- Ecclesiastical Liberty on the Eve of the Reformation
For the five centuries after Pope Gregory VII put 'libertas ecclesiae' in the center of the debates over the relationship of the Church to secular power and authority, much of the conflict within the Christian world revolved around one issue: what is the proper legal relationship between the ecclesiastical and secular institutions. The question that Gregory posed was 'could laymen have any jurisdiction or authority within the Church?'1 By the thirteenth century the focus had shifted from the big issue of 'Church and State' to the relationship between the clergy and the laity. The terminology also changed. 'Libertas ecclesiastica' replaced 'libertas ecclesiae' in the writings of medieval and early modern jurists.
The ramifications of this change have not yet been studied. I can make a few preliminary remarks about this intriguing development in terminology. Both terms can be traced back to the patristic age. Saint Hilary of Poitiers (Hilarius Pictaviensis) seems to have been the first to use 'libertas ecclesiae' in his commentary on the Psalms.2 Pope Leo the Great was the first to write about 'libertas ecclesiastica' in a letter to Bishop Leo Anatolio about the difficulties in Alexandria at the time of the death of the Emperor Marcianus.3 'Libertas ecclesiae' was, however, the preferred phrase in the early Middle Ages. In the twelfth century, the Father of Canon Law, Gratian, did not include any canons with the phrase 'libertas ecclesiae'. He did include one canon with the phrase [End Page 185] 'libertas ecclesiastica'.4 'Libertas ecclesiae' appears in only a handful of decretals included in the collections of canon law after Gratian.5 With his emphasis on papal monarchy and the importance of the Roman church, Pope Innocent III introduced 'libertas Romanae ecclesiae' into a decretal, and the phrase was repeated by popes Nicholas III and Boniface VIII in their decretals.6
If one judges only by the texts in the books of law that were taught in the schools and used in the courts, 'Libertas ecclesiastica' supplanted 'libertas ecclesiae' after the twelfth century. The decretal collections from Innocent III's pontificate and after pullulate with 'libertas ecclesiastica,' although Raymond de Peñafort excised some of the passages containing the phrase in his editorial work on the Decretals of Gregory IX.7 Linguistic usages and evolutions over time may not be explainable but are intriguing.
Consequently, in the centuries before the Fifth Lateran Council 'libertas ecclesiastica' had become the touchstone defining the relationship between the clergy and the laity. Pope Innocent III embraced the term early in his pontificate. In 1198 Innocent's curia rendered a decision, Magnae devotionis, that gave a different spin on the issue of ecclesiastical liberty.8 Magnae devotionis became a key text in canonical jurisprudence for establishing the pope's prerogative to commute crusading vows. That papal right had nothing to do with ecclesiastical liberty. Although papal power became the decretal's calling card, a bishop's duty to defend the liberty of his church was just as significant. Garnerius, bishop of Troyes, had had a problem. His church was being afflicted by grave but unspecified difficulties that damaged the [End Page 186] ecclesiastical liberty of his church. He decided that Henry II of Champagne, recently elected the king of Jerusalem, was, as his temporal lord, the only person to whom he could turn. He and some of his clerics made a remarkable decision. They took a vow of pilgrimage to go to the Holy Land and implore Henry to help protect the church at Troyes. When he reached Piacenza, Garnerius learned that Henry had died. The main purpose of the pilgrimage disappeared. Garnerius asked Innocent III to commute their vows.9 After much complicated argumentation that would live on in the jurisprudence governing vows and other decisions by corporations, Innocent granted Garnerius and his clerics a commutation of their vows.10 Innocent never detailed which rights of the church of Troyes were being threatened nor how they were endangered nor by whom. Nevertheless, the decretal remained a key text that obligated bishops to petition secular rulers to protect diocesan ecclesiastical liberties and rights for centuries.11
At the end...