A Gloss of Hostiensis to X 5.6.17 (Ad liberandam)

Given the importance of the crusading movement to later medieval history, it was striking to come across the remark by James Brundage that Gratian’s Decretum nowhere discussed the crusades,¹ and, moreover, that ‘no treatise De crucesignatis has yet been discovered throughout the vast literature of medieval canon law’.² Even in the Liber Extra, decretals regarding particular aspects of the enterprise d’Outremer are only found scattered under various titles, especially, for instance, under ‘De voto et voti redemptione’. The French scholar, Michel Villey, many years ago pointed out the singular importance for the development of the crusades of constitution 71, ‘Ad liberandam’, of the Fourth Lateran Council celebrated by Pope Innocent III in 1215.³ The main purpose of ‘Ad liberandam’ was to detail the arrangements for the Fifth Crusade, but in doing so Innocent not only summarized and expanded the traditional aspects of the crusading movement, he also pointed to the future and consciously or not laid the foundation for all crusades that were to follow. The First Council of Lyons in 1245 in its constitution ‘Afflicti corde’ repeated verbatim most of ‘Ad liberandam’, and its content is also closely reflected in the Constitutiones pro zelo fidei of the Second Council of Lyons of 1274 as Maureen Purcell has shown.⁴

The significance of the Fourth Lateran Council for the history of the Church in general is well known. Accordingly, Raymond of Peñafort included all of its constitutions in the Liber Extra, which he compiled at the request of Pope Gregory IX with the exception of three. Raymond omitted constitutions 42, 49 and practically all of constitution 71, ‘Ad liberandam’.⁵ Gregory IX had sent the Liber Extra in September of 1234 to the University of Bologna with the admonition ‘ut hac tantum compilatione universi utantur in iudiciis et in scholis, districtius prohibemus, ne quis praesumat aliam facere absque auctoritate sedis apostolicae speciali’.⁶ This surely explains at least in part the lack of specific commentaries after 1234 on the topic of the crusades, given that precisely those sections of the constitution ‘Ad liberandam’ of 1215 that were omitted in the Liber Extra spelled out the features which actually molded the juristic aspects of the movement. The brief excerpt included in the Liber Extra as 5.6.17 encompasses only the excommunication of ‘false Christians’ who provided Muslims with arms, iron and wood for ships, who sold ships to them or conducted Muslim vessels, as well as of those who supplied counsel or aid to the enemy. Such individuals were to be deprived of their property and to become the slaves of those who captured them. Their sentences were to be publicly renewed in all maritime cities on Sundays and feast days, and absolution could only be obtained by giving up all illicit commercial gains and making in addition appropriate donations in support of the Holy Land.⁷ This excommunication was an important part of constitution 71 of the Fourth Lateran Council to be sure, but not nearly as significant in the long run as the decree’s introduction of papal taxation of churches and monasteries, its stipulations regarding the right to income from benefices for crusading clergy, the protection of crusaders, their families and their property, as well as last not least its detailed regulations regarding indulgences and commutations—full or partial—of penances and even crusading vows. Yet all of this was omitted by Raymond of Peñafort and therefore did not become part of the scientific discourse in ‘courts and schools’ after September 1234, when the Liber Extra was completed, although there had been earlier commentaries on the constitutions of the council of 1215, including c.71 ‘Ad liberandam’, by Johannes Teutonicus, Vincentius Hispanus and Damasus Hungaricus.⁸

Hostiensis (Henry of Susa), ‘il canonista più importante e brillante del s. XIII’, was the great exception.⁹ The cardinal complained bitterly in his Lectura, also called the Commentarium or Apparatus, when he glossed X 5.6.17 ‘Ad liberandam’:¹⁰

Ad liberandam terram sanctam et infra. In hac decisione continetur...