Ecclesiastical Invention

The ecclesiastical development of the practices of political representation and consent took place in the aftermath of the lay-religious conflicts of the late eleventh and early twelfth centuries. This “crisis of church and state”^{Footnote 32} is normally associated with the actions of the eleventh-century reform popes, who sparked the so-called Investiture Conflict. The reforms began in the 1050s under Pope Leo IX (p. 1049–1054). Leo had been appointed by emperor Henry III (r. 1046–1056) to reform the corrupt Roman Church and among other things he battled simony (clerical corruption) and promoted clerical celibacy. However, the reformers soon turned against secular influence on ecclesiastical matters. A papal decree in 1059 established that the cardinals, not the German Emperor or the Roman citizens, would henceforth elect the pope. The real rupture came with Gregory VII (p. 1073–1085), who in 1075 threw down the gauntlet to Henry III’s son, Henry IV (r. 1056–1105). That year Gregory published the Dictatus Papae, buttressed in 1079 by the bull Libertas ecclesiae, two documents that, inter alia, established the ecclesiastical right of investiture of bishops and the pope’s right to depose monarchs who did not observe this. Acting on these doctrines, Gregory in 1076 excommunicated and deposed Henry, thereby triggering the Investiture Conflict.

These lay-religious conflicts did not appear out of the blue.^{Footnote 33} The Gregorian reformers framed their reforms as an attempt to return to good old ways of the early Church—as R.W. Southern once put it, it would be truer to call them the “Restoring Party” than the “Reforming Party”^{Footnote 34}—and their reforms drew on the preceding reforms of monastic and conciliar institutions, most notably the Cluniac reforms.^{Footnote 35} But what the American legal scholar Harold J. Berman calls the “Papal Revolution of 1075–1122”^{Footnote 36} was indeed a revolution in the sense that it created a great upheaval in the political structure of the Latin west.^{Footnote 37}

In the ninth, tenth, and early eleventh centuries, European monarchs in general and Roman Emperors (Carolingian, Saxon, and Salian) in particular had religious legitimacy as rulers anointed by God and they governed the churches in their realms with little interference from the very weak popes in Rome.^{Footnote 38} Indeed, in the period 955–1057, the strong German emperors directly appointed twelve out of twenty-five popes.^{Footnote 39} Some scholars argue that the regime form characterizing Western kingdoms in this period bears close similarity with the ceasaropapism or Rex-Sacerdos model, where religious and lay authority is joined rather than divided, that has been used to describe the Byzantine Empire.^{Footnote 40} The Gregorian Reforms changed this by stealing lay rulers’ religious splendor and their right to govern the churches in their realms, including most importantly the right to invest bishops, who were a crucial part of medieval government.

Though a partial settlement between the pope and the German emperor was reached in 1122, two centuries of protracted political conflicts ensued.^{Footnote 41} These conflicts provided an impetus to constitutionalist doctrines and the use of law to regulate conflict.^{Footnote 42} Law and litigation were needed to adjudicate between the rights of the Church and the rights of lay rulers, especially with respect to jurisdiction and investiture.^{Footnote 43} Most importantly for our purposes, the Gregorian Reforms initiated a flood of litigation into the ecclesiastical system in general and the papal court in Rome in particular.^{Footnote 44}

Both representation and consent were originally judicial concepts that were developed in the twelfth century to handle this torrent of litigation into ecclesiastical courts of law.^{Footnote 45} This occurred as part of a process that involved two crucial innovations, triggered by the Gregorian Reforms: the systematization of Canon law and the revival of Roman law.^{Footnote 46} The first systematic compilation of Canon law—that is, the law of the Church—was done by Gratian^{Footnote 47} in Bologna around 1140 (to be known as the Decretum). The study of Roman law was begun by the Bolognese scholar Inerius early in the twelfth century, following the discovery of a copy of sixth-century emperor Justinian’s Law Code (to be known as the Digest) in Italy around 1070.

These two bodies of law constantly cross-fertilized each other. The notions of representation and consent were developed by lawyers and theologians at the universities in Bologna and Paris via an extremely flexible interpretation of Roman law that served to solve the practical problems of ecclesiastical litigation based on Canon law.^{Footnote 48} Proctorial representation was found in Roman private law, more particularly in the principle that a corporation (universitas) could organize itself as a judicial personality and appoint a proctor (procurator) with full power (plena potestas) as an agent. Consent was based on the adage quod omnes tangit ab omnibus approbetur (“that which affects all people must be approved by all people”), henceforth q.o.t.^{Footnote 49} This dictum was found in an even more remote corner of Roman private law that dealt with co-guardianship or co-tutorship.

The private law practices of representation and consent were gradually interpreted as applying to broader political communities, to be used in this new way within the Church around 1200.^{Footnote 50} That is, the “analogy to private law was to provide the model for the subsequent development of representative assemblies.”^{Footnote 51} The use of proctorial representation and political consent at assemblies seems to have been a consequence of attempts within the reformed Church in the twelfth century to find ways of handling the challenges of the administrative centralization and expansion sparked by the eleventh-century declaration of independence from secular rulers.^{Footnote 52} The response of twelfth- and thirteenth-century theologians was to construe the Christian community, and hence the Catholic Church, as a corporation (universitas).^{Footnote 53}

This was buttressed with tenets from Canon law. The notions of consent and of conciliar government were present in the early Christian Church,^{Footnote 54} and Gratian’s Decretum included a clause to the effect that a heretical pope could be deposed.^{Footnote 55} When these clauses from Canon law were fused with the new notions of proctorial representation and q.o.t. from revived Roman law, it was a small step to institutions that formalized rule by consent. More particularly, a number of canonists argued that Church councils, attended by representatives of the Christian community, could make decisions that bound everyone, including the pope.^{Footnote 56} Church councils were, in this sense, the first medieval representative institutions.^{Footnote 57}

To see how revolutionary these inventions were, we can compare with Byzantium, where we find broadly similar Christian doctrines and where Roman law had not been forlorn in the first place.^{Footnote 58} No similar ideas about representation and consent developed from this combination because the context was starkly different. It is not that there were no conflicts between emperor and clergy in Byzantium. On the contrary, there are numerous examples of how emperors’ attempts to lay down religious doctrine sparked vehement opposition from the clergy. The most famous example is the eighth- and ninth-century iconoclast conflicts, which centered on whether religious icons or images should be banned. The emperors, who wanted to ban images, lost this conflict and down to its end in the fifteenth century, the Byzantine church model remained fundamentally conciliarist. However, the emperor retained the power to organize and govern the church: “His it was to appoint and depose patriarchs, to change the boundaries of dioceses, to legislate on matters ecclesiastical, to convoke general councils, to validate their enactments, and so on.”^{Footnote 59}

The manifestation was “a fundamental symphonia between the imperial authority and the clerical priesthood.”^{Footnote 60} The Byzantine Empire thus took the form of a theocracy where we do not find the kind of corporate rights for, e.g., the nobility and clergy that came to characterize Western Christendom.^{Footnote 61} Though reality on the ground was often acrimonious, in this absence of a normative and organizational divide between religious and secular spheres, the clauses from private Roman law concerning q.o.t. and proctors never developed into political norms and institutions. This also places in relief just how fundamental were the reinterpretations of proctorial representation and q.o.t. by Western medieval lawyers. As Berman puts it, these lawyers did not simply revive Roman law, they “produced something quite new”.^{Footnote 62}

Representation and Consent at Church Councils

The first genuine use of political representation at a council, based on Roman law, seems to have occurred when Pope Innocent III (p. 1198–1216) called proctors from six cities in the Papal States to his curia in 1200 with full powers.^{Footnote 63} Innocent III, who had studied Roman Law at Bologna before becoming pope, subsequently used the notion of proctorial representation in summons for several other councils, including Fourth Lateran 1215.^{Footnote 64} Proctors were summoned for this great council in April 1213, and the council, comprising more than 1,500 prelates from across the Latin west, convened in Rome in November 1215.^{Footnote 65}

It is unclear whether Innocent called representatives to the Fourth Lateran with reference to q.o.t. The problem is that we have little or no evidence of the deliberations of the council. But there are some indications that Innocent’s purpose was to impose a tax on prebendal income (that is, income from benefices) of cathedral chapters to finance the papal court, and that this was the reason that he called proctors from these institutions—which would fit with the logic of q.o.t.^{Footnote 66}

However, the first definitive documentation of the use of q.o.t. at an assembly dates to the French church council of Bourges, which met on November 29, 1225, and which, with almost 1,000 attendees, including archbishops, bishops, abbots, deans, and proctors for cathedral chapters, was the second largest church council in the Latin West, next only to the Fourth Lateran.^{Footnote 67} In the 1217 decretal Etsi membra corporis, Innocent III’s successor, Honorius III (p. 1216–1227), had recognized that Canon law demanded that proctors for cathedral chapters had a right to be consulted if a decision affected their property rights (as taxation did).^{Footnote 68} The gloss to this decision by canon lawyers in the Glossa ordinaria pointed out that this was based on q.o.t. Next, in the bull Super Muros Jerusalem, Honorius revived Innocent III’s idea of imposing a tax on prebendal incomes to finance papal government. With reference to q.o.t., the papal legate in France, Romanus, called proctors of cathedral chapters—whose property rights would be violated by this proposal—to Bourges to discuss this.^{Footnote 69}

The main purpose of Bourges was to commit the French church to finance a royal French crusade (via a 10% tax on clerical incomes for five years) against the heretical Albigensians in Southern France and Romanus secured this. But he backed down with respect to the prebendal tax “in view of the overwhelming negative response”^{Footnote 70} of especially proctors of cathedral chapters. More precisely, Romanus accepted to await the outcome of a similar English church council.

An English council was accordingly called by the papal nuncio Otto in January 1226 (without proctors from cathedral chapters) but this council refused to discuss the prebendal tax due to the absence of King Henry III and affected prelates. A second council was called by Archbishop Langton (Otto had been recalled to Rome) in May 1226, which included “proctors for the ecclesiastical corporations affected by the proposal.”^{Footnote 71} Here, too, the tax was rejected, leading Honorius to shelve the idea. Just as Bourges had been the first French representative assembly, the London council was the first English representative assembly—both of an ecclesiastical rather than a lay character.^{Footnote 72}

We here have very clear evidence of diffusion within the ecclesiastical sphere.^{Footnote 73} One of the French proctors of cathedral chapters, who had successfully defeated the prebendal tax at Bourges, wrote a full report of the happenings, the so-called Relatio de concilio Bituricensi, “which was sent to their counterparts in England.”^{Footnote 74} The explicit purpose of the Relatio seems to have been to strengthen the resolve of the English cathedral chapters to oppose the prebendal tax, which had been left pending at Bourges until similar councils in other realms had considered the matter.^{Footnote 75}

Secular Spread

How could these church practices leap to the secular sphere? The main reason is the aforementioned ecclesiastical institutional penetration of royal administrations in the high middle ages. But this was underpinned by what Berman terms the “transnational character of Western legal science,”^{Footnote 76} which basically meant that (revived) Roman law and Canon law were seen as “applicable at all times and in all places.”^{Footnote 77}

Let us try to see how these diffusion processes worked in practice. Proctorial representation at lay assemblies obtained the moment townsmen or knights of the shire were expressly summoned as genuine representatives (proctors) of town councils or localities with full powers based on Roman law.^{Footnote 78} Representatives were normally not elected but directly appointed by the corporation in question, e.g., town councils.^{Footnote 79}

The first documented instances of lay representative institutions are found in Leon-Castile, the Crown of Aragon, and England.^{Footnote 80} As the Italian medievalist Antonio Marongiu long ago observed, these cases are therefore particularly relevant for those interested in the origins of representative institutions.^{Footnote 81} Van Zanden, Buringh, and Bosker concede as much when noting that it is unclear whether the spread of representative institutions from the Iberian Peninsula to the rest of the Latin west is the result of the “copying of this institution, or of parallel evolution under similar circumstances”.^{Footnote 82}

By focusing on these first documented instances we avoid developments confounded by demonstration effects from other lay assemblies. However, whereas the curia regis rolls of England and the royal archives of the Crown of Aragon have survived intact, those of Leon-Castile have not.^{Footnote 83} Analyzing the advent of proctorial representation and q.o.t. in the first two cases allows us, first, to isolate the initial ecclesiastical influence, if any, and, second, to carry out an in-depth qualitative examination that identifies the “fingerprints” of such ecclesiastical diffusion all the way down to the actor level.^{Footnote 84}