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Volume 7 Number 2 Volume 7, Spring 1961, Number 2 Article 6

Development by the Medieval Canonists of the Concept of Equity

William F. Cahill

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This Article is brought to you for free and open access by the Journals at St. John's Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. DEVELOPMENT BY THE MEDIEVAL CANONISTS OF THE CONCEPT OF EQUITY

WILLIAM F. CAHILL*

V ERY MANY CLERGYMEN sat as judges of the King's Court from the time Henry II established it as a judicial body distinct from the Council, until the clergy, in belated obedience to papal commands, with- drew from the bench during the reign of Richard 11.1 Their departure 2 from the Court marked the end of "the creative age of our medieval law." From the reign of Henry III until that of Henry VIII, nearly all the Chancellors and most of their Masters were priests or bishops.3 In this period, the Chancery was transformed from an executive bureau to a judicial organ complementing the law courts. The philosophy of law which these men learned in their clerical studies, and the canonical system in which they had their first experiences as , must have influenced their conduct as judges in the King's Court. The influence must have had greater effect in the Chancery, where it was not so strongly opposed by the pressures of class and national customs, sheriff's routine, the magnate's resentments and the legisla- ture's jealousies. Further, the ecclesiastic acting as Chancellor was operating in his own line of country. The canonical judge, the bishop of a , or the delegate of the diocesan bishop or of the , enjoyed powers and felt concerns which were broader than those of a judge whose chief business was to resolve controversy between contenders. He was charged to look after the welfare of the community and the salvation of the souls of individual men. Sin, the conscious breach of the rules of virtue, was to him the greatest of evils, and so he had to give much attention to the intent, the good faith or bad faith, with which men acted.

B.A., LL.B., J.C.D.; Priest of the Diocese of Albany.

1 SPENCE, THE EQUITABLE JURISDICTION OF THE COURT OF CHANCERY 107, 113-15; and see Decretalium Gregorii IX, c. 3, X, "Ne clerici vel monachi secularibus negotiis se immisceant," II, 50. 2 1 POLLOCK & MAITLAND, THE HISTORY OF 133 (2d ed. 1899). 3 SPENCE, op. cit. supra note 1, at 347. CONCEPT OF EQUITY

Yet he had to maintain the good order concept of equity, we shall have to begin of the external community of Christians, with Hildebrand's reform of Church disci- so that he must limit the immunities of pline after he became Pope Gregory VII good faith when it trespassed upon good in 1073, and go forward to Thomas order. He had some share in the legislative Aquinas' teaching and writing, between 1254 and 1274. In this period, which runs roughly from the time of the Conquest to the early years of Edward I, a philosophy of equity and law was developed by the canonists and formulated definitively by St. Thomas. Gregory himself, almost immediately after he began his reform of the Church, perceived that the of reform might have the effect of stopping, in most of Europe, the chief works of the Church. If the decrees had been enforced strictly, which excluded from exercise of the ministry priests whose or whose ordaining prelates were tainted with , Rev. William F. Cahill or whose appointments to ecclesiastical office had been made by lay lords, or whose power of the Church, but it was more sig- lives were stained by concubinage, few nificant that he had power to dispense indi- priests would have retained authori- viduals from their duty to observe many of zation to preach the Gospel or to administer the Church's . He had executive power the Sacraments. Men would lack teachers to act on his own motion and to compel of God's truth and ministers of His grace. obedience by penalties. He was not only An untainted cleric could "scarcely be permitted, but even urged, to avoid formali- found," for those which the decrees would ties in procedure. exclude from exercise of the ministry were 4 It seems to me that no other single aspect innumerable. of the medieval ecclesiastic's character had The decrees were not always rigorously so much effect upon his thought and con- applied. Penitent and reformed concu- duct in the Chancery as did his philosophy binaries were absolved, men validly but of equity. His notion of what equity is, unlawfully ordained, and men who had and of how it ought to be used in administer- received lay investiture were left in charge ing the law, was, I think, most fundamental of parishes, and the bishops forbore to in his development of the Chancery juris- laymen who received the Sacra- prudence. All of the rest of the lore and ments, in good faith or out of necessity, practice he learned in the Church and from the hands of priests censured by the brought to the Chancery was ancillary to this philosophy. 4 See BRYs, DE DISPENSATIONE IN1URE CANONICO To trace, even briefly, the churchman's 63 (Bruges, 1925). 7 CATHOLIC LAWYER, SPRING 1961 decrees. Gregory's successor, Urban II, spontaneously. 7 Ives, Bishop of Chartres wrote, "Ecclesiastical authorities judge from 1091 to 1116, advised that rigor many things strictly according to the tenor and mercy be balanced according to need, of the canons; they patiently tolerate many so that the strong be not enervated by things because of the need of the times, , nor the weak broken by 8 and they exercise restraint by passing over severity. many things on account of people's charac- In the time of Bernaldus and Ives, the ters."' 5 Precedent for the policy of applying systematic study of was under- the law less than strictly was found in the taken in the school of . Irnerius writings of the Fathers of the Church who and the other founders of that school were had urged indulgence toward those who not sterile or timeless antiquarians. They, wished to return to the Church after having and their students, had had their formative lapsed into heresy or apostacy.6 education in the liberal arts and in theology, Two men who had been Urban's friends as did all of their contemporaries. Thus before his elevation to the Papacy were they brought-to their study of Roman Law among the canonists whose writings, at the humanizing and rationalizing attitudes the beginning of the twelfth century, were of the theological schools of their time. Be- influential in implementing the reform cause they were acutely aware that the commenced by Hildebrand. They were civilization in which they lived needed a lawyers and gave reasoned form to the common system of law, they studied Ro- policy of moderating the law in its applica- man Law for the purpose of filling that tion. In their doctrine, equity is equated need.9 Their theological background shows with mercy. If the reason for the Church's itself in their effort to organize their studies existence is to save men's souls, the admin- upon an all-inclusive and logically consecu- istrators of Church law must not, in their tive scheme. In constructing that scheme, concern for the welfare of the Church as they developed a concept of equity that was a body, lose sight of the need to save the broader and yet more precise than the weak and the necessitous. Bernaldus of equity-mercy concept of the Gregorian Constance, writing just before 1100, found reformers. the weakness of men a good cause for Irnerius puts such a scheme at the head softening the harshness of the canons. He of his treatise. He announces that he will urged attention to the bad effects of strictly first discuss the business of equity and enforcing discipline when delinquents were , treating those virtues in two aspects: very numerous, and he pointed to the equity and justice not enacted into law common canonical practice of lessening and, then, equity and justice violated after penalties when a delinquent confessed being so enacted. Next he will speak of the law itself, and finally of those things,

p. JAFFE, REGESTA PONTIFICIUM ROMANORUM 7 Bernaldus, De Vitanda, 148 M.L. 1180, 1185- n. 5383 (2d ed. Berlin, 1888). 86, 1186s. 6 See Cyprianus, Epistola ad Antoniarum, 3 8 Epistola 214, 162 M.L. 217. MIGNE, 780 [hereinafter cited 9 Fornier, Un Tourant de rHistoiredtu Droit 1060- as M.L.]; Augustine, Commentary on the Epistle 1140, 41 NOUVELLE REVUE HISTORIQUE DE DROIT to the Galatians, ch. 2, v. 5, 20 M.L. 359. FRANCAIS ET ETRANGER 129, 130 (1917). CONCEPT OF EQUITY like custom, which are taken for law.10 But in discussing a particular case, he Equity not yet enacted is . The seems to lean to the side of Bulgarus and law itself is equity reduced to writing. He the formalists. "The interpretation of the notes that the law is sometimes inequitable judge, though it resolves the case between and even unjust. In such case, he says, the parties, should not attempt to reconcile the law has no force and must be immedi- equity and law for fear of prejudicing the 1 4 ately abrogated by the lawmaker. He is cases of others."' emphatic that the equitable reform of the Irnerius' formulation of a general scheme law is the exclusive function of the law- relating law and equity had an effect maker. "The interpretation that reconciles almost immediately upon the canonists' these differences (between equity and law), writings. Gratian completed his Decretum making equity into law, is reserved to in the early forties of the twelfth century.' 5 the princes only."" Though Irnerius' reser- He accepts the general division of law vation to the princes of power to revise and equity proposed by Irnerius, though and even to interpret the law in accordance he does not follow precisely its termi- with equity seems to have been stated nology. 16 In treating the question of absolutely, he may not have intended it whether the supreme lawmaker of the so, for he does not discuss the problem Church could make an effective law in of how, if at all, equity enters into the act disregard of equity, he clearly follows a of judging a case under the law. principle we have heard announced by Two of Irnerius' immediate successors Irnerius. The Pope cannot give a privilege as teachers at Bologna took opposite views which would make one person rich by on this question. Bulgarus excluded equity reducing others to misery.'7 On the place from the act of judging, but Martin Gosia of equity in judgment, he is with the took the line that equity should enter into Gosiani, as the followers of Martin came judgment as an expression or application to be known. Gratian says, "a sentence of the purposefulness of the law. 1 2 Vacarius, contrary to equity has the same force as who also had been a disciple of Irnerius, a law which would oblige the subjects to taught Roman Law in England in 1139, do evil, for obedience is not due to prelates having been invited by Thomas A Becket, in matters that are illicit.'s Henry II's Chancellor.' 3 His statement on Yet when Gratian addressed himself the general relation of law and equity is directly to the problem of a judge using quite broad. "We say that even rude equity, equity to correct the law, his thought seems where it is clear, is to be preferred to law." to have paralleled that of Vacarius. "These things are to be considered when the law 10 See KANTOROWICZ, STUDIES IN THE is made, for once the law has been enacted, OF THE ROMAN LAW 234 (1938).

11 See quotations of Irnerius in VINODOGRAFF, 14 SELDEN , VACARIus, LIBER PAUPERUM DIRITTO ROMANO NELL'EUROPA MEDIOVALE 111 16 (De Zulveta ed. 1929). (2d ed. Riccobono Italian transl., Milan, 1950). 15 STICKLER, 1 HISTORIA IURIS CANONICI 204 12 See KANTOROWICZ, op. cit. supra note 10, at 100. (Turin, 1950). 16 GRATIAN, DECRETUM, Dist. I, 1-3. 1 Holland, The Activity of Magister Vacarius in 17 Cau. 25, 1, dictum p. c. 16. England, 2 COLLECTANEA OF OXFORD HISTORICAL SOCIETY 139. 18 Cau. 11, 3, dictum p. c. 90. 7 CATHOLIC LAWYER, SPRING 1961

it is not permissible to judge concerning upon the of , the them, but judgment must be made accord- teachers of law commented upon ing to the law."' 9 In another place he the Decretum. And nearly all canonical says clearly that a sentence contrary to writing was a record of such comments, the written law has no force,2 0 though he called glosses. The glossators or com- of course saves the case where the law mentators of Gratian's Decretum were gives discretion to the judge.2. called "." The influence of the "equity-mercy" con- Some of the men who distinguished cept, which had been elaborated by themselves as lecturers on the Decretum Bernaldus and Ives, is seen throughout the in the schools of the Continent Decretum. Gratian, however, explicitly reached influential positions in England. refers the concept to , In the last quarter of the twelfth century, a Bishop in the seventh century, to whom Gilbert de Glanville and Gerard Pucelle, was attributed one of the most extensive who had been teachers at Paris, held of the early collections of Church laws. respectively the Sees of Rochester and Isidore had said that one applying the Coventry.23 Some of the glosses on Gratian canons must construe them with an eye in the Durha*m Cathedral Manuscript are to person, place, time and other circum- attributed to Gerard.2 4 That canonical stances of the case at hand.2 2 Gratian was literature was current among the English not content to recite general doctrines on clergy of this period is illustrated by an the relation of equity to the law. He entry on the Lincoln Cathedral Register. employed the equity concept as a tool to Peter of Paxton, a country parson, had a accomplish the tasks he had set for himself: complete set of canon law treatises down to compile the decrees systematically, to, and including, the Fourth Lateran according to their subject matter, and to Council, which was held in 1215.25 A reconcile decrees whose sense, seemed dis- good number of Englishmen earned repute cordant, so that those who used his as teachers of the Decretum in the Conti- compilation might be able to choose and nental schools. Two of the the most famous understand the which were Richard de Lacy and one Alan who should be applied in a given case. Compila- was called "'Anglais." tions made before the Decretum were Even yet it is not an easy task to search arranged on scarcely any other basis than out the learning of the decretists. When simple chronology, and offered little, if any, the Decretum came to be printed, the help to a counsellor or a judge who had editors included only the glosses found to fit the law to a case. in manuscripts easily available to them, Gratian's Decretum soon became the so that the writings of most of the decretists basic work of all canonical teaching and writing. As the lecturers in theology cast 23 Kuttner & Rathbone, Anglo-Norman Canonists their teaching into the form of comments of the Twelfth Century, 7 TRADIT1o 277, 289, 300. 24 Lefebvre, Gerard Pucelle, 5 DICTIONNAIRE DU 19 Dist. 4, dictum p. c. 2. DROIT CANNONIQUE Col. 955 (Paris, 1935). 20 Cau. 2, 6, dictum p. c. 41. 25 LINCOLN RECORD SOCIETY, 3 REGISTRUM ANTI- 21 Cau. 2, 5, dictum p. c. 18. QUISSIMUM OF THE CATHEDRAL CHURCH OF LIN- 22 Dist. 29, Proem.; id., c. 1. COLN 164 (Foster & Major ed. 1931-40). CONCEPT OF EQUITY can now be studied only in manu- individual's canonical duties because of scripts widely scattered throughout Europe. hardship or because the relaxation would Indeed, it is only in the past twenty years serve, better than the performance of that any adequate effort has been made the duty, the individual's spiritual welfare to catalogue these manuscripts and that or the general good of the Church. The effort, pushed by the initiative of one man, common canonical doctrine was that such Professor Kuttner of the Canon Law School relaxation of law did not change the law at Washington, has gone forward slowly. and could not, therefore, establish rules A considerable number of these manu- to be followed by persons who found them- scripts represent the work of Anglo- selves in circumstances similar to those in Norman canonists. Here we find continued which a dispensation had been granted the thought of Irnerius and Gratian on the in the past, or by judges deciding other contrasted concepts of "rude equity" and cases. Yet one of the Anglo-Norman "equity reduced to writing." In describing decretists took the view that these grants how custom can come to have the force of favor did establish such rules. of law, this caveat is made: "The usage When by dispensation the Canons settle of custom cannot so far prevail that it '2 a matter contrary to the rule of the common overcomes reason, that is, rude equity." law, they do not always state whether or not Another Anglo-Norman warns that the this is to be taken as an example for other broad statement, "Equity is the law's law," cases. I believe that the dispensation be- is true only of equity reduced to writing, comes [sometimes]. . . . The matter is otherwise, however, where there is for rude equity only softens the rigor of 27 added [in the dispensing canon] a clause the law. Some writers of this school took forbidding that the like be done in the fu- a rather narrow view of the usefulness of ture ... ; yet, I would also consider whether the "equity-mercy" concept. Commenting the cause for which the dispensation was 29 upon the text of Gratian which says that given be perpetual or temporary only.... a just judge carries in one hand justice As time passed after Gratian had made and in the other mercy, the gloss declares, his compilation, new canonical decrees "This is to be referred to different cases. issued from , and it was necessary For one cannot exercise in the same deci- for one who wished to know the law of '28 sion both rigor and mercy." the Church to add knowledge of these new The canonical executives, the same " letters" to the basic learning he bishops and delegates who sat as judges had gained from the Decretum and its when occasion demanded, exercised a glossators. Professor Kuttner finds that of broad power of dispensation, relaxing an the twenty-seven reported primitive collec- tions of the , fifteen are of 26 Rhetorica Ecclesiatica, (Wahrmund ed.) QUEL- English origin.30 LEN ZUR GESCHICHTE DES ROMANISCH-KANONI- SCHEN PROCESSES IN MITTENALTER, I, iv, 35. In September of 1234, St. Raymond 27 CUM GLOSSA ANONYMA, Durham Cathedral Ms. C. II, fol. 49 - comment 29 SUMMIA, Et est sciendum, GLOSSAE STUTTGAR- upon Dist. 50, 25, v. indulgencie. DIENSES, Cod. Ms. Rouen Bibl. Municip. 710 (E. 28 DECRETUM GRATIANI CUM GLOSSA ANONYMA, 29), fol. 136- comment upon Cau. 1, 7, 20. Caius College, Cambridge, Cod. Ms. 676, fol. 28 30 Kuttner, Projected Corpus of Twelfth Century - comment upon Dist. 45, 10. Decretal Letters, 6 TRADrrIo 345, 351 (1949). 7 CATHOLIC LAWYER, SPRING 1961 of Penafort completed the compilation of like it or lump it, the law must follow such decretal -letters which Pope Gregory this equity wherever danger to souls is in IX had ordered four years before. Gregory question. . .. If the pagan gave effect to the reason, what had this work published as an natural equity of the law of should a Christian do with the equity of the compilation, thus enacting, for the first natural law that is contained in the Law [of 31 time, a systematic, self-consistent, and Moses] and the Gospel? fairly complete body of currently effective One of the distinctive contributions that canon law. This work must have gotten St. made to the teaching an early notice in England. Henry of Susa of morals was his adoption and adaptation who, under the title of Cardinal Hostiensis, of 's treatment of the virtues. In was to achieve fame as a commentator the Philosopher's work 32 he found that on the new collection of Decretals, was at two distinct virtues are said to govern the the court of Henry III from 1236 to 1244. act of judgment. There is synesis, which He came in the train of Queen Eleanor helps one to judge rightly according to the but later assisted the King himself in principles which are called "the common some canonical business. He must have rules" because they are quite closely related talked canonical shop with the people in to the matter in hand. And there is gnome, Henry's Chancery. which helps one to shape his judgment The Decretals of Gregory IX contain upon higher principles. This latter, said Thomas, imports a kind of perspicacity no general disquisition on law and equity, 3 judgment. " but the men who lectured on them and in made written commentaries incorporated In the judgments of judges, the common the established doctrines of the Decretum rules are, of course, the written laws, the and the decretists, and the kArked back positive or enacted law. These laws deter- also to the glossators of the Roman Law. mine the rules of justice, either by reciting Hostiensis indicates that the quarrel begun what is just according to the law of nature, among the Romanists of Bologna had or by authoritatively determining what is continued and had spread to involve the just in matters that the natural law leaves 34 canonists. He opposes Martin Gosia to indeterminate. Since the judge's task is John Bassiani who, at the end of the twelfth to decide what is just in a given case, he century, had developed the teaching of cannot judge rightly without taking account Bulgarus, Martin's direct opponent.- Hos- of the laws which express the common iiensis says: rules of justice.35 These common rules, as generalizations, must fail to provide for For Martin was a spiritual man and, as far s~ngular or unusual cases, as Aristotle as he could in his time, always held to the pointed out,3 but the judge's work is to divine law against the rigor of the civil law. But John did not savor the things of the 31 HOSTIENSIS, IN PRIMUM LIBRUM DECRETALIUM spirit, and like an animal gave nearly all of COMMENTARIA, ad X. 1, 43, 9 (Venice, 1581). 32 ARISTOTLE, ETHICS, his attention to temporal things and the rigor 6:11. 33 AQUINAS, SUMMA THEOLOGICA, of the civil law. Wherefore he and his fol- II-II, q. 51, art. 4. lowers, of whom there are many in this day, 34 Id., 1-It, q. 60, art. 5, c. reject spiritual opinions and say, "This is the 3-5Ibid. captious equity of Martin". But whether they 36 ARISTOTLE, ETHICs, 6:11. CONCEPT OF EQUITY decide what is just in cases each of which man's necessity to be decent and virtuous. is unique, or nearly so, in its component Not every moral duty of a man is strictly and concomitant circumstances. 37 The com- owed to another man. Some moral duties, mon rules clearly fail to help the judge like those of honest dealing and fair recom- decide cases justly when they are enacted pense, are imposed by the necessity of contrary to the requirements of natural maintaining decency in the community. law. Since man's will cannot change nature, These are closely related to legal duties such enactments are not to be followed and may easily pass over into that type in the judge's decisions, for they are not of obligation, because they are owed to laws, but of the law.38 But even others, and because the community's need laws rightly enacted fail sometimes because for decency demands their performance. they are so phrased that if the judge fol- On the contrary, such moral duties as lowed them literally in some cases, his cordiality and liberality, though they con- decision would be contrary to natural law. tribute to a greater common decency, are Here, says Thomas, the judge must decide not strict necessities of the human 4 2 his case by resorting to the equity that the community. legislator intended, as to a higher principle St. Thomas' Summa Theologica became of decision. Thomas relies upon the dictum a commonplace book for divinity students of Modestinus, "Neither the reason of the in England from the middle of the law nor the benignity of equity will permit thirteenth century until the Protestant us, by harsh interpretation, to make burden- . Indeed, it seems to have some what was put into the law to influenced the thinking of such early 39 benefit men." Protestants as Christopher St. Germain. It is important to note that, for St. More English clergymen in that period felt Thomas, judicial restraint was not dictated a commitment to the Franciscan and by mere opportunism, but was imposed Augustinian schools of theology than to by a reasoned philosophy. There is no the Dominican school which St. Thomas virtue whose acts the law may not require, led. Yet St. Thomas' treatment of the but the law's requirements must be limited natural virtues, such as justice and equity, to those virtuous acts which serve directly was common doctrine in all three schools. or indirectly the common welfare. 40 He No fair appraisal of the work of the picks up Aristotle's distinction between the English priests and bishops who developed legal duty and the moral duty. 4' The object the distinctive doctrines of the Chancery of the former is a performance or forbear- jurisdiction can fail to take account of the ance that some law binds one man to render concept of equity and its relation to law to another. The latter is imposed by each which the medieval canonists developed and St. Thomas formulated. -37 AQUINAS, SUMMA THEOLOGICA, I1-I, q. 60, art. 5, ad 2. 38 Id., l-I, q. 60, art. 5, ad 1. 39 DIGEST 1, 3, 25. 40 AQUINAS, SUMMA THEOLOGICA, I-It, q. 96, art. 3, c. 41 Id., It-lt, q. 80, art. 1, c, citing ARISTOTLE, ETtIICs, 8:13. 42 Ibid. 120 7 CATHOLIC LAWYER. SPRING 1961

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