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THE CATHOLIC UNIVERSITY OF AMERICA Madmen and Lawyers: The Development and Practice of the Jurisprudence of Insanity in the Middle Ages A DISSERTATION Submitted to the Faculty of the Center for Medieval and Byzantine Studies School of Arts and Sciences Of The Catholic University of America In Partial Fulfillment of the Requirements For the Degree Doctor of Philosophy © Copyright All Rights Reserved By Brandon T. Parlopiano Washington, D.C. 2013 Madmen and Lawyers: The Development and Practice of the Jurisprudence of Insanity in the Middle Ages Brandon T. Parlopiano, Ph.D. Director: Kenneth Pennington, Ph.D. The twelfth century witnessed a renaissance of the scientific study of law in Western Europe. Students flocked to the nascent universities to study the canon law of the Church as well as ancient Roman jurisprudence. These two bodies of law and the layers of commentary that built up around them formed the ius commune, the common legal culture and jurisprudence that thrived in Europe for centuries. Scholars have long noted the importance of the ius commune in discussions of political authority, ecclesiology, and rights, as well as a myriad of other legal issues, but the jurists of the ius commune also possessed a sophisticated reflection on the problems raised by insanity in law. As medievalists begin to examine the cultural meanings and social realities of disability and madness, it is particularly important to understand the ways in which jurists conceived of the relation between the insane and society. Using the glosses, lectures, and commentaries of the ius commune, this dissertation pursues the figure of the furiosus, the insane person, across multiple areas of jurisprudence from the twelfth to the sixteenth centuries. It examines important questions that still plague jurists today. How can one prove insanity in court? To what extent are the insane criminally responsible? What rights do the insane possess while under guardianship? Can the insane consent or possess agency in any way? By answering these questions, this dissertation will show that the medieval jurisprudence concerning insanity was sophisticated, diverse, and responsive to contemporary needs. In order to test the ideas of the jurists against a more practically oriented source base, this dissertation also examines a number of fourteenth-century cases involving insanity found in the Archivio di Stato of Venice. Ultimately, this research shows that the insane were not a simple marginal group during the Middle Ages, but one integrated into the larger social world. It also illustrates the importance of jurisprudence for further studies of disability and marginality. This dissertation by Brandon T. Parlopiano fulfills the dissertation requirement for the doctoral degree in Medieval and Byzantine Studies approved by Kenneth Pennington, Ph.D., as Director, and by Katherine L. Jansen, Ph.D., and Caroline R. Sherman, Ph.D. as Readers. _________________________________ Kenneth Pennington, Ph.D., Director _________________________________ Katherine L. Jansen, Ph.D., Reader _________________________________ Caroline R. Sherman, Ph.D., Reader ii for Sarah Amentes pariamus charitatem iii TABLE OF CONTENTS Acknowledgments .…………………………………………………………………………….. v A Brief Note on Terminology and Names …………………………………………………….. vii Introduction ……………………………………………………………………………………. 1 Chapter 1: Furor et dementia: Concepts and Vocabulary …………………………………….. 31 Chapter 2: “Est difficile probare furorem”: The Proof of Insanity in Medieval Jurisprudence 90 Chapter 3: “Satis ipso furore punitur”: The “Insanity Defense” in the Middle Ages ………... 176 Chapter 4: Commodum furiosi: The Guardianship and Care of the Insane …………………… 249 Chapter 5: Fingitur consentire: Consent, Volition, and the Legal Agency of the Insane …….. 305 Conclusion …………………………………………………………………………………….. 335 Bibliography …………………………………………………………………………………... 346 iv ACKNOWLEDGMENTS Since coming to The Catholic University of America, I have become personally and professionally indebted to a number of people, especially the faculty of the Center for Medieval and Byzantine Studies. In particular I would like to thank Professors Frank Mantello, Katherine Jansen, Lilla Kopàr, Lourdes Alvarez, Therèse-Anne Druart, Stephen Wright, and Jennifer Davis. Mrs. Lani Mullaney and Mrs. Lola Lastrapes have answered innumerable questions and helped me navigate through the program. A number of grants enabled me to conduct research, without which this dissertation would not have been possible. Stipends from the Hill Museum and Monastic Library and the Knights of Columbus Vatican Film Library allowed me to consult crucial manuscripts on microfilm. Moreover, the generosity of the staff at both institutions, especially of Mrs. Julie Dietman and Dr. Matthew Heintzelman of HMML, and Mrs. Barbara Channell and Dr. Susan L’Engle of the VFL, made research an enjoyable and rewarding experience. A grant from the Gladys Krieble Delmas foundation allowed me to spend three wonderful months working in the Archivio di Stato of Venice. I would especially like to thank Dr. Reinhold Mueller for the support and guidance in navigating this source material. My thanks also go to Dr. Kurt Martens for permitting me to include material published as “The Burden of Proving Insanity in the Medieval Ius Commune,” The Jurist 72 (2012): 185-213. The members of my reading committee, Professors Katherine Jansen and Caroline Sherman, have offered advice, encouragement, and insightful comments through the course of the preparation of this dissertation; I am greatly indebted to them. My deepest gratitude goes to the director of this dissertation, Prof. Ken Pennington, who has provided an unbelievable depth of personal and institutional support from the moment I v stepped on campus. He has been an important role model as a scholar and instructor, and a true Doktorvater, without whom this project would not have been possible. Finally, I must thank my family, especially my parents, grandparents, and my wife Sarah. They did not question the wisdom of my desire to pursue a degree in medieval studies but gave their full and unconditional support. They continued to believe in me when I did not believe in myself. Their love has made this and so much more in my life possible. vi A BRIEF NOTE ON TERMINOLOGY AND NAMES Throughout the dissertation I use the terms insanity and madness as my standard terms for mental difference. I avoid the term mental illness because of its medical connotations. “Insanity” still retains a legal flavor; in most jurisdictions in the United States the verdict “not guilty by reason of insanity” still exists. Insanity and madness are the best English words to render the general concepts of mental incapacity employed by the jurists of the ius commune. As for the jurists themselves, because Latin was the lingua franca of the medieval universities and the linguistic medium for the writings of the jurists, I have rendered their names in Latin except where common usage dictates otherwise (e.g. Gratian, Huguccio, Stephen of Tournai). vii INTRODUCTION In May, 2008, Rev. Daniel Walz, the parish priest of the Church of St. Joseph in Berth Minnesota filed a temporary restraining preventing thirteen-year old Adam Race from coming to church. Adam has a form of autism and is prone to anxiety attacks. Rev. Walz alleged that Adam’s behavior moved beyond mere distraction into the realm of physical danger, involving hitting children, knocking down the elderly, spitting, public urination. Rev. Walz contended that Adam's behavior was “destructive and dangerous,.. [and] increasingly difficult for his parents to manage.”1 Adam’s mother countered that such claims were exaggerated. “’My son is not dangerous,’ Carol Race said. The church's action is ‘about a certain community's fears of him. Fears of danger versus actual danger.’”2 Adam’s family, in particular his mother Carol, fought the restraining order, first by defying it and then by challenging it in court. The restraining order was upheld, and the Races began attending a different parish. The barring of Adam from attending Mass and subsequent legal battle prompted me as a young graduate student to go to the sources of medieval canon law, particularly Gratian’s Decretum. The striking thing was not the level of difference but the similarity. Traditional historiography has trained us to think of the Middle Ages as a foreign place when discussing mental illness, partly as the result of the history of madness being told from a medical perspective. This view emphasized the Middle Ages as a time that, at best, clung to the humoral theory of the ancients, and, at worst, was dominated by ideas of sin and possession.3 Michel 1 Dave Kolpack, “Judge Oks Keeping Autistic Boy from Church,” USA Today, July 1, 2008, accessed March 20, 2013, http://usatoday30.usatoday.com/news/religion/2008-07-01-autistic-church_N.htm. 2 Ibid. 3 E.g. Gregory Zilboorg, A History of Medical Psychology (New York: Norton, 1941). For a modern critique of Zilboorg, see Stephen Harper, Insanity, Individuals, and Society in Late-Medieval English Literature: The Subject of Madness, Studies in Medieval Literature 26 (Lewiston: Edwin Mellen, 2003), 3-7. 1 2 Foucault offered another perspective. Whatever its problems as a history (and there are many), Foucault’s Folie et Deraison: L’Histoire de la Folie à l’âge classique unmoored madness from its isolation as a primarily medical topic and set it in a much wider cultural context.4 Despite his importance for any study of madness (H.C.

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