that, “when I was in Constance, I had to advocate (“arguebam”) about this even though I am not a theologian”.25 Fulgosio was clearly aware that this was an unusual situation, however it was also very much the position in which an advocate of any hue might find himself. It was his job, by its very nature, to make the argument for whatever subject or case he had been given to argue. It was not for him to decide the subject to be discussed, nor which side of a matter he was to defend, but to use his legal and rhetorical skills to make that case to the best of his ability.26

23 There were evidently rumblings among the rota advocates towards the end of 1415 with regard to the prospect of competition for employment when all three obediences finally united to form a single curia which would have by necessity have had less need of so many court officials. See: Brandmüller, ‘Simon de Lellis de Teramo’, 239. 24 See, for example, the discussion of the letters written by the consistorial advocate Simon de Teramo who was with the rota at Constance with regard to pressure on him to marry the widow of a fellow advocate, Roberto Fronzola, with whom he had children and also with respect to his later marriages: ibid., 237–244. 25 DIGEST I, 23r. See below, p. 226. 26 For a discussion of the skills which an advocate was to use in presenting a case and, for example, the idea that he should obtain sight of the arguments which his opponent was to make in order to attack them, see: James A. Brundage, ‘ “My learned friend”: Professional Etiquette in Medieval Courtrooms’, in: eds. Martin Brett and Kathleen G. Cushing, Readers, Texts and Compilers in the Earlier Middle Ages, (Bodmin: Ashgate, 2009), Arrival at the General Council 155

A background primarily from civil law did however possess its benefits, particularly in the face of the challenges facing those assembled at Constance with respect to the continuing schism in the church. A civilian’s perspective on that could cut through some of the more emotional aspects of the on-going and highly divisive dispute and state the problem facing the church in slightly more frank, but ultimately productive, terms.

2 The Marche Case and the Question of Obedience

The only surviving consilium in which Fulgosio personally addressed the kind of ecclesiastical or ecclesiastically related questions which he might have to face at Constance concerned a property dispute which had been affected by the actions of Pope Gregory XII. The case was from the Marche, one of the few territories which remained loyal to Gregory following his deposition at the council of Pisa in 1409. The dispute touched directly on a question which has been of some interest to scholars ever since: namely the extent to which Gregory XII, at the low- est point in his fortunes after Pisa, had alienated church property in a series of desperate attempts to garner support, both politically and financially, for his weakened cause.27 The case which Fulgosio considered in his consilium presumably represented either one such attempt by the abandoned pontiff to raise funds or win support or was simply an indication of the compliant submission to which by this date he had been reduced before the covetous demands of local rulers. It is evident from the consilium that Fulgosio had been sent a series of documents which included a letter written by Gregory XII whilst he was in Rimini in February 1414 concerning his alienation of church property in the Marche and elsewhere to the benefit of his most prominent Italian supporter, Carlo Malatesta.28 From the context, this letter must have been a post-factum

183 & 194; Nicoletta Sarti, ‘Tra mestiere e scienza giuridica. La difficile professionalità dell’avvocato medievale’, Historia et ius, 1 (2012), paper 6: 5. 27 See, for example, the discussion of Gregory’s putative alienation of the papal states in favour of Ladislas of Naples, then occupying Rome, around 1408 in: Peter Partner, The Papal State Under Martin V: The Administration and Government of the Temporal Power in the Early Fifteenth Century, (London: British School at Rome, 1958), 41. 28 The letter to which Fulgosio refers in his consilium may therefore be connected to the document issued by Gregory in February 1414 assigning certain monastic revenues to Carlo Malatesta. On the assignments, see: P.J. Jones, The Malatesta of Rimini and the Papal State, (Cambridge: Cambridge University Press, 2005), 144. 156 CHAPTER 3 justification of the pope’s actions, for Fulgosio was also sent a sale document executed under a commission which Gregory had provided the previous August in which a house owned and used by the Third Order of Franciscans had been sold. He had also seen other letters written by the pope and his cardinal, Angelo Barbarigo, supporting Gregory’s actions.29 The fact that Fulgosio refers in the consilium to the by-then deposed Gregory using the well-established schism-era formula of ‘pope in his own obedience’ suggests that the consilium pre-dates Gregory’s eventual resignation in the summer of 1415 and may well come from immediately prior to Fulgosio’s departure for Constance in the winter of 1414.30 One can imagine a case coming before the Marche courts in the course of 1414 as a result of a property sale in August 1413 with Gregory’s letters from February 1414 being produced by the defendants in the case to help their cause. It is apparent from Fulgosio’s remarks in the consilium regarding arguments made by ‘other parties’ in the case that, as he wrote, he had before him the points which the advocates in the dispute had made. The legal point which Fulgosio had to consider was the status of the property sale. Could a pope legitimately alienate church property? More prosaically, did the ‘unapproved’ status of the third order of Franciscans affect the situation: did property owned by them technically count, in other words, as ‘church property’? The latter point had been argued by counsel during the dispute already but Fulgosio did not find such arguments persuasive. He did tentatively support the order however in the dispute, cave- ating his position by understandably saying that he could not speak for the authority of the testimony from twelve witnesses in the case which he had been sent. Fulgosio remarked that he did not want to deny papal powers. The idea that the property sale was invalid because of a “lack of power by the pope who gave the original mandate” was not therefore something which he wished to consider. He criticised however the defence in the case as presenting arguments

29 Fulgosio, Consilia, 299v–300r. The consilium also shows that Fulgosio had seen the documentation evidencing the entitlement of the Franciscans to the building. These documents are dated in the printed consilia to 1419, however this seems to have been a printer’s error. Since the documents were issued by pope Boniface IX (sic: “19”), the date of the original sale is more likely to be 1399 than 1419. 30 For the use of the formula, ‘in his own obedience’ see: Karl Fink, ‘ “Sic in sua obedientia nuncupatus” ’, QFIAB, 60 (1980), 189–199. Arrival at the General Council 157 which he said had “tended towards” that idea.31 That it was the defence (who were attempting to uphold the validity of the sale rather than undermine it) who had referred to this idea is initially surprising but can be explained when the character of Fulgosio’s consilium and its place within the legal process is considered. Fulgosio would have been contributing to the case after a series of libelli and allegationes had been presented by the parties in the case which contained a series of charges and counter charges and the character and content of Fulgosio’s consilium will have reflected this. Fulgosio would have had sight of these documents with their rival accusations and arguments but these texts are now lost to us and their presence can only be detected in the shadow which they cast on Fulgosio’s own work and which was in a certain sense in dialogue with them. When Fulgosio’s consilium stated therefore that the defence in the case had raised the question of whether popes could alienate church property what we may be reading is the final stage in a preceding, but now lost, sequence of arguments and counter arguments in the trial which had culminated with the defence accusing the Franciscans of having implied that the pope lacked the power to alienate. In other words, the defence may have introduced the argument as a spoiler. Fulgosio’s role in the process was to bring the dispute back within an acceptable framework. He would not consider the question of whether the pope lacked the ability to alienate property but would study instead the terms of the particular commission which Gregory had made to agents to sell church property. What precisely did ‘ecclesiastical property’ mean in this context? Fulgosio provided a narrow reading of the term and read that interpretation back in to Gregory’s letter. With the meaning of the phrase accordingly refined, Gregory’s words happily were shown to refer to a narrower definition of property which did not include the specific type of building owned by the Franciscans. This approach meant that, unlike counsel for the defence, Fulgosio did not need to consider the sensitive issue of whether a pope had the right to alienate, but simply stated that the particular letter which Gregory had written and the commission which he had given could not, by definition, refer to the particular property at the centre of the case. What Gregory was selling in that commission did not include the property owned by the Franciscans. The question of

31 Fulgosio, Consilia, 300r: “deficit itaque memorata devota venditio non ex defectu potestatis in mandante, hoc est, in papa ad quod tendunt argumenta pro parte dicti Petri [i.e. the purchaser] proposita, hanc namque potestatem in summo Pontifice in dubitationem non revoco. Sed ex defectu concessae seu mandatae potestatis in commissiariis.” The question of whether the Franciscans should own property at all was also not considered. 158 CHAPTER 3 whether in principle the pope had the right to sell church property as rede- fined was therefore side-stepped. On the assumption then that the twelve witnesses in the case had correctly given their testimony about the precise character of the property held by the Franciscans and the use to which it was put, Fulgosio argued that their cause should be upheld.32 In other words, provided that factual testimony showed that the nature of the property did not meet the definition of church property which Fulgosio had narrowed down the papal letter to have ‘meant’, then the case should be won by the Order. Textual reinterpretation had therefore combined with factual evidence to signal how the case should be judged. Whether popes had the power to alienate property at all was therefore removed from the puzzle and it was returned to being a question of facts (witness testimony about the actual character and use of the property concerned) which the court was in a position to determine independently and the interpretation of words in specific texts. Such displays of rhetorical skill and a focus on texts rather than theoretical principles were a standard approach for jurists and came to the fore in dealing with the complexities of the great schism. It was often much easier to restrict or expand the meaning of words within a text in order to resolve a case than to leap to a full blown debate about the rights or wrongs of papal or princely power. Private legal disputes were also not an appropriate forum in which to discuss such things, both because such questions could never be definitively determined by the courts before which those disputes were brought and, more fundamentally, because it was in the nature of such questions that whilst they might form the basis for a debate they were ultimately indeterminable. The Marche case reveals something therefore of Fulgosio’s quotidian working practices. He had been sent much of the documentation and witness testimony relevant to the case and, having quickly assessed it, could respond both with a way out of what at first sight may have seemed something of a legal impasse to the lawyers and officials at work locally in the court and a ready- made verdict for the judge presiding over it. Fulgosio did not identify the judge before whom the case was being heard but it seems likely from the circumstances that it would have been the curia

32 “Concludendum itaque relinquitur, quos si testes, quorum attestationes et depositiones missae sunt, rite fuere recepti, ita ut fidem eorum attestationibus haberi oporteat, iustior est fratrum tertii ordinis agentium causa intentio sue petitio, quam Petri se defendentis contradictio.” Fulgosio, Consilia, 300r. Arrival at the General Council 159 generale of the Marche.33 A possible sequence of events giving rise to the trial can also be suggested. The property at the centre of the case would have been sold in August 1413 which, given that the Tertiary Franciscans were presumably still using it at that date, would have required the purchaser to process his acquisition through the courts to gain actual possession of his newly acquired property. The Order would then have appealed this verdict and brought the case which the purchaser was now defending. Given that he had evidently presented Gregory’s letter from February 1414 in defence of his rightful ownership, it seems likely that the case first began in late 1413 and was at an appeal stage by the spring of 1414. If the case reached Fulgosio later than this, while he was at Constance for example, then he would have been in the somewhat extraordinary position of being in contact with members of Gregory’s obedience at a time when he was an advocate appointed by John XXIII and employed at a council by which the Gregorians were being ostracized as fomenters of schism. Gregory’s representatives arrived, for example, in Constance in late November 1414, but were denied entry to the council. A bitter argument then broke out as to whether the representatives of the ‘anti-pope’ should even be allowed to display ‘their’ papal insignia outside their lodgings in the town.34 This question of whether the two popes deposed at Pisa should be afforded any legal recognition by the Council in Constance was something that struck at the very essence of the new assembly. For some, notably John XXIII himself, the council was intended to be a short lived affair in which the deposition logic of Pisa five years previously was to be reiterated: the former papal rivals had been deposed and the church should now simply obey John, its unifying pope, with those who persisted in recognising the two defrocked pontiffs being pursued and prosecuted. For others however, Constance was imagined as a council which would be rather less partisan in temperament. This second option would see the ending of the now tri-part schism as ultimately more important than either John’s personal victory in that struggle or the vindication of the Pisan solution of 1409. Those who thought more along these lines were wont to indicate that John too, like his two rivals, was dispensable. Like them he could also be subjected to the logic of unilateral papal disarmament: that by resigning his title he would encourage his two opponents, Gregory and Benedict, to follow suit.

33 Unfortunately the case predates the surviving records of the court which are preserved in Macerata. 34 Lenné, ‘Der erste literarische Kampf’, 3–40. Gregory’s chief negotiator, Cardinal Dominici arrived in Constance on 20 November 1414. 160 CHAPTER 3

The discussion in the early days at Constance about whether Gregory’s representatives and supporters should be admitted to the assembly was therefore a fundamental one in pointing towards the ultimate direction which the council would take. As an advocate with connections to John XXIII, it seems unlikely therefore that Fulgosio would have been able at this juncture to provide legal advice for a case directly concerning Gregory XII like the one from the Marche. It is however possible that, after the Emperor Sigismund’s arrival at the council on Christmas Day 1414, and as the negotiations with the Gregorians which would ultimately lead to Gregory’s resignation continued through the spring of 1415, that Fulgosio could have been passed the papers on the Marche case. Embassies were going back and forth to Carlo Malatesta at this time and formal contact between council officers and Gregorians was by then conceivable. Whenever Fulgosio precisely wrote his consilium on the Marche case, its content nevertheless shows that Fulgosio was perfectly comfortable with the arguments which would ultimately be necessary to tackle the legacy of the schism which had imprinted itself on to certain private rights and possessions. He knew, for example, how to uphold the validity of the papal contenders’ actions whilst not bringing in to question the unresolved puzzle of their title claims. Like other jurists of the era Fulgosio knew that the issue of Gregory’s legal status in documents like the one issued by him in February 1414 could be addressed by referring to him not as ‘pope’ but by the formula, ‘known in his obedience as pope’. He also could show how radical actions occasioned by the schism like Gregory’s sale of church property could be neatly tiptoed around. These careful and fundamentally conciliatory legal euphemisms were what would ultimately be necessary in order to reconcile the warring obedience factions of the schism church. After all, one argument that Fulgosio and the advocates in the Marche case could have used was that Gregory’s 1414 bull was invalid because Gregory had been deposed in 1409 and was no longer pope. If Fulgosio wrote his consilium on the eve of the council of Constance then it would have made perfect sense to point out the invalidity of the ‘schismatic’ Gregory’s actions. Fulgosio was about to attend a council summoned by John XXIII, not Gregory XII; and it was John whom both Venice and Padua then recognised as the rightful pope as the Bishop of Padua’s trip to Verona to inter- cept the pope on his journey to Constance showed. Fulgosio’s former dining companion, Francesco Zabarella, was also by the time of the Marche property sale one of John’s most high profile cardinals. Yet, for Fulgosio to have gone down the route in his consilium of pointing out the invalidity, in ‘Pisan Obedience’ eyes, of anything that the deposed Gregory did in 1414, would have been to bring in unnecessary and ultimately divisive arguments in to the discussion of a private property dispute. Like the Arrival at the General Council 161 consideration of papal or princely power, questions about the schism could not be decided by a local court and the jurist’s task was therefore to eliminate them from the equation in order that the court could proceed to a verdict on the case itself. It was far better, then, to treat Gregory’s bull as if it were the valid act of a pope and then use rhetorical and jurisprudential skill to side step the consequences. The case could then treat Gregory’s actions as if they were papal ones and its judges could form an opinion based on the case’s more intrinsic, local elements. The council of Constance was however a public forum where the schism’s legal legacy could be discussed and, as it worked towards the reconciliation of the three papal obediences, the question of how the law might recognise the actions which each of the former papal contenders had taken during the schism became ever more important. What was to be done, for instance, when rival popes had contradicted one another and appointed different candidates to the same benefice?35 Fulgosio’s analysis of the Marche case shows that, in common with other jurists of the time, he already possessed the tools to tackle that kind of challenging question. Even as a predominantly civil lawyer, therefore, Fulgosio was well prepared to address the kind of questions which might be posed him as an advocate at Constance.

35 See my ‘Resolving benefice disputes after the Great Schism’, 311–414 and Idem, ‘Cuius Regio, eius. . . . Papa? The decree on ‘real obedience’ at the council of Constance (1414– 18), Konrad von Soest and the contest for a parish church in the diocese of Regensburg brought before the rota auditor Gimignano Inghirami’, Zeitschrift für Rechtsgeschichte. Kanonistische Abteilung, 94 (2008), 66–102. CHAPTER 4 The Arrival of the Emperor Sigismund at Constance, Part One: Fulgosio and the Christmas Day Controversy of 1414

“Vidi tamen in civitate hanc insurgere differentiam cum applicuisset Constantie”

Like many great medieval gatherings, one of the first matters to attract the attention of delegates arriving at Constance was the question of status. Although it began modestly enough, the council grew in size as individuals arrived from across Europe and, in many cases, those delegates felt that they represented a particular group, office or corporation: be it a bishopric or abbey, an university, city or kingdom. Upholding the status of the office that one held or the corporation which one represented would have been a strong motivation for many at the assembly, matched by an equal alertness not to see that position marginalised or subverted. It is indeed something of a wonder, given the council’s ultimately wide-ranging membership, that it did not simply become overwhelmed by a series of disputes about ceremonial precedence, status or rank.1 This was particularly the case given that the council saw the coming together of a range of individuals who were not necessarily accustomed to work in such close proximity: The emperor and the pope, their respective legal and administrative officials, bishops and their suf- fragans, monks and clergy, the lay and the religious; and all of these groups brought together in one compact, medieval town. How all of these individuals should properly comport themselves when they met or interacted was thus a complicated question and one that had the capacity to flare up quickly in to dispute or debate. During his brief time at the council, Fulgosio was to witness a number of such episodes.

1 On the question of rank at the councils, particularly with respect to the relative positions which countries were to observe in ceremonial activity of the period, see: Johannes Helmrath, ‘Rangstreite auf Generalkonzilien des 15. Jahrhunderts als Verfahren’, in: ed. Barbara Stollberg-Rilinger, Vormoderne politische Verfahren, (Berlin: Duncker & Humblot, 2001), 139–173 who notes that many of the disputes observed at the later council of Basle began at Constance but have been less often studied (ibid., 142) than those of later councils. A list of the many rivalries that were played out in this way is provided at: ibid., 151.

The jurist also had his own rules of rank or status etiquette to observe. Having been incorporated into the council and being close to the curia meant that Fulgosio had added a new series of authorities towards whom the niceties of deference and service were required in addition to his existing ties to the university in Padua and Venice. Negotiating the demands of multiple masters without impinging on their sense of status and pre-eminence required care. An example of this can be observed in apparently mundane epistolary traf- fic between Pope John XXIII and Venice very shortly after Fulgosio’s arrival at the council. On 11 November John XXIII wrote to Venice to request that Fulgosio be permitted to stay at the council for as long as would be necessary. The Venetian senate replied to the pope on 1 December to state that they were happy to allow their esteemed lecturer to remain in Constance, although they reminded the pope that Fulgosio’s not inconsiderable salary had to be paid and that they would be keen to have him back at the university in Padua as soon as possible.2 The republic’s letter could simply have been a polite, if belated, response to John’s formal request for Fulgosio’s services, with the senate not wishing to miss the opportunity to remind the pope about the heavy financial burden to them of the jurist’s continued absence. There could however have been a rather more elaborate background to the exchange. As will be seen below, Fulgosio may have orchestrated the communications between Venice and the pope himself in order to procure, in effect, a document permitting him to leave the council at a later date without having appeared to rise above his station by negotiating with the pope directly and thereby risking an offense against etiquette, status and rank. It may be therefore that, although he had only been at the assembly for a few weeks, Fulgosio was keen to pre-arrange his ultimate return to the class of students waiting for him back in Padua. He also may have shared the view of many delegates that the council would be a short-lived affair, concerned merely to confirm the work of its predecessor at Pisa which itself had been of short duration. With a succession of new delegates arriving at the assembly every day however, and the growing evidence that some of those delegates were less inclined to a simple re-affirmation of the schism settlement worked out at Pisa, it may have become increasingly apparent in December that Constance was not going to be as short-lived. Some delegates for example were keen for the council to move on from tackling the schism to address wider questions of reform, whilst the controversial arrival of the delegation from John’s rival

2 Finke, ACC, I: 263–264. On the letter, also see: Karl Dieterle, ‘Die Stellung Neapels und der grossen italienischen Kommunen zum Konstanzer Konzil’, RQ, 29 (1915), 46–47. 164 CHAPTER 4

Gregory XII in November had also revealed the extent to which some at the council were minded to seek an accommodation with the two other obediences in the schism, rather than to simply press, as the logic of crusading Pisa fundamentalists would have had it, for their destruction.

1 Status and Rank: The Besançon Case

The first episode concerning rank or status which Fulgosio recorded in his recollections of the council occurred only a month after his arrival at the assembly. It concerned the Archbishop of Besançon who arrived at Constance on 16 December from Palestine where he had been on pilgrimage.3 Once back in Padua and completing his lectures on the Codex, Fulgosio would tell his students how at Constance he had witnessed an extraordinary argument involving the archbishop. The prompt for Fulgosio’s reminiscence was a text describing how even very important men were honour bound to bow before the emperor. This civil law text was customarily used to explain the situation where a clergyman and a powerful secular ruler encountered one another. How was a priest, for example, to comport himself during church services when a powerful prince or ruler was present? The text was also applied, Fulgosio explained to his class, to the situation where the emperor went to mass and how the priest on such an occasion should behave towards him: the clergyman would first kneel to the emperor who would then allow the priest to rise. Fulgosio then told his students, somewhat ambiguously, that he had however “seen this performed differently in the city when [the emperor] appeared in Constance”.4 Whilst at Constance, therefore, Fulgosio had evidently witnessed something involving the emperor-elect Sigismund’s attendance at church which conflicted with what the legal corpus suggested should happen on such occasions. He continued however his recollection by relating to his students how at Constance the Bishop (sic) of Besançon had also claimed certain privileges with respect to the way in which clergy, including the pope himself, should behave in his presence. Besançon had maintained that his office possessed an ancient privilege which required the pope to kneel to the archbishop rather than the other way around. Fulgosio recounted how the archbishop had explained that, many centuries before, a pope had been alerted by an earlier

3 The archbishop, Thiébaut de Rougemont, had been in the east since 1410: Henri Hours, Fasti Ecclesiae Gallicanae: Le Diocèse de Besançon, (Turnhout: Brepols, 1999), IV: 66. 4 CODEX II, 252v. The Christmas Day Controversy of 1414 165 archbishop of Besançon to the nearby presence of some demons and, in grati- tude, had awarded the privilege to the archiepiscopal see.5 In his recollection to his students, Fulgosio therefore conflated two separate incidents about the interaction between the pope and other important men (the emperor and the pope and the archbishop of Besançon and the pontiff) which contradicted what the law taught. In the case of Besançon’s privilege, the pope was supposed to show homage to the archbishop rather than the other way around; whereas with the emperor an unspecified event had evidently occurred during a church service. The remarkable claim by the archbishop of Besançon that, on meeting the pope for the first time, the pope should bow three steps before him was a proposition which was certain to ruffle feathers at the council and was an episode which Jacopo Cerretano, an important source for the early period of the council, also recorded in his chronicle. John XXIII had unsurprisingly refused to obey the archbishop’s extraordinary demand and the resulting dispute was only resolved when the matter was passed to two cardinals to reach a verdict upon.6 That Fulgosio knew about this fracas is hardly surprising given the relatively small number of delegates at the council at the time of Besançon’s arrival. What is more notable is that Fulgosio also knew some of the justifications for the archbishop’s extraordinary claim: the idea that a grateful former pontiff had conferred the privilege on the archbishops of Besançon in perpetuity. This may also simply have been thanks to the rumour mill at the council, but it could be a sign that Fulgosio was in some way involved with the case, which would not be surprising for an advocate if the matter came in any way to be debated formally at the assembly. The outcome of the cardinals’ enquiry in to the question is unknown,7 but one can well imagine that, if he had been

5 Ibid., 252v. 6 Finke, ACC, II: 199. 7 On 13 February 1415 the Archbishop of Besançon did obtain from the emperor Sigismund a document confirming the prelate’s rights and privileges as a prince of the empire (Pierre- André Pidoux, ‘Notes sur quelques titres et prérogatives d’honneur attachés au siège archiepiscopal de Besançon’, Mémoires de l’Académie de Besançon, 51 (1913), 142; Joseph Caro, ‘Aus der Kanzlei Kaiser Sigismunds’, Archiv für österreichische Geschichte, 59 (1880), 6.) and, whilst this obviously could not have covered any rights in relation to the pope, it may indicate that the archbishop saw the council as a key opportunity both to defend the status of his office and to obtain confirmation of its corporate rights. This would have made his behaviour an extreme version of a very common feature of delegates’ relations to the assembly: that their primary goal in all activities was to guard jealously all the rights of the office or corporation which they represented and to resist any suggestion of their erosion. The archbishop’s 166 CHAPTER 4 required to present it, the archbishop’s defence would have included produc- ing the evidence for his putative privilege and it is this evidence, the ancient predecessor’s help to a former pope, which Fulgosio later recalled to his students. This may simply have been because it was the aspect of the episode which most appealed to Fulgosio as a lawyer, however it is conceivable that he became involved in some capacity in debate on the question, particularly if the case was formally defended by the archbishop before the cardinals and required legal representation on behalf of the papacy. One can even imagine the rival arguments which each side might have presented in such a case: the archbishop defending his office’s claims through a bundle of ancient documents and privileges on one side and arguments drawn from the vast arsenal of papal prerogatives on the other. Notably, when Fulgosio recalled the episode in his later lecture it was whilst discussing a Codex text, Cum Salutatus [C.9.51.1], which might conceivably have been one of those produced in the dispute to show, by extension, that exceptions to the general rule about papal rights like the one claimed by Besançon were technically possible and that sometimes popes could indeed be required to bow to others. For glosses to the text suggested that, on occasions like their joint attendance at mass, popes were to show obeisance to the emperor.

2.a A New Source for Sigismund’s Arrival at Constance

Fulgosio would also, directly or indirectly, witness just that combination of pope and emperor attending church together when, a little over a week after Besançon’s arrival, the Emperor Sigismund finally reached Constance in the early hours of 25 December.8 Sigismund had been crowned as King of the Romans at Aachen only a few weeks before (on 8 November) and the council was thus to be witness to a highly symbolic event when the two pinnacles of religious and secular power in Christendom, the pope and emperor, met in the early hours of Christmas morning. To add to the spectacle and despite the late

outburst concerning the kneeling of the pope was simply an extreme example of a very common medieval obsession with the protection of corporate rights and personal status. 8 For the arrival of Sigismund at Constance see: Thomas Martin Buck, ‘Beginn des Konzils’, in: eds. Idem and Herbert Kraume, Das Konstanzer Konzil (1414–1418): Kirchenpolitik- Weltgeschehen–Alltagsleben, (Ostfildern: Thorbeke, 2013), 95–96; Ansgar Frenken, ‘Der König und sein Konzil – Sigmund auf der Konstanzer Kirchenversammlung. Macht und Einfluss des römischen Königs im Spiegel institutioneller Rahmenbedingungen und personeller Konstellationen’, AHC, 36 (2004), 191–193. The Christmas Day Controversy of 1414 167 hour of his arrival and the length of his journey down the Rhine, Sigismund insisted on attending the early morning service of matins and then mass with the pope. If the question of how the pope was to behave in first meeting the Archbishop of Besançon had caused a heated discussion to break out at the council, then the meeting of pope and emperor on this wintry Christmas night had an even greater capacity to spark controversy. In his commentary on the Digest, Fulgosio would describe to his students how a major dispute had indeed broken out at Constance as a result of Sigismund’s appearance and conduct during the Christmas morning services. Fulgosio had already remarked to his Codex students that he had seen the emperor depart from what the Codex text suggested should have been imperial practice and not insist on the pope bowing before him. Fulgosio’s Digest comments show that this understandable omission was not however the only point of controversy occasioned by the emperor Sigismund and Pope John XXIII’s meeting. The dramatic arrival of the emperor and his attending church on Christmas morning was recorded by chroniclers both at Constance and elsewhere across Europe and scholars of the council have exclusively used these reports in order to study the episode.9 Fulgosio’s recollection of the event however, and particularly the fierce argument which it provoked, has not hitherto entered conciliar history, tucked away as his comments are deep within his legal commentaries. His remarks do however shed a great deal of new light on the episode and constitute, therefore, a new source for conciliar history.

2.b Fulgosio’s Recollection of Sigismund’s Arrival

Fulgosio told his students back in Padua that, ‘when he was in Constance’, a great row (murmur) had broken out concerning the crown which Sigismund was wearing when he met the pope on Christmas morning and his behaviour during divine service, particularly regarding the lesson which the emperor-elect had read or sung. He continued then to explain: “For, when the emperor landed in Constance on Christmas morning, he was supposed to have read the Fifth Lesson, yet came instead wearing the imperial crown which is different from the royal crown. A dispute then arose about whether he should have come like that

9 For a list of the chronicles who reported Sigismund’s attendance at the Christmas morning services, see: Hermann Heimpel, ‘Königlicher Weihnachtsdienst auf den Konzilien von Konstanz und Basel’, in: eds. Joachim Wollasch and Norbert Kamp, Tradition als historische Kraft. FS Karl Hauck, (Berlin, 1982), 390. 168 CHAPTER 4 as he had not yet been crowned by the pope; and I was asked by many prelates about this. I replied that this was no time to dispute the matter; for even if it wasn’t right [for the emperor to have done so], we should nevertheless have to acquiesce in it. And it has ever been thus, since [as Seneca says] “Might is Right, and fear oppresses the law”. Lucan too tells us that “Might was the measure of Right, and coerces decrees”.10 Fulgosio’s anecdotal comments are, as so often, far from opaque. The question of which lesson the emperor was to read at the service also had potentially distinct political connotations as shall be seen below. Fulgosio’s main point however concerned the crown which Sigismund wore and his answer to the ‘many prelates’ who queried this with him to the effect that this was not the time to debate the matter (Fulgosio uses the word disputatio) indicates that some at the council felt strongly enough about the subject to ask for the matter to be formally debated at the assembly. Fulgosio’s reply to their request was, as with his more prosaic comments to those asking his opinion on the game of dice in Padua, evasive but also legally meaningful. In particular, the implication that the presence of the emperor in some way prevented the holding of a debate was a more significant comment for an advocate to have made than it would have been had it been said by an ordinary delegate. It was one thing for the latter to make such an accusation, however the council’s official advocates were specifically appointed to present the legal arguments for parties in dispute at the assembly and, as advocates, were subject to the obligations of their office requiring them to do so. Consistorial advocates, for example, were required to present the case for whichever party in a legal case they were allocated to defend and could only excuse themselves from this duty if there was a just impediment preventing them from proceeding. A conflict of interests between them and the client, for example, or the fundamental injustice of his or her cause could be legitimate grounds for such a refusal.11 Fear was potentially another just impediment. Much like in a court

10 “Nam cum in nocte nativitatis applicuisset imperator in civitate Constantie, qui debebat illa nocte cantare quintam lectionem, et ipse venit cum corona imperiali, que differt a corona regali; tunc enim dubitatum fuit an recte venisset: quia adhuc non erat corona- tus a papa. Et fui interrogatus a multis prelatis. Et ego respondi, quod non erat tempus tunc disputatione. Nam et si recte facta non esset, oportet quod essemus contenti: et in veritate semper ita fuit, quia ius est in armis, opprimit leges timor [i.e.: SENECA, Hercules furens, II, 253]. Iuxta illud Lucani: Mensuraque iuris vis erat, et leges, et plebiscita coacte [LUCAN, Pharsalia, I, 175]”. DIGEST I, 25v. 11 James A. Brundage, ‘The Medieval Advocate’s Profession’, Law and History Review, 6 (1988), 452; Franck Roumy, ‘Le Développement du système de l’avocat commis d’office dans la procédure romano-canonique (XIIe–XIVe siècle)’, The Legal History Review, 71 (2003), 370. The Christmas Day Controversy of 1414 169 case where the serving of documents might be legally omitted if the power of a litigant locally made delivery impossible, an advocate could claim an ‘exceptio’ to excuse his not taking on a case because he did not feel he would be doing so in a free environment. Fulgosio then may have used an analogous form of exceptio to decline joining a debate about the crown worn by Sigismund.12 Asked by ‘many prelates’ to take up the case and formally dispute the matter he may have been able to decline by claiming, informally, that the council was neither the time nor the place to discuss such weighty topics, and, more formally, by maintaining that as an advocate he would not be able to speak freely because of the powerful presence of the emperor. Whatever the manner by which Fulgosio resisted debating the matter, his recollection of the general reaction at Constance to Sigismund’s arrival remains a vivid source and provides an important corrective to the picture both of the emperor’s arrival at the council and his behaviour there which has come down to us largely from chronicle sources. Their preoccupation is often with the visual spectacle of the occasion, buzzing as it was with such highly symbolic elements as when the spiritual power, the pope, presented a sword to the temporal power represented by Sigismund, rather than with the more directly legal or political implications of the dramatic events. None of the existing sources, for example, refer to an argument having broken out at the council concerning Sigismund’s crown in the way that Fulgosio does. Combined with Fulgosio’s subtle reference to the idea that the emperor “ought to have” (debebat) read a particular lesson at the morning service, the evidence of a stormy debate having been provoked by Sigismund’s arrival shows that the significance of the whole episode needs to be reappraised. The episode is best re-considered by firstly retracing the events of that cold Christmas morning as they have been reconstructed by Hermann Heimpel. News of Sigismund’s approach to Constance had reached the city well in

12 In addition to general concerns at Constance about the over powering influence of Sigismund, Fulgosio’s earlier involvement in the treaty between Venice and the emperor may also be of relevance to his reluctance to join a debate at Constance. In one clause of the 1413 treaty a revision was made between one draft and a final version regarding permission for Sigismund to pass through Venetian territory if he should be going to Rome to be crowned. The permit was limited by subsequent revisions to the treaty which required Sigismund to give advanced notice of such an event. (Hermann Herre, ‘Die Beziehungen König Sigmunds zu Italien vom Herbst 1412 bis zum Herbst 1414’, QFIAB, 4 (1902), 16–17). If Fulgosio had been involved, as he was with the clause discussed above, with the revision of this element of the treaty, it may have made him reluctant to debate the question of imperial power at Venice as someone, unlike his advocatorial colleagues, closely connected with Venice. 170 CHAPTER 4 advance of his arrival and preparations were made at its town hall to greet the imperial party.13 A room was warmed for them and Sigismund, the Empress Barbara and the imperial entourage disembarked in Constance at around 2 a.m. A candlelit procession then led them to church at around five o’clock for the service of matins where Sigismund, as Heimpel demonstrated on the basis of the existing known sources, proceeded to read the Seventh lesson, “Exiit edictum a Cesare Augusto” [Luke 2.1]; a text often seen as indicating biblical authority for the emperor’s ability to govern the world, even in pre-Christian times. The long service of matins was then followed after dawn by a mass conducted by John XXIII. Heimpel argued that both Sigismund’s eagerness to attend the service at this time and to compel his weary travelling companions and members of the curia to attend as well, had distinct political overtones; as did his dressing in all the symbols of secular power whilst reading the Seventh Lesson.14 Sigismund was sending a clear message to both the pope and the council about the active role which he intended to play at the assembly and specifically about the nature of his relationship with John XXIII.15 Walter Brandmüller and Achim Hack have however disputed this idea and argue that Sigismund only did that which was permitted to him as King of the Romans.16 In the context of the services of matins and the mass, the Fifth and Seventh lessons were similar and Heimpel himself, Brandmüller points out, argued that Sigismund may have read both texts during the long night of services.17 More recently, Gerrit Schenk has brought attention to the complex nature of the chronicle and pictorial sources used by Heimpel and the assumptions, prejudices and lacunae in knowledge which may have informed the chroniclers’ and artists’ work. In particular, Schenk argues that they may have recorded what they felt they ought to have seen, rather than necessarily what

13 Elaborate preparations were being made several weeks before the imperial party’s arrival. See, for example, the amounts expensed by the pope for such things as a seat for the emperor in: Cesare Guasti, ‘Gli avanzi dell’archivio di un pratese vescovo di Volterra che fu al concilio di Costanza’, ASI, 13 (1884), 204. 14 For an example of the use of the Seventh Lesson to justify the emperor’s place as ruler of the world, see the sermon preached before Sigismund on 18 Feb. 1415: MANSI XXVIII, 533. 15 Heimpel, ‘Königlicher Weihnachtsdienst’, 391–396. 16 Brandmüller, Das Konzil von Konstanz, I: 179 and Achim Hack, Das Empfangszeremoniell bei mittelalterichen Papst-Kaiser-Treffen, (Cologne/Weimar/Vienna: Böhlau, 1999), 567. 17 Sigismund had also read the lesson ‘Exiit edictum’ when he met the pope in 1413 (Brandmüller, Das Konzil von Konstanz, I: 63) when he had not even been crowned King of the Romans. The Christmas Day Controversy of 1414 171 they actually observed. Furthermore, two different traditions of how such papal-imperial summits were to be conducted may have collided or merged, both in the sense of having provided chroniclers with different presump- tions as to what they felt they ought to have observed at such events and also perhaps even in the reality of the ceremonies on Christmas morning themselves. From the imperial side, a tradition had it that the emperor should read the Seventh lesson at the Christmas morning service independently of the pope and dressed in royal attire with his sword drawn and wearing his crown. The papal (especially the Avignon papacy) tradition of such meetings with a lay sovereign meanwhile, stressed that the pope was to present a sword and a diadem to the lay power, who would then wear these as he read the Fifth lesson before then kissing the pope’s feet.18 In the light of all this, Fulgosio’s record of the episode at Constance is even more interesting. Fulgosio was no chronicler and the context of his recollection of the Christmas morning was that of a lecturer addressing his students in a class room probably little more than a year after the events which he directly or indirectly witnessed had taken place. His concern was above all with any discrepancy between what the law said should happen and what had actually transpired when the pope met the emperor. His remark however that the emperor ‘ought to have’ read the Fifth lesson indicates two things. Firstly it confirms the idea that Sigismund read the Seventh lesson instead and, secondly, it shows that this was noted by observers as something inappropriate or even provocative. In other words, Fulgosio’s comments were not the reaction of a chronicler writing from a distance but a more historical account of the reactions of delegates at the time as observed by an individual who was personally at the assembly and very close to the centres of power. Those delegates were also sufficiently provoked by the emperor’s behaviour to demand to know the legal position and to press for a formal disputation to be held on the matter. In contrast to the known chronicle reports of the episode, Fulgosio also makes a clear connection between the crown which the emperor wore and the fact that he had not read the Fifth lesson. Some chroniclers did mention that Sigismund wore the imperial crown during the Christmas services,19 however

18 Gerrit Schenk, ‘Sehen und gesehen werden. Der Einzug König Sigismunds zum Konstanzer Konzil 1414 im Wandel von Wahrnehmung und Überlieferung’, in: Franz Mauelshagen, Medien und Weltbilder im Wandel der Frühen Neuzeit, (Augsburg, 2000), 71–106. 19 Reinbold Schlecht does in his chronicle, for example, (ed. R. Foster, ‘Flores temporum’, Zeitschrift für die Geschichte des Oberrheins, 48 (1894), 129) as does Dietrich Vrie: Hardt, I: 155. Cerretano reported that Sigismund wore a gold crown “which kings are accustomed 172 CHAPTER 4 they do not refer to the political significance of the emperor’s behaviour nor reported that a controversy broke out as a result of it. Whether Sigismund had intended to make a statement with respect to the council by his actions is of course still impossible to determine, however in contrast to the existing sources, Fulgosio’s comments show that many delegates at Constance were agitated by his actions and clearly felt that those actions contained something inappropriate politically. Fulgosio’s comment that Sigismund was not wearing his crown as King of the Romans but an imperial crown instead is also significant. It confirms existing reports that Sigismund had brought such a crown to Constance and corroborates the idea that this was the same crown with which Sigismund had been crowned at Aachen on 8 November. The whole question of Sigismund’s headwear at Constance is however a complex one. As part of an 1411 settlement with his brother Wenzel by virtue of which Sigismund was to retain the title of King of the Romans but leave Wenzel as still formally emperor, the crown jew- els were to remain in Prague until Wenzel’s death. It therefore seems unlikely that Sigismund had been lent the imperial crown itself for his Aachen coronation but had used another crown, perhaps one even disguised to appear more imperial. It would then have presumably been this one which Fulgosio or his interlocutors had seen on Christmas morning.20 How they would have distinguished between it and a purely ‘royal’ crown, like the ‘Iron’ crown later used by Sigismund at his coronation as King of Italy in Milan, is a further interesting question. If there was no template as to what an imperial or royal crown should look like, why did Fulgosio and the ‘many prelates’ who asked his opinion think that Sigismund’s crown was the imperial one? Could the imperial party have deliberately publicised the fact that this was an “imperial” crown or was it simply Sigismund’s general demeanour which gave the impression that the crown was the imperial one? A jurist like Fulgosio would have been very well aware of the many legal and constitutional connotations which the two crowns symbolised, but would he have known the difference materially between one crown and another? What made the crown Sigismund wore an imperial one in other words may have only been that it was asserted by the

to be depicted wearing” and described its shape but states that the emperor read the fifth lesson: Finke ACC, II: 200. 20 On the unlikelihood of the imperial crown having been the one used at Sigismund’s coronation, see: Albert Huysken, ‘Die Aachener Krone der Goldenen Bulle’, in: Deutsches Archiv für Erforschung des Mittelalters, 2 (1938), 454–458; Paul Kirn, ‘Mit welcher Krone wurde König Sigmund in Aachen gekrönt?’, Annalen des Historischen Vereins für den Niederrhein, 118 (1931), 132–135. The Christmas Day Controversy of 1414 173 emperor-elect or those near to him to have been that; an idea that again would lend support to Heimpel’s argument that Sigismund was making a deliberate political statement. That statement may not just have been about Sigismund’s attitude to the council and its workload or direction. Deliberately using imperial insignia was to invite the whole question of primacy between pope and emperor which had dominated so much of medieval political thought for centuries. Could a newly- elected emperor like Sigismund start to wear imperial insignia and exercise imperial power, or did that only follow his coronation by the pope? Fulgosio was familiar with some of the more every day legal aspects concerning the status of uncrowned emperors. A Florentine case from 1408 for which he and other jurists wrote consilia, for example, addressed the question of whether a count palatine could legitimise a child’s birth when his right or privilege to do so originated from an as yet uncrowned (by the pope) emperor.21 The standard response was that an emperor-elect could indeed exercise imperial jurisdiction through a count in this way. He had the use, as it were, of imperial rights but not their ownership. It was one thing to consider such matters when they concerned private individuals and inheritance rights of course, but quite another to be involved in an open debate at Constance about the wider theory of imperial and papal power. Particularly when this would have had to have been undertaken in the presence of both the emperor and the pope themselves. Fulgosio’s apparent disinclination therefore to discuss a topic like Sigismund’s crown was quite understandable.

2.c Fulgosio’s Later Recollection of Sigismund’s Arrival

Fulgosio’s recollection of the episode is contained in a section of his printed commentaries for which a manuscript version also exists. These two texts can therefore be compared to see how Fulgosio’s memory of the episode changed over time from when he lectured in c.1415/16 (as now contained in his printed commentaries) and when his lessons were recorded again in 1423/24 (now in the Venetian manuscript). In the 1423/24 manuscript, for example, Fulgosio recorded the arrival of the emperor at Constance in a slightly different manner. Exactly the same legal text, ‘Prefectus Egypti’ [Dig.1.17.1], prompted Fulgosio to record the episode in 1423/4 as it had done in c. 1415/16. On the basis of

21 Thomas Kuehn, ‘ “As If Conceived within a Legitimate Marriage”: A Dispute concerning Legitimation in Quattrocento Florence’, The American Journal of Legal History, 29 (1985), 285–286. 174 CHAPTER 4

Dig.1.17.1, Fulgosio remarked, it was sometimes maintained that imperial power could not be exercised by an emperor who, although he had been crowned, had not yet been specifically crowned by the pope in Rome. This was prejudicial to the present emperor, Fulgosio continued, who had been crowned but had never set foot in Rome.22 Sigismund would ultimately do so, in 1433, but Fulgosio was obviously speaking several years before the emperor’s coronation. “When I was in the city of Constance”, Fulgosio then continued, “the king came in the night of the nativity and when he went to the church where the pope was for the celebration of the mass, he bowed to the pope whilst he was wearing the imperial crown but not the royal one. A controversy (murmur) arose and I said that the matter ought not to be formally disputed since we were in the hands of the emperor however I remember that I read [blank] of Bergamo on the legal text: ‘Bene a Zenone’ [C. 7.37.3] who said that an electus should possess all jurisdiction on the basis of a certain imperial constitution”.23 A decade after he had been at Constance, then, the events of the night of Sigismund’s arrival at the council remained fresh in Fulgosio’s memory. It is noticeable however what had changed in Fulgosio’s recollections from 1423/24 as compared with those now captured in the published commentaries and which came from immediately after his return from Constance. In those Fulgosio cited the idea that ‘might is right’ and appeared to imply that it had simply been inappropriate to discuss the question of imperial status at the council. A decade later and Fulgosio was more specific about why he had avoided debating the question of emperor-elects: Sigismund’s influence was simply too great to permit a free debate. The delegates were ‘in his hands’. This idea that Sigismund’s presence threatened the council’s liberty was widely held at Constance at the time and came to a head on 31 December 1414 when the Duke of Milan’s ambassador to the council was mistreated by the emperor’s men. Guarantees were then sought by the council that Sigismund would not allow his position as the assembly’s protector to undermine its liberty.

22 “hic (i.e. that emperor-elects could not exercise imperial power) observatum fuit in preiudicio presentis imperatoris qui ymmo coronam accepit nunquam in Rome ingressus esset”, ms. Biblioteca Marciana, Venice, Zan. 513 (=1662), 43v. 23 “et cum essem in civitate Constantie venit rex in nocte nativitatem quia dum venerit ibi in ecclesia ubi papa celebratur officium et adoravit papam quando in capite habebat coronam imperialem non autem regiam et murmur exortum est et tunc dixi non esse hoc dis- putatus cum essemus in manibus ipsius imperatoris tamen recordor me (sic: que) legisse [blank space] de Pergamo in l. Bene a Zenone de ‘de quadriennii prescriptione’ et dicit quod hic ipse quod elletus est habeat omnem iurisdictionem et exercitium per quodam constitutionem imperialem”, ibid., 43v. The section in italics is inserted in to the text in the manuscript indicated by a “ ˆ ” symbol. The Christmas Day Controversy of 1414 175

Fulgosio’s preceding comment indicates however that he was actually somewhat sympathetic to the argument that an imperial electus could possess plenitudo potestatis. It was prejudicial to Sigismund, Fulgosio had written, to maintain that he could not exercise power prior to being crowned by the pope in Rome. At Constance however, Fulgosio had evidently not wished to debate this issue due to concerns about the emperor’s undue influence on the assembly. This would suggest that whilst Fulgosio may have been personally sympathetic to the pro-imperial line, at Constance he was being pressed to act as an advocate for the opposing position and that he felt that it would either be ill-advised to do so or had used the idea of a lack of freedom as a convenient way to legitimately avoid an unwelcome debate. He had, however, consulted a legal text on the matter: [Blank] of Bergamo’s work on Bene a Zenone. Although Fulgosio or his scribe in 1423/24 could not recall the author’s full name, the text which Fulgosio read was presumably Alberico da Rosciate (of Bergamo)’s Codex commentary which, in its discussion of Bene a Zenone, contained a transcription of the controversial 1338 imperial constitution, Licet iuris, which had been issued by Ludwig IV at the height of his contest with the papacy.24 As Fulgosio indicated in his recollection, this decree proclaimed that an emperor accessed power immediately following his election and did not need coronation by the pope to enjoy those imperial rights to the full. Bene a Zenone was often studied with regard to imperial powers over private property rights due to a phrase within it which implied that all property ultimately pertained to the emperor,25 however in his commentary, Alberico da Rosciate had focused more specifically on the question of the powers of elected emperors, their coronation and crowns and had recalled several episodes from the intellectual battles over supremacy fought between the pope and Ludwig in the early fourteenth century. Drawing heavily on John of Paris’s de potestate regia et papali and to a slightly lesser degree from the pages of Dante’s Monarchia, Alberico also considered arguments for and against the validity of the Donation of Constantine.26 In short, there were few better

24 Albericus de Rosate, Commentarii in primam codicis partem, (Venice: Arnaldo Forni, 1585), 107v–109r. Licet iuris is recited at: ibid., 108r. 25 This then prompted questions about whether or not an emperor could alienate or transfer the property of private individuals even without a just cause. For a discussion of the thought of Baldus and Angelo degli Ubaldi in this regard, see: Black, Absolutism, 17–18 and Kenneth Pennington, The Prince and the Law, 1200–1600. Sovereignty and Rights in the Western Legal Tradition, (Berkeley: California University Press, 1993), 219. 26 Rosciate quoted, for instance, directly from John of Paris’s analysis of the Donation: Rosate, Commentarii, 109r. For a discussion of Rosciate’s consideration of the donation, 176 CHAPTER 4 summaries of the many constitutional questions raised by the Christmas Day controversy at Constance to which Fulgosio could have turned at short notice than Alberico’s discussion of Bene a Zenone. Alberico’s commentary even had the benefit of providing a certain sense of historical background both in terms of fourteenth century contests between pope and emperor and of the views of jurists from a preceding generation like Jacques de Révigny who had held a public disputation on the question of imperial and papal power. Fulgosio’s recollection of having read Alberico’s commentary therefore indicates that, although he had resisted entering such a formal disputation at Constance on the question of Sigismund’s position as an electus, he had nevertheless either prepared himself for the possibility of one by consulting Alberico da Rosciate or had been prompted to study that text by further events at the council. Fulgosio uses the verb legere when describing his consultation of Alberico’s text rather than allegare which would indicate that he had read the text, not used it as an authority in a disputation. There is however evidence in Fulgosio’s own commentary on Bene a Zenone that, despite what he reported in his commentary on Prefectus Egypti, a formal debate did subsequently occur at Constance on the question of the powers of imperial electi. It would seem therefore that although Fulgosio had initially resisted pressure to join a formal disputation on the matter, one had nevertheless ensued. Whilst lecturing on Bene a Zenone at Padua Fulgosio would tell his students how Jacques de Révigny had once used the text in a public disputation to defend the principle that an emperor-elect had full administrative powers. He then added: “And I have seen this principle observed in a certain great case”;27 a turn of phrase which he often used in connection to the Christmas Day Controversy. Fulgosio then discussed imperial elections with his class and informed them that “if the emperor can not be crowned in the correct place [i.e. Rome] then he can be crowned in another place by the authority of the Archbishop of Cologne, or by his own authority. And in Constance I saw a disputation on this.”28 This was an

see: Giovanni Antonazzi, Lorenzo Valla e la polemica sulla donazione di Costantino, (Rome: Ediz. di storia e letteratura, 1985), 37. 27 “Jacobus de Arena ultra gl. disputavit istam questionem et finaliter determinat quod imperator hoc ipso quod electus est habet plenissimam administrationem imperii; et ita in magnis causis observatum vidi”, CODEX II, 149r. 28 “quod si Imperator non possit accipere in loco debito, poterit accipere in alio authoritate archepiscopi Coloniensis, vel propria authoritate: et de hoc vidi disputatum in civitate Constantie”, CODEX II, 149r. The Christmas Day Controversy of 1414 177 argument which was known from other sources but was also to be found in the pages of Alberico da Rosciate which Fulgosio had read at Constance.29 An apparent contradiction therefore appears in Fulgosio’s account of the events at the council. On one hand he told his students that he had resisted the holding of a formal disputation because of the undue influence of the emperor, yet on the other he indicated that a debate of some kind had indeed taken place at the council. An explanation for this anomaly would be that Fulgosio had been pressed to act as an advocate for the papal line but had succeeded in turning the unwelcome opportunity down. Another individual or advocate had, however, presented the pro-imperial side of the debate in what would have therefore been an incomplete or imbalanced disputation. It was this event which Fulgosio had observed and which had even perhaps prompted him to read Alberico da Rosciate’s text either in preparation should he have to enter the fray or because the other advocate had referred to the commentary while making the case for the powers of elected-emperors. A suggestion can also be made for the identity of this disputational opponent. A summary of the life of one of Fulgosio’s colleague on the advocate’s bench, Simon of Perugia, shows that he was perhaps the only man at this time who could have presented the imperial case in a debate on the powers of emperors who had been elected but not yet crowned at Rome by the pope.

2.d Fulgosio’s Opponent in the Debate

Fulgosio and Simon of Perugia were from roughly the same generation. Perugia received his doctorate in law a little less than a decade before Fulgosio, in 1383 at Bologna. Unlike Fulgosio however his subsequent career was spent not in the university or as a private lawyer but at the papal curia. He served as a consistorial advocate there from at least 1398 until his death sometime before 1417.30 Other duties in papal service saw him appointed as an appellant

29 Rosate, Commentarii, 107v. 30 Perugia died before 26 December 1417 on which date the pope transferred his duties to Agostino Lante of Pisa, himself an advocate of many years standing: Angelo Mercati, Dall’Archivio Vaticano: Una corrispondenza fra curiali della prima metà del Quattrocento, (Vatican City, 1951), 25. Summaries of Perugia’s life are also to be found in: Agostino Oldoini, Athenaeum augustum in quo Perusinorum scripta publice exponuntur, (Perugia: L. Ciani & F. Desideri, 1678), 310–311, Giovanni Vermiglioli, Biografia degli scrittori perugini, (Perugia: F. Baduel, 1829), II: 261 and Cartharius, Advocatorvm sacri consistorii, xx–xxi. 178 CHAPTER 4 judge31 and involved in a treaty negotiated between the pope and his home town from whose documentation his full name of Simon Quattropani can be discerned.32 In 1407/8 Perugia was amongst those jurists asked to provide advice to the College of Cardinals as they faced the quandary of whether to abandon the pope and, at the subsequent Council of Pisa, was appointed as one of two conciliar advocates.33 In that capacity he put the case for deposition against the two contenders for the papacy; driving through the procedural steps which eventually led to the two popes’ removal from office.34 After the council ended, he resumed advocatorial work before the curia courts and appeared, for example, in this capacity in documents from November 1411 in a case involving the Archbishop of Pisa.35 Shortly afterwards he was appointed as papal nuncio to Germany and Bohemia and, whilst returning to Italy in the winter of 1412, was captured and relieved of 1,000 florins;36 presumably money which he had collected in the empire and which was destined for papal coffers. His position as papal nuncio would have doubtless brought him to the attention of Sigismund. In December 1413 as John XXIII and the emperor over-wintered together in Lodi and discussed arrangements for the forthcoming council to be held in Constance the following year, Simon of Perugia was invested with a new office. On 15 December Sigismund appointed him as the official advocate for imperial and Hungarian matters brought before the courts of the Roman curia.37 In the context of an era obsessed with status, it is easy to imagine Perugia having petitioned for this monopoly over imperial business before the Roman courts. It would have brought with it, however, the advocate’s duty to represent whatever case involving the emperor that came before the court. Scarcely a year later, Sigismund met John XXIII again at Christmas when the emperor arrived at Constance. Perugia had already resumed the role of conciliar advocate which he had performed at Pisa and been joined in that post by Fulgosio, Ancharano and della Porta. Who better, then, to defend the imperial cause when the controversy broke concerning Sigismund’s attire than

31 ms. Archivio Segreto Vaticano, Vatican City, Reg. Vat. 317, 302r. 32 Florio Banfi, ‘Umbri in Ungheria’, Bollettino della deputazione di storia patria per l’Umbria, 48 (1951), 60. 33 Hardt, II: 94–95. 34 Ibid., II: 101–102; 113–131. 35 ASF, Notarile antecosimiano 7451, 96r–97r. 36 Kochendörffer, ‘Päpstliche Kurialen’, 596; Repertorium Germanicum II 07383, RG Online, RG II 07383, URL: (Date accessed: 10.08.2013). 37 Regesta Imperii, XI, 841. The Christmas Day Controversy of 1414 179 an advocate who had recently been granted the right to represent the imperial cause in all cases involving it before the papal courts? Not only would Perugia have been a natural choice as someone already known to the emperor, if he possessed the sensitivity towards slights to his status of the ordinary medieval office-holder then he may very well have insisted on defending that position. He had a monopoly over it.

2.e Dating the Debate

By analysing the workload of the council in the period after Sigismund’s arrival, a date can be suggested when this distorted or incomplete disputation (due to the apparent protest by an advocate that he did not feel at liberty to join it) was held. The most likely date would have been a non-feast day (the council did not sit during these) shortly after Christmas day in 1414. On Saturday, 29 December the pope and conciliar delegates met at the request of the emperor in a congregation which lasted over three hours and in which the council’s plans for securing the reunion of the church were discussed. Two days later, on 31 December, delegates assembled again before Sigismund to protest against the emperor’s heavy-handed treatment of the Milanese ambassador and to demand the freedom to speak as they pleased and not to be harassed in their work. Sigismund replied to their petition the next day, on Tuesday 1 January, and then again three days later.38 It would seem likely therefore that the debate which Fulgosio was asked to join took place at around this time, perhaps on New Year’s Eve as delegates formulated their protest to Sigismund or in the first days of the new year once Sigismund’s initial response had been given to it. Indeed Fulgosio’s apparent disinclination to join a public debate on imperial power because of the emperor’s influence (calculated legal move though it may have been) may have been among the areas of perceived restrictions on free speech which had aggrieved delegates. Given both how busy and agitated the council was in the period from 29 December to 1 January, with the Duke of Milan’s representative seized by the emperor, a debate on pre-coronation imperial powers would have had to

38 See Cerretano’s chronicle which reports the outbreak of a controversy (murmur) as a result of Sigismund’s seizure of the Milan delegate and the representations which were then made to the emperor about conciliar liberty on 31 December. Cerretano however makes no reference to a debate being held about Sigismund’s right as an electus to exercise imperial power or the question of the Donation: Finke ACC, II: 201–204; Idem, Forschungen und Quellen zur Geschichte des Konstanzer Konzils, (Paderborn: F. Schöningh, 1889), 253–255. 180 CHAPTER 4 have been short. This would lend support to a date between 1 and 4 January when greater time for a debate would have been available. A further comment made by Fulgosio which may relate to the debate suggests both that advocates in it were instructed to deal with the matter swiftly and that those managing the council wanted the debate kept under control. In Padua at a different point in his lectures, Fulgosio would refer again to a ‘great cause’ at Constance in which he had been involved and recalled that “it was [kept a secret] that the matter to be discussed should have a speedy resolution and it was suggested that the doctors should present some legal points (dubia) about the question which would include arguments from both canon and civil laws. And I did so in order that the matter should come to a good end, but so great an altercation was provoked that it can scarcely be mentioned”.39 Although it is unclear if Fulgosio was referring in this comment to the Christmas Day controversy, his remarks would fit those of an advocate who had been asked, perhaps by the conciliar procurators, Giovanni Scribani and Henry of Piro, to present arguments before the assembly but to expedite the debate as quickly as possible. The ideas that the points to be presented by the doctors would be drawn from civil and canon law chimes with comments which Fulgosio would make elsewhere about the ‘crowns’ debate as will be seen in chapter eight below. The reference to a great ‘altercation’ arising out of the debate, and thus of a debate that began as a stage-managed affair but had gotten out of hand, would also fit with Fulgosio’s existing remarks about the episode. His comment that doctors including himself were asked to prepare a set of legal ‘dubia’ about the question would also match something else which is known about the jurist and the Christmas Day Controversy: that although Fulgosio may have evaded involvement in the initial debate he did not remain silent as it evolved to discuss the validity of the Donation of Constantine. When this happened, as will be seen below, Fulgosio would fully enter the fray.

3 Aragon and the Empire

At its simplest, the Christmas Day controversy was a dispute provoked by status and ceremony: how should a pope and an emperor-elect comport

39 “Et cum alias essem in civitate Constantie, et celeraretur (Van Savigny suggested that this may have been a scribal error for “crederetur”: Van Savigny, Geschichte, VI: 238) quod res esset habitum celeriorem exitum prepositum fuit ut doctores excogitarent aliqua dubia in quibus fuerant canones et leges. Et excogitavi de hoc, et ita fecissem, si res habuisset bonum finem, et tanta est super hoc altercatio, quod vix posset referri”. CODEX II, 64r. The Christmas Day Controversy of 1414 181 themselves during a church service which they both attended. In his commentaries, Fulgosio recorded another event concerning status which he observed only two weeks after Sigismund’s arrival at the council. Back in Padua with his students, Fulgosio would recall having seen the ambassadors of the King of Aragon express their status concerns with respect to the emperor. The ambassadors, Fulgosio explained, “said they were attending [the council] as a result of their desire to see the church reunified rather than in answer to the King of the Romans’ letter summoning them to whom they denied being subject.” The Aragonese referred to themselves, Fulgosio explained, as being free men (liberi) of the emperor.40 Like the King of France, to whose claims to indepen- dence of the empire Fulgosio also referred his students,41 the King of Aragon did not acknowledge imperial supremacy.42 In the case of French attendance at Constance this distinction was not relevant, since French loyalty to John

40 Fulgosio saw at the council: “oratores regis Aragonum: qui illo venerant potius zelo unita- tis in sancta dei ecclesia procurandi, quam quia vocati essent per literas regis Romanorum: cui omnino se negabant subiectos”. DIGEST I, 8r. Fulgosio made these comments as part of his analysis of the legal text, ‘ex hoc iure’, [Dig.1.1.5] which also contained his discussion of the just war in which he suggested that if both belligerents were independent states then their conflict was a public or bilateral war where justice could reside on either side. War itself would determine who was right (a sentiment which Fulgosio expressed in his commentary through a quote from Lucan). On Fulgosio’s novel discussion of the just war, see, for example: Gregory Reichberg, Henrik Syse and Endre Begby, eds., The Ethics of War: Classic and Contemporary Readings, (Malden (Mass.): Blackwell, 2006), 227–229. Also however see: Merio Scattola, ‘Law, War and Method in the Commentary on the Law of Prize by Hugo Grotius’, in: ed. Hans W. Blom, Property, Piracy and Punishment, (Leiden: Brill, 2009), 82 who draws attention to an inconsistency in Fulgosio’s consideration of the topic by reference to different arguments which the jurist used in a consilium. 41 Unlike Fulgosio’s comments regarding the Christmas Day controversy, his remarks about the arrival of the Aragonese did not re-appear in the 1423/4 version of Fulgosio’s commentaries (ms. Biblioteca Marciana, Venice, Zan 513, 6v). The fact that the comments captured in the printed commentaries do not mention which council Fulgosio was discussing and require therefore an understanding by his students that Fulgosio was referring to Constance indicates that they are comments which Fulgosio made very shortly after his return from the assembly. In legal terms there was nothing additionally valuable about the Aragonese claims more than the French ones; Fulgosio evidently simply mentioned them to his students to pass on news and to tell them things which he had recently witnessed. 42 For a discussion of the legal position between the Spanish kingdoms and the universal claims of the empire, see: Helmut G. Walther, ‘Spanische und deutsche Kanonisten in Bologna und ihr Dialog über das Imperium’, in: eds. Julio Valdeón Baruque, Klaus Herbers and Karl Rudolf, España y el “Sacro Imperio”: Procesos de cambios, influencias y acciones 182 CHAPTER 4

XXIII meant that delegates arriving at Constance were technically responding to the pope’s summons to attend the council. This could not be the case for the Aragonese who had not joined the Pisan obedience in 1409 but had remained loyal to Benedict XIII. Unlike the Gregorians, who were from Northern Italy or Germany, they could also not claim that they had arrived in Constance only in response to the emperor’s summons. Fulgosio’s comments therefore indicate that some within the Aragon party were keen to clarify the distinctive constitutional position in which they stood. Sigismund had played a prominent role in negotiating with the Aragonese in the build-up to Constance, the fruits of which were represented by the advance ambassadorial party whose arrival was observed by Fulgosio,43 however the Aragonese delegation were evidently keen to stress that their arrival had not been in subordinate response to a summons from Sigismund and much less by John XXIII, but had originated instead from their own autonomous zeal to see the schism ended. The Aragonese delegation reached Constance on 8 January 1415 and within a few months had agreed a treaty with Sigismund under whose auspices the emperor would travel to, and negotiate directly with, Benedict XIII.44 These and other efforts in the Iberian peninsula would ultimately culminate in the incorporation of delegates from Aragon, Castile and Navarre in to the council in 1416 and see the acceptance by all but the most die-hard of Benedict’s adherents of the council’s union programme. The fact that Fulgosio was well enough informed about the embassy from Aragon in January 1415 and its status concerns is however very interesting. Fulgosio could simply have been a recipient of news which was circulating at the council about the Aragonese

recíprocas en la época de la “europeización”, siglos XI–XIII, (Valladolid: Universidad de Valladolid, 2002), 168ff. 43 On the negotiations with Aragon prior to Constance, see: Brandmüller, Das Konzil von Konstanz, II: 3–14; Johannes Grohe, ‘Spanien und die großen Konzilien von Konstanz und Basel’, in: eds. Klaus Herbers and Nikolas Jaspert, “Das kommt mir spanisch vor”: Eigenes und Fremdes in den deutsch-spanischen Beziehungen des späten Mittelalters, (Münster: LIT, 2004), 494–496. 44 Finke, ACC, II: 206. On the initial delegation sent to Constance by the King of Aragon in January 1415, see: José Goñi Gaztambide, ‘Los Españoles en el Concilio de Constanza: Notas biográficas’, in: Hispania sacra, 15 (1962), 287; Nikolas Jaspert, ‘Das aragonesische Dilemma. Die Heimat Benedikts XIII. zwischen Obödienzstreit, herrschaftlichem Umbruch und internationaler Verflechtung’, in: eds. Gabriela Signori and Birgit Studt, Das Konstanzer Konzil als europäisches Ereignis: Begegnungen, Medien, Rituale, (Ostfildern: Thorbecke, 2014), 113 and Marco Pedretti, ‘A Catalan diplomat, theologian and preacher at the Council of Constance: Master Felip de Malla’, Revue de Sciences Religieuses, 86 (2002), 143. The Christmas Day Controversy of 1414 183 representatives. However the fact that he was aware of the legal and constitutional position that some in the party were keen to articulate would imply that he was not simply passing on second-hand knowledge to his students in Padua but had been in contact more directly with the Aragonese at the council. Perhaps, just as with Venice in 1412/13, Fulgosio had been consulted when Sigismund and the King of Aragon’s ambassadors began work on the preliminary arrangements for the treaty which they would later sign; perhaps for example during the formal assembly held by Sigismund with the Aragon delegates on 4 March.45 It is also conceivable that Fulgosio had simply met or heard one of the lawyers among the Aragon delegation. Fulgosio’s comments do however indicate the degree of hyper-sensitivity which existed with regard to Sigismund amongst new arrivals at the council. It would have been understandable for such an embassy given the delicate circumstances of the schism and the presence of an emperor at Constance to have wanted to guarantee that the legal basis on which they had arrived was clearly understood by all, however the particularly ascendant position of Sigismund himself at the time may have also driven the Aragon party to stress their kingdom’s autonomous credentials. If the remarks were made when the Aragonese delegation first arrived in Constance in early January 1415 then their concerns would have echoed the wary or uneasy mood of some within the council about Sigismund’s dominance over the assembly for which the Christmas Day Controversy was one manifestation. Both inside and outside the council, therefore, questions were being asked, and concerns expressed, about both the emperor’s actual and theoretical power. In many ways this was an understandable reaction to delegates and ambassadors finding themselves in the presence of an emperor in Sigismund who was observably doing in practice many of the things which emperors, and powerful emperors, were supposed to do in theory: sporting imperial attire and beginning to drive the agenda of a council which he had co-summoned with the pope. Over the next four years, Sigismund would play out the part of the archetypal medieval emperor to the full. It was he who would initiate and then propel forward the negotiations with the rival obediences which would

45 Of importance to this assembly were the guarantees which John XXIII had by then given that he was willing to cede the papal title to secure the goal of union. For a discussion of the negotiations between Sigismund and the Aragonese in this period and the session held in March, see: Marqués de Caldas de Montbuy, ‘Una extraordinaria embajada. La corona de Aragón y el concilio di Constanza’, Boletín de la Real academia de buenas letras de Barcelona, 18 (1945), 11–12. The textual record of the assembly of 4 March is in: Finke, Forschungen und Quellen, 259–260. 184 CHAPTER 4 ultimately end the schism once and for all, travelling across Europe to do so whilst also at other times remaining in Constance for protracted periods with his court. In December 1414 and January 1415, therefore, Fulgosio’s memoirs provide a picture of a council gradually waking up to the idea that the emperor was to take a very prominent, and on occasion perhaps too prominent, role at Constance. One area in which this was apparent was in the emperor’s support for voting by nation at the council. And, as an advocate, Fulgosio would be directly involved in this question as well. CHAPTER 5 Fulgosio and the Question of Suffrage and Representation at the Council of Constance

“Hunc versum vidi allegari multum singulariter in civitate Constantie”

1.a Voting by Nation at Constance

One of the main administrative questions facing the council was how the assembly should vote. More specifically, the council had to determine whether voting should be on the basis of ecclesiastical rank, per capita (i.e. one delegate, one vote) or be more collegiate in character and reflect the national or linguistic communities in to which those arriving at the council tended naturally to form and which replicated the internal constitutional arrangements of many universities. Despite the fundamental nature of the question, no definitive ruling was reached on the matter at the council and although voting by nation became the norm, the formal indeterminacy of the question meant that the issue always retained the potential to be the focus of dispute and disharmony.1 The question of voting rights flared up, for example, following the admission of the large French delegation in the spring of 1415; and again in 1416/17 when English and French members of the council clashed over the relative voting weights to be attributed to their respective nations.2 On other occasions, the

1 For a discussion of nations at Constance, see: Hélène Millet, ‘La fin du Grand schisme d’Occident: la résolution de la rupture en obédiences’, in: eds. Paola Guglielmotti, Isabella Lazzarini and Gian Maria Varanini, Europa e Italia. Studi in onore di Giorgio Chittolini, (Florence: Firenze University Press, 2011), 309–327 and George Powers, Nationalism at the Council of Constance: (1414–1418), (Catholic University of America, 1927). On the general question of national or per capita voting at Constance, see: Brandmüller, Das Konzil von Konstanz, I: 198–210; and for the organisation of the council: John Mundy, ‘The Organisation of the council’, in: eds., Idem, Louise Loomis and Kennerly Woody, The Council of Constance, (New York/London: Columbia University Press, 1961), 52–65. 2 On which see: Jean-Philippe Genet, ‘English nationalism: Thomas Polton at the Council of Constance’, Nottingham Medieval Studies, 28 (1984), 60–78; Louise Loomis, ‘Nationality at the Council of Constance: An Anglo-French dispute’, American Historical Review, 44 (1938/39), 508–527. On the relationships between and within the other national groups: Heinrich Finke,

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004305854_007 186 CHAPTER 5 union of the tiny English national delegation with the German was proposed3 whilst the nation to which individual delegates should rightly belong also became a bone of contention. In the months before the Agincourt campaign of the English King Henry V, for example, his ally Sigismund contentiously claimed that a good proportion of the French nation were either subjects of the empire and therefore rightly belonged in the German nation or were really subjects of Henry V and not his Valois opponent for the French crown and thus should rightly join the ranks of the English.4 Although these incidents held the potential to disrupt conciliar business for significant periods, they never culminated in the abandonment of the principle of voting by nation which continued as the de facto voting system at Constance. English, French, German, Italian and later Spanish delegates all assembled separately in order to debate, with the president of each nation then casting a block vote when the council met in a plenary, and hopefully unanimous, session.5 This system was however not without its critics. Voting by nation effectively side-lined important individuals like the cardinals and also diminished the power of bishops and archbishops.6 The hierarchical structure of the church with its pattern of ecclesiastical provinces subdivided in to dioceses was effectively replaced by a system which favoured the proto-national, secular and linguistic groups in to which Europe was in reality sub-divided. A nation which included only a few archbishops for example would be able to veto a nation which contained a far higher number of such prelates.

‘Die Nation in den spätmittelalterlichen allgemeinen Konzilien’, Historiches Jahrbuch, 57 (1937), 323–328; Aubrey Gwynn, ‘Ireland and the English Nation at the Council of Constance’, Proceedings of the R. Irish Academy, 45 (1939/40), 183–223 and O.H. Jarman, ‘Wales and the Council of Constance’, Bulletin of the Board of Celtic Studies, 14 (1950–52), 220–222. 3 See, for example, the proposal in 1415 to unite the two nations in: MANSI XXVIII, 15. 4 Ibid., 16. 5 On the overall position of Nations at Constance, its organisation and which countries, for example, were included within each Nation, see: Herbert Kraume, ‘Aufgaben des Konzils’, in: eds. Idem and Thomas Martin Buck, Das Konstanzer Konzil, 103–111. An example of the probable arrangements for national voting and the appointment of committees to which nations sent their elected representatives is indicated by the reform proposal published in: Finke, ACC, II: 742–758. Arrangements for proxies are not discussed in this document. 6 Millet, ‘La fin du Grand schisme’, 325. For the position of the cardinals at the council and an overview of the opening period of the council see: Conradin Zähringer, Das Kardinalkollegium auf dem Konstanzer Konzil, bis zur Absetzung Papst Johanns XXIII, (Münster, 1935), 60–65. At one juncture the cardinals proposed that they should be considered a nation in their own right: Joseph Gill, ‘The Representation of the Universitas Fidelium in the Councils of the Conciliar Period’, Studies in Church History, 7 (1971), 185. Suffrage and Representation at the Council 187

A national structure also had the effect of diluting John XXIII’s influence over the assembly. As with the discussion about the possible admission of the representatives of John’s opponents, Gregory XII and Benedict XIII, therefore, the initial decisions taken at the council concerning voting played an important role in determining the character of the assembly. If the council adopted a national block vote instead of ‘one delegate, one vote’, for example, the influence of Italian bishops, some of whom were titular, would be significantly diminished. These prelates greatly outnumbered their transalpine colleagues, particularly during the earliest period of the council, and were often supporters of John and his hard line ‘Pisan’ approach to resolving the schism. Block voting by nations, however, would reduce their influence and that, in turn, would make for an assembly which was more likely to be critical of John for not doing everything in his power, including abdication, to bring the schism to an end. In addition to these concerns, the arrangements for voting also represented the practical manifestation of more directly theoretical or ecclesiological questions. Firstly there was the subject of the theoretical place of the pope in relation to the council to be considered: was he its superior and permitted therefore, for example, to pack its benches with his own appointees or was the amalgam ‘pope in council’ superior to all, with the general council therefore much more entitled to determine its own internal organisation.7 Secondly there was the manner in which the council represented the wider church as a whole. Here too the question of who should be able to attend and vote at the council and how their votes were weighted (by individual or by national block) represented the working out in the practical, day-to-day terms of how to organise a council of profound questions about the relationship of the church’s hierarchy to the church itself.8 If the council represented the church

7 Pierre d’Ailly made the argument in 1416 that although the pope was the most important single individual in the council he was not above the council as a whole which was greater than any of its parts. See: Brian Tierney, ‘Divided Sovereignty at Constance: A problem of Medieval and early Modern Political Theory’, AHC, 7 (1975), 246. Jean Gerson would argue that as the church’s hierarchy was divinely created with all of its offices, then the general council was of greater power than the pope since it was the summa- tion of those offices. See: Sebastián Provvidente, ‘Factum hereticale, repraesentatio et ordo iuris. Le procès contre Jean Hus au concile de Constance (1414–1418)’, Temas Medievales, 17 (2009), 112. 8 See, for example, the discussion by one delegate in February 1415 of the question: “Utrum ecclesia militans, quam hoc sacrum concilium generalem representat in diffinendo, iudi- cando, sentenciando super illis, que respiciunt piam reformacionem in capite et in membris, sit maioris auctoritatis et potestatis iudiciarie quam papa.” Finke, ACC, III: 116. 188 CHAPTER 5 as a whole, for example, was it right that titular bishops without meaningfully sized congregations should wield as much power as prelates whose dioceses included thousands of souls?9 The French theologian and Cardinal, Pierre d’Ailly, would pose this question in debates about the council’s structure which took place in January or February 1415 with regard to the Archbishop of Mainz who had arrived at the council in January. His archdiocese was territorially vast and contained many individuals yet a ‘one man, one vote’ policy at Constance could have seen a prelate like Mainz out-voted at any time by titular bishops without any significant congregation of souls to whom to minister.10 These arguments would have appealed to reformers for whom it was clearly inappropriate that the church’s hierarchy had become so misaligned with the actual geographical distribution of believers that prelates bereft of any flock could vote at a council which represented the wider Christian community. To assess eligibility to vote on the basis of the size of the population over which

The decree Haec sancta issued after the flight of John XXIII in April 1415 would also include the assertion that the general council represented the universal church. For a discussion of this and arguments for the form of representation which it embodied together with its links to the notion of procurators and delegates, see: Walter Brandmüller, ‘Sacrosancta synodus universalem repraesentans ecclesia. Das Konzil als Repräsentation der Kirche’, in: idem, Papst und Konzil, 157–167. On the subject of the representation of the church by a general council and, in particular the thought of Marsilius of Padua and William of Ockham on the issue, see: Jeannine Quillet, ‘Universitas populi et représentation au XIVe siècle’, in: ed. Albert Zimmermann, Der Begriff der Repraesentatio im Mittelalter, (Berlin: Walter de Gruyter & Co., 1971), 196–197. 9 The position of titular prelates would also excite controversy at the later council of Basle. See: Werner Krämer, ‘Die ekklesiologische Auseinandersetzung um die wahre Repräsentation auf dem Basler Konzil’, in: ed. Albert Zimmermann, Der Begriff der Repraesentatio im Mittelalter, (Berlin: Walter de Gruyter & Co., 1971), 230. 10 Hardt, Magnum oecumenicum, II: 225. The Archbishop was a leading supporter of the council of Pisa and also a prince-bishop with extensive territorial interests. He would storm out of the council in March 1415 as pressure mounted on John XXIII (Egon Huckert, Die Politik der Stadt Mainz während der Regierungszeit des Erzbischofs Johann II. (1397– 1419), (Mainz, 1878), 93). D’Ailly had been made a cardinal after Pisa and, in 1413, was appointed John XXIII’s legate to Germany (see: Finke, Forschungen und Quellen, 310). He would surely therefore have had contact with the Archbishop during that mission, particularly given Mainz’s known connections to France. In 1409 and as part of internal political developments in the empire not unconnected to the schism, the Archbishop also declared that he was under the protection of King Charles VI of France (Alois Gerlich, ‘Territorium, Bistumsorganisation und Obödienz: Die Mainzer Kirchenpolitik in der Zeit des Konzils von Pisa’, Zeitschrift für Kirchengeschichte, 72 (1961), 61). Suffrage and Representation at the Council 189 a prelate ministered was however primarily a mathematical method of determining how to represent Christendom: The larger the population of a diocese the more eligible a prelate was to attend and vote. This was representation viewed in the form in which it is more recognised today; as a form of delegation. The council would represent the church because those who attended it had the authority of a flock of the faithful behind them which they represented much as a legate represented a legator or an agent stood in place of his or her principal.11 Representation viewed in this way had the potential to raise much more profound questions about the relationship between the hierarchical institutions of the church, its prelates, cardinals and clergy and the body of the faithful.12 Did the church fundamentally inhere in the body of believers, or in the church’s institutions or in both groups simultaneously? Representation as delegation appeared to stress the importance of the faithful and to diminish the power of the title which an individual council attendee might hold. In this model he was present at the council less because of the status which inhered in his office and more because of the number of souls under his pastoral care. This argument could be extended to those who did not hold a position directly within the church’s traditional hierarchy. Pierre d’Ailly persisted with its use, for instance, to justify the attendance of university theologians and lawyers; men who in theory had no more sizeable flock to which to minister directly than had titular bishops. The schoolmen, particularly theologians d’Ailly noted, could however preach or teach widely and although that would constitute a small population in itself, it was far greater a body of Christians than was ever subject to a titular bishop.13 If one was to consider the wider population, then it might follow that parish clergy might also be admitted to the council in person and, beyond them, even members of the laity in their

11 See, for example, the distinction between this general form of representation and the idea that the council represented the church because it was a copy of all of the church’s hierarchical institutions and offices congregated in one place in: Brian Tierney, ‘The Idea of Representation in the Medieval Councils of the West’, Concilium 187 (1983), 25. 12 On the topic of representation in this regard and the council of Constance, see: Phillip H. Stump, The Reforms of the Council of Constance (1414–1418), (Leiden: Brill, 1994), 265–269. 13 Of theologians and civil and canon lawyers, d’Ailly wrote: “Quibus, et maxime theologis, datur auctoritas praedicandi aut docendi ubique terrarum, quae non est parva auctoritas in populo Christiano, sed multo magis quam unius Episcopi vel Abbatis, ignorantis et solum titulati.” Hardt, Magnum oecumenicum, II: 225–226. D’Ailly then defended the right of university men to attend by authority of the council of Pisa and the practice established there. 190 CHAPTER 5 own right.14 In or around January 1415 both D’Ailly and the representatives of the German Nation argued in this direction when they maintained that the ambassadors of kings and princes should also be able to attend the council; whilst the German Nation added that those representing what in some cases would have been far more powerful and influential cities should be admitted as well.15 Where the Cardinal and the Nation parted company was on the question of national block voting. D’Ailly wanted to widen the suffrage to include those more representative of the Christian population and of the church therefore as a whole, whereas others at the council were happy for these arrangements to hold internally within a Nation but for a national collegiate system to form the constitutional basis of the council as a whole.

1.b Fulgosio and the Debate on Suffrage

The debates which took place at Constance concerning suffrage were thus important both in terms of determining the practical character which the assembly would come to take on and, more profoundly, about the precise way that the council or the church’s institutions represented the church. It is evident from Fulgosio’s commentaries and consilia that he was actively involved in these debates, although as a lay lawyer and advocate his intervention was decidedly secular and legalistic in character rather than ecclesiologically and theologically informed as was the case for contributions by theologians like D’Ailly. As with the Christmas Day Controversy and ensuing debate, however, Fulgosio’s contribution represents a new source for the history of the issue at Constance. It is clear, for example, that the debate in which Fulgosio was involved was focused not on the desirability of voting by Nations per se but instead about the position of one of the groups which both D’Ailly and the German nation had argued should be permitted to attend the council in their proposals of January 1415: the procurators of absentees.16 The position of individuals who stood as

On D’Ailly’s contribution to the voting debate and tract on the subject of voting by nations, see: Francis Oakley, The Political Thought of Pierre d’Ailly. The Voluntarist Tradition, (New Haven: Yale University Press, 1964), 151–152; 348ff. 14 D’Ailly himself does not appear to have supported extending attendance rights to priests: Tschackert, Peter von Ailli, 204. 15 Ibid., 202–204. 16 Ibid., 202 & 204; Hardt, Magnum oecumenicum, II: 226. Suffrage and Representation at the Council 191 surrogates for those prelates who were unable to attend the council in person was a suitably technical and legal subject for advocates to hold a disputation upon before the council. To a certain degree it was a question which touched even more closely to the essence of representation than did discussions about the relative voting weight to be attributed to one bishop or another or considerations about whether priests or schoolmen should be permitted to attend the council; for it directly considered the relationship between one individual at the council who represented someone who was absent. The representational aspect was however even greater since the debate also considered whether a single individual could vote on behalf of not one absentee but several absent prelates at the same time. Lecturing to his students after his return to Padua, Fulgosio would later recall that he had witnessed a debate concerning this issue while he was at Constance. Prompted as so often to recall the episode by the law on which he and his students were then working, in this case the section ‘nec non et unus’ from the text ‘si plures’ [Dig.2.14.9], Fulgosio told his students: “I saw this text used greatly as an argument in Constance especially against one who arguing the opposite ought to have been considered right. There was a debate (dubitatio) about whether bishops who hadn’t come to the council in person could still attend by proxy. Secondly it was debated whether, given that they could attend by proxy (which many denied), one man could act as proxy for several bishops as it was said that it was inappropriate (“inconveniens”) that one man’s vote (“vox”) would weigh more than many men’s. In support of this argument it was said that it is difficult for one man to be held accountable for two, as is mentioned here in this legal text (i.e. Dig.2.14.9)”.17 The question, Fulgosio told his students, had proved to be too contentious to be resolved at the council, but he did point out to them in closing that sometimes in fact one man’s point of view was indeed more valuable than that of twenty men’s votes.18

17 “hunc versum vidi allegari multum singulariter ad unum ad cuius oppositum facit recte intuenti. erat disputatio, nunquid episcopi qui ad concilium non convenerant, possent interesse concilio per procuratores. Secunda fuit dubitatio, posito quod possent interesse per procuratores, quod multi negebant, dubitabatur nunquid unus posset constitui procurator a pluribus episcopis, dicebatur autem quod inconveniens erat, quod vox unius haberet tot voces, ad hoc allegabatur quod difficile est quod unus sustineat vices duorum, ut hic.” DIGEST I, 81v. Dig 2.14.9 addressed class actions in which multiple creditors bringing the same case could be regarded as one. One of their cases was to be taken as representative of the whole, “nam difficile est, ut unus homo duorum vicem sustineat” (P. Krueger and T. Mommsen, Corpus iuris civilis, (Berlin, 1889), II: 29). 18 DIGEST I, 81v. 192 CHAPTER 5

Once again a comment made by Fulgosio to his students on his return from Constance and captured in a very spontaneous way by his scribes, opens up a scene at the council and reveals Fulgosio’s activity there. From Fulgosio’s remarks it appears at first sight that he was merely a dispassionate observer of this debate. “I saw the text used” (“vedi allegari”), he says, adding the strange comment that it was used “against one whose argument ought to have been considered right”. It might be assumed from this comment that Fulgosio had simply been present and listened to the debate, noticing as a good civil lawyer how a particular Digest text, ‘nec non et unus’, which concerned the unrelated subject of class actions by creditors, had been used and then relaying that practical, real- world example of usage to his students later when he was back in Padua. The pages of Fulgosio’s consilia, however, tell a somewhat different story. A short document is contained there which has the bullet point style of ‘allegationes’ which a lawyer might produce for a case before the courts or use during an advocatorial debate and which concerns the attendance of bishops at general councils. The document carries Fulgosio’s name as its author and sets out arguments opposing the idea that multiple bishops could be represented at a council by a single procurator. The text is clearly therefore one which the jurist must have prepared for the debate at Constance and matches the two part sub-division of that debate as it was later summarized by Fulgosio to his Digest students.19 Many of the same points which Fulgosio mentioned in his recollection of events at Constance to his students appear in the consilium. “It is incongruent”, Fulgosio argues for example in the tract echoing the language which he would use with his students, for the vote of one man representing multiple absentees to be worth more than that of numerous bishops.20 In making this point Fulgosio also used exactly the same argument from ‘Nec non et unus’ to which he would later refer his students in Padua that it was difficult for one man to represent many.21 It is evident therefore that Fulgosio himself had been the one whose arguments ‘he saw used’ at Constance and that he had put

19 The first question – whether procurators should be allowed at all – is at: Fulgosio, Consilia, 184r with ibid., 184v tackling the subsidiary question of if, given that such proxies were allowed, they could vote more than once. The documents ends “et ita dico et consulo Ego Raphael Fulgosius”, indicating the jurist’s authorship. 20 Fulgosio, Consilia, 184v and see below, note 25. 21 In the consilium Fulgosio wrote: “et tamen lex factum opponit ff. de pac. L. si plures § j. [i.e. Dig. 2.14.9] ubi tutor repraesentans diversas personas pupillorum creditorum, unius tantum personae suffragium habet, difficile namque est ut unus in suffragiis substineat vices plurium”, ibid., 184v. Suffrage and Representation at the Council 193 the case in the debate against both attendance by proxy and block-voting by single individuals representing multiple absentees. When Fulgosio told his students in Padua therefore that he had seen the text ‘nec non et unus’ used at Constance to oppose block voting by proxies and against ‘one who should have been considered right’ then it seems that Fulgosio was referring in passive terms to himself. He had been the advocate presenting the case against such proxies and had cleverly using the text ‘nec non et unus’ to shore up an argument which was the opposite of the view which privately he supported; namely that representative voting would be acceptable. As he told his students at the end of his recollection, there were indeed occasions when the voice or vote of one man was more valuable than that of many. The defence which his opponent in the debate had made, in other words, was the correct one. As an advocate at Constance however he had been required to put the case for the opposition: that representative voting was not appropriate and, in so-doing, he had used the text ‘nec non et unus’. His point to his students in the class room was thus to show how he had used his skill as a jurist to find an argument within the civil law, concerning legal suits by creditors, and adapt it to help in a debate about conciliar attendance and voting. The document on voting arrangements within Fulgosio’s consilia collection is therefore an important one on several counts. Firstly, it contains arguments which Fulgosio presented as an advocate in the debate at Constance. In itself therefore this text, hitherto unstudied amidst Fulgosio’s consilia, constitutes a minor addition to the large corpus of texts, tracts and treatises generated by the council of Constance. It also gives an insight in to the type of document that advocates in the council prepared and from which they worked.22 Secondly, its presence in Fulgosio’s collection of consilia indicates that the jurist returned across the Alps to Padua with at least some of his work from his time at Constance as part of his luggage. The allegationes for the voting debate would then have remained piled with the jurist’s papers in his Padua home before ultimately being swept up with them to form what would later become his published consilia collection. Finally, the existence of the text and Fulgosio’s later reference to it reveals a complicated relationship between author and text in which Fulgosio distanced himself from an advocatorial piece which he had written and which bore his name but which did not represent his private view. Although the consilium is short, therefore, it warrants consideration in more detail.

22 It can be compared, for instance, to the short advocatorial texts prepared by the conciliar advocates involved after Fulgosio’s departure in the Jean Petit case at Constance. 194 CHAPTER 5

1.c Fulgosio’s Consilium on Voting by Proxy

Fulgosio began his advocatorial paper by setting out, in three concise arguments, the case in favour of absentee bishops being represented at a council by proxies. Cathedral canons could, he noted, vote during the election of a new bishop in this way, for example. With the case in favour of proxy voting presented summarily, Fulgosio then moved to more detailed and sophisticated arguments opposing the idea. A civil law text stated, Fulgosio said, that certain activities required ‘personal diligence’ and must therefore be performed in person rather than through a surrogate. “General councils are undoubtedly places where matters of great importance like the reform of the universal church and matters concerning the catholic faith are to be discussed,” Fulgosio noted. “It would seem therefore that they are occasions which require ‘personal diligence’ as described in the law [. . .] especially when major clergy, like the bishops, have been summoned there.”23 City counsellors too, Fulgosio continued, could neither attend civic councils by proxy or vote there by such means. Only those actually present at a civic assembly could form a quorum. The majority so obtained would bind the council as a whole and any vote by a procurator would be excluded from the count. These examples drawn from civil law were fine, however Fulgosio next moved to address arguments drawn directly from canon law which appeared to provide good evidence to support the attendance of absent bishops at general councils by proxy. These texts appeared to permit a bishop who was legitimately detained from attending a council to excuse his absence by sending a legate to inform the assembly about the delay which prevented his arrival.24 Canon law seemed therefore to allow a bishop to be represented at a council by proxy, at least with respect to registering there, as if he were a litigant in a case before a court, the just impediment for his non-attendance. Fulgosio subjected the texts however to a close reading in much the same way as he had done with the Marche case in order to set it aside. He then turned, exactly as he would later tell his Padua students that the debate at Constance had done, to look at the second question of whether, if it was conceded that a single individual

23 “in his, in, quibus consideratur industria personalis, non licet id per alium agere. . . . Sed dubium non est, quod in conciliis generalibus, in quibus agitur de reformatione univer- sarum ecclesiarum et maximis rebus uti est fides catholica, videtur eligi industria per- sonarum per prealleg. § . . . praesertim cum specialiter maiores clerici hoc est episcopi vocentur”, Fulgosio, Consilia, 184r. 24 The texts were c. ‘episcopus’ and c. ‘placuit’ from Gratian’s Decretum [D.18.9. & 10.]. Suffrage and Representation at the Council 195 could attend in place of several absentees, that individual could also cast multiple votes (“plures voces habeat, et plura suffragia”). At this point Fulgosio again had to address certain canon law texts that indicated that, in the past, single individuals had indeed attended general councils on behalf of multiple towns or locations. Fulgosio argued that this did not however mean that they had enjoyed multiple votes or that their status had affected the way in which their votes were counted (“computatione maiorum saniorisque partis”). He then closed his argument by using the text ‘nec non et unus’, just as he would later tell his students that he had ‘seen’ used in the debate at the council, to state that it would clearly be absurd if one man for example had a mandate from fifty absentee bishops. His single vote would then be worth more than that of [forty-nine] bishops.25 Naturally, Fulgosio concluded, the whole question was ultimately a very complex one and ought to be submitted to the pope for a definitive ruling.26

25 Referring to canon law evidence which appeared to show that in earlier councils one delegate had held more than one vote, Fulgosio added “et tamen lex factum opponit ff.de pac. L. si plures § j. [i.e. Dig. 2.14.9] ubi tutor repraesentans diversas personas pupillorum creditorum, unius tantum personae suffragium habet, difficile namque est ut unus in suffragiis substineat vices plurium, et quod est ratio vitantae absurditatis quod si unus habeat mandata quingaginta episcoporum iuncta tamen an prevalebit vox illius unica 19 (sic) episcopis. Incongruens est, cum validus videatur quod plurimorum sententiis confirmatur.” Fulgosio, Consilia, 184v. Fulgosio’s use of the number ‘nineteen’ makes little sense mathematically as the number of bishops outweighed by an individual representing fifty. Even allowing for a two- thirds majority requirement, a single man wielding the block votes of fifty bishops would be able to out-vote twenty-five bishops, not nineteen. I therefore consider the figure nineteen (xix) to be a transcription error by the printer of the Consilia from forty nine (xlix) and have amended the quotation accordingly. The idea that nineteen is a transcription error is supported by what is known about the number of bishops at Constance in this period. Attendance was indeed very low at the start of the council, but chronicles tell us that something like thirty, largely Italian, prelates were present at the opening session with Fulgosio on 16 November, with a trickle of new arrivals after that through the winter of 1414/15. It is of course possible that Fulgosio was referring to the number nineteen as the number of bishops still present in Constance when the debate on suffrage was held and that even the small initial number of attendees had dwindled away by then. However it seems unlikely that, even in the depth of the winter of 1414/15 the figure for prelates ever got as low as nineteen. The figure of fifty may also be significant as it was said that, to guarantee himself support, John XXIII had appointed fifty bishops prior to the opening of the council: Gill, ‘The Representation of the Universitas Fidelium’, 183. 26 Fulgosio, Consilia, 184v. 196 CHAPTER 5

Fulgosio’s paper provides an excellent insight in to the work undertaken by an advocate at Constance. In writing it Fulgosio was not preparing a tract written in abstract, theoretical terms about electoral suffrage or representative government, but a series of points to make in support of one side in a public debate. One of his three advocatorial colleagues would have put the arguments for the opposing point of view, with both men trying to convince his audience; the assembled council delegates. What was important here was not personal conviction, but the ability to draw together different laws from the vast corpus known to each jurist and make a convincing case for whichever side of the argument he had been charged to defend. If Fulgosio could, for example, recall a text from the civil code which was either relevant or could, through rhetorical or semantic adaptation, be adapted to fit so much the better. This he appears to have done by adapting a section in ‘nec non et unus’ [Dig.2.14.9] which related to one man not being able to represent in himself the multiple and diverse failings of many and then applying this idea extracted from civil law to the very different ecclesiastical case at hand. As an advocate Fulgosio would also have had to either react to or pre-empt arguments which might be made by opposing counsel. It is in this context that the points which he introduced from canon law concerning bishops who had been legitimately prevented from attending a council may be understood.27 Fulgosio may have included these arguments in order to reply to points already made by his opponent or in an attempt to out manoeuvre him in advance. When Fulgosio later recounted the episode to his students in Padua it was the skill of an advocatorial encounter which was being recorded and the deft ability of the court room or disputational lawyer to fashion an argument to fit a new legal problem even from whatever meagre materials lay to hand. Fulgosio had shown his dexterity at doing that. Firstly he had been able to recall a text from civil law which touched on the question of representatives and suffrage and then had successfully applied it to the different circumstances of the case then before him. It was this application of the text to a different situation which was celebrated in Fulgosio’s Digest comments to his students. His own private views on the question of who should vote at the council were another matter.

27 The summons issued by John XXIII to invite delegates to the council had also permitted those who were personally impeded from attending to send a representative instead. Hardt, Magnum oecumenicum, II: 227. Suffrage and Representation at the Council 197

1.d Fulgosio’s Private View

It seems likely that Fulgosio would not have willingly chosen to defend the side of the voting debate which his consilium paper indicates that he in fact did. He appears to have been personally more supportive of block voting than the arguments which he presented as an advocate would appear to suggest. In his later recollection of the episode Fulgosio disassociated himself from the ideas which he himself had made, using, for comic effect or otherwise before his students, the passive tense when describing the debate at Constance. ‘It was argued at the council’, he says; or: ‘It was said that it was inappropriate for one man to vote for many’. Fulgosio does not explicitly tell his students that he had been the individual responsible for these arguments at the assembly, however he may have intimated as much to them. In the written record however the entire episode is impersonalised as if Fulgosio was distancing himself from the arguments which he had presented during the debate and which survive in his consilium. He was showing his students an argument which could potentially be made (applying Dig. 2.14.9 to other cases of suffrage) rather than expressing his own opinion. Fulgosio nevertheless had a private view on the subject and this can be detected in a second statement which he made to his students a little further on during the course of their study of Digest I. The text which he and they were by then studying concerned the power of judges to summon procurators (“Publice utile” [Dig.3.3.33.2]) and this prompted Fulgosio to remark out of the blue and without explanation: “It was the same thing when the Italians com- plained that voting should be by individual delegate and not by nation, as it wasn’t right that eight men should have the same authority as fifty. A response was made from me that it would be mistaken since it had already been determined when they arrived what they would do and that therefore it would not be by headcount. I replied: Also, most serene prince, they’ll never be able to think about all the things which need to be done in a council.”28 This isolated remark evidently refers to Fulgosio’s continued and apparently more informal involvement in the question of suffrage at Constance and to his support for block voting by nations. There would have been a tension here

28 “Item etiam cum conquererentur Italici, ut ex numero darentur voces non ex natione, quia non erat iustum quod tante auctoritatis essent octo quam quinquaginta: ex mihi fuit responsum quod fallerer (sic – amended to ‘falleret’) quia fuit determinatum ibi, unde ipsi venerant, quid facturi essent: unde non erat de suo capite: respondi, et nunquam serinissime princeps ipsi potuerint cogitare de omnibus que in concilio aguntur.” DIGEST I, 118r. 198 CHAPTER 5 between Fulgosio’s private view and what he had argued publicly. In presenting arguments against a single procurator being able to vote on behalf of multiple absentees he had effectively presented an anti-representation argument which lent support to the principle of ‘one man, one vote’. He had maintained for instance on the basis of Dig.2.14.9 that one man could not easily represent the views of many, and that it was ‘inappropriate’ for a single procurator representing multiple absentees to out-vote other attendees. This implied that every matter before the council had to be discussed by all delegates singularly and their views measured equally, however privately Fulgosio evidently felt that allowing delegates to do that would render the council unworkable. It would be too disorderly to function effectively and some form of representation was therefore necessary, both in terms of nations and quite possibly also with respect to absentees. That would mean that, on occasion, eight bishops from one nation might technically outweigh fifty present in another, just as a procurator representing fifty multiple absent prelates could out-vote forty-nine prelates actually in attendance.

1.e Dating Fulgosio’s Contribution

The figures which Fulgosio quoted regarding the number of bishops can be used to propose a date for the jurist’s involvement in a debate at the council when they are compared to chronicle evidence for episcopal arrivals at the assembly. His private intervention must post-date Sigismund’s arrival in December given Fulgosio’s reference to the ‘serene prince’, whilst the point at which the number of non-Italian bishops had surpassed Fulgosio’s figure of eight can be estimated. Prior to the arrival on 11 and 12 January 1415 of the archbishop of Mainz (in full armour) and the bishops of Würzburg and Cambrai, for example, only five or six German and four French prelates were recorded by the chronicler Jacopo Cerretano as having arrived at the council; and these had all arrived by mid-December 1414. The English nation would not see a single prelate arrive until 21 January and indeed had already petitioned John XXIII in December to request that decisions on church reform be postponed until their nation’s prelates and members of the royal delegation had arrived.29

29 Finke, ACC, II: 184–206. The prelates were (with assumptions about the nation to which they joined): DE: Salzburg and Brescia (28 Nov. 1414), Regensburg (1 Dec.), Riga (4 Dec.), Merseburg and Basle (16 Dec.); FR: Vienne and an unnamed bishop (4 Dec.), Toul (14 Dec.) and Besançon (16 Dec.). In contrast, at the opening of the council “thirty” prelates were recorded as present (ibid., 184) who would have been almost entirely Italian. Suffrage and Representation at the Council 199

This would suggest that Fulgosio’s remarks about the council’s voting arrangements were made in mid-January 1415 after Sigismund’s arrival and when it had technically become possible for the two votes of the French and German nations with their collective eight or nine prelates to out-vote the single vote of the Italian nation despite its abundance of bishops and archbishops. It would also have first become possible for a single nation comprising only eight prelates to cancel out the vote of the Italian nation in mid-January with the arrival of the bishop of Würzburg and the archbishop of Mainz. The holding of a debate concerning whether votes should be per capita singulorum or per capita nacionum was also reported in the tract of an anonymous publi- cist dated by Heinrich Finke to early February30 and may well have been the discussion which prompted Fulgosio’s comments to Sigismund. Fulgosio’s more formal involvement on the subject of procurators probably also dates from this time. It would have coincided both with Pierre d’Ailly’s known intervention in January in which the admission of procurators was mentioned and the proposals submitted by the German nation. It may even be the case that their joint insistence on, or reference to, the admission of procurators prompted a formal debate at the council with the advocates tasked with clarifying through disputation firstly the specific question of the position of procurators and then, secondly, the extension to consider single individuals representing multiple absentees. The Austrian delegate, Petrus de Pulka, would report home in March 1415 that the opening of the council’s second session had been repeatedly delayed in January and February by discussion about whether voting should be by nation or per capita; and mentioned that so many divergent points of view had emerged in the debates that it was unlikely for

These figures can be compared to the number of prelates voting on the motion put to the council by Pierre d’Ailly in the second half of December on the important theoretical question of whether the pope was only one part of the general council. As Albert Lenné showed, the manuscript sources on this vote differ greatly, but would appear to suggest forty or fifty prelates were then at Constance, with perhaps twelve voting in favour of d’Ailly’s views. Lenné, ‘Der erste literarische Kampf’, 79*. By March 1415, conciliar records reported that the Italian nation had a total of eighty prelates: MANSI, XXVIII, 17. 30 Finke, ACC, III: 100: “Quia imminet disputatio, an scrutinem votorum in concilio generali necessarium sit faciendum vel fiendum per capita vel numquid eciam sufficiat scrutin- ium fieri per capita in nacionibus eiusdem concilii”. If the dating method by aligning the numbers of bishops referred to by Fulgosio and Cerretano’s chronicle can be relied upon, it would suggest that the debate which he was involved in may have been a little earlier and pre-date the arrival of the English delegation on 21 January. 200 CHAPTER 5 the council to reach a definitive verdict on the matter;31 a sentiment which Fulgosio himself would echo when he was back in Padua. Although no formal decision was reached on the matter, a temporary solution was forced on the council by 6 February. When the council’s second session finally did open on that day English and German delegates refused to allow business to continue until a national voting structure was accepted.32 Despite the reduced practical importance of the question of ‘voting by proxy’ (even block proxy votes) in a council now increasingly arranged instead on a national basis,33 the debate in which Fulgosio had taken part had nevertheless cut to the heart of the question of representation in its secular or civil aspect. To question whether individuals could act as procurators of multiple absent bishops was in some ways even more profound than puzzling over whether the council should vote by nations. That might raise ecclesiological questions about the position of the church’s hierarchy and its relationship to the territorial divisions of the world, however to consider the position of proxies wielding the votes of many absentees came closer to the essence of representation; of one individual standing as the representative of others. A proxy who carried the votes of several absentees would have had in theory to balance the best interests of the individuals whom he represented in deciding how to cast his vote at the assembly and whilst Fulgosio did not consider this aspect of the question directly he did approach something of its essence during his advocatorial paper when he introduced the civil law texts suggesting that one man could not easily stand-in for many. This suggested that the possibility of a tension was recognised where a single man or agent represented

31 Friedrich Firnhaber, ‘Petrus de Pulka, Abgesandter der Weiner Universität am Concilium zu Constanz’, Archiv für österreichische Geschichte, 15 (1856), 14. 32 August Franzen, ‘Einigungsbemühungen und konziliare Gedanken auf dem Konstanzer Konzil’, in: eds. Idem and Wolfgang Müller, Das Konzil von Konstanz. Beiträge zu seiner Geschichte und Theologie, (Freiburg i.Br., 1964), 83. The Italian nation continued however to press for the idea of one delegate one vote and Jacopo Cerretano recorded in his chronicle that they were still attempting to win the French nation over to this idea as late as 18 March 1415: Tschackert, Peter von Ailli, 206. 33 Proxies would nevertheless continue to be permitted at Constance and vote there. See, for example, the vote taken in 1416 and discussed by: Stump, The Reforms of the Council of Constance, 61. A dispute within the Spanish nation between its Aragonese and Castilian delegates also concerned the admission of proxies for the overseas possessions of the King of Aragon (ibid., 38), whilst a document from Andreas of Regensburg indicates that proxies acting for absent bishops continued to be involved in votes within the Italian nation: Finke, Forschungen und Quellen, 35. Suffrage and Representation at the Council 201 more than one principal. Fulgosio had argued by using the civil law texts on creditors, in effect, that one man could not represent the many because a single man could not be suitably manifold in himself to stand simultaneously for all the potentially conflicting views, behaviours, failings and faults of the many. Instead the specific situation and experience of one individual creditor would be taken by the court as an example. Applied to the case of delegates at a council, the principle meant that an individual would be unable to represent more than one person. If he represented more he would be unable to remain a passive surrogate for those unable to attend the council and would have needed instead to exercise a degree of active judgement to vote on behalf of the many absentees whom he represented, balancing their potentially conflicting interests in the process. In contrast, the casting by a national president of a nation’s view was more passive and closer to the ceremonial presentation of what a nation had decided. The national president therefore was a symbol; whereas the procurator casting his vote inside a nation on behalf of more than one absent bishop and perhaps deciding to vote in a particular way in the best interests of all those who had appointed him was more like an elected representative or parliamentary delegate chosen for the judgement which he would have to exercise.

2 Sub-Sub-Delegation

The voting debate and the issue of representation was not the only occasion at Constance in which Fulgosio considered the question of delegated powers. In his Digest commentary Fulgosio also referred to a question about papal delegates and their power to sub-delegate which he said he had encountered whilst at the council. In his recollection, Fulgosio referred to the episode as a “causa magna” although on this occasion the matter does not appear to have been connected to the Christmas Day Controversy. Fulgosio was lecturing on the Digest (Dig.2.1.5) and broke off from it to address his class: “But here I’ll pose [you] a question which occurred to me at the council of Constance. The well- established common view is that a judge can delegate specifically [-defined jurisdiction] in a case to another who can then in turn sub-delegate that jurisdiction to a third individual. A debate occurred as follows: What if an individual, as had happened in practice, delegated all of the powers which he had in a case to John Doe, which would include therefore the power of delegating. Would John Doe be able to delegate those powers in turn to another person? 202 CHAPTER 5

I held this view in debate and proved it by using the gloss to the legal text ‘solet praetor’ [Dig.2.1.16].”34 Fulgosio then had been involved at Constance in a case concerning the delegation not of specific powers, as might happen with a judge simply passing certain elements of a legal case to a third person for him to examine, but of a principal who transferred all of his powers to an agent who could then pass those powers on in turn to a third person. He was now re-cycling his experience of this debate at Constance as a quaestio to re-analyse with his students in Padua as an academic exercise. The topic of sub-sub-delegation had been considered by other jurists previously. Bartolus had considered the puzzle, for example, as well as Alberico da Rosciate whose work Fulgosio had studied at the time of the Christmas Day Controversy.35 As Robert Figueira has shown, jurists carefully distinguished between two types of subdelegate: Firstly judge-delegates who had received their authority from a panel of judges but might themselves pass on specific aspects of a case to a further subdelegate and, secondly, papal legates who might subdelegate some of their authority to a third person.36 The latter case was of great interest because it potentially entailed the partial transfer of papal jurisdiction down through a chain of delegates.37

34 “Sed hic moveo questio, que incidit mihi in Constantiensi concilio: communis sententia est, ut iudex delegans possit hoc specialiter, et tunc delegatus potest subdelegare, incur- rebat dubitatio, quid si aliquis generaliter ut fuit de facto, omnes suas vices quas habebat in tali causa delegat Sempronio, certe iste delegans habebat potestatem delegandi, cum ergo deleget omnem potestatem Sempronio iste Sempronius potest alii delegare, et hanc sententiam quam tenebam probavi per auctoritatem glos. in l. solet. infra [i.e. Dig 2.1.16 as Fulgosio was then lecturing on Dig. 2.1.5] eodem ubi dicit quod potestas dandi iudicem est delegabilis, et transit ex generali delegatione.” DIGEST I, 36r. 35 See for example the discussion of the topic and Bartolus’s, Rosciate’s and Fulgosio’s contributions to the subject in: Andrea Fachinei, Controversiarvm ivris libri decem, (Cologne: Sumt. Ioan, Gymnici & Antonii Hierat, 1614), I: 53–54. 36 Robert Figueira, ‘Subdelegation by Papal Legates in Thirteenth-Century Canon Law: Powers and Limitations’, in: eds. Steven Bowman and Blanche Cody, In Iure Veritas: Studies in Canon Law in Memory of Schafer Williams, (Cincinnati: Cincinnati University Press, 1991), 61ff. 37 That opened up the potential for a descent to infinity, as Alberico da Rosciate noted in his discussion of the question that Guido de Baysio had argued: “quaero an delegatus a legato principis vel papae possit subdelegare. Innocentius tenet quod non totam causam, sed certum articulum, puta citationem, vel receptionem testium . . . Archid. tenet oppositum quia sic res posset abire in infinitum”, Albericus de Rosate, Commentarii in primam digesti veteris partem, (Venice: Arnaldo Forni, 1585), 96v. Suffrage and Representation at the Council 203

Figueira noted however that he had not encountered an example amongst the Decretalists of a discussion of a legate transferring all of his authority to a subdelegate;38 only of specific jurisdiction being passed on. The question which Fulgosio considered at Constance, however, seemed to be of this nature and concerned a papal legate who had passed on the baton of jurisdiction which he possessed completely to a third person. Fulgosio had already told his students that he had held the argument in debate that all of a delegate’s authority could indeed be subdelegated, but continued: “I defended my opinion that just as someone delegated by a bishop (ab ordinario) as a result of a specific concession can sub-delegate his powers, so a papal legate can delegate his powers. For I don’t see a difference between an ordinary and a papal legate.”39 He had defended his view vehemently, Fulgosio added; telling his students that he wanted to tell them about the episode in case they should ever find themselves in a similar debating situation.40 Fulgosio appears then to have made the argument in a formal debate or disputation at Constance that a papal legate could pass on all of the powers which he had been granted to a third person. The initial grant would have been of specific and limited powers, however the delegate would then have been able to pass these on in their entirety. This would mean potentially that while the pope could chose the powers which he wished to delegate, he could ultimately not determine by whom they were wielded since they could in theory be subdelegated ad infinitum. The context for the ‘causa magna’ which had prompted Fulgosio to defend this position is unclear. It is conceivable that it had emerged as part of the debate on block voting. The issue of proxy voting was akin to that of a legate subdelegating his powers to another person. The Donation of Constantine itself which came to be debated, as will be seen, as part of the Christmas Day Controversy might also have had analogies to legatine subdelegation in the idea of a pope transferring authority over Rome to the emperor. When Fulgosio stated that the case specifically involved papal legates, however, then his comments should probably be taken at face value to indicate that the debate concerned just that. Pierre d’Ailly had voiced reform proposals in February 1415 concerning papal legates which suggested that legates be

38 Figueira, ‘Subdelegation by Papal Legates’, 73. 39 “Ego defendebam sententiam meam, quod sicut delegatus ab ordinario potest subdelegare ex concessione speciali, ita et subdelegatus a delegato apostolici. Nec video differentiam inter ordinarium et delegatum apostolicum”, DIGEST I, 36r. 40 Fulgosio had defended his “sententia fortiter”, he said, “in una causa magna, et hoc volui referre ut sciatis: quia aliquando posset vobis contingere.” ibid., 36r. 204 CHAPTER 5 permanently appointed to hear cases locally when the pope was distant in order to save the costs of those involved and this could have been the occasion of a debate.41 It is also possible, for example, that a private dispute involving a papal legate had come before the rota romana or the council and that the status of the jurisdiction which the legate had subdelegated was raised as a result.42 Fulgosio had then been asked to debate the point with his brief discussion of the matter in the commentaries indicating that he had followed the standard approach of the jurists to the issue and firstly discussed episcopal or ordinary legates before then considering papal ones.43 Another possibility is that a new papal legate whilst at Constance had been appointed and that he had sought to subdelegate his powers. The presence in person of John XXIII at the council would however have surely reduced the need for new papal legates or the taking of extraordinary measures by them. Anyone requiring access to the kind of dispensation or petition which a papal legate might ordinarily have been authorised to grant on the pope’s behalf would have been able to petition the pope directly at Constance or, as was seen above, during John’s journey north through Italy and across the Alps to attend the council. This leaves a different possibility altogether. Instead of John XXIII’s legates, Fulgosio may have been involved in a discussion about legates which John’s two rivals for the papacy had appointed. A very important example of this was the delegation of powers by Gregory XII to his representatives at Constance and, in particular, the extensive and extraordinary powers which Gregory granted to Carlo Malatesta and which were ultimately to permit Malatesta to resign the papacy on Gregory’s behalf.

41 Finke, ACC, III: 105–106. The proposal asked “utrum expediret statuere quod quandocunque papa vel romana curia resident citra montes, esset unus legatus ultra montes et econtra, qui legatus haberet certam potestatem in multis casibus, ne pro quibuscunque minimis opporteret ad sedem apostolicam recurrere cum magnis expensis, laboribus et periculis prout sepius est expertum. Et forte multis videretur expedire quod non solum esset unus talis legatus set plures in diversis partibus”. 42 Many processes could have involved such questions concerning the rights of subdelegated judges; however it is worth noting that, in the legal proceedings brought against Jan Hus prior to Constance the question of the actions of papally delegated judges was raised. See, for example, the ‘Allegationes contra processus iohannis Hus’ written by Jan z Jesenic: Joannis Hus et Hieronymi Pragensis confessorum Christi historia et monumenta, (Nuremberg: J. vom Berg & U. Neuber, 1558), 322–324. 43 Alberico da Rosciate’s discussion of the issue for example follows the same structure: Rosate, Commentarii in primam digesti, 86v–97r. Suffrage and Representation at the Council 205

Malatesta did not arrive in Constance until the summer of 1415 but Gregory’s representatives were present there from as early as November 1414. With the arrival of the emperor and the extension of such olive-branches to the Gregorians as the permission for them to enter the city of Constance, negotiations would have continued with them through the winter and the legal aspects of how a settlement with Gregory and his obedience might be achieved would have been key to those discussions. On 25 January 1415, for example, Gregory’s main representative, the Cardinal of Dubrovnik, was questioned by the council about the sufficiency of his mandate to act on behalf of Gregory and instructed to remedy any shortfall of powers which he had been delegated.44 The council understandably did not want to negotiate a potential settlement with a representative who was legally unable to deliver it.45 When Gregory finally issued his mandate to Carlo Malatesta in March 1415, it would therefore grant him wide ranging powers to help secure union which included the right to resign the papacy on Gregory’s behalf if he saw fit. Furthermore, as a secular prince, Malatesta was given the right, if it should prove necessary, to delegate the powers which the pope had granted him to an ecclesiastic. The mandate from Gregory to Malatesta was an extraordinarily dramatic one. Too ill, it was said, to attend the council in person, Pope Gregory had in effect handed over the detail of his own resignation and the carefully stage- managed process by which this would be formally achieved at Constance, to a lay prince and condottiere. The re-union of the church was the goal and Malatesta was empowered to do whatever was necessary in order to meet it, even where that might exceed the powers which he had already been given.46 This appointment of a legate by Gregory, carefully structured to be in the form of a legate to the Emperor Sigismund and not to a council which Gregory had not convened, was a key document in the eventual settlement between Constance and the pope who had been deposed at Pisa. It is easy to imagine therefore that earlier drafts of Gregory’s mandate, or ideas about how exactly

44 Finke, ACC, II: 209. 45 There were also discussions about whether it would be appropriate for John XXIII to resign via a procurator during debates in early 1415. See the tract in: Ibid., III: 129–131 & 135. 46 Achieving union was the goal and “pro praedictorum effectu salubriter consequendo, tibi subveniendo, aut illis, cum quibus tuae providentiae videbitur expedire, modis congruis et opportunis tractandi, practicandi et concludendi, quae tibi visa fuerint utilia et neces- saria ad praedicta, etiam si forent talia, quae mandata alia et tibi data excederent, quan- tumcumque mandatum exigerent speciale, et si videbitur tibi, aliqua magis convenire personae ecclesiasticae, illa expediri faciendi per personam ecclesiasticam quam elegeris, et ei sic electae et juxta tuam dispositionem facturae, praesentium tenore de plenitudine Apostolicae potestatis plenam et liberam concedimus facultatem.” MANSI XXVII, 734. 206 CHAPTER 5 the pope might resign at Constance in absentia, were puzzled over at the council during the negotiations with Gregory’s ambassadors in the spring of 1415. Just as he had done in the case of the Venetian peace treaty, one can readily imagine Fulgosio being involved in those discussions between Sigismund, the council and the Gregorians about how effective such a mandate to Malatesta or others might have been. A practical lawyer would have been concerned that the document was water-tight and could not become the object of a dispute at a later date. The last thing that the council would have wanted would have been for a hard-core of Gregory’s supporters to claim that the instrument issued to Malatesta had been ineffective and had not permitted him to resign the papacy. Fulgosio would have known how documents could be successfully reinterpreted in that way. He had done much the same thing himself with Gregory’s instruction to sell church property in the Marche case by narrowing what the concept ‘property’ meant. And an awareness of how such documents could be weakened in this way by rhetorical skill would have informed any contribution to their creation. The same skills which an advocate used to say that a text did not quite mean what it appeared to say, were the same ones that he might use in drafting a document in order that it might fend off such future attacks successfully. Fulgosio had worked along these lines when he made his contribution to the Venetian peace treaty. One can therefore quite imagine a jurist at Constance being alert, for example, to the ability of Malatesta to subdelegate his powers to a third person should that prove to be the most effective way to proceed. Could a papal delegate legitimately do that? And do so furthermore with extensive powers like the right to resign the papacy which Malatesta had been granted. The context of Fulgosio’s comments on the subdelegation debate at Constance remain however unclear. It can be speculated that the debate was connected in some way to the negotiations with Gregory XII’s representatives and the settlement of the schism, however a more mundane incident, perhaps a case before the courts, may have prompted Fulgosio’s intervention. That Fulgosio was involved in legal cases brought before the ecclesiastical courts at the time of Constance is shown in an entirely separate case for which Fulgosio contributed a consilium. The case does indicate that Fulgosio had contact with the Gregorians while at Constance and also that he was well able to tackle some of the difficult private law consequences of the schism whose extreme character had the capacity to throw up such legal dilemmas as whether popes could indeed see extensively delegated powers subdelegated. The case centred on an unfortunately anonymous Archbishop. CHAPTER 6 Fulgosio, the Case of the Anonymous Archbishop and the Legal Legacy of the Great Schism at Constance

“Per d.H. d.W requisitus ab ipso W.”

Fulgosio’s paper for the voting debate is the only document among the jurist’s consilia which can be identified as representing work which he prepared during his time at Constance. Only one other document in that collection appears to date from Fulgosio’s time at the assembly and this is the sixth consilium in the 1607 and 1613 editions of the jurist’s consilia and concerned a case before the rota romana.1 This fact in itself is distinctive as no other surviving consilium by Fulgosio clearly related to a case before the rota auditors.2 Such cases would

1 There are two separately identifiable collections of Fulgosio’s printed consilia: – (i) those published first in 1490 by Johannes Dominicus in Brescia from manuscripts which Johannes Roselli had held and subsequently re-published by Bernardinus and Ambrosius de Rouellis in 1508, the heirs of Giovanni Giunctae in Lyon in 1548 and finally by Gasper Bindoni in Venice in 1575; and (ii) a separate collection of opinions written by the jurist and published by Johann Schönfeld in Amberg in 1607, with a further re-badged copy of the same edition (perhaps intended for the Frankfurt book fair?) produced by Johannes Bringeri in 1613. The German editions include one consilium identifiable from the manuscript collection of Fulgosio consilia held in Ravenna which often relate to cases from Belluno and appear to be connected to a jurist and court official there, Giorgio Doglioni. The consilium ms. Biblioteca Classense Ravenna, 484, 104–105r is the same as consilium 32 in Fulgosio, Consilia 1607, 177 (sic – duplicated pagination). The only other manuscript versions of printed consilia of which I am aware are: (i) the copy of Fulgosio’s contribution to the disputed inheritance of Caterina of Riva on Lake Garda (Fulgosio, Consilia, 144r–145r) which survives in: ms. Universitätsbibliothek Graz, 356, 22r–24v and which was discussed above at p. 119; (ii) ms. Biblioteca Marciana, Venice, V, 2 (=2324), 384v–385r which is partially printed as consilium 107 in Fulgosio, Consilia, 178v; (iii) ms. Biblioteca Marciana, Venice, V, 2 (=2324), 382v–383v which is printed as number 122 in: Fulgosio, Consilia, 187r–v; (iv) Consilium 88 in Fulgosio, Consilia, 164v–165r which is the same document as ms. Biblioteca Classense Ravenna, 485 VII, 61r–63r; and (v) Consilium 10, Fulgosio, Consilia, 111r–v which appears in ms. Biblioteca Bertoliana Vicenza, 476, 24r–25v. 2 I disregard the consilium concerning the man imprisoned by a rota auditor in Siena discussed above, p. 64, on the basis that it was a case before the secular courts which felt the rota auditor had acted ultra vires. It was not therefore a case brought before the rota per se.

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004305854_008 208 CHAPTER 6 typically concern ecclesiastical benefices and other church business. Consilium six is somewhat different in that its subject was a feudal right.

1.a Identifying the Litigants

Unfortunately the two parties who were in dispute over these rights are not fully named by Fulgosio in his consilium and a certain amount of detective work is required in order to reveal their identities. Fulgosio refers to the two litigants in the case as a ‘Lord W’ and an unnamed Archbishop. He was similarly unforthcoming about how their dispute had originated. The text merely explains that a sale had historically been made by a similarly anonymous Lord “H” to the same Lord “W” of a feudal possession which Lord “H” had held of his overlord, the unnamed archbishop. This is not much to go on, however a certain amount of information can be gleaned even from these rudimentary facts. On the assumption that Fulgosio was using the real initials of those involved, the letters “W” or “H” would suggest a Germanic or Slavic language forename and not a Romance one. Italian and French have Guiglelmo or Guillaume, for example, not Wilhelm or William. W and H therefore look to be more like the names of lords from Germany, Poland or Scandinavia; or even from Britain. As regards the unnamed archbishop’s identity, here the limited number of metropolitans across Europe can be of assistance. Furthermore, at a later point in the consilium Fulgosio referred to testimony which had been provided in the case by a ‘former’ archbishop. We are therefore dealing with a case which had evidently begun during the archiepiscopacy of one man but had continued under his successor; and although cases before the rota had a sometimes justified reputation for being long drawn out affairs, even allowing for this we would still be dealing with an archbishop litigant who had only recently taken up office at the time of the consilium; say in the previous five years. This reduces the list of possible candidates across Europe for the identity of the archbishop considerably. There are also some directly datable facts contained in the consilium. Both Pope John XXIII and his opponent Gregory XII are mentioned, as are the Council of Pisa and the Great Schism. Furthermore, the manner in which both popes are referred to suggests that they were both still in office at the time that the consilium was written and the legal case was under way. This would all date the consilium to some point between 1410 and 1415. The fact that certain aspects of the case refer to adherents of Gregory XII also further narrows the anonymous archbishop 209 things down, for the areas of Europe where Gregory’s supporters are known to have held out after his deposition in 1409 were relatively few in number. In summary therefore, we are dealing with an archbishop who had been recently elected in 1410–15 and whose province had, in the years immediately after the Council of Pisa, included a significant number of Gregory XII’s followers. In contrast to them, both the archbishop and his predecessor had evidently followed the Pisan line and recognised John XXIII as pope rather than Gregory XII. Comparing this ‘identikit’ portrait against the possible candidates to be found in Conrad Eubel’s Hierarchia medi aevi, only four archbishops are returned as possible matches:3 The Archbishops of Cologne, Dubrovnik, Prague and Ravenna.4 Taking these provinces out of alphabetical order, Prague is a possibility because its archbishop fled his see and was replaced by a new incumbent in 1411. The authority of the Council of Pisa was also not immediately recognised in the province. There is however no record of any active support for Gregory after this change of obedience, whilst the political situation locally was dominated more by Hussitism than with the question of the papal schism.5 Dubrovnik is a possibility only because its archbishop was also one of Gregory’s cardinals in 1409 and was removed from that see as a consequence by Gregory’s Pisan opponent. As with Prague however, this event does not appear to have meant that loyalty for Gregory persisted in an active way locally. The consilium also requires that both former and current archbishop were involved in the case which seems unlikely when, in Dubrovnik, they were two men from rival obediences technically in competition for the same archiepiscopal see. This leaves Ravenna and Cologne which both look like much more likely candidates. Ravenna would have had an archbishop who recognised John XXIII (indeed he was appointed by him)6 but many parts of the province were also among the last places in Europe to remain loyal to Gregory XII following the Council of Pisa. Gregory was also personally resident in the archdiocese, at

3 Eubel, Hierarchia catholica medii aevi, I. 4 My criteria for this search were those provinces where a new archbishop took office between 1409 and 1415 and I have discounted archbishops where no known support for Gregory after the council of Pisa is recorded or where Gregory had never been recognised as pope. 5 Archbishop Zybněk of Prague recognised the Pisan obedience several months after the council of Pisa in the autumn of 1409 and fled Prague in September 1411. Howard Kaminsky, A History of the Hussite Revolution, (London: Cambridge University Press, 1967), 71–74. 6 Trevor Dean, Land and Power in Late Medieval Ferrara: The Rule of the Este, 1350–1450, (Cambridge: Cambridge University Press, 2002), 43. Also see 42–44 regarding the extent of archepiscopal property interests locally. 210 CHAPTER 6

Rimini, under the protection of Carlo Malatesta from December 1412 until his resignation three years later.7 The archbishopric of Ravenna also had its feudal possessions,8 however the archbishop’s secular position was complicated by the existence of the papal state locally with its legate and secular vicar. The impression of the prelate concerned in the consilium being closer to a prince- archbishop however and the probable Germanic first names would point in another direction; that of the Archbishop of Cologne. The Archbishop of Cologne was the very image of the medieval prince- bishop, combining the secular and ecclesiastical rule of a vast and wealthy territory. In April 1414 the long archiepiscopate of Friedrich von Saarwerden had also come to an end and Dietrich of Moers was elected as the new archbishop.9 His election was not uncontested and a minority of the cathedral canons voted for a rival candidate; William of Berg, the Bishop-elect of Paderborn and brother of Duke Adolf of Berg. Both men were, unlike Dietrich, supporters of Gregory XII. Whilst research by Frank Engel suggests that no actively pro-Gregorian faction existed in the Cologne cathedral chapter at this time,10 it was nevertheless the case that the neighbouring archiepiscopate of Trier was a major focus of support for Gregory as were the territories ruled by the Elector Palatine. Both the Archbishop of Trier and the Elector remained loyal to Gregory after Pisa. Although Cologne had in contrast been in the front rank of supporters of the council, with Dietrich of Moers attending the assembly, for example, in person, the patchwork of secular and religious loyalties across the archbishopric

7 Konrad Eubel, ‘Das Itinerar der Päpste zur Zeit des großen Schismas’, Historisches Jahrbuch, 16 (1895), 562. 8 See, for example, Marco Fantuzzi, Monumenti ravennati de’secoli di mezzo, (Venice, 1802), III: 40 & 332. No obvious Ravenna candidate for the consilium dispute is apparent in Fantuzzi’s six volumes of archival material or its continuation by Antonio Tarlazzi, (Appendice ai Monumenti Ravennati dei secoli di mezzo del conte Marco Fantuzzi, (Ravenna, 1876)) with the possible exception of Marquis Albert of Este who was granted a feudum of a fraction of the Tenth collected from lands which he held of the church in 1393: ibid., II, 364ff. 9 Franz Bosbach, ‘Dietrich von Moers’, in: ed. Erwin Gatz, Die Bischöfe des Heiligen Römischen Reiches 1198 bis 1448, (Berlin: Duncker & Humblot, 2001), II: 480–485; ed. Dietrich Kerler, DRTA, (Munich: Oldenbourg, 1878), VII: 236–238. John XXIII confirmed Dietrich of Moers’s election in September 1414: Theod. Lacomblet, Urkundenbuch für die Geschichte des Niederrheins, (Düsseldorf: Voss, 1858), IV: 92–93. 10 Frank Engel, ‘Die Kölner Kirche und das Konzil von Pisa (1409)’, in: eds. Andreas Rutz and Tobias Wulf, O felix Agrippina nobilis Romanorum Colonia, (Cologne: SH, 2009), 46. the anonymous archbishop 211 meant that loyalty to Gregory, whether earnest or opportunist, persisted in several locations. One example was the town of Bacharach on the Rhine where, although the archbishop of Cologne was the feudal lord, the Palatine Elector’s writ also ran.11 It was in the town for example that the Gregorian fundamen- talist Johannes Malkaw preached in December 1413 having fled a process for heresy which had been initiated against him by the pro-John XXIII inquisitor in Cologne.12 In December 1414 Sigismund would also blame his delay in arriving at the Council in Constance on having to address the problems of ‘errant Gregorians’ in the archdiocese of Cologne;13 the question of who was the true Archbishop of Cologne not being without its seriousness for the emperor since it was the Archbishop who would crown him King.14 As a working hypothesis, then, the Archbishop of Cologne, Dietrich of Moers, appears to have been the prelate mentioned in Fulgosio’s consilium. Furthermore, Bishop-elect William of Paderborn and his brother Adolf, Duke of Jülich-Berg are one pair of candidates for the lords “W” and “H” who had exchanged the feudal property at the heart of the case despite it being a feud of the archbishop.15 The other candidates would be Adolf and his father, also named William. Father and son had been in on-off dispute with the Archbishop of Cologne prior to the archiepiscopal election in 1414. A long running bone of contention between the Duchy of Berg and the Prince-Archbishop was the question of secular jurisdiction.16 The duchy was opposed to secular cases from its territory being brought before the ecclesiastical courts of the archbishop. An exemption had been obtained from Pope Boniface IX in which

11 See, for example, the agreement made by the two rulers: Norbert Andernach, Die Regesten der Erzbischöfe von Köln im Mittelalter, (Bonn: Droste, 1992), XI: 276ff. 12 Michael Tönsing, Johannes Malkaw aus Preussen (ca. 1360–1416), (Warendorf: Fahlbusch, 2004), 206–207. Malkaw controversially preached that Gregory was the only true pope and that the sacraments administered by clergy obeying the Pisan popes were invalid. 13 Finke, ACC, II: 198. The disputed succession to the archbishopric of Cologne between the bishop-elect of Paderborn and Dietrich von Moers had also delayed the party, Sigismund’s emissary told the council on 7 December: ibid., 196. 14 Kerler, DRTA, VII, 237. This is something which brings in to perspective Fulgosio’s own later comment noting that an emperor could be crowned by the archbishop of Cologne. 15 “H” would be an understandable way for an Italian jurist to render a forename beginning with “A”. 16 The general dispute went back a long way and pre-dated the schism. See: Axel Kolodziej, Herzog Wilhelm I. von Berg (1380–1408), (Neustadt a. d. Aisch: Schmidt, 2005), 118–119. 212 CHAPTER 6 cases originating within the duchy were prevented from being brought before the archiepiscopal courts.17 There is, then, much circumstantial evidence to support the idea that the archbishop’s opponents “H” and “W” were either Duke Adolf of Berg and his father William, or Adolf and his brother, Bishop William of Paderborn. They were already in conflict with the archbishop and, importantly in the context of the Fulgosio consilium, were also technically supporters of Gregory XII in the aftermath of the council of Pisa. This hypothesis makes even more sense when the text of Fulgosio’s consilium is examined in more detail.

1.b Fulgosio’s Consilium

Like Fulgosio’s contribution to the Marche case which was considered above, the character of the “Cologne” consilium is very much of a jurist responding in a summary manner to points made in a series of papers, testimony and allegationes which he had been passed for consideration and which formed part of an on-going case before the courts. His consilium was thus in part a reply or reaction to those points. The reader of the consilium in isolation soon becomes aware of the incompleteness of the picture presented there and that Fulgosio was responding to matters in the case which can no longer be seen but which have, nevertheless, left traces in the structure and nature of Fulgosio’s reply. The overall sense then is of a document replying to certain legal impasses which the case had encountered and which Fulgosio could help one of the advocates or procurators in the dispute to overcome. Fulgosio states on several occasions in his consilium, for example, that a point which he has just made was written ‘without prejudice’; a statement which brings home the everyday working lawyer nature of the advice which he was providing. His document was one which the other party in the dispute might see and Fulgosio would not have wanted to prejudice his client’s case by appearing to admit a liability on behalf of that client or undermining his rights or claims. The phrase is one which lawyers use for the same reasons to this day in communications which will, for example, pass between, and thus be seen by, opposing litigants. As was customary, Fulgosio began his consilium by summarising the cause of the dispute. The facts were, he explained, that the archbishop had relied on a provincial statute concerning feudal rights, to assert that Lord H could not have sold a feudum which he held of the archbishop without first petitioning

17 Otto Redlich, Jülich-bergische Kirchenpolitik am Ausgang des Mittelalters und in der Reformationzeit, (Bonn: P. Hansteins, 1907), I: 7. the anonymous archbishop 213 the prelate. The archbishop had then issued a judgement against W, who had subsequently purchased the feudum from Lord H. After summarising the case, Fulgosio turned first to consider the verdict which the archbishop had issued and set it aside as invalid by invoking the well-known rule that an individual could not be a judge and a party to a case simultaneously.18 The archbishop had done this by having a verdict handed down by his own court in a case in which he was a litigant. Fulgosio says very little about the provincial statute upon which the archbishop had sought to rely, beyond explaining that it had required anyone seeking a feudal right to appear before the prelate. In effect then, the feudal overlord was insisting on involvement in, and presumably taxation of, changes to the ‘ownership’ of those feudal rights, in what might be termed its secondary market. The description of the provincial statute would therefore fit with the constitution issued by the synod of 1375 held under Archbishop Friedrich of Saarwerden. This asserted the archiepiscopate’s claim to unique jurisdiction over all temporal questions within the lands belonging to the archbishopric.19 Anyone therefore seeking to dispose of a feudal right within the archbishopric without involving the archbishop’s court would have been in breach of this statute. Rulers like the Duke of Berg had opposed this claim to temporal jurisdiction and argued that no secular case from their lands should be brought before the archbishop’s court. It would seem therefore that Fulgosio’s consilium concerned a straightforward contest about secular jurisdiction. Fulgosio proceeded to state that Lord W was conscious of having been in breach of the provincial statute (this statement was probably a legally relevant pleasantry) and had consequentially brought a case before the apostolic see.20 This brought the matter before the rota auditors who had quashed the verdict which the archbishop had handed down.21 Here again this situation would fit with the known actions of the Dukes of Berg in this period. In October 1405 for example and after a period of conflict between father and son, Adolf and his father had agreed to unite against the jurisdictional claims of the archbishop by bringing a suit before the rota which was to be paid for by the levying of an exceptional local tax.22 That suit

18 Fulgosio, Consilia 1607, 32–33. 19 Joannes Schannat, Concilia germaniae, (Cologne: Krakamp & Haeredes C. Simonis, 1761), IV: 519. 20 Fulgosio’s comment about Lord W being aware of the statute in this way was to avoid a charge that, in effect, his appeal was time-barred. 21 Fulgosio, Consilia 1607, 33. 22 Redlich, Jülich-bergische Kirchenpolitik, I: 25*. 214 CHAPTER 6 followed the customary route through the rota courts with hearings before one of Gregory XII’s auditors whilst the pope, like Fulgosio, was in Siena in the winter of 1407. The papers for this case before the rota mentioned the attempted use by the archbishop of a provincial statute as an impediment to their jurisdiction.23 The dispute was still before the rota court in March 1414 when the auditor, Kuneš ze Zvole, struck out the action by the archbishop in the case in answer to a petition from Adolf and his father, William, who was by then deceased.24 It would appear therefore that Fulgosio’s consilium related to the dispute between Adolf of Berg and his father on one side and the Archbishop of Cologne on the other; and that the essence of their contest was that both duchy and archiepiscopate claimed to possess exclusive secular jurisdiction. The duchy had in its possession its papal bull from Boniface IX which upheld its rights, whilst the archbishop sought to rely on the authority of the 1375 provincial synod. With papal approval on their side, it is unsurprising that the Dukes of Berg had sought redress through the rota courts. It was, as it were, a Guelf-like solution in contrast to the Archbishop’s reliance on his own local, or Ghibelline-like, claim to be able to settle the matter before his own courts in Cologne. If Fulgosio’s consilium did indeed relate to this dispute, then certain points follow. Firstly, it would date his contribution to sometime after both Zvole’s verdict of March 1414 and the election of Dietrich von Moers one month later. Given that both Pope John XXIII and Pope Gregory XII are referred to in the way that they are in the consilium, a likely final date for the text would be the spring of 1415. This would make it very probable that Fulgosio wrote his consilium while he was in Constance. Secondly, the consilium would shed new light on what is currently known about the Berg v. Cologne dispute itself. It would suggest for instance that, beneath the lofty theoretical discussions about where ultimate secular jurisdiction lay in north-west Germany, there was a specific item of feudal property or rights which was at issue and which had brought both parties to court.25 This in turn might raise a question about

23 Ibid., I: 7. 24 Heinrich Sauerland, Urkunden und Regesten zur Geschichte der Rheinlande aus dem Vatikanischen Archiv, (Bonn: P Hansteins, 1913), VII: 412. Zvole mentions in his text how the case had been passed from the curia of the “heretical boy” Gregory XII to the Pisan obedience’s rota courts. 25 The feudum concerned is not identifiable but as a conjecture, one might suggest the post of Marshall of Westfalen, a transfer concerning which brought Archbishop Friedrich von Saarwerden and his successor Dietrich von Moers in to dispute with Duke Adolf and his brother Wilhelm from at least 1408 and which continued until at least July 1415: ms. Landesarchiv Nordrhein-Westfalen, Düsseldorf, Abt. Rheinland, Urk. 1192 & 1307. the anonymous archbishop 215 origins. Did the dukes and the archbishop simply come to dispute about a specific property and then, by virtue of having brought their dispute to court, were required to justify their claims to jurisdictional supremacy or autonomy; or was the property dispute more like a test case brought specifically to get the uncertainty about where jurisdiction lay resolved once and for all? One has to be careful not automatically to see the public law issue before the private matter on which it was perhaps based. Courts were nervous about protecting their corporate rights (witness the actions of the merchants’ court in Lucca), and what could appear to be a major contest about jurisdictional supremacy may have simply started as a case of one court, in this case that of the archbishop, having to justify its right to have handed down a particular verdict in a specific legal case. Fulgosio’s consilium then would at least allow consideration of how much the dispute was about claims to temporal sovereignty and how much simply a contest for certain feudal property rights which caused jurisdictional matters to be aired. His consilium shows for example that at an earlier point in time, Lord H had allegedly offered the archbishop first refusal on the feudal property which was being sold, and that in now protesting about the matter, the prelate had apparently changed his mind about it.26 This suggests that bicker- ing over private rights was at the root of the dispute and that the legal case itself brought the more lofty jurisdictional aspects of the situation in to the foreground. Fulgosio next clarified that the archbishop who had made the offer of first refusal and had allegedly had a change of heart, was the predecessor of the current incumbent. The jurist was also clearly in possession of witness testimony in the case from the former archbishop and mentions that ‘he who is now the archbishop’ had brought a case against Lord W even after the latter had brought a suit before the rota romana. The overall impression from Fulgosio’s consilium therefore is of a dispute which had begun several years before, had then been appealed to Rome where it had been delayed for several years but which had been reignited by the new archbishop bringing a new process locally. The rota auditors had then struck this action down. This description of the case history would therefore fit with it having indeed concerned Cologne and with Zvole being the auditor who had struck out the archbishop’s local verdict, thereby reinitiating a case before the rota romana which the Dukes of Berg had first brought in Siena in 1407.

26 “si vellet ipse archepiscopus ipsa bona feudalia emere, paratus erat ei ante ceteros vendere, sin autem nollet emere, ei licentiam vendendi ea bona feudalia tanquam dominus indulgeret” Fulgosio, Consilia 1607, 34 & 35–36. 216 CHAPTER 6

2.a The Impact of Pisa and the Great Schism

Separating the two rota processes of 1407 and 1415 was the Council of Pisa and Fulgosio next provides clues in his consilium to how the council’s actions in seeking to end the schism had impacted the case. Lord W was apparently in possession of documents which had been issued by John XXIII by which the pope had restored him to his rights. These letters are rather confusingly summarised by Fulgosio, but it is clear that what Lord W essentially had in his possession were examples of the documents which were issued after the Council of Pisa to restore those individuals to their rights (benefices and so forth) who had been expelled from them because of their earlier loyalty to either of the deposed popes but who had subsequently transferred to the Pisan obedience. The letters referred, Fulgosio informs us, to all honours, benefices and goods and related to W’s allegiance to “the so-called” which is almost certainly a very enigmatic reference to Gregory XII.27 Fulgosio would have had these documents before him as he wrote his consilium and did not need to explain their content in detail. He was also responding to a criticism levied in the case which can no longer be seen but which must have raised doubts about whether Lord W could indeed use the documents from John XXIII to defend a feudal right. Could a pope issue such documents and restore someone to feudal rights from which they had previously been legitimately ejected? These scattered legal points and references to the pope and Pisa can be used to reconstruct a sequence of events. Lord W had evidently been expelled from his rights by the archbishop of Cologne because he had remained loyal to Gregory XII after the Council of Pisa.28 Lord W had however successfully petitioned John XXIII, Gregory’s opponent, to be restored to those rights. John XXIII and his curia were known to have issued such documents forgiving ‘schismatic’ behaviour and restoring individuals to their benefices and rights. It was a sensible policy for winning over supporters, but would be unwelcomed

27 “In novissimo (i.e. the ninth article which he was discussing) vero nulla mihi videtur dubitatio, cum literae restitutionis in integrum in personam d. W. plenissime factae sint, et plenissimam in integrum restitutionis de adhaesione nuncupati contineant ad honores, famam, beneficiam, bona et caetera huiusmodi.” Fulgosio, Consilia 1607, 38. 28 The period immediately after the council of Pisa was blighted by such actions. In 1411, for example, the pro-Pisan archbishop of Mainz gave the clergy of Worms six months to declare for John XXIII on penalty of seizure of their property: Huckert, Die Politik der Stadt Mainz, 77–78. From the opposing camp, Gregory XII granted the then emperor Ruprecht extensive powers to seize the assets of adherents of Pisa: Weizsäcker, DRTA, VI: 569. the anonymous archbishop 217 by those individuals who had been loyal to the Pisan popes from the start and had perhaps personally benefited from any punishment which had been meted out to those who had been less quick to recognise the authority of the council. In the consilium this type of personal gain as a result of a sequestration event can be detected. Fulgosio mentions that the rights which Lord W had forfeited because of his loyalty to Gregory after the council of Pisa had been latterly transferred to the current archbishop’s brother. Could John XXIII now really issue letters restoring Lord W to those rights despite his former loyalty to Gregory and furthermore do so at the expense of one of his own loyalists like the Archbishop? This sequence of events makes sense in the context of what is known of the situation in Cologne at the time of the council of Pisa. Dietrich of Moers was the current archbishop and a Pisan loyalist. He also had several brothers. It would make sense for one of these siblings to be the beneficiary of any action taken after the Council of Pisa against those, like the Dukes of Berg, who did not immediately recognise the authority of the assembly. Overlaying the fact that a sort of Guelf/Ghibelline tension existed between the archbishop’s local claims to jurisdiction on the one hand and the Dukes of Berg’s apparent tendency to seek redress at Rome on the other, a different explanation for the dukes’ apparent continued support for Gregory XII may therefore be suggested. It may have been the fact that they had expensive cases still open before Gregory’s auditors at the time of Pisa that caused them initially to appear as if they were among that pope’s supporters. Petitions addressed to Gregory, sent for example as a reaction to a verdict issued by one of his auditors, may have looked like expressions of support for Gregory, particularly in the eyes of Pisan supporters like Dietrich of Moers or Friedrich of Saarwerden who were already in dispute with the dukes and who would have been keen to find further reasons for hostility or to aid their suit. Once any confusion about the status of the rota romana post-Pisa had been clarified, and the Bergs’ suits were once again under way there with Zvole, then the dukes would have appeared to switch to John XXIII’s obedience. In other words documents which appear to show particular individuals supporting one pope or another at the time of Pisa may not necessarily be proof of their conviction for that pope’s cause. The individuals could simply have been in the middle of an expensive legal case and, in the turmoil following Pisa, were unsure as to whom they should henceforth send their petitions. By continuing to pursue their case through existing channels, they may then have become marked by their opponents in that dispute as having supported a schismatic, particularly if petitions sent at the wrong time could be cited as documentary 218 CHAPTER 6 evidence of loyalty to that schismatic in a later process. This would have been particularly the case for those whose contact with the curia was ordinarily rather limited. Something like this may have been the background to the Berg v. Cologne case. In his consilium Fulgosio claimed that Lord W and H had obeyed Gregory XII after Pisa simply from ignorance of the facts and had not done so inten- tionally.29 This was a standard and formulaic way to excuse their behaviour and to avoid any suggestion that they had been guilty of deliberately foment- ing schism. However, it could also have reflected the reality of the situation if documents in the case appeared to show them appealing to the ‘wrong’ pope at the ‘wrong’ time. Fulgosio would have been excusing that behaviour as a simple error and not an indication of genuine loyalty to that pope’s cause. The argument that their loyalty was unintentional also helped Fulgosio to interpret John XXIII’s subsequent actions and to fit them in to a more rounded and persuasive narrative. The pope had in effect restored Lord W and H to their rights because that was a just response to those who had innocently erred. This situation was rather different than if the pope had instead pardoned the two men for a pardon was a reaction to someone who was guilty rather than to someone who was innocent. The distinction between acquittal and pardon was important for it would have had a legal effect on the type of restoration available to the two men and also on the status of any property transfers which had occurred in the intervening period. Attempting, however, to cover every angle like a good lawyer, Fulgosio also considered what would happen if Lord W and H had not been ignorant of what had happened at Pisa. In legal terms this would have meant that John XXIII had not restored their property to them because they were innocent and he was just, but instead because they were guilty and he was merciful. This brought Fulgosio closer to very much deeper questions about the schism and its resolution than was ordinarily the norm for jurists at this time. Mostly it was sufficient to argue that individuals like W and H had simply not known which pope was the correct one to obey at the time of Pisa and that the pope had now rectified the effects of their understandable mistake. Going further than this and considering those who were not ill-informed or innocent, but had deliberately chosen to support one pope and perhaps even positively campaigned

29 “Nam etsi Gregorio XII. nuncupato, ut proponitur, adhaesissent post concilium Pisanum, non tamen id animo fovendi schismatis et proterva atque prava intentione fecerunt: Sed cum in ipso Pisano Concilio certis ex causis non fuissent, nec de ejus veritate existerent informati, ut de veritate et justitia plenius instruerentur, veritatem et justitiam cognitam sequi prorsus dispositi, aliquantulum distulerant.”, Fulgosio, Consilia 1607, 39. the anonymous archbishop 219 for his cause, brought in the whole issue of right and wrong allegiance during the great divide. That Fulgosio took this step in a consilium which was in all probability only a brief bullet-point response to documents which had been past to him for consideration may be a sign of his relative inexperience in canon law. It is possible, however, that he had simply found himself addressing a problem which the natural flow of his legal argument had led him in to. Logically it made a lot of sense after one had stated that the Lords W and H were innocent supporters of Gregory and thus that the document that John XXIII had issued to them was an acquittal rather than a pardon, to then consider the legal question; ‘But what if it was a pardon?’ What if John was forgiving the two lords for having really been fully-paid-up supporters of his rival for the papacy and not just ordinary people unintentionally and innocently caught up in the confusion of the schism? Fulgosio was also forced to discuss the idea of a pardon because of the particular circumstances in the case. Following the sequestration of W’s rights, the property concerned had been transferred to the archbishop’s brother. The precise legal nature of the restoration which John XXIII had thereafter made to W might affect whether, during the period when the property had been sequestrated, the archbishop had been able to pass good title to his brother. The cause of the restoration – acquittal or pardon – might affect, in other words, whether that transfer had itself been void or voidable. Its legal position depended on whether W had been rightly removed from his rights but then later pardoned (gratia) for his crime, or had been wrongly expelled from those rights since he was innocent and then restored as an act of justice ( justicia). Like a good lawyer Fulgosio made sure to note that his statement raising the possibility that John had restored Lord W as an act of gratia rather than justicia was made ‘without prejudice’: he was not admitting that W had indeed been guilty. His primary argument was that W was innocent, however should that argument fail a second line of defence was possible. One could argue that even if Lord W had known about the council of Pisa but had been guilty of actively disobeying it, that this was a forgivable error given the general complexity of the schism. There was the legally recognisable likelihood that an individual would have failed to distinguish the genuine pope from the fake in the three- man hall of mirrors which was the late schism.30 In such circumstances his error, deliberate though it was, could be pardoned.

30 “Deinde etiamsi foret (sine praejudicio veritatis) restitutio hujusmodi potius gratiae quam justitiae, quanquam diversa sententia verior sit, propter probabilem ignorantiam, 220 CHAPTER 6

2.b Guaranteeing Property Rights in the Settlement of the Schism

Even a papal pardon would, in the circumstances of the schism, Fulgosio continued, be motivated by a just cause. This was all an attempt on Fulgosio’s part to defeat the idea that the archbishop’s brother could have legally acquired the sequestrated property. If he could show that, regardless of whether one looked at it as a pardon or as an acquittal, John XXIII had restored Lord W to his property as a legal act and not just as one of forgiveness, then the transfer which the archbishop had made to his brother would be struck out. The idea that even a pardon was an act of justice however required Fulgosio to make a series of unsentimental and matter-of-fact comments about how the public law problem of the schism should be healed. This was not a sophisticated analysis derived from a theologian’s consideration of the essence or necessity of church unity but the cold, unemotional remarks of a civil jurist looking at the schism and seeing its consequences for private property and rights. John had issued pardons like that potentially to Lord W, Fulgosio noted, in order to help bring the schism to an end, by returning to the true and catholic church those who had been led astray. It was legally right therefore that such pardons were given to those who were guilty of obeying one of John’s rivals for the papacy if this brought those individuals back to the true church led, as John XXIII and his followers viewed it, by him. Because that was a just cause, even if those individuals had been genuinely guilty, John’s restoration of their rights, although it looked like a pardon, would in fact have been an acquittal. To explain this idea, Fulgosio went one step further. John’s action was also just because, he said, in order to win back the errant for the cause of unity it might be necessary firstly to restore them fully to their rights. They might otherwise not return to the true church if their property and other rights were not restored to them beforehand (“cum fortassis nec aliter ad unitatem redissent, quam si priora eorum bona, jura et feuda restituta fuissent”).31

quam quisque praetendere potuit de veritate et justitia papatus et alterius contenden- tium”, ibid., 40. For another example of the phrase “sine praejudicio veritatis” being used by a jurist, see the consilium written by Simon de Perugia printed in: Ziletti, Criminalivm Consiliorvm, II: 91. 31 “Nichilominus dici posset justa causa motus Apostolicus ad ejusmodi restitutionem, et impondendum silentium his quibus impositum est, et in quos medio tempore fuerant alienata ipsa feuda, ut scilicet caussa schismatic minuereretur, et multarum deviantium ab apostolic sede, atque aberrantium Animarum saluti prospiceretur, et ad unitatem verae et catholicae Ecclesiae redderentur, cum fortassis nec aliter ad unitatem redissent, quam si priora eorum bona, jura et feuda restituta fuissent”, Fulgosio, Consilia 1607, 40. the anonymous archbishop 221

This was an extraordinarily honest depiction of the real world situation facing John XXIII in the period between the councils of Pisa and Constance. The Pisan line of popes could count on widespread support across Europe in that period, however if it was to complete the work of union for which the Council at Pisa had been convened, it needed to win back those who for whatever reason had not accepted the Pisan revolution and had remained loyal to Gregory XII and Benedict XIII. War, even under the banner of crusade, was one way to achieve that and John XXIII certainly attempted to obtain allegiance by force of arms in the years between Pisa and Constance, however if that policy failed then, as Fulgosio’s arguments intimated, it would be necessary to entice individuals towards the Pisan cause by other means. It might be necessary, for example, to guarantee their property rights as a precondition to their desertion from one obedience camp and crossing over to support John XXIII. One might, in other words, have to recognise in law the validity of individuals having once belonged to opposing obediences during the schism by arguing, as Fulgosio had, that their actions even when they were intentional were innocent given the strange circumstances of the schism. This in turn would lead to a form of legal recognition for the divergent obedience communities to which those individuals had belonged. Guaranteeing such property rights in this way would indeed be key to the final settlement agreed between the three obediences at Constance. Prior to his resignation in July 1415, for example, Gregory XII would require that the rights of all those who had obeyed him were formally recognised.32 No obedience was willing to see the actions which had been taken in the previous forty years of schism by their pope considered invalid with the consequential possibility of a life time of property transactions now being unwound. Fulgosio’s comments show that he was already aware of this hard reality. It would be necessary to re-assure all those who had acquired property or benefice rights during the schism that their private legal position was secure before finally dealing with the schism as a whole. The logic of Fulgosio’s argument that even those who had genuinely supported John XXIII’s rivals for the papacy and, in those terms, been guilty could be justly forgiven without an effect on their rights was that belonging to a different obedience in the schism or supporting a different pope could be considered legally valid. It would have had no effect on one’s rights. As Fulgosio put it very starkly as he brought his consilium in favour of Lord W to a close, “it has been hitherto the case that, because of the great diversity of views in this hateful and inveterate schism, if any province, city, or other communities and

32 MANSI 27, 741. 222 CHAPTER 6 individuals should wish to return to the unity of the Roman church, then their existing property rights acquired before this time should not suffer detrimentally at all”.33 This matter-of-fact statement, given in the context of a private legal case, was effectively a summary of how the conflict of the schism was to be resolved. Firstly the private rights of those who had been on opposing lines were upheld and their legal validity acknowledged and then a settlement between the conflicting obedience groups could be agreed.34 This was the solution which would underpin the settlement which was reached with both Gregory XII’s obedience in 1415 and again with Benedict XIII’s adherents in 1417. Being bolder, one can see the same peace settlement model in the religious peace settlements of the fifteenth and sixteenth centuries. Within the confines of their own juris- dictions, what had been enacted by one side of the religious divide would be legally upheld and recognised by all sides as valid. One could even go further still and state that the kind of settlement mooted by Fulgosio which guaran- teed private rights was a very early example of the secular world’s much later solution to the whole question of religious division: its privatisation as a matter solely for the individual under the law. This ‘secular’ solution can be detected even in Fulgosio’s argument about those like Lord W who had wilfully obeyed the ‘wrong’ pope. In the eyes of the civil law, their choice of obedience in the schism was to have no effect on their property and other rights. It was as if the question of which pope to obey was not a public matter; for it left no trace on private property rights at all. If my choice of religion has no legal effect on my property, employment or other rights, then that choice is essentially a private matter. Fulgosio and others were effectively saying that, in order to win the re-unity of the church, the choices which individuals had made in the schism would have no effect on their private rights. They were thus, in terms of the consequence for their private rights, free to choose which pope to obey.

33 “et ita hactenus ex facto servatum, propter dissentientium multitudinem in ipso invet- eratissimo et impiissimo schismate, ut si qua provinicia, civitas, vel aliae universitates et homines ad ecclesiae romanae redire voluerint unitatem, nihil ex praeterito in suis prioribus bonis detrimenti aut periculi patiantur.” Fulgosio, Consilia 1607, 40. The transfer therefore to the archbishop’s brother was therefore ineffective and Fulgosio closed by stating that Lord W had more right to the feudal property than the archbishop or his brother. 34 Upholding the private rights of those who had been on different sides of the obedience divide was not without controversy for it could mean, as was the case between Lord W and the anonymous Archbishop, that those who had been granted property sequestrated from others because of their disloyalty now saw that property disputed. See: Cable, ‘Resolving benefice disputes’, 328–331; 372–380. the anonymous archbishop 223

There is, of course, an anachronistic aspect to this analysis. Fulgosio was not directly discussing the schism or how to end it, and much less theorising about the principle of toleration. He was simply providing legal arguments to help one party in a dispute over a feudal right which just happened to have been affected by the schism. It was that circumstance which determined what he would write. His arguments were like a liquid flowing in to the mould made by the real world and taking on therefore the form which it prescribed. This sense of someone feeling their way forward, moving in to areas which the circumstances of the case and their own situation with respect to it required, is much more visible in the kind of quick responses to a legal situation like the consilium which Fulgosio wrote for the ‘Cologne’ case. There was no theory therefore of toleration, nor a theory about how in general religious communities at odds with one another should be reconciled by recognising their respective rights, guiding Fulgosio from the start; these were just matters that emerged out from the situation. Because Fulgosio had to defend someone restored to a feudal title by a pope whom he had once not obeyed, he had to show how that restoration was legally valid which meant showing that private rights of those not obeying the ‘right’ pope had remained valid in spite of their allegiance.

2.c Dating Fulgosio’s Contribution

Given the fact that Fulgosio’s consilium addressed former supporters of Gregory XII in receipt of a pardon from John XXIII, together with the probable identification of the case as being that between Berg and the Archbishop of Cologne, it is highly likely that the jurist wrote the document whilst he was at Constance.35 The argument that Fulgosio used to defend the validity of the legal title of the one-time Gregorians must surely pre-date, for instance, the decrees which were issued at Constance in July 1415 when Gregory tendered his resignation through his representative, Carlo Malatesta. Had the consilium post-dated this, Fulgosio could have availed himself of the controversial decree on ‘real obedience’ which was issued at that time to confirm the legality of property and other transactions within the territorial limits of Gregory’s

35 Other advocates would be involved in providing formal legal opinions for private cases arising in Cologne whilst at Constance. See, for example, the subscription of Fulgosio’s colleague Ardicino della Porta in 1416 together with theologians at Constance and lawyers from Cologne in a verdict cum vote on a question arising there: Emil Steffenhagen, ‘Ein mittelalterlicher Traktat über den Rentenkauf und das Kostnizer Rechtsgutachten von 1416’, in: Beiträge zur Bücherkunde und Philologie August Wilmanns zum 25, März 1903 gewidmet, (Leipzig: O. Harrassowitz, 1903), 359–360. 224 CHAPTER 6 obedience and to thereby safeguard them from the detrimental effect of any countermanding action which had been taken by John XXIII.36 This was one of the solutions developed by the Council of Constance to heal the schism and the fact that Fulgosio’s consilium instead used the earlier notion of John XXIII attempting to heal the schism by pardoning those who had supported his opponents would suggest that the consilium comes from the period between 1410 and early 1415. The timescales of the Cologne dispute, with Archbishop Dietrich elected in May 1414 would also place the consilium towards the end of that year. The delegation from Cologne arrived at the assembly in December 1414, while those from the Gregorian obedience wishing to gain entrance to the council had first arrived, although not been admitted to the council, a few weeks earlier. A probable terminus ad quem for Fulgosio’s contribution was December 1416. In that month a separate legal process which the disputing parties in Cologne had brought before the imperial courts in addition to the case before the rota reached its conclusion with a conciliatory verdict.37 On the assumption that any rota process would have withered away at this point, then Fulgosio’s contribution would pre-date it. Whilst the context for Fulgosio’s consilium was probably a case on-going before John XXIII’s rota auditors at Constance, any involvement with both the Archbishop of Cologne and former Gregorians at this time would be very

36 For a summary of the decree on real obedience and its application, together with the difficulty of ascertaining where the territorial boundaries of an obedience had been within which rights were protected and when they had been effective see: Cable, ‘Cuius regio . . . eius papa?’, 73–81 and Idem, ‘Resolving benefice disputes’, 313–315; 405–413. 37 The verdict is printed in: Lacomblet, Urkundenbuch, IV: 107–110. The first two points in the verdict chime with the case considered by Fulgosio. The archbishop accused Adolf of Berg: “so sol der hertzog vom Berg sine lehen empfahen, die er hat von dem stifte von Coln und sol daruber ouch mit sinen briefen einen schien geben”; to which Berg responded that he would behave towards the feudum held of this archbishop in exactly the same way as he had to those from his predecessor, Friedrich (von Saarwerden). The verdict stated that the Kammeramt and other feudal rights which the duke had received of the new archbishop should be dealt with in the same way, transferred in writing and on oath, but without any further written, presumably legal, requirements. The second point considered the contested question of jurisdiction over the Bergische lands. This would again suggest that the feudal right at the centre of the row between the Duke and the Archbishop was related to the office of Marshall of Westfalen (which Adolf of Berg did hold during this period) and that Berg was resistant to having to seek any additional legal permission from the archbishop on receipt of this right than he had hitherto been required to perform under his predecessor. A further document from July 1415 also suggests that the title of Westfalen Marshall was central: ms. Landesarchiv Nordrhein- Westfalen, Düsseldorf, Abt. Rheinland, Jülich-Berg, Urk. 1307. the anonymous archbishop 225 interesting. The leading individual in the Cologne delegation to Constance was the long-standing curial official and now significant curia critic, Dietrich of Niem and it is quite likely that he would have been involved in some capacity with the dispute between the Archbishop of Cologne and the Dukes of Berg. He had acted as a go-between for the archbishop at the papal court for many years in similar cases.38 Any contact between Fulgosio and Niem in this period would be interesting given the extensive contribution by Niem to reform proposals and debate at Constance in its early months. Fulgosio was however providing arguments in his consilium for the Bergische party in the case and not Cologne and whilst this does not necessarily indicate that Fulgosio had contact with Gregorian supporters at Constance,39 it does show that he was willing to provide advice to them or those who had once supported Gregory. His consilium for the Marche probably written prior to Constance had also shown that, but being prepared to make similar conciliatory arguments to the rota at Constance was something quite different to advising on a local property dispute for the tribunal of the Marche. Even though these were private law cases, they would indicate that Fulgosio was no Pisan-hardliner, unsympathetic to any deal with supporters of Gregory XII or for that matter Benedict XIII. On the contrary, the ‘Cologne’ consilium indicates that Fulgosio had at his disposal, and was happy to use, a series of arguments which would defend the legal position of those who had stood in opposition to John XXIII or the Pisan obedience. His argument that it was hard in the schism to discern the identity of the rightful pope was highly conciliatory and the kind of thing which men like Pierre d’Ailly were arguing in late 1414 as hearts and minds at the council were gradually swayed away from seeing Constance as purely the affirmation of Pisa, completing its work to unite the church under John XXIII, and more as a new kind of council altogether; one that would ultimately view John as just another contender for the papacy rather than its rightful and unique occupant.

38 Niem wrote from the curia at Lucca in 1408, for example, to Cologne on the same day as a judgement in the Berg v. Cologne case was passed: Andernach, Die Regesten, XI: 589–590. 39 The precise position with regard to the schism of the duke of Berg at this date is unclear, but he was still being listed by one writer in January 1415 as within the Gregorian camp: Finke, ACC, III: 52. Adolf of Berg had nevertheless received a number of concessions from both Alexander V and John XXIII, in the inter-conciliar period, as for example in April 1413: ms. Landesarchiv Nordrhein-Westfalen, Düsseldorf, Abt. Rheinland, Jülich-Berg, Urk. 1218 & 1263. The ‘pardon’ discussed in Fulgosio’s consilium would fit therefore with this rather unclear situation regarding obedience. CHAPTER 7 Fulgosio and the Defence of Pope John XXIII at Constance

“Cum essem in civitate Constantie deliberetur de Joanne pape et cum essem pro eo plura argumenta feci”

1 Papal Simony

Fulgosio’s private support for national block voting and his conciliatory advice with respect to the schism in the ‘Cologne’ case indicate that he was not a slavish devotee of John XXIII’s cause at Constance, but had both sympathy with Sigismund’s somewhat alternative plans for the assembly and an understanding of the less hardline options for bringing the schism to an end. It would appear however that Fulgosio nevertheless increasingly became an advocate to whom John and the curial party turned in order to defend the pope as hostility to the pontiff grew largely in response to John’s perceived reluctance to end the schism by resigning his title either in conjunction with his two opponents or as a gesture designed to encourage them to follow his magnanimous example. In his commentaries, Fulgosio explained one of the charges levelled against the pope with which he had been involved at Constance. He informed his students there that he had taken part in a disputatio at the council about whether the pope was, or could be, guilty of simony. This was a question, Fulgosio told his class while lecturing on Dig.1.14.3, which was ordinarily left to theologians. “I remember however when I was at the council of Constance that several debates took place about a charge of simony which was specifically made against John [X]III. And I contributed some things to the debate, even though I’m not a theologian.”1 This episode or one very like it clearly left a mark on Fulgosio since, a decade or so later in his less conversational 1423/4 Digest commentary, he still remembered his actions at Constance in defence of the pope. Discussing the text

1 “Memini tamen cum essem in Constantiensi concilio, quia hoc specialiter imputabant Joanni tertio [sic] quod erat simoniacus, de hoc esset aliquoties disputatum: et aliqua circa hoc arguebam, licet non sim theologus”. DIGEST I, 23r

Dig.1.14.3 there again, he would remark: “when I was in the city of Constance, there was a debate about Pope John and when I was [the advocate] for him, I made many arguments.”2 There were several ways in which John XXIII could have been accused of simony. His apparent disinclination to cede his claim to the papacy could, for example, have been considered to constitute such a crime. To refuse to cede the papacy when the pope had reason to believe that such an action would lead to the reunion of the church, might be seen as comparable to seeking an ecclesiastical office for personal gain at the expense of the public good and thus the behaviour of a simoniac. There were however also more straightforward accusations of selling church property directed at John XXIII. The charge that the pope was too greatly under the influence of his financiers and others with a financial interest in the papacy and church property was levelled against John as early as December 1414 when delegates demanded that the pope’s assistants should have, in a phrase still used in similar contexts today, “clean hands”.3 On 8 March 1415 a pamphlet was pinned to the doors of the episcopal palace in Constance effectively protesting against John’s over-reliance on his Florentine bankers to whom he was heavily indebted and with whom he had deposited mitres and other church trea- sures as security against his debts.4 There were several occasions, therefore, when Fulgosio may have been required to contribute to a debate about papal simony or to defend the pope against such charges while he was at Constance.5

2 “Cum essem in civitate Constantie deliberetur de Joanne pape et cum essem pro eo plura argumenta feci”, ms. Biblioteca Marciana Venezia, Zan 513, 39r. 3 Hardt, Magnum oecumenicum, III: 24. 4 Christ had thrown the money changers out of the temple, the pamphlet said, but John had let them back in: Ursinus Durand and Edmund Martène, Thesaurus novus anecdotorum, (Paris, 1717), II, 1622. John’s pontificate would prove to be the making of his Medici bankers with whom he had for instance, deposited two papal mitres and other plate in 1412: George Holmes, ‘How the Medici became the Pope’s bankers’, in: ed. Nicolai Rubinstein, Florentine Studies. Politics and Society in Renaissance Florence, (London, 1968), 362–371. In 1418 the council appealed to the Constance magistrate Warnero Ehinger for the return of gold which John had deposited with him (Franz Miltenberger, ‘Versuch einer Neuordnung der päpstlichen Kammer in den ersten Regierungsjahren Martins V.’, RQ, 18 (1894), 440), whilst the return of two mitres used as security by John for other loans was demanded in 1419: Finke, ACC, III: 291–292 with one jurist becoming involved to distinguish between the pope’s private and public personae: Cable, Real and Personal Obedience, 432–433. 5 Simony was an area of concern for reformers at the council, prompting several tracts and interventions on the matter. Jean Gerson wrote a tract on the question, for example, in October 1415 (Brian Patrick McGuire, Jean Gerson and the Last Medieval Reformation, 228 CHAPTER 7

In so-doing he may even have had to use his knowledge as a civil lawyer versed in the realities of Venetian finance and commerce to explain that popes should be able to borrow money from time to time and to secure those loans with church property. However the details of the specific debate in which Fulgosio took part in which the issue of papal simony was raised are not apparent.

2 Fulgosio’s Defence of John XXIII

Fulgosio was clearly aware of the unusual situation of a secular lawyer like himself being called upon to debate matters touching on the papal office and when, if and to what extent charges could be brought against a pope by a general council. This and comparable questions about papal accountability had been extensively aired during the long years of schism; with much analysis building on the solid foundations which, as Brian Tierney showed, had already been laid down by canon lawyers of the preceding generations.6 In the build up to the council of Pisa, the consilium of Paolo da Castro which Fulgosio had counter-signed had employed several of the arguments identified by Tierney which justified taking action against a notoriously intractable or criminal pope.7 At Constance however, as his remarks in the 1423/24 commentaries indicate, Fulgosio had presented arguments on behalf of the pope (“pro eo”) rather than against him. In 1407 he had put his name to the argument, for example, that the then-pope’s reluctance to renounce his title claim was a potential grounds for his judgement by a council.8 As an advocate at Constance in 1415 however, Fulgosio would be required to defend John XXIII against very similar accusations of feet-dragging with respect to the solution to the schism known throughout the period as the via cessionis.

(University Park, PA: Pennsylvania State University Press, 2005), 253). It was also a crime with which John XXIII was charged at the time of his deposition. 6 Brian Tierney, Foundations of the Conciliar Theory, (Cambridge: Cambridge University Press, 1955), 47ff. 7 That for example, if Gregory XII refused to honour his sworn promise to meet his rival in Savona and negotiate an end to the schism that this would be cause for the cardinals to convene a general council to consider the pope’s apparent public perjury, incorrigibility and notorious criminality. He would thus have fallen foul of the well-glossed and studied pro- visions within the text si papa [D.40] and could be judged by the council. See: Castrensis, Consilia, 213v. 8 Ibid., 213v. The only technical difference between the position of the two popes was that Gregory XII had sworn an oath to cede the papacy at the time of his election and was thus additionally accused of perjury in failing to unite with his contender for the papacy and either jointly resign with him or resign unilaterally. The Defence of pope john xxiii 229

Although it would have been his duty as an advocate which would have obliged him to present the case for the pope, (to advocate in other words ‘for him’ in the debate), Fulgosio was nevertheless an individual with close personal ties to the papal curia. It is quite probable that he had first arrived at the council in the company of the papal party and he owed his appointment as an advocate at the council to John XXIII. Despite clear indications that he was also in contact with Sigismund and others at Constance, he was therefore very much a man of the papal establishment at the council; a position which the long-standing Guelf credentials of his family may have further strengthened. A letter written on 15 February 1415 by a Cologne delegate reporting on events at the council provides a good insight in to Fulgosio’s perceived position with respect to the curia at the time. By order of the emperor, the Cologne delegate informed his correspondents, the English, French and German nations had been instructed to meet the Italian nation where it was in session and to press the delegates there to support the idea of the via cessionis. Bishops from both sides spoke on the matter and then Raffaele Fulgosio rose, the Cologne delegate reported, to confirm what an Italian bishop had said regarding the pope’s intentions. Fulgosio, “whom the pope has controlled and who is privy to the pope’s thoughts”, added that he had only this morning spoken with the pope who had expressed his commitment to bringing peace to the church, even if this was achieved through unilateral resignation. He had told Fulgosio furthermore of how he felt that the Holy Spirit would never allow him to be deviated from this goal and of how he wanted to say mass and implore God with all his heart to that end.”9 The Cologne delegate also reported that Fulgosio’s advocatorial colleague, Pietro Ancharano, reiterated the pope’s strong desire to re-unite the church by all means, even to the extent of sacrificing his own title claim. Both Fulgosio and his fellow one-time, putative prostitution tax-farmer, Ancharano were clearly close enough to the pope to speak for him and to act as go-betweens presenting information to the council whilst being in direct

9 “Postea quidam excellens juris utriusque doctor dominus Raphael, quem papa adduxit, et est sibi multus secretus, illud [what a bishop had just said] amplius confirmavit, dicens inter cetera, quod eodem mane sanctissimus dominus noster papa dixisset, quod omnino vellet dare pacem Ecclesiae, etiam per viam cessionis, et quatenus Spiritus sanctus numquam per- mitteret eum cadere ab illo proposito, vellet celebrare missam, et pro illo divinam majesta- tem toto corde implorare.” Durand and Martène, Thesaurus, II: 1613. This report can be compared to a separate account of the events of the same day as printed by Finke (Forschungen und Quellen, 257–258) in which Fulgosio, Ancharano and two bishops rose to relay information on John’s response to the council. 230 CHAPTER 7 contact with the pontiff. Such a diplomatic role for both advocates would have matched well with advocacy of the pope’s cause in legal terms before the Italian and other nations where the pressure was intensifying on John XIII in February 1415. It was for one of the debates concerning John’s resignation at this time that Fulgosio composed a short, advocatorial tract rejecting the idea that the pope should be required to cede. The tract was written shortly before the exchanges recounted by the Cologne delegate on 15 February in which John appeared to have accepted the idea of unilateral cession.10 In it Fulgosio considered a question very similar to the one which Paolo da Castro had examined in his 1407 consilium: Was the pope obliged to resign if that would help to re-unite the church? Unlike the earlier consilium, Fulgosio’s tract was a more disputational document which listed shorter, bullet-point arguments which it can well be imagined being used by a lawyer in an oral debate or disputation on behalf of one side against an opponent charged to put the case for the opposing point of view. The tract began by stating that it was written in Constance “pro Johanne XXIII”;11 echoing Fulgosio’s later comment that he provided many arguments for the pope’s side in debates. Whereas the 1407 consilium was more verdict- like in character, providing legal justification and support for the action which the college of cardinals were then about to take, the Constance tract was more partisan in nature and constituted little more than a series of arguments to present one side of the argument in a disputation. Stylistically there are therefore comparisons to be made with the paper which Fulgosio wrote for the Bergische party in the Anonymous Archbishop case. In that document however Fulgosio had presented arguments which were highly conciliatory towards John XXIII’s Gregorian foes and which effectively recognised the legality of the property rights which they held and should continue to hold in spite of their support for John’s rival for the papacy. In his document defending John at Constance, however, Fulgosio would have to present a rather more uncompromising ‘Pisan’ position. Here the Council of Pisa was referred to as having brought the schism to an end after having considered the matter fully, maturely and with the help of the Holy Spirit. Gregory XII and Benedict XIII had been deposed and the church reunited around

10 The tract is partially printed in: Finke, ACC, III: 109–113. I have worked from one of the three manuscript sources for the tract: ms. Österreichische Nationalbibliothek, 5097, 264r–266r. The text is also discussed in: Franzen, ‘Einigungsbemühungen und konziliare Gedanken’, 93. 11 Finke, ACC, III: 109. The Defence of pope john xxiii 231 the Pisan obedience’s pope. There was thus, Fulgosio argued, no ‘schism’ in the church for John to end by his resignation except for the de facto disobedience of the two “ejectees”, i.e. the deposed popes Gregory and Benedict, and the de facto failure to impose the Pisan settlement.12 This was, in short, the archetypal hard-line ‘Pisan’ position. The council in 1409 had ended the schism by deposing its two competing popes and all that was now required was to hammer home that victory by compelling those who continued to obey the two ‘ejectees’ to concede. John XXIII was not therefore obliged to resign in order to achieve this since his papacy and that of his predecessor Alexander V had represented the end of the schism not its continuation. The two obdurate contenders deposed at Pisa were the schismatics; and it was they who should be required to abandon their fake title claims, not John. Fulgosio did summarily present the opposing argument. He cited the argument once developed by Teutonicus that a bishop who was guilty of a grave scandal could, for example, lose his rights and title on the basis of the canon ‘Si forte’ [D.65.9]. A pope however, could not be coerced to resign Fulgosio maintained unless he was deviant from the faith.13 Fulgosio effectively restricted the conditions on which a pope might be compelled to give up his title or be proceeded against judicially to a strict and uninterpreteted reading of the canon ‘si papa’ [D.40]. In Paolo da Castro’s consilium eight years before, the question of doctrinal error had not entered in to the discussion. There ‘si papa’ had been used to support the argument that the pope then under examination, Gregory XII, had brought scandal on the church and that his cardinals were thus permitted to convene a council to assess his behaviour.14 Moreover, Castro had maintained that Gregory was obliged to resign his office because the obligation weighing on him was so well publicised that even if he did have perfectly valid reasons for delaying doing so he could still be considered a public criminal and was likely to be judged as such by a council.15

12 “Non est igitur amplius scisma respectu duorum eiectorum nisi de facto et propter poten- ciam violentam et defectum execucionis, non ex iure set ex facti potencia. Non est igitur compellendus Johannes cedere”, ibid., III: 112. 13 “papam non posse ex ulla causa vel crimine deici, nisi cum sit a fide devius XL.di. si papa [D.40]”, ibid., III: 111. On the use of ‘si forte’ as the justification for action against a negligent bishop and pope by Teutonicus, see: Tierney, Foundations, 119. 14 “Sed debent (i.e. Gregory’s cardinals) provocare concilium, ut provideatur quid agendum sit, cum videant ipsum esse in notorio periurio et voti fractione et incorrigibilem et ecclesiam ex hac scandalizari. argument. in c si papa . . .”, Castro, Consilia . . . volumen, 213v. 15 Castro wrote: “concludo incidenter quod papa est obligatus ad renunciandum” and that whatever reason Gregory provided for his not meeting his obligations “sint de se verae et 232 CHAPTER 7

In his defence of John XXIII, however, Fulgosio had not used such arguments, but instead presented the argument that, heresy notwithstanding, a pope could not be deposed for his crimes or negligence.16 It would appear therefore that Fulgosio was being personally inconsistent in his reaction to the events of 1415 and those of 1407. This was in spite of the fact that the accusations that John was putting obstacles in the way of the via cessionis were becoming as loud in 1415 as they had been against Gregory XII and Benedict XIII eight years before.17 One technical difference between the popes in 1407 and John XXIII in 1415 was that the former contenders had mutually sworn oaths to resign and could thus be considered to have perjured themselves in not meeting their obligations; however it was only a small step from the specific obligation of an oath to argue that John XXIII had a general obligation to act to bring peace and unity to the church which was just as binding upon him. One critic indeed made this point in February 1415 at around the time that Fulgosio wrote his defence.18 It would have been perfectly possible therefore for Fulgosio to have advanced similar arguments at Constance to those which he had counter-signed when he was in Siena eight years earlier. It could be argued that the slight difference between the situations in which John XXIII and Gregory XII found themselves meant that Fulgosio had elaborated a sophisticated theory which only supported action against papal negligence when the pope in question had imposed specific obligations on himself by swearing an oath which he had subsequently broken and that, in the absence of self-imposed papal restrictions, no one else had the authority to hold him to account. It seems more likely, however, that Fulgosio was not refining the details of his own theory of the terms of papal accountability but was simply presenting the arguments which defended the pope in 1415 as a good advocate was required to do. To

iustae, tamen quia notorie non sunt, sed dubiae, debet in isto dubio reputati papa notorie criminosus, ut stetur ei quod notorium et liquidum est non ei quod est dubium quousque per concilium fuerit hoc declaratum.” Ibid., 213v. 16 “Itaque propter crimen suum excepta heresi, quamquam magnum et detestabile, non potest papa deponi, eciam si foret ecclesie inutilis, negligens et remissus”, Finke, ACC, III, 111. 17 See, for example, the anonymous tract of February 1415 printed in: ibid., III: 98. 18 “Duo de papatu contendentes inter se et contra d. nostrum papam Johannem XXIII pro bono pacis ecclesie iuri pretenso in papatu tenentur cedere non solum obligacione generali de iure naturali et divino, set eciam obligacione speciali ex iuramento et voto . . . Licet dominus noster papa ex predicta speciali obligacione ad illum minime teneatur, tamen generali obligacione predicta teneretur in certo casu vero iuri suo cedere pro bono ecclesie et scismatis extripacione.” Ibid., III: 98–99. The Defence of pope john xxiii 233 suggest that the two documents from 1407 and 1415 taken together constituted the fine tuning of a theory would be to treat both texts as of equal weight, unaffected by the different contexts and circumstances which gave rise to them. The theory which such an approach would create is therefore an artificial construct created by an insistence that the two documents should show the jurist remaining consistent in his political thought and with the ‘theory’ emerging as the product of this fusion of the two texts to the effect that Fulgosio supported action against a pope only when the pope had, as it were, self-authorised that action through his failure to honour his own oath. If it is accepted however that Fulgosio was writing the texts in two different circumstances, once as an advocate and once as a co-signatory to a more judicial consilium, then the fact that Fulgosio made pressure against the pope to resign less legitimate in one document but supported action against a pope for essentially the same shortcomings in the other takes on another sense. He was simply writing whilst employed in different roles; with the jurist obliged as an advocate at Constance to present the arguments which supported John’s cause. This acknowledgement of the advocatorial nature of Fulgosio’s defence of John XXIII can be further observed in the rhetorical character of the closing arguments which Fulgosio proceeded to make in his tract. This was a reductio ad infinitum argument much used during the schism by those who objected to the via cessionis.19 If authentic popes were obliged to resign their legitimate offices every time that they were opposed by imposters, Fulgosio argued, then there would never be an end to the matter. John XXIII would resign to be replaced by a new pope who would then, if John’s two rivals had still not resigned, be himself compelled by the council to give up his legitimate claims as well. A sense of how much of an advocate’s job involved being a rhetorician emerges from the manner in which Fulgosio pressed home this ‘ad infinitum’ point. If the council were to proceed against John XXIII for his refusal to resign, “what then?”, Fulgosio asked. “What absurdity it would be to have an infinite number of elections like this, where each new electee was then compelled to

19 See, for example, the variation on the theme made in 1408 by Konrad von Soest and Job Vener in the document known as the ‘Heidelberg Postillen’: Weizsäcker, DRTA VI, 403. The authors asked why, if cession was the solution to protracted, irresolvable disputes, the kings of England and France then contesting the crown of France, should not both cede. On the authorship of the Postillen, see: Heinrich Heimpel, ‘Konrad von Soest und Job Vener’, Westfalen, 51 (1973): 115–124. 234 CHAPTER 7 resign in turn?”, he said.20 Such rhetorical attempts to persuade or win an audience were quite fitting for the oral defence which the advocate might have to make in a debate. Fulgosio drove another point dramatically home about John having been in peaceful possession of the papacy and thus not warranting removal from office by quoting from Ovid (“Turpius eicitur quam non admittitur hospes” [Tristia, 5.6.12]).21 Fulgosio rounded off his defence with another rhetorical device often used by jurists in debates or questiones. He could not remember having ever read, he said, “of any rightful pope being forced to resign the papacy because of the impudence of schismatics” or the stubbornness of those who had been sentenced to civil death.22 Fulgosio had therefore presented a hard-line defence of both John XXIII personally and of the Pisan solution to the schism for which he stood. John’s two deposed opponents were the schismatics against whom pressure should be brought to bear, not the rightful pope. Very little of the sense of reconciliation between the obediences which had been a feature of Fulgosio’s consilium for the former Gregorians, Lord W and H, was apparent here. In his defence of John XXIII Fulgosio had therefore both reined in the idea that popes could be pressured to resign and asserted that it was the pope’s opponents and by extension those who supported them who were solely responsible for the continued existence of the schism. All talk of Gregory XII, for example, as ‘pope in his own obedience’ which had politely characterised both Fulgosio’s Marche and Cologne consilia was replaced with references to ‘ejectees’ and schismatics; and the thesis which had underpinned the legal green light given to the cardinals in 1407 to proceed against the pope was reversed to imply that wilfully obdurate popes should be endured rather than confronted. ∵

20 “Alioquin res abibit in infinitum. Nam si quis forte putaverit Johannem si non cedat posse per generale concilium Constanciense deponi: quid fiet? An nemo alius eligetur a concilio dominorum cardinalium? An non alius eligetur, ut, cum electus fuerit, et ipse cedere compellatur propter scisma, quod de facto remansit, quia videlicet Johannes cedere recu- saverit et adhuc sibi apostolatum vendicet et si non cedat et adhuc ipse dampnetur et sic res in infinitum abeat. Quorum utrumque videlicet Romanam ecclesiam vaccare et aliquos in infinitum eligi et cum eligi sint, si nolunt cedere, deici, quante sit absurditatis et impossibilitatis, nemo est, qui non intelligat.” Finke, ACC, III: 112. 21 ms. Österreichische Nationalbibliothek, 5097, 266r. 22 “Non comperi nec legisse me memini, ut verus apostolicus propter proterviam et indura- tam scismaticorum et cervicis pertinaciam papatui cedere cogeretur”. Finke, ACC, III: 113. The Defence of pope john xxiii 235

Fulgosio’s appearance at the council on 15 February to relay to delegates the pope’s thoughts on cession indicate however that arguments of this nature, although presented in a formal debate, soon became redundant as John XXIII’s stance moved apparently closer towards that of those at the assembly pressing for his abdication; with lawyers close to the curia like Fulgosio and Ancharano perhaps giving voice to the series of descending, negotiation steps by which the pope’s position gradually evolved. Fulgosio’s advocatorial piece would thus represent one such staging point in the inexorable deterioration of the pope’s position from outright resistance to the idea of cession (as articulated in legal terms in Fulgosio’s paper) to his eventual apparent acceptance of the policy. The day after Fulgosio’s appearance at the council on 15 February, for example, Francesco Zabarella would read out the pope’s latest, more nuanced position: namely that he was willing to resign if his action was mirrored by his two opponents for the papacy. By 2 March John’s position had moved again to the acceptance of a more radical formula for his resignation which had been drawn up by the conciliar nations.23 Later that same month however John would show that he had an alternative response to the pressure building upon him to resign than that of having his lawyers present and defend in formal debate a steadily more concessional set of proposals: He would simply take flight.

23 On Zabarella’s formal reading to the council of the pope’s willingness to resign on 16 February and John’s position on 2 March see: G.H.M. Posthumus Meyjes, Jean Gerson, Apostle of Unity: His Church Politics and Ecclesiology, (Leiden: Brill, 1999), 190–191. CHAPTER 8 Sigismund’s Arrival at Constance, Part Two: Fulgosio and the Donation of Constantine

“Et deditus est tractatus cui copia potest haberi”

The subject which has drawn the most scholarly attention to Fulgosio’s Digest and Codex commentaries is the Donation of Constantine; the supposed gift by the Emperor Constantine of central Italy to the papacy.1 In both texts Fulgosio reported that a debate had been held at Constance in which the legitimacy and historical veracity of the Donation was questioned. In particular Fulgosio noted how attention had been focused on the absence anywhere within the legal corpus of corroborative evidence for the Donation ever actually having taken place. This historical perspective which rightly sensed that the lack of any subsequent mention of the Donation in legal texts which must have post-dated the supposed gift was an indication of the document’s counterfeit nature appears to presage the analysis of Lorenzo Valla who would publicly draw attention to the historical and linguistic anachronisms within the text of the Donation and show that it simply could not have been written at the time when it was supposedly composed. Fulgosio’s comments about the Donation have therefore been interro- gated as an indication of legal thought regarding the forgery in the generation immediately prior to its debunking by Lorenzo Valla.2 When they are read as flat expressions of a jurist’s opinion, Fulgosio’s comments appear however to be somewhat muddled. Fulgosio appears to argue both in support of the Donation and yet to be impressed by the argument that it lacked corroborative historical evidence in the legal corpus. In his book on the treatment of the Donation of Constantine by medieval jurists, Domenico Maffei wrestled

1 Fulgosio’s remarks about the Donation are chiefly contained in the introductions to both commentaries. 2 For discussion concerning the Donation in the preceding century, see: Daniele Menozzi ‘La critica alla autenticità della Donazione di Costantino in un manoscritto della fine del XIV secolo’, Cristianesimo nella storia, 1 (1980), 123–154; and Jürgen Miethke, ‘La Donazione di Costantino e la controversia pubblicistica tra papa e imperatore nel XIV secolo’, in: eds. Giorgio Bonamente, Giorgio Cracco and Klaus Rosen, Costantino il Grande tra medioevo ed età moderna, (Bologna: Il Mulino, 2008), 51–80.

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004305854_010 the donation of constantine 237 with these contradictions within Fulgosio’s commentaries.3 Fulgosio quoted for example from an anonymous tract which he explained had been used at Constance and which had set out the argument that no corroborative reference to the Donation could be found. However elsewhere in the same commentary Fulgosio maintained that he was opposed to that same idea. Nowhere in this confused picture did Fulgosio state directly whether he supported the idea that the Donation could be undermined by the application of a historical perspective. Maffei searched for this opinion in Fulgosio’s convoluted text but his final judgement was to argue that, on balance, Fulgosio was in favour of the historical insight in to the Donation, since the arguments which he presented in the commentaries against the idea were weak. Since the jurist offered “no concrete” opposition to the idea, Maffei argued that Fulgosio was broadly sympathetic towards it.4 More recently, Gregorio Piaia has offered a critique of Maffei’s analysis, particularly with regard to the implication that the historical argument against the Donation placed Fulgosio in a position of ideological indecisiveness in which he was simultaneously attracted and repelled by the idea and that his commentary in some way reflects this intellectual tension. Furthermore, Piaia argued that the non-historical arguments which Fulgosio presented to defend the Donation’s legitimacy would have carried more weight with contemporaries than they would today.5 For contemporaries the Donation was known to be true because of its authority, not because of historical proof, and Fulgosio’s commentary discussion showed in effect how the historical questioning of the Donation could be defeated by argument from authority (in this case the law) and the ‘known truth’ of papal spiritual and temporal supremacy which the Donation supported. Piaia further noted that Fulgosio’s Proem to the Digest where his arguments on the subject chiefly appeared was not a personal or polemical work but “a rigorously technical and didactic work”.6 It was less likely therefore that Fulgosio would have broached the topic in a conflicted or ultimately indecisive manner in the way suggested by Maffei’s analysis. The implication was thus that Fulgosio was not disturbed by the historical attack on the Donation and had instead preserved a traditional view of its validity.

3 See: Domenico Maffei, La Donazione di Constantino nei giuristi medievali, (Milan: Giuffrè, 1964), 261–279. 4 Ibid., 268–269. 5 Gregorio Piaia, ‘Tra il Fulgosio e il Valla: La critica del Cusano alla “Donatio” ’, in: ed. Martin Thurner, Nicolaus Cusanus zwischen Deutschland und Italien, (Berlin: Akademie, 2002), 119–120. 6 Ibid., 120. 238 CHAPTER 8

Moreover the document’s own authority could be defended by other authorities within the legal corpus. This was a justification therefore not from historical corroboration but from one authority supporting another not because they represented historical proof of the Donation having actually taken place but because they proved its validity by being authoritative themselves. Neither Maffei or Piaia directly considered Fulgosio’s activity at Constance or the circumstances at the council which may have prompted the discussion of the Donation. Piaia did note that the jurist’s remarks were more interesting for having indicated that a debate had occurred at Constance than for their technical value as an analysis of the validity or otherwise of the Donation itself,7 however in common with Maffei his consideration of Fulgosio’s discussion of the Donation was confined to the evidence to be found only within the texts of the commentaries themselves. Neither the events at Constance which gave rise to Fulgosio’s comments nor the character of the commentaries in which those comments were contained were directly considered. If, however, the class-room character of many passages within the commentaries is acknowledged as well as the idea that Fulgosio’s comments on the Donation contained therein may well have been made only very shortly after the events which they described, then Fulgosio’s discussion of the topic begins to appear in something of a new light. An understanding of the debate at the council and an appreciation of the role which Fulgosio may have played within it illuminates those remarks yet further. They increasingly come to appear as the product of a lecturer, freshly returned from the council, recounting events which he had seen there to his attentive students and reliving his work as an advocate there with them. They are, in short, reportage and can be readily compared to the many other occasions when Fulgosio shared episodes and experiences from his professional life with his students which have been discussed in the chapters above. With this in mind, Fulgosio’s discussion of the Donation can be reconsidered.

1.a Re-Examining Fulgosio’s Comments on the Donation

Fulgosio began his Proem to the Digest by making the mundane point that once, when scribes were called upon to list out the various rulers of the world, they had written the emperor’s name first and then that of the pope. Nowadays however, he told his students the situation was different. The discussion of such scribal lists was a common starting point from which jurists were

7 Ibid., 120. the donation of constantine 239 accustomed to move on to discuss the question of whether the pope confirmed an emperor’s election8 and in his Digest introduction Fulgosio duly did just that. Confirmation, he noted, could be defined as an action which a superior did to his or her inferior. “But who”, he continued, “in strict disputation, this should be is not ours to judge”.9 In other words, it was not a subject’s place to debate whether the pope was the emperor’s superior or vice versa and thus whether a new emperor needed to be confirmed through coronation by the pope in order for the emperor-elect to be fully empowered with the imperial office. Fulgosio continued then to remark that he had however witnessed a disputation at the Council of Constance being held on this very question. This was clearly the debate which, as was seen in chapter four, had been provoked by the arrival and comportment of Sigismund at Constance on Christmas day 1414 and in which someone, perhaps Fulgosio’s advocatorial colleague Simon of Perugia, had defended the ability of an elected emperor to exercise imperial jurisdiction prior to his coronation by the pope. Fulgosio’s comment about it not being ‘ours to judge’ this question matches the argument which he is known to have used to avoid joining a debate on the question at Constance. Namely that it was an inappropriate subject to be debated. In his introduction to the Digest Fulgosio next remarked that during the debate at Constance “a tract was presented, a copy of which can be had, by an author who did not add his name, and this tract shows from both scriptural and non-scriptural arguments that the pope is not the emperor’s superior. However the reply was as it should be, and just like I have said: that it’s not ours to judge the powerful”.10

8 For example, Fulgosio’s one-time senior colleague in Pavia, Uberto da Lampugnano, moved from considering the emperor’s name to the question of imperial power in the 1385 disputation which he held in Prague on a question entitled: “utrum quum electio solemnis est facta in Alemania de dominio imperatore, statim consequatur nomen imperatoris et imperii omni respectu an vero demum post coronacionem factam de ipso.” Kejř, ‘Die Prager Vorträge von Uberto de Lampugnano’, 261. 9 “Quod autem in stricta disputatione sit: hoc non est nostrum iudicare”. DIGEST I, 2r. On the theme of the approval by the pope for an imperial election see: Carl August Lückerath, ‘Päpstliche Approbation’, in: eds. Adalbert Erler et al., Handwörterbuch zur deutschen Rechtsgeschichte, (Berlin: E. Schmidt, 1984), III: 1476–1481. 10 “Vidi dubitatum in concilio Constaniensi, et deditus est tractatus cui copia potest haberi per quondam qui nomen suam non apposuit, per quem tractatum potest videri tam per sacras scripturas quam etiam per alias, quod apostolicus non est maior imperatore: sed responsum fuit sicut opportuit, et ut dixi nostrum non est inter tantos viros iudicare.” DIGEST I, 2r. 240 CHAPTER 8

Without an awareness of both the classroom setting in which these comments may well have been made and Fulgosio’s official role at Constance these remarks could seem quite strange. ‘A tract, of which a copy can be had’? Read alone that remark makes little sense. When the conversational nature of Fulgosio’s legal commentaries is acknowledged however the remark becomes clearer: Fulgosio simply possessed a copy of the tract presented at Constance and was offering his students the chance to obtain their own version. He or his beadle may have even wanted to charge the students for this given what is known about the profitable book-selling industry operating at Padua. That Fulgosio certainly brought other legal papers back from Constance is indicated by the presence of his own advocatorial paper given at Constance during the voting debate among his consilia. If he had brought that tract back with him across the Alps in his luggage then it seems reasonable to assume that it was not the only document of interest which made that arduous return journey. Fulgosio’s remark that the tract was anonymous is also significant given his position as an advocate at Constance. Fulgosio was warning his students that the tract was unsigned which breached the rule that such documents should carry their author’s name. It was a requirement for curial advocates that any document which they presented to a court was to be signed and it is likely that conciliar advocates were no different in this regard. In his Codex introduction, for example, Fulgosio had spoken of how jurists had discussed whether an author’s identity had to be included on a book “sometimes, to avoid vain glory they are not added, and sometimes they are. And so I saw de facto in the city of Constance, in the general council.”11 Fulgosio’s comments about the anonymous tract also indicate that its essential subject matter was the question of confirmation; of whether an emperor- elect needed to be confirmed in his office by papal coronation in order for him to wield power. This was the question which Sigismund’s arrival at Constance had provoked. The topic of confirmation naturally led on to questions about supremacy, however Fulgosio’s comments indicate that confirmation was the primary subject which the tract had addressed. The question of which crown Sigismund had worn on Christmas Day 1414 had therefore prompted a discussion of whether he could wear such an imperial symbol before being

On the anonymous tract referred to by Fulgosio, also see: Riccardo Fubini, ‘Conciliarismo, regalismo, Impero nelle discussioni tre- e quattrocentesche sulla Donazione di Costantino’, in: eds. Giorgio Bonamente, Giorgio Cracco and Klaus Rosen, Costantino il Grande tra medioevo ed età moderna, (Bologna: Il Mulino, 2008), 147. 11 CODEX I, 1r. the donation of constantine 241 crowned by the pope and that had led to a discussion firstly centred on pre- coronation (i.e. pre-confirmation) rights which then evolved in to a wider discussion about superiority. This would match to the events of the Christmas Day controversy as reported elsewhere by Fulgosio that he had been asked about the legal situation by ‘many prelates’ who were troubled by Sigismund’s attire and the emperor-elect’s choice of lesson for the Christmas services, but that he had declined to debate the matter formally. Another individual had however responded and defended Sigismund’s right to comport himself as an emperor once elected and before his office had been confirmed through coronation by the pope. From here an argument would naturally have followed that the reason why an emperor-elect did not need to be confirmed by coronation in Rome in order to wield imperial power was because the pope was not the emperor’s superior. Only those who were superior approved the appointment or election of others, as Fulgosio had noted at the opening of his Digest introduction; and Sigismund did not need such confirmation because the pope was not the emperor’s superior. That the anonymous tract was indeed concerned with the process by which an elected emperor came to wield power rather than with the more general question of superiority is shown by the next remarks which Fulgosio made in his Digest introduction. After noting that the office of emperor was no longer hereditary but passed instead by election, Fulgosio proceeded to reflect on the historical origins of the elective empire. “I learned when I was at the Council of Constance from the tract to which no author’s name is attached, that once upon a time the pope’s brother, who was King of the Romans, died without a legitimate heir. It was thus declared that the empire ought to proceed instead by election: as can be seen to this very day”.12 This explanation of how the medieval empire had come to be elective was a widely circulated one and might be referred to as the Ottonian creation myth. This held that the empire had become elective on the death of the emperor Otto III in 1002 who had had no male heir. Several versions of this story existed and it is interesting that the one which Fulgosio had learned from the tract stressed Otto’s link to his ‘brother’, Pope Gregory V. This version was the one more likely to be expressed in papal or curia circles precisely because it presented the pope as having intervened to resolve the imperial succession

12 “Et didici cum essem in Constantiensi concilio, ex illo tractatu cuius nomen non est positum, quod cum unus frater apostolici sine legitimis filiis decessisset, qui fuit rex Romanorum fuit statutum ut imperium deberet procedure ex electione: et sic usque nunc observatur.” DIGEST I, 2v. 242 CHAPTER 8 crisis.13 A version of the tale with a more pro-imperial spin would have simply said that the empire became elected when Otto III died without a son and have omitted any reference to papal involvement in the constitutional change. Furthermore, as Martin Lenz’s recent work has shown, in the empire itself an array of different creation myths for the elective origins of the empire existed, some of which looked back to Charlemagne, and which often appear to have been cherished for the support which they provided to the electors’ much cherished rights. The myth prominent in Cologne, for example, claimed that the archbishop’s right to crown the King of the Romans came from the time of the Donation of Constantine. It was also claimed locally that the archbishop’s monopoly on this coronation was linked to the idea that, once crowned, the emperor’s access to imperial power was incontestable14 and did not therefore require papal confirmation. The anonymous tract which Fulgosio encountered at Constance however had told a more ‘papal’ or ‘curialist’ version of the myth. That Fulgosio was apparently unaware of the story until he encountered it in the tract at Constance is also noteworthy. Aquinas, Augustinus Triumphus and even Marsilius of Padua all included variants of the same myth in their works, which would indicate that Fulgosio was ignorant of their comments on the matter. That the jurist was clearly impressed by what he had learned is evident from comments elsewhere in his Digest commentary where he recounted the myth to his students again, this time without mentioning that he had learnt the story from the tract and only stating that he had learned it when he was at Constance.15 Once again, the context for these remarks was not some developed theory on Fulgosio’s behalf but simply his passing on to his students of something which he had learned while at Constance and which his lecturing on a particular point had prompted him to later recall. It is also clear that, prior to wit- nessing the debate at the council, Fulgosio had not known about, or reflected

13 See the discussion, for example, in: Max Buchner, ‘Die Entstehung und Ausbildung der Kurfürtstenfabel’, Historisches Jahrbuch, 33 (1912), 100. It is of note that Fulgosio refers to the pope as Otto’s brother and not, as in some other examples, as “parentela”. Dietrich of Niem used this in his 1411 description of how the empire became electoral at the time of Otto III: Dietrich von Niem, Viridarium imperatorem et regnum regnorum, (Stuttgart, 1956), 18. 14 Martin Lenz, Konsens und Dissens. Deutsche Königswahl (1273–1349) und zeitgenössische Geschichtsschreibung, (Göttingen: Vandenhoeck & Ruprecht, 2002), 33–40. 15 Having discussed a legal text in which the empire was seen to pass by succession, Fulgosio noted: “Postea vero, secundum quod didici in Constantiensi Concilio, cum quidam papa haberet fratrem suum imperatorem, qui decessit sine liberis, ipse papa fecit constitutionem quod imperium fieret per electionem”. DIGEST I, 186v. the donation of constantine 243 greatly on, the origin of imperial elections. What we are observing therefore when we read Fulgosio’s comments on the matter is therefore a working lawyer discovering a previously unseen historical aspect to the law and sharing that discovery with his students. Hitherto he would have known that, whilst certain legal texts spoke of an inherited empire, the contemporary world had an elected one. Now he was able to explain to his students the historical reason why. The fact that the anonymous tract had included the Ottonian myth in its papal version further supports the idea that the tract was primarily focused not on the question of imperial or papal supremacy per se, but instead on the specific question of what rights and jurisdiction an elected emperor enjoyed prior to his coronation by the pope. The tract’s author was simply attempting to show the customary origins of the elective empire and to explain why therefore no papal coronation was required for Sigismund to accede to imperial power straight away. If the tract had constituted a more general comparison of imperial and papal power, the Ottonian myth would have sat uncomfortably with a pro-imperial position as it showed the pope apparently having been able to establish the elected empire. Understood however as a tract focused on the question of access to imperial power by an emperor-elect, the inclusion of the Ottonian myth makes much more sense. Like many a corporate body or institution at the time, the emperor-elect was simply presenting the original foundational document which justified his rights; in this case his right to wield imperial power immediately after his election. He did not need to be crowned by the pope to access those powers because those powers passed by election; and this system had been instituted by the papacy itself. If the debate at Constance was indeed chiefly focused on the question of coronation, then the appearance of the Donation of Constantine within the dispute also makes more sense. The Donation text began with a discussion of the imperial crown and other regalia and it is therefore easy to imagine the author of the tract having had cause to refer to it in order to dismiss any papal claim to imperial coronation rights based upon it. The Donation and the idea of papal supremacy were closely associated and attacking the Donation had historically been a means of opposing papal power in favour of emperors and other secular rulers but would later be used in a very similar way to the credit of conciliar authority by, for example, Nikolaus von Kues at the council of Basle in 1433.16

16 See: Riccardo Fubini, ‘La donazione di Costantino nel dibattito politico ed ecclesiastico (secoli XIII–XVII)’, in: ed. Alberto Melloni, Costantino I. Enciclopedia Costantiniana sulla 244 CHAPTER 8

In the debate at Constance eighteen years before, the anonymous tract’s author may have attacked the Donation in order to counter the charge that the apparent gifting of the imperial crown as well as central Italy by Constantine to the papacy meant that a new emperor could only fully take up office when he had been crowned by the pope in Rome. It is notable in this regard how, elsewhere in his commentaries, Fulgosio refers to the debate about access to imperial jurisdiction at Constance in terms of whether a new emperor had to be crowned “in the correct place” (i.e. Rome) rather than specifically being crowned by the pope.17 Rome linked the coronation to the Donation; for the papacy could argue that a new electee like Sigismund could only properly receive the imperial title when he had been crowned in Rome by the pope, since Constantine had granted both Rome and the imperial crown to the papacy in the Donation. The author of the anonymous tract may therefore have had to refer to the Donation in order to address a possible rejoinder to his use of the Ottonian myth. Having argued that an electus obtained imperial power immediately due to the papally-instituted elective nature of the empire, he may then have had to undermine the objection which could be made to this based on the Donation. If this is correct, then the debate at Constance would have been rather more ‘medieval’ in nature; pitting the authority of a myth against that of a forgery with the anonymous tract’s author firstly citing the Ottonian creation myth as a sort of foundational charter of an electee’s rights and then downplaying the value of the argument which could be made from the Donation that imperial power was only fully obtained when an electus was crowned by the pope in Rome. The manner by which this downplaying of the Donation may have taken place is suggested in the next passage within Fulgosio’s Digest introduction where the jurist famously listed the three questions which he said he had seen posed at Constance about the Donation:18 Firstly whether the emperor Constantine really had historically donated Rome to the pope, secondly whether such a donation was legally valid and, finally, whether it could be rescinded. Historians have customarily followed the arguments that Fulgosio presented in answer to these three points in attempt to discern the jurist’s

figura e l’immagine dell’imperatore del cosiddetto Editto di Milano, 313–2013, (Rome: Istituto dell’Enciclopedia Italiana, 2013). 17 See above, p. 176. 18 “Et in hac questione pro summaria eius cognitione tres articuli sunt faciendi de quibus vidi dubitatum in Constaniensi concilio”. DIGEST I, 2v. the donation of constantine 245 own view on the matter,19 however when read in another way the remarks can appear simply as a teacher relating to his students what he had witnessed at the council and, without expressing his own opinion on the matter, indicating to them interesting legal arguments which were made there. It could be said about the Donation, Fulgosio noted for example, that as a law it was excessively “domestica et familiaris, like someone who is a witness in his own legal case”. This was, he continued, how “he who presented the tract to the council” had put it.20 Having defended direct, post-election access to imperial power based on the Ottonian myth, the author of the anonymous tract’s may therefore have sought to devalue any potential counter claim based on the Donation by arguing that it was a self-referential document, without further corroboration in the corpus of law, and could be set aside. This would have been a common enough rhetorical way for the tract’s author to decrease the relevance of the Donation to the coronation question without attacking it head-on. Such an off-the-cuff dismissal would also make sense in the kind of short, advocatorial piece which the tract probably was.

1.b Fulgosio’s Intervention

The anonymous author’s paper appears however to have provoked a reaction from the council which prompted Fulgosio finally to enter the debate. He had resisted the pressure to dispute the question of imperial pre-coronation powers, however now appears to have become drawn in to a less formal encounter. In his Digest introduction Fulgosio would refer to the debate in to which he had been drawn as an “altercation” and it may therefore be conjectured that Fulgosio had risen at the assembly to respond to the tract on access to imperial powers when its author criticised the Donation. “When the text Constantinus”, Fulgosio remarked in his Introduction, “was said to be excessively domestica et familiaris I, defending this side of the argument, put forward (allegabam) the law ‘ego Ludovicus’ [D.63.30]”.21 This was a text which appeared to show a

19 See, for example, Maffei, La Donazione, 264–269. 20 “sed quod provinicias occidentales ipsi Sylvestro donaverit, et urbem Rome, iure non est cautum. ad cap. Fundamenta [VI.1.6.17] respon. quod probatio illa illius capituli nimis est domestica et familiaris, ut quis in sua causa sit testis: sic scribebat ille qui tractatum illum porrexit concilio” DIGEST I, 2v. Inter alia this comment is an indication that the individual who presented the tract at the council also composed it. 21 DIGEST I, 2v. 246 CHAPTER 8 different emperor granting Rome to the papacy. Fulgosio then only had to argue with what would be a typical advocatorial rhetorical device that although this text seemed to be a repetition of what Constantine had done it was actually a corroboration of the earlier emperor’s gift. With the anonymous tract’s author having stated that the Donation had no corroborative backing in the corpus of law, the assembly may therefore have turned to Fulgosio to respond. Was it true that there was no other corroboration of the Donation? This was precisely the sort of question which an expert like Fulgosio would have been accustomed to being asked: to scan his ency- clopaedic knowledge of the law for any mention or possible reference to the matter at hand, manipulating a text where necessary by rhetorical devices if it was not immediately a good fit to the circumstances. And it is this skill which Fulgosio celebrated when he recounted the episode to his class in Padua. Faced with a controversial remark like the ‘domestica et familiaris’ one made by the tract’s author, Fulgosio’s skill and knowledge had allowed him to reply quickly with a text which appeared to contradict the remark. There were corroborative texts in the corpus of law evidencing the Donation and it was not therefore a solitary text self-justifying itself. The debate had therefore consisted of two parts. Unwilling or unable to present a formal defence of the papal position in the debate, Fulgosio had nevertheless listened to another individual present the corresponding arguments in favour of imperial pre-coronation rights before the council. These had included criticism of the Donation and a second, less formal debate or altercation had then begun structured around the three cascading questions which Fulgosio listed in his Digest commentary: had the Donation occurred, was it valid and could it be rescinded. Fulgosio’s argument from Ego Ludovicus had addressed the first point and, in recounting the episode to his students, Fulgosio showed the arguments which could be made to defend the Donation’s validity and thus address the second question which had been posed. The Donation had not constituted the annihi- lation of dominium, he stated, but rather its transfer and was therefore valid.22 Tellingly, Fulgosio also dismissed the arguments which the fourteenth century Bologna jurist, Jacopo Bottrigari had once made regarding the Donation in a formal disputation by claiming that Bottrigari had only argued what he had because he had been in Bologna at the time under the pope’s rule and his

22 “Nam dominium huius mei libri non annichilatur, sed transferetur: et si vultis quod sit annichilatio tamen non video unde non potest dici quod possit annichilari nam habuit initium, ut dicit imperator.” Ibid., 2v. the donation of constantine 247 remarks had therefore probably been occasioned by fear.23 This devaluing of Bottrigari’s arguments sounds somewhat advocatorial; the kind of argument which a jurist might make in a debate to diminish pre-emptively the strength of an opposing argument. It was a remark which also resonated with Fulgosio’s own experience at Constance where he had himself intimated that the dominating presence of the emperor had impeded a disputation. The theatrical nature of a disputation was also hinted at; that it was an event where a jurist might be required to present arguments which the audience, or certain prominent members within it, would welcome. At Constance Fulgosio may therefore have provocatively done what, if the charges levelled at him by Fulgosio were correct, Bottrigari should have done and declined to enter a debate when he was not able to dispute the question freely or present the case for the side of the argument which he had been assigned without impediment. The exception by reason of fear (‘quod metus causa’) was a well used one to excuse non- performance or to assert that an action had not been freely and thus legally entered in to. Indeed the schism itself had begun when such a claim was made by the cardinals at the time of the conclave of 1378. Fulgosio next moved to the third question; whether the Donation could be reversed. “I responded in this altercation”, Fulgosio told his students, “that it could not be rescinded by the authority of canon law.” Fulgosio did not reveal which canon law texts he had used, preferring instead as befitted an introduction to the Digest to cite the civil law texts which he had also deployed. The Donation, he said, was similar to a civil contract to which a prince was a signatory. It could not therefore be revoked since, although a ruler was not bound by his own laws, he was bound by the contracts and other civil arrangements in to which he had entered. “I defended (allegabam) this idea with the laws Omnes and Bene a Zenone [C.7.37.2&3]”, Fulgosio continued. If princes were not bound in this way to honour the agreements which they had made, no citizen would ever contract with them, he concluded.24 It had been Alberico da Rosciate’s text on Bene a Zenone which Fulgosio had been prompted

23 Bottrigari had argued the opposite in his lectures, Fulgosio noted, but had publicly dis- putated differently “motus forsitan postea timore, quia erat Bononia, sub papa”. Ibid., 2v. Also see: Maffei, Donazione, 271 and, on Bottrigari: Adriana Tognoni Campitelli, ‘Bottrigari, Jacopo’, DBI, 13 (1971), 498–501. Fulgosio also accused Bartolus of having spoken contradictorily about the Donation “timore, quia Perusium erat sub papa”. 24 “Ego autem in hac altercatione respondi, non posse revocari per auctoritatem iuris canonici, et utebar ista responsione ad argumentum illud, quod licet princeps lege sua non ligetur, quia solus facit, tamen in lege contractus vinculo, et obligatione contractus, qui contractus ex duorum facto perficitur ipse princeps ligatur, allegabam l.omnes et l. Bene 248 CHAPTER 8 to consult by the Christmas Day controversy, with its defence of imperial electee rights contained in Ludwig IV’s edict Licet iuris, however here Fulgosio used Bene a Zenone in its more customary guise as a text which supported the adherence by princes to the contracts which they had concluded with their subjects. Fulgosio’s position as an advocate charged to present one side in a debate, or in this case to respond for one side in an ‘altercation’, is revealed by these comments. Fulgosio had read Alberico da Rosciate’s text and therefore knew the arguments which could be made in defence of imperial power, however in the debate at Constance he had been required to defend the opposing argument and had presented those arguments accordingly. His introduction to the Digest did not therefore represent his own private opinion on the matter. Instead it was a record of the debate in which he had participated and the arguments which he had been caused to make as an advocate there. This reportage was then simultaneously combined with a teacher’s concern, in lecturing to his students, to point out the arguments of interest or use to them which both he and his opponent may have employed.25 One final series of comments by Fulgosio bring home this characterisation of the Digest introduction as a blend of reportage and teaching, as well as indicating the very immediate and conversational nature of the introduction itself as a text. “I discovered”, Fulgosio began having just finished his argument against the revocability of the Donation, “that once, when the church was oppressed by heretics, all the rights of the pope were transferred to the emperor, even the election of the supreme pontiff and other prelates”.26 This remark appears

a Zenone c. de quadrienni prescriptione [C. 7.37.2. & 3.] alias nemo cum ipse principe contrahet”. DIGEST I, 2v. 25 Fulgosio also passed on other points of general interest, perhaps learnt too while at Constance as for example, when he told his students in the Digest introduction that in France doctors of law were known as ‘Chevaliers ès lois’: Ibid., 3r. 26 “Reperio enim cum ecclesia esset oppressa ab hereticis, ius omne pape fuisse translatum in imperatorem, et electionem summi pontifics, et nedum in ipso papa, [but also for a short list of other prelates which Fulgosio then provides]”, DIGEST I, 3r. In the Codex, Fulgosio alluded to the same ‘discovery’ at Constance when he noted that when in peril, the city of Rome need not be subject to the pope. Discussing other examples of Rome’s ability to act in extremis and hand power to a secular power Fulgosio noted that this was only an exceptional, temporary grant. It was the exception to the rule, which he compared then to the debate about how an individual granted the power under civil law by the emperor to legitimate those born illegitimately could exercise that power in the lands of the pope. It was allowed because it was a privilege which the pope had permitted; an exception in other words to the rule that the pope possessed, thanks the donation of constantine 249 to indicate that, just as he had with the Ottonian myth, Fulgosio had learned another piece of putative church history from the anonymous tract of his opponent. That the origin of this idea was indeed the tract is shown by Fulgosio’s very next comment which refers, confusingly, to an unidentified subject: “And because of this he said that since today this transfer to the King of the Romans has been overturned, why is it not in the case in question that a prince can revoke his donation [i.e. the Donation of Constantine].”27 The ‘He’ of this sentence is evidently Fulgosio’s interlocutor at Constance, whilst the immediacy of the remark indicates the conversational nature of the Digest commentary which had recorded Fulgosio in full conversational flight. We should perhaps therefore imagine the teacher, still holding the tract which he had brought back with him from Constance in his hand, and pronouncing these words while indicating that same document: ‘He’, i.e. the author whose tract I am holding in my hand, said such and such. The point which Fulgosio’s opponent was making was that the Donation could be reversed just as the supposed transfer of electoral powers over the papal office to the emperor had once been rescinded. Two things are notable about this comment by the anonymous tract’s author which again re-enforce the idea that the debate at Constance was focused on the question of what rights a new emperor possessed at the time of his election. Firstly, it is significant that the transfer of power is referred to as being to the King of the Romans, the title of the uncrowned emperor-to-be; and secondly that the transfer was specifically linked to the question of a pope’s election. It may be in other words that the tract’s author was attempting to provide an historical example of emperors having elected or ‘confirmed’ new popes in order to counterbalance the idea that popes now had the right to confirm elected emperors. Fulgosio had to reply however to the idea that the Donation of Constantine could be revoked: “I replied that it was the emperor who had renounced all his rights which he had had in the election of the supreme pontiff. But who is

to the Donation of Constantine, both civil and religious sovereignty in the papal states: “simili fieri potest, quod urbs Rome non subiaceat pape, ut ipse melius [defendat] (sic: descendat): sed postea cum ecclesia locuples est facta, ex privilegio accipit l.xii. di. cap. fraternitas [D.12.2]. Et ita recordor me vidisse in concilio Constantie, in concilio quodam ibi relicto. Ex hac determinatione sequuntur determinationes aliquarum questionum, an scilicet Comites palatini, qui habent privilegium a Cesare possint legitimare in terris donatis ecclesie.” CODEX I, 1v. 27 “Et per hoc ipse dicebat quod sic hodie est sublata illa translatione facta in regem romanorum. Cur non est ita et hoc casu ut princeps possit suam donationem revocare.” DIGEST I, 3r. 250 CHAPTER 8 mightier by the sword, and therefore gets the upper hand, he and his donation should also do so; as the gloss argues in Ego Ludovicus [D.63.30]”.28 This was a rather smart riposte on Fulgosio’s part. His opponent had attempted to use the reversal of the putative historical transfer of power from pope to emperor over papal elections as a justification for the emperor’s own ability to revoke the Donation which had been made by Constantine. Fulgosio had effectively replied to point out that both events represented emperors giving away their rights. Far from showing that emperors could revoke earlier agreements, therefore, the argument just proved that emperors could indeed irrevocably give away rights which they held. In Constantine’s case this was the famous Donation whilst, in the example given by Fulgosio’s opponent, this was the supposedly ancient imperial right to elect the pope. Emperors were so powerful, the jurist concluded, that they had the power to give away their rights.

1.c Conclusion

Fulgosio’s comments about the Donation in his commentaries are therefore the product of two interwoven strands. On the one hand he was simply reporting the cut and thrust of a debate in which he had been involved at Constance and celebrating his own ability to get the best of his opponent. On the other, Fulgosio was also educating his student audience by showing them arguments, points of interest and disputational approaches from which they could learn. Some of these were his own, however some originated with his opponent as in the historical examples which Fulgosio had learnt from the anonymous tract’s author. And even though that tract had been one which he had had to counter, he was happy to provide his student audience with copies of it. This was, in short, a professional sharing his practical working experiences with his students and delighting in his own successful and deft participation as an advocate in a major debate at the council, whilst acknowledging that there were also smart arguments to admire amongst those made by the opponent whom he had faced. Had he been required to present that side of the case, Fulgosio could have done so. He had read Alberico da Rosciate’s work at the time and could have developed arguments from it to put the case for the empire rather

28 “Respondi, quod imperator renuntiavit omnibus illis iuribus que habebat in electione summi pontificis. Sed qui ense potentior est, et prevalet, ille et donatio prevaleat. facit gl. in c. Ego Ludovicus lxiii di. [D.63.30]”. Ibid., 3r. the donation of constantine 251 than the pope. This had not been the party for which he had however been charged to act. Unlike his contributions to the suffrage debate and in defence of John XXIII, Fulgosio’s own advocatorial tract does not survive. His use of his opponent’s tract in his Digest commentary may however lend further support to the idea that Fulgosio only entered the debate at Constance at a less formal ‘altercation’ stage, having avoided involvement in the spectacle of a public disputation for which it may have been necessary for him to present a signed tract.29 Unlike the voting debate or his defence of John, no paper would then have survived because Fulgosio had not composed one. Instead he had joined in the debate when the Donation’s authority was questioned. It would be difficult to discern Fulgosio’s private opinion on the historical validity of the Donation from his report of events at Constance and simultaneous use of that report as a class room tool or exercise. Unlike the Ottonian creation myth or the historic ability of the emperors to elect popes, Fulgosio does not state in his commentaries that he learnt about the want of historical corroboration for the Donation whilst at Constance. It would be reasonable to assume that unlike the other arguments, it was an argument with which he was already familiar. His interest would then not have been in the argument itself but in the fact that it was aired in public at the council. It was the fact that a public debate about the matter had occurred which he had wanted to convey to his student audience; and that he had played a part in it even against the backdrop of a politically difficult environment at the council with both the emperor and pope in attendance. Unlike Bottrigari, it would seem, Fulgosio had succeeded in navigating between his various obligations as, firstly, an advocate charged to defend one side in the dispute, secondly the potential dangers of a delegate from Sigismund’s recent enemy Venice presenting the anti-imperial case at the council and, finally, his more general commitment to the Law itself which required that hearings be fair and free and that, ultimately, a disputation should produce the right outcome. Declining to enter the formal debate but joining the less formal confrontation which developed from it would have achieved this.

29 A debate on such lofty matters would have also drawn a crowd, or attracted students. A sense of this can be felt from the document which Ubertus de Lampugnano issued in 1385 to publicize his up-coming disputation in Prague on the very similar question of post-imperial electoral powers and then on the connected question of whether all Christians were subject to the emperor. The document reads somewhat like an advert or promotional flyer. See: Heinrich de Senkenberg, Methodus iurisprudentiae, (Frankfurt a.M.: Varrentrappiano, 1756), 148–149. 252 CHAPTER 8

This can be contrasted with the position of Fulgosio’s anonymous opponent who had felt comfortable in presenting a defence of the imperial powers of a newly elected but uncrowned emperor to a council jolted by the dramatic arrival of the emperor and affected by his continued presence. If this author was Fulgosio’s advocatorial colleague Simon de Perugia then there is the possibility that the controversy at Constance was not the first occasion that he had taken part in a disputation on the theme. Two tracts on the question of imperial power, one favourable, the other not, survive from the year before Constance and have the characteristics of pieces written for a short disputation.30 The favourable tract shares the same argument which Fulgosio’s opponent would make at the council that the revocation which emperors had supposedly made of their ability to chose popes meant that the Donation of Constantine was also revocable.31 It is possible therefore that a disputation on the theme of imperial power had taken place a year before the debate at Constance, perhaps during the extensive summit of rulers, ambassadors and worthies who joined both John XXIII and Sigismund at Lodi in December 1413 and which constituted as a result a sort of dress rehearsal for the later council. The arguments which Fulgosio would have to face at Constance were thus already well developed and may even have been recently tested in disputational contest. Fulgosio’s remarks in the commentaries to the effect that certain historical ‘facts’ presented in the dispute were new to him and that he read Alberico da Rosciate at the time presumably as a preparation for the forthcoming debate imply that he was not as prepared for the debate as he might have been or others already were. If Fulgosio’s opponent at Constance had been involved in some capacity in a disputation on imperial power a year earlier, then Fulgosio’s achievement in responding to what would have been a better- prepared opponent is all the more impressive. If that opponent was indeed Simon of Perugia, who as a curial advocate was at Lodi with John XXIII, then it is even possible that Fulgosio had to face an opponent who had not only refined his arguments in the testing ground of debate but may even have won

30 Finke, Forschungen und Quellen, 269–283. References in the tracts to the forthcoming council in Constance date the documents to between the summons for it jointly issued by John XXIII and Sigismund in 1413 and the opening of the council in October 1414. 31 Ibid., 280. After listing historic examples of emperors having elective rights over the pope or benefice appointments, the author of the tract argued: “nam sicut papa revocavit privilegia imperatoribus per pontifices Romanos concessa presertim de electione Romani pontificis et dispositione rerum ecclesiasticarum, eodem modo potest imperator privilegia ecclesie concessa (i.e. the Donation of Constantine) revocare”. On the similarity between a section of the earlier tract and the anonymous tract issued at Constance, see: Menozzi, ‘La critica alla autenticità della Donazione di Costantino’, 130. the donation of constantine 253 his monopoly on imperial business before the courts as a reward for his performance. Perugia received that privilege at Lodi in December 1413 and, the role of the advocate being what it was, may have even earned it for presenting the opposing, papal position on imperial power which Fulgosio would have to defend at Constance. ∵ The possibility of an earlier disputation having taken place in Lodi with both pope and emperor present also raises a final series of questions about Fulgosio’s behaviour at Constance. If an earlier debate had been held and was conducted without apparent disturbance and with both pope and emperor in attendance, did Fulgosio over-react at Constance in the winter of 1414 when he was pressed by ‘many prelates’ to dispute the matter? Or was his personal reaction simply a result of the unsettled public mood at the council with respect to Sigismund’s arrival and a sense that the emperor posed a threat to conciliar liberty. It is even conceivable that Fulgosio’s reaction to the request to debate the question of imperial pre-coronation power was itself one of the causes of that unease itself. By declining to debate because of the emperor’s deemed undue influence, Fulgosio may have simply intended to adopt an understandable policy of personal neutrality on the question of imperial supremacy; however justifying his refusal by implying that he was not free to act may have excited some of the very controversy at the council of which Fulgosio later spoke. Perhaps, unlike his advocatorial colleagues, he was less comfortable suppressing his own personal views in order to present arguments for one side of the debate and was also unnerved by the future association of his name with that side of the debate which might follow participation in such a public debate. Bottrigari had suffered the fate of being forever associated with one side in the debate due, Fulgosio claimed, to his having been under pressure to defend that position. Perugia, if it was indeed he, had been able to disassociate himself from having argued for the imperial line by leaving his tract at Constance unsigned. Fulgosio, meanwhile, had perhaps opted to invoke the advocate’s right to decline to defend a particular cause when he did not feel that he was able to do so in freedom. This was a constraint on his liberty which Fulgosio may have been happy to draw attention to and avail himself the benefits of. As an advocate appointed by the council on its opening day, this legal just impediment may however have been read by delegates as a further example of Sigismund’s overbearing influence. Fulgosio may therefore have sought to avoid Bottrigari’s reputational fate by declining to debate, yet as an advocate the excuse which he gave may have looked to all the world like evidence of the emperor silencing a duly elected officer of the council. CHAPTER 9 Return from Constance to Padua

“. . . Et in ipsa litera mea dedi segna”

As was discussed in chapter four, one possible date when the debate about the Donation could have taken place at Constance was from 1 to 4 January 1415. If this date is added to a chronology of Fulgosio’s activities at Constance the following summary of the jurist’s impressive contribution to the most high profile of questions at the council emerges. Having become embroiled in an altercation concerning the Donation of Constantine and, more broadly, the rights of emperor-elects to wield imperial power at the start of the new year, Fulgosio was then involved from mid-January in the important debates and discussions surrounding the question of representation and how the assembly should vote. He may conceivably have then been party to aspects of the negotiations with both the Aragonese delegation and the supporters of Gregory XII. In the first weeks of February he then composed a tract for use in his capacity as an advocate to defend John XXIII and on 15 February was acting as a go-between for the pope, articulating John’s intentions to the council as pressure mounted on the pontiff to resign. This is the last date at which Fulgosio’s presence in Constance is officially recorded and it is traditionally assumed that he returned to Padua at some time later during February 1415. It was not however until 27 June that the jurist’s name first reappeared in university records in the city.1 Clearly Fulgosio made the long and arduous journey down through the Brenner Pass at some point between these two dates. Unlike his journey to the council which may well have been made in the company of the papal party, Fulgosio may well have travelled south alone with only his few personal retainers as travelling companions. A reasonable horseman could have made the c.500km journey from Constance to Padua, with the first stage of the journey by boat, in something like a fortnight.2

1 Zonta, Acta, IV: 140; for the civil law licence for Goffredo di Gaeta. 2 See the average journey times calculated for Venetians to travel to Genoa, Florence and, for example, Augsburg (11 days) in: Pierre Sardella, Nouvelles et spéculations à Venise au début du XVIe siècle, (Paris: A. Colin, 1948), 59. Explaining to his students the difference between taking someone’s property without their consent and borrowing something, in this example his own horse, deceitfully, Fulgosio

Fortunately, Fulgosio left several clues as to the date and manner of his departure from Constance which would indicate that he left the assembly not in February but a month or perhaps two months later. This is important because March 1415 was to witness the most dramatic turn of events in the early history of the council with, firstly, John XXIII’s flight from Constance in disguise and in the dead of night and then the council’s issuance of the foundational document of conciliarism in response to the crisis which the pope’s departure had provoked: the decree Haec Sancta with its enigmatic statement that all in the church were obliged to obey the council in the matters of faith, reform and the ending of the schism.3 The first argument against Fulgosio having left the council in the last weeks of February is a circumstantial one. Fulgosio had been in the vanguard of those defending John XXIII at the assembly and it seems unlikely that the pope would have willingly relinquished the services of such an eminently useful jurist at a juncture as critical as that in which John found himself towards the end of February 1415. The day after Fulgosio had acted as an intermediary to convey papal opinions to the council, Francesco Zabarella presented a document formalising John’s willingness to resign the papacy if his two rivals would do the same. This policy failed to satisfy the council who having, in their own words, “chewed over” the matter, replied several days later to demand that the pope adapt his proposal and bring it closer to their preferred ‘unilateral’ solution whereby John would resign unconditionally and as an encouragement to his rivals to follow suit. On 21 February John presented his more nuanced version of his initial proposal, stating that he was prepared to yield if his opponents did so even by proxy and that, as an enticement to them, all processes for heresy and schism currently on-going against them would be suspended.4 The development of subtle, but ultimately unsatisfactory, amendments like these to what was to a certain extent a contract negotiation process would have been something to which Fulgosio’s skills would have been well adapted.

would in passing suggest that someone could ride to Vicenza or Brescia in two days: “Hec quidem est in errore, quemadmodum si volens ire Veronam, ires ad stabulum meum, sine licentiam meam, et voluntate et equum meum acciperes et reversus mihi restitueres. Secus autem est si petisti a me incommodatum equum meum usque ad Vicentiam, in duos dies, tu autem iuisti Brixiam”, CODEX II, 2v. 3 The literature on the production, dogmatic significance and meaning of the decree is vast. See, however, the survey provided in: Ansgar Frenken, ‘Die Erforschung des Konstanzer Konzils (1414–1418) in den letzten 100 Jahren’, AHC, 25 (1993), 365–389. 4 Finke, ACC, II: 20; MANSI XXVII, 564. 256 CHAPTER 9

Fulgosio’s presence would have been even more valuable to John XXIII when the council’s membership increased further in size on 22 February with the arrival of the substantial delegation from the University of Paris. Theologians from there had both a strong sense of their own authority as a corporate body in questions of faith and ecclesiastical government and possessed a ready- made arsenal of justifications to support the unilateralist ‘way of cession’ solution to the schism. These had accumulated from years of struggle with the Avignon papacy and in reaction to its insistence on the identical point which John XXIII was now attempting to defend himself: that for the pope to give up his legitimate title to the papacy in exchange for securing the surrender by his rivals of their counterfeit claim was neither right nor likely to succeed. It seems unlikely therefore that John would have been comfortable with the loss of an advocate like Fulgosio who might, should things eventually come to it, have been useful in defending the pope in any subsequent impeachment or deposition proceedings. Fulgosio had, after all, already defended John against the accusation of simony; a charge which would also be levelled at the pontiff at the time of his later deposition. The relative unlikelihood that Fulgosio would have been allowed to leave the council in these circumstances is of course no proof that Fulgosio did indeed remain at the council after his last recorded presence there on 15 February. Fortunately, however, a first hand account exists from him which described the means by which he arranged his departure. Yet again it is thanks to Fulgosio’s conversational remarks in the commentaries that an insight in to the way that he left the assembly can be gained. For it is evident that Fulgosio perpetrated something of a ruse. Discussing the mundane legal point about the validity of documents signed under false names in the same Digest introduction where he had recorded the Constance debate about the Donation, Fulgosio told his students that he had experienced the same thing in his own life. “When I was in the city of Constance” he recalled, “and I had reason to return from there, I sent a letter to a friend of mine which I signed with a different name to my own, in case it should became public knowledge and look like I’d been trying to find a way to leave. I also left a sign in the letter so that the recipient would know it was really mine.”5 Fulgosio had therefore engineered his own departure from Constance; writing to a friend for him, in turn, to petition the Venetian or university authorities

5 “Et hoc habui ex facto. Cum enim essem in civitate Constantie, et haberem causam redeundi, dedi cuidam socio meam literam, et scripsi in ea aliud nomen quam meum, ne si aperiretur videretur quod ego quererem causam redeundi, et in ipsa litera mea dedi segna, ut solus ad quem miseram epistolam cognosceret epistolam meam esse”. DIGEST I, 3v. Return From Constance To Padua 257 to have the jurist recalled. Fulgosio could not simply petition the pope or the council for a right to leave, in other words, but had to execute a subterfuge. If he could procure a letter demanding his return from a suitably authoritative body, then the council or curia in Constance would be much more likely to acquiesce in his departure. Fulgosio clearly also did not want to be seen publicly at Constance to be seeking this request to return home, and thus took the precaution of writing under a pseudonym to a friend who would recognise the impostor in the letter as actually being Fulgosio and then for him to help. Perhaps a fellow lecturer with enough influence to contact the Venetian authorities on Fulgosio’s behalf may have been the recipient of the letter. A man like Fulgosio’s colleague Raffaele Raimondi with whose name Fulgosio was so-often associated, could have been a possible candidate.6 A further question however occurs as to the timing of Fulgosio’s scheme. Did he write to Padua or Venice in February 1415, for example, to set in motion plans to have a letter recall him to his studies or did this happen much earlier? The ruse makes quite a lot of sense when viewed, for example, not in the context of February 1415 but in relation to the letter written by the Venetian authorities to John XXIII on 4 December 1414 in which the Venetians asked the pope to allow Fulgosio to return to his lectures as soon as was convenient, in effect seeking to modify the terms of John’s own letter which had been written a month earlier in which the pope requested that Fulgosio should stay at the council for its entire duration. Could it be that these two letters in November and December 1414 represented Fulgosio’s scheme playing itself out? Having been instructed by the pope that he was to remain in Constance for as long as the council should last, Fulgosio procured, by means of a letter to a friend at home, the support of Venice for a more flexible end to his conciliar career. Customarily the request from Venice to the pope to have Fulgosio return as soon as was convenient is read as that of a city anxious to have its popular lecturer return to teach as soon as possible and for the salary which had been paid to him to not go to waste. However the letter may simply be the result of a petition which Fulgosio’s friend had made to the Venetian authorities, which itself would have been the result of Fulgosio surreptitiously contacting that friend in order to obtain it. The end result would then have been a jurist who had swapped, by means of a petition, one document from John XXIII obliging him to stay in Constance indefinitely for a letter with less strict terms. With a summons from Venice to John XXIII in his hands, Fulgosio

6 Raimondi would, for example, have Fulgosio identify himself as the author of a consilium which Raimondi had in fact written since the text was in favour of Raimondi’s brother and caused an obvious conflict of interest. See below, p. 322. 258 CHAPTER 9 could then legitimately ask the pope at an as yet undetermined future date for permission to leave. The pope or any other authority was much less likely to impose themselves in the relationship which bound a subordinate to his lord. The fabric of society was woven thickly together by these kind of allegiances. John was therefore more likely to acquiesce in Fulgosio’s obedience to his masters’ summons for him to return home; unaware that the whole episode had in effect been engineered by the jurist himself. It is quite conceivable therefore that by virtue of this device Fulgosio was in possession, as it were, of an option to leave the council and that, at some time in the spring of 1415, he felt that the time had come to exercise it. The fact that no further letters from the Venetian authorities, who would surely have been the most likely body to request Fulgosio’s return, have come to light in the republic’s well-preserved civic epistolary archive supports this idea. It seems quite possible therefore that, almost as soon as the council had opened in 1414, Fulgosio had already obtained a legitimate way to return home whenever he chosed. The later that Fulgosio left Constance, however, the more likely it was that he would have been grateful for his convenient excuse for departure. In February and March it would have afforded him some means of rebut- ting demands from John XXIII for him to remain at the council. And, were Fulgosio to have stayed at Constance long enough to still be at the council in the aftermath of John’s flight on 20/21 March, then his option would have certainly proved its value. Struggling to keep the assembly from dissolving at this highly dramatic juncture, on 25 March the council commanded all delegates and officials to remain in their posts. They were only to leave the city if they received a licence to do so from the council or, as the statement read to the assembly that day by Fulgosio’s friend and former colleague Zabarella had it, they already had the authority to do so and could transfer any office they had hitherto exercised to a delegate who was staying.7 If Fulgosio was still at the

7 MANSI XXVII, 580. For his part, John XXIII commanded delegates and officials to do precisely the opposite and to forsake the assembly. In the seventeenth century Carlo Catari suggested that Simon of Perugia was one of those who abandoned the council at the time of John’s flight and was ejected from his rights as a consequence to which he was only restored later: Catharius, Advocatorvm, xxi. This is however contradicted by Perugia’s continued appearance in documents for the Petit tyrannicide case in 1415/16 which are discussed below. For the connection between the decree Haec sancta, the council’s injunction against delegates and more specifically conciliar officials leaving Constance and the continued opera- tion of the courts there, see: Martin John Cable, ‘Haec sancta’ and the continuity of judicial process at the council of Constance: A comparison of the Jean Petit tyrannicide case and the dispute for the master-generalship of the Crociferi at Bologna’ in: AHC, 40 (2008), 443–445. Return From Constance To Padua 259 council at this critical juncture then he may have been able to use his letter as a travel permit allowing him to leave Constance. As a conciliar advocate, appointed by the council, he was precisely the kind of officer whom those still at Constance after John’s flight would not have wished to see abandon his post. Had he still been at the council on 25 March, therefore, and had he not had in his possession a letter pre-authorising his departure, then Fulgosio would have been legally obliged to stay. The fact that Fulgosio appears in his comments to his students to have been pleased by the clever manner in which he had engineered his departure would also support the idea that he left Constance in late March shortly after John’s flight and having successfully avoided falling under the new obligations which had been placed upon council officials not to leave, and not in late February or early March as a reaction to the less formal obligation which insistence by the pope that he stay would have represented. These are all, of course, conjectures, however there is one final piece of evidence which supports the idea that Fulgosio left Constance at the moment of its existential crisis in the period immediately after John’s flight. This is a letter which one of Fulgosio’s students, Stefano Giuntini,8 wrote to Guido Manfredi, the chancellor and secretary of Lucca’s ruler Paolo Guinigi in April 1415. In the letter Giuntini describes in wonderfully intimate terms the events of the very day that his master returned home from Constance to Padua. The letter was dated 23 April which provides the latest possible date for Fulgosio’s arrival in Padua. Assuming a fortnight for Fulgosio to have made the journey south, the very latest that he could have conceivably left Constance on the basis of Giuntini’s letter would have been around 9 April. Or, in other words, only a few days after the council issued the decree Haec Sancta. Giuntini’s text captures much of the affection with which Fulgosio was evidently held. The depiction of him which emerges from the letter, even allowing for the exaggeration to which such humanist documents were prone, confirms much of what has been noted already from his remarks to his students: that here was an approachable and genial teacher. Giuntini described to Manfredi an evening which he had recently spent in conversation with his teacher Fulgosio. “I do not know whether I could or ever will spend a more agreeable time than that which I lately passed with Raffaele Fulgosio”, he enthused. “For when many of us who wished to see him came to him, who had just returned from Constance the same day, and he wanted that I should talk together with him for as long as we felt necessary; to which end we carried on our conversation all day and then on late in to the night as well. At times we spoke about

8 Giuntini is recorded as a student of civil law at Padua from 1415 to 1418, appearing in records frequently at that time in the presence of Fulgosio: Zonta, Acta, 142, 186, 190. 260 CHAPTER 9 those things which I wanted and then about things which the arrival of many others often introduced.” Much of their conversation concerned private matters, Giuntini went on, and in particular Fulgosio had passed on the news of the elevation by John XXIII of Guido Manfredi’s son, Francesco da Pietrasanta, as Bishop of Luni.9 Fulgosio expressed how admired Pietrasanta had been at the council, especially by the pope.10 The new bishop had been appointed on 6 March 1415,11 but it was only now from his conversation with Fulgosio that Giuntini had apparently learnt of the promotion.12

9 On Pietrasanta and his father: Giovanni Sforza, ‘Francesco da Pietrasanta. Vescovo di Luni’, Giornale liguistico di archeologia, storia e letteratura, 19 (1892), 37–41. Guido Manfredi had apparently had to borrow money on his humanist book collection in order to help secure his son’s appointment (ibid., 38). 10 “Stefanus Juntius Guidoni parenti salutem. Nescio an ullum iocundius tempus exegerim exigamque quam quo nuper apud Raphaellum Fulgosium fui: adeo quidem ut neminem magna in leticia si modo letari datum est emulari velim. Nam cum plures visendi gratia ad eum venissemus, qui eo die a Constancia reversus erat, voluit ut una secum ius ad assem dicerem: ad quem, quoad ille dies nobis consumptus est, sermonem perduximus ac in multam noctem ascendit. Tum ex his que me virum hunc compellare movebant, tum ex eo quod adventu plurimorum quam sepius interloquebamur. Et quidem sermo ille totus de domesticis habitus est, et precipue de nato tuo Francisco viro optimo, qui, ut ait, ita se sapienter et comiter gerebat ut gratiam apud omnes reperi- ret; salutabatur miroque amore colebatur doctissimus sermonibus, ita ut de eo dicere- tur non solum apud omnes, sed multo magis apud Beatissimum Patrem summam fore benivolenciam. Postremo, et illud notabile, addidit suppremum eorum que inter nos eo die disceptata fuere, videlicet de obtentu Lunensis presulatus. Quod quam gratum mihi sit, concipere animo non posses. Nam velim ut mihi que cordi concipio dicendi facultas aperta et exposita esset quam nichil ardentius dicere possem, nichil quam mihi pocius nec gracius potest esse quam ut semper dignitati eius aliquid magni additum sentiam. Amatur a me neque ex animo meo discedit ipsius optimi atque prudentissimi viri memoria. Nam et cum te virum gravissimum amem, quoniam et pater meus semper tecum est et me doctrina et diligentia tua meliorem reddidisti, illum in memoriam tuam et in honorem tuum unice diligam necesse est. Vir est emendatus et gravis et quantum eloquencia valeat pluribus credere potes, nam plurimum fide, plurimum veritate, plurimum intel- ligentia prestat. His itaque monebar ut scriberem, ex ex tribus una hoc est, ex qua habere potes que inter nos tam presenti animo percuntata sint multis verbis ultro citroque habi- tis. . . .”, ed. Lazzareschi, Carteggio di Guido Manfredi, 90–91. 11 Eubel, Hierarchia catholica medii aevi, I: 318. 12 Pietrasanta had appointed a vicar for his see by at least 29 April 1415 and was residing there by at least August (Sforza, ‘Francesco da Pietrasanta’, 35–36). His predecessor evidently still considered himself in office on 18 March (ibid., 34) which would suggest that Pietrasanta did not announce or formally publish his documents of appointment until Return From Constance To Padua 261

Giuntini’s account of Fulgosio’s return delightfully captures a sense of the jurist’s anxiety to unburden himself of all the news from his time at the council. Even on the day of his arrival, after an undoubtedly long and arduous journey over the Alps, Fulgosio had wanted to talk and talk. He should be imagined therefore back at his home in Padua with many visitors coming in the course of the day to question him on events at the distant council and to recount all that he had seen and heard. From a contemporary perspective, the desire for the latest news may well have focused, as Giuntini had, on who was in or out of favour at court and less on the things which would subsequently make Constance so famous: on the political position of the pope and the first stir- rings of conciliarism. What also comes through in Giuntini’s account is the pleasure that came with conversing with Fulgosio. Of course Giuntini could simply be conveying to his relative in Lucca, in what now reads as an exaggerated manner, his joy at the preferment of Pietrasanta. Knowing what we do of Fulgosio from his commentaries, however, it seems more likely that the delight Giuntini had enjoyed was that of conversing through the day and long in to the evening with an engaging personality, freshly returned from having been present at one of the greatest international spectacles of the age. Furthermore, here was a jurist who had debated at the council before, and even about, the emperor and the pope, and who would have been eager to pass on all that he had seen, heard and done there to one of his own students in civil law. That it should have been specifically to one of his students that Fulgosio desired to relate his experiences also correlates with the mood which can be heard in the jurist’s commentaries. He was a man wont to pass on things which he had seen, or debates in which he had been involved, to his pupils; and was doing much the same in the conversation with Giuntini. The introduction to Fulgosio’s Digest with its conversational account of Fulgosio’s contribution to the ‘two crowns/Donation of Constantine’ debate and revelation about the clever means by which the jurist had engineered his departure from the council all fit with this picture of a jurist just returned from Constance and enthusiastically and proudly telling his students of his achievements and experiences there. It seems likely that the Digest introduction as it has come down to us, therefore, represents a lesson which Fulgosio gave shortly after his return since much the same mood which is exhibited in Giuntini’s letter of a returned teacher with much to impart also characterises the Digest introduction.

late March, perhaps indicating that the news of it was coming fresh with Fulgosio to Padua in April at the same time as Pietrasanta took steps to secure his see locally in Luni. 262 CHAPTER 9

Giuntini’s reference in the letter of 23 April to his conversation with Fulgosio having taken place recently lends strong support to the idea that Fulgosio left the assembly at the time of John XXIII’s flight or shortly thereafter. ‘Recently’ could mean days, weeks or even months, but the balance of probabilities must surely lie with a shorter period of time. Would Giuntini really have waited, for example, two months or more to write to his family to congratulate them on the Bishop of Luni’s promotion if he had heard that news from Fulgosio, say, in early March? The delight about this development which is expressed in the letter would seem to suggest that Giuntini was writing almost immediately on hearing the good news. Of course this could be a rhetorical and epistolary device, but if it was then we would have to find a reason justifying why Giuntini had delayed and only now wanted to write to his relatives in Lucca. He may have been ill, for example, or the Easter vacation may have intruded. However in the absence of this knowledge to the contrary, the face value evidence of the letter is of someone writing on having just heard news of Luni’s appointment. The date of the appointment of the new bishop of Luni is also relevant. News of Luni’s appointment may have already been rumoured or known by those close to the curia before his formal appointment on 6 March but if this was not the case, then the only way Fulgosio could have learnt of the promotion would have been had he still personally been in Constance on that day, or if the news had overtaken him on the road home.13 Again, the balance of probabilities is that Fulgosio was still at Constance when John XXIII made the appointment of Pietrasanta on 6 March and this too supports the idea that Fulgosio left at around the time of John’s flight on 20/21 March or shortly thereafter. Given that news of the new bishop of Luni could have reached Padua by other means after 6 March, through letters and reports brought back to Venice for example, suggests however that Fulgosio did not leave Constance too long after the appointment was announced. Only by leaving shortly after the appointment could he realistically have been the first messenger to bring the news to Padua. Putting all these considerations together, therefore, the most likely recon- struction for Fulgosio’s departure from the council is that he left the council in the direct and confused aftermath of John XXIII’s flight on 20 March, perhaps

13 The speed of, and limitations on, news emerging from Constance at this time can be indicated by considering the letter written by the Venetian authorities to Bologna on 19 April 1415. Venice knew by this time about John XXIII’s flight, but the papal governor of Bologna left in charge when John left for Constance the year before was evidently unaware of the pope’s precise whereabouts and condition. Venice had had to reassure the governor on these points: Dieterle, ‘Die Stellung Neapels’, 47–48. Return From Constance To Padua 263 using his cleverly obtained authorisation for departure, and that he reached Padua in mid-April with his student Giuntini settling down to write his congratulations to his Lucca relatives a few days after the day when he had sat with his master while Fulgosio recounted long in to the night all that he had seen and done ‘when he was at Constance’. If Fulgosio did indeed leave Constance in the wake of John’s flight from the council then this would potentially place the jurist among those who were opposed to the radical step that the assembly was about to take. It is known that many curial officials and other delegates did follow John XXIII in to exile and the declarations made by the council leading up to and including Haec Sancta on 6 April were all attempts in part by the assembly to arrest such a devastating exodus of conciliar officials. As one of the four conciliar advocates, Fulgosio’s departure would have been a high profile defection at this time had he indeed numbered among those whose loyalty to the pope ultimately weighed heavier on their consciences than their commitment to the general council and its cause. Fulgosio then may have been one of those who abandoned the council out of unease or opposition to the conciliar stance it had been forced to take, or he could simply have acted out of opportunism. That the pope had dissolved the assembly, even if the council itself rejected that development, may have also made a departure seem technically appropriate, particularly given Fulgosio’s known proximity to the curial party at the assembly. Whatever the circumstances, it seems less likely that Fulgosio would have still been in Constance as late as 6 April when Haec sancta was promulgated, given the date of Giuntini’s letter and of Luni’s promotion. He may however still have been in Constance when drafts of this decree were discussed, with the notable contribution which was made to that process of his former dining companion, Zabarella.14 Another possible, but rather more prosaic, explanation for Fulgosio’s departure in late March or early April was the start of the next semester of teaching at Padua. Easter fell in late March in 1415,15 and if Fulgosio returned in

14 Thomas Morrissey, ‘The Decree Haec Sancta and Cardinal Zabarella’, AHC, 10 (1978), 171ff. For the contribution of Zabarella and others in late March on drafts of the decree, also see: Michiel Decaluwé, ‘Three Ways to Read the Decree Haec sancta (1415). The Conciliar Theories of Franciscus Zabarella and of Jean Gerson and the Traditional Papal View on General Councils’, in: eds. Gerald Christianson, Thomas M. Izbicki and Christopher M. Bellitto, The Church, the Councils and Reform: The Legacy of the Fifteenth Century, (Washington: Catholic University of America Press, 2008), 131–132. 15 The courts in Lucca, for example, were closed from Sunday 24 March to Sunday 7 April 1415: ASLU, Fondaco 280. 264 CHAPTER 9

mid-April from Constance he would have arrived in time for the resumption of lessons after the Easter vacation. For the student Giuntini to have spent so long chatting to his master would have had to mean that he had either missed his class or that lessons were not being held that day. A date of mid-April would also have permitted Fulgosio to have been back in time to hear news of the jousting tournament held in Venice that Easter and perhaps of his other student, Contarini’s exploits there. Whatever the date of Fulgosio’s return, it was surely not too long before he resumed teaching and the students whom he had left four or five months earlier returned to join him each day in his class room. In their master’s absence other lecturers would have taken on his duties, and some transitional arrangements must surely have been made for these students to return to Fulgosio’s class. It may have made sense, financially as well as administratively, for him to teach multiple classes; with his Codex students rejoining him to finish their year of study on that text and Fulgosio also catching-up so to speak by lecturing to a Digest I class as well. Could Fulgosio have been prompted by the unusual position of returning mid-way through an academic year, to have transitionally or extraordinarily as it were, taught on both the Digest and Codex, in particular to lecture on their respective introductions? The more overarching aspect of the introductions would have allowed him to speak about the dramatic debate on imperial power in to which he had been drawn at Constance much more readily than whatever mundane text the class under his locum had by then reached in their annual passage through the legal codes. Several of the occasions when Fulgosio recorded his time at Constance are clustered around the end of Codex II and book one of Digest I and although it could simply have been the content of those texts themselves which prompted Fulgosio’s recollections, it is also possible that they indicate the point at which the jurist’s lessons recommenced in Padua under an extemporized and temporary teaching schedule, with the jurist eagerly using his recent experiences as, yet again, didactic exercises for class room instruction. With time however, Fulgosio’s tendency to recall his experiences in Constance would have diminished as his life in Padua returned to its customary routines of lecturing and advisory work. New and interesting legal cases or tales came to replace those which he would recount to his students from the time ‘when I was in Constance’. On 4 August 1415, for instance, Fulgosio attended the promotion of one of his students for a doctorate in Padua, with Stefano Giuntini present as a witness.16

16 Zonta, Acta, 142. Return From Constance To Padua 265

The familiar, domestic routines of his affluent life in the city would have replaced too the exotic scenes which he would have experienced at the multi- national council. In 1416 Giovanina would become a Paduan citizen and that summer began the series of property purchases which would leave her and Fulgosio as the owner of homes in the countryside outside the city. Fulgosio’s non-teaching workload also resumed. In or around the same year as Beccaria became a citizen of Padua, he was canvassed for his opinion for example on the next stage in the long-running Berindelli v. Turrellini case which was still before the courts in Lucca and for which Fulgosio had already written one consilium and which he would himself term “an immortal dispute” due to its longevi- ty.17 Both Fulgosio and his colleague Raimondi now wrote consilia to add to those of a dozen of the leading jurists of the day, to consider Turellini’s attempt this time to appeal against the verdict which arbitrators in the second process in the dispute had reached, in which he had been fined 600 florins.18 A date at the end of one of the consilia, by Jacobo di Saliceto, would date Fulgosio and Raimondi’s own contributions to before the second half of 1416 when Saliceto added his views.19 Fulgosio also referred in Codex II to having consulted “not

17 Fulgosio, Consilia, 200v. Fulgosio describes how both rival processes had been on hold, by a prohibition from Paolo Guinigi, from the time of an original decision against an appeal which had, in recent days, been lifted: “usque ad hoc tempus post latam dictam sententiam (declaring that no appeal could be heard against the merchants’ court verdict) a iudicibus delegatis viguit quaedam inhibitio facta a magnifico domino omnibus curiis, ne procederent, nec partes audirent in litibus inter Nannem et Ghorum et Simonem ver- tentibus, quam his diebus amovit. Et lis immortalis iam revirescit.” 18 Turellini’s protest was that he had not been appropriately summoned by the arbitrators in the case. 19 Fulgosio, Consilia, 4v–9r. Further evidence for a date around late 1416 comes from the contributions of Marco Canetulo and Antonio Albergati. Both of these men served on the bench in Lucca in 1414 and 1415 (ASLU, Fondaco 280 (when the court suspended sessions in 1415 because of the ill health and then death of Canetulo’s wife); Fondaco 278/279, Curia Civile 902/903). Albergati in particular was still a judge on the Podestà bench in the first half year session of 1415, for example. (ASLU, Archivio dei Notari 338, 56r/Archivio dei Notari 446, 273v). It seems unlikely therefore that they would have provided opinions on a case whilst also serving as judges in Lucca, particularly in the Podestà court where the 600fl verdict was itself processed. Canetulo, who was a judge in Lucca until at least August 1415, was later at the council of Constance as a representative of Bologna after having been involved in the revolt against John XXIII’s surviving governor there in January 1416 (Giuseppe Zaoli, Libertas Bononie a papa Martino V, (Bologna, 1916), 5 & 84; Idem, ‘Lo studio bolognese e papa Martino V (anni 1416–1420)’ in: Studi e memorie per la storia dell’università di Bologna, 3 (1912), 116). During 1416 the precise position of Bologna with respect to the council often remained unclear (see Cable: ‘Haec sancta’, 458) and it seems 266 CHAPTER 9 many days ago” on a question whose legal detail could match the consilium which he wrote on Berindelli v. Turrellini at this juncture.20 If Fulgosio was teaching Codex II on his return from Constance in what was left of the academic year 1415, then his and Raimondi’s contribution can be fine tuned to towards the end of that year, in September or October 1415. Fulgosio’s life, then, had returned to normal in Padua with cases such as these supplementing his teaching both financially and educationally in the use to which they could be put as examples for his students of the real world beyond the class-room. With students like the well-connected Giuntini sat among the banks of desks, there was even the possibility that Fulgosio’s lecturing and professional work were even more interlinked. It is quite conceivable that a student like Giuntini from Lucca could have been a go-between between Fulgosio and merchants like the Berindelli brothers in the Tuscan city. Such private cases, despite their high profile status and the wealth involved, were however a far cry from the public law debates which Fulgosio had advocated in Constance. In leaving the council at the time which he did, Fulgosio was to miss the chance to be involved in some of the greatest and most celebrated legal events of the day. He would not be at the council, for instance, to contribute to the trial and deposition of his quondam master, John XXIII, nor to witness the sophisticated legal way that the resignation of Gregory XII’s was stage-managed with its highly controversial, but pioneering, secular solution

more likely that Canetulo was not in Constance until 1417, providing an opportunity in late 1416 for him to have contributed to the Berindelli v. Turrelini case. Of course it could also be that what we are reading in Canetulo’s and Albergati’s contributions is their views as judges in Lucca being added to the opinions of the eminent jurists with the collected whole forming their verdict. 20 While discussing the Codex chapter ‘Quomodo et quando iudex’ [C.7.43.] and the idea that both parties in a case should be summoned for a valid trial, Fulgosio remarked to his students: “Simile dixi non sunt multi dies (licet fuerim parum auditus) quia utraque parte absente, non debet iudex sacramentum offerre testibus vel eorum depositiones recipere”. CODEX II, 152r. This can be compared to the argument in the Berindelli v. Turellini consilium in which ‘Quomodo et quando iudex’ is cited and the effect of both parties being absent or unsummoned in a trial is discussed: Fulgosio, Consilia, 6r. It would appear that it was to this consilium that Fulgosio was referring when he told his Codex II students that he had recently consulted using the text which they were then studying, ‘Quomodo et quando iudex’. It is notable therefore that Fulgosio also told his students that his consilium was unsuccessful which may also give an indication to the length of time involved when he referred to a consilium being written ‘not many days ago’. It would surely have taken weeks for his consilium to have been submitted to Lucca and news of its failure to have been returned to Padua. Return From Constance To Padua 267 to how religious divisions might be resolved contained in the concept of ‘real obedience’. Fulgosio did get one final opportunity however to contribute directly to a famous legal case brought before the Council at Constance and this will be considered in the next chapter. He had returned to Padua, but in this case at least he still remained connected to events at a council from which he appears to have thought he had cleverly engineered a departure and which he may have felt was about to break up and be soon forgotten. In fact the council was to continue for three more years after Fulgosio’s vessel drew anchor and sailed away across lake Constance in the direction of the Alps and its duration and on-going significance would mean that it would ultimately be recognised as one of the most significant of all international gatherings in the middle ages. Fulgosio was however no longer in Constance and his contact with the assembly would now merely be preserved in the stories that he would recount to his students of his time there and the contribution to a case at the council to which we will now turn. CHAPTER 10 Fulgosio and Constance after Constance

“Licitum esse unicuique subdito . . . secundum leges naturalem moralem et divinam occidere vel facere occidi quemlibet tirannium”

1.a The Jean Petit Tyrannicide Case

The power of the bond linking a dutiful subject and his or her superior in the middle ages can be sensed in the apparent subterfuge which Fulgosio perpetrated in order to leave Constance by presenting his employers there with the dilemma of whether to interpose themselves between the jurist and his rightful superiors who had apparently spontaneously recalled him to Padua. Such was the respect for this bond between a subject and his or her lord that another ruler or superior was reluctant to countermand it. One very famous case at the council, however, presented delegates with a direct challenge to this idea of a powerful bond of loyalty between subject and ruler. The case concerned the 1407 assassination of the Duke of Orléans and the defence of that act which had been written by a Parisian scholar, Jean Petit.1 In his tract Petit had questioned whether there were occasions when a subject was permitted to kill a tyrannical ruler and had thus suggested that the bond between subject and prince was not an unconditional one but could legitimately be broken by a subject should his or her prince become a tyrant.2

1 On the assassination, see: Bernard Guenée, Un meurtre, une société. L’Assassinat du duc d’Orléans 23 novembre 1407, (Paris: Gallimard, 1992); and Joachim Ehlers, ‘Ludwig von Orleans und Johann von Burgund (1407/1419)’, in: ed. Alexander Demandt, Das Attentat in der Geschichte, (Cologne: Böhlau, 1996), 107–121. 2 The primary studies of the Jean Petit case are: Alfred Coville, Jean Petit: La question du tyrannicide au commencement du XVe siècle, (Geneva: Slatkine, 1974); the discussion and texts in: Finke, ACC, IV: 255–352 together with the earlier work by Bernhard Bess, Zur Geschichte des Konstanzer Konzils: Frankreichs Kirchenpolitik und der Prozess des Jean Petit über die Lehre vom Tyrannenmord, (Marburg: O. Ehrhardt, 1891). Also see: Frenken, ‘Die Erforschung des Konstanzer Konzils’, 181–205 and the recent contributions by: Malte Prietzel, ‘Die Affäre Jean Petit. Rechtfertigung eines Mordes am französischen Hof’, in: ed. Karen Evers, Das Konstanzer Konzil. Katalog 1414–1418, (Darmstadt: Theiss, 2014), 278–279; Sophie Vallery-Radot, ‘Die Causa Jean Petit und das Problem des Tyrannenmords’, in: Ibid., 111–115; and Cable, ‘Haec Sancta’, 434–445.

The circumstances of Orléans’ assassination gave the question which Petit addressed its own very particular character, not least because it conflated the crimes of tyranny and treason, however in essence it tackled the moral dilemmas surrounding the assassination of a ruler by a subject.3 Orléans was the brother of the King of France and had been killed on the instructions of the Duke of Burgundy. Petit maintained that Burgundy’s action was defensible because it had prevented Orléans’ supposed unhealthy influence over the ail- ing Charles VI. Furthermore, not only was the assassination excusable, it was also laudable in that it prevented Orléans’ tyranny and treason. A subject like Burgundy thus not only could act in such a way, he had had an obligation to do so. The repercussions of Petit’s defence of the assassination were protracted and outlived the cleric himself who died in 1411. Two years later an assembly of clergy in Paris declared Petit’s ideas to be heretical and ordered that all copies of his defence should be destroyed. The Duke of Burgundy however appealed against this verdict to John XXIII in the summer of 1414 and although the convocation of the Council of Constance intervened to delay the hearing of this appeal, the three cardinals to whom the pope had passed the case began to consider it once the council had opened.4 This appeal had tight terms of reference in that the cardinals, who included Fulgosio’s friend Cardinal Zabarella, had only to consider whether or not the Paris assembly had been entitled to form an opinion unilaterally on the heretical character of Petit’s ideas and not whether that opinion was in and of itself justified. Asking whether the assembly in Paris had jurisdiction to pass judgement on such heresies was a controversial enough question given the high theological standing in which the University of Paris felt itself to stand as an institution, however it did mean that Petit’s ideas were not directly examined in the appeal heard by the three cardinals. This was a matter which was however brought before the council of Constance’s own Committee of Faith in the summer of 1415.

3 For an analysis of late medieval thought on the question of tyranny and resistance to a tyrant, see: Jürgen Miethke, ‘Der Tyrannenmord im späten Mittelalter: Theorien über das Widerstandsrecht gegen ungerechte Herrschaft in der Scholastik’, in: eds. Gerhard Beestermöller and Heinz-Gerhard Justenhoven, Friedensethik im Spätmittelalter. Theologie im Ringen um die gottgegebene Ordnung, (Stuttgart: W. Kohlhammer, 1999), 24–48. Also see the overview of the theme during the medieval period in: idem, ‘Tyrann, Tyrannenmord’, in: Lexikon des Mittelalters, (Munich: LexMA, 1997), VIII/6 1135–1138. 4 Coville, Jean Petit, 505. 270 CHAPTER 10

In the Duke of Burgundy, those defending Petit’s controversial thesis had a powerful protector at the council.5 This did not prevent outrage still being voiced by many, not least by Jean Gerson who had strong philosophical and theological objections to Petit’s countermanding of, amongst other things, the First Commandment, but who had also personally been at the receiving end of aggression from Burgundy’s agents in Paris.6 Moral outrage thus mixed with personal animosity. The juxtaposition of Christian teaching that murder was a mortal sin and chiefly Classical traditions which stressed that the ultimate concern of the good citizen was the good of society made the Petit debate an early Machiavellian moment in European history in that Petit’s defence had effectively exposed a disconnection between religious and secular morality.7 When a tyrant acted to the detriment of the common good, a good subject in the Classical tradition was obliged to oppose the malefactor. Religious thinking taught however that the salvation of an individual’s soul and not the common good of society was the ultimate objective of a good life. Christian thinkers had come to accept the idea of a just war in which a soldier could be justified in taking another’s life, however these were actions which were pre-authorised by virtue of the conflict being initiated by a prince or other public ruler. In the Petit case, however, an individual citizen was taking it upon himself to assassinate someone whom he had identified as a tyrant and had not waited for the prior approval of a superior. Furthermore, Orléans was not himself that subject’s ruler but was a fellow subject of the king. His alleged crime was more correctly therefore treason rather than tyranny. Petit had therefore appeared to have justified by the logic of resistance to a tyrannical ruler the assassination of a subject thought to be guilty of treason or rebellion. And that subject had acted unilaterally without royal sanction against the traitor. The Petit case thus raised some very profound questions about tyranny, treason and the ends of good government. On 16 January 1416 the cardinals to whom John XXIII had passed Burgundy’s appeal returned their verdict; finding

5 The Archbishop of Besançon, for example, was sent to Constance on Burgundy’s behalf. Coville, Jean Petit, 511. 6 On the particular reaction of Gerson to the controversy, see: Yelena Mazour-Matusevich, ‘Jean Gerson’s Assessment of the Issue of Religious Zeal in the Context of the Tyrannicide Controversy’, The Medieval History Journal, 16 (2013), 121–137. 7 Machiavelli, that is, in the version expounded by Isaiah Berlin (‘The Originality of Machiavelli’, in: eds. Henry Hardy and Roger Hausheer, The Proper Study of Mankind, (London: Pimlico, 1998), 269–325). On the different moral attitudes and precedents of the Christian and Classical traditions regarding resistance to tyrants, see: Miethke, ‘Der Tyrannenmord’, 36. Fulgosio And Constance After Constance 271 that the Parisian assembly had not possessed the power to determine the heretical quality of Petit’s ideas independently.8 However in the separate process before the Committee of Faith an agreement had been reached between the supporters of Burgundy and the ‘Gersoniani’ in November 1415 on a question which was to be put to delegates in order to canvass opinion on Petit’s theories. Although he had by now returned to Padua, Fulgosio was among those not at the assembly who would also contribute a view on the matter at this time. The committee distributed its question on 8 November and delegates submitted their responses to it over the course of the ensuing winter. These texts were then published anonymously on 11 April 1416, however those who wished to give their views publicly did so on 10 January.9 The question which the committee posed was structured around nine invalid assertions which Gerson had argued in September 1413 that Petit’s tract had contained. Delegates were now asked whether these accusations should be upheld by the Committee of Faith. This formulation of the question was itself not without controversy since it involved accepting that Gerson had not misrepresented what Petit had actually argued. Most delegates submitted their replies to the question before the end of 1415.10 The consistorial, and later conciliar-, advocate, Gasper of Perugia even penned his reply a day before the question was formally posed; arguing against Gerson’s views with examples drawn from civil law. Gasper’s countryman and Fulgosio’s advocatorial colleague, Simon of Perugia, added his contribution to the vote, again in favour of Petit’s ideas, at around the same time.11 Had he remained at the council, Fulgosio could well have been asked for his opinion like his fellow advocates. There was therefore a sense of continuity in his contributing to the vote at Constance from a distance. In Padua, however, he was no longer under any of the obligations of an advocate. The precise constraints on the two Perugian advocates for example are unclear. They may have written to represent their own private views as lawyers or been required to provide arguments for the party in the dispute which they had hitherto defended. Advocates were certainly employed in the dispute in this way: another conciliar advocate, Simon of Teramo, for example is known to have presented the

8 Ellies du Pin, Joannis Gersonii Opera Omnia, (Antwerp: P. de Hondt, 1728), V: 500–507. Two further documents justifying the cardinals’ reasoning for quashing the Paris verdict were given later in the year: ibid., V: 586; 606–607. 9 Coville, Jean Petit, 540. 10 Many of the votes are printed in: du Pin, Opera Omnia, V: 721ff. 11 Finke, ACC, IV: 284–285; 292–293. 272 CHAPTER 10 legal case for the Gersoniani before the committee of faith,12 whilst the advocates Ardicino della Porta and Agostino del Lante presented the case for the opposing point of view.13 Fulgosio was under no such constraints to argue for a particular party when he was back in Padua. However the fact that he provided an opinion even while no longer employed as an officer of the council does raise the question as to whether he was commissioned to do so. He could have simply provided his opinion on the controversy because of a private interest in the matter disputed at Constance, perhaps still feeling connected to it and having developed an interest in the dispute whilst he was at the council, however it seems more likely that he was asked to provide a view rather than that he volunteered one. Perhaps former friends and associates at the council petitioned the advice of their now absent colleague. It seems rather more likely however that Fulgosio was commissioned by the Burgundian party to give his opinion either to add weight to the overall vote or to clarify specific legal aspects of the dispute which had arisen. The consilium which Fulgosio provided on the question was co-signed by his university colleagues Raffaele Raimondi, Enrico Alano, Gianfrancesco Capidolista, Prosdocimo de’Conti and Benedetto Dottori.14 Their opinion thus represented in effect the collective view of the Paduan college of civil law professors. Benedetto Dottori disappeared from university records in the city in October 1416 which would date Fulgosio’s consilium to that month at the latest if Dottori’s disappearance from the records indicates that he left the university at this time. Dottori may have left for Constance himself in 1416 since he is known to have been at the council two years later15 and it is even conceivable that he conveyed the Paduans’ consilium northwards.

12 On Teramo’s involvement in the case: Brandmüller, Das Konzil von Konstanz, II: 108–109. 13 See for example the men on both sides of the debate at: Du Pin, Opera omnia, V: 526–527 & 636. Dubia presented in the earlier appeal before the cardinals by del Lante and della Porta which were then glossed or criticised by Teramo are discussed in: Cable, ‘Haec Sancta’, 437–439. Teramo studied under Zabarella in Padua and smartly cited Zabarella’s own legal teaching as a professor back at him as a criticism of the verdict which Zabarella the judge had handed down: ibid., 438–439. 14 All of the men are known to have been teaching in Padua in the 1410s, but nothing in their respective biographies at this time helps in refining the date of the consilium. 15 On Dottori, see: Belloni, Professori giuristi, 176–177; Tjarks, Das “Venezianische” Stadtrecht Paduas von 1420, 111–112. Fulgosio And Constance After Constance 273

1.b Fulgosio’s Consilium

Fulgosio’s consilium indicates that he had a copy of the Nine Assertions with him as he wrote since his arguments follow each of the assertions in turn, beginning with perhaps the most fundamental charge against Petit which Gerson had made. This, Assertion One, claimed that Petit had maintained that any subject, irrespective of whether he had been authorised to do so, could legally kill, or cause to be killed, a tyrant who conspired against the king. Such an act was also honourable and meritorious.16 Gerson considered both of these ideas to be erroneous and against the faith.17 Fulgosio summarised the opposing view that such an action by a subject against a tyrant was possible and then turned to each of the further eight assertions in turn. An array of arguments drawn not only from civil law but also from the church fathers, classical history and scripture were introduced, however these arguments did not go beyond what many other commentators would write in their respective votes on the controversy. In one specific area, however, Fulgosio did provide an incremental contribution and this concerned both the emperor’s involvement in the debate and, in turn, touched on the most controversial aspect of the case from a secular and non-theological perspective; namely that Petit had claimed that a subject need not secure his superior’s authority prior to acting against a tyrant but could act autonomously. This suggested that subjects could decide for themselves whether a tyrant should be removed and was a troubling notion to a world in which even a man as wealthy and important as Fulgosio could not readily leave a council without first obtaining at least the appearance of having obtained his superior’s permission. Individuals were not supposed to act on their own initiative but at the behest of their lawful superiors. The example of a subject acting without mandate against a ruler perceived to be a tyrant was therefore more disturbing than the widely-accepted notion that, in principle, tyrants could be deposed. It was the idea of independent action on which Dietrich of Niem, for example, concentrated in his short tract on the Petit case written in June 1415.18 The fact that technically Orléans’s supposed crime was treason and not tyranny added a further disturbing dimension to the matter. Petit thus

16 Ms. Bibliothèque nationale de France (BnF), Lat. 1485, 10r. The assertion is abbreviated in the consilium but is clearly the same as Gerson’s first assertion. 17 For example the assertions listed at: Du Pin, Opera omnia, V: 401. 18 Hermann Heimpel, ‘Eine unbekannte Schrift Dietrichs von Niem über die Berufung der Generalkonzilien (1413/1414)’, in: ed. Idem, Studien zur Kirchen- und Reichsreform des 15. Jahrhunderts, (Heidelberg, 1929), 62ff. 274 CHAPTER 10 appeared to have argued that private individuals could employ extra-judicial measures which were normally reserved for the punishment of rebels or traitors by sovereigns and rulers. For his part, Fulgosio addressed a specific legal element of the ‘mandate’ problem which touched on this theme. The technical legal issue had been alluded to at the council by the leading Burgundian, the Bishop of Arras, in early December 1415. Those who were at that time demanding, the bishop said, that Sigismund (who had left the council on a long tour of European capitals in an effort to secure support for church union) should return to the council and give a decision on the Petit question should desist in their request. Were the emperor to do so, Arras continued, and were he to find against Petit, in particular condemning the first of the Nine Assertions, then the emperor would be contradicting a law issued by his predecessor Henry VII.19 This was the decree ‘Qui sint rebelles’ which Henry VII had issued in 1312 at the time of his conflict with Robert of Naples and in which the emperor had declared that those who rebelled against the emperor could be proceeded against by anyone with impunity, even if this included their summary execution.20 Arras’s point was that if Sigismund were now to agree with the Gersonian line on Assertion One, he would be supporting an idea which was contrary to the sentiment of ‘Qui sint rebelles’. Assertion One had stated that a subject could act against a tyrant without mandate and ‘Qui sint rebelles’ appeared to have formalised much the same principle with respect to traitors and rebels. The decree had been the object of much study by jurists, most famously by Bartolus of Sassoferrato in a widely circulated gloss on the text and two of the terms contained within it: ‘rebel’ and ‘resistance’. In his work Bartolus distinguished between passive and active forms of resistance,21 and also

19 Du Pin, Opera omnia, V: 486. 20 The decree was partnered with another, ‘ad reprimendum’, which contained similar punishments and a curtailment of due process. On the contest between Henry VII and Robert of Naples in the context of these legal texts, see: Pennington, The Prince and the Law, 196–201. 21 “sciendum est quod rebellare idem est quod resistere, secundum Huguccio C. de deser- toribus l.2.lib.12 [C.12.45.0], et hoc resistere potest fieri faciendo aliquid contra, vel non faciendo, et non obediendo, vel utramque vocabuli significationem continet.” Bartolus de Saxoferrato, Consilia, quaestiones et tractatus, (Turin: Compagnia della stampa, 1589), 128v. Disobedience was rebellion, but by such action a subject was not deprived of access to justice: “Sed si aliquis solum rebellasset non obediendo principi, vel non recep- tando gentem suam, non puniebatur ipso iure, nec perdebat ea, quae iuris civilis erant”, ibid., 128v. Fulgosio And Constance After Constance 275 used the imperial edict to discuss the nature of treason (crimen laesae maiestatis). The connection between treason and maiestas raised the question of whether the sanctions in Qui sint rebelles were not only applicable to those who had rebelled against the empire but could also be brought to bear on those who had rebelled against any sovereign king, prince or city-state. Bartolus, in an argument which seemed contrary to his well-known formulation regarding the independent jurisdiction of territorial rulers and particularly cities which did not recognise a superior (“quaelibet civitas, habens distinctum territorium, quae superiorem non recognoscit, potest dici provincia”),22 argued that the sanctions were not applicable to non-imperial rulers.23 Baldus de Ubaldis had similarly maintained in a consilium from 1379 that rebellion against city-states constituted sedition and not full-blown treason.24 Qui sint rebelles was thus a text which raised a number of profound questions about the relationship between rulers and their subjects, the extent to which the latter might legitimately resist injustice and also to which, on the other side, a ruler could punish the malevolent without necessarily fully observing due process of law. In the context of the Petit case the text suggested that a subject could act as the agent of a ruler and punish those with ill intent towards the kingdom without first acquiring a legal mandate to do so. In the votes submitted on the Petit case in late 1415 which survive, however, only one individual referred to Qui sint rebelles and even then did so in an unexpansive way by using the text without analysis simply as further evidence in support of Petit’s thesis.25 In his consilium on the question, however, Fulgosio considered the main legal obstacle which appeared to prevent the text being fully applicable to the Petit case: that it referred specifically to the empire and not the kingdom of France whose rulers had long asserted that they recognised no temporal superiors and were independent of the empire. More specifically

22 Cecil N. Sidney Woolf, Bartolus of Sassoferrato. His Position in the History of Medieval Political Thought, (Cambridge: Cambridge University Press, 1913), 143. Imperial provinces could wield merum et mixtum imperium. 23 “Reges vero et civitates esto quod habeant iurisdictionem a principe, tamen eam exercent principaliter propter se, non propter principem: et sic cessat haec constitutio, quae spe- ciliter loquitur in hiis, qui machinantur contra personam principis, vel eius officiales, vel imperii utilitatem”, Bartolus, Consilia, quaestiones et tractatus, 129v. 24 See: Canning, Political Thought, 122 who describes Baldus’s argument on the point as “totally unrepresentative of his normal view of the status of such cities”. Also see: Patrick Lantschner, ‘Justice Contested and Affirmed: Jurisdiction and Conflict in Late Medieval Italian Cities’, in: eds. Fernanda Prie and Judith Shnele, Legalism: Community and Justice, (Oxford: Oxford University Press, 2014), 95. 25 Du Pin, Opera omnia, V: 829. 276 CHAPTER 10 still, Bartolus’s authoritative gloss on the decree had reined the text in to being only relevant to the empire and not to other states.26 Fulgosio indicated that this ideas could be rejected by claiming that because rulers like the French King used Roman Law, for example by using the concept of treason, then the decree could still be regarded as relevant. Such an argument was, he cautiously noted, defensible.27 Roman law was universal even if the emperor who wielded imperial jurisdiction was not universally recognised as a superior. The fact that French kings did not recognise imperial supremacy was therefore harmonised with the text ‘Qui sint rebelles’ such that the latter could still be said to be effective. The legislation did not however bind the king of France; it was effective but could not override his own intrinsic authority. It was similar, Fulgosio argued, to the situation where Roman law touched on ecclesiastical matters: its sanctions could be upheld but they did not bind the church nor restrict its authority.28 Fulgosio’s amendment of Bartolus’s text meant that, amongst other justifications, Qui sint rebelles could be used to defend the legality of the first assertion attributed to Petit. A subject, even a subject of the King of France, could without additional mandate kill someone who was acting with treasonable intent against the king, just as Henry VII had declared that a subject could act summarily against rebels of the empire. This apparent contentment at the setting aside of due process sits rather uneasily with the remark which Fulgosio had once made to his students about the peasants who were betrayed by their suspiciously dirt-free, un-peasantlike, hands and executed without trial. In the Petit case, Fulgosio however supported the idea that those who were deemed to be guilty of treason or rebellion could be proceeded against summarily. The Duke of Burgundy was justified in having

26 Fulgosio may well have had a private copy of Bartolus’s gloss on ‘Qui sint rebelles’ to hand as he wrote his consilium since he referred to Bartolus’s discussion as being a gloss on the term ‘rebellando’ “et incipit ‘resistendo’ in tercia columpna in verbis ‘de penis horum rebellini’, et in ultima columpna”, ms. BnF, Lat. 1485, 12r. The reference is thus to: Bartolus, Consilia, quaestiones et tractatus, 129r–130r. 27 “Et licet Barth. in eadem glo. videatur dicere ea novissima constitucionem (i.e. Qui sint rebelles) ad alius reges non pertinere sed ad solum regem romanorum cum tamen non- nulli reges nullum omnino sibi superiorem de facto nec de iure sicut asserunt recogno- scentes et in suis regnis ius sibi romanorum principis vendicantes et quo ad crimen lese maiestatis et quo ad cetera beneficia principalia romano iuri non quasi romano sed quasi suo per usum et approbacionem preservantur, videretur probablibus argumentis defendi posse.” ms. BnF, Lat. 1485, 12r–v. 28 “Sicut in simili dicimus de legibus romanis que clericos qui aliene et qui maioris iurisdic- tionis nomine ligant neque sua auctoritate perstringunt.” Ibid., 12v. Fulgosio And Constance After Constance 277

Orléans killed therefore rather than seeing him arraigned for high treason. In the classroom however Fulgosio had asserted that the peasant who were, in the eyes of their persecutor, ‘rebels’ and thus constituted a much closer fit to both the terminology and object of Henry VII’s text were nevertheless to be afforded a trial. His revision of Bartolus’s argument on ‘Qui sint rebelles’ in the Petit case however suggested that the leader who had captured the peasant militia in Lombardy would have been able to claim that they were rebels and execute them forthwith. One way to reconcile this apparent inconsistency would be to argue that the peasants’ and Orléans’ cases were actually dissimilar. The former were the victims of tyrannical action, the latter an alleged tyrant. However it was equally possible to argue that, in their disobedience and illegal bearing of arms, the peasant militia were precisely the type of rebels against whom a sovereign ruler could act summarily by invoking the powers contained in ‘Qui sint rebelles’ which Fulgosio unlike Bartolus had made more accessible to other rulers and not just confined to the emperor. If the text was applicable to the king of France, might it not also have been used by the duke or his subordinate in the peasants’ case to proceed against those bearing arms against their government? Similar apparent inconsistencies appeared in the work of both Bartolus and Baldus on this topic. Baldus would for example argue that those involved in an uprising in Florence could only be guilty of sedition and not treason, yet elsewhere stressed the authority of territories like the Tuscan city. In the counter direction, Fulgosio had defended due process in his classroom but then effectively restricted access to it in the Petit case. Another explanation for this inconsistency is that Fulgosio was simply writing in two different contexts. In the Petit case he presented arguments in order to shore up the use of ‘Qui sint rebelles’ for the situation then being discussed and showing, in terms couched it should be noted in the conditional, how that text could be made to fit the particularities of the Petit case. It appeared likely, he had written, that the argument extending the text’s applicability to all kings and not just the emperor could be defended. In his classroom, however, instead of offering legal advice he was educating his students in the general principle that natural law protected due process.29

29 Kenneth Pennington has suggested that the charge of inconsistency against Bartolus on this issue owes something to anachronistic reading by scholars interested in the tension between imperial power and that of independent kingdoms or the territorial states of Italy. See: Pennington, The Prince and the Law, 196–197. 278 CHAPTER 10

Had the occasion ever arisen a jurist like Fulgosio would have been able to bring these two apparently dissonant positions in to harmony, perhaps by using a distinction like that between the victims of a tyrant and the tyrant himself, or subjecting the term ‘rebel’ to much closer inspection and making it more of an elusive target for those who wished to invoke Qui sint rebelles. Orléans had been a rebel, he could have argued for example, but a tighter definition of that term precluded the peasants from suffering Orléans’ fate. Semantic analysis like this to soften the meaning of a term or phrase here or strengthen one there in order that it could be made to fit an existing piece of legislation were often the tactics of choice for jurists. They were much more likely to use them than to state an universal principle which might have simply struck Qui sint rebelles out as ipso iure invalid and as a blazon affront to due process. Authority was not normally attacked in such a direct manner. Instead the meaning of authoritative texts was modified by interpretation, rhetoric and semantics to fit, on the one hand, an impersonalised ideal of how rulers should behave and, on the other, the particular circumstances of the case under consideration and the jurist’s role in it.

2 The Defence of the Jews of Ferrara

This phenomenon can be witnessed again in a consilium which Fulgosio wrote after the end of the Council of Constance, probably shortly after 1419. The question concerned the Jewish community in Ferrara and the impact on them of a bull issued by pope Martin V. Martin had been elected at the council in 1417 in an unique conclave which united the college of cardinals with representatives selected by each of the, by-then, five nations at the council. The national voting structure of the assembly which Fulgosio had played his part in helping

In this reading an inconsistency is made to appear which may not have concerned contemporaries; namely that jurists claimed independent power for city-states on one hand but resisted the apparently obvious extension that such jurisdictionally powerful cities possessed maiestas and could sentence individuals for the crime of treason. Instead the interaction of constitutions like Qui sint rebelles and Ad reprimandum with the ius comune’s view of due process and other aspects of received legal wisdom may have been more important. Legal concerns, not those of political theory, were therefore to the fore. In Fulgosio’s case, however, the inconsistency did concern due process. He had defended its application to the (allegedly) rebellious peasants yet appeared ready in his consilium to sanction the kind of summary justice which Orléans’s assassination represented by unfettering Qui sint rebelles from the restrictions which Bartolus had imposed on it and making it applicable to France as well as the Empire. Fulgosio And Constance After Constance 279 to establish had thus been incorporated in the conclave which would elect a new pope and bring the schism finally to an end. In January 1419 on his journey south through Italy and back to Rome after the end of the council Martin was petitioned by the Jewish community to issue an edict protecting them from persecution. At some point quite possibly shortly after the resulting papal bull was issued Fulgosio wrote a consilium discussing the effects of the new decree on the Jews of the city of Ferrara.30 The specific motive for the consilium is unclear but it is possible that it originated in a request by Ferrara’s Jewish community to have the status of the new bull, ‘sicut judeis’, explained in the context of local legislation.31 One clause in particular within a decree which purported to offer the community protection stands out as likely to have prompted concern. It appeared to suggest that, where local custom had habitually required it and despite the publication of the bull, Jews could still be compelled to wear distinctive clothing or signs. It is easy to imagine that the community in Ferrara may have wanted an eminent jurist to clarify the legal position of this clause. His clarification and the bull itself could then be placed together to create a stronger position, perhaps then to be used as a defence in any eventual court case. Martin V himself passed through Ferrara in 1419 only shortly after the new bull had been issued and it is therefore also possible that the local Jewish community wanted to obtain legal advice on the legislation as soon as they became aware of its proclamation. The community in Ferrara was an important one and had been one of the six communities represented at the recent Jewish assemblies which had been held concurrently with the Christian council in Constance, at neighbouring Bologna in 1416 and in 1418 at Forlì. It had been at that latter assembly that it had been proposed to seek protective privileges from the new pope.32 It seems likely therefore that if the Jews in Ferrara requested Fulgosio’s advice on the new bull that this was part of the overall process of obtaining a new and effective bull. Fulgosio had been approached by a Jewish doctor in Padua to clarify the law there regarding a marital dispute

30 Fulgosio, Consilia, 210v–211r. The consilium has also been analysed by: Giuliano Marcheto, ‘Legge, statuto, diritto comune nei consilia del Quattrocento’, in: Challenging Centralism: Decentramento e autonomie nel pensiero politico europeo, (Florence: Florence University Press, 2011), 55–57. 31 For the text of the bull issued on 31 January 1419 in Mantua: Shlomo Simonsohn, The Apostolic See and the Jews, (Turnhout: Brepols, 1989), 679–681. 32 On the assemblies, the approach to Martin V and their expectations of the costs involved in obtaining the new pope’s protection: Léon Poliakov, The Jewish Bankers and the Holy See: From the Thirteenth to the Seventeenth Century, (London: Routledge & K. Paul, 1977), 73–74. 280 CHAPTER 10 before the podestà, and it is easy therefore to imagine a similar approach being made perhaps through Paduan intermediaries for Fulgosio to clarify the legal consequences of the papal bull and its apparent loophole permitting Jews to still be coerced to wear clothing to distinguish them from Christians when that practice had locally been of long standing. The introduction to Fulgosio’s consilium shows that the community in Ferrara had firstly remonstrated that they had not been subject to such an oppressive requirement for a very long time.33 Their concern however, was whether on the basis of the statement contained in Martin V’s new bull, the local authorities in Ferrara would be able to re-introduce such a measure in future.34 More specifically and technically, an alert individual in Ferrara may have noticed that the new decree omitted certain derogating clauses which were normally thought to be required if a pope or prince intended to override existing rights or local laws like a local statute requiring Jews to wear distinctive clothing. Similar derogating clauses had been central to both the Riva di Trento case and the Paolo Dotti case from Verona which Fulgosio had considered. In the Ferrara case he would have to consider them again but in a somewhat different manner. The derogating phrase in the Ferrara case appeared in the context of the relationship between Martin V’s new edict and Innocent III’s notorious decree of 1215 from Lateran IV, ‘In Nonnullis’ [X.5.6.15], which governed the wearing of distinctive clothing by Jews. It appeared at first sight, Fulgosio began his consilium by noting that, because Martin’s bull had omitted the phrase ‘non obstantium’, the new bull had failed to override existing legislation like ‘In Nonnullis’.35 Without the required derogating clause, the bull would not have annulled the

33 Although the practice may have died out, two Jews seeking to become Ferrara citizens in 1427 still had their citizenship applications include a specific statement that they were not to be forced to wear a distinctive sign “as other Jews in Ferrara are held to do”: Adriano Franceschini, Presenza ebraica a Ferrara, (Ferrara: Leo.S.Olschki, 2007), 135. 34 “Proponitur quid in civitate Ferrarie ex longissimis temporibus habitarunt iudei habitum vestium deferentes consimilem habitui Christianorum nec ullo penitus signo vel qualitate distinctum. Novissime quoque a sanctissimo domino domino Martino papa quinto super hoc etiam literas apostolicas apportarunt, ut ad deferendum signum ultra antiquam consuetudinem civitatum et locorum in quibus habitaverint ab aliquo nullo tempore constringi possint. Queritur an possunt cogi a potestatibus ecclesiasticis vel sec- ularibus ad deferendum signum aliquid per quid ab Christicolis dignoscantur.” Fulgosio, Consilia, 210v. 35 “Et videtur prima fronte dicendum quod sic per c. in nonnullis. de iudeis, [X.5.6.15] nec privilegio eis concesso per papam Martinum, ut prefertur, excusari possint, cum sit contra ius scriptum nec habeat debitas clausulas “non obstantium”. Ibid., 210v. Fulgosio And Constance After Constance 281 injunctions against Jews to be found in Innocent III’s instruction to Christians nor cancelled any existing local customary rights and laws requiring Jews to dress in a specific way. In tackling these issues Fulgosio began by asserting the potential power of local customary law. In certain circumstances, when a local custom was consonant with the teaching of canon and civil law, it would trump positive law which had contradicted it. The requirement, Fulgosio went on, for Jews to wear distinctive items of clothing or signs however did not emanate from divine or natural law, nor was it found within civil law or in the teaching of the church fathers or early popes. It originated purely from Innocent’s decree.36 It was, in other words although Fulgosio did not specifically use the expression, positive law and local custom could thus override it. So, however, could Martin V’s new decree. Having reduced the power of Innocent III’s decree by holding it up to the teachings of both natural and divine law and classifying it as positive law, Fulgosio next had to address the possible contradiction within Martin’s new bull. He had stated that the Jews could not be forced to wear distinctive clothing unless they had habitually been required to do so locally. Fulgosio glossed and expanded this clause in order that it appeared to refer to only those customs which were themselves consonant with the teaching of existing canon, civil, natural and divine law.37 In other words the exception clause was denuded of all meaning and converted in to a contradiction in terms. The only customs

36 “sciendum est, quod ius illud, quod sancitum est, iudeos debere signum aliquod deferre quo dignoscantur ab orthoxis et fidei Christiane cultoribus, non ex iure divine, seu naturali, nec civili constitutum est, nec antiquorum pontificum, aut sanctorum patrum insti- tutorum decretis, sed ab Inno. tertio Romano Pontifice in generali concilio constitutio processit, ut in prealleg. c. in nonnullis, antea namque et secundum antiqua patrum decreta nulla in vestibus aut huiusmodi inter Christicolas et Iudeos discretio penitus in plerisque provinciis protinus habebatur, ut ex preallega. ca. in nonnullis aperte deprehen- ditur.” Ibid., 210v. 37 “Hiis premissis consequens est, quod rescriptum domini Martini, de quo premittitur, quo statuitur et ordinatur, ut non constringantur ad deferendum signum aliquod ultra antiquam consuetudinem civitatum et locorum, in quibus iudei habitant secundum istam consuetudinem servare teneantur, non est contra ius, sed secundum ius rescribit statu- ens, consuetudinem antiquam civitatum et locorum super hoc debere servari, quod et circa rescripti huius auctoritate fieri debuisset antique et legitime prescripte consuetu- dinis potestatem, quae cum sit rationabilis et divino, ac civili ac decretorum et canonum antiquorum iuri consentanea, nec ullis canonibus improbata, quin est ab ipso Romano pontifice et suis plurimis predecessoribus, quorum nominatim meminit, et eorum se ves- tigiis inhaerere testatur, specialiter approbata, et antiquissimo tempore custodita, ipsam consuetudinem Innocentii et generalis concilii debet in illis civitatibus et locis, quibus 282 CHAPTER 10 which would be captured by the exception clause would be those which had habitually required Jews to wear specific clothing but had done so in accordance with divine, natural and civil law which themselves did not require such things; an evident contradiction. Fulgosio next dismissed the objection that Martin’s bull did not include the necessary derogating clause in order to override existing law or rights. This was incorrect, the jurist argued, since the bull was not countering existing law but acting in accordance with it. In other words, because the new bull was in agreement with natural, divine, canon and civil law teaching it did not need to include such phrases.38 It was only overriding an existing piece of positive legislation (Innocent III’s bull). It followed, Fulgosio concluded, that Martin’s bull had not opened a loophole whereby the Jews of Ferrara could be obliged to wear a sign or any distinguishing items of clothing due to the ancient customs of the city.39 In less than two folio pages, then, Fulgosio had set aside Innocent III’s notorious edict as a piece of positive law which could simply be annulled and at the same time had clarified the ‘meaning’ of Martin’s new bull in order to drain the ‘except for’ clause apparently permitting cities where Jews had historically been obliged to wear a sign or distinctive clothing to continue doing so of all its value. That exception clause in the decree was rendered meaningless. The precise relationship between Martin’s bull and Innocent’s earlier edict had also been clarified. The latter was positive law and it had now been overturned. Such re-readings of papal bulls or princely rescripts were a common activity for jurists as Fulgosio’s contributions to the two Verona cases considered in chapter two above and the Ferrara case showed. In the Dotti case Fulgosio had, for example, noted that the imperial text included the derogating phrase ‘non obstantium’ but had devalued it by arguing that it was, in effect, the incorrect legal tool for the specific job at hand and therefore ineffective. In the Ferrara case he had explained the absence of that same clause by pointing out that it

est, vetustissimis observata temporibus specialiter observare, superare, atque ei deroga- tum iri cum res in ius antiquum facile remittatur.” Ibid., 210v. 38 “etiam si in ipso rescripto non fuerit inserta clausula saepe dicta, non obstantium caeterum, ut supra manifeste probatum est, haec disputatio supervacua est, cum non contra ius communem concedat, sed secundum eorum antiquam consuetudinem, licet iuri positivo contrariam, quae est canonibus in probata, et antiquis iuribus consentanea, praecipiat observari.” Ibid., 211r. 39 “Concludendum itaque relinquitur per superiora non obstantibus hiis que in diversam partem proposui, quaeque per superiora solvuntur, dictos ebreos contra antiquam civitatem Ferrarie constitutionem et consuetudinem, et literas, ac apostolica praecepta ad signi cuiuscunque delationem nullatenus astringendos.” Ibid., 211r. Fulgosio And Constance After Constance 283 was unnecessary given that positive law was being overturned. In the Riva case a derogating phrase had been present in the princely text but its ineffective- ness against natural law was stressed over and above the other rights in the case on which the prince had apparently intruded. In all of these examples the authority of the princely or papal text itself was not questioned. Instead its language and terminology was manipulated and reinterpreted in order to create a sustainable, convincing and defendable narrative. In the Ferrara case this process meant that the derogating clause’s absence ceased to be a problem and was transformed instead in the retelling of the text in to evidence in support of the argument which Fulgosio was making. Far from being a problem or a weakness, the clause’s absence was, as it were, additional proof that Innocent III’s text was positive law and could be overturned; while in the Dotti case, the inappropriateness of the clause for the task at hand had been supportive proof that the emperor had responded correctly to an intrinsically invalid petition from a subject. Fulgosio’s legal interpretation of the princely texts therefore remoulded them to create a meaningful narrative which re-explained the princely text and the terms within it as supporting the general point which he was making: that the Jews of Ferrara should not be compelled to wear distinctive clothing and the legitimate Dotti siblings were not to lose out to their illegitimately born nephews. Whether Fulgosio’s particular attempt to achieve these narrative reinterpre- tations was successful would depend on how persuasive his harmonisation of the princely text to the vast corpus of existing law felt to other jurists or to judges in a court of law. Other lawyers, less well disposed towards the Ferrara community for example, might have exploited the same exception clause whose importance Fulgosio had sought to eliminate. If they could present that exception clause as more meaningful than the redundant non-sequitur to which Fulgosio had converted it, then they might have been able to argue that, without the presence of a derogating clause in the bull to show that the pope acknowledged he was overriding local customs, then those local customs remained in place as indeed a superficial reading of the bull suggested. It is for this reason that the modern reader can so often come away dissatis- fied from his or her encounter with the works of a medieval jurist. Fulgosio formulated no straightforward statement of toleration in reply to the question posed from Ferrara; nor did he develop a general theory of regi- or tyrannicide in his consilium on the Petit case. His job was not to write theory or develop overarching principle, but to take a particular puzzle and harmonize it with existing legal teaching using the skills of rhetoric, his immense and inter- nalised memory of the corpus, and interpretational subtlety. The argument developed like this was then itself only ever one part of a debate, where other 284 CHAPTER 10 jurists would prepare counter arguments with the combination or harmonisation of the two forming, through a court or conciliar decision, an eventual collective answer. It is for much the same reason that, at Constance itself, the Petit case reached no ultimate or definitive solution. A convincing harmonisation between the two sides of the debate was not possible. One could have been attempted, and there were those during the assembly who attempted some face-saving reconciliation on the issue, but such an argument would simply have felt too contrived. For similar reasons again, the Jews in Ferarra could only count on Martin V’s bull to protect them for as long as they could convince a magistrate that it did so. If they presented the bull together with Fulgosio’s consilium they had more hope that it would prove convincing, but the cultural environment in which Fulgosio lived and worked meant that his interpretational and rhetorical approach to the decree could always be performed in the opposite direction by another less well-disposed opponent and Martin’s supposedly protective edict be converted in to something more hostile. The greater the eminence of the jurist whose support the community had obtained, therefore, and the greater the number of his fellow lawyers who concurred with his interpretation of the bull, the more certain the community could be that the pope’s decree had really protected them. The successful harmonisation of a new bull like Martin’s in to the existing legislative framework and the gradual accretion of a consensus amongst fellow jurists for that harmonisation was the way that a new principle was established in the ius commune. CHAPTER 11 Fulgosio’s Final Years in Padua

“Cum heu mundi vita velut umbra pertranseat . . . et ea quae visibilem habent essenciam tendunt visibiliter ad non esse”

Following his return from the Council of Constance and with only a few minor exceptions, Fulgosio remained in Padua for the rest of his life. His teaching at the university appears to have only been subject to interruption on a few further occasions when he was again summoned to Venice. He journeyed to the city for example in 1418 and again in 1421, having written a consilium addressing trading rights in the Adriatic possibly for his Venetian masters at around this time.1 In December 1426 he was in Venice once more to advise the city on its peace treaty with Florence and to be present together with his university colleagues Raffaele Raimondi and Prosdocimo de’Conti when that peace document was signed.2 His and their joint analysis of the treaty still survives.3 Outbreaks of the plague also reportedly forced Fulgosio to abandon Padua temporarily for the safety of the countryside in the years after Constance, perhaps to one of the properties that he and his wife had bought a decade before. Fulgosio’s affluent lifestyle also continued after his return from the general council. His salary at the university in 1422 reaching one thousand ducats a year by which time it represented 40% of the university’s entire budget for canon and civil law.4 His investment of this money also continued, both on a grand scale and in the more modest form of loans to his students and others. At his home in February 1426, for instance, he lent seven gold ducats to Lazzaro Arcelli, Count of Val Tidone, a condottiere in exile from Piacenza.5

1 In c.1421–1422: Ugo Petronio, ‘Venezia, Ancona e l’Adriatico in un consiglio di Raffaele Fulgosio e Raffaele Raimondi da Como’, in: Scritti in onore di Dante Gaeta, (Milan: Giuffrè, 1984), 539. 2 Ed. Cesare Guasti, Commissioni di Rinaldo degli Albizzi per il comune di Firenze dal 1399 al 1433, (Florence, 1869), III: 147. 3 Ms. Biblioteca Classense Ravenna, 485/III, pp. 229–237. Prosdocimo de’Conti and Raffaele Raimondi added their names to the consilium authored by Fulgosio. 4 F. Bottaro, Studium Paduanum e ducale dominium nel lungo Quattrocento [Doctoral thesis], (University of Padua, 2010), 53. 5 ASPd, AN989, c.32/Tabularium t.13, c. 127v. Val Tidone was where Fulgosio had been granted land as part of his first wife’s dowry in 1396. The widow of Lazzaro Arcelli’s brother, Bartolomeo, was also present as the loan was received.

A succession of students also came under Fulgosio’s wing as the jurist continued to teach at the university with some of these students continuing to live at his own home. At around the time of the Arcelli loan these included his own nephew, Aluisio, the son of his brother Antonio.6 It must also be around this time that both the future Bishop of Brescia and papal legate to England, Pietro del Monte7 and the son of the humanist Gasparino Barzizza studied under Fulgosio. Barzizza would write to his son at Padua, for example, in advance of a public disputation which he was about to make and encouraged him to be brave, mature and to “listen to the advice of your Doktorvater, Raffaele [Fulgosio].”8

1 Succession Disputes: Canosa and Straubing/Holland

In this late period in his life, in or around 1426, Fulgosio was also still involved in providing advice on major legal issues in addition to advising on international peace treaties. Two of his surviving consilia also indicate that Fulgosio advised on two international succession disputes in this period. One concerned the ultimate fate of the estate of Pieretto d’Ivrea, the Count of Troia, and his possession of Canosa in Puglia. On d’Ivrea’s death, perhaps from poison,9 this possession had passed to the count’s infant son, Pier Paolo with his mother, Margherita della Marra acting as the child’s trustee. On her death, her new

Lazzaro Arcelli’s father, Filippo, had ruled Piacenza briefly at the time of the council of Constance but both he and his son were expelled from the city in 1418. They were subsequently hired by Venice and Filippo commanded the republic’s forces in successful cam- paigns in Friuli in 1419/20. In 1420 he was in Padua to honour a vow he had made to visit the shrine of St. Anthony and was buried in the city in 1421 (Mallet and Hale, Military Organisation, 30–31; 206; Vittorio de Donato, ‘Filippo Arcelli’, DBI, 3 (1961), 751–752). Lazzaro was similarly employed as a condottiere in the 1430s in Southern Italy and was taken prisoner by the Genoese around 1435 and handed by them to Milan: Giovanni Agazzari and Antonius Franciscus Villa, ‘Chronica civitatis Placentiae’, in: ed. A. Bonora, Monumenta historica ad provincias parmensem et placentinam pertinentes, (Parma: Petri Fiaccadori, 1862), III: iv. In 1443 he was however again in Padua as a guest of the university (Giomo, ‘L’Archivio antico’, 460). 6 ASPd, AN989, c.32/Tabularium t.13, c. 127v. 7 Pietro del Monte, Repertorium utriusque iuris, (Padua: J Herbort, 1480), § Bannum, § Coniuncta persona, § Legatum, § Libellus, § Statuta, § Substitutio & § Vassallus. Del Monte also studied under Raffaele Raimondi. 8 Ludwig Bertalot, ‘Die älteste Briefsammlung des Gasparino Barzizza’, Beiträge zur Forschung 2 (1929), 76–77. 9 Ferrante della Marra, Discorsi delle famiglie estinte, forastiere, o non comprese ne’ seggi di Napoli, imparentate colla Casa di Marra, (Naples, 1641), 30; Salvatore Fodale, ‘Peretto de Andreis’, DBI, 33 (1987), 255. Final Years In Padua 287 husband Francesco Orsini became the child’s protector and had, together with his brother, evidently sought to obtain Canosa in his own and not his step- son’s right. Fulgosio had to examine the question of whether a tutor could indeed act as Orsini had done; a subject which was complicated by the fact that Canosa may not have been fully owned by Pier Paolo’s father in the first place. He had been given the town in return for a loan to the Queen of Naples. The Orsini brothers were in effect therefore repaying this loan, thereby freeing up the citadel to become fully theirs in due course.10 This property transaction was of little technical legal significance, intricate though the details were of who had bought what and when and where. The interest in the consilium lies in when Fulgosio may have written it. It must post- date the death of Margherita della Marra, who married Orsini in 1418 and with whom she then went on to have two daughters.11 Orsini then remarried in the mid 1430s after della Marra’s death. This would suggest that della Marra died in the mid-1420s, and therefore that Fulgosio’s consilium could have been composed by him very late in his life; in 1426 or even 1427.12 The same thing can be said with rather more certainty about a second consilium which Fulgosio composed regarding a separate succession dispute. Unfortunately, as with the ‘anonymous archbishop’ case, this consilium lacks obvious clues as to the identity of the litigants. Fulgosio mentions that it concerns the estate of a certain Johannes, but does not give his surname, nor any of those of the relatives caught up in the case beyond identifying their first names. A second consilium attached to Fulgosio’s by his one-time colleague at Padua, Taddeo da Vimercate, contains a few more personal names and also included a genealogical tree. Although this too includes only first names, it is possible from it to identify the four cousins at the centre of the succession dispute. These are named as Henricus, Ludovicus, Ernestus and Willhelmus but the tree also gives their respective father’s and grandfather’s first names. Taken together these are a match for the Wittelsbach Dukes of Ingolstadt, Landshut and Munich; Ludwig VII, Heinrich XVI and their cousins, the brothers Ernst and Wilhelm of Munich. The Johannes thus mentioned by Fulgosio, whose

10 The consilium is at: Fulgosio, Consilia 1607, 113–115. A separate consilium mentioning Naples and a minor named “Pierus” and whether he could legally borrow money from a Florentine and which may well involve the same individual is at: ibid., 72. 11 Jacopo Immhof, Genealogiæ viginti illustrium in Italia familiarum in tres classes secundum . . ., (Amsterdam, 1710), 318. 12 Queen Johanne of Naples (d. 1435) transferred at an unknown date the title to the possessions to Francesco Orsini on della Marra’s death: Fedele Savio, ‘Rinaldo Orsini di Tagliacozzo signore d’Orvieto e gli Orsini di Tagliacozzo, di Licenza e di Campodifiore’, Bollettino della deputazione di storia patria per l’Umbria, 3 (1897), 187–188. 288 CHAPTER 11 discussion of the relationship between the individuals in his consilium also matches the family tree, is Johannes III of Straubing and Holland.13 Johannes’s death in 1425 had ushered in a succession dispute since he was the last of his particular branch of the Wittelsbach line. Local inheritance laws meant that his de iure possessions in Holland could pass to a female relative, but the inheritance of his Straubing lands could not and this provoked a three way dispute between Ludwig, Heinrich and the brothers Ernest and Wilhelm. Ludwig wanted to obtain all of the estate, whereas his cousins argued for a three or perhaps four way division of the inheritance. Political animosities intervened in the question as well and the legal dispute was brought up in a regional Diet in 1426. The Emperor Sigismund was also petitioned for a ruling on the question. He passed the case to the prince-Archbishop of Mainz in the summer of 142614 and it therefore seems likely that Fulgosio’s consilium formed part of that legal process before either the imperial court or in connection with the archbishop’s examination of the case. Both Fulgosio and Vimercate considered the particular legal puzzle of whether the division of the estate should be three- or four-fold. In other words whether the two brothers Ernest and Wilhelm should share one third of the whole estate or each separately receive a quarter of it. Both jurists argued for the latter, per capita, solution in which all four cousins received an equal share.15

2 Fulgosio’s Death

The probable date of Fulgosio’s consilium on the Straubing case means that it must have been one of the last contributions which the jurist completed in his study in Padua addressing a major international case. In late 1426 a protracted epidemic of plague struck the city again and, the following year, both Fulgosio and his long-time colleague Raffaele Raimondi fell victim to it. Perhaps on this occasion Fulgosio had decided not to exchange the city for the countryside,

13 Fulgosio’s consilium is in: ms. Stiftsbibliothek, Kremsmünster Codex 4, 8r–v with Vimercate’s at ibid., 8v–10r, including the genealogical tree at 10r. Raffaele Raimondi co-signed the consilium with Fulgosio. 14 Theodor Straub, ‘Das Straubinger Erbe und seine Eingliederung in die Teilherzogtümer (1425–1429)’, in: eds. Max Spindler and Andreas Kraus, Handbuch der bayerischen Geschichte, (Munich, 1988), II: 267–268. 15 As Fulgosio put it: “ubi successione de cognicione quinti gradibus (all four of the dukes were second cousins) agitur, dividi hereditatem in capita non in stirpes. Et ita indubitate tenendum est.”, ms. Stiftsbibliothek, Kremsmünster, Cod. 4, 8v. Final Years In Padua 289 or had followed the example of the Bishop of Padua who also perished at the hands of the disease in 1427 having fled the town for the sanctuary of the country but then returning to the city too hastily.16 Perhaps Fulgosio had simply thought it was either safe to remain in the city or to return to it and had therefore chosen to continue teaching. There is even some evidence that Fulgosio had worked right up to the end.17 A consilium which he dictated concerning the fate of the Enrico Trissino estate (about which he had been involved previously),18 ends with his apparently frail signature. Below it, the jurist Paolo da Castro co-approved the consilium and what his “esteemed” colleague “of late memory” had written.19 Castro added his seal to the document which already contained Fulgosio’s own, with its picture of the jurist sat at his desk with his family’s coat of arms propped to its side. It is conceivable that Castro, who would arrive in Padua shortly after Fulgosio’s death to lecture, added his signature to complete the work before it was forwarded to the client or court. It would appear that, in the interim

16 On the bishop: Scipione, l’Istoria ecclesiastica padovana, 20. 17 The last references to Fulgosio’s public activities outside the university of which I am aware date to January and February 1427. On 4 January he was a witness to a dowry payment before the podestà together with a law student, Taddeo de Regio (ASPd, Atti giudiziari civili, Sigillo b.95 f. 3, 28r) whilst a month later on 7 February a case for which he and Raffaele Raimondi had evidently been acting as arbitrators was passed to other arbitral judges (ASPd, Atti giudiziari civili, Sigillo b.96 f.1, 15r and see ibid., 13v). 18 See above, note p. 45, n. 81. 19 Ms. Biblioteca Classense Ravenna, 485 VII, p. 226. The consilium is also the last by Fulgosio in the broadly chronological series of consilia in this collection. Castro is recorded as having taught in Padua from at least 1429 (Zonta, Acta, V: 234), and was still in Bologna in the autumn of that year (Belloni, Professori giuristi a Padova, 284). In 1428 the Venetian authorities were actively looking for a jurist to teach alongside Capidolista and if Castro did indeed add his name to a late consilium of Fulgosio it is possible that a formal connection of some kind obliging him to Padua existed before his arrival in 1429. In his Memoirs, Capidolista also mentions in 1428 that Castro was teaching along side him in Padua: ibid., 284. For an example of Castro using a consilium by Fulgosio to support his case, see: Paulus de Castro, Consilia (1580), II: 126r. Castro refers here to having a copy of a Fulgosio consilium in a letter giving his views on a series of allegationes in a case which he says he will send to his correspondent; a good example of how jurists would provide legal arguments to support one party in a dispute. As Castro put it: “Quia in allegationibus per me factis volui omnia tangere quae pro parte nostro quoquo facere possunt”. Castro also mentions making comments on the documents he has been sent in the margins, which is something seen in surviving trial documents as an expert added his wisdom to papers already prepared, perhaps by a local lawyer or advocate. 290 CHAPTER 11 between Fulgosio completing the consilium and Castro signing it, Fulgosio had died. Anyone who contracted the plague at this time was not likely to have lived for long, even a man with the kind of financial means at his disposal to engage the best physicians which Fulgosio possessed.20 Fulgosio prepared his will in September and it can therefore be assumed that he had contracted the disease only a short time before, in the closing weeks of the academic year. The will, which was written at Fulgosio’s home on Thursday 11 September, still survives.21 His long-serving beadle, Arcangelo de’Medici, was present to witness the document together with eight other individuals including some of Fulgosio’s students. “Since the life of this world passes swiftly by like a shadow, where nothing under the son endures and the visible world begins to disap- pear”, the notary writing the document for Fulgosio formulaically began. Giovanina Beccaria, Fulgosio declared through the notary, was to be his heir, however a string of special legacies were to be bequeathed to other beneficiaries. Fulgosio’s share of the Fulgosi family ancestral possessions in Piacenza where he had probably spent his childhood was for example not forgotten. His interest in the castle of Veggiola and the town of Riva overlooking the Nure river, together with possessions which he held in Fiorenzuola were to go to his brother Antonio or, on Antonio’s death, to his son Aluisio, who was then studying in Padua and living with his uncle.22 Antonio or his son were also to inherit the other half of a house in Piacenza which Antonio and Fulgosio co-owned whilst a second house in Piacenza and Fulgosio’s interests in the castle of Montechino near to Gropparello were to go to another nephew, Jacob,

20 As will be seen below, one of the most celebrated, Giovanni Michele di Savonarola, was later involved with Beccaria’s estate. Savonarola taught medicine at Padua during Fulgosio’s tenure there (see: Danielle Jacquert, ‘Médecine et alchimie chez Michel Savonarole (1385–1466)’, in: eds. Jean-Claude Margolin and Sylvain Matton, Alchimie et Philosophie à la Renaissance, (Paris: Vrin, 1993), 110) and would presumably have been known to him. With respect to the epidemiology of the plague, Savonarola himself had speculated about why it was that those who were locked away from the infection appeared more likely to remain unaffected by it: Plinio Prioreschi, A History of Medicine, (Omaha: Horatius, 2003), V: 657. 21 A transcription of this text appears in Appendix 1 below. 22 ASPd, AN989, c.32. Fiorenzuola had been vested on the Fulgosi in 1262: Campi, Dell’Historia ecclesiastica di Piacenza, III: 8, however Fulgosio’s possessions there appear to have merely comprised individual property assets at this date. Final Years In Padua 291 the son of Fulgosio’s brother Castellino.23 A third nephew, Giorgio, the son of the by then deceased Bartolomeo Fulgosi, was to obtain the jurist’s rights in the castle of Zena. During her lifetime or until such time as she remarried, Giovanina Beccaria was to retain her husband’s properties in the countryside outside Padua, quite probably including those in Santa Maria Nuova which had once been acquired in her own name. These would pass on her death or remarriage to Antonio Fulgosi or his son. These concerns at the end of his life for the fate of the feudal possessions which Fulgosio owned with his brothers in and around Piacenza were consistent with his involvement with the Fulgosi estate during his lifetime. In yet another example of a conversation between the jurist and the students in his Padua classroom something like a decade before, for example, Fulgosio had explained the arrangement which he had come to with his brothers regarding these possessions. As so often the provocation for his remarks was the legal text which the class was then studying; in this case on property divisions among siblings. “And I used this [legal text] in the division between me and my own brothers. For as we didn’t want our goods to leave the family estate, I made us agree a pact in case any of the possessions, castles or domains which we owned should be alienated. If any one of us tried to do so, before he could he was required to pay a fine of 1,000 Ducats. In this way we made a pledge which then in effect prohibited the alienation. If one of us then in practice tried to alienate an asset, we or our heirs would acquire it.”24 In effect then, Fulgosio knew that the parties could not be prevented from alienating the ancestral property which they owned, however a high financial hurdle could be put in their way to avoid them doing so without the agreement of their siblings. Fulgosio clearly thought a great deal of the practical solution which he had found to resolve this issue, since he told his students in the Digest class exactly the same story which he had recounted to his Codex class; this time without mentioning that the brothers concerned in the settlement were his own siblings and adding at the end to his students that the pact idea was one that they would be well to

23 ASPd, AN145, c.130–134. A debt of £(Pc) 300 due from Jacopo’s father to Fulgosio was also written-off. 24 “quo usus fui in divisione facta inter fratres meos et me. Nam nolens quod nostra bona exirent de domo nostra: in ipsa divisione apponi feci de consensu omnium pactionem, ne possessiones, et castra et iurisdictiones, quas habemus possent alienari, et si aliquis attentaverit alienare, ante ipsam alienationem, caderet in pena mille ducatorum: pro quas pena res ipsas pignori constituimus et tunc secundo loco prohibita fuit alienatio. Si ergo aliquis nostrum de facto alienaret, nobis et successoribus nostris competeret vendi- catio. quod est nota dignum.” CODEX I, 179r. 292 CHAPTER 11 note but that they should nonetheless “argue as Bartolus treats the matter”.25 Once again Fulgosio had shown his students a real world example, in this case a very personal one, but as a good teacher reminded them not to use his solution as an authority in any future work that they might be involved in, but to adhere to the common opinion of jurists as it had come down to them. In practice however he had shown them one way to deal with real world questions of this kind. In his will, then, Fulgosio had kept to the spirit of the fraternal agreement and made sure that his share in the Fulgosi patrimonial inheritance would remain in the family. Subsequently, Aluisio Fulgosi would come in to possession through both his father Antonio and his uncle to the family inheritance in the Nure valley, however in the years that followed Fulgosi influence over the territory waned. The last tax collection attempted by Aluisio Fulgosi’s agents in the family’s former stronghold of Castione in 1439, for example, met with the resistance of some villagers who claimed that Aluisio’s father Antonio had converted their feudal obligations in to a rent. A local witness to a legal case in 1440 concerning rights in the village recorded having seen Aluisio in Castione seeking the payment of those rents and ‘getting some men to pay, but not others’.26 In 1438 the authority of a powerful banking family had been formally recognised over the village, whose inhabitants had already separately agreed (in c. 1433) to accept the rule of that family in exchange for exemption from local taxes and the feudal burdens imposed by feudal lords like the Fulgosi. In 1441 Filippo Maria Visconti would further evidence this decline of Fulgosi fortunes when he passed the feudal rights over Montechino castle to another local family, the Nicelli.27 A very similar story followed Fulgosio’s other nephew, Giorgio, who inherited Fulgosio’s interests in the castle of Zena. In December 1432 Filippo Maria evicted Giorgio, whom he described as a rebel, from the interests which he claimed in both Zena and the castle of Gropparello.28

25 “Et semel illud deduxi in practicam, in divisione facta inter fratres: cum enim fratres in divisione vellent pacta apponere ne castra alienarent propter honorem suum, non poter- ant hic facere. Sed ego feci quod quilibet frater promittebat penam mille ducatorum, si unquam ad actus alienationis veniretur, et castrum fuit obligatum pro ista pena: post fuit factum ne possent alienare: et est bene not. de hoc tamen dicatis ut plene traditur per Bart. in l. filiusfamilias de lega. j.” DIGEST I, 99v. 26 Chittolini, ‘La ‘signoria’ degli Anguissola’, 301. 27 Degli Uberti, ‘Il diritto nobiliare nel ducato di Milano’, 568. 28 Federica Cengarle, Immagine di potere e prassi di governo. La politica feudale di Filippo Maria Visconti, (Rome: Viella, 2006), 146. Filippo Maria Visconti passed the properties to one of his captains. The description in the document of Giorgio Fulgosi as a rebel and that Final Years In Padua 293

It may well be that this decline in the Fulgosi family’s local influence was already apparent when Raffaele Fulgosio wrote his will and that he was only recording there the transfer of feudal interests which the family still claimed but over which they were rapidly losing any real control. This was less the case with Fulgosio’s real estate possessions. A year before Giorgio Fulgosi was divested of his feudal possessions, his cousin Aluisio leased out two properties which his uncle had bequeathed to him in Fiorenzuola. One, a half-timbered property, was leased for twenty-nine years at an annual rent of £(Pc) 42 10/-, the second was leased indefinitely for 5s/6d.29 Despite his family’s declining dynastic fortunes, Fulgosio was nonetheless still personally a very wealthy man. In addition to the properties and an undis- closed amount of cash and investments which he had (and which Beccaria would subsequently receive), Fulgosio listed a total of 3,893 ducats in his estate which he had advanced to others and was owed.30 These loans included 300 ducats which he had lent to Paolo Cumani, the son of his university colleague, a further 200 to his beadle, Arcangelo de’Medici and 85 ducats which were due from Marco, the son of Fulgosio’s sister Ziliola. From this vast estate, Fulgosio distributed 1,500 ducats to his wife as compensation for the assets left in effect in trust for his brothers in addition to her clothes and her sizeable collection of jewellery. She was also to hold 100 ducats in trust to be given as she saw fit to the poor. Five mendicant orders were then to share a total of £1,000, whilst Fulgosio’s Carmelite confessor Teobaldo was to receive 25 gold ducats. Smaller bequests in lire rather than ducats were then made to Bartolomeo Greco, Fulgosio’s tenant in Santa Maria Nuova, of cash and a shirt, whilst Fulgosio forgave a number of small debts. A Giovanni Beccaria, son of Albert, was to have a debt which he owed to Fulgosio of 150 lire forgiven and then doubled in order that the money would form a dowry for his two daughters. It seems likely therefore that Giovanni was a relative of Fulgosio’s wife. Fulgosio also permitted Beccaria to grant the family’s two slaves, Margherita and Buona, their freedom whenever she chose. Fulgosio’s two male servants, Antelino and Niccolo, were to receive a total

his possessions were ‘formerly his’ would suggest that he had already been evicted from the property which he had only inherited from his uncle less than five years before. 29 ASPc, AN 887, unpaginated, but documents dated: 22 December 1431. Giorgio Fulgosi refers to his late uncle in the document as “speculum doctorum ytalie”. 30 Calculated from Appendix 1 below. The figure includes 300 ducats which Fulgosio had already advanced to his wife which was therefore part of his assets at the date of his death. Fulgosio confirmed that the account books in which he kept details of these loans were up-to-date and correct. 294 CHAPTER 11 of £800 and to each be given a shirt.31 Antelino was furthermore to be given money to purchase a cloak and a new pair of shoes. As to his funeral arrangements, Fulgosio stated that he wanted a tomb erected in an honourable place and constructed of marble or stone. He also instructed that his books be sold, as Giovanina would not need them. Unfortunately no inventory of this library was drawn up and so no judgement on Fulgosio’s reading habits based on the contents of his library can be formed beyond the obvious legal material which he would have doubtless owned.32 The fact that Fulgosio, unlike some other jurists of his day, does not appear in the surviving collections of humanist letters beyond incidental matters would suggest that he was not particularly literary inclined. His instruction to sell his books probably did however include the collection of consilia material which has now come down to us in the main volume of the jurist’s consilia.33 As has been seen this is known to have contained material which Fulgosio wrote while he was at Constance and which he had brought back with him to Padua. It seems quite likely that it was still there in his study at the time of his death. Whether the so-often conversational scribal copies of his lectures were among the books owned by him at this time is a more doubtful question. Intriguingly, Fulgosio’s one-time student Francesco Alvarotti owned at the time of his own death in 1460 a selection of his former teacher’s manuscripts on both the Codex and Digest. He possessed versions of Digest I written in 1414, 1419 and 1423, a copy of Digest II from 1421, Codex I texts from 1418 and 1422, and a single copy of Codex II from 1420.34 Perhaps the copies from which the later printed commentaries would one day emerge were among Fulgosio’s former student’s library.

31 Eight ducats which Niccolò owed Fulgosio was also written off. 32 Fulgosio is absent from the list of jurists’ inventories for example given in: Donatella Nebbiai-Dalla Guarda, ‘ “Leges de voluntariis”. Bibliothèques et culture des juristes en Italie d’après les inventaires de livres (XIIIe–XVe siècles)’, in: ed. Vincenzo Colli, Juristische Buchproduktion im Mittelalter, (Frankfurt a.M.: Vittorio Klostermann, 2002), 677–740. 33 A possible indication that Fulgosio’s consilia collection had already begun to be circulated in a pre-print, manuscript edition comes from an opinion written by Martin Laudensis. In it, the jurist cites a consilium, number 126, from Fulgosio’s collection (Martin Laudensis, Consilia, (Frankfurt a.M.: G. Corvinum, 1575, 116), in fact Number 125 (Fulgosio, Consilia, 189r). Given that Laudensis died before the first print edition of Fulgosio’s consilia was published, this would indicate that a manuscript edition was already in circulation by the middle of the century. Laudensis was known to be active in selling legal texts and had an edition of Domenicus de San Gimignano’s lectures prepared. 34 Blason Berton, ‘Una famiglia di giuristi padovani’, 132–134. Final Years In Padua 295

Fulgosio does not appear to have survived very long after he had settled his estate and instructed that his books be sold. Only seven days after he had composed his will, a student of medicine who had been granted one hundred lire under the will was paid his inheritance and other specific distributions followed thereafter.35 Beccaria then paid Giacoba, her probable relative to whom Fulgosio had left money in order to marry, in February 1428.36 Aluisio Fulgosi also settled the bill with Fulgosio’s doctors which was owed from the time of his uncle’s “infirmitate pestifera” for a total of 63 ducats.37 Much of the remainder of the estate appears to have taken Beccaria some time to liquidate and then distribute. Probate itself was not finally obtained until 1431.38 The cause of the delay appears to have been the unwinding of the many mercantile investments to which Fulgosio had been a party with wool and other traders and whose value could not be realised in cash immediately.39 It is also possible that in managing the estate, further funds had to be invested before the total investment could ultimately be realised.40

3 Beccaria’s Death

Despite having the money to fund her dowry and being personally wealthy through the estate, Beccaria did not remarry following Fulgosio’s death. She survived him by more than a decade and continued to reside in the home that the couple had shared in Padua. On 17 July 1439 she died there in a room which a later inventory indicates contained a wardrobe and several beds or couches decorated with striped cushions and a blue quilt depicting, for possibly religious reasons, lilies. Beccaria had written her will two years earlier which may suggest that she experienced a longer period of illness and gradual decline, but which perhaps therefore avoided the horrific fate which befell her plague- victim husband.

35 ASPd, AN145, c.139, c.141 (Fulgosio’s bequest to the Franciscans). 36 Ibid., c. 156. 37 Vittorio Lazzarini, ‘Il Mausoleo di Raffaello Fulgosio nella Basilica del Santo’, Archivio veneto tridentino, 4 (1923), 148. 38 ASPd, AN914, 342. 39 See: ASPd, AN444, 527v, 647r, 707r. Arcangelo de’Medici was evidently still helping at the Fulgosio home for he was present as a witness at another settlement with a draper in 1430 at: ibid., 703r. 40 ASPd, AN628, 352v–353r; 464r. 296 CHAPTER 11

The slave Buona had clearly not been freed by Beccaria following Fulgosio’s death and was with her until the end, but Margherita is described in Beccaria’s will as her former slave and had thus been already granted her liberty. By Beccaria’s will, Buona was to enjoy the same freedom and both women were to be given money and a bed each. Margherita had been replaced by a new slave, Maria, but she was only to be set free once she had effectively purchased her own liberty by working in another household for six years. The 100 gold ducats which Fulgosio had entrusted to Beccaria at the time of his death to be given to the poor and which had evidently been subsequently held in the form of investments with the Camera degli imprestiti in Venice were now duly paid to the lay governors of Santa Maria della Carità to be distributed amongst the needy. Fulgosio’s sister, Leonora Fulgosi, by this time a nun in Piacenza,41 was also remembered with a bequest, as were several of Beccaria’s female friends. The poor and the church of St Nicolaus in whose parish Beccaria and Fulgosio’s home was located and where masses were already being said for Fulgosio’s soul were to receive money as were the church and hospital in Santa Maria Nuova outside the gates of Padua where she and Fulgosio had purchased property. Beccaria’s niece, Donina, the widow of Peragino Badoer da Peraga, was to receive 200 gold ducats effectively in trust for her sons if they survived her. If those sons died and Donina did not produce a male heir, the money was to be returned to Beccaria’s universal heir, whom she named as her brother, Mussetto. He was to receive 200 ducats directly himself and also to receive the income during his lifetime from a further 1,000 ducats in the form of investments in Venetian State Debt made up from Beccaria’s existing holdings with the Camera degli Imprestiti and additional cash.42 These investments were then to be held effectively in trust for Mussetto’s descendants, although the trustees were also permitted to invest the monies in property for the family in Pavia.

41 Elenora was a nun in the Franciscan monastery and thus presumably of the Order of Poor Clares. The Fulgosi family had existing links to the Franciscans in Piacenza. Elenora’s brother Castellino was a witness to a financial transaction there in 1399 which may indicate that he or the family were involved as lay guardians: ASPc, AN b. 189, Prot.20, 167v–169r. 42 Venetian State debt was yielding between 1.95 and 2.6% in late 1437 (Gino Luzzatto, I Prestiti della Repubblica di Venezia. Sec. XIII–XV. Introduzione storica e documenti, (Padua: A. Draghi, 1929), cclxxii) at the time of Beccaria’s will but the value of the holdings was falling and suffering dilution. Final Years In Padua 297

Although Mussetto was named as Beccaria’s heir, she also designated the poor as the recipients of her residual estate. This would suggest that the total value of Beccaria’s estate at the time of her death was approximately equivalent to the value of the specific legacies which she had made, leaving a small residue to be donated to the poor. The legacies bequeathed by Beccaria totalled 1,500 in ducats and a further 1,750 in lire.43 Even more than a decade after her husband’s death therefore, Beccaria was still very wealthy. In an inventory drawn up after her death to establish how much should be given to her residual beneficiaries, we find that a good proportion of her wealth must have been kept in cash in her own home. In a box made of ivory kept there, she had a total of 1,327 gold ducats and £323 at the time of her death.44 To read that inventory is to walk from room to room in Beccaria’s and Fulgosio’s former home. The notary and Beccaria’s executors, who included one of the leading physicians of the day, Giovanni Michaele Savonarola,45 listed the belongings chamber by chamber, recording for instance the contents of the room “where Giovanna died” as well as the opulent possessions which adorned the other rooms. The notary continued his work in the kitchen, documenting the now silenced minutiae of every day life there before passing outside to record the contents of the garden and assorted outbuildings with their stored grain, preserved foods, wine and cheese. In one outbuilding in the cultivated garden lay a large chest whose contents were “said to belong to the Count Lazzaro” and which may well have been property that Count Lazzaro Arcelli, whom Fulgosio had lent money in 1426, either left as a deposit against that debt or which he had stored in Fulgosio and Beccaria’s garden prior to heading off to fight in southern Italy.46 Elsewhere in the inventory are clear indications of the affluent lifestyle once enjoyed by Fulgosio and Beccaria. Silver cutlery carved with both the Fulgosio and Beccaria arms, valuable cloths colourfully decorated with garlands or pictures of animals, necklaces, rings and jewellery and devotional

43 This included the 100 ducats held in trust from Fulgosio to be distributed to the poor. 44 The inventory is located at: ASPd, AN628, 566r–570v with a fairer copy at: 570r–573r. It is transcribed below in Appendix 2. 45 Savonarola is known to have been in Padua from at least 1434. His humanist work written in praise of the city describes Fulgosio’s tomb at a time when it was only recently completed: ed. Arnaldo Segarizzi, Libellus de magnificis ornamentis regie civitatis padue, (Città di Castello: S. Lapi, 1902), 34. 46 Arcelli had returned to Padua by 1443 (see above, note 5). The seven ducats which Fulgosio had lent Arcelli in 1426 did not appear in the debts listed by Fulgosio in his will suggesting that either it had by then been repaid or perhaps that it was never intended as an amount to be repaid. 298 CHAPTER 11 items more often to be found in churches were all to be found in the house. Other more mundane items simply conjure up the ordinariness of daily life. In the same room which contained some of the couple’s engraved silver gilt cutlery, lay a key marked on the back as having belonged to ‘Lady Johanna’. A room described as a study and which may therefore have been where Fulgosio worked contained a large, lockable chest within which lay the ivory money-box, however the inventory makes no mention of the jurist’s library of books. These must therefore have been sold in the time between Fulgosio’s and his wife’s death. The settlement of Beccaria’s estate was not without its difficulties. Two months after her death, her executors were already involved in litigation with one Jeronimo Taiapetra who had initiated proceedings against them in Venice. The executors protested that any case should be brought in Padua instead,47 whilst a later note added to Beccaria’s inventory reveals the possible reason for the case. A ring or piece of jewellery decorated with pearls and gold had been restored by the executors on 30 July to Jeronimo who had evidently protested that the jewel belonged to him. Perhaps a dispute had arisen as to whether the item handed back had been the correct one or concerned other items in Beccaria’s collection which Jeronimo felt rightly belonged to him. The fact that he took the case to law suggests that these items were quite valuable. The estate would have incurred costs to defend against such a case, however Beccaria’s executors were nevertheless apparently able to wind up her affairs successfully, fulfilling for instance one of her requests by having an oratory erected in her name. Prayers were to be said for her soul every day there, towards the cost of which she left an annual income of thirty ducats. This memorial was in the church of St. Nicolaus in the centre of Padua and in the parish where she and Fulgosio had lived for much of their lives.48 Although expensive, this legacy was dwarfed by the monument whose design and construction Beccaria had overseen during her lifetime for her husband. Although Fulgosio had left modest instructions at the time of his own death for his own memorial; (‘a marble or stone tomb in a place of honour’), in the years that followed Beccaria engaged stonemasons and sculptors, some of whom had worked on San Marco in Venice and on the mausoleum of the doge, to construct something rather more lavish. It seems that she had precise requirements for the memorial in mind. The artists had to present her with

47 ASVe, Collegio – Notatorio, XV, c.4r. 48 Giacopo Tomasini, Vrbis patavinae inscriptiones sacrae et prophanae, (Padua: Sardi, 1649), 80–81. Final Years In Padua 299 a picture of how their work would eventually appear49 and, as she had done with her husband’s estate more generally, Beccaria seems to have project managed the crafting of the monument as well as paying the artists involved in its creation for their work. The result was grand; worthy of an emperor it was later said. The sculptor even endeavoured to emulate Donatello’s recently erected monument for John XXIII in the baptistery in Florence;50 a fitting tribute perhaps given Fulgosio’s efforts on behalf of the disgraced pontiff at Constance. Like John XXIII’s monument in Florence, Fulgosio’s tomb survives to this day. The memorial, in the Santo in Padua, can be viewed from both sides and Fulgosio’s figure is therefore depicted twice, sleeping on a bed draped by a curtain bearing miniatures of his coat of arms and roses. When coloured, as it would have been, the scarlet and white colours of the Fulgosi noble house would have stood out prominently. Above the drapery the family crest appears again, as it had done in Fulgosio’s lifetime on his cutlery and attached to every consilia or formal document to which he had attached his seal, whilst beneath the sleeping Fulgosio two poetic inscrip- tions bespeak his talents in civil and canon law and figures depicting Christ, saints and the virtues proclaim his religious and moral convictions. Given the insight in to Fulgosio’s life and character which his classroom comments and anecdotes have provided, it is the smaller details of the monument however which draw the eye. The monument which Beccaria had commissioned for her husband depicts him, for instance, with a slim book, perhaps of the law, held to his chest. It is closed with a buckle seal as if a teaching day, one of the so many which Fulgosio had seen, were now at its end. More books are piled at his feet, whilst both there and at the sleeper’s head smaller figures look on mournfully or somewhat attentively. One holds his or her hands in prayer, but the others simply stand and look towards the jurist. It is nice to think that in these figures Beccaria had seen fit to have represented her husband’s students, awaiting the next utterance from their master; be that a serious argument about the law, a joke or tale, or perhaps to recount yet another episode from the time when he was at Constance.

49 Catherine King, Renaissance Women Patrons, (Manchester: Manchester University Press, 1998), 113–116. 50 Andrea Moschetti, Documenti relativi alla pittura padovana del secolo XV, (Venice: Istituto veneto di arte grafiche, 1909), 12–13. CHAPTER 12 Conclusions

1 Dissimulation and Identity

One of the initial points to conclude about Fulgosio’s life and work from the present study concerns dissimulation. Time and again in the jurist’s life and work, uncertainty about an individual’s true identity or a preference for appearances over reality are observable features. An artifice had to be created for Fulgosio to leave the Council of Constance and a similar arrangement quite possibly lay behind his exchanging Pavia university for its rival in Padua. Dissimulation was also a notable feature of his private life. Property investments in Padua were not undertaken in his own name but in that of his wife; and even the sums of money which he invested with mercantile traders had to be arranged, for obvious reasons, to appear as if he was in business with them rather than shown for what they were: money-lending for a return. The world in which Fulgosio lived was naturally one in which it was wise for an individual to be cautious about revealing his or her identity too readily. Fulgosio used a false name which only his friend in Padua would be able to recognise when he wrote back from Constance; and also made sure that Giovanina Beccaria would only accept a visitor to their home as genuine if the secret sign between the married couple of the signet ring was shown.1 These questions of identity were also a feature of Fulgosio’s work and no more so than when he acted as an advocate; a role which by its nature required a lawyer’s persona and private views to be merged and reconciled with the sometimes potentially conflicting demands of the cause which he had been assigned to present and represent. At Constance Fulgosio was apparently either perturbed or intrigued by the fact that some advocates and lawyers were with- holding their identity in the tracts and documents which they presented to the council as Fulgosio perhaps thought they should not have done. He was however apparently careful not to be identified with the point of view regarding voting arrangements which he himself had defended as an advocate at the council and for which he had written a tract which bore his name but to which he later referred as if it had not been his own handiwork. Something comparable may

1 One might add that dissimulation also appears to have characterised Fulgosio’s ill-fated first marriage with the jurist apparently pretending that the marriage had been consummated in order to retain the dowry.

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004305854_014 Conclusions 301 have occurred with respect to the Crowns’ debate where Fulgosio may have been reluctant to be personally associated with defending the papal line or felt that it was better to decline entering a public disputation on the matter. This may have been for the simple reason which Fulgosio effectively gave; that Sigismund’s dominating presence prevented the holding of a free disputation, however if this was indeed simply a convenient legal excuse for Fulgosio to justify his non-intervention then a range of additional insights concerning identity and dissimulation follow. Fulgosio may have wished for example to avoid sharing Jacopo Bottrigari’s earlier fate and becoming personally associated with a particular side of the imperial versus papal question. Fulgosio’s apparent concern for when tracts had and had not carried their author’s name at Constance and his possible desire to avoid a public debate about papal and imperial supremacy connect at this point. He may, in short, have had an understanding of the after-life of a disputational tract which would have carried his name: he would become personally associated with the ideas which the circumstances of that disputation had required him to present. This, in turn, would indicate a certain appreciation of the complex nature of such texts and the different levels on which they functioned: as throw-away notes for an impromptu disputation one day but, on another and once signed with the jurist’s name, potential authorities for other jurists to use, cite or condemn. They could become texts therefore which would identify their jurist author forevermore with ideas which he may not personally have held or with which he wished to be associated. This tension between author and text would have been all the more acute if the jurist concerned had entered a disputation not merely under the constraints of that debating format or the requirements of an official advocate, but had additionally done so under duress. The topic of coercion was thus another common theme which emerges from the study of Fulgosio’s life and work. Bottrigari, Fulgosio alleged, had only argued as he had from fear, as had Bartolus; whilst from his own generation of jurists, Antonio da Budrio and Petrus Ancharano were said to have been compelled to write the opinions which they gave on the schism in 1408, with Budrio supposedly later wishing to repudiate his consilium.2 Fulgosio’s ‘might is right’ quotation from Seneca with respect to the Christmas Controversy is illuminative of the damaging effect that the presence of a powerful ruler was felt sometimes to have on a jurist’s ability to speak freely. It is perhaps little wonder therefore that disguise and dissimulation became sensible and precautionary techniques, particularly when a jurist was required to take on a particularly prominent public or political role.

2 See above, p. 66. 302 CHAPTER 12

The contrast between what might be required of a public disputant and a more private legal advisor could mean that, as an individual, a jurist appeared to present inconsistent political ideas; however what he argued may have been conditioned by the professional capacity and circumstances in which he was working. A conclusion to be drawn from the study of Fulgosio’s life and work would thus be that caution should be exercised in ascribing a particular political identity to a single jurist. From the support which Fulgosio gave to John XXIII at Constance, for instance, he may appear to have been an uncompromising ‘Pisan’, opposed to any idea of seeking an accommodation with the rival obediences of the schism and reluctant to see the pope easily subjected to deposition proceedings. In his private consilia for both the Marche and Cologne cases however, Fulgosio presented arguments which were profoundly at odds with the uncompromising, defiant Pisan position which he would set out in public debate at Constance. In that he laid the blame for the continued schism squarely at the feet of John’s opponents who were to be the ones against whom action should be pursued and not the pope. In his advice for the private legal disputes however Fulgosio showed firstly how rival obediences from the schism could be accommodated and, secondly, that a wider policy of rapprochement and reconciliation which recognised the legal rights of those in opposing camps was a necessary pre-condition for ending the schism. These kinds of arguments would have numbered him within the ranks of Sigismund’s supporters at Constance or those conciliarists chiefly from Paris who had long argued for the ‘via cessionis’. Theirs was an approach which stressed the simi- larities between all the contenders, how common the experience of the schism of those within the rival obediences was, and did not demand the unconditional victory by one of the would-be popes before the schism could be brought to an end. Similarly, Fulgosio’s defence of John XXIII indicated that he considered that popes could only be deposed for heresy rather than negligence or behaviour at odds with the good of the church. In his backing for Paolo da Castro’s consilium written at around the same time as the allegedly coerced contributions of Ancharano and Budrio, however, Fulgosio had supported a wider range of justifications for action against a recalcitrant pope. Even in Fulgosio’s light- touch modification of ‘Qui sint rebelles’ during his discussion of the Petit case to permit its extra-judicial remedies to be more widely available, his views seemingly flew in the face of the opinion which he expressed in his class room suggesting the inalienability of due process under natural law; whilst his various interactions with the question of derogating clauses and the power of the princely prerogative elude easy classification as representative of a single political agenda and appear more determined by the particular circumstances Conclusions 303 of each case and the need within it to fashion from its conflicting texts and terms a single defendable and persuasive narrative. The impression is therefore that Fulgosio was not actively or consciously engaged in the development of a consistent body of political thought on these questions. He was certainly interested in them as legal puzzles from the point of view of a working lawyer tasked to defend a client one day or to enter a disputation another, however whether these various expressions of opinion given in different circumstances can be summed without modification to result in a consistent set of political views is questionable. The different constraints and obligations of the various professional identities which a lawyer like Fulgosio had to represent at different times in his career – teacher, advocate, quasi-judicial consulator or legal advisor for clients or litigants – would have also surely hampered such a development.

2 The Donation of Constantine

Fulgosio was also clearly interested as a lawyer in the arguments presented at Constance concerning the Donation of Constantine, in particular the notion that no corroborative text for Constantine’s gift could be found anywhere in the body of Law. He was however also proud of his own ability to counter that idea during a public debate and to suggest one such text which could contradict it. The equal weight which Fulgosio placed in his commentaries on both the non-corroboration idea and his successful opposition to it is indicative of the attitude of a professional lawyer who knew that he might, in different circumstances, be required to present either argument. The essence of his discussion of the subject with his students in Padua was to share with them Fulgosio’s experience of the cut and thrust of debate at Constance and to relay to them the news that, within such a public disputation, the historical critique of the Donation had been used. Here again the theme of dissimulation or deception reappears. It was quite possible that it was an open secret that there was something suspect about the Donation, however it was not part of the existing disputational discourse to mention this publicly as had happened at the council. Fulgosio was happy to pass on to his students other historically dubious ideas like the Ottonian creation myth which would suggest that historical veracity was not a priority for him in the assessment of a legal text or principle. What was more important then than the historical validity of a document was its usefulness or efficacy. It may well have been the case that Fulgosio knew perfectly well that the Donation was a suspect text, however as a text it still had 304 CHAPTER 12 its usefulness as a way to discuss a particular type of question about papal or imperial supremacy. To co-opt a term from art history, the Donation text was ‘anachronic’.3 It was probably known that it was not historically genuine, however it served an important role nonetheless and could not be easily discarded. Awareness of it not being what it purported to be, as it were, co-existed happily and at one and the same time with the notion that the same text represented something useful; in this case giving a form to ideas about the competition for supremacy between pope and emperor. In a certain way, the disputation at Constance concerning the text represented the simultaneous presentation of these two aspects. Fulgosio’s opponent pointed to the Donation’s inau- thenticity, whilst Fulgosio showed the text’s continued utility as a document which could still be incorporated in to, harmonised with and supported by the existing corpus of law. The debate at Constance was thus like the opening up of a contradiction. It revealed its elements but could not be resolved. Or, as Fulgosio put it, ‘the answer was as it should be’: that there could be no answer. What Fulgosio had reacted to at Constance (and also perhaps attempted to prevent) was the public opening up of such topics. It was one thing for the truth about the Donation to be known and quite another for that to be publicly declared. It was this, the very public expression of a secret which many privately knew, which was one of the novel aspects of Lorenzo Valla’s exposure of the Donation and, at Constance, Fulgosio had reacted against something similar: the public and unchallenged removal of the mask. His role had been to return things to ‘as they should be’, and to a world where such things were simply not appropriate topics for subjects to discuss because they were ‘not ours to judge’. Such things had to remain, in other words, permanently un-judged; indeterminate or equivocal. And at Constance Fulgosio had laboured successfully in order that the result should be just so noncommittal.

3 The History of the Council of Constance

In terms of the wider contribution of Fulgosio’s recollections to the history of the Council of Constance, they tend to reinforce an appreciation of how weak John XXIII’s position was at the time of Sigismund’s arrival. The strength of the emperor’s influence over the council has long been recognised, however Fulgosio’s remarks suggesting that he did not feel at liberty to play his duly allotted role as an official advocate, together with the evidence of how some

3 I am thinking in particular of the arguments contained in: Alexander Nagel and Christopher S. Wood, Anachronic Renaissance, (Cambridge, MA: MIT Press, 2010). Conclusions 305 delegates were disturbed enough by Sigismund’s arrival to demand that his status and powers as an electus be formally debated, provide new evidence for the impact of the emperor on the council. The extent of Sigismund’s dominance of the early assembly may therefore need to be reasserted. Even Fulgosio himself appears to have fallen more within the emperor’s orbit than his employment as an advocate close to the papal curia would superficially suggest. The evidence from within the ‘Cologne’ case of contact with Gregorians, for example, or Fulgosio’s comments apparently to the emperor about voting arrangements or even his consilium related to events in Gregory XII’s obedience in the Marche, all suggest that Fulgosio too developed links to the emperor. All three of these episodes contained elements of the imperial approach both to the council and to resolving the schism. Sigismund’s line was also that the Council of Constance would be better run by national block voting; a point of view which Fulgosio appeared to have shared but which was not favourable to his papal master. Fulgosio may therefore have succeeded in retaining a foot in both papal and imperial camps at Constance; something which his cautious reaction at the outbreak of the Christmas Day controversy would also tend to suggest. He was able to avoid appearing in public to be personally associated with anti-imperial, or at least anti-Sigismund, sentiment at the council in its opening period. Fulgosio’s overall workload at the council also shows the extent to which secular considerations like the role of the emperor came to the fore. The high number of non-ecclesiastical individuals attending the council has long been known and much of the council’s time would indeed be taken over by the discussion of secular political problems, even if these were framed in moral, theological or ecclesiological terms like the tyrannicide debate or the later airing of ‘national’ grievances between English and French delegates. Amongst many other things, the Council of Constance also represented a grand European summit of secular powers and Fulgosio’s often non-clerical workload at the assembly reflects something of this predominance of secular concerns. There was more than a little secular aspect to the question of whether conciliar decisions should be determined by indirect or direct representation, for example. Voting by national block stressed the secular divisions within the church over and above an ecclesiastical hierarchy which would have ranked all clergy, bishops or archbishops as equal irrespective of the ‘nation’ where they came from or the mother tongue in which they conversed. Fulgosio’s involvement in the debates concerning representation shows that discussions about how the council should vote were even more protracted in the early months of 1415 than has previously been thought. His contribution to the council also reveals something of the assembly’s working practices. Together with his contributions to the Crowns’ debate and 306 CHAPTER 12 defence of John XXIII, for example, his involvement with the question of suffrage indicated the extent to which, on a variety of different topics, the council adopted the formalities of public disputation in order to consider a particular question. On the subject of voting, Fulgosio’s intervention focused on the more technical legal aspects of the matter in answer to propositions set as the theme for the disputation. Should proxies be permitted and, if so, could they represent multiple absentees. Fulgosio had presented the arguments for one side of this question with another individual responding from the opposing point of view before an audience of delegates with the outcome that the technical legal aspects of the question were aired before those delegates presumably to assist them in reaching an eventual decision. Others would have presented arguments for and against the proposition from the perspective of theology or other disciplines, however Fulgosio and his opponent had presented the two sides of the question from a legal standpoint.

4 University Teaching Practice

When Fulgosio returned to Padua he often reprised these debates for his students, as he would with other events in his life, as material to assist in teaching. This didactic method constantly connected the arid texts of the law which the students were working through in the commentaries back to the bustle and activity of the world audible to them outside the classroom and stressed by so- doing the all-encompassing nature of the legal corpus. All of the world’s ever- changing features and apparent complexity was embraced by the Law. There were texts to be found in the corpus which could be adapted to understand the interacting roles of emperors and popes, but also to address squabbling gamblers or the very particular requirements of a testatrix. The evidence that Fulgosio used such a method in the classroom suggests something therefore about teaching practice at Padua at the time and the extent to which, in particular, a two-way exchange between lecturer and students operated in the classroom where students did not passively receive the wisdom imparted by their master but sometimes worked with him to consider a particular legal puzzle. This evidence corroborates existing knowledge regarding the important role played by disputation and the consideration of legal quaestiones in university education of the period. A strong element of practical training for the life which students could reasonably be assumed to spend in the law or within the ranks of local government administration was evidently part of that education. Fulgosio’s courses, in other words, were not purely academic ones. They were vocational. Conclusions 307

That something of how it may have felt to attend one of Fulgosio’s lectures can still be detected is thanks to the rich source material tucked away in the pages of the jurist’s commentaries. As a genre, legal commentaries are generally under-used as a source for the study of teaching practice in medieval universities. It is more common to see that topic studied from the point of view of tracts on teaching, university statutes or archival material showing the appointments and transfers of lecturers from university to university. The record of the lessons which those jurists then held there as captured in legal commentaries is not often examined as a source for teaching practice or behaviour. One conclusion from studying Fulgosio’s two commentaries is therefore that similar insights in to teaching practice may well be waiting to be found within the works of other jurists. There could thus be more to learn about teaching practice from studying legal commentaries as quasi-oral records of classroom activity. The amount of detail contained at times within Fulgosio’s commentaries, for instance, could be enough to follow the course of a single week’s lessons and thus allow an assessment of how quickly, and in what level of detail or sophistication, a lecturer was marching through the corpus with his students.

5 Legal History and Humanism

The present study has also endeavoured to show how fruitful the linking up of a jurist’s recollections of his own consilia within his commentaries with the particular consilia concerned can be. Combining this in turn with archival work to locate the court papers, testimony, allegationes and so forth to which a particular consilium contributed can allow a much fuller appreciation of a jurist’s work on a particular legal case. A consilium can then be seen both within the specific context of a case before the courts, more of its human background perceived and the consilium’s place within the legal process acknowledged. It might then even have had an after-life as a teaching aid to which a jurist might look back, reflect on or even self-critique as he lectured on the same legal texts which he had deployed in that consilium. The letter collections of such humanists as Poggio and Ambrogio Traversari from the period often include references to on-going legal cases and such collections are a relatively under-utilised resource for enriching our knowledge of particular legal disputes. The greater candour often on display in such documents compared to formal legal papers could also help to explain the real world background to what may otherwise be mystifying court processes. Fulgosio does not appear however to have been a correspondent of any of 308 CHAPTER 12 the leading literary or humanist figures of his day beyond his few perfunctory appearances in epistolary sources. Without an inventory of the books which he owned, no conclusions can either be reached about the depth or temperament of Fulgosio’s literary or philosophical interests, however there is no evidence for his having possessed serious academic interests beyond the Law to any extent more than was average for a man of his wealth and position. An approach informed by philology and the study of the humanities would however come in time to revolutionise the Law, revealing for instance the archaeological depth within the legal corpus and how myopic it was to read every law within that huge tradition without reference to the historical circumstance which had given rise to it and as if all laws, no matter what their particular origins, were applicable to current events. And this was before one began to discuss those texts like the Donation which proved to have had no basis in historical fact at all. The new approach towards which humanists tended suggested that the classical origins of the law could and should be recovered and furthermore that this was something which a single individual possessed of reason and empowered by his knowledge of the classical world could accomplish alone. When those skills and the light of reason were shone at the Donation it was exposed as a laughable forgery. The methods by which a jurist of Fulgosio’s age operated were however profoundly different. The validity of a text did not depend for them on being genuine, but on being authoritative and having been successfully applied in practice. As part of the accumulated consensus, that text was also buttressed on all sides by other supporting texts, glosses, commentaries and rhetorical analyses; and this entire structure possessed the flexibility thanks to its agents, the jurists and their rhetorical and interpretational skills, to adapt ceaselessly to the ever changing realities of the world. The world, in other words, and its realities were true and authoritative texts could be seemingly infinitely adapted to explain that truth even when those old texts needed to be kept alive by means of rhetorical or interpretational reinvention. The resulting cathedral of legal wisdom had been constructed over timespans longer than any individual’s lifetime and contained contradictions and inconsistencies throughout its intricate construction. It could also include forged texts if those texts, despite their ingenuine origins, played a role in holding the entire structure together; an edifice upon which work was always on-going in the busy and versatile hands of the lawyers, ‘mending’ an old text here so that it again addressed reality or adding new interpretative structures there. What mattered was the continual amalgamation and harmonious reconciliation of things which were seemingly at odds and the ‘non-genuine’ was just another apparently inconsistent or disharmonious thing to be brought back Conclusions 309 through the use of rhetorical skill, and in interaction with the experience of reality, in to harmony. If that proved convincing as a solution and was thus effective then the fact that it might include as a solution things which themselves individually were inauthentic did not ultimately matter. Nor was it a concern if an individual jurist argued apparently at odds with himself; inau- thentically or without being genuine to one’s self, as it were. What mattered was that the Law functioned effectively overall and continued to map and explain the reality of the unfolding world. Ultimately however this model would break down under the critique of humanism and a related developing emphasis on the value of the individual. One can perhaps even detect an early sign of this concentration on the individual in Fulgosio’s own works. The many non-teaching remarks within Fulgosio’s commentaries sum to a portrait, albeit imperfect, of an individual character with his many private preoccupations (money, for example, appears to have been a persistent one of them) and even his sense of humour. We do not know whether Fulgosio condoned the unedited manner that one of his scribes chose to record his lessons, however if he did then he would surely have known that such a personal depiction would have been included in texts destined for sale and wider, onward distribution. Being comfortable with being represented in this way was one step in the direction of putting more emphasis on the author of a work than on the impersonal contribution to the law which he had made.4 The c.1453 Repertorium on the law written by Fulgosio’s student Pietro del Monte shares the same kind of attitude towards the inclusion of personal comments by the author.5 Like Fulgosio, and even perhaps because he had learned the habit from him, del Monte links the legal themes for which he was providing a sort of compendium to his own practical experiences of writing consilia. Del Monte possessed however the temperament of a fully- blown humanist, with a letter collection evidencing his contact with some of the leading literary and political figures of his day as well as the possession of

4 The practice can be compared to Lodovico Pontano’s successful and slightly later Singularia which include personal recollections linked to the discussion of legal cases. See: Woelki, Lodovico Pontano, 30. 5 For example: Del Monte, Repertorium, § Hospitale, § Baptisium and § Cervisia where Del Monte recalls a German servant extolling his country’s beer. In an echo of his teacher, del Monte who attended the Council of Basle in its earliest sessions as an advocate, also records things which he learned there; in his case a poem: ibid., § Fenix, but also his own advocatorial work there in defence of Venice’s interests in the Patriarchate of Friuli: ibid., § Alienatio & § Electio. On the genesis of del Monte’s work and its contents more generally: Diego Quaglioni, Pietro del Monte a Roma. La tradizione del ‘Repertorium utriusque iuris’ (c.1453), (Rome, 1984). 310 CHAPTER 12 such trademark humanist interests as manuscript-hunting. He was the man who perhaps Fulgosio could have become had he lived a generation later or lived for that matter a little longer. With its divisive conflict between council and pope, that later age was one in which the capacity for a lawyer to change his position and argue at odds with himself would be even more apparent. Del Monte would, for instance, repeat the experiences of his teacher whose exploits at Constance he may well have heard Fulgosio entertain and educate his students with in their classroom at Padua. In 1432 Del Monte attended the Council of Basle and, like Fulgosio had done at Constance, even worked there as an advocate. Del Monte also prepared a fairly conventional and derivative tract discussing the respective powers of pope and general council.6 By the middle of the century however, as times had changed, del Monte was writing a defence of papal infallibility.7 Del Monte was probably a student of Fulgosio’s in the mid-1420s and so was not among the first group of students in 1415 or 1416 to hear the newly- returned Fulgosio relate his experiences of Constance and reports of the debates on suffrage or the Donation which had taken place there. Of other humanists and individuals who would go on to prominence in later life, it now seems likely that Nikolaus von Kues who, before Lorenzo Valla, would publicly expose the Donation as apocryphal was not among Fulgosio’s students at that time although he did study in Padua.8 One man who said he was a student of Fulgosio in the period directly after Constance, however, and who would go on to be in the foremost rank of fifteenth century humanists writing dialogues, translations, letters and books of popular tales was Francesco Filelfo. In a letter written much later in his life he recalled his time at Padua as an eighteen year old youth in 1416/17. On Extraordinary teaching days, Filelfo recalled, he studied oratory in the morning and philosophy in the afternoon, but on Ordinary lecture days he attended classes in civil law under the two Raffaeles; Raimondi and Fulgosio.9 There is a reasonable chance therefore that Filelfo was among those present to hear Fulgosio, freshly returned from Constance, recount the story of his participation in the debate on the Donation there. And Lorenzo Valla himself? He would have been a child at the time that Filelfo was in Padua and did not study in the city himself. He did however teach at Fulgosio’s former university of Pavia from around 1431 and it was here

6 Pietro del Monte, Monarchia, (Lyon, 1512). 7 Mario Zanchin, Il Primato del Romano Pontefice in un’opera inedita di Pietro del Monte del secolo XV, (Vigodarzere: Progetto editoraliale mariano, 1997). 8 See above, p. 71. 9 C. Rosmini, Vita di Francesco Filelfo da Tolentino, (Milan: L. Mussi, 1808), 5–6. Conclusions 311 too that he was party to a controversy concerning the intellectual standing of the law which both cast him as an antagonistic enemy of existing jurisprudential methodology but also indicated his own serious interest in the law. In 1433 his publication of a letter criticising Bartolus now appears to have led to both the threat of his imprisonment and prompted him to flee the city.10 As recent scholarship on this letter has indicated, the criticism which Valla levelled against Bartolus was more nuanced than simply objecting to the barbarisms of the famous jurist’s Latin style. Valla had appealed instead for a return to the standards of eloquence, elegance and oratory which prevailed amongst ancient jurists and which he detected in the unadorned text of the legal corpus itself, particularly the Digest which he confessed elsewhere to having read several times and with pleasure.11 His opposition to Bartolus and the jurisprudential methods which Bartolus represented was thus a plea for the grey coat of later interpretation and classically unlearned, monotonous technicalism which had been applied to legal works to be washed away in order that, from beneath, the colourful masterpiece of eloquence within the original texts might gradually re-emerge to be admired. In his later discussion of the Donation, the removal of this later coat of unlearned language (terms for instance which could not have been used at the time of the text’s supposed declaration) would reveal that beneath the picture’s surface there was nothing genuine at all. It is interesting to consider therefore what Valla might have made of Fulgosio’s class room comments about his youthful error in believing that the law could be read, like the poetry of Virgil or Ovid, directly rather than indirectly through the intercession of the medieval glossators.12 Fulgosio’s point was that it was presumptive of a single individual to think that his own powers alone would permit him to do that; Valla’s argument was that once cleared of its later ill-informed, glossatorial accretions, reading the original legal text precisely as if it were Virgil or Ovid would permit its brilliance to shine forth again and, as a result, encourage jurists to recover the supposedly lost art of oratory.13 What Valla perhaps however lacked, as Giovanni Rossi has pointed out, was sufficient appreciation of the extent to which eloquence and rhetoric already played a sophisticated role in the law as it was actually practised by lawyers like Fulgosio in the quaestiones which they discussed in universities, the consilia

10 On the episode and the definitive dating of Valla’s Epistola: Mario Speroni, ‘Lorenzo Valla a Pavia: Il libellus contra Bartolo’, QFIAB, 59 (1979), 456–457. 11 See: Rossi, ‘Valla e il diritto’, 522–525; Speroni, ‘Lorenzo Valla a Pavia’, 465–466. 12 See above, pp. 52–54. 13 For example, Valla wrote: “Qui doctores iuris vocantur, cum advocati sint et patroni causarum, nihil aliud sint quam oratores”. Cited in: Speroni, ‘Lorenzo Valla a Pavia’, 465. 312 CHAPTER 12 which they wrote for cases and courts, and in their formal disputations.14 The skills of oratory and rhetoric on display in these forms were rather different to the picture conjured up of legal studies by Valla as being characterised by a lifeless language of technical terms, dull syllogisms and stilted categorisations. Perhaps Valla was focusing on the law as it was taught in its theoretical forms in the universities and not how it was practised in the courts where greater emphasis was placed on a jurist’s ability to use language persuasively, or to deal with texts through the deft deployment of semantics and interpretation. Furthermore, as events in Fulgosio’s own life show, disputations and advocatorial work were also forums in which games of identity could also be played; a theme which was also of perennial interest to humanists. A sense of how the practice of disputational and advocatorial work might involve such games and also be a forum for the development of rhetorical and persuasive skills was something which Valla would have been exposed to had he had the opportunity to attend Fulgosio’s lectures and hear the jurist recount his experiences at Constance. Fulgosio’s lessons could not therefore have comprised a link between the later debunker of the Donation and the debater on that same text at Constance. There was however an indirect connection between Valla and the debate in which Fulgosio had participated as an advocate in 1415; and it is a link which also makes Valla’s apparent downplaying of the rhetorical arts of the practising lawyer all the more surprising. For Valla came from a family which had very close ties to the cadre of advocates working in the papal curia. When he lived in Rome, Valla’s neighbour was an advocate; as was the man from whom he purchased his home. His father, Luca, was also a consistorial advocate and Valla must therefore have grown up in a highly lawyerly environment in which the daily workload and practice of the courts must have represented an ever-present soundtrack. The family connections to the law and the work of advocates also however extended further back. Valla’s maternal grandfather, Giovanni Scribani, had also held prominent positions within the legal apparatus of the curia. Like both Fulgosio and the Valla family Scribani was from Piacenza. In 1409 he had played an important role at the council of Pisa as a procurator charged with prosecuting cases and legal disputes before the council.15 He had

14 Rossi, ‘Valla e il diritto’, 599. 15 On the links between Scribani and Valla and Valla’s connections in Rome, see: Giacomo Manfredi, ‘Rapporti patrimoniali tra la famiglia piacentina Scribani, il cronista Giacomo Mori, Cosimo e Lorenzo de Medici e la Curia Romana, secondo un documento fiorentino del sec. XV’, Bollettino storico piacentino, 47–48 (1952–1953), 17–20; Emilio Nasalli, ‘La famiglia di Lorenzo Valla e i Piacentini nella curia di Roma nel secolo XV’, Archivio Storico per le Province Parmensi, 9 (1957), 225–251. Conclusions 313 been intimately involved, for example, in the procedural aspects of the trials of both popes at Pisa. At Constance he was re-appointed to the same post and was responsible for managing the procedural aspects of the trial of John XXIII and the Petit tyrannicide case. As a conciliar procurator working closely with and along side advocates like Fulgosio he would therefore surely have been involved in the Christmas Day Controversy of 1414, perhaps even numbering among those officials who may have suggested orchestrating a debate to air the issue and placate the demands of delegates but to keep that disputation within limits. If this was indeed what Scribani and others attempted to manu- facture then they appeared to have been unsuccessful for the debate resulted in the unsayable truth about the Donation being controversially proclaimed in a full and public disputation. As an advocate Fulgosio had not allowed that argument to go uncontested and had attempted to restore the situation to what he evidently saw as its rightful position of ambiguity and indeterminacy. The procurator Scribani may have desired the same unresolved outcome if he and others had indeed wished to contain the debate. Twenty-five years later, Scribani’s grandson would however say the unsayable yet more loudly still and, in so-doing, turn his back on the world which Fulgosio and Scribani knew in which lawyers used their eloquence, rhetoric and disputational skill in the service of authority and ambiguity and not in an attempt to become their master.

Appendices

∵

Appendix 1 The Last Will and Testament of Raffaele Fulgosio Padua, 11 September, 1427 ASPd, AN b.145, c.130r–c.134r

Cum heu mundi vita velut umbra pertranseat et nichil sub sole stabile sit et ea quae visibilem habent essenciam tendunt visibiliter ad non esse, idcirco famossis utriusque iuris doctor dominus Raphael de fulgosiis legens in hoc sacro studio paduensis natus q. bone memorie domini Johannis de fulgosiis de placencia habitator civitiatis padue in contrata sancti Nicolai per graciam dei sanus mente et corpore1 et boni intellectus licet sit corpore languens, timens intestatus decedere suum sine scriptis nuncupativum tale condidit testamentum. Et animam suam omnipotenti deo creatore nostro salubriter comendavit. In primis instituit suum heredem universalem egregiam dominam dominam Johannam eius uxorem filiam q. egregi viri domini Anthoni de becharia, sed legavit egregio viro Antonio fratri ipsius testatoris de fulgosiis si vixerit tempore mortis ipsius testatoris, si non vixerit legavit Aloisio filio ipsius Antonii, omnia iura quae sibi specta- vit in castro Lauezole2 districtus et in villa de Rive3 Placentini et preterea partem etiam domus placencie quod sibi comunis erat cum ipso Antonio fratre suo et omnia iura quae habet in castro Florenzole et pertenentes ipsius castri. Item legavit Jacobo filio q. Castelini fulgosii fratris sui domum quam ipse testator habet in Placencie in contrata Sancti Donnini. Et preterea omnia quod sibi debet et debebat pater ipsius Jacobi quod debitum erat circha £ trecentas placentinorum. Et preterea omnia iura competencia ipsi testatori in Monte Clause seu castro Montis Clausi4. Item legavit Georgio filio q. Bartholomei Fulgosii fratris sui omnia iura competencia ipsi testatori in castro seu villa Zena5. Voluit autem quod post mortem dicte domine

1 The words “et corpore” are crossed through by the notary, a poignant indication perhaps of Fulgosio’s physical condition at the time. 2 I.e. Veggiola. 3 The castle, which lies on the right bank of the Nure and would have controlled passage on it down river from Ponte dell’Olio, survives. Riva is also in the valley beneath the Fulgosi possessions at Castione. 4 I.e. Montechino, near to Gropparello. 5 The castle survives in Zena, a frazione of Carpaneto Piacentino. The castle was described as a ruin in 1387: Bruno Fabri, Andrea Fiorini and Sabrina Gualtieri, ‘Il castello di Zena (PC): storia,

Iohanne consortis sue vel si ad secunda vota transiverit omnia iura quae habet ipse testator in marchia trivisina pertineant ad Antonium fratrem suum si vixerit et si non vixerit tempore mortis ipsius testatoris voluit quod perveniant in Aloisium filium ipsius Antonii. Et moriente ipso Aloisio cum liberis masculis et ex masculis per lineam masculinam descendentibus ex legitimo matrimonio susceptis uno vel pluribus omnia bona quae ipse testator habet in marchia trivisina tam ad cameram imprestitorum venetis quam possessiones quae competunt et compte sunt in villa Sancte Marie Nove6 et in villa Caxalis ser ugonis et in quadam possessione quam erunt, vel comp- tus est, in burgo Savonarole post ecclesiam Sancti Anthoni ab heredibus Bartholomei cleregacii perveniant in filium primogenitum dicti Aloisi tunc et non in alios ad hoc ut unus in domo sua sit semper unus. Voluit tamen quod semper huiusmodi fideicomis- sarios directi a dicta Johanna [nec] possit Antonius vel ipse Aloisius cautionem fideicommissi servandi petere vel exigere. Nec ullam possint dictus Antonius vel Aloisius vel filius eius primogenitus aliquam inquietatem perturbationem vel molestiam inferre dicte domine Johanne quod si fecerunt tam molestiam [omni beneficio] istius testamenti privat et [fideicom.] [. . .]. Si autem primogenitus dicti Aloisi [contigerit] decedere sine liberis ex masculis discendentibus ex legitimo matrimonio susceptis et conceptis tunc ad alium secundum genitum dicti Aloisi cum similibus conditionibus ista bona perveniant; hoc est si decesserit uno vel pluribus ex masculis et per lineam masculinam discendentibus ac de legitimo matrimonio conceptis et suscriptis uno vel pluribus ipsa bona perveniant. Ita ut quamdiu ex stipite Antoni et dicti Aloisi aliquis masculis supersit bona ipsa ad eum gradatim perveniant. Si autem contigerit ipsum Aloisium decedere sine liberis masculis et ex masculis et legitimo matrimonio conceptis et susceptis bona ipsa perveniant ad Jacobum filium Castelini. Ita ut semper transceant in unicum ex ipsis liberis masculis legitime conceptis et susceptis. Tunc perveniant ipso autem Jacobo deficiente relictis liberis masculis et ex masculis legitime conceptis et susceptis uno vel pluribus solus primo genitus habeat ipsa bona et si ipse primogenitus sine liberis masculis et ex masculis conceptis et susceptis decesserit transeant bona ista ad secundum genitum ita quod quamdiu ex stipite ipsius Castelini et Jacobi fuerit aliquis superstes qui masculis sit transeant ipsa bona ad eum qui de ipsa stipite fuerit gradatim. Ita quod ad unum solum tantummodo pertineant ut possit honorifice vivere et honorem domus fieri. Si non de linea masculina sit et de legitimo matrimonio conceptus et susceptus si non ex isto stipite Castelini et Jacobi nullus masculus fuerit qui ex legitimo matrimonio conceptus et susceptus fuerit transeant bona ista ad Georgium filium q. Bartholomei cum similibus conditionibus quae sunt supra expresse de Antonio et Aloixio et Castellino et Jacobo ita quod ad unum

archeologia e archeometria’, in: Archeologia dell’architettura, XIV (Florence: All’Insegna del Giglio, 2011), 56. 6 I.e. outside Porta Savonarola in the north west of Padua. The Last Will and Testament of Raffaele Fulgosio 319 tamen qui sit masculus et ex masculis et ex legitimo matrimonio conceptus et susceptus pertineant. Si non contigerit quid abscit omnes ipsos stipites Antoni Castelini et Bartholomei deficere sine liberis masculis et ex legitimo matrimonio conceptis et susceptis deficere tunc bona ipsa distribuantur inter pauperes Christi per infrascriptes commissarios et executores quos constituunt. Item7 legavit ecclesie Sancti Nicolai de Padua domum quam ipse testator emit a capitulo ecclesie maioris vel empturus est pro abitacione unius sacerdotis qui per singulos dies unam celebret missam in remissionem pecatorum suorum quod si non [. . erit.] [N]on existente impedimento necessario ex reditibus [quos non?] [reliqueret] retineantur sibi solidi decem pro singula vice [quam] [de parte] [autem] [hiis] benefi- cii legavit illum reditum qui habet et emit vel empturus est ab heredibus Bartholomei cleragaci qui [reditus] [. . .] [quatuor ducati] et medietas cum quod [percipietur] in ipsis v[. . .] [que] [. . .] est xxv [. . .] aut [plurimum] [et ascendas] cum [pluribus] ad summam centum [ventissima] quinque £ vel [. . .] parte. Item voluit quod [vivente?] domina Johanne [. . .] [. . .] [dicte] imprestitorum ad [. . .] [s]et ipsa domina Johanna singulis annis centum ducatos auri Antonio fratri ipsius testatori si supervixerit tempore mortis ipsius testatori, et si non superfuerit Aloisio. Et centum ducatos distribuat ipsa domina Johanna in pauperes egenas et miserabiles personas legans consciencie sue. Reliquos vero centum ducatos ipsi domine Johane remaneant et de eis possit disponere prout sibi placuerit ultra possessiones qui empte sunt in civitate Padue et districtu et nomina debiti si vidualem vitam servaverit. Item voluit quod si sacerdos constitutus in dicte ecclesia Sancti Nicolai non dixerit unam missam per singulos dies non paciatur penam aliquam si tamen per alium celebrari fecerit. Item legavit Nicolao famulo suo £ trecentas parvorum statim post mortem ipsius testatori sibi dandas de quibus possit disponere secundum eius placitum volutatis et unam vestem. Item legavit Antelino famulo suo £ quinquagintas pro sibi dandas ut supra et unam vestem.8 Item legavit libertatem Malgarite ancille sue cum domina Johanna voluisset ipsam liberam esse. Item legavit libertatem Bone ancile sue cum domina Johanna voluisset ipsam liberam esse. Item legavit domino Jacobo de marostica ducatos triginta in quibus ipse dominus Jacobus eidem testatori tenebatur.

7 This paragraph is damaged and partially illegible. 8 This was presumably the same Angelinus de Alemania who was recorded as Fulgosio’s familiar in 1410 and who testified to a theft from his master’s stables. See above, p. 72. 320 Appendix 1

Item legavit Johanni Furnario Becchari filio q. Albertini £ centum quinquagintas libras in quibus eidem testatori tenetur ut possit conveniencius filiam suam maritare. Et legavit eidem ultra id £ centum quinquaginta sibi dandas quando nubat Jacoba filia sua. Item legavit Bartholomeo greco qui stat super possessionem S. Marie Nove £ ducentas et unam vestem cuiusqueque coloris et preterea omne et quicquid sibi tenetur et debet usque in presentem diem. Item legavit mag. Johanni schudelario filio mag. Antoni £ trecentas et unam vestem. Item legavit Johanni de Rena dicto Beccari £ ducentas parvorum. Item legavit mille libras fratribus pauperes mendicantibus inter ipsos quacunque ordines dividendos ita ut singuli ordines habuerint £ duocentas. In restitucione autem fideicommissi facienda per dictam dominam Johannam fratri suo Antonio et aliis secundum superdictam ordinem possit sibi retinere mille quingentos ducatos et suas vestes et iochalia pro dote et iuribus dotalibus. Item legavit fratribus Sancti Francisci ab observancia ut singuli vestiantur qui nunc sunt seu erunt tempus obitus ipsius testatori usque ad nummerum quindecim frati. Item legavit domino presbitero Jacobo rectori ecclesie Sancti Nicolai de Padua £ centum pro anima sua. Item legavit magistro Johanni de Firmo9 scolari in medicina £ centum parvorum. Item reuntit Coreto aurifici10 omni quod eidem testatori tenetur usque in diem presentem. Item reuntit Nicolao olim famulo suo octo ducatos quos sibi dare debet vel circha. Item reliquid Ancelino famulo suo ut ematur sibi una diplois et unum par caliga- rum. Ultracumque legavit ut supra unum berretum et liberat eum ab omni quod sibi dare debet quacumque ex causa. Item voluit quod isti ducati centum quod dimitit dicte domine Johanne dispensare inter pauperes et miserabiles personas a morbo laborantes in quo oneravit conscien- ciam eius. Post mortem ipsius domine Johanne post secundas nuptias distribuantur per eos commissarios quos ipsa domina Johann elegerit in perpetuum. Item voluit et legavit magistro Tebaldi ordinis carmelitarum confessus suo ducatos vigintiquique auri. Sepulcuram autem corporis sui eligit in ecclesia Sancti Antoni confessi de Padua. Et voluit quod ematur aliquis locus honorabilis ubi sepeliatur et honorabilis sepulcura fiat et expendatur in ea secundum quod condecens fuerit et convenire potuerint commissari sui cum ipsis fratribus. Et commissari sui deliberaverint arcam marmoriam fieri debere marmoriam vel lapideam, voluit quod nullo modo archa altior sit quam

9 ASPd, AN b.145, c. 139 records the later payment to Firmo who is styled there Johannes de Firmo q. Laurentius. 10 It would be at Coreto’s home that Beccaria would later compose her testament. The Last Will and Testament of Raffaele Fulgosio 321 mensa altaris sed inferior. Et pro ipsa corporis sepulcura legavit ipsis fratribus et dicto convenciu £ mille de quibus faciant fieri septimum trentesimi centess. aniversarium per singulos annos quod si non fecerent privati sunt isto legato et omni beneficio huius testamenti. Et similiter est ordines mendicancium quorum singulis legavit £ ducentas tenerentur aniversarium die obitis sui facere missas celebrare cum orationibus in remissione peccatorum suorum. Ipsi quoque fratres Sancti Anthoni quibus £ m. cc. legate sunt tenerentur fieri facere orationes et missas in remissionem peccatorum suorum. Pro incertis autem male ablatis legavit quingentas £ distribuendas ubi commissariis suis cum consensu domine Johanne semper adhibito videbitur. Et sciens vires patrimoni sui omnino prohibuit omnem falcidiam et trebelianicam detrahi de hereditate sua. Commissari autem et ex certis huius sue ultime voluntate esse voluit et legavit ipsam dominam Johanam, dominum Augustinum de furnariis11 et dominum Raphaelem de cumis12 et dominum Prosdocimum de comitibus et dominum Abatum S. Iustine quibus plenam libertatem concessit pro dictis legatis exequendis alienandi petendi exigendi ad debitam conscientiarum earum implendi. Interea quod id quod maior pars eorum fecerit valeat interveniente semper consensu dicte domine Johanne sine qua nilchil possunt facere. Et hoc voluit et vult esse suum ultimum testamentum et suam ultimam volunta- tem et valere et tenere iure testamenti et ultime voluntate et si iure testamenti valere non posset vel non poterit in futurum voluit et vult quod valeat et valere debeat iure codicilorum et si iure codicilorum valere non posset vel non poterit in futurum voluit et vult quod valeat et valere debeat titulo ‘Donatio causa mortis’13 et alterius cuiuslibet ultime voluntatis et omni modo iure via et forma quibus melius de iure valere poterit et tenere. Et sciens vires patrimoni sui prohibuit omnem falcidiam et trebelianicam detrahi. Item manifestavit ipse testator in presencia domine Johanne uxoris sue et testato- rum infrascriptorum se habere debere ab infrascriptis. Primo. Nicolaus de descalcis14 dare debet quos habet in societate lane flor. septua- ginta de quibus debet esse iustum. Item ab Blasio q. Merlara ducatorum septingentos de quibus detrahi debent

11 Agostino q. Olivello de Fornari was a jurist originally from Pavia. In 1390 he was vicar- general to Giovanni Castiglioni, Fulgosio’s former teacher, when Castiglioni first became bishop of Vicenza. ed. Giorgio Giacomo Alcaini, Battista Pagliarini, Croniche di Vicenza, (Vicenza: Giacomo Amadio, 1663), 217. He later taught at Padua. 12 Fulgosio’s long-time colleague at Pavia and Padua, Raffaele Raimondi, who also suc- cumbed to the plague shortly afterwards. 13 I.e. C.8.56.0. 14 I.e. Niccolò Descalzi. 322 Appendix 1

Item a Johanne asole ducatorum quingentos Item a Lodovico a ligriarie ------ducatorum trecentos Item a Bernardo de ozneriate ------ducatorum trecentos Item a Paulo de cumis15 ------ducatorum trecentos Item a Arcangelo de medicis ------ducatorum duecentos Item a Johanne de rossato ------ducatorum duecentos. Item ducatorum vi° lxxxx pro solvendo poss. villa Savonarola16 Item a Frederico a sole17 mercario ------ducatorum centum quos tantum teneat quod de lucro sibi satisfiat de eo quod habere debet [. . .] mercancie date. Item de omnibus denarum datis domino Augustino de furnariis de quibus apparet scriptura in libro ipsius testatori et per scriptam ipsius domini Augustini detrahantur summum decem quos expedit in finendo imprestita nomine ipsius testatori qui sint ducatorum nonigenti. Item confessus est haberi penes dominam Johannam uxorem suam ibi presentem ducatos triamilia. Item Dionisius de pergamo specirius ------ducatorum quingintos Guasperinus specialis ------ducatorum centum

15 Probably the brother of Fulgosio’s colleague, Raffaele Raimondi. Raimondi had at least three brothers: Simon, Elias and Petrus who were merchants and for whom he prepared a consilium (Fulgosio, Consilia, 76r–77r) when they were collectively pursued in Como for debts owed by Simon and accused of evading those proceedings by virtue of being in Bruges on business. Due to the potential conflict of interest, Raimondi ended the consilium which he had prepared: “Ita pro veritate consulvi Ego Raffael de Raymondis de Cumis, quamvis non subscripserim, quia suspectus fuissem, cum consilium tendat ad favorem fratorum meorum, sed feci quod clarrissimus iuris utriusque doctor Raffael Fulgosius subscripsit, qui nil ultra addidit, nisi unum novissime et illud ponit usque ad finem primi quesiti etc.” (ibid., 77r). This gives a good indication of how the two men worked together, as well as the interaction between the personal and the professional with regard to consilia. Raimondi was not however as careful in a further consilium which he authored for the relatives of Masiolus Raimondi of Como concerning their citizenship in Milan (ibid., 96r–97v). Another candidate for Paulus de Cumis would be Paulus Lavario q. Jacobi de Cumis who was a witness in 1416 when Beccaria appointed procurators for her citizenship application: ASPd AN 4873, 135r. 16 To the side of this text a note adds that 200 florins need to be deducted for the deposit for the property. 17 Fredericus de Asola was dead by the time the debt was collected from his estate by Beccaria. Five hundred Paduan ducats was paid in place of one hundred Venetian: ASPd, AN 635, 104r–v. The document is dated 11 June but without a year. If this was 1428 then it is possible that he was another victim of the plague outbreak. The Last Will and Testament of Raffaele Fulgosio 323

Furigonius infranbatore unam vestem qua supra concessus et £ centum. M. Bonsignore pro vero debet dare £ c. et debet haberi facturam certorum laboreriorum. Antonius sulinarius dare debet pro resti debitorum £ trecentas Marcus bon Jacobi pro resto buletati ------£ clxxxvi Ettore, Zachore et fratres ------ducatorum trecentos sexaginta duos pro quibus habet pignum duos balassos, xii tacias, duos bussulos argenti, confeteria plana aureata. Item i. instrumentum [. . .] domus. Marcus branus nepos istius testatori de Parma18 filius q. domine Ziliole sororis ipsius testatori ducatorum quingentos xliii debeat detrahi ducatorum xvii pro varis h[abetan]tis. Item dare debet ultra predicta ducatorum xxv pro quibus habet pro pignore duas confeterias unam magnam et unam parvam aureatam in xxvii vel circha. Et si aliquis debitorum suorum haberent aliquam scriptam solutam facte ipsi testatori et esset unius super libris ipsius testatori voluit aneclari de eo quod aparebit ded[uctas]. Insuper voluit stari libris suis manu sua scriptis de quid debet dare et habere dicens et affirmans omnia contenta in libris suis esse vera. Item voluit quod libri sui et argenteria vendantur et alia que non erunt necessarium pro dicta domina Johanna de quibus emantur possessiones sine necessitate redendi rationem quia multum confidit de ea. Testes a testatori rogati m°cccc° xxvii indictione v, die iovis xi septembris padue in contrata Sancti Nicolai in domo infrascriptis testatori. Dominus Jacobus de marostica q. ser dominici de contrata Sancti Luce Ser Blasius de merlara campsore q. ser Jacobi de contrata porte Tadorum Mag. Johannes laurencii de Firmo studens in medicina Johannes furnari fil. mag. Albertini becchari de contrata falaroti Archangellus q. Dionisi de medicis lan. de contrata strate Dominus presbiter Jacobus a stanga q. ser Johannes rector ecclesia Sancti Nicolai Julianus samperini de arimino contrata strate Simon fil. Ugolini de arimino strate Guasparinus specialis q. ser Jacobi de contrata S. Petri

18 Piacenza is crossed through and replaced by Parma. Appendix 2 The Last Will and Testament of Giovanina Fulgosio Padua, 1 September, 1437 ASPd, AN b.628, c.221r–c.222r

Cum vite sue terminum unusquisque prorsus ignoret et nil cercius morte et incertius hora mortis/ cuius discrimen evitare non possimus/ a quo unicuique imminet pre- cavendum iuxta vocem veritatis in evangelio dicentis ‘vigiliate itaque quia nescitis diem neque horam’1/ considerans hoc/ Speciabilis et generosa/ domina Johanna de beccaria quondam spectabilis et generosi domini Anthoni de beccaria/ uxor quondam clarissimi et excellentissimi utriusque iuris doctoris domini Raphaelis Fulgosio de placentia/ cives et habitator padue in contrata Sancti Nicolai/ per graciam omnipotentis dei/ sana mente et corpore/ recteque loqutus / videns et cognoscens pericula huius mondi / timens se ab intestato decedere / volens saluti sue anime providere/ suaru- mque rerum/ et bonorum omnium dispositionem facere suum nuncupativum testamentum sine scriptis in hunc modum facere procuravit. In primis namque animam suam de nostro Ihesu Christo humiliter comendat/ quandocunque continget ipsam transire de hac vita/ corporis vero sepulcrum elligit in ecclesia Sanct Nicolai in qua vult edificari debere unam capellam cum uno altari con- ducenter et in ea omni die celebrari massam pro vita sua2/ per unum capelarium/ qui habere debeat annuatim ducatas triginta auri et habitationem unius domus/ in dicta contrata quam ipsa domina testatrix emere [intendit]? [vel] per suos commissarios infrascriptos/ emi debeat in casu quod ipsa non emisset. Item reliquit ecclesie S. Nicolai de padue pro reparatione ipsius ecclesie/ vel orna- mentorum altaris et celebratione misse/ prout videbitur convenire suis commissarios melius £ centum parvorum pro anima sua. Item reliquit ecclesie Sancte Marie Nove posite extra portam Savonarole/ similiter pro necessitatibus et utilibus ecclesie/ ut videbitur suis commissariis £ quinquaginta parvorum pro anima sua. Item reliquit hospitali contiguo dicte ecclesie Sancte Marie Nove/ distribuendas ut melius videbitur suis commissariis ut supra £ quinquaginta parvorum pro anima sua.

1 Mark 13:33. 2 The phrase ‘and for Raffaele Fulgosio’ is crossed through.

Item reliquit3 ecclesie S. Anthoni/ heremitorum/ predicatorum /carmelitorum/ servorum/ et Sancti Francisci de observantia/ £ quinquaginta/ pro singula ecclesia/ distribuendas in ecclesiis vel aliis ut videbitur suis commissariis pro anima sua. Item reliquit domine Brande uxor m. Coreti aurificis/£ duecentas parvorum pro amore dei ut roget deum pro anima sua. Item reliquit domine Semperbone uxor q. Johannis bora £ viginti parvorum pro anima sua et amore dei. Et similter reliquit d. Alegiantie4 £ viginti parvorum pro anima sua. Item reliquit Johanni furlano/ factori suo/ £ duecentas parvorum pro anima sua. Item reliquit Bone sclave ipsius testatricis/ libertatem/ et lectum unum fulcrum de illis qui sunt in domo / eligendum per commissarios suos/ cum suis fulcimentis et libras quinquaginta parvorum pro anima sua. Item reliquit Margarite quondam scalve sue/ £ trecentas et lectum unum fulcrum eligendum per commissarios suos ut supra/ pro anima sua. Item reliquit Marie sclave sue / libertatem hoc modo/ videlicet / quod ponatur ad standum et famulandum in aliquo honesto loco/ per annos sex/ itaque de lucro / quod ipsa lucrabitur/ recipiendo per suos commissarios aliqualiter effitiatur pretium emp- tionis sue / deinde sit in libertate et possit nubere / et sibi provideat per comissarios suos ut sibi videbitur. Item reliquit religiose et honeste domine Leonore de fulgosiis monace presense in monastero Sancti Francisci de placentia £ centum parvorum recomitens sibi animam suam.5 Item reliquit pro male ablatis incertis dispensandas statim post eius mortem inter pauperes Christi verecundos / vel ceteros eligendos per suos commissarios ut melius eis videbit £ trecentas parvorum pro anima sua. Item reliquit spectabili domine Donine/ uxor q. generosi militis domini Perugini baduario de Peraga et nepti ipsius testatricis / ducatos ducentas auri pro anima sua / cum ista conditione quod ipsa domina Donina decedente / sine filiis legitimis et naturalibus tunc dicti ducati ducenti provenire debeant in filios et heredes nobilis viri domini Musseti de becaria fratris ipsius testatricis. Item6 voluit dicta domina testatrix quod per suos comissarios emantur imprestita ad cameram comunis venetiarum imprestitorum pro mille ducatis bonorum denariorum/ id est quod mille ducati expendantur in dictis imprestitis / (vel quod

3 “to the Franciscan order” is crossed through and replaced by the list of orders. 4 “domina Constantie” is crossed through. 5 This legacy is crossed through as if it had been subsequently paid. 6 To the side of this paragraph a later remark mentions that this was in the time of peace between Venice and Milan; a possible reference to the subsequent value of investments like these in Venetian state debt. 326 Appendix 2 de imprestitis [. . .] que habet dicta domina testatrix assignavit tot imprestita qui sunt valoris ducatorum mille bonorum denariorum) / quod redditus sunt nobilis viri domini Musetti de beccaria fratris predicte testatricis in vita sua et consequenter filiorum suorum liniorum et aliorum discendentium ex linea masculina tantum / legitorum et ex legitimo matrimonio natorum sucessive usque in perpetuum / donec aliquis ex suis discendentibus masculis tantum / et tantum a masculis discendentibus et ex legitimo matrimonio reperietur / Et in casu quo nullus ex discendentibus modo suprascripto reperietur tunc voluit dicta testatrix / quod dicti redditus imprestitorum emptus pro ducatis mille vel assignatorum ut supra sint et pervenire debeant in prosimorem7 affi- nem ipsius testatricis legitimum et naturalem / et pauperiorem de stirpe illorum de beccaria / et illo deficiente pervenire debeant in alium prosimiorem dicte testatricis pauperiorem in stirpe suprascripta et sic sucessive usque in infinitum / uno deficiente / perveniat in alterius prosimiorem et pauperiorem de dicte stirpe modis suprascriptis ita quod dicta imprestita nunquam nondum possit nec alienari nec obligari sed continue transeant de uno in alium ut suprascriptum est/ suprascripto domino Museto vel alicui ex descendentibus qui pro tempore erunt vel alicui ex illis de beccaria qui habeant et habere debeant ipsos redditus imprestitorum ducatorum mille ut supra / nisi melius videretur suis commissariis simul cum aliquibus ex illis de becaria ad quos pertinens melius et utilius videretur / vendere dicta imprestita et de pretio emere tot possessiones in territorio papiensi elligentes / quod remaneant obligate ut supra / et redditus illarum transeant ut super de redditibus imprestitorum nec ipse possessiones postea unquam vendi nec alienari possint suis comissiariis ut de imprestitis supra declaratum est salvo quod si melius videretur vendere domum vel domos ipsius testatricis loco imprestitorum tunc eis commissariis liceat vendere usque ad summam ducatorum mille auri / et pro valore imprestita pro emptione dictorum possessionum in territorio papiensi. Item reliquit predicto domino Musseto fratri suo vel heredibus suis ducatos ducentos auri/ de quibus dictus dominus Mussetus disponere possit pro libito sue voluntatis / instituit ipsum suum heredem / iubens et mandans ipsum fore et esse tacitum et contentum de omnibus bonis et habentibus dicte testatricis. Item reliquit monastero Sancte Marie Misericordie de Padue £ centum parvorum rogans moniales dicti monasteri ut anima sua sit eis recommissa in orationibus earum. Item / cum illustris utriusque iuris doctor dominus Raphael fulgosus / olim coniunx ipsius dicte testatricis/ suo autentico testamento /reliquerit ducatos centum auri qui recipunt de prode imprestitorum ipsius q. domini raphaelis / a camera imprestitorum comunis venetis/ distribuendos per ipsam testatricem inter pauperes Christi et egenas personas in vita sua/ commissario nomine / et post mortem ipsius testatricis / ipsam dominam Johannam testatrix posit ponere et eligere commissarios quos voluit / dispensatores dictorum ducatorum centum inter pauperes Christi in perpetuum secundum intentionem q. ipsius domini Raphaelis / Idcirco ipsa domina Johanna

7 I.e. proximiorem. The Last Will and Testament of Giovanina Fulgosio 327 testatrix omni modo iure via et forma et omni solemnitate iuris vel facti ad hoc requi- sito seu qui requiretur / et potestatem quod iam habet vigore dicti testamenti ex nunc pro semper eligit guardianum et alios officiales fratalie Sancta Marie a caritate qui pro tempore erunt/ commissarios executores et dispensatores dictorum ducatorum centum in pauperibus Christi prout ipse dominus Raphael legavit / Et si aliquo tempore accideret quod deus avertat quod dictam frataliam ad nichilum proreviret et officiales non reperient tunc a eo casu constituit et eligit comissarios ad executionem dicti legati q. domini Raphaelis et dispensationem dictorum ducatorum centum ut supra / guar- diani et officiales fratalie Sancte Marie colombinorum omni modo iure via et forma quibus melius potest ut supra / Et in casu quo dicta fratalea Sancte Marie colombinorum ad nichilium deveniret / et officiales ipsius non reperientur tunc in eo casu ex nunc prout ex tunc / et ex tunc prout ex nunc/ eligit et constituit commissarios ad executionem dicti legati domini Raphaelis et distributionem dictorum ducatorum centum sindicum et gastaldiones / fratalie notariarum de Padua/ qui pro tempore erunt / Volens ipsa testarix et mandans quod predicti pleni commissarii et consequenter alii constituti ut supra / tentant scribere dispensationem dictorum ducatorum centum per ipsos factarii/ ita ut sufficiens ratio omni tempore videri possit. Item dicta domina testatrix tradit et concedit omne ius commissarie in testamento q. domini Raphaelis in legato quod teneatur unus sacerdos in ecclesia S. Nicolai de padua qui celebret omni die inperpetuum unam missam pro anima ipsius domini Raphaelis / officalibus fratalie Sancte Marie de caritate de Padua / ita quod ipsi astrin- gunt heredes ipsius domini Raphaelis ad solvendum £ centum et decem parvorum presbitero qui celebret missam pro anima domini Raphaelis ut supra / et faciant ipsum habere habitationem domus posite ex opposito Sancti Nicolai in qua habitat ad presens unus capelanus qui celebrat ut supra / Et in casu quo non possent astringi dicti heredes de Raphaelis de iure et de facto ad solvendum £ centum et decem parvorum ut supra quod tunc de summa ducatorum centum in legati q. domini Raphaelis immediate suprascripti dare debeant / dictum £ centum decem parvorum predicto capolino qui celebret missam pro anima predicti domini Raphaelis ut supra. Item8 ipsa testarix iussit et ordinavit quod si de bonis suis mobilibus reperietur ultra illud quid fuerit necessarium pro solutione infrascriptorum legatorum minorum et superfuerit usque ad summam ducatorum trecentorum de ipsis emantur livelli meliori modo quo fieri poterit / et redditus dentur uni presbitero bone vite seculari vel religioso inperpetuum / qui omni die celebret unam missam in ecclesia vel cap- pella in qua erit sepulcrum corpus dicte testatricis/ et in casu in quo non essent bona mobilia / que ascenderetur ad dictam summam ducatorum trecentorum voluit dicta testatrix quod de prode sive redditibus suorum imprestitorum libre centum dentur uni sacerdoti bone vite perpetuo qui celebret ut supra.

8 This paragraph is crossed through. 328 Appendix 2

Super9 sepulcura vero voluit expandi id quod suis commissariis videbitur condecens cum legato pro domina Alegiantia et domina Semperbona et cetere mulieres que sunt in domo ipsius testatricis. Habeant unum fatiolum funeralia pro qualibet / Et quod Johannes famulus suus induatur vestibus funeralibus. Item reliquit et voluit ipsa testatrix quod capella sive altare unum in dicta ecclesia in quo corpus suus fuerit [sepelcuri] fulcitum tobaleis mantilibus palio calice missali pianeta camixo stollis et similibus indumentis et ornamentis qua requiruntur pro uno altari/ et in celebratione misse et aliorum officiorum divinorum [que] omnia stent in gubernatione regimine suorum comissiarorum et debeant renovari pro tempora [secundum quod oportuit] / Et in istis fiat [expensis] qua videbitur suis comissariis. Item legavit seu reliquit fratalie capellanorum civitatis Padue £ centum parvorum recommitens sibi animam suam et suorum. Item reliquit Bartholomeo gezo de placentia laborato suo omni debitum in quo ipse tenetur dicte domine testatrici et liberavit eum / Et quod induatur vestibus funeralibus Item voluit quod Johannes de trivisio priore hospitalis S. Marie Nove induatur vestibus funeralibus. In omnibus autem aliis suis bonis etc. instituit et esse voluit suos heredes universa- les pauperes Christi eligendos per suos comissarios in hoc modo videlicet quod omnia alia sua bona immobilia perpetuo observari debeat et manuteneri, et fructus qui per- cipientur, dispensantur in pauperes Christi eligendos ut supra. Suos veros comissarios et huius sui testamenti executores esse voluit et ordinavit famosissimum utriusque iuris doctor dominum Prosdocinum de comitibus, hono- rabiles viros guardianum et quemlibet gastaldiones ac dispensatores fratalie Sancte Marie de caritate/ ita quod quilibet eorum officialium habeat integram vocem et arbi- trium commissarie et executionium suprascriptis testamenti/ et honorabile virum ser Johannem de ursatis campsorem ac famosissimum artium et medicine doctorem m. Christopherum de pergamo10. Et hoc voluit esse suum testamentum. M° cccc° xxxvii die domenice primo septembris padue in contrata Sancti Petri in domo Coriti aurificis. Egregius artium et medicine doctor m. Christopherus de pergamo de contrata S. Danielis.

9 This paragraph is to the side of the main text as a note or addition to the previous paragraph. 10 Crossed through in the text, perhaps indicating a late change from being one of Beccaria’s executor to merely a witness to her testament. Cristoforo Barzizza of Bergamo was the nephew of Gasparino Barzizza and taught medicine at Padua in the 1430s alongside Michele da Savonarola. He had also served as guardian of the fraglia of S. Maria della carità in 1429 and had taught in Padua from c.1415. See: Paolo Sambin, ‘Cristoforo Barzizza’, DBI, 7 (1970), 32–34; Pearl Kibre, Studies in Medieval Science, (London: Hambledon Press, 1984), XVIII: 389–398. The Last Will and Testament of Giovanina Fulgosio 329

M. Silvester aurifex q. Vincenti Matheus tella[r]olus q. Dominici M. Franciscus tellarolus de contrata Rutene Franciscus perigolo straz[arolus] de contrata S. Anthonii Bartholomeus de florentia q. [Blank] de contrata S. Malga[rita] Ser Bartholomeus de pergamo q. Johannis sala[nini] de contrata S. Johannis a navibus Appendix 3 The Inventory of Giovanina Fulgosio’s Possessions Padua, July 1439 ASPd, AN b.628, c.570r–c.572v. (The numbering of items has been added by the author)

Millesimo quadringentismo trigesimo novo indictione secundi/ die veneris/ xvii Iuli padue in contrata Sancti Nicolai. Inventarium omnium bonorum mobilium et immobilium q. spectabilis et generose domine Johanne de beccaria q. domini Anthoni de beccaria / uxor clarissimi et excelen- tissi utriusque iuris doctoris domini Raphaelis fulgosio et ipsius q. domini Raphaelis / factum et ordinatum per famossissimum artium et medicine doctorem m. Michaelem de la savonarola, prudentem virum Johannem de ursatis notarium et distinctum virum ser Andream capalanium guardianium fratalee Sancte Marie de caritate de Padua commissiarios et executores testamenti et ultime voluntatis q. domine Johanne ut infra particulariter sequitur scriptus per me Andream de bovolenta notarium.

In camera apud sallam

1. Primo unum lectum vergatum de pignolato cum ii scapitalibus vergatorum de pignolato 2. Item una cultra antiqua a cariola 3. Item una alia cultra vergata magna 4. Item una ancona picta nostre domine cum armarolo 5. Item una tabula cum ii tripidis 6. Item una credentia 7. Item unus scapitalis vergatus de pignolato 8. Item tria incisoria in uno bancho

In salla

9. Item una credentia 10. Item una bancha a tribus pedibus 11. Item una catreda cum aliis 12. Item pl’a quinque lignorum incisorum

In introitu apud sallam

13. Unus lebes magnus / capacitatis ii. situllarum 14. Item due tabule de picio

In salla veteri

15. Unus banchus ab uno caltu in quo sunt multi candeloti mag. benedicti 16. Item una capssa veneta 17. Item unus cassonis a forma 18. Item una capssa veneta

In camera a turri

19. Unus lectus de pignolato vergato 20. Item una cultra a bindis rubea et azura 21. Item unum par linteaminum 22. Item una valixia medii temporis

In additu apud scallas

23. Una credentia antiqua

In coquina

24. Primo par unum cavedonum ab igne 25. Item una calderia de ramo ii sitularum 26. Item una asta ferata 27. Item una fersura 28. Item unus lebes de lapido parvus 29. Item due graticule 30. Item una padella ferata 31. Item una catia cum foraniculibus 32. Item unus ferrus ab igne ad triand[] primas 33. Item una molletta

In coquina ubi est sitularium

34. duo lebetes de biondo medie situle pro quolibet 35. Item unus lebeticulus de lapido 332 Appendix 3

36. Item unus alius lebeticulus de lapido 37. Item ii calderie de lapido parve 38. Item quinque situli de ramo ab aqua 39. Item unus lebes magnus / i situle 40. Item una calderia de ramo 41. Item una catena ab igne cum uno catiole 42. Item unus mortarius lapideus

In salla

43. Primo quinque catiole

In camino ubi decesit d. Johanna

44. Primo duo lecti cum cum titulus scapitialibus de pignolato vergati 45. Item duo cussineli de pignolato non vergato 46. Item una preponta azura et zala a ziglis 47. Item una preponta alba de vallesio 48. Item unus cohopertoribus de pellibus 49. Item unus bancus a duobus caltis 50. Item una credentia 51. Item una bancha 52. Item par unum linteaminum 53. Item una cariola 54. Item unus lectus de pignolato vergato vetus cum ii scapitialibus vergatis de pignolato 55. Item par unum linteaminum vetum quorum unus cum capitalibus alius sine capitalibus 56. Item unus cohopertorius magne de sarzia frin[] 57. Item duo banchi

In granario

58. paria duo cavedonum ab igne 59. paria duo tripedium a tabula

In campa inferiore

60. Primo xii buticele vacue 61. Item una veges vacua The Inventory of Giovanina Fulgosio’s possessions 333

62. Item duo carateli 63. Item tres masteli alisima 64. Item ii guante parve 65. Item i pitorum

In lobia

66. quatro vegetes vacue 67. Item una buticela [et] duo carateli – vacui

In campa parva

68. pensas novem caxei dulcis

In camino magno in orto

70. unus scrineus de nuce 71. Item unus coffinus magnus in quo dicuntur esse res magnifici comitis Lazari 72. Item due banche penes ipsum comitum

In curia gallinarum

73. Primo tirati quatuor 74. Item una tinela 75. Item capita 36 pullorum 76. Item pl’a vi lignorum incisorum

In camera studi

77. primo tres tapedi comunos / medie vite 78. Item una cultra de tella facta a ziglis rubea et azura 79. Item una cultra zala et azura facta abindis 80. Item iii banchalia vetera 81. Item una culteleria cum vii cultelis cum veretis de argento deaurato cum uno cocleari de argento et tribus pironis argenti 82. Item una culteleria cum v cultelis cum manicis argenti auri albo 83. Item duo mantilia cum capitibus 84. Item duo gausape 85. Item unus fatiolus vetus a capitibus 86. Item unus toaiolus cum capitibus de strixio 334 Appendix 3

87. Item una tobalea 88. Item brachia octo telle subtillis 89. Item una cintura blava scura de vallesio cum armis d. Raphaelis 90. Item par unum cirotecarum

In studio

91. Una careda de ligno laborata 92. Item una capssa ferata in quo sunt: 93. Primo par unum fatiolorum novorum de fillo 94. Item in grossonibus £ ducentum decem unum 95. Item in soldis £ centum duodecem 96. Item in ducatis auri duorum mille ccc. viginti septem 97. Item una capsita eburnea in quo erant predicti denarii

In granario superiori

98. Modia duodecem frumenti vel circa antiqui 99. Item sunt quindeci fabarum vel circa 100. Item sunt sex circus vel circa

In alio granario minori

101. Primo sunt triginta millei vel circa 102. Item sunt triginta [. . .] vel circa 103. Item duo curateli ab aceto, cum masteli ii aceti

In salla magna

104. Primo modia decem [frumenti] vel circa

In campa inferiori

105. Item masteli xl vel circa vini de plano in vii vegetibus

In camera studii

106. Una vestis vel pano magno 107. Item una clavis – adorso ‘domine Johanne’ 108. Item una culteleria cum sex cultelis cum veretis argenteis deauratis cum armis domini Raphaelis et domine Johanne The Inventory of Giovanina Fulgosio’s possessions 335

109. Item quatuor incisoria et tres scutelle de peltro 110. Item quatuor manutergia nova 111. Item duo fazoleti de fillo et bombice 112. Item unus fatiolus de sirico et bombice in capsa serica 113. Item una binda de bombice 114. Item duo toaoli novi cum capitibus albis 115. Item unum mantilium cum capitibus quasi novum 116. Item duo tessuti de sirico rubeo / unus cum novem passiti alius cum octo passiti auri deaureati 117. Item duo mantilia cum capitibus latinis quasi nova 118. Item unum alium mantilium quasi novum 119. Item unum guardanapa brachiorum octo 120. Item sex tobalee cum capitibus ab angulis nove 121. Item quatuor fazoleti anasso

In domo Johannis de Ursatis res apposite die Ven. 20 iulii

122. Primo una proponta de vallesio laborata ad animalia azura et zala nova 123. Item una alia proponta de sindone coloris verdis et rubei facta abindis medium tempus 124. Item unus lunolius de tella 125. Item duo cussini cum intmultis sirici auri antiquis 126. Item una preponta sindonis nigri sufulta tella azura 127. Item una alia preponta facta ad girlandas azura sufulta tella rubea 128. Item duo banchalia rialbata unum coloris rubei aliud coloris verdis 129. Item una capssa ferata cum duabus clavis in quo sunt: 130. Primo quinque tobalee cum uno toaiolo in una petia cum capitibus albis de bombice 131. Item tria guardanapa cum decem manutergia in i petia cum capitibus albis de bombice 132. Item tres tobalee et tria manutergia in una petia nova cum capitibus 133. Item quatuor manutergia in una petia nova cum capitibus 134. Item tria guardanapa in una petia 135. Item sex scufie de tella 136. Item medium unum linzoletum vetus 137. Item una curtina a lecto de tella azura cum armis auri collati 138. Item due sancte nove de tella cum pedibus de fillo laborato 139. Item unus fatiolus de lino sine capitibus 140. Item brachia quatuor vel circa bocasini albi 141. Item par unum tobalearum cum capitibus de strixio 142. Item due binde de bombice nove 336 Appendix 3

143. Item una tobalea longa cum capitibus albis nova 144. Item par unum tobalearum factum ab ancelis novarum 145. Item duo mantilia amasseritia cum capitibus latinis 146. Item quinque mantilia vetera / duo cum capitibus magnis alium cum capitibus de bombice vetum 147. Item tresdecem tobalee sex cum capitibus magnis ab angulis et septem cum capitibus parvis vetera 148. Item circa £ duas bombicis nigri 149. Item circa £ tres bombicis albi 150. Item una conuxota de tella sine manicis 151. Item una alia capssa alba in quo sunt: 152. Primo sex fatioli novi in una petia 153. Item tres brachia tria telle vergate 154. Item £ xx lini acligati 155. Item unus coblus telle gresse 156. Item c. duodecem filli albi in bistis 157. Item c. quatuor filli albi in glenus in una sacheta 158. Item tres bisti filli albizati 159. Item unus fatiolus novus sine capitibus 160. Item circa brachia tria telle nove 161. Item unus fatiolus novus a spatulis 162. Item spolete xi de sirico crudo albo 163. Item una scatula spoletarum bombice filatis a fatiolis 164. Item unus centus de sirico rubeo cum rosario cum capitibus fib[ul]a et septem [. . .] 165. Item due tobalea vetera 166. Item tria mantilia vetera 167. Item octo linteamina parva sine capitibus vetera 168. Item unum linteaminum magnum veterum 169. Item quatuor cussineli de pignolato cum finctis de tella 170. Item unum linteaminum parvum factum a stuffa

Que res suprascripte posite in suprascriptis capssis sunt posite et collerate in domo prudenti viri ser Johanni de ursatis presentibus ser Panno acatis, ser Andrea de paona et ser Johanni padue commissiariis ac Nicola st[] die mercurii 22 julii In ultrascripto studio parvo

171. Primo duo mantilia nova cum capitibus ab ancelis 172. Item quinque paria tobalearum novarum cum capitibus ab ancelis The Inventory of Giovanina Fulgosio’s possessions 337

173. Item par unum guardanapis novis cum capitibus ab ancelis 174. Item unum guardanapa vetus cum capitibus latinis 175. Item unum aliud guardanapa vetus cum capitibus latinis 176. Item novem mantilia vetera cum capitibus 177. Item unum mantile vetum cum capitibus 178. Item due confecterie argentee deaurate magne cum armis amborum commis- siarum videlicet domini Raphaelis et domine Johanne 179. Item sex tacie argentee deaureate in quadam vagina 180. Item unus centus de sirico de grana cum capitibus et fib[ul]a et octo passetis 181. Item unus cintus de sirico mundo cum capitibus et fib[ul]a et novem passetis argenti deaureati 182. Item una fructa parva laborata de fillo 183. Item sex scudelini de argento 184. Item duo pissides de argento aspitiis 185. Item sex salserie de argento 186. Item decemnovem pironi de argento soleti. Item tres pironi cum manicis bufali 187. Item coclearia xxi de argento 188. Item unus agnus dei de argento aureato 189. Item una corda de paternostris de coralo cum xvi perlis 190. Item quatuor salserie de argento deaureato sine pedibus 191. Item tres salserie de argento de aureato cum pedibus 192. Item unum zafirum ligatum in auro factum ad tabulam 193. Item septem verge auree 194. Item unus anullus feratus auri cum una ingranata 195. Item unus anulus aureus cum una granata 196. Item unus anulus subtilis feratus 197. Item quatuor flores cum perlis parvi valoris 198. Item una cappellita argentea a cultello 199. Item unus [fermalium?] cum quatuor balassis et quatuor perlis magnis rotondis ligatus in auro cum sinaltis et una imagine parva cum capitibus de aureato in uno coffino parvo de aureato laborato1 200. Item quinque fatioli novi aspala in una petia 201. Item unus fatiolus cum quatuor fazoletis de fillo et bombice insimul 202. Item unus coffinus in quo sunt: 203. Primo unus fazoletus de sirico cum franziis de sirico de grana recamato 204. Item quinque fatioli de bombice 205. Item unus fatiolus de sirico et bombice novus

1 Crossed through with a note dated 30 July to the effect that the jewellery was restored to its owner, Jeronimo Taiapetra (see above, p. 298). 338 Appendix 3

206. Item quinque binde, tres de bombice, et due de sirico 207. Item una velleta de bombice 208. Item una alia velleta nova de bombice 209. Item duo binde de bombice 210. Item una velleta de sirico vetera 211. Item unus fatiolus recamatus – [ . . ] dandi ecclesie S. Nicolai 1415–27 1409–27 1415–27 1415–27 Lesson Range Date Lecture Dated Dated Lecture by: “dum transirem per transirem “dum Senas” Januam ‘last year’ Relative Date Date Relative of Comment City per comm./ [per consilium different] where Constance Genoa Mantua/[Meda/ Piovene] Constance Constance Individuals mentioned in consilium Bartolomeo Bartolomeo Francelli/ q. Franciscus Gueresi (No. in Consilium (No. Consilia , 1575) N 174 I F. consulted by French French by consulted F. ofgovernor Genoa singuli by On testimony or universi simony Papal Christmas Controversy Discussed mixed imperium it being to Reference Lent Commentary Remark delegation Aragonese Appendix 4 11 20 23 25 29 31 Fol. 8 Data Table for Graphs Table Data (i) Digest

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004305854_018 340 Appendix 4 1415–27 1414–15 1418–21 1415–16 Lesson Range Date Lecture Dated Dated Lecture by: Grazioli’s tenure tenure Grazioli’s in Feltre Fr. Testator death + < Dotti’s 3 years records ASLU “semel” “non est multum tempus” “semel” “non est tertius annus” “paucis admodum diebus” Relative Date Date Relative of Comment City per comm./ [per consilium different] where Constance Feltre Verona [Vicenza] Lucca Individuals mentioned in consilium Francesco Francesco vicar Grazioli, et al. of Feltre family Dotti Berindelli v. Turellini (No. in Consilium (No. Consilia , 1575) 138 N 62 Imola, Consilia, 89rff N N Commentary Remark Subdelegation F. consulted re a judge re consulted F. an appeal re consulted F. spurios re consulted F. legitimated it being to Reference December manifest re Consulted iniquity it being to Reference Easter inheri - brothers’ Three tance dispute minors and Case re restitution Fol. 36 52 54 61 67 92 119 139 150 Table digest i (cont.) digest Table Data Table for Graphs 341 1415–27 1415–20 Lesson Range Date

Morruele death + Cigala’s est. of time for be brought case to Lecture Dated Dated Lecture by: “anno preterito” “anno “hoc anno” vidi” facto “iam ex “pridie” Relative Date Date Relative of Comment [Siena] Vicenza Padua ([Siena]) Verona Pavia Piacenza Constance Genoa City per comm./ [per consilium different] where Individuals mentioned in consilium Antonio Grillo Antonio uxor & Salvagia q.Morruelo Cigala 75 13 (No. in Consilium (No. Consilia , 1575) 150? Case pending re buyer buyer Case pending re of an alienated inheritance statute a Pd to Reference arbiters re A filiusfamilias made a compromissum furiosi Disputation re on his took F. Case where teacher for £40,000 advocated F. case Sigismund at Constance word re consulted F. ‘gauditam’ Commentary Remark with Joannes Disputed Romano 155 156 157 171 179 185 186 216 Fol. 153 342 Appendix 4 1415–16 1416–17 Lesson Range Date Lecture Dated Dated Lecture by: Probable tournament ASVi records “heri” “non est multum tempus” “sunt pauci dies” “sunt Relative Date Date Relative of Comment City per comm./ [per consilium different] where Venice Lucca Padua Vicenza Individuals mentioned in consilium Trissino family Trissino (No. in Consilium (No. Consilia , 1575) N N 118 Commentary Remark Consilium on quasi possession of a slave F. consulted re unborn re consulted F. inheritance rights re consulted F. prescription Contarini at the tournament F. consulted re two two re consulted F. who pass relatives third to arbiters from judgment Fol. 217 224 235 238 251 Table digest i (cont.) digest Table Data Table for Graphs 343 1415–27 1410–1412 Lesson Date Lesson Date Range 1407–1407 Lecture Dated Dated Lecture by: Ozzola’s career Ozzola’s Date on Date repetitio Relative Date Date Relative of Comment “etiam pridie” “etiam “ultimo anno et ultimo mense” Constance City per comm./ [per consilium different] where Verona Vicenza Pavia Siena Verona Individuals mentioned in consilium Agostino & Agostino Joanna d’Ozzola Bertono a Bertono & Pemelli de Castellano Expenditoribus (No. in Consilium (No. Consilia , 1575) N N 110 (Raimondi) 180 I Commentary Remark Consulted re hospital re Consulted of in Sacco S. Giovanni statute re consulted F. ‘porrexit’ and term Constance Debate F. consulted re re consulted F. marriage Repetitio given in given Repetitio Siena F. consulted re re consulted F. clause in derogating arbitrator’s commission 8 30 Fol. 1 16 36 46 Codex (ii) Codex 344 Appendix 4 1409–1414 1412–1413 1412–13 1410–1411 Lesson Date Lesson Date Range Lecture Dated Dated Lecture by: Assumed <10 after years became Verona Venetian Treaty negotiation Treaty Date on cons. + on cons. Date est. for pridie Relative Date Date Relative of Comment ‘last Christmas vacation’ ‘anno Lectured preterito’ “anno preterito” “anno est “Nondum multum tempus” “Pridie” Venice Venice City per comm./ [per consilium different] where Vicenza Verona Genoa/Capua Individuals mentioned in consilium Bertono a Bertono & Pemelli de Castellano Expenditoribus Costantino & Ant. Lercari (No. in Consilium (No. Consilia , 1575) N 180 Madrid 2146 Commentary Remark F. with Vimercate to to Vimercate with F. Venice consilium re F. compromissi Consulted re amnesty re Consulted Vicenza to Venice by F. return from Venice from return F. F. consulted re consul re consulted F. on minors’ wrote F. contracts consilia on saw F. minors’ creditors 58 71 Fol. 56 80 99 109 112 table Codex I (cont.) table Data Table for Graphs 345 1410–1410 1411–1411 1427–1427 Lesson Date Lesson Date Range Ciompi revolt Lecture Dated Dated Lecture by: ‘25 years ago ago ‘25 years yesterday’ “pridie” “pridie” “xlvi versatus sum” Relative Date Date Relative of Comment Brescia Milan Verona Verona City per comm./ [per consilium different] where Bertono a Bertono & Pemelli de Castellano Expenditoribus Anon. Individuals mentioned in consilium 180 192 (No. in Consilium (No. Consilia , 1575) F. consilium for a F. lawyer Brescia Question Verona from compromissi re Revolt in Bologna Revolt civil and Consilium re and an criminal law inheritance case brothers’ Two 46 Comment about F.’s in the law years Commentary Remark Arrest ofArrest Bernabò Visconti 117 123 121 163 167 223 Fol. 114 346 Appendix 4 1409–1427 1408–1414 1415–1427 1407–1407 Lesson Date Lesson Date Range Ref. to ‘late’ ‘late’ to Ref. Giovanni Castiglioni to reference F.’s leading lawyers of last 14 yrs. Case must pre Saliceto’s date death in 1412 Lecture Dated Dated Lecture by: “ex facto allegavi” facto “ex “pauci dies sunt” “non est multus tempus” Relative Date Date Relative of Comment Vicenza Constance Parma City per comm./ [per consilium different] where Individuals mentioned in consilium N N (No. in Consilium (No. Consilia , 1575) II Mother versus pupil re pupil re Mother versus £2,000 inheritance with Paterfamilias and a pregnant daughters Zabarella wife. Saliceto, and others consulted Constance re F. Commentary Remark F. alleged re someone re alleged F. absent for 30 years Argued agt. his own Argued agt. his own in inheritance teacher case 28 53 64 Fol. 17 68 Codex (iii) Codex Data Table for Graphs 347 1409–1417 1411–1417 Lesson Date Lesson Date Range ’s Lecture Dated Dated Lecture by: Martin V election Zabarella’s appointment & as a cardinal death “paucis annis” “hoc anno” “non multus tempus” Relative Date Date Relative of Comment Verona Bologna Parma Padua Vicenza City per comm./ [per consilium different] where Individuals mentioned in consilium (No. in Consilium (No. Consilia , 1575) Re a daughter promised a promised a daughter Re in a will when dowry impubes F. answered an inheri - answered F. tance question in Padua “non per modum consili” on a but consulted Bologna case Consulted re inheritance re Consulted on male side brothers to not female Commentary Remark Schism on-going Meal with Gabriele and Zabarella brothers’ Vicenza case re inheritance 133 105 128 Fol. 82 89 99 348 Appendix 4 1415–1427 1415–1416 Lesson Date Lesson Date Range 1410–1427 Lecture Dated Dated Lecture by: Lucca archival Lucca archival records Piombino’s Piombino’s death “non est multum tempus” Case predates Case predates demise of Senese Francesco ofCasali lord 1407 Cortona Relative Date Date Relative of Comment “pridie” “non sunt multi dies” City per comm./ [per consilium different] where Lucca Genoa Brescia Siena/[Cortona] Individuals mentioned in consilium Berindelli v. Berindelli v. Turrellini Masinus q. Masinus q. Vannis Angeli de bonis v. q. Christophera Georgii Iacobi, wife of Menchichelis fabri (No. in Consilium (No. Consilia , 1575) 7 N N 163 Commentary Remark Natural son legitimated by by son legitimated Natural Ct. Palatine After Constance After Both parties absent re Both parties absent re sentence sentence an invalid Re quia non ponit finem Re jurisdiction ofRe secular a or eccl. courts over cleric After d. ofAfter Ben. Piombino Case re appeals with Case re both parties present Fol. 139 149 152 159 187 165 187 table Codex Ii (cont.) table Data Table for Graphs 349 1409–1411 1415–1427 Lesson Date Lesson Date Range 1415–1427 Lecture Dated Dated Lecture by: Piombino adds consilium: must 1410 pre-date After Sigismund’s election Relative Date Date Relative of Comment “pridie” Venice City per comm./ [per consilium different] where Vicena Vicenza Individuals mentioned in consilium Caterina Caterina Castelgumberto & Gasper Trissino Zanonio Caffoni

(No. in Consilium (No. Consilia , 1575) p34 Rav. 585 VII Rav. 173 Commentary Remark Re a woman’s second a woman’s Re marriage Re Sigismund “then Re with & treaty electus”, Venice case Tormentum After Constance After Fol. 207 227 247 252 Bibliography

Works by Fulgosio – Manuscript

Collegio di Spagna, Bologna, ms. 83, 178v ——— ms. 122, 147r–148r; 160v–161v ——— ms. 255, 6r–7v Biblioteca comunale, Como, 2.5.1, 191r Universitätsbibliothek Eichstätt-Ingolstadt, Cod. st. 186, 149r–151r Universitätsbibliothek, Graz, 356, 22r–24v Stiftsbibliothek, Kremsmünster, Cod. 4, 8r–10r Archivio storico diocesano, Lucca, ms. 419, 200v–202r Biblioteca statale, Lucca, ms. 3232, 18r–20v Biblioteca Nacional de España, Madrid, 2146, 29r–38v Biblioteca nazionale, Naples, I H 3, 22r Biblioteca capitolare, Padua, D20 Bibliothèque nationale de France, Paris, Lat. 1485, 10r–16r ——— NAL 1700, 49v–50v Biblioteca Classense, Ravenna, 484 ——— 485/III & 485/VII Real Biblioteca del Monasterio, San Lorenzo de El Escorial, d.II.7., 313v Biblioteca nazionale Marciana, Venice, V,2 (=2324) ——— Zan 513 (=1662) Biblioteca civica Bertoliana, Vicenza, 476, 22v–25v Österreichische Nationalbibliothek, Vienna, 5097, 264r–266r

Works by Fulgosio – Printed

Ancharano, Petrus de, Consilia, (Rome, 1474), II: cons 444 Castro, Paulus de, Consilia antiqua et nova, (Venice: J. & G. de Gregoriis, 1493), I: 134r–135v ——— Consilia, (Venice: Haeredes N. Bevilaquae, 1580), I: 128v–129v Cipolla, Bartolomeo, Varii tractatus . . ., (Lyon: Haeredes I. Iunctae, 1547), 681–622 Fulgosio, Raffaele, Consilia, (Pavia: Bernardinum & Ambrosium de Rouellis, 1508) ——— & Raimondi, Raffaele, Consilia utriusque Raphaelis, (Lyon: Haeredes I. Iunctae, 1548) ——— in primam Pandectarum partem commentariorum, (Lyon: H. & Haeredes A. de la Porte, 1544) ——— in primam Pandectarum partem commentariorum, (Lyon: Grande Compagnie des Libraires, 1554) Bibliography 351

——— Lectura ingeniosi acutissimi que iure consulti domini Raphaelis Fulgosi Placentini super secunda parte ff veteris, (Brescia: A. Britannico, 1499) ——— & Raimondi, Raffaele, Consilia sive responsa actvissimorvm iuris interpretum Raphaelis Cumani, nempe et Fvlgosii, (Venice: G. Bindonum, 1575) ——— & Castro, Paulus de, Consilia postuma criminalia, feudalia, testamentaria, (Amberg: J. Schönfeld, 1607) ——— & Castro, Paulus de, Opera bvletica sive Controversiarum Forensivm et quaes- tionvm practicarvm diversis factorem et consiliorum speciebus decisarum, (Frankurt a.M.: J. Bringeri, 1613) ——— & Raimondi, Raffaele, Consiliorum excellentissimorum virorum utriusque Rafaelis videlicet Cumani et Fulgosi, (Brescia: I. Dominicus, 1490) ——— In D. Justiniani Codicem commentariorum, (Lyon: H. de la Porte, 1547) Imola, Joannes de, Consilia, (Venice: D. Zenarum, 1581), 89r–91v Repetitiones diverse excellentissi doctorum . . ., (Venice, 1532) Ziletti, Giovanni, Criminalivm Consiliorvm atqve responsorvm . . . volvmen, (Venice: I. Ziletti, 1562), I, 74–77

Other Material

Agazzari, Giovanni and Villa, Antonius Franciscus, ‘Chronica civitatis Placentiae’, in: ed. Bonora, A., Monumenta historica ad provincias parmensem et placentinam pertinentes, (Parma: Petri Fiaccadori, 1862), III, 1–76 Agostinelli, Lavinio, Lettere di Francesco Filelfo, (Tolentino, 1899) Aimerito, Francesco, ‘Cristoforo Castiglione’, in: eds. Maria Luisa Carlino, Giuseppe de Giudici, Ersilia Fabbricatore, Eloisa Mura and Martina Sammarco, Dizionario biografico dei giuristi italiani (XII–XX secolo), (Milan: Il Mulino, 2013), I: 485 Alberigo, Giuseppe, Chiesa conciliare. Identità e significato del conciliarismo, (Brescia: Paideia, 1981) Alpa, Guido, ‘Per un progetto di storia dell’avvocatura’, in: Idem & Remo Danovi, Un progetto di ricerca sulla storia dell’avvocatura, (Bologna: Il Mulino, 2003), 15–40 Andernach, Norbert, Die Regesten der Erzbischöfe von Köln im Mittelalter, (Bonn: Droste, 1992), XI & XII Andreozzi, Daniele, Nascita di un disordine. Una famiglia signorile e una valle piacentina tra XV e XVI secolo, (Milan: Unicopli, 1993) Annali della Fabbrica del Duomo di Milano dall’origine fino al presente, (Milan, 1877– 1883), I Antolín, Guillermo, Catálogo de los códices latinos de la real biblioteca del Escoril, (Madrid: Helénica, 1910) Antonazzi, Giovanni, Lorenzo Valla e la polemica sulla donazione di Costantino, (Rome: Ediz. di storia e letteratura, 1985) 352 Bibliography

Arata, Luigi, ‘Il rettore Antonino Malvicini e la famiglia Malvicini Fontana’, Bollettino storico piacentino, 11 (1916), 228–232 Archiv für die Geschichte und Statistik des Vaterlandes, (Bonn: Typog. Gesellschaft, 1785) Ascheri, Mario, ‘I consilia come acta processuali’ in: ed. Giovanna Nicolaj, La diplomatica dei documenti giudiziari (dai placiti agli acta – secc. XII–XV). Bologna, 12–15 settembre 2001, (Vatican City: Scuola vaticana di paleografia, 2004), 309–328 ——— ‘I «consilia» dei giuristi: una fonte per il tardo Medioevo’, Bollettino dell’Istituto storico italiano, 105 (2003), 305–334 ——— ‘Le fonti e la flessibilità del diritto comune: il paradosso del consilium sapientis’, in: eds. Idem, Julius Kirschner & Ingrid Baumgärtner, Legal Consulting in the Civil Law Tradition, (Berkeley: The Robbins Collection, 1999), 11–55 Bader, Karl, ‘Arbiter arbitrator seu amicabilis compositor. Zur Verbreitung einer kanonistischen Formel in Gebieten nördlich der Alpen’, Zeitschrift der Savigny-Stiftung für Rechtgeschichte. Kanonistische Abteilung, 77 (1960), 239–276 Banfi, Florio, ‘Pier Paolo Vergerio il vecchio in Ungharia’, Archivio di scienze, lettere ed arti della società italo-ungherese, 2 (1940), 1–30 ——— ‘Umbri in Ungheria’, Bollettino della deputazione di storia patria per l’Umbria, 48 (1951), 32–122 Bard, Imre, ‘The Break of 1404 between the Hungarian Church and Rome’, Ungarn- Jahrbuch, 10 (1979), 56–69 Baronius, Caesar, Annales ecclesiastici, (Paris: Barri-Ducis, 1874), XXVII Bartolus de Saxoferrato, Consilia, quaestiones et tractatus, (Turin: Compagnia della stampa, 1589) Baudion, J., Les Fables d’Esope phrigien avec celles de Philelphe, (Paris: Veuve de C. Carteron, 1730) Baudrier, Henri-Louis, Bibliographie lyonnaise: Recherches sur les imprimeurs, libraires, relieurs et fondeurs de lettres de Lyon au XVIe siècle, (Paris: F. de Nobele, 1964), VII Baumgarten, Paul Maria, Von der apostolischen Kanzlei, (Cologne: J. Bachem, 1908) Baumgärtner, Ingrid, ‘Rechtsnorm und Rechtsanwendung in der venezianischer Terraferma des 15. Jahrhunderts: Die Consilia von Bartolomeo Cipolla’, in: ed. Idem, Consilia im spaten Mittelalter. Zum historischen Aussagewert einer Quellengattung, (Sigmaringen: J. Thorbecke, 1995) 79–111 ——— ‘Stadtgeschichte und Consilia im italienischen Spätmittelalter’, Zeitschrift für historische Forschung, 17 (1990), 129–154 Beinhoff, Gisela, Die Italiener am Hof Kaiser Sigismunds (1410–1433), (Frankfurt a.M.: P. Lang, 1995) Bellaguet, Louis, Chronique du Religieux de Saint-Denys, (Paris: Crapelet, 1844), V Bellomo, Manlio, Aspetti dell’insegnamento giuridico nelle Università medievali: 1. Le ‘Quaestiones disputatae’ (Reggio Calabria: Edizione parallelo, 1974) Bibliography 353

——— The Common Legal Past of Europe 1000–1800, trs. Lydia G. Cochrane, (Washington DC: Catholic University of America Press, 1995) ——— ‘Factum proponitur certum, sed dubium est de iure’, in: ed. Idem, Die Kunst der Disputation. Probleme der Rechtsauslegung und Rechtsanwendung im 13. und 14. Jahrhundert, (Munich: Oldenbourg, 1997), 1–28 ——— Quaestiones in iure civili disputate, (Rome, 2008) Belloni, Annalisa, ‘Neue Erkenntnisse über den Rechtsunterricht in Padua im fün- fzehnten Jahrhundert’, Ius Commune, 13, (1985), 1–12 ——— ‘L’insegnamento giuridico nelle università italiane’, in: eds. Luciano Gargan and Oronzo Limone, Luoghi e metodi d’insegnamento nell’Italia medioevale. Atti del convengo internazionale di studi, (Lecce: Congedo, 1986), 141–152 ——— Professori giuristi a Padova nel secolo XV: Profili bio-bibliografici e cattedre, (Frankfurt a.M.: V. Klostermann, 1986) Bellosta, Roberto, ‘Le «squadre» in Consiglio: assemblee cittadine ed élite di governo urbana a Piacenza nella seconda metà del Quattrocento tra divisioni di parte e ingerenze ducali’, Nuova rivista storica, 87 (2003), 1–54 von Below, Georg, Landtagsakten von Jülich-Berg 1400–1610, (Düsseldorf: L. Voss, 1895), I Beni, Paolo, Trattato dell’origine e fatti illustrati della famiglia Trissina, (Padua, 1624) Bernardinello, Silvio, Catalogo dei codici della Biblioteca Capitolare di Padova, (Padua: Ist. per la Storia Eccl. Padovana, 2007) Bertalot, Ludwig, ‘Die älteste Briefsammlung des Gasparino Barzizza’, Beiträge zur Forschung, 2 (1929), 39–84 Bertondelli, Girolamo, Historia della città di Feltre, (Venice: Vitali, 1673) Bess, Bernhard, ‘Die Lehre von Tyrannenmord auf den Konstanzer Konzil’, Zeitschrift für Kirchengeschichte, 36 (1916), 1–61 ——— Zur Geschichte des Konstanzer Konzils: Frankreichs Kirchenpolitik und der Prozess des Jean Petit über die Lehre vom Tyrannenmord, (Marburg: O. Ehrhardt, 1891) Bianchi Riva, Raffaella, L’avvocato non difenda cause ingiuste. Richerche sulla deontolo- gia forense in età medievale e moderna, (Milan: A. Giuffrè, 2012) Billanovich dal Zio, Myriam, ‘Bidelli cartolai e miniatori allo studio di Padova nel secolo XV’, QSUP, 6 (1974), 59–72 Black, Jane, Absolutism in Renaissance Milan, (Oxford: Oxford University Press, 2009) Blason Berton, Mirella, ‘Una famiglia di giuristi padovani: Pietro, Giacomo e Francesco Alvarotti (Speroni) e la loro biblioteca di diritto (1460)’, Bollettino del museo civico di Padova, 53 (1964), 95–150 ——— ‘Una nota sull’insegnamento padovano di Giovanni da Imola (1414)’, Bollettino del Museo Civico di Padova, 54 (1965), 177–184 354 Bibliography

Bliemetzrieder, Franz, Das Generalkonzil im Grossen abendländischen Schisma, (Paderborn: F. Schöningh, 1904) ——— Literarische Polemik zu Beginn des grossen abendländischen Schismas, (Vienna/ Leipzig: Österreichisches Historisches Institut, 1910) Bliznyuk, Svetlana, Die Genuesen auf Zypern: Ende 14. und im 15. Jahrhundert, (Frankfurt a.M.: P. Lang, 2005) Bollea, Luigi, Documenti degli archivi di Pavia relativi alla storia di Voghera, (Pavia: C. Rossetti, 1909) Bortolan, Domenico, Podestà e giudici in Vicenza dal 1311 al 1404, (Vicenza: Tip. S. Giuseppe, 1887) Bressan, B., Serie dei podestà e vicari della città e territorio di Vicenza durante la signoria veneziana, (Vicenza: Tipografia Staider, 1877) Bosbach, Franz, ‘Dietrich von Moers’, in: ed. Erwin Gatz, Die Bischöfe des Heiligen Römischen Reiches 1198 bis 1448, (Berlin: Duncker & Humblot, 2001), II: 480–485 Bosco, Bartholomeus de, Consilia, (Lodi, 1620) Bottaro, F., Studium Paduanum e ducale dominium nel lungo Quattrocento [Doctoral thesis], (University of Padua, 2010) Bracciolini, Poggio, Facezie, (Rome: A. Sommaruga, 1885) Brandmüller, Walter, ‘Zur Frage nach der Gültigkeit der Wahl Urbans VI.’, AHC, 6 (1974), 78–120 ——— Das Konzil von Konstanz, (Paderborn: F. Schöningh, 1997) ——— Papst und Konzil im Großen Schisma (1378–1431), (Paderborn: F. Schöningh, 1990) ——— ‘Simon de Lellis de Teramo. Ein Konsistorialadvokat auf den Konzilien von Konstanz und Basel’, AHC, 12 (1980), 229–268 Brundage, James A., ‘The Medieval Advocate’s Profession’, Law and History Review, 6 (1988), 439–464 ——— ‘ “My learned friend”: Professional Etiquette in Medieval Courtrooms’, in: eds. Martin Brett and Kathleen G. Cushing, Readers, Texts and Compilers in the Earlier Middle Ages, (Bodmin: Ashgate, 2009), 183–196 Brugi, Biagio, Gli scolari dello studio di Padova nel Cinquecento, (Padova: Drucker, 1905) Buchner, Max, ‘Die Entstehung und Ausbildung der Kurfürtstenfabel’, Historisches Jahrbuch der Görres-Gesellschaft, 33 (1912), 54–100, 255–322 Buck, Thomas Martin & Kraume, Herbert, eds., Das Konstanzer Konzil (1414–1418): Kirchenpolitik-Weltgeschehen–Alltagsleben, (Ostfildern: Thorbeke, 2013) ——— ‘Text, Bild Geschichte. Papst Johannes XXIII wird auf dem Arlberg umgeworfen’, AHC, 30 (1998), 37–110 Bukowska Gorgoni, Krystyna, ‘Raffaele Fulgosio’, DBI, (Rome, 1998), l: 699–702 ——— ‘Eine Studie zur Arbeitsmethode der italienischen Juristen des XV. Jahrhunderts. Die Traktate von Martinus Laudensis De Dignitate und Bartholomaeus Caepolla De imperatore militum deligendo’, Ius Commune, 7 (1978), 50–80 Bibliography 355

Butrio, Antonious de, Consilia sev responsa, (Venice: B. Iuntum, 1582) Cable, Martin John, ‘Cuius Regio, eius . . . Papa? The decree on ‘real obedience’ at the Council of Constance (1414–18): Konrad von Soest and the contest for a parish church in the diocese of Regensburg brought before the rota auditor Gimignano Inghirami’, Zeitschrift der Savigny-Stiftung für Rechtgeschichte. Kanonistische Abteilung, 94 (2008), 66–102 ——— ‘Haec Sancta and the continuity of judicial process at the Council of Constance: A comparison of the Jean Petit tyrannicide case and the dispute for the master- generalship of the Crociferi at Bologna’, AHC, 40 (2008), 431–470 ——— Real and Personal Obedience. Pluralism, Sovereignty and ‘communis error’ in the Great Western Schism, (Morrisville, 2006) ——— ‘Resolving benefice disputes after the Great Schism: The survival of the Council of Constance’s 4 July 1415 decrees ‘Omnia et singula’ and ‘Pro majori pace’ in two disputes from Auch and Rieti brought before the rota auditor Gimignano Inghirami at the time of the council of Basle’, AHC, 38 (2006), 311–414 Cagnoni, Giovanni et al., Palazzo Zabarella, (Padua: Esedra, 1996) Calasso, Francesco, Medio evo del diritto: I. Le fonti, (Milan: A. Giuffrè, 1954) Campi, Pietro, Dell’Historia ecclesiastica di Piacenza, (Piacenza: G. Bazachi, 1662) Camporeale, Salvatore I., ‘Lorenzo Valla and the de falso credita donatione: Rhetoric, Freedom and Ecclesiology in the Fifteenth century’, in: eds. Patrick Baker and Christopher S. Celenza, Christianity, Latinity, and Culture: Two Studies on Lorenzo Valla, (Leiden: Brill, 2014), 17–144 Canale, M., Commentari storici della Crimea del suo commercio e dei suoi dominatori, (Genoa, 1855) Canis, Johannes, De modo in iure studendi libellus, (Padua: Mag. Mattheus, 1485) Canning, Joseph, The Political Thought of Baldus de Ubaldis, (Cambridge: Cambridge University Press, 1987) Caro, Joseph, ‘Aus der Kanzlei Kaiser Sigismunds’, Archiv für österreichische Geschichte, 59 (1880), 1–177 Carolus Cartharius, Advocatorvm sacri consistorii syllabvm, (Rome: Z. Masottus, 1656) Castiglioni, Cristoforo, Consilia, (Venice, 1560) Castignoli, Pietro, Liber daciorum et officiorum communis Placentie (Anno MCCCLXXX). L’appalto delle gabelle e degli uffici in un comune cittadino del dominio visconteo, (Rome: Il centro di ricerca, 1975) ——— Storia di Piacenza: Dalla signoria viscontea al principato farnesiano (1313–1545), (Piacenza: Tip. Le. Co., 1997) Cavina, Marco, Imperator romanorum triplici corona coronatur. Studi sull’incoronzaione imperiale nella scienza giuridica italiana fra tre e quattrocento, (Milan: Giuffrè, 1991) Cengarle, Federica, Immagine di potere e prassi di governo. La politica feudale di Filippo Maria Visconti, (Rome: Viella, 2006) 356 Bibliography

Cerri, Leopoldo, ‘I Leccacorvi marchesi di Seminò’, Bollettino storico piacentino, 11 (1916), 95–100 Cenci, Cesare, Manoscritti francescani della biblioteca nazionale di Napoli, (Florence, 1971) Cerioli, Alessandro, Pietra de’Giorgi nell’Oltrepò pavese e dintorni, (Milan: Scuola Tipo- litografica figli provvidenza, 1906) Cessi, Roberto, ‘Il Soggiorno di Lorenzo e Leon Battista Alberti a Padova’, ASI, 40 (1907) & 43 (1909), 233–284, 351–359 Chastenet, Bourgeois du, Nouvelle Histoire du concile de Constance, (Paris, 1718) Chittolini, Giorgio, ‘La “signoria” degli Anguissola su Riva, Grazzano e Montesanto fra Tre e Quattrocento’, Nuova rivista storica, 58 (1974), 269–317 Chroust, Anton-Hermann and Corbett, James, ‘The Fifteenth Century review of politics of Laurentius of Arezzo’, Mediaeval Studies, 11 (1949), 62–76 Ciampi, Sebastiano, Notizie del canonico Sozomeno, (Pisa: R. Prosperi, 1810) Codex diplomaticus Ord. E.S. Augustini Papiae, (Pavia, 1906) Cogo, G., ‘Brunoro dalla Scala e l’invasione degli Ungari del 1411’, Nuovo archivio veneto, 5 (1893), 295–332 Colli, Vicenzo, ‘Consilia dei giuristi medievali e produzione libraria’ in: eds. Mario Ascheri et al., Legal Consulting in the Civil Law Tradition, 173–225 Colombo, Cesare, ‘Gasparino Barzizza a Padova. Nuovi ragguagli da lettere inedite’, QSUP 2 (1969), 1–27 Colorni, Vittore, ‘Ebrei in Ferrara nei secoli XIII e XIV’, in: eds. Menachim Emanuele Artom, L. Caro and Sergio Sierra, Miscellanea di studi in memoria di Dario Disegni, (Turin, 1969), 69–106 Combi, Carlo, ed., Epistole di Pietro Paolo Vergerio, (Venice: Dep. veneta. St. Pat., 1887) Condorelli, Orazio, ‘Note su formazione e diffusione delle raccolte di “quaestiones disputatae” in diritto canonico (secoli XII–XIV)’, in: ed. Vincenzo Colli, Juristische Buchproduktion im Mittelalter, (Frankfurt a.M.: Vittorio Klostermann, 2002), 395–430 Corna, Andrea, Castelli e rocche del piacentino, (Piacenza: Unione Tip, 1931) Corradi, Alfonso, Memorie e documenti per la storia dell’Università di Pavia, (Pavia: Succ. Bizoni, 1877) Cortese, Ennio, Il diritto nella storia medievale, (Milan/Rome: Il cigno Galileo Galilei, 1995–1999) ——— and Pennington, Kenneth, ‘Pietro Ancharano’, in: eds. Maria Luisa Carlino, Giuseppe de Giudici, Ersilia Fabbricatore, Eloisa Mura and Martina Sammarco, Dizionario biografico dei giuristi italiani (XII–XX secolo), (Milan: Il Mulino, 2013), II: 1578–1580 Coville, Alfred, Jean Petit: La question du tyrannicide au commencement du XVe siècle, (Geneva: Slatkine, 1974) Criniti, Nicola, ‘Castellino Beccaria di Robecco’, DBI, 7 (1970), 454–458 Bibliography 357

Crowder, C.M.D., ‘Four English cases determined in the Roman curia during the Council of Constance’, AHC, 12 (1980), 315–411 ——— Unity, Heresy and Reform 1378–1460. The Conciliar Response to the Great Schism, (London: E. Arnold, 1977) Dale, Sharon, ‘Contra damnationis filios: the Visconti in fourteenth-century papal diplomacy’, Journal of Medieval History, 33 (2007), 1–32 Dalham, Florianus, Concilia Salisburgensia provincialia et diocesana, (Augsburg: M Rieger, 1788) Dallari, Umberto, I rotuli dei lettori legisti e artisti dello Studio bolognese dal 1384 al 1799, (Bologna: Università di Bologna, 1924) Dean, Trevor, Crime and Justice in Late Medieval Italy, (Cambridge: CUP, 2007) ——— Land and Power in Late Medieval Ferrara: The Rule of the Este, 1350–1450, (Cambridge: CUP, 2002) Decaluwé, Michiel, ‘A new and disputable text-edition of the decree Haec sancta of the council of Constance (1415)’, Cristianesimo nella storia, 27 (2006), 417–445 ——— ‘Three Ways to Read the Decree Haec sancta (1415). The Conciliar Theories of Franciscus Zabarella and of Jean Gerson and the Traditional Papal View on General Councils’, in: Gerald Christianson, Thomas M. Izbicki and Christopher M. Bellitto, eds., The Church, the Councils and Reform: The Legacy of the Fifteenth Century, (Washington: Catholic University of America Press, 2008), 122–139 Degani, Ernesto, Il codice diplomatico di Antonio Panciera da Portogruaro, patriarca d’Aquileia e cardinale di S. Chiesa 1406–1411, (Venice, 1898) Denifle, Heinrich, ‘Les Délégués des univerités françaises au concile de Constance’, Revue des Bibliothèques, 2 (1892), 341–348 ——— ‘Die Statuten der Juristen-Universität Padua vom Jahre 1331’, Archiv für Literatur- und Kirchengeschichte des Mittelalters, 6 (1892), 309–562 Denley, Peter, ‘Academic rivalry and Interchange: the Universities of Florence and Siena’, in: eds. Idem and Caroline Elam, Florence and Italy. Renaissance Studies in Honour of Nicolai Rubinstein, (London: Committee for Medieval Studies: Westfield College, 1988), 193–208 Dieterle, Karl, ‘Die Stellung Neapels und der grossen italienischen Kommunen zum Konstanzer Konzil’, RQ, 29 (1915), 3–21; 45–72 Dillon Bussi, Angela, ‘Filippo Cassoli’, DBI, (Rome, 1978), xxi: 520–523 Dircks, W.H., ed., The Humour of Italy, (London: Walter Scott Ltd., 1892) Dolliner, Th., ‘Einige Nachrichten über den Rechtsgelehrten Ubertus von Lampugnano’, Zeitschrift für geschichtliche Rechtswissenschaft, 2 (1816), 238–256 Doüet d’Arcq, Louis, ‘Prisée de la bibliothèque du Président Lizet en 1554’, Bibliothèques de l’École des Chartes, 37 (1876), 358–380 Droege, Georg, Verfassung und Wirtschaft in Kurköln unter Dietrich von Moers (1414– 1463), (Bonn: Ludwig Röhrscheid, 1957) Durand, Ursinus and Martène, Edmund, Thesaurus novus anecdoctorum, (Paris, 1717), II 358 Bibliography

——— Veterum scriptorum et monumentorum . . . amplissima collectio, (Paris, 1733), VII Dureau-Lapeyssonnie, Jeanne-Marie, ‘Recherches sur les grandes compagnies de libraires lyonnais au XVIe siècle’, in ed. Roger Chartier et al., Nouvelles études lyonnaises, (Geneva: Droz, 1969), 5–63 Dykmans, Marc, ‘La Troisième élection du pape Urbain VI’, Archivum Historiae Pontificae, 15 (1977), 217–264 Eckertz, Gottfried, Fontes adhuc inediti rerum Rhenanarum, (Cologne: J. Heberle, 1864) Ehlers, Joachim, ‘Ludwig von Orleans und Johann von Burgund (1407/1419)’, in: ed. Alexander Demandt, Das Attentat in der Geschichte, (Cologne: Böhlau, 1996), 107–121 Engel, Frank, ‘Die Kölner Kirche und das Konzil von Pisa (1409)’, in: eds. Andreas Rutz and Tobias Wulf, O felix Agrippina nobilis Romanorum Colonia, (Cologne: SH, 2009), 33–55 Engelmann, Woldemar, Die Wiedergeburt der Rechtskultur in Italien durch die wissen- schaftliche Lehre, (Leipzig: K.F. Koehlers Antiquarium, 1938) Engels, Odilo, ‘Der Reichsgedanke auf dem Konstanzer Konzil’, in: ed. Remigius Bäumer, Das Konstanzer Konzil, (Darmstadt, 1977), 369–403 Epistolae illustrium virorum post obitum Francisci Zabarellae Cardinalis Constantia Patavinum missae, (Padua: P. Frambotti, 1655) Eubel, Konrad, ‘Das Itinerar der Päpste zur Zeit des großen Schismas’, Historisches Jahrbuch, 16 (1895), 545–564 ——— Hierarchia catholica medii aevi, (Münster: Libraria Regensbergiana, 1913), I Ero, Luigi-Ignazio dell’, Cenni ed iscrizioni della università di Padova, (Padua: Crescini, 1841) Esch, Arnold, Bonifaz IX. und der Kirchenstaat, (Tübingen: M. Niemeyer, 1969) Fabri, Bruno, Fiorini, Andrea and Gualtieri, Sabrina, ‘Il castello di Zena (PC): storia, archeologia e archeometria’, in: Archeologia dell’architettura, XIV (Florence: All’Insegna del Giglio, 2011), 45–62 Facciolati, Jacopo, Fasti gymnasii Patavini, (Padua, 1757) Fagnani, Flavio, ‘Origine e sviluppi della signoria dei Beccaria su Arena Po’, Bollettino della Società pavese di storia patria, 42 (1990), 55–119 Fahne, A., Urkundenbuch der freien Reichstadt Dortmund, (Cologne/Bonn: J. Heberle, 1855) Falconi, Ettore and Peveri, Roberta, eds., Il “Registrum Magnum” del comune di Piacenza, (Milan: Giuffrè, 1984–1988) Fantuzzi, Marco, Monumenti Ravennati de’secoli di mezzo per la maggior parte inediti, (Venice, 1801–1804), I–VI Favaro, Antonio, ‘Indice dei rotuli dello studio di Padova’, in: Idem et al., Monografie storiche sullo studio di Padova, (Venice, 1922), 1–27 Bibliography 359

Ferrari, Giannino, ‘L’ordinamento giudiziario a Padova negli ultimi secoli della Repubblica veneta’, in: Miscellanea di storia veneta, 3 (1913), 1–206 Ferretto, Arturo, ‘Lo scisma in Genova negli anni 1400–1409’, Giornale liguistico di archeologia, storia e letteratura, 21 (1896), 111–142 Figueira, Robert C., ‘Subdelegation by Papal Legates in Thirteenth-Century Canon Law: Powers and Limitations’, in: eds. Steven Bowman and Blanche Cody, In Iure Veritas: Studies in Canon Law in Memory of Schafer Williams, (Cincinnati: Cincinnati University Press, 1991), 56–79 Filelfo, Francesco, Epistolarum familiarum libri XXXVII, (Venice, 1502) Fink, Karl, ‘ “Sic in sua obedientia nuncupatus” ’, QFIAB, 60 (1980), 189–199 Finke, Heinrich, Acta Concilii Constantiensis, (Münster: Regensberg Buchhandlung, 1896–1928), I–IV ——— Bilder vom Konstanzer Konzil, (Heidelberg, 1903) ——— ‘Die Nation in den spätmittelalterlichen allgemeinen Konzilien’, Historiches Jahrbuch, 57 (1937), 323–338 ——— Forschungen und Quellen zur Geschichte des Konstanzer Konzils, (Paderborn: F. Schöningh, 1889) ——— ‘Der Strassburger Elektenprocess vor dem Konstanzer Konzil’, Strassburger Studien, 2 (1884), 101–112; 285–304; 403–430 Firnhaber, Friedrich, ‘Petrus de Pulka, Abgesandter der Weiner Universität am Concilium zu Constanz’, Archiv für österreichische Geschichte, 15 (1856), 1–70 Fischer, Friedrich, Geschichte der Straubingischen Erbfolge, (Munich: Flesichmann, 1779) Fodale, Salvatore, ‘Peretto de Andreis’, DBI, 33 (1987), 253–255 Foffano, Tino, ‘Breve nota sull’epistolario del Card. Branda Castiglioni’, Aevum, 72 (1988), 302–309 ——— ‘Un carteggio del Cardinale Branda Castiglioni con Cosimo de’Medici’, in Rino Avesani et al., Vestigia. Studi in onore di Giuseppe Billanovich, (Rome: Ediz. Storia e Letteratura, 1984), I: 297–314 ——— ‘Musica e grammatica a Castiglione Olona nel primo quattrocento alla corte del Cardinale Branda Castiglioni’, in: ed. Luisa Tarugi, Lettere e arti nel rinascimento, (Florence: Franco Cesati, 1998), 563–577 Forster, Wolfgang, ‘Vom Schandstein zum Konkursverfahren. Rechtdogmatische Beobachtungen zur Geschichte des Insolvenzrechts’, in: eds. Stefan Smid, Mark Zeuner and Michael Schmidt, Aktuelle Probleme des geltenden deutschen Insolvenzrechts, (Göttingen: Walter de Gruyter, 2009), 5–18 Fowler, Linda, ‘Forms of Arbitration’, in: Proceedings of the Fourth International Congress of Medieval Canon Law, (Vatican City: Biblioteca apostolica Vaticana, 1976), 133–161 360 Bibliography

Franceschini, Adriano, Presenza ebraica a Ferrara, (Ferrara: Leo S. Olschki, 2007) Frati, Lodovico, Epistolario di Pellegrino Zambeccari, (Rome, 1929) Franzen, August and Müller, Wolfgang, eds., Das Konzil von Konstanz: Beiträge zu seiner Geschichte und Theologie, (Freiburg i.Br., 1964) Frenken, Ansgar, ‘Darstellende Quellen zum Konstanzer Konzil: kritische Anmerkungen zum Genus der ‘Tagebücher Fillastres, Cerretanis und Turres’ und ihres spezifischen Quellenwert’, AHC, 42 (2010), 379–402 ——— ‘Die Erforschung des Konstanzer Konzils (1414–1418) in den letzten 100 Jahren’, AHC, 25 (1993), 1–512 ——— ‘Kastilien und das Konstanzer Konzil’, in: eds. Gabriela Signori and Birgit Studt, Das Konstanzer Konzil als europäisches Ereignis: Begegnungen, Medien, Rituale, (Ostfildern: Thorbecke, 2014), 143–172 ——— ‘Der König und sein Konzil – Sigmund auf der Konstanzer Kirchenversamm- lung. Macht und Einfluss des römischen Königs im Spiegel institutioneller Rahmen- bedingungen und personeller Konstellationen’, AHC, 36 (2004), 177–242 Fubini, Riccardo, ‘Conciliarismo, regalismo, Impero nelle discussioni tre- e quattrocentesche sulla Donazione di Costantino’, in: eds. Giorgio Bonamente, Giorgio Cracco and Klaus Rosen, Costantino il Grande tra medioevo ed età moderna, (Bologna: Il Mulino, 2008), 133–158 ——— ‘La donazione di Costantino nel dibattito politico ed ecclesiastico (secoli XIII– XVII)’, in: Alberto Melloni, ed., Costantino I. Enciclopedia Costantiniana sulla figura e l’immagine dell’imperatore del cosiddetto Editto di Milano, 313–2013, (Rome: Istituto dell’Enciclopedia Italiana, 2013) ——— ‘Humanism and Truth: Valla writes against the Donation of Constantine’, Journal of the History of Ideas, 57 (1996), 79–86 Fumi, Luigi and Lazzareschi, Eugenio, Carteggio di Paolo Guinigi, (Lucca: Archivio di Stato, 1925) Funder, Achim, Reichsidee und Kirchenrecht, (Freiburg i.Br.: Herder, 1993) Gallo, Donato, ‘Lauree inedite in diritto civile e canonico presso lo studio di Padova (1419–1422, 1423, 1424, 1428)’, QSUP, 20 (1987), 1–50 ——— Università e signoria a Padova: Dal XIV al XV secolo, (Trieste: LINT, 1998) García y García, Antonio, et al., Catálogo de los manuscritos jurídicos de la Biblioteca Capitular de la Seu d’Urgell, (Seu d’Urgell: Bisbat d’Urgell, 2009) Gargan, Luciano, ‘ “Dum eram studens Padue”. Studenti-copisti a Padova nel Tre e Quattrocento’, in: eds. Francesco Piovan and Luciana Sitran Rea, Studenti, univer- sità, città nella storia padovana. Atti del convegno padova 6–8 febbraio 1998, (Trieste, 2001), 29–46 ——— ‘L’enigmatico “conduxit”. Libri e dogana a Padova fra Tre e Quattrocento’, QSUP, 16 (1983), 1–41 Garone, Giuseppe, I reggitori di Novara, (Novara: F. Merati, 1865) Bibliography 361

Gasparolo, Francesco, L’Abadia di Santa Giustina. Il monastero di Santo Stefano o Santa Maria di Banno, (Alessandria: Succ. Gazzotti, 1912) Gavinelli, Simona, ‘Manoscritti a Pavia tra Studium e biblioteca del castello’, in. ed. Dario Mantovani, Almum Studium Papiense. L’Università di Pavia dal Medioevo al XXI secolo, (Milan: Cisalpino, 2012), I: 713–730 Gaztambide, José Goñi, ‘Los Españoles en el concilio de Constanza. Notas Biográficas’, Hispania sacra, 30 (1962), 253–386 Genet, Jean-Philippe, ‘English nationalism: Thomas Polton at the Council of Constance’, Nottingham Medieval Studies, 28 (1984), 60–78 Genest, Jean-Francois, ‘Le fonds juridique d’un stationnaire italien à la fin du XIIIe siècle: matériaux nouveaux pour servir à l’histoire de la pecia’, in: eds. Louis-Jacques Bataillon, Bertrand Georges Guyot and Richard H. Rouse, La production du livre universitaire au Moyen Age. Exemplar et pecia. Actes du symposium tenu au Collegio San Bonaventura de Grottaferrata, mai 1983, (Paris: Éditions du CNRS, 1988), 133–154 Gentili, Alberico, Lodi delle accademie di Perugia e di Oxford, (Perugia: Lib. Universitaria, 1968) Gerlich, Alois, ‘Territorium, Bistumsorganisation und Obödienz: Die Mainzer Kirchen politik in der Zeit des Konzils von Pisa’, Zeitschrift für Kirchengeschichte, 72 (1961), 46–86 Gill, Joseph, ‘The Representation of the Universitas Fidelium in the Councils of the Conciliar Period’, Studies in Church History, 7 (1971), 177–195 Giomo, Giuseppe, ‘L’archivio antico della Università di Padova’, Nuovo archivio veneto, 6 (1893), 377–460 Girgensohn, Dieter, ‘Francesco Zabarella aus Padua. Gelehrsamkeit und politisches Wirken eines Rechtsprofessors während des großen abendländischen Schismas’, Zeitschrift für Rechtsgeschichte. Kanonistische Abteilung, 79 (1993), 232–277 ——— Kirche, Politik und adelige Regierung in der Republik Venedig zu Beginn des 15. Jahrhunderts, (Göttingen: Vandenhoeck & Ruprecht, 1996) ——— ‘Per la storia dell’insegnamento giuridico nel Quattrocento: risultati raggiunti e ricerche auspicabili’, QSUP, 22/23 (1989/90), 311–319 ——— ‘Reste von Rubrizellen aus einem verlorenen Register Papst Gregors XII. Ein Beitrag zur Kenntnis der römischen Obödienz im Jahre 1412’, in: Karl Borchardt and Enno Bünz, eds., Forschungen zur Reichs-, Papst- und Landesgeschichte. Peter Herde zum 65. Geburtstag, (Stuttgart: Anton Hiersemann, 1998), II: 723–743 ——— ‘Studenti e tradizione delle opere di Francesco Zabarella nell’Europa centrale’, in: eds. Francesco Piovan and Luciana Sitran Rea, Studenti, Università, Città nella storia padovana. Atti del convegno, Padova 6–8 febbraio 1998, (Trieste, 2001), 127–176 ——— Venezia e il primo veneziano sulla cattedra di S. Pietro: Gregorio XII (Angelo Correr) 1406–1415, (Venice: Centro tedesco di studi veneziani, 1985) 362 Bibliography

Gius, Bernardo, ‘Sulla tradizione che Paolo da Castro e Giovanni da Imola avessero parte nella compilazione degli statuti lucchesi’, Atti della Regia Academia Lucchese di Scienze, Lettere ed Arti, 10 (1840), 19–53 Glasauer, Bernhard, Herzog Heinrich XVI. (1393–1450) der Reiche von Bayern-Landshut. Territorialpolitik zwischen Dynastie und Reich, (Munich: Herbert Utz, 2009) Gloria, Andrea, Monumenti della Università di Padova 1318–1405, (Padua, 1888) Gordon, Phyllis, Two Renaissance Book Hunters: The Letters of Poggius Bracciolini to Nicolaus de Niccolis, (New York: Columbia University Press, 1991) ed. Griggio, Claudio, Francesco Barbaro. Epistolario, (Florence, 1991) Grohe, Johannes, ‘Spanien und die großen Konzilien von Konstanz und Basel’, in: eds. Herbers, Klaus and Jaspert, Nikolas, “Das kommt mir spanisch vor”: Eigenes und Fremdes in den deutsch-spanischen Beziehungen des späten Mittelalters, (Münster: LIT, 2004), 493–509 Grossi, Paolo, L’ordine giuridico medievale, (Bari: Laterza, 2012) ——— ‘Il sistema giuridico medievale e la civiltà comunale’, in: ed. Andrea Zorzi, La civiltà comunale italiana nella storiografia internazionale, (Florence: Firenze University Press, 2008), 1–18 ed. Guasti, Cesare, Commissioni di Rinaldo degli Albizzi per il comune di Firenze dal 1399 al 1433, (Florence: M. Cellini, 1869) ——— ‘Gli avanzi dell’archivio di un pratese vescovo di Volterra che fu al concilio di Costanza’, ASI, 13 (1884), 20–41, 171–209, 313–372 Guenée, Bernard, Between Church and State. The Lives of Four French Prelates in the Late Middle Ages, (Chicago: University of Chicago Press, 1991) ——— Un meurtre, une société. L’Assassinat du duc d’Orléans 23 novembre 1407, (Paris: Gallimard, 1992) Gwynn, Aubrey, ‘Ireland and the English Nation at the Council of Constance’, Proceedings of the R. Irish Academy, 45 (1939/40), 183–223 Hack, Achim, Das Empfangszeremoniell bei mittelalterichen Papst-Kaiser-Treffen, (Cologne/Weimar/Vienna: Böhlau, 1999) Hallmark, Anne, ‘Protector, imo verus pater: Francesco Zabarella’s Patronage of Johannes Ciconia’, in: eds. Jessie Owens and Anthony Cummings, Music in Renaissance Cities and Courts. Studies in honour of Lewis Lockwood, (Michigan: Harmonie Park, 1997), 153–168 Hardt, Hermann van der, Magnum oecumenicum constantiense concilium de universali ecclesiae, (Frankfurt a.M. & Leipzig, 1697–1700) Hayez, Michel, ed., Genèse et débuts du Grand Schisme d’Occident. Colloques Internationaux du Centre National de la Recherche Scientifique, no. 586, (Paris: CNRS, 1980) Heimpel, Hermann, Dietrich von Niem, Dialog über Union und Reform der Kirche 1410 (de modis uniendi et reformandi ecclesiam in concilio universali), (Leipzig, 1933) Bibliography 363

——— ‘Königlicher Weihnachtsdienst auf den Konzilien von Konstanz und Basel’, in: eds. Joachim Wollasch and Norbert Kamp, Tradition als historische Kraft. FS Karl Hauck, (Berlin, 1982), 388–411 ——— ‘Königlicher Weihnachtsdienst im späten Mittelalter’, Deutsches Archiv für Erforschung des Mittelalters, 39 (1983), 131–206 ——— ‘Konrad von Soest und Job Vener. Verfasser und Bearbeiter der Heidelberger Postillen (Glossen), zu der Berufung des Konzils von Pisa’, Westfalen, 51 (1973), 115–124 ——— ‘Eine unbekannte Schrift Dietrichs von Niem über die Berufung der Generalkonzilien (1413/1414)’, in: ed. Idem, Studien zur Kirchen- und Reichsreform des 15. Jahrhunderts, (Heidelberg, 1929) ——— Die Vener von Gmünd und Straßburg 1162–1447, (Göttingen: Vandenhoeck & Ruprecht, 1982) Helmrath, Johannes and Müller, Heribert, eds., Die Konzilien von Pisa (1409), Konstanz (1414–1418) und Basel (1431–1449), Institution und Personen, (Ostfildern: Jan Thorbecke, 2007) ——— ‘Rangstreite auf Generalkonzilien des 15. Jahrhunderts als Verfahren’, in: ed. Barbara Stollberg-Rilinger, Vormoderne politische Verfahren, (Berlin: Duncker & Humblot, 2001), 139–173 Helmholz, R.H., ‘The Education of English Proctors’, in: eds. Jonathan A. Bush and Alain Wijffels, Learning the Law. Teaching and Transmision of English Law, 1150–1900, (London: Hambeldon Press, 1999), 191–210 Herre, Hermann, ‘Die Beziehungen König Sigmunds zu Italien vom Herbst 1412 bis zum Herbst 1414’, QFIAB, 4 (1902), 1–62 Hiatt, Alfred, The Making of Medieval Forgeries: False Documents in Fifteenth-Century England, (London: British Library, 2007) Hilg, Hardo, Die mittelalterlichen Handschriften der Universitätsbibliothek Eichstätt, (Wiesbaden: Harrassowitz, 1994) Höfler, Constantin, Concilia Pragensia 1353–1413, (Prague: Friedrich Tempsky, 1862) Holmes, George, ‘How the Medici became the Pope’s bankers’, in: ed. Nicolai Rubinstein, Florentine Studies. Politics and Society in Renaissance Florence, (London, 1968), 357–380 Hollerbach, Julius, ‘Die gregorianische Partei, Sigismund und das Konstanzer Konzil’, RQ, 23 (1909) & 24 (1910), 129–164, 120–140 Hours, Henri, Fasti Ecclesiae Gallicanae: Le Diocèse de Besançon, (Turnhout: Brepols, 1999), IV Huckert, Egon, Die Politik der Stadt Mainz während der Regierungszeit des Erzbischofs Johann II. (1397–1419), (Mainz, 1878) Hugo, H., ‘D. Ubertus aus Lampamiano und D. Peter mit dem Beynahmen von der Stadt Andlau im Elsaß’, Zeitschrift für geschichtliche Rechtswissenschaft, 1 (1815), 338–349 364 Bibliography

Huysken, Albert, ‘Die Aachener Krone der Goldenen Bulle’, in: DA, 2 (1938), 401–497 Immhof, Jacopo, Genealogiæ viginti illustrium in Italia familiarum in tres classes secundum . . ., (Amsterdam, 1710) Imola, Joannes de, Consilia, (Venice: D. Zenarum, 1581) Innocenti, Marco, ‘„Ze Costnitz was der küng“: Sigismund von Luxemburg in Konstanz 1414–1418. Historische Reise durch die Gedächtnisstätten des Konzils’, Hémecht Zeitschrift für Luxemburger Geschichte, 59 (2007), 83–139 Ius mvnicipale vincentinvm, (Venice: Contrini, 1567) Jacob, E.F., Essays in the Conciliar Epoch, (Manchester: Manchester University Press), 1943) Jacquert, Danielle, ‘Médecine et alchimie chez Michel Savonarole (1385–1466)’, in: eds. Jean-Claude Margolin and Sylvain Matton, Alchimie et Philosophie à la Renaissance, (Paris: Vrin, 1993), 109–122 Jansen, Max, Die Herzogsgewalt der Erzbischöfe von Köln in Westfalen, (Munich: H. Lüneburg, 1895) Janssen, Wilhelm, ‘Beobachtungen zur Struktur und Finanzierung des kurkölnischen Hofes im späten 14. und frühen 15. Jahrhundert’, Rheinische Vierteljahrsblätter, 69 (2005), 104–132 ——— ‘Friedrich von Saarwerden’, in: Erwin Gatz, Die Bischöfe des Heiligen Römischen Reiches 1198 bis 1448, (Berlin: Duncker & Humbolt, 2001), I: 283–285 Jarman, O.H., ‘Wales and the Council of Constance’, Bulletin of the Board of Celtic Studies, 14 (1950–52), 220–222 Jarry, Eugène, Les Origines de la Domination Française a Gênes (1395–1402), (Paris: Picard et Fils, 1896) Jaspert, Nikolas, ‘Das aragonesische Dilemma. Die Heimat Benedikts XIII. zwischen Obödienzstreit, herrschaftlichem Umbruch und internationaler Verflechtung’, in: eds. Gabriela Signori and Birgit Studt, Das Konstanzer Konzil als europäisches Ereignis: Begegnungen, Medien, Rituale, (Ostfildern: Thorbecke, 2014), 107–141 Joannis Hus et Hieronymi Pragensis confessorum Christi historia et monumenta, (Nuremberg: J. vom Berg & U. Neuber, 1558) Jones, P.J., The Malatesta of Rimini and the Papal State, (Cambridge: Cambridge University Press, 2005) Kaminsky, Howard, A History of the Hussite Revolution, (London: Cambridge University Press, 1967) ——— Simon de Cramaud and the Great Schism, (New Brunswick: Rutgers University Press, 1983) ——— Simon de Cramaud: de subtraccione obediencie, (Cambridge (MA): The Medieval Academy of America, 1984) Kandler, Pietro, Codice diplomatico istriano, (Trieste: Coen, 1850) Bibliography 365

Kantorowicz, Hermann, Rabotti, Giuseppe and Schulz, Fritz, eds., Thomae Diplovatatii Liber de claris iuris consultis: pars posterior, (Bologna: Institutum Gratianum, 1968) Katterback, Julius, Der Zweite literarische Kampf auf dem Konstanzer Konzil, (Freiburg i.Br., 1919) Kees, Thomas et al., Itinerar König und Kaiser Sigismunds von Luxemburg 1368–1437, (Warendorf: Fahlbusch, 1995) Kehrmann, Karl, Die “Capita agendorum”. Kritischer Beitrag zur Geschichte der Reformverhandlungen in Konstanz, (Munich/Berlin: R. Oldenbourg, 1903) Kejř, Jiří, Die Causa Johannes Hus und das Prozessrecht der Kirche, (Regensburg: Pustet, 2005) ——— ‘Die Prager Vorträge von Uberto de Lampugnano’, Studia Gratiana, 27 (1996), 248–269 Kerler, Dietrich, ed., Deutsche Reichstagsakten, (Munich: Oldenbourg, 1878), VII Kibre, Pearl, Studies in Medieval Science, (London: Hambledon Press, 1984) King, Catherine, Renaissance Women Patrons, (Manchester: Manchester University Press, 1998) Kirn, Paul, ‘Mit welcher Krone wurde König Sigmund in Aachen gekrönt?’, Annalen des Historischen Vereins für den Niederrhein, 118 (1931), 132–135 Kirschner, Julius, ‘Consilia as Authority in late medieval Italy: The Case of Florence’ in: eds. Idem, Mario Ascheri and Ingrid Baumgärtner, Legal Consulting in the Civil Law Tradition, (Berkeley, 1999), 107–140 Kochendörffer, H., ‘Päpstliche Kurialen während des grossen Schismas’, Neues Archiv der Gesellschaft für ältere deutsche Geschichtskunde, 30 (1905), 549–601 Kohl, Benjamin, Padua under the Carrara, 1318–1405, (Baltimore/London: Johns Hopkins University Press, 1998) ——— ‘The Paduan elite under Francesco Novello da Carrara (1390–1405). A selected prosopography’, QFIAB, 77 (1977), 206–258 Kolodziej, Axel, Herzog Wilhelm I. von Berg (1380–1408), (Neustadt a. d. Aisch: Schmidt, 2005) Krämer, Werner, ‘Die ekklesiologische Auseinandersetzung um die wahre Repräsentation auf dem Basler Konzil’, in: ed. Albert Zimmermann, Der Begriff der Repraesentatio im Mittelalter, (Berlin: Walter de Gruyter & Co., 1971), 202–237 Kraus, Thomas, ‘Unbekannte Quellen zu den Krönungen Wenzels, Ruprechts und Sigmunds’, Deutsches Archiv für Erforschung des Mittelalters, 38 (1982), 193–202 Krüger, Sabine, ‘Die Darmstädter Handschrift des Dietrich von Niem’, Deutsches Archiv für Erforschung des Mittelalters, 12 (1956), 200–220 Kuehn, Thomas, ‘ “As if Conceived within a Legitimate Marriage” a Dispute concerning Legitimation in Quattrocento Florence’, The American Journal of Legal History, 29 (1985), 275–300 366 Bibliography

——— Illegitimacy in Renaissance Florence, (Michigan: University of Michigan, 2002) ——— ‘A Late Medieval Conflict of Laws: Inheritance by Illegitimates in Ius Commune and Ius Proprium’, Law and History Review, 15 (1997), 243–273 ——— Law, Family & Women: Toward a Legal Anthropology of Renaissance Italy, (Chicago: Chicago University Press, 1994) Kuttner, Stefan, ‘Francesco Zabarella’s Commentary on the Decretals: A note on the editions and the Vatican manuscripts’, Bulletin of Medieval Canon Law, 16 (1986), 97–101 ——— ‘Zum Konzil von Konstanz’, AHC, 21 (1989), 428–429 Lacomblet, Theod., Urkundenbuch für die Geschichte des Niederrheins, (Düsseldorf: Voss, 1858), IV Laehr, Gerhard, ‘Die konstantische Schenkung in der abendländischen Literatur des ausgehenden Mittelalters’, QFIAB, 23 (1931/32), 120–186 Lange, Hermann and Kreichbaum, Maximiliane, Romisches Recht im Mittelalter, (Munich: C.H. Beck, 2007) Lantschner, Patrick, ‘Justice Contested and Affirmed: Jurisdiction and Conflict in Late Medieval Italian Cities’, in: eds. Fernanda Prie and Judith Shnele, Legalism: Community and Justice, (Oxford: Oxford University Press, 2014), 77–96 Lanzoni, Francesco, Storia ecclesiastica e agiografia faentina dal XI al XV secolo, (Vatican City, 1969) Laste, Natale dalle, Brano storico postumo dello studio di Padova dall’anno MCCCCV al MCCCCXXXIII, (Padua: Minerva, 1844) Lattes, Alessandro, ‘Due giureconsulti milanese: Signorolo e Signorino degli Omodei’, Rendiconti del R. Istituto lombardo di scienze e lettere, 32 (1899), 1017–1045 Lazzareschi, Eugenio, ed., Carteggio di Guido Manfredi, cancelliere della repubblica di Lucca, (Pescia: A. Benedetti, 1933) Lazzarini, Isabella, ‘Il diritto urbano in una signoria cittadina: gli statuti mantovani dai Bonacolsi ai Gonzaga 1313–1404)’, in: eds. Giorgio Chittolini and Dietmar Willoweit, Statuti, città, territori in Italia e Germania tra Medioevo ed Età moderna, (Bologna: Il Mulino: 1991), 381–419 Lazzarini, Vittorio, ‘Il Mausoleo di Raffaello Fulgosio nella Basilica del Santo’, Archivio veneto tridentino, 4 (1923), 147–156 Leclercq, Jacques, ‘Points de vue sur le grande schisme d’occident’, in: ed. Lambert Beauduin, 1054–1954 L’Église et les Églises, (Brussels: Éditions de Chevetogne, 1955), II: 223–240 Legè, Vincenzo and Gaboto, Ferdinando, Documenti degli archivi tortonesi relativi alla storia di Voghera, (Pinerolo: Chiantore-Mascarelli, 1908) Le Goff, Jacques, ‘Dépenses universitaires à Padoue au XVe siècle’, Mélanges d’archéologie et d’histoire, 68 (1956), 377–395 Bibliography 367

Leidinger, Georg, Andreas von Regensburg. Sämtliche Werke, (Munich: Universitäts- Buchhandlung, 1903) Leinweber, Joseph, ‘Ein neues Verzeichnis der Teilnehmer am Konzil von Pisa 1409’ in: ed. Georg Schwaiger, Konzil und Papst: Historische Beiträge zur Frage der höchsten Gewalt in die Kirche: Festschrift für Hermann Tüchle, (Paderborn: Schöningh, 1975), 207–46 Lenné, Albert, ‘Der erste literarische Kampf auf dem Konstanzer Konzil in November und Dezember 1414’, RQ, 28 (1914), 3–40 Lenfant, Jacques, Histoire du Concile de Constance, (Amsterdam: P. Humbert, 1727) Lenz, Martin, Konsens und Dissens. Deutsche Königswahl (1273–1349) und zeitgenös- sische Geschichtsschreibung, (Göttingen: Vandenhoeck & Ruprecht, 2002) Lepsius, Susanne, ‘Kontrolle von Amtsträgern durch Schrift. Luccheser Notare und Richter im Syndikatsprozeß’, in: eds. Idem and Thomas Wetzstein, Als die Welt in die Akten kam: Prozessschriftgut im europäischen Mittelalter, (Frankfurt a.M.: V. Klostermann, 2008), 389–473 Lewin, Alison Williams, Negotiating Survival: Florence in the Great Schism 1378–1417, (London: Associated University Presses, 2003) ——— ‘Cum Status Ecclesie Noster Sit: Florence and the Council of Pisa (1409)’, Church History, 62 (1993), 178–189 I libri commemoriali della repubblica di Venezia, (Venice: Dep. di storia patria, 1883), III Loirette, Gabriel, ‘Le Pape Jean XXIII et le grande schisme d’occident (1410–1415)’, Actes de l’Académie nationale des sciences, belles-lettres et arts de Bordeaux, 33 (1968), 62–82 Loomis, Louise, Mundy, John and Woody, Kennerly, The Council of Constance, (New York/London: Columbia University Press, 1961) ——— ‘Nationality at the Council of Constance: An Anglo-French dispute’, American Historical Review, 44 (1938/39), 508–527 Lisciandrelli, Pasquale, Trattati e negoziazioni politiche della Repubblica di Genova (958–1797). Regesti, (Genoa, 1960) Locati, Umberto, Cronica dell’origine di Piacenza, (Cremona: Vincenzo Conti, 1564) Lossen, Max, Die Lehre vom Tyrannenmord in der christlichen Zeit, (Munich: Akademie, 1894) Lucchesi, Marzia, Ludus est crimen? Diritto, gioco, cultura umanistica nell’opera di Stefano Costa, canonista pavese del Quattrocento, (Milan: Cisalpino, 2005) Lückerath, Carl August, ‘Päpstliche Approbation’, in: eds. Adalbert Erler et al., Handwörterbuch zur deutschen Rechtsgeschichte, (Berlin: E. Schmidt, 1984), III: 1476–1481 Luisetto, Giovanni, ed., Archivio Sartori: Documenti di storia e arte francescana, (Padua: Biblioteca antoniana, 1989), IV 368 Bibliography

Lunardon, Silvia, ‘L’ospedale dei Crociferi’, in eds. Idem et al., Hospitale S. Mariae cruciferorum. L’ospizio dei crociferi a Venezia, (Venice: IRE, 1985), 19–84 Luzzatto, Gino, I Prestiti della Repubblica di Venezia. Sec. XIII–XV. Introduzione storica e documenti, (Padua: A. Draghi, 1929) Machiavello, Sandra, I cartolari del notaio Simone di Francesco de Compagnono (1408– 1415), (Genoa, 2006) Maclean, Ian, Learning and the Market Place. Essays in the History of the Early Modern Book, (Leiden: Brill, 2009) Maffei, Domenico et al., I Codici del Collegio di Spagna di Bologna, (Milan: Giuffrè, 1992) ——— La Donazione di Constantino nei giuristi medievali, (Milan: Giuffrè, 1964) ——— Gli inizi dell’umanesimo giuridico, (Milan: A. Giuffrè, 1956) Maffei, Paola, ‘I codici urgellensi e la giurisprudenza italiana fra Tre e Quattrocento. Appunti su alcune particolarità’, Tijdschrift voor Rechtsgeschiedenis, 78 (2010), 381–393 ——— ‘II Grande Scisma d’Occidente nei manoscritti urgellensi. Personaggi, opere e documenti’, in: ed. Anna Modigliani, Roma e il papato nel Medioevo: Studi in onore di Massimo Miglio, (Rome: Edizioni di Storia e Letteratura, 2012), I: 341–356 Maiocchi, Rodolfo, Codice diplomattico dell’Università di Pavia, (Pavia, 1905–1915) Manfredi, Giacomo, ‘Rapporti patrimoniali tra la famiglia piacentina Scribani, il cronista Giacomo Mori, Cosimo e Lorenzo de Medici e la Curia Romana, secondo un documento fiorentino del sec. XV’, Bollettino storico piacentino, 47–48 (1952–1953), 17–20 Mansi, Johannes, Sacrorum consiliorum nova et amplissima collectio, (Venice, 1784– 1785), XXVII & XXVIII Mantese, G, ‘Il testamento di Raffaele Raimondi da Como (1380–c.1427)’, Archivio veneto, 68 (1961), 24–31 Marcheto, Giuliano, ‘Legge, statuto, diritto comune nei consilia del Quattrocento’, in: Challenging Centralism: Decentramento e autonomie nel pensiero politico europeo, (Florence: Florence University Press, 2011), 53–63 Marinus, S., Beccariae gentis imagines ex eiusdem historijs (Pavia, 1598) Marra, Ferrante della, Discorsi delle famiglie estinte, forastiere, o non comprese ne’ seggi di Napoli, imparentate colla Casa di Marra, (Naples, 1641) Martellozo Forin, Elda, ‘Note sulla famiglia del giurista pisano Benedetto da Piombino (†1410)’, QSUP, 33 (2000), 45–68 Massironi, Andrea, Nell’officina dell’interprete. La qualificazione del contratto nel dirit- tocomune (secoli XIV–XVI), (Milan: Giuffrè, 2012) Mazour-Matusevich, Yelena, ‘Jean Gerson’s Assessment of the Issue of Religious Zeal in the Context of the Tyrannicide Controversy’, The Medieval History Journal, 16 (2013), 121–137 Mazzacane, Aldo, ‘Rechtswissenschaft und Ideologie in Venedig. Erwerbung der „Terraferma‟ und Wandlungen des Staates’, in: ed. Roman Schnur, Die Rolle der Bibliography 369

Juristen bei der Entstehung des modernen Staates, (Berlin: Duncker & Humblot, 1986), 148–167 ——— ‘Lo Stato e il dominio nei giuristi veneti durante il “secolo della terraferma” ’, in: Storia della cultura veneta. Dal primo quattrocento al concilio di Trento, (Vicenza: Neri Pozza, 1980), III/I: 577–650 McGuire, Brian Patrick, Jean Gerson and the Last Medieval Reformation, (University Park, PA: Pennsylvania State University Press, 2005) Mehl, Jean-Michel, Les Jeux aux Royaume de France du XIIIe au début du XVIe siècle, (Paris: Fayard, 1990) Mehus, Laurentio, Leonardi Bruni Arretini Epistolarum Libri VIII, (Florence: Bernardi Paperini, 1731) Meister, Aloys, ‘Das Konzil zu Cividale im Jahre 1409’, Historisches Jahrbuch, 14 (1893), 320–330 Melchiorre, Matteo, ‘Canonici giuristi a Padova nel quattrocento. Note su Antonio Capodolista e Giovanni Francesco Pavini’, QSUP, 44 (2011), 93–143 Menozzi, Daniele, ‘La critica alla autenticità della Donazione di Costantino in un manoscritto della fine del XIV secolo’, Cristianesimo nella storia, 1 (1980), 123–154 Mercati, Angelo, ‘Una fonte poco nota per la storia di Gregorio XII’, Archivio della soci- età romana di storia patria, 50 (1927), 231–238 ——— Dall’Archivio Vaticano: Una corrispondenza fra curiali della prima metà del Quattrocento, (Vatican City, 1951) Miari, Clemente, Cronaca bellunese dal 1383 al 1412, (Belluno, 1999) Miethke, Jürgen, ‘La Donazione di Costantino e la controversia pubblicistica tra papa e imperatore nel XIV secolo’, in: eds. Giorgio Bonamente, Giorgio Cracco and Klaus Rosen, Costantino il Grande tra medioevo ed età moderna, (Bologna: Il Mulino, 2008), 51–80 ——— ‘Die handschriftliche Überlieferung der Schriften des Juan González, Bischof von Cádiz (†1440). Zur Bedeutung der Bibliothek des Domenico Capranica für die Verbreitung ekklesiologischer Traktate des 15. Jahrhunderts, mit einem Anhang: Inhaltsübersicht über die Miscellanhandschrift Vat. lat. 4039’, QFIAB, 60 (1980), 275–324 ——— ‘Tyrann, Tyrannenmord’, in: Lexikon des Mittelalters, (Munich: LexMA, 1997), VIII/6, 1135–1138 ——— ‘Der Tyrannenmord im späten Mittelalter: Theorien über das Widerstandsrecht gegen ungerechte Herrschaft in der Scholastik’, in: eds. Gerhard Beestermöller and Heinz-Gerhard Justenhoven, Friedensethik im Spätmittelalter. Theologie im Ringen um die gottgegebene Ordnung, (Stuttgart: W. Kohlhammer, 1999), 24–48 Millet, Hélène, ‘La fin du Grand schisme d’Occident: la résolution de la rupture en obé- diences’, in: eds. Paola Guglielmotti, Isabella Lazzarini and Gian Maria Varanini, Europa e Italia. Studi in onore di Giorgio Chittolini, (Florence: Firenze University Press, 2011), 309–327 370 Bibliography

——— ‘Les Pères du Concile de Pise (1409): Edition d’une nouvelle liste’, Mélanges de l’Ecole française de Rome. Moyen-Age, 93 (1981), 713–390 Minucci, Giovanni, ‘Professori e scolari giuristi nello Studio di Siena dalle origini alla fine del XV secolo’, in: L’Univeristà di Siena. 750 anni di storia, (Siena: A. Pizzi, 1991), 111–130 Miltenberger, Franz, ‘Versuch einer Neuordnung der päpstlichen Kammer in den ersten Regierungsjahren Martins V.’, RQ, 18 (1894), 393–450 Molà, Luca, La comunità dei lucchesi a Venezia. Immigrazione e industria della seta nel tardo medioevo, (Venice, 1994) Montbuy, Marqués de Caldas de, ‘Una extraordinaria embajada. La corona de Aragón y el concilio di Constanza’, Boletín de la Real academia de buenas letras de Barcelona, 18 (1945), 1–28 Monte, Pietro del, Monarchia, (Lyon, 1512) ——— Repertorium utriusque iuris, (Padua: J. Horbert, 1480) Morbio, Carlo, Codice visconteo-sforzeco, (Milan, 1846) Morrall, John B., Gerson and the Great Schism, (Manchester: Manchester University Press, 1960) Morrissey, Thomas, ‘The Decree Haec Sancta and Cardinal Zabarella’, AHC, 10 (1978), 145–176 ——— ‘The Emperor-elect Sigismund, Cardinal Zabarella and the Council of Constance’, The Catholic History Review, 69 (1983), 353–370 ——— ‘Ein unruhiges Leben. Franciscus Zabarella an der Universität von Padua (1390–1410). Die Welt, die Nikolaus von Kues vorfand’, in: eds. Klaus Kremer and Klaus Reinhardt, Nikolaus von Kues als Kanonist und Rechtshistoriker, (Trier: Paulinus, 1998) Moschetti, Andrea, Documenti relativi alla pittura padovana del secolo XV, (Venice: Istituto veneto di arte grafiche, 1909) Müller, Reinhold C., The Venetian Money Market. Banks, Panics, and the Public Debt 1200–1500, (Baltimore & London: John Hopkins University Press, 1997) Munk, Ana, ‘The Art of Relic Cults in Trecento Venice: Corpi Sancti as a Pictorial Motif and Artistic Motivation’, Radovi Instituta za povijest umjetnosti, 30 (2006), 81–92 Murano, Giovanna and Morelli, Giovanna, eds., Autographa. I.1. Giuristi, giudici e notai (sec. XII–XVI med.), (Bologna: CLUEB, 2012) ——— Opere diffuse per Exemplar e Pecia, (Turnhout: Brepols, 2005) Muratori, Lodovico, Delle Antichità estensi.., (Modena: Ducale, 1740) ——— ed., ‘Chronicon Placentinum’, Rerum italicarum scriptores, (Milan: Soc. Palatinae, 1730), XVI Nasalli, Emilio, ‘La famiglia di Lorenzo Valla e i Piacentini nella curia di Roma nel secolo XV, Archivio Storico per le Province Parmensi, 9 (1957), 225–251 Bibliography 371

——— Il trasferimento dello Studio visconteo di Pavia a Piacenza dal 1398 al 1402, (Milan, 1927) Nebbiai-Dalla Guarda, Donatella, ‘ “Leges de voluntariis”. Bibliothèques et culture des juristes en Italie d’après les inventaires de livres (XIIIe–XVe siècles)’, in: ed. Vincenzo Colli, Juristische Buchproduktion im Mittelalter, (Frankfurt a.M.: Vittorio Klostermann, 2002), 677–740 Necchi, Elena, ‘Le iscrizione di Raffaele Fulgosio e Raffaele Raimondi, maestri giuristi fra Pavia e Padova’, Italia medioevale e umanistica, 37 (1994), 215–222 Neddermeyer, Uwe, ‘Juristische Werke auf dem spätmittelalterlichen Buchmarkt’, in: ed. Vincenzo Colli, Juristische Buchproduktion im Mittelalter, (Frankfurt a.M.: Vittorio Klostermann, 2002), 633–673 Netto, Giovanni, I reggitori di Treviso 1162–1994, (Treviso, 1995) Niem, Dietrich von,Viridarium imperatorum et regum romanorum, (Stuttgart, 1956) Niero, Antonio et al., Venezia e i concili, (Venice: Fondazione Giorgio Cini, 1962) Noto, Antonio and Viviano, Bruno, Visconti e Sforza fra le colonne del Palazzo Archinto, (Milan: Giuffrè, 1980) Nova, Giuseppe, Stampatori, librai ed editori bresciani in Italia nel Cinquecento, (Brescia, 2000) Novissimum statutorum ac Venetarum legum.., (Venice, 1729) Oakley, Francis, The Political Thought of Pierre d’Ailly. The Voluntarist Tradition, (New Haven: Yale University Press, 1964) Oldoini, Agostino, Athanaevm avgvstvm in quo Pervsinorum scripta publice exponvntur, (Perugia: L. Ciani & F. Desideri, 1678) Oriano, Lanfranco de, Repetitiones, (Venice, 1472) Omodei, Signorolo degli, Consilia ac questiones, (Milan: H. Chuchalon, 1521) Osio, Luigi, Documenti diplomatici tratti dagli Archivj Milanesi, (Milan: G. Bernardoni di Giovanni, 1864–1869), I–II Padovani, Andrea, ‘Consilia e Tractatus di giuristi italiani negli anni del grande scisma (1405–1409)’, GLOSSAE. European Journal of Legal History, 10 (2013), 430–456 (available at http://www.glossae.eu) Pagliarini, Battista, Croniche di Vicenza, ed. Giorgio Giacomo Alcaini, (Vicenza: Giacomo Amadio, 1663) Palacký, Franciscus, Documenta Mag. Johannis Hus vitam, doctrinam, causam in Constantiensi concilio actam . . illustrantia, (Prague: F. Tempsky, 1869) Panormitanus, Consilia et quaestiones, (Turin: Heirs of Nicolaus Bevilacqua, 1577) Parodi, Giacomo, Elenchus privilegiorum et actuum publici Ticinensis studii, (Pavia, 1753) Partner, Peter, The Papal State under Martin V: The Administration and Government of the Temporal Power in the Early Fifteenth Century, (London: British School at Rome, 1958) 372 Bibliography

Pascoe, Louis B., ‘Gerson and the Donation of Constantine: Growth and Development within the Church’, Viator, 5 (1974), 469–485 Pedretti, Marco, ‘A Catalan diplomat, theologian and preacher at the Council of Constance: Master Felip de Malla’, Revue de Sciences Religieuses, 86 (2002), 143–161 Pellegrini, Francesco de, Documenti relativi al dominio dei Visconti sopra Belluno e Feltre dal 1388 al 1404, (Venice: Antonelli, 1869) ——— Documenti antichi, (Belluno: Germano Sommavilla, 1993), IV & V ——— Serie dei podestà e capitani e dei vicarii o giudici di Belluno dal 1200 al 1420, (Belluno, 1893) Pennington, Kenneth, ‘Allegationes, Solutiones, and Dubitationes: Baldus de Ubaldis’ Revisions of his Consilia’, in: ed. Manlio Bellomo, Die Kunst der Disputation. Probleme der Rechtsauslegung und Rechtsanwendung im 13. und 14. Jahrhundert, (Munich: Oldenbourg, 1997), 29–72 ——— ‘Due Process, Community, and the Prince in the Evolution of the Ordo iudiciarius’, Rivista internazionale di diritto comune, 9 (1998), 9–47 ——— The Prince and the Law, 1200–1600. Sovereignty and Rights in the Western Legal Tradition, (Berkeley: California University Press, 1993) Pérez Martín, Antonio, Proles aegidiana, (Bologna: Real Colegio de España, 1979) Petronio, Ugo, ‘Venezia, Ancona e l’Adriatico in un consiglio di Raffaele Fulgosio e Raffaele Raimondi da Como’, in: Scritti in onore di Dante Gaeta, (Milan: Giuffrè, 1984), 521–557 Piaia, Gregorio, ‘Tra il Fulgosio e il Valla: La critica del Cusano alla “Donatio” ’, in: ed. Martin Thurner, Nicolaus Cusanus zwischen Deutschland und Italien, (Berlin: Akademie, 2002), 115–128 Piana, Celestino and Cenci, Cesare, Promozioni agli ordini sacri a Bologna e alla dignità ecclesiastiche del Veneto nei secoli XIV–XV, (Florence, 1968) Pidoux, Pierre-André, ‘Notes sur quelques titres et prérogatives d’honneur attachés au siège archiepiscopal de Besançon’, Mémoires de l’Académie de Besançon, 51 (1913), 140–163 Pin, Ellies du, Joannis Gersonii opera omnia, (Antwerp, P. de Hondt, 1728), V Piquard, M., ‘Thiébaud de Rougemont, Archevêque de Besançon (1405–1429)’, Mémoires de la Société d’Emulation du Doubs, 1 (1931), 86–101 Piva, Edoardo, ‘Venezia e lo scisma durante il pontificato di Gregorio XII (1406–1409)’, Nuovo archivio veneto, 13 (1897), 135–158 Poggiali, Cristoforo, Memorie per la storia letteraria di Piacenza, (Piacenza: N. Orcesi, 1789) ——— Memorie storiche della città di Piacenza, (Piacenza, 1759) Poliakov, Léon, The Jewish Bankers and the Holy See: From the Thirteenth to the Seventeenth Century, (London: Routledge & K. Paul, 1977) Bibliography 373

Pollard, Graham, ‘The Pecia System in the Medieval Universities’, in: eds. Malcolm Parkes and Andrew Watson, Medieval Scribes, Manuscripts and Libraries: Essays Presented to N.R. Ker, (London: Scolar Press, 1978), 145–161 Ponzini, Domenico, ‘I vescovi della Chiesa piacentina nei secoli XI–XV’, in: ed. Pierre Racine, Storia della Diocesi di Piacenza – Il Medioevo, (Brescia: Morcelliana, 2009), 411–450 Posthumus Meyjes, G.H.M., Jean Gerson, Apostle of Unity: His Church Politics and Ecclesiology, (Leiden: Brill, 1999) Powers, George, Nationalism at the Council of Constance: (1414–1418), (Catholic University of America, 1927) Přerovský, Olderico, L’elezione di Urbano VI e l’insorgere dello scisma d’occidente, (Rome: Biblioteca Vallicelliana, 1960) Prioreschi, Plinio, A History of Medicine, (Omaha: Horatius, 2003), V Provvidente, Sebastián, ‘Factum hereticale, repraesentatio et ordo iuris. Le procès contre Jean Hus au concile de Constance (1414–1418)’, Temas Medievales, 17 (2009), 103–138 ——— ‘Inquisitorial process and plenitudo potestatis at the Council of Constance (1414–1418)’, in: eds. Zdeněk V. David and David R. Holeton, The Bohemian Reformation and Religious Practice, (Prague: Filosofia, 2011), 98–114 ——— ‘El pensamiento conciliar del siglo XV: entre universitas y persona ficta’, GLOSSAE. European Journal of Legal History, 11 (2014), 117–142 (available at http:// www.glossae.eu) Puncuh, Dino, Carteggio di Pileo de Marini arcivescovo di Genova (1400–1429), (Genoa: Soc. ligure di storia patria, 1971) ——— ‘Il governo genovese del Boucicaut nella lettera di Pileo de Marini a Carlo VI di Francia (1409)’, Mélanges de l’Ecole française de Rome. Moyen-Age, Temps modernes, 90 (1978), 657–687 Quaglioni, Diego, ‘Dal manoscritto alla stampa. Alle origini della tipografia giuridica bolognese’, in: ed. Vincenzo Colli, Juristische Buchproduktion im Mittelalter, (Frankfurt a.M.: Vittorio Klostermann, 2002), 599–632 ——— Pietro del Monte a Roma. La tradizione del ‘Repertorium utriusque iuris’ (c.1453), (Rome, 1984) ——— ‘ “Rex” e “Tyrannus” nel “Repertorium” di Pietro del Monte’, Quaderni catanesi di studi classici e medievali, 5 (1981), 425–448 ——— Politica e diritto nel Trecento italiano. Il ‘de tyranno’ di Bartolo da Sassoferrato (1314–1357), (Florence: L.S. Olschki, 1983) Quillet, Jeannine, ‘Universitas populi et représentation au XIVe siècle’, in: ed. Albert Zimmermann, Der Begriff der Repraesentatio im Mittelalter, (Berlin: Walter de Gruyter & Co., 1971), 186–201 Raimondi, Raffaele, Commentaria super prima parte ff. novi, (Venice: B. Staginum, 1500) 374 Bibliography

Rao, Riccardo, ‘Il sistema politico pavese durante la signoria di Beccaria (1315–1356): <élite> e pluralismo’, in: Mélanges d’École française de Rome. Moyen Âge, 119 (2007), 151–187 del Re, Niccolò, ‘Il ‘consilium pro Urbano VI’ di Bartolomeo da Saliceto’, in: Collectanea vaticana in honorem Anselmi M Card. Albareda, (Vatican City: BAV, 1962), 213–263 ——— ‘Paolo di Castro, dottore della verità’, Studi senesi, 19 (1970), 211–213 Redlich, Otto, Jülich-bergische Kirchenpolitik am Ausgang des Mittelalters und in der Reformationzeit, (Bonn: P. Hansteins, 1907), I Reichberg, Gregory, ‘Just War and Regular War: Competing Paradigms’, in: eds. David Rodin and Henry Shue, Just and Unjust Warriors. The Moral and Legal Status of Soldiers, (Oxford: OUP, 2008), 193–213 ——— Syse, Henrik & Begby, Endre, eds. The Ethics of War: Classic and Contemporary Readings, (Malden (MA): Blackwell, 2006) Renzo Villata, Maria Gigliola di and Massetto, Gian Paolo, ‘La Facoltà legale: L’insegnamento del diritto civile: (1361–1535). Docenti e discipline’, in: ed. Dario Mantovani, Almum Studium Papiense. L’Università di Pavia dal Medioevo al XXI secolo, (Milan: Cisalpino, 2012), I: 429–466 ——— ‘Scienza giuridica e legislazione nell’eta sforzesca’, in: Gli Sforza a Milano e in Lombardia e i loro rapporti con gli Stati italiani ed europei (1450–1535), (Milan, 1982), 65–146 Reuger, Zofia, ‘Gerson, the conciliar movement and the right of resistance’, Journal of the History of Ideas, 25 (1964), 467–486 Ried, Thomas, Codex chronologico-diplomaticus eipscopatus Ratisbonensis, (Regens- burg: L.S. Schauff, 1816), II Riegel, Joseph, Die Teilnehmerlisten des Konstanzer Konzils, (Freiburg i. Br.: Caritas, 1916) Riezler, Sigmund, Geschichte Baierns, (Gotha, 1878), III Rigoni, Erice, ‘Il tribunale degli scolari dell’università di Padova nel medioevo’, in: Atti e Memorie della r. accademia di scienze e lettere ed arti in Padova, 59 (1942/3), 19–34 Riva, Ana, ‘La scuola e l’insegnamento a Piacenza nel Medioevo’, in: ed. Pierre Racine, Storia della Diocesi di Piacenza – Il Medioevo, (Brescia: Morcelliana, 2009), 203–224 Robolini, Giuseppe, Notizie appartenenti alla storia della sua patria, (Pavia: Fusi & Corrili, 1834/38), V & VI Rödel, Ute, Die Zeit Wenzels 1397–1400, (Cologne/Weimar/Vienna: Böhlau, 2004) Romanin, S., Storia documentata di Venezia, (Venice: Naratovich, 1855), IV Romano, Giacinto, ‘La cartella del notaio C. Cristiani nell’archivio di Pavia’, ASL, ser. 2. 6 (1889), 679–689 ——— ‘Contributi alla storia della ricostituzione del Ducato milanese sotto Filippo Maria Visconti (1412–1421)’, ASL, ser. 3. 6 (1896), 231–290, ser 3. 7 (1897), 67–146 Bibliography 375

——— ‘Niccolò Spinelli da Giovinazzo. Diplomatico del XIV secolo’, Archivio storico per la province Napoletane, 24–26 (1899–1901), 85–121, 351–400; 157–194, 276–334, 408–461; 33–80, 223–281, 401–462, 471–542 ——— ‘Nuovi documenti viscontei tratti dall’archivio notarile di Pavia’, ASL, ser.2. 6 (1889), 297–339 ——— ‘Regesto degli atti notarili di C. Cristiani dal 1391 al 1399’, ASL, ser. 3. 2 (1894), 5–86 Romiti, Antonio and Tori, Giorgio, Statuti e matricole del collegio dei giudici e notai della città di Lucca, (Rome, 1978) ——— ‘Lo “statutum curie appellationum” del 1331’, Actum Luce, 23 (1994), 111–151 Rossi, Giovanni, ‘Valla e il diritto: l’«Epistola contra Bartolum» e le «Elegantiae». Percorsi di ricerca e proposte interpretative’, in: ed. Mariangela Regoliosi, Pubblicare il Valla, (Florence: Polistampa, 2008), 507–599 Rouse, Mary and Rouse, Richard, ‘The book trade at the University of Paris, ca. 1250– ca. 1350’, in: eds. Louis-Jacques Bataillon, Bertrand-Georges Guyot and Richard Rouse, La production du livre universitaire au moyen âge. Exemplar et pecia. Actes du symposium tenu au Collegio S. Bonaventura de Grottaferrata en Mai 1983, (Paris: 1988), 41–114 ——— ‘The Dissemination of Texts in Pecia at Bologna and Paris’, in: eds. Peter Rück and Martin Boghardt, Rationalisierung der Buchherstellung im Mittelalter und in der frühen Neuzeit: Ergebnisse eines buchgeschichtlichen Seminars, Wolfenbüttel 12.–14. November 1990, (Wetter: Schröder, 1994), 69–78 Rosate, Albericus de, Commentarii in primam codicis partem, (Venice: Arnaldo Forni, 1585) ——— Commentarii in primam digesti veteris partem, (Venice: Arnaldo Forni, 1585) Rosmini, C., Vita di Francesco Filelfo da Tolentino, (Milan: L. Mussi, 1808) Rosso, Paolo, ‘Professori, studenti e nationes’, in: ed. Dario Mantovani, Almum Studium Papiense. L’Università di Pavia dal Medioevo al XXI secolo, (Milan: Cisalpino, 2012), I: 383–414 Roumy, Franck, ‘Le Développement du système de l’avocat commis d’office dans la procédure romano-canonique (XIIe–XIVe siècle)’, The Legal History Review, 71 (2003), 359–386 Rugo, Pietro, Riflessi storici del dominio e della caduta della repubblica veneta nelle lapidi della città di Feltre, (Belluno, 1998) Sabbadini, Remigio, Epistolario di Guarino Veronese, (Venice, 1915–1919) ——— ‘Dalle nuove lettere di Gasparino Barzizza’, in: Rendiconti del R. Istituto lombardo di scienze e lettere, 62 (1929), 881–890 Sambin, Paolo, ‘Giuristi padovani del quattrocento tra attività universitaria e attività publica: I: Paolo d’Arezzo (†1443) e i suoi libri’, in: Università e società nei secoli 376 Bibliography

XII–XVI, Atti del nono Convegno Internazionale di studio (Pistoia, 20–25 settembre 1979), (Pistoia, 1982), 367–397 ——— ‘I libri di Bartolomeo e Bono Astorelli dottori giuristi, 1421’, in: Libri e stampatori in Padova. Miscellanea di studi storici in onore di G. Bellini, (Padua, 1959), 335–344 ——— ‘Nicolò da Cusa, studente a Padova e abitante nella casa di Prosdocimo Conti suo maestro’, QSUP, 12 (1979), 141–145 ——— ‘Su Giacomo della Torre (†1414)’, QSUP, 6 (1972), 149–161 Sandal, Ennio, La stampa a Brescia nel Cinquecento: notizie storiche e annali tipografici (1501–1553), (Brescia, 1999) Sandre, Giuseppina de, ‘Dottori, università, comune a Padova nel Quattrocento’, QSUP, 1 (1968), 15–47 Sangiorgio, Paolo, Cenni storici sulle due università di Pavia e di Milano, (Milan, 1831) Santangela Cordani, Angela, La giurisprudenza della Rota Romana nel secolo XIV, (Milan: A. Giuffrè, 2001) Santoro, Caterina, La politica finanziaria dei Visconti: documenti, (Milan: A. Giuffrè, 1976) ——— Il registro di Giovannolo Besozzi, (Milan, 1937) ——— Gli uffici del comune di Milano e del dominio visconteo-sforzesco (1216–1515), (Milan: A. Giuffrè, 1968) Sapori, Giuliana, Antichi testi giuridici (secoli XV–XVIII) dell’Istituto di storia del diritto italiano, (Milan, A. Giuffrè, 1977) Sardella, Pierre, Nouvelles et spéculations à Venise au début du XVIe siècle, (Paris: A. Colin, 1948) Sarti, Nicoletta, ‘Tra mestiere e scienza giuridica. La difficile professionalità dell’avvocato medievale’, Historia et ius, 1 (2012), paper 6, 1–7 Sauerland, Heinrich, Urkunden und Regesten zur Geschichte der Rheinlande aus dem Vatikanischen Archiv, (Bonn: P. Hansteins, 1910–1913), V–VII Savelli, Rodolfo, ‘ “Capitula”, “regulae” e pratiche del diritto a Genova tra XIV e XV secolo’, in: eds. Giorgio Chittolini and Dietmar Willoweit, Statuti, città, territori in Italia e Germania tra Medioevo ed Età moderna, (Bologna:, 1991), 447–502 Savigny, Friedrich Karl von, Geschichte des römischen Rechts im Mittelalter, (Heidelberg: J.C.B. Mohr, 1831), VI Savio, Fedele, ‘Rinaldo Orsini di Tagliacozzo signore d’Orvieto e gli Orsini di Tagliacozzo, di Licenza e di Campodifiore’, Bollettino della deputazione di storia patria per l’Umbria, 3 (1897), 161–189 Scarabelli, Luciano, Istoria civile dei ducati di Parma Piacenza e Guastalla, (Italy, 1858), II Scarabello, Giovanni, ‘Per una storia della prostituzione a Venezia tra il XIII e il XVIII secolo’, Studi veneziani, 47 (2004), 15–101 Scattola, Merio, ‘Law, War and Method in the Commentary on the Law of Prize by Hugo Grotius’, in: ed. Hans W. Blom, Property, Piracy and Punishment. Hugo Grotius Bibliography 377

on War and Booty in De Iure Praedae – Concepts and Contexts, (Leiden: Brill, 2009), 79–103 Schannat, Joannes, Concilia germaniae, (Cologne: Krakamp & Haeredes C. Simonis, 1761), IV–V Schen, Gerrit, ‘Sehen und gesehen werden. Der Einzug König Sigismunds zum Konstanzer Konzil 1414 im Wandel von Wahrnehmung und Überlieferung’, in: ed. Franz Mauelshagen, Medien und Weltbilder im Wandel der Frühen Neuzeit, (Augsburg, 2000), 71–106 della Schiava, Fabio, ‘Alcune vicende di un sodalizio umanistico pavese: Lorenzo Valla e Maffeo Vegio’, in: ed. Luca Carlo Rossi, Strade di Ercole. Itinerari umanistici e altri percorsi, (Florence: Sismel, 2010), 299–342 Schizzerotto, Giancarlo, Le incisioni quattrocentesche della Classense, (Ravenna: Zaccarini, 1971) Schmid, Georg, ‘Itinerarium Johanns XXIII. zum Concil von Konstanz 1414’, in: ed. Stephan Ehses, Festschrift zum elfhundertjährigen Jubiläum des deutschen Campo Santo in Rom, (Freiburg i.Br.: Herder’sche, 1897), 196–206 Schulte, Johann Freidrich von, Die Geschichte der Quellen und Literatur des canonischen Rechts, (Stuttgart: F. Enke) Scipione, Francesco, Dissertazione nona sopra l’istoria ecclesiastica padovana, (Padua: Seminario, 1817) Segarizzi, Arnaldo, La Catinia: Le orazioni e le epistole di Sicco Polenton, (Bergamo, 1899) ——— Libellus de magnificis ornamentis regie civititas Padue Michelis Savonarole, (Città di Castello: S. Lapi, 1902) Seghieri, Mario, ‘Giurisprudenza lucchese nel medioevo. Due cause – una di diritto canonico, l’altra di giure civile – dibattute avanti il tribunale ecclesiastico’, Actum Luce, 23 (1994), 81–110 Segre, Arturo, ‘I dispacci di Cristoforo da Piacenza. Procuratore mantovano alla corte pontificia (1371–1383)’, ASI, 43 (1909), 27–95 Seibertz, Johannes, Landes- und Rechtsgeschichte des Herzogthums Westfalen, (Arnsberg: A. Ritter, 1854), IV Senkenberg, Heinrich de, Methodus iurisprudentiae, (Frankfurt a.M.: Varrentrappiano, 1756) Settia, Aldo Angelo, ‘La “battaglia”: un gioco violento fra permissività e interdizione’, in: ed. Gherardo Ortalli, Gioco e giustizia nell’Italia di Comune, (Treviso/Rome: Fondazione Benneton Studi Ricerche, 1993), 121–132 Sforza, Giovanni, ‘Francesco da Pietrasanta. Vescovo di Luni’, Giornale liguistico di archeologia, storia e letteratura, 19 (1892), 32–56 Sieben, Hermann Josef, Traktate und Theorien zum Konzil, (Frankfurt a.M.: J. Knecht, 1983) Siedelmeyer, Michael, Die Anfänge des grossen abendländischen Schismas, (Münster: Aschendorff, 1940) 378 Bibliography

Sillani, Chiara Tenella, L’Arbitrato di equità. Modelli, regole, prassi, (Milan: A. Giuffrè, 2006) Simonsohn, Shlomo, The Apostolic See and the Jews: Documents 1394–1464, (Turnhout: Brepols, 1989) Siraisi, Nancy, Arts and Sciences at Padua. The Studium of Padua before 1350, (Toronto, 1973) Soetermeer, Frank, ‘ “Exemplar” und “Pecia”. Die Herstellung juristischer Bücher in Bologna im 13. und 14. Jahrhundert’, in: ed. Vincenzo Colli, Juristische Buchproduk- tion im Mittelalter, (Frankfurt a.M.: Vittorio Klostermann, 2002), 481–516 Sommerfeld, Gustav, ‘Zwei politische Sermone des Heinrich von Oyta und des Nikolaus von Dinkelsbühl (1388 und 1417)’, Historisches Jahrbuch, 26 (1905), 318–327 Sorbelli, Albano, Il ‘Liber secretus iuris ceasarei’ dell’Università di Bologna, (Bologna: Istituto per la storia dell’Università di Bologna, 1938) Sottili, Agostino, Studenti tedeschi e umanesimo italiano nell’Università di Padova durante il Quattrocento: I Pietro del Monte nella società accademica padovana (1430– 1433), (Padua, 1971) Smith, Leonardo, Epistolario di Pier Paolo Vergerio, (Rome: Istituto storico italiano, 1934) Speroni, Mario, ‘Lorenzo Valla a Pavia: Il libellus contra Bartolo’, QFIAB, 59 (1979), 453–467 Staender, Joseph, Chirographorvm in regia bibliotheca pavlina Monasteriensi Catologvs, (Bratislava: G. Koebner, 1889) Staffa, Dino, ‘De Iohannis ab Imola vita et operibus’, Appollonaris, 10 (1937), 76–104 Statuta civitatis Brixiae, (Brescia: D. Tvrlinvm, 1557) Gli Statuti de Padova tradotti de latino in vulgare, (Padua: G. Fabriano, 1551) Statva sev decreta provincialivm et diocesanarvm . . . Coloniensis, (Cologne: I. Quental, 1554) Steffenhagen, Emil, ‘Ein mittelalterlicher Traktat über den Rentenkauf und das Kostnizer Rechtsgutachten von 1416’, in: Beiträge zur Bücherkunde und Philologie August Wilmanns zum 25, März 1903 gewidmet, (Leipzig: O. Harrassowitz, 1903), 355–370 Straub, Theodor, ‘Das Straubinger Erbe und seine Eingliederung in die Teilherzogtümer (1425–1429)’, in: Max Spindler and Andreas Kraus, Handbuch der bayerischen Geschichte, (Munich, 1988), 267–270 Stromer, Wolfgang von, ‘Landmacht gegen Seemacht. Kaiser Sigismunds Kontinental- sperre gegen Venedig 1412–1433’, Zeitschrift für historische Forschung, 22 (1995), 145–189 Stump, Phillip H., The Reforms of the Council of Constance (1414–1418), (Leiden: Brill, 1994) Bibliography 379

Susato, Jacobus de, ‘Chronicon Episcoporum Coloniensium’, in: Johann Seibertz, Quellen der westfälischen Geschichte, (Arnsberg: Grote, 1857), 161–215 Swanson, R.N., Universities, Academics and the Great Schism, (Cambridge: Cambridge University Press, 1979) ——— ‘The University of Köln and the Great Schism’, Journal of Ecclesiastical History, 28 (1977), 1–15 Syme, David, Galeazzo Gatari, The Fortunes of Francesco Novello Da Carrara, Lord of Padua, (Edinburgh: Constable & Co., 1830) Tarlazzi, Antonio, Appendice ai Monumenti Ravennati dei secoli di mezzo del conte Marco Fantuzzi, (Ravenna, 1876), II Tierney, Brian, ‘Divided Sovereignty at Constance: A problem of Medieval and early Modern Political Theory’, AHC, 7 (1975), 238–271 ——— Foundations of the Conciliar Theory, (Cambridge: Cambridge University Press, 1955) ——— ‘The Idea of Representation in the Medieval Councils of the West’, Concilium, 187 (1983), 25–30 Tjarks, Sven Ufe, Das „Venezianische‟ Stadtrecht Paduas von 1420: Zugleich eine Untersuchung, (Berlin: Akademie, 2013) Tocci, Mirella, ‘Giovan Francesco Capodilista’, DBI, (Rome, 1975), XVIII: 638–640 Tognoni Campitelli, Adriana, ‘Bottrigari, Jacopo’, DBI, 13 (1971), 498–501 Tomasini, Jacobus, Gymnasivm Patavinvm, (Udine, 1654) ——— Vrbis patavinae inscriptiones sacrae et prophanae, (Padua: Sardi, 1649) Tönsing, Michael, Johannes Malkaw aus Preussen (ca. 1360–1416), (Warendorf: Fahlbusch, 2004) Trapani, Luca, ‘Docenti senesi. Dalla fondazione dello Studio generale all’istituzione della facoltà teologica (1357–1408)’, Annali di storia delle università italiane, 10 (2006), 37–56 Traversari, Ambrogio, Latinae epistolae, (Florence, 1759) Trithemius, Johannes, Liber de scriptoribus ecclesiaticis, (Basle, 1494) Tschackert, Paul, Peter von Ailli, (Gotha: F.A. Perthes, 1877) Tubach, Frederic, Index exemplorum. A Handbook of Medieval Religious Tales, (Helsinki, 1969) Ubaldis, Angelus de, Consilia, (Frankfurt a.M.: Typ. Andreae Wecheli, 1575) ——— Lectura autenticorum, (Lyon: Heirs of Jacopo Giunti, 1549) ——— Lectura super prima parte ff. veteris, (Milan: Iohannes Antonius und Beninus de Honate, 1477) ——— Super secundo usque ad nonum librum Codicis, (Lyon: M. Huss, c. 1478/79) Uberti, Pier Felice degli, ‘Il diritto nobiliare nel ducato di Milano dall età feudale ai sovrani Spagnoli’, Hidalguía, 53 (2006), 561–576 380 Bibliography

Ullmann, Walter, The Origins of the Great Schism: A Study in Fourteenth Century Ecclesiastical History, (London: Burns Oates and Washbourne Ltd., 1948) Vaccari, Pietro, Storia della Università di Pavia, (Pavia: Università di Pavia, 1957) Valentinelli, Joseph, Bibliotheca manuscripta ad S. Marci Venetiarum, (Venice, 1870) Valois, Noël, La France et le Grand Schisme d’Occident, (Paris: A. Picard et fils, 1896–1902) Valsecchi, Chiara, ‘Raffaele Fulgosio’, in: eds. Maria Luisa Carlino, Giuseppe de Giudici, Ersilia Fabbricatore, Eloisa Mura and Martina Sammarco, Dizionario biografico dei giuristi italiani (XII–XX secolo), (Milan: Il Mulino, 2013), I: 913–915 Vancini, Oreste, ‘Una rivoluzione di ‘Ciompi’ in Bologna 1411–1412’, Studi di storia e di critica dedicati a Pio Carlo Falletti, (Bologna, 1915), 561–576 Vani, Mario, ‘Gli statuti di Francesco Gonzaga IV Capitano’, Atti e Memorie dell’accademia nazionale virgiliana di scienze lettere ed arti, 56 (1988), 187–214 Varanini, Gian Maria and Zoldan, Carlo, I documenti di Liazaro notaio vescovile di Feltre e Belluno (1386–1422), (Rome: Viella, 2011) Verci, Giambatista, Storia della marca trivigiana e veronese, (Venice: G. Storti, 1791), XIX–XX Vermiglioli, Giovanni, Biografia degli scrittori perugini e notizie delle opere loro, (Perugia: F. Baduel, 1829) Verrua, Pietro, ‘Studenti, librai, strozzini, bidelli e dazio’, in: La Bibliofilia, 6 (1928), 223–228 Vidari, Giovanni, Frammenti storici dell’agro ticinese, (Pavia: Fusi, 1886) Vincke, Johannes, ‘Acta concilii Pisani’, RQ, 46 (1938), 81–331 ——— Briefe zum Pisaner Konzil, (Bonn, 1940) ——— Schriftstücke zum Pisaner Konzil, (Bonn, 1942) Wagner, Karl, ‘Verzeichniss der geistlichen und weltlichen Personen welche aus Ungarn und der einverleibten Ländern dieses Königsreiches, auf der berühmten Kirchenversammlung in Kostnitz zugegen waren’, Ungrisches Magazin, 4 (1787), 236–255 Wahl, James A., ‘Baldus de Ubaldis: A Study in reluctant conciliarism’, Manuscripta, 18 (1974), 21–30 Walther, Helmut G., ‘Pavia und Padua im frühen 15. Jahrhundert: Zur Profilierung zweier Rechtsuniversitäten bei der Ausbildung für die politische Praxis’, in: eds. Jacques Krynen and Michael Stolleis, Science Politique et droit public dans les facul- tés de droit europèennes (XIIIe–XVIIIe siècle), (Frankfurt a.M.: Vittorio Klostermann, 2008), 263–282 ——— ‘Sozialdiziplinierung durch die gelehrten Rechte im Mittelalter’, in: ed. Günther Mensching, Gewalt und ihre Legitimation im Mittelalter, (Würzburg: Königshausen & Neumann, 2003), 26–47 Bibliography 381

——— ‘Spanische und deutsche Kanonisten in Bologna und ihr Dialog über das Imperium’, in: eds. Julio Valdeón Baruque, Klaus Herbers and Karl Rudolf, España y el “Sacro Imperio”: Procesos de cambios, influencias y acciones recíprocas en la época de la “europeización”, siglos XI–XIII, (Valladolid: Universidad de Valladolid, 2002), 151–178 Weizsäcker, Julius, ed., Deutsche Reichstagsakten, (Gotha: Perthes, 1888), VI Werminghoff, Albert, ‘Ein Tractatus de coronatione imperatoris aus dem vierzehnten Jahrhundert’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, 24 (1903), 380–390 Weston, Corinne Comstock and Greenberg, Janelle Renfrow, Subjects and Sovereigns: The Grand Controversy Over Legal Sovereignty in Stuart England, (Cambridge: Cambridge University Press, 2003) Woelki, Thomas, Lodovico Pontano (ca. 1409–1439). Ein Juristenkarriere an Universiät, Fürstenhof, Kurie und Konzil, (Leiden: Brill, 2011) Wolters, Wolfgang, La scultura veneziana gotica 1300–1460, (Venice: Alfieri, 1976) Woolf, Cecil N. Sidney, Bartolus of Sassoferrato. His Position in the History of Medieval Political Thought, (Cambridge: Cambridge University Press, 1913) Würdtwein, Stephanus, Concilia Moguntina, (Mannheim: Academicis, 1766) Zabarella, Francesco, De felicitate libri tres, (Padua: Frambotti, 1655) Zähringer, Conradin, Das Kardinalkollegium auf dem Konstanzer Konzil, bis zur Absetzung Papst Johanns XXIII., (Münster, 1935) Zambarbieri, Teresa, Castelli e Castellani Viscontei per la storia delle istituzioni e dell’amministrazione ducali nella prima metà del XV secolo, (Bologna: Cappelli, 1988) Zanaboni, Guido, Documenti dell’archivio di stato di Pavia, (Pavia, 1968) Zanchin, Mario, Il Primato del Romano Pontefice in un’opera inedita di Pietro del Monte del secolo XV, (Vigodarzere: Progetto editoraliale mariano, 1997) Zanetti, Dante, ‘A l’Université de Pavie au XVe siècle: les salaires des professeurs’, Annales. Économies, Sociétés, Civilisations, 17 (1962), 421–33 Zanotto, Francesco, Il palazzo ducale di Venezia, (Venice, 1861) Zaoli, Giuseppe, Libertas Bononie a papa Martino V, (Bologna, 1916) ——— ‘Lo studio bolognese e papa Martino V (anni 1416–1420)’, Studi e memorie per la storia dell’Università di Bologna, 3 (1912), 105–188 Zdekauer, Lodovico, Lo Studio di Siena nel Rinascimento, (Milan: A. Forni, 1977) Ziegler, ‘Arbiter, arbitrator and amicabilis compositor’, Zeitschrift für Rechtsgeschichte. Romantische Abteilung, 84 (1967), 376–381 Zonta, Caspare, Acta graduum academicorum gymnasii Patavini ab anno 1406 ad annum 1450, (Padua, 1970) Zucchini, Stefania, Università e dottori nell’economia del comune di Perugia, (Perugia: Deputazione di storia patria per l’Umbria, 2008) Index

Aachen 140, 166, 172 Badoer, Peragino da Peraga 85, 296 Acati, Panno 336 Barbara, empress 170 Ad reprimandum 278n Barbarigo, Angelo 156 Adimari, Alamanno 178 Barbaro, Francesco 144, 145 Agincourt, battle of 186 Barzizza, Cristoforo 328 Ailly, Pierre d’ 6n, 187n, 188, 189, 190, 199n, Barzizza, Gasparino 30n, 286, 328n 203, 225 Baysio, Guido de 202n Alano, Enrico 96, 121, 272 Beadles 1, 2, 26, 43n, 62, 63, 72, 80n, 105n, Albergati, Antonio 265n, 266n 145, 240, 290, 293 Albert of Este 210n Beccaria, Alberto 293 Alberti, Benedetto 145n Beccaria, Antonio 82 Alberti, Lorenzo 145n Beccaria, Castellino 62, 80n, 83, 84, 85, 143n Alberti, Riccardo 145n Beccaria, Felicina 143n Alemania, Angelinus de 72n, 293, 319, 319n Beccaria, Giacoba 295 Alemania, Martinus de 72n Beccaria, Giovanina 71, 72, 74, 75, 76, Alexander V 8n, 9, 225n, 231 80n, 82, 83, 84, 85, 86, 265, 290, 291, Alghieri, Dante 175 293, 295, 296, 297, 298, 299, 300, Allegationes 14n, 42, 157, 192, 193, 212, 289n, 320n, 322n, 324, 325, 326, 327, 328, 307 329, 330, 331, 332, 333, 334, 335, 336, Alvarotti, Francesco 1, 2, 35, 85, 95, 96, 145n, 337, 338 145, 149n, 294 Beccaria, Giovanni 293 Alvarotti, Giacomo 145 Beccaria, Johannes Furnario 320 Amberg 207n Beccaria, Lancelotto 80n, 83, 84 Ancharano, Pietro 66, 70, 116, 122, 123, 152, Beccaria, Manfredo 84 153, 178, 229, 235, 301, 302 Beccaria, Mussetto 83, 84, 87, 296, 297, 326 Anguissola: dynasty of 47, 48n, 51, 52 Beccaria, Nicolino 83n Aquinas, St. Thomas 242 Belluno 37n, 144, 207n Aragon 180, 181, 182, 183, 200n Benedict XIII 8, 9, 64, 66, 159, 182, 187, 221, Arbitration 44n, 109, 110, 111, 112, 113, 114 222, 225, 230, 232 Arcelli, Bartolomeo 285n Berg, Adolf, duke of 210, 211, 212, 213, 214, Arcelli, Filippo 286n 224n, 225n Arcelli, Lazzaro 285, 286n, 297, 333 Berg, William duke of 211, 212 Arras, bishop of 274 Berg, William of, bishop of Paderborn 210, 211 Arzignano 44n Berindelli, Francesco 38 Ascoli, Antonio di Rocca d’ 37n Bill of Rights 125n Asola, Frederico de 322 Bindoni, Gasper 207n Asola, Giovanni de 322 Boccaccio 74, 99 Augsburg 254n Bologna 29, 30 42, 65, 66, 67n, 102n, 105n, Aurifici, Branda 325 116, 148, 149, 152, 153n, 177, 246, 258n, Aurifici, Coreto 320, 325, 328 262n, 265n, 279, 289n, 345, 347 Aurifici, Silvester 329 Boncompagni, Troilo 88n Avignon 6, 9, 56, 64, 77n, 171, 256 Boniface IX 8, 156n, 211, 214 Bora, Semperbona 325, 328 Bacharach 211 Borgonovo Val Tidone 77, 78, 285n Badoer, Donina da Peraga 83n, 84n, 85n, Bottrigari, Jacopo 246, 247, 251, 253, 301 296, 325 Bovolenta, Andreas de 330 Index 383

Bracciforti, Marsiglio 49n, 51 Casali, Francesco Senese 348 Bracciolini, Poggio 99, 102, 307 Cassoli, Filippo 55, 97, 98 Brano, Marcus 293, 323 Casteletto in Friuli 142 Brescia 20, 22, 198n, 207n, 255n, 345, 348 Castelgumberto, Caterina 349 Bringeri, Johannes 207n Castiglioni, Cristoforo 55, 59, 62n, 74, 98 Britannico, Angelo 20, 21, 22 Castiglioni, Giovanni 58, 59, 121, 122n, 321n, Bruni, Leonardo 102, 150 346 Budapest 144n Castile 182 Budrio, Antonio da 66, 301, 302 Castione 47, 48n, 50, 51, 52, 292, 317n Buona, slave of Fulgosio and Beccaria 71, Castro, Paolo da 40, 42, 66, 98n, 117, 153, 293, 296, 325 228, 230, 231, 289, 290, 302 Burgundy, Jean sans peur, duke of 269, 270, Caterina of Riva 119, 207n 271, 276 Cerretano, Jacopo 5, 165, 171n, 179n, 198, 199n, 200n C.1.1.0 25n Chareri, Filippo 149 C.1.18.10 63 Charles VI, king of France 188n, 269 C.2.4.6 25n, 63 Chaucer, Geoffrey 99 C.2.4.9 112n Cheese 71, 297 C.2.4.14 110 Ciconia, Johannes 103 C.2.55.1 112 Cigala, Morruele 341 C.2.9.0 139 Cigala, Salvagia 341 C.2.19.11 31 Ciompi revolt 30, 345 C.3.19.0 111n Clem.2.9.1 123n C.4.5.5 54 Clement VII 8, 56 C.6.21.15 117n, 118n Cleregacii, Bartolomeo 318 C.6.25.4 25n Cologne 176, 209, 210, 211, 212, 214, 215, 216, C.6.28.4 25n 217, 223, 224, 225, 229, 230, 242 C. 7.37.2 247, 248n Committee of Faith 269, 271 C. 7.37.3 174, 175, 176, 247, 248n Constantinople 128 C.7.43 26n, 266n Contarini, Nicolò 43, 44, 46n, 103n, 264, C.8.56.0 321n 342 C.9.45.2 26n Conti, Prosdocimo de’ 28n, 71, 101n, 137n, C.9.51.1 166 144, 272, 285, 321, 328 C.12.45.0 274n Cornio, Innocento 88n Caffoni, Zanonio 349 Council of Basle 14n, 162n, 188n, 243, 309n, Cambrai, bishop of 198 310 Camera degli imprestiti, Venice 296, 318, Council of Pisa 9, 64, 103, 153, 155, 178, 326 188n, 189n, 208, 209, 216, 217, 219, 228, Campagna, Simone di 71n 312 Can, Giovanni Giacomo 106 Cremona 79n, 80n Cane, Facino 10, 62, 72, 78, 80n, 83 Cremona, Egidius de 121 Canetulo, Marco 265n, 266n Crociferi 57n, 258n Canosa 286, 287 Cumani, Paolo 293 Capidolista, Gian Francesco 28, 140, 272, Cumis, Paulus de 322 289n Cardinal of Fiesco 148n D.12.2 249n Cario, Oberto del 49n D.18.9 194n Carpaneto Piacentino 317n D.18.10 194n Carrara, Francesco da 85n D.40 228n, 231 Casalserugo 318 D.63.30 245, 250 384 Index

D.65.9 231 Ehinger, Warnero 227n Decembrio, Pier Candido 82n Empire, electoral origins of 241, 243, 244, Descalzi, Niccolò 321 249, 251 Diest, Wilhelm Bishop of Strasbourg 152 Este, Nicolò of 29n, 67 Dig.1.14.3 226, 227 Ester, daughter of Abraham 136n Dig.1.16.6 107n Expenditoribus, Castellano de 343 Dig.1.17.1 173 Dig. 2.14.35 38n Fabri, Christophera 348 Dig. 5.3.19 60n Feltre 37, 37, 43, 46, 65n, 340 Dig. 5.3.25.1 63 Feoydisia 32, 344 Dig.2.1.5 37n, 201, 202n Ferrara 67n, 77n, 87, 278, 279, 280, 282 Dig.2.1.16 202 Filelfo, Francesco 310 Dig.2.4.16 124 Fiorenzuola 290, 293, 317 Dig.2.8.7.2 36n Firmo, Giovanni di 320, 323 Dig.2.13.6 95, 96 Florence 42, 56, 67, 68n, 88n, 102, 116, 138, Dig.2.14.9 191, 192n, 195n, 196, 197, 198 139, 143n, 254n, 277, 285, 299 Dig.2.15.7 111n Florentia, Bartolomeus de 329 Dig.3.3.33.2 197 Forlì 279 Dig.12.2.38 52, 55n Fornari, Agostino 321, 322 Dig.10.2.57 44n Fornari, Giovanni 323 Dig.12.6.8 27n Foscari, Francesco 147 Dig.12.6.23 111n, 112n Francelli, Bartolomeo 339 Dig.13.4.4 111n Franciscans 295n, 296n, 320, 325 Dig.13.7.11.6 21n Franciscans, Third Order of 156, 157, 158, 159 Dig.13.7.43.1 21n Frankfurt am Main 207n Dig.17.1.5 113n, 114n Friuli 2, 79n, 95, 142, 286n, 309n Dig.17.2.76 113n, 114n Fronzola, Roberto 154n Dig.45.1.12.2 55 Fulgosi, Aluisio 50, 71, 286, 290, 292, 293, Diplovatius, Thomas 106 295, 317, 318, 319 Doglioni, Giorgio 207n Fulgosi, Antonio 48, 49, 50, 55, 61n, 69n, Dominici, Giovanni Cardinal of Dubrovnik 144n, 286, 290, 291, 292, 312, 313 205 Fulgosi, Bartolomeo 48, 49n, 50n, 291 Dominicus, Johannes 207n Fulgosi, Branca 48, 49, 51, 55, 69, 71, 77 Donatello 299 Fulgosi, Castellino 48, 50n, 55n, 69n, 291, Donation of Constantine 122, 173, 180, 203, 296n 236, 242, 243, 244, 246, 249, 250, 252, Fulgosi, Caterina 48, 49n, 50n, 51 254, 303 Fulgosi, Caterina wife of q. Oberto 49n Dotti, Antonia 126n Fulgosi, Cristoforo 48n, 50n Dotti, Antonio 127, 128, 132 Fulgosi, Elenora 48, 49n, 50n, 296, 325 Dotti, Diamante 126n Fulgosi, Galluccio 48, 77n Dotti, Dotto 126 Fulgosi, Giorgio 291, 292, 293, 317 Dotti, Elena 126n Fulgosi, Giovanni 48 Dotti, Francesco 126n, 130, 335, 340 Fulgosi, Guglielmo 47 Dotti, Gian Pietro 127, 128, 132 Fulgosi, Jacob 290, 317 Dotti, Paolo 88n, 126, 127n, 280 Fulgosi, Ladislavo 48, 49n, 61n, 69n Dottori, Benedetto 272 Fulgosi, Monaco 48n Dubrovnik 209 Fulgosi, Obertino 48n Durant, Guillaume 118n Fulgosi, Pietro Galucci 48, 49n, 50n Index 385

Fulgosi, Raffaele the younger 82 Innocent VII 8n Fulgosi, Ziliola 49, 293, 323 ius commune 13, 14n, 15, 16, 43, 109, 115, 127, Furlano, Johannes 325 131, 278, 284 Ivrea, Pier Paolo d’ 286 Gaeta, Goffredo di 88n, 254n Ivrea, Pieretto d’ 286 Gambling 68, 70, 89, 90, 91, 92, 103, 104, 138 Garimberti, Dorothea 55n Jesenic, Jan z 204n Garimberti, Ugolino 55n Jewellery 71, 293, 297, 298, 337n Genoa 31, 32, 63, 64n, 85, 96, 146, 254n, 339, Jews 135, 136, 137, 278, 279, 280, 281, 282, 283, 341, 344, 348 284 Gentilibus de Tertona, Gracino fil. Bonifacio Joanna, Queen of Naples 56, 287 de 71n Johann II., Archbishop of Mainz 188, 198, Gerson, Jean 187n, 227n, 270, 271, 273 199, 216n, 288 Gezo, Bartolomeo 328 Johann II., Bishop of Würzburg 198, 199 Ghibellines 84 Johannes III of Straubing 288 Giotto 101n Johannes, servant of Beccaria 328 Giovanni q. ser Jacobi of Macerata 88n John XXIII 8n, 9, 29n, 30, 66n, 141, 148, 149n, Giunctae, Giovanni 207n 150, 152, 159, 160, 163, 165, 167, 170, 178, Giuntini, Stefano 259, 260, 261, 262, 263, 182, 183n, 187, 188n, 195n, 196n, 198, 204, 264, 266 205n, 208, 209, 210n, 211, 214, 216, 217, 218, Gonzaga, Francesco 61 219, 220, 221, 223, 224, 225, 226, 227, 228, Gorgonzola cheese 71 229, 230, 231, 232, 233, 234, 251, 252, 254, Gozzadini, Gabbione 29n 255, 256, 257, 258, 260, 262, 263, 265n, Gozzadini, Nanne 29n 266, 269, 270, 299, 302, 304, 306, 313 Grande Compagnie des Libraires 22, 23 Jousting 43, 44, 84, 85n, 103n, 264, 342 Grazioli, Francecso of Imola 37, 340 Just war 181n Greco, Bartolomeo 293, 320 Gregory XII 8, 9, 64, 66, 155, 160, 164, 187, Kues, Nikolaus von 71, 243, 310 204, 206, 208, 209, 210, 212, 214, 216, 217, 218, 221, 222, 223, 225, 228n, 230, 231, Lampugnano, Uberto da 59, 60n, 239n, 251n 232, 234, 254, 305 Lante, Agostino del 153n, 177n, 272 Grillo, Antonio 341 Lateran IV, council of 280 Gropparello 47, 48, 290, 292, 317n Laudensis, Martin 294n Gubbio, Giovanni da 137, 138, 139, 142 Lavario, Paulus 322n Guelfs 9, 47, 48, 51, 77, 84, 85, 229 Leonis, Elias q. 136n Gueresi, Francisco 339 Lercari, Antoninico 32, 344 Guinigi, Paolo 39, 40, 41, 259, 265n Lercari, Constantino 32, 344 Licet iuris 175, 248 Haec sancta 188n, 255, 258n, 259, 263, 265n Lignano, Giovanni 7n, 65, 94 Henry V, King of England 186 Ligriarie, Lodivico a 322 Henry VII, emperor 274, 276, 277 Lizet, Pierre 23n Horses 96, 97, 149n, 150, 254n; Stabling Lodi 109n, 178, 252, 253 72n, 319n Louis of Anjou 57 Hus, Jan 153n, 204n Lucan, Marcus Annaeus 168, 181n Lucca 38, 39, 40, 41, 42n, 43, 44, 46, 225n, Imola, Joannes de 40, 42 259, 261, 262, 263, 265, 266, 340, 342, Inghirami, Gimignano 14n, 161n 348 Innocent III 280, 281, 282, 283 Ludwig IV, emperor 175, 248 386 Index

Lusiana, Florinus de 96 Muggia 79n Lyon 21, 22, 23, 207n Münster 26

Macerata 159n Naples 56, 88n, 287 Machiavelli 270n Naples, Ladislas of 155n Madrid 29, 32 Naples, Robert of 274 Maffei, Antonio de 148n Navarre 182 Malatesta, Carlo 155, 160, 204, 205, 206, 210, Niccolò, servant of Fulgosio and Beccaria 223 293, 319, 320 Malkaw, Johannes 211 Nicelli, Giovanna 82 Malvicini di Fontana, Bartolomeo 54, 61, 77 Niem, Dietrich von 224, 242n, 273 Malvicini di Fontana, Dondacio 77n Non obstantium clause 125, 128, 129, 130, 131, Malvicini di Fontana, Mabilina 54, 55n, 76, 132, 280, 282 77, 78, 81, 82 Nov. 86.1 111n Malvicini di Fontana, Mabilina wife of Nov. 89.15 124n Dondacio 77n Novara, Pietro di 116 Maneoli, Elias f. 136n Nure valley 47, 290, 292, 317n Manfredi, Guido 259, 260 Mantua 61, 279n, 339 Obedience 2, 7, 8, 9, 154n, 155, 156, 157, 159, Margherita, slave of Fulgosio and Beccaria 160, 161, 182, 183, 205, 209, 216, 217, 221, 71, 293, 296, 325 222, 223, 224, 225 Maria, slave of Fulgosio and Beccaria 296, Ockham, William of 188n 325 Omodei, Signorino degli 121 Marostica 22n Orléans, Louis I, duke of 268, 269, 270, 273, Marostica, Jacopo di 319, 323 277, 278 Marra, Margherita della 286, 287 Orsini, Francesco 287 Marsilius of Padua 188n, 242 Orsini, Giordano 140 Martin V 8, 278, 279, 280, 281, 284, 347 Otto III, emperor 241, 242 Mattesiliani, Matteo 66 Ovid 52, 53n, 54, 234, 311 Mazzi, Ambrogio 63n Ozneriate, Bernardo di 322 Meda 339 Ozzola Agostino d’ 78, 79n, 80, 81, 84, 343 Medici, Arcangelo de’ 26, 27n, 72, 290, 293, Ozzola, Giovanna d’ 78, 343 295n, 323 Merano 150 Paderborn 210 Merlara, Blasio 321, 323 Padua 1, 2, 3, 5, 10, 12, 14n, 19, 26, 27, 28, 30, Merseburg 198n 33, 34, 35, 36, 37, 41, 42, 43, 45, 54, 57, Michele q. Simone, Joanna of Montagnana 59n, 60n, 61, 63, 65, 67, 68, 70, 71, 72, 74, 119, 120, 121, 122, 134, 135 79n, 80n, 82, 85, 86, 90, 91, 92, 94, 96, Milan 9, 10, 30, 47, 48, 56, 59, 60, 77, 79n, 80, 98n, 101n, 102, 103, 105, 106, 109, 116, 117n, 117, 121n, 140n, 143, 151, 172, 174, 179, 122n, 124, 126n, 127, 135, 137, 138, 142, 143, 286n, 322n, 325n, 345 145, 146, 147, 148, 149, 152, 154, 160, 163, Moceni, Tommaso 117n 164, 167, 168, 176, 180, 181, 183, 191, 192, Moers, Dietrich von Archbishop of Cologne 193, 194, 196, 200, 202, 240, 246, 254, 257, 210, 211, 214, 217 259, 261, 262, 263, 264, 265, 266, 267, Monte, Pietro del 286, 309, 310 271, 272, 279, 285, 286, 287, 288, 289, Montechino 47, 290, 292, 317 290, 291, 294, 295, 296, 297n, 298, 299, Morosini, Bartolomeo 148 300, 310; Arena chapel 101n, 144; Motu proprio clause 126, 130 Chiesanuova 74n; fire of 1420 135n; Index 387

fraglia cappellanorum 328; fraglia dei Procurators 4, 12, 39, 49n, 50n, 51n, 55, 59, notai 327; fraglia di Santa Maria della 60, 61n, 83, 122, 148n, 151, 152, 153n, 180, carità 327, 328; fraglia di Sancta 188n, 190, 192, 197, 198, 199, 200, 201, Maria Colombini 327; hospital of 205n, 212, 312, 313 Santa Maria Nuova 74n, 296, 325; Professional Ethics 17, 18 Porta Savonarola 74, 318n; St Pulka, Petrus de 199 Nicolaus, parish of 296, 298, 319, 324 Panormitanus 45n Qui sint rebelles 274, 275, 276, 277, 278, 302 Paona, Andrea de 336 Quidort, John 175 Paris 21, 256, 269 Quinto, Nicolò de 119, 120, 134 Parma 55n, 70, 79n, 143, 323n, 346, 347 Pavia 26n, 48, 52, 55, 56, 57, 58, 59, 61, 62, 63, Raimondi, Elias 322n 72, 74, 77, 78, 79n, 80, 82, 83, 84, 85, 98, Raimondi, Masiolus 322n 102n, 109, 115, 121, 151, 239n, 296, 300, Raimondi, Petrus 322n 310, 321n, 341, 343; San Pietro in Ciel Raimondi, Raffaele 20, 21, 38n, 40n, 45n, d’Oro 84n 67n, 79n, 96, 116, 121, 135n, 144n, 149n, Peciae 1, 23 257, 265, 266, 272, 286, 286n, 288, 289n, Pemelli, Bertono a 114, 343 310, 321, 322n, 343 Pendragon, Nicolò 38, 39, 41, 43 Raimondi, Simon 322n Pergamo, Dionisius de 322 Ravenna 209 Perigolo, Franciscus 329 Raymundi, Gabriele 102n Perugia 116 Real Obedience 97n, 161n, 223, 224, 266, 267 Perugia, Gasper de 152n, 271 Regensburg 161n, 198n Perugia, Simon Quattropani de 153, 177, 178, Regensburg, Andreas of 5n, 200n 220n, 239, 252, 258n, 271 Regio, Taddeo de 289n Petit, Jean 152, 193n, 258n, 268, 269, 270, 271, Rena, Giovanni 320 273, 274, 275, 276, 277, 283, 284, 302, 313 Repetitiones 3n, 22n, 25, 63, 343 Piacenza 9, 47, 48, 49, 50, 51, 52, 54, 55, 59, Révigny, Jacques de 176 60, 61n, 69n, 74, 76, 77, 78, 82, 84, 85, 97, Riga 198n 144n, 151, 285, 286n, 290, 291, 296, 312, Riglio valley 47, 50 323n, 341; Saint Donnino quarter 49 Rimini 155, 210 Pietrasanta, Francesco bishop of Luni 260, Rimini, Simon de 323 261, 262 Ritterhusius, Conrad 52n Piombino 65, 94 Riva 47, 50n, 290, 317n Piombino, Benedetto da 348, 349 Riva di Trento 119, 120, 121, 122, 134, 207n, Piovene 339 280, 283 Piro, Henri de 152, 180 Robecco 84 Pistoia 38, 39 Rome 6, 56, 57, 69, 88n, 116, 132, 140n, 155n, Plague 29, 59, 62n, 74, 85, 86, 285, 288, 290, 169n, 174, 175, 176, 177, 203, 215, 217, 241, 295, 321n, 322n 244, 246, 248n, 279, 312 Polenton, Sicco 144 Rome, Ludovic of 67, 68n Pontano, Lodovico 309n Rosciate, Alberico da 175, 176, 177, 202, 204n, Ponte dell’Olio 317n 247, 248, 250 Pontremulo, Giovanni de 39n Roselli, Johannes 207n Poor Clares, Order of 296n Rossato, Giovanni di 322 Porta, Ardicino della 152n, 153, 223n, 272 Rota romana 14n, 64, 152, 154, 204, 207, 208, Porte, Hugues de la 21, 23 213, 214, 215, 216, 217, 224, 225 Prague 59n, 172, 206n, 209, 239n, 251n Rotuli 3, 106 388 Index

Rouellis, Ambrosius de 207n Spinelli, Luca 102n Rouellis, Bernardinus de 207n Spinelli, Nicolò 55, 56, 57, 59, 105 Rougemont, Thiébaut de 164, 165, 166, 167, Stanga, Jacobus a 319 198n, 270n Stationers 1, 27n Rubieri, Jacopo de 1n Steno, Michele 117n Stephani of Brescia, Jacobus fil. 71n Saarwerden, Freidrich von 210, 213, 214n, Straubing 286, 287, 288 217, 224n Sulinarius, Antonius 323 Saliceto, Bartolomeo di 7n, 116, 153n, 346 Saliceto, Jacobo di 265 Taiapetra, Jeronimo 298, 337n Saliceto, Riccardo di 94 Teck, Ludwig of 79n Salzburg 198n Tellarolus, Franciscus 329 Samperini, Julianus 323 Tellarolus, Matheus 329 San Gimignano, Domenicus de 294n Teramo, Simon of 154n, 271, 272n San Gimignano, Nellus de 40, 42 Theft 65n, 72n, 94, 319n Santa Giuletta 83, 84 Toul 198n Sassoferrato, Bartolus of 53, 111, 112, 113, 114, Traversari, Ambrogio 307 115, 202, 247n, 274, 275, 276, 277, 278n, Trier 210 292, 301, 311 Trieste 79n Savona 64, 66, 153n, 228n Trinquet 88 Savonarola, Giovanni Michele di 290n, 297, Trissino, Antonio de 45n 328n, 330 Trissino, Enrico de 44, 45, 289; Murder of Schlecht, Reinbold 171n 44n, 45n Schönfeld, Johann 207n Trissino, Enrico q. Federico 44n Schudelario, Giovanni 320 Trissino, Gasper 349 Scribani, Giovanni 152, 153n, 180, 312 Trissino, Lodovico de 44n Scrovegni: family of 101n, 141 Trissino, Niccolò de 44, 45, 46 Seneca, Lucius Annaeus 168, 301 Trissino, Nicolinò de 44n Servain, Claude 22n Trissino, Pasino de 44n Seu d’Urgell 26 Trissino, Pax de 44n Siena 22n, 63, 64, 65, 66, 67, 82, 85, 88n, 95, Trissino, Pietro de 44n, 45n 207n, 214, 215, 232, 341, 343, 348 Triumphus, Augustinus 242 Sigismund, emperor and king of the Romans Trivisio, Johannes de 328 9, 10, 37, 84, 119n, 138, 140, 141, 142, 143, Turellini, Simone 38, 39, 40, 41n, 265 147, 148, 160, 164, 165n, 166, 167, 169, 170, 171, 172, 173, 174, 175, 176, 178, 179, 181, 182, Ubaldi, Angelo degli 112, 114, 118n, 124, 125, 183, 186, 198, 199, 205, 206, 211, 226, 229, 129, 131, 133, 175n 239, 240, 241, 243, 244, 251, 252, 253, 274, Ubaldis, Baldus de 51, 59, 98, 110, 111, 112, 124, 288, 301, 302, 304, 305, 341, 349; crowns 175n, 275, 277 worn by 167, 168, 169, 171, 172, 173, 174, Urban VI 7n, 8n, 56 175, 176, 177 Urbino 88n Simony 226, 227, 228, 256, 339 Ursati, Johannes 328, 330, 335, 336 Slaves 12, 71, 76, 293, 296, 342 Soest, Konrad von 161n, 233n Valla, Lorenzo 53, 236, 304, 310, 311, 312 Soranzo, Francesco 148 Valla, Luca 312 Soranzo, Gabriele 94n, 103n Vallegiani de Mortara, Giovanni 62, 63, 72, [Soranzo], Gabriele 101, 102, 103, 347 145 Specialis, Guasperinus 322, 323 Vannis, Masinus 348 Index 389

Veggiola 47, 48, 49, 50, 51, 52, 55, 84, 290, 317 Visconti, Galeazzo 51 Veggiola, Gerardo de 50n, 55n Visconti, Gian Galeazzo 10, 61, 84 Vener, Job 233n Visconti, Gian Maria 60, 62, 80n, 117n Venice 2, 10, 21, 26, 27, 28, 30n, 38, 43, 45n, Voghera 84 56, 57, 62, 64n, 65, 70, 85, 86, 87, 93, 100, Vrie, Dietrich 5n, 171n 101, 102, 108n, 117n, 126n, 127, 128, 137, 138, 139, 140, 141, 142, 147, 148, 154, 163, War of Eight Saints 47 169n, 183, 207n, 251, 257, 262, 264, 285, Wenzel, emperor 119n, 120n, 172 286n, 296, 298, 309n, 325n, 342, 344, Westfalen, Marshall of 214n, 224n 349; Santa Lucia, shrine of 22n, 100, Wittelsbach, Ernest 287, 288 101 Wittelsbach, Heinrich 287, 288 Verona 10, 109, 111n, 112, 113, 114, 115, 119, 122, Wittelsbach, Ludwig 287, 288 123, 126n, 127, 128, 131, 132, 135, 148, 149, Wittelsbach, Wilhelm 287, 288 150, 160, 255n, 280, 282, 340, 341, 343, Worms 216n 344, 345, 347 VI.1.6.17 245n X.1.3.22 113n, 114n VI.3.4.23 124n X.1.29.32 57 via cessionis 228, 229, 232, 233, 302 X.5.6.15 280 Vicedomini, Guiglelmo 49n Vicenza 10, 44, 45, 46n, 58n, 59n, 95, 96, 145, Zabarella, Francesco 74, 101, 102, 103, 116, 160, 255n, 321n, 340, 341, 342, 343, 344, 346, 235, 255, 258, 263, 269, 272n, 346, 347 347, 349 Zabarella, Pietro 149n Vienne 198n Zacchi, Marco 27n Vigonza 149n Zajíc, Zbyněk Archbishop of Prague 209n Villa, Nicolò 20, 22n Zazzi, Gualterino 58 Vimercate, Taddeo da 137, 138, 140, 143, 144n, Zena 47, 291, 292, 317 287, 288 Zenari, Elisabeth 149n Virgil 52, 53n, 54, 311 Zenari, Francesco 149 Visconti, Bernabò 30, 52n, 345 Zovanetto, Victor de 37 Visconti, Filippo Maria 62, 79n, 80n, 83, Zvole, Kuneš ze 214, 215, 217 117n, 292