The Political Philosophy of Franciscus Zabarella As Seen in His Public Addresses and Other Works

Chapter 2 The Political Philosophy of Franciscus Zabarella as Seen in His Public Addresses and Other Works

Thomas E. Morrissey

Franciscus Zabarella had a distinguished career as a professor of canon law first in Florence (1385–90), and then for the most part in Padua (1390–1410). 1 He then went on to exert a major influence in bringing about the summoning and assembling of the Council of Constance.2 Once at Constance he was a dominant presence in all the events at the council until his death on Septem- ber 26, 1417, which came only a few weeks before the council was able to end the Great Western Schism by electing one person as pope to be accepted by all, thus bringing about the unity in the Latin Western church for which Zabarella had struggled for many years.3 The process by which this unity was achieved revealed what we might describe as the political philosophy of Zabarella,

1 A detailed look at Zabarella’s career has been amply provided in Dieter Girgensohn, “Fran- ciscus Zabarella aus Padua: Gelehrsamkeit und politisches Wirken eines Rechtsprofessors während des grossen abendländischen Schismas,” Zeitschrift der Savigny-Stiftung für Rechts- geschichte, Kanonistische Abteilung 79 (1993), 232–77; and Thomas E. Morrissey, “Ein unruhig- es Leben: Franciscus Zabarella an der Universität von Padua (1390–1410), Die Welt Nikolaus von Kues vorfand,” Mitteilungen und Forschungsbeiträge der Cusanus Gesellschaft 24 (1998), 5–40. The latter article has been republished in Morrissey, Conciliarism and Church Law in the Fifteenth Century: Studies on Franciscus Zabarella and the Council of Constance (Variorum Collected Studies Series) cs 1043 (Farnham: 2014), henceforth, Morrissey, Conciliarism and Church Law. Still useful are two earlier studies, Gasparo Zonta, Francesco Zabarella (1360– 1417) (Padua: 1915), and August Kneer, Kardinal Zabarella (Franciscus de Zabarellis, Cardinalis Florentinus 1360–1417): Ein Beitrag zur Geschichte des grossen abendländischen Schismas, vol. 1, PhD dissertation, Münster, 1891. 2 Thomas E. Morrissey, “Cardinal Franciscus Zabarella (1360–1417) as a Canonist and the Crisis of his Age: Schism and the Council of Constance,” Zeitschrift für Kirchengeschichte 96 (1985), 196–208, now also in Morrissey, Conciliarism and Church Law, viii, and idem, “The Crisis of Authority at the End of the Fourteenth Century: A Canonist’s Response,” Mediaevalia 9 (1983), 251–67. 3 Thomas E. Morrissey, “Emperor-Elect Sigismund, Cardinal Zabarella and the Council of Con- stance,” Catholic Historical Review 69 (1983), 353–70; idem, “The Call for Unity at the Coun- cil of Constance: Sermons and Addresses of Cardinal Zabarella,” Church History 53 (1984), 307–18; and idem, “ ‘More Easily and More Securely’: Legal Procedure and Due Process at the Council of Constance,” in Popes, Teachers and Canon Law in the Middle Ages: Festschrift for Brian Tierney, eds. James R. Sweeney and Stanley Chodorow (Ithaca, N.Y.: 1989), pp. 234–47.

© Koninklijke Brill NV, Leiden, 2019 | DOI:10.1163/9789004382411_ 003 16 Morrissey which he shared with a good number, but not all, of his contemporaries and participants at the council. His ideas on government and the relations between a leader or ruler and the body which he governed were articulated on a number of occasions before the Council of Constance, as well as during its proceed- ings. Since Zabarella had in his studies achieved a doctorate in both laws (civil and canon) and was often responding to questions and situations in either the civil or the ecclesiastical sphere, it is clear that he freely moved back and forth between the two areas and often transferred ideas and principles from government in civil society to the comparable function in the Church, and vice versa.4 He clearly had a strong idea of what a good leader should be like and how he should act, as well as what the community should be like, what the duties of each part were, and the limitations on the exercise of power and authority by the entity on the top and by the subjects within that body. Less-known sources of Zabarella’s thinking can be found in the number of addresses and writings he composed during his busy life as a teacher and advisor and in which he expressed his thoughts on officers and their duties.5 Besides these there is an interesting statement by Zabarella which we might find quaint, since his ob- servation says as much by what it does not say as it does by what it asserts. In his commentary on the Clementinae, Zabarella took up the role of the emperor as advocatus ecclesiae.6 He stated that it was the duty of the emperor to defend

All three of these are now in Morrissey, Conciliarism and Church Law, vi, vii, and ix, respec- tively. 4 One instance of this was when Zabarella was asked about the legality of the deposition of Wenzel as King of the Romans by the imperial electors in 1400 on the grounds of his failure to fulfill the duties of his office. Zabarella supported and defended their action in a consilium which Heinrich Finke cited over a century ago, “Ein Gutachten Zabarellas über die Abset zung des römischen Königs Wenzel,” Mitteilungen des Instituts für österreichische Geschichts- forschung 11 (1890), 631–33. 5 The four most prominent of these are: Zeitz Stiftsbibliothek, folio 48; Stift St Paul in Lavanttal (Austria), paper 31/4; Vienna, Österreichische Nationalbibliothek, cod. lat. 5513; and Pom- mersfelden, Graf von Schönborn Schlossbibliothek, 168. They will henceforth be referred to as Zeitz, St Paul, Wien, and Pommersfelden in the notes. 6 The attribution of this title advocatus ecclesiae to the Holy Roman Emperor had a long history in canonistic circles and is found often in their writings. It therefore appears often in Zabarella’s legal animadversions, and it was the basis for his working with Emperor-Elect Sigismund to make the Council of Constance happen. But at the Council of Constance in 1417, when disputes and controversies reached a high point on exactly what this position entailed, Zabarella broke with the emperor and denounced what he saw as an abuse of his power and an attempt not to guide and protect the Church, but rather to dominate the pro- ceedings at the council and force it to conform to his plans and desires. On this denouement of their relationship see Morrissey, “Emperor-Elect Sigismund,” pp. 355–61, 365–70, and now also Ansgar Frenken, “Römische König und Kurfürsten auf den spätmittelalterlichen Gener- alkonzilien: Stellung, Einflussnahme und Bedeutung der führenden politischen Kräfte des