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The Internal Forum of the Later Middle Ages. A Modern Myth?

Published online by Cambridge University Press:  27 October 2015

Wolfgang P. Müller
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Scholars today are unanimous about the existence of a forum internum in the Western church since the rise of scholastic theology and jurisprudence in the twelfth century. From that time onward, they agree, an “inner court,” dedicated exclusively to individual believers who confessed their sins in absolute secrecy to a priest was sharply distinguished from the so-called forum externum, which dealt with publicly alleged breaches of the canon law.

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Law and History Review , Volume 33 , Issue 4 , November 2015, pp. 887 - 913
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Copyright © the American Society for Legal History, Inc. 2015 

Scholars today are unanimous about the existence of a forum internum in the Western church since the rise of scholastic theology and jurisprudence in the twelfth century. From that time onward, they agree, an “inner court,” dedicated exclusively to individual believers who confessed their sins in absolute secrecy to a priest was sharply distinguished from the so-called forum externum, which dealt with publicly alleged breaches of the canon law.

The historiography on penance during the period from 1200 to 1500 has summarized the state of our knowledge by pointing out that for contemporaries, mentions of the two ecclesiastical courts would have been in clear reference to a dual jurisdictional arrangement comprising the external forum of openly administered justice on the one hand and the internal forum of conscience and secret confession on the other. This way of dividing the disciplinary competencies of the church along the lines of publicity versus privacy is said to have developed within decades after the publication of Gratian's (fl. 1140) and Peter Lombard's (fl. 1159) magisterial textbooks, which were foundational for the systematic study of canon law and theology.Footnote 1

Modern studies have further noted that the term “internal forum” is not late medieval. The expression was not coined until the sixteenth century, when it appeared in association with older language speaking, for example, of the forum conscientiae and the forum poenitentiae or poenitentiale. The external forum also joined the canonical vocabulary well after 1500 when it was inserted next to the long familiar forum contentiosum and forum iudiciale.Footnote 2 Interestingly, the 400 year gap between the purported invention of the institution in the 1100s and its definitive conceptualization in times subsequent to the Council of Trent has not solicited much comment. Experts have surmised that the delay was simply a matter of words and did not imply any changes of substance.Footnote 3

The historical evidence presented in the following suggests, to the contrary, that the complete absence of the forum internum (and externum) from the scholastic dictionary of the later Middle Ages affected the two signifiers no less than the entities they came to signify. Their introduction not prior to the 1500s meant that earlier on, canonists and (pastoral) theologians had been unable to recognize the dichotomy between publicity and privacy or secrecy as constitutive of what separated the two fora from one another. To identify ecclesiastical jurisdiction with a sphere that was internal and removed from onlookers or, conversely, external and right before their eyes, presupposed a fundamental shift away from medieval conditions not just in terminology, but institutionally as well.

The complementary expressions of forum internum and forum externum did not come into use until the late 1500s. Studies have tracked their origins to Catholic penitential discourse formulated in the wake of the Tridentine Council (1545–63). The new conceptual pair denoted realities without equivalent in the Middle Ages, when anything like the plain division between an internal forum exclusively dedicated to secret or privately confessed sins and an external forum for visibly staged and judicial cases would have formed a theoretical and practical impossibility. Attempts in historiography to track church teachings on the subject have long been under the spell of interpretive conventions. They postulated, to begin with, an original reliance in the West on collective and solemn penance. Next, scholars assumed the existence of a transitional age characterized by the so-called “Carolingian dichotomy” which from 800 or thereabouts separated poenitentia publica and poenitentia privata, or openly and secretly committed sins and their respective remedies from one another. Then, scholastic theologians and canon lawyers supposedly dismissed public penance in favor of individual and private confession near the time of the Fourth Lateran Council in 1215.Footnote 4

Most scholars have, meanwhile, abandoned the notion of the Carolingian dichotomy as being too rigid and less than representative of early medieval penitential mechanisms, whereas the year 1215 still serves as the accepted watershed mark for the creation of a forum poenitentiale wholly devoted to sins under the confessional seal.Footnote 5 Recent research in ecclesiastical court records and actual cases of adjudication has raised some doubt about this narrative. Their testimony has shown that poenitentia publica along with peculiar modes of proof such as collective oath-taking, although being scarcely addressed in juristic procedural handbooks and manuals of penitential doctrine, loom large in the pragmatic sources and affected the day-to-day interactions of clerics and laity to the end of the Middle Ages and beyond. However, modern investigators have been hesitant to spell out the wider implications of their discovery, and minimized impressions according to which conventional accounts of a strictly internal forum for matters of penance after 1215 would have to be challenged. Mary Mansfield's and Friederike Neumann's studies of liturgical handbooks simply refer to the “survival” of older, openly performed penitential rituals throughout the thirteenth century for northern France, and in the fifteenth century in southwest Germany.Footnote 6 Richard Helmholz has called attention to parallel phenomena in the judicial evidence from England, observing recourse to shaming rituals for sinners in front of bystanders and demonstrations of innocence based on compurgation.Footnote 7 In a similar vein, work on marriage litigation and, especially, the analysis of pertinent serial texts from fifteenth century Venice by Cecilia Cristellon, has highlighted how ecclesiastical judges routinely blended in their examination of matrimonial claims the roles of inquisitor in the judicial and spiritual confessor in the penitential forum.Footnote 8 Although many clues have been assembled from the sources of liturgical and legal administration that seem to locate pastoral and juristic intervention in a vast gray area rather than two clearly demarcated and mutually exclusive private and public arenas, modern historiography has preferred to address examples of overlap as mere exceptions to the rule. Nobody has suspected that the distinction between internal and external church jurisdictions was not operational during the period, whether in theory or in practice.

My own reading of the available evidence, reliant on secondary literature and on original material from the late medieval apostolic Poenitentiaria leads to the opposite conclusion that previous scholarly work has mistakenly conflated the late medieval notions of “occult cases” (occulta), “secret penance” (poenitentia secreta), and “forum of conscience” (forum conscientiae) with what successive ages would have lumped together under the one label of “internal forum.” The error becomes evident when it is considered that the great majority of canonists and pastoral theologians, confessors, and clerical judges from the twelfth to the fifteenth centuries did not employ these terms with only privately admitted sins on their minds. Being exposed to environments that witnessed the ubiquity of public penitential rites, for them, the expressions alluded to a single jurisdictional category that would be lost to modernity later on in that it likewise encompassed widely known canonical defects falling short of acceptable legal proof. These rested either on the spontaneous revelations of individuals or belonged to the realm of fama and anonymous rumors circulating in the community. Scholastic texts reiterating the famous adage, Ecclesia de occultis non iudicat (“the Church does not adjudicate ‘occult’ affairs”), did, as a result, not refer to information protected by the seal of confession alone but also to canonical infringements that were openly alleged or proliferated through neighborhoods by word of mouth.Footnote 9

In an article published in 2006, Jacques Chiffoleau posed the question of whether late medieval church courts ever allowed themselves to adjudicate matters that were classified as occulta.Footnote 10 For Chiffoleau, twelfth century canon lawyers who coined the proverbial phrase Ecclesia de occultis non iudicat did so as a reminder that details revealed in private confession could not be used against defendants in public legal proceedings. From 1200 to 1500, he went on to argue, canonistic doctrine progressively undermined this maxim by creating new distinctions and a plethora of special circumstances. These were gradually chipped away from the category of occultus by the invention of lesser degrees of the “nearly occult,” permitting recourse to secret evidence in trials of heresy and other extraordinary crimes, and enhancing the discretionary power of judges through the introduction of summary trial formats that favored quick sentencing over the due process requirements of Romano-canonical procedure (the ordo iudiciarius). To illustrate the historical trend, Chiffoleau employed documentation bearing on the same questions as the original sources consulted here, and conducted his analysis by and large along parallel, procedural lines. All the same, the conclusions he distilled from the material turn out to be diametrically opposed to the ones proposed in the present article. Perhaps most significantly, Chiffoleau followed common scholarly understanding when he took de occultis to mean “secret and sacramental confession,” signaling, in short, a straightforward reference to the internal forum. He further discerned a second sphere of clerical jurisdiction in the forum externum, which he thought of as being marked by the exclusive right to pass judgment (iudicat) on “external” or public offenses.

Against Chiffoleau's interpretation, however, it must be kept in mind that the Latin adage taking center stage in his contribution, Ecclesia de occultis non iudicat, rested for lawyers of the time on a narrow and technical conception of the term iudicare. For Simon de Bisiniano (fl. 1177–79) and the leading canonists of subsequent generations, it denoted only the act of judicial (and nonpenitential) sentencing.Footnote 11 “Whenever the bishop sees that a charge cannot be proven against the defendant through witnesses,” Simon wrote in his Summa on Gratian's textbook, “he shall not pass a sentence, for if he did he would punish an ‘occult’ wrong which is prohibited by the canons. … Whenever a bishop cannot prove with the help of witnesses a wrong that he alone knows, he shall not pronounce anything, that is, he shall not proceed with the accusation, because he cannot punish what he does not know as judge (ut iudex), but as God.”Footnote 12 Shortly afterward, Huguccio commented on the same passage of the Decretum (C.6 q.6 c.2) by adding that the bishop cannot adjudicate unless he has knowledge “as judge, that is, by way of the ordo iudicarius, through a conviction in court or through lawful confession.”Footnote 13 The words de occultis applied in the broadest sense to everything that did not qualify as legal proof. They did not designate something invisible or unheard of, but served as a lawyerly fiction, encompassing assertions that, secret or manifest, could not be corroborated formally in a court of law.

It is not the objective of my analysis to show that a coherent theology of individual penance and confession under the seal of secrecy was not the creation of early scholasticism near 1200. A wealth of historical studies has accurately traced the articulation of such doctrine in academic commentaries of the period.Footnote 14 I argue instead that the (late medieval) forum conscientiae or poenitentiale cannot be construed as an equivalent of the (early modern) internal forum, because the former extended far into the public sphere by accommodating communal rites of spiritual cleansing. In effect, contemporary pastoral and canonistic writers were fully aware of a procedural space that was not judicial, and concurrently did not extend into the private confessional sphere. In response, they chose to name it as “almost occult” (paene occulta) or as “legally” rather than “reputedly manifest” (manifesta per sententiam and not per famam). On occasion, the two conceptualizations would coexist in the same textual environment, as for example in the immensely influential Summa de poenitentia written by Raymond of Penyafort, whose later version of 1236 quickly attracted its own ordinary gloss composed by William of Rennes near the year 1241.Footnote 15 It appears that Raymond studiously avoided calling concerns outside of private confession anything other than manifest, whereas William did the reverse and placed all forms of penance within the orbit of the “occult.”Footnote 16

Scholastic thought was successful in attaining a solid terminological consensus only with regard to the question of where exactly the boundary between judicial and nonjudicial inquiries would run. By 1200, canon and Roman lawyers had determined that the line separating the two types of jurisdiction was not to be drawn in accordance with their publicity or privacy, but should depend upon the criteria that respectively governed the admissibility of evidence. Conviction in ordinary Romano-canonical trials had to rely on a minimum of two good witnesses, formal personal admission, or notarized documentation. By contrast, the far lower threshold of proof in penitential inquiries could be passed by anonymous rumor, by spontaneous self-incrimination without evidentiary support, or by attestations of character from a lineup of compurgators. This latter format of ecclesiastical proceedings was addressed in legal theory and the court records as pertaining to the “forum of conscience” and its various late medieval synonyms, the recurrent lack of confessional secrecy notwithstanding.

Evidence from Late Medieval Judicial Records: The Apostolic Court of Penance

A worthwhile historical argument cannot be put forward unless it is sustained by original testimony. The main set of sources I will examine is furnished by records from the Apostolic Court of Penance, or Poenitentiaria Apostolica.Footnote 17 The choice is easy to defend, because the office generating them served Western Christendom as the supreme tribunal in penitential matters. It routinely dealt with requests for absolution and dispensation and treated them in accordance with the canon law. There were no major discrepancies between the precepts of general doctrine and their implementation at the hands of officials from the Poenitentiaria. This becomes obvious once late medieval canonistic terminology relating to so-called occulta and the “forum of conscience” is properly appreciated.

The first nine volumes of the Repertorium Poenitentiariae Germanicum contain summaries of more than 36,500 entries concerning German supplicants in the still extant registers of the papal Penitentiary from 1431 to 1513.Footnote 18 Nowhere in these texts are the words, externum and internum used in the legal or jurisdictional sense, confirming that both the internal and external forum had not yet entered the canonical dictionary.Footnote 19 On five occasions, reference is made exclusively to the secrecy of church proceedings, including three instances in which the adjective secretus is employed to denote the contrast between public and secret penance.Footnote 20 For the rest, secretus is invoked as synonymous with a pair of expressions that again carry clear procedural connotations, namely, occultus and in foro conscientiae. Their interchangeability is suggested above all by a petition that was registered in 1440. It speaks of Stanislaus, a priest from Cracow in Poland who had accepted counterfeited coins from a man who was later executed. Because Stanislaus claimed not to have been directly involved in the death and also considering that the whole affair was “secret,” he felt entitled to a dispensation that would readmit him to his priestly functions. The Penitentiary decided to grant him the favor in the “forum of conscience,” because the whole matter was “occult.”Footnote 21

Cited with somewhat greater frequency in the registers, occultus appears as a qualifier of ecclesiastical jurisdiction in a total of fourteen entries. Strong overlap with the notion of in foro conscientiae explains why the two are referred to in tandem on seven occasions.Footnote 22 Officials at the Poenitentiaria, however, usually resorted to the expression in foro conscientiae, which can be found in no less than thirty-six different entries.Footnote 23 Alternatively, in foro animae, in foro confessionis, and in foro poenitentiali make stray appearances.Footnote 24 Taken together, secretus, occultus, and in foro conscientiae, as well as the exceptional usage of in foro poenitentiali and in foro animae or confessionis form a single semantic field that modern historians have equated, as if by default, with the internal forum and with proceedings that would have fallen under the seal of secrecy.

Closer inspection of the registered material, however, complicates the picture insofar as secretus, occultus, and their fellow expressions seem to resist straightforward translation into words that are associated with the forum internum today. There is, to begin with, the case of Elizabeth Wagnerin from the diocese of Constance who in 1470 beseeched the Penitentiary to grant her absolution and dispensation from the impediment of sexual consanguinity that she had incurred through intercourse with a close relative of her present husband in years prior to their marriage. Because she kept the circumstance of her enduring premarital affair completely to herself and “occult,” and revealed to nobody except her confessor what was entirely unknown to other human beings, papal grace was eventually extended to her along with the assurance that the alleged facts did not have to be confirmed by witnesses.Footnote 25

I have chosen the petition of Elizabeth Wagnerin because it is perfectly in line with modern conceptions of how the internal forum would operate. She was given the proper remedy to stay in the marriage, while all the time her husband was kept unaware of a condition that fully affected him, too, and might have served him as legitimate grounds for the nullification of their union.Footnote 26 The privacy of Elizabeth's confession was protected unconditionally, illustrating how the seal shielded sinners in confession as early as in late medieval times. Between 1200 and 1500, absolute secrecy, in other words, could work as a guarantee for Christians who admitted canonical irregularities in foro conscientiae. What has been overlooked by historians, however, is that it appears not have been an essential or indispensable prerequisite for church proceedings to be labeled in such a way. Offering a first case in point, a good number of registered requests concerned with the marital impediment of “affinity by illicit intercourse” involved couples rather than individual spouses who jointly asked for a dispensation “in the court of conscience,” against present-day assumptions that the forum internum would have precluded in principle the simultaneous involvement of multiple confessants.Footnote 27

There is, for example, the story of George de Burghe and his wife, Elizabeth Huben, from the Bavarian diocese of Freising. They were residing in the Northern Italian city of Padua when they told curial officials in 1456 of her past as a prostitute, which had ended when George, “moved by piety,” had extracted Elizabeth from the brothel and contracted marriage with her. Before their bond was consummated, however, it came to their knowledge that George's brother had had repeated sexual encounters with Elizabeth in her premarital state, thereby creating an impediment to the marriage similar to the one confronted by Elizabeth Wagnerin 14 years afterward, in 1470. In both circumstances, the canonical irregularity was described as an “occult” condition hidden from other people, with the important difference that the request of 1456 for a dispensation in foro conscientiae was made concurrently by the two partners, George and his bride.Footnote 28 One struggles to imagine how their confessor could have addressed a defect said to be unknown outside confession without breach of the seal, except by surmising that references to in occultis and in foro conscientiae also covered canonical irregularities and sins exhibiting a certain level of publicity.

Was the late medieval penitential forum or forum conscientiae always predicated on absolute privacy and the confessional seal? The answer of the present article is that it was not, contrary to the view of previous scholarship. Interestingly, additional case records from the Poenitentiaria Apostolica inform about petitioners who tried to obtain a papal mandate with validity in occultis or in foro conscientiae so as to fend off allegations of fault that circulated in their vicinity, or in short, within the public and not just the private domain. One of them involved George Kramer of Pruck in Styria, who built his narrative of 1469 around experiences during his former service as an 18-year-old to a lay employer. Someday, he reported, a nobleman had brashly ordered him to accompany another man to a certain place, presumably a prison. Upon completion of the assignment, George found out that the same man had subsequently escaped custody for 2 hours, before being apprehended again by other captors and sentenced to death.Footnote 29 Because George, as his registered supplication pointed out, had not incurred any guilt except in the way he described and further wished to be promoted to all of the sacred orders, he asked the Penitentiary for a formal declaration of his innocence. The precise reason for his appeal to the Roman curia was named as well, stating that he was canonically eligible for ordination “despite a number of simple people who asserted that due to the aforementioned events he had incurred excommunication and become a homicide.” It was as a result “for the sake of silencing the mouths of jealous detractors (ad ora praedictorum aemulorum obstruendum)” that George asked for an apostolic declaratio, resorting to a turn of phrase that culminated in a second request. Considering that the matter was “occult,” George wanted it to be committed to the bishop of Città di Castello.Footnote 30

George Kramer's petition is not unique, and there are others that supply further juristic nuance. Again confronted with rumors of being a homicide and no longer eligible for the exercise of priestly functions, Wolfgang Kirchdorfer explained to the Penitentiary in 1493 that while studying at the University of Ingolstadt he had witnessed a nightly brawl in which two of his companions and fellow students had killed a layman. The event came to the notice of people who considered his promotion to the sacred orders compromised, prompting Wolfgang to ask the apostolic officials for a letter declaring his innocence “so as to obstruct their speech (ad ora talium obstruenda) and dispel suspicions of liability lingering in his own mind.”Footnote 31 Wolfgang looked specifically for a papal declaration in forum conscientiae, which, in accordance with a formula already familiar from the abovementioned dispensation of 1470 for Elizabeth Wagnerin, did not presuppose “any recourse to witnesses” but merely called for the “admission of the aforementioned to his confessor.”Footnote 32 Wolfgang's request for a letter that was limited in its applicability to the court of conscience did not hinge upon distinctions between publicity and secrecy. The concession he aimed at rather permitted him to avoid the mobilization of witnesses for proof that he was not a manslayer, and simply relied on his own version of the facts to determine culpability.

The same set of options is present in a registered entry of 1491. It addresses the predicament of John Loeder, a priest from Homberg in the diocese of Mainz, who claimed to have inflicted with his short knife a light head wound on someone who attacked him over a beer at a tavern. The adversary had already suffered an injury to his intestines, and fatally as John alleged, by the dagger of a knight rallying to his defense. Following the deadly incident, John was reinstated in his duties with the important qualification that his reauthorization to serve at the altar was restricted to the forum conscientiae. Still, John felt exposed to the risk of detracting voices that might accuse him of homicide, and wanted them to be silenced for good. In his estimate, the appropriate remedy consisted of a papal declaration issued in forma, instructing his ordinary to act as requested once he had verified the petitioner's version of events. This was to be done not on the basis of John's own plain assertion (and as a confessor would have accepted it), but (in the way of proceedings before an ecclesiastical judge) with the help of witnesses.Footnote 33 The text implies that the court of conscience was circumscribed in its reach not so much by secrecy as by the availability of nonjudicial (or penitential) versus judicial evidence, with private or public confession and anonymous rumor falling inside the spectrum and eye, ear, or documentary testimony falling outside it.

If my newly proposed conceptualization of the two courts in the later Middle Ages is correct, their mutual demarcation was determined by considerations regarding the forensic quality of allegations. This rendered spontaneous confessions and fama unsupported by factual evidence despite their circulation in public a subject of scrutiny and remedial intervention in foro conscientiae. However, and because the sources cited until now contain only individual petitions that may or may not be representative of routine operations at the papal curia, it is useful to seek ulterior confirmation of them in prescriptive texts that guided officials through the day-to-day production of their correspondence. For example, the formulary composed by Walter Murner (died in 1407 or 1408), himself a former scribe of the Penitentiary, was employed by successive generations of administrators as a collection of samples for the crafting of petitions and outgoing letters, and reflected ordinary business and its underlying canonical standards most faithfully.Footnote 34 Walter's work, in effect, features several items that speak to the same rules and dispositions as found in the previously quoted registers.

One text in Walter's formulary offers a particularly telling illustration of how fama consisting of mere hearsay did not pass the test of proof deemed lawful and admissible in judicial proceedings. The formulaic letter was directed to a bishop, and addressed the situation of a certain John who never knew his parents and grew up in a foundling home. Because John wished to join the clergy and was unsure whether simple folk attributed to him the stain of illegitimacy, which according to canon law would have barred him from admission to clerical rank, he asked the Apostolic See to intervene on his behalf. The Penitentiary responded by explaining that if John was not defamed on account of his obscure origins and had always lived as though he were legitimate, the whole issue could be left to his conscience. Assuming on the other hand that his purported birth out of wedlock had rendered him infamous despite the absence of any legal evidence, the recipient of the mandate was urged to declare John's state of legitimacy once the latter had undergone canonical purgation.Footnote 35

A triad of procedural considerations arises from the description of John's situation. There is first of all the possibility of hard evidence that proves the existence of an impediment to clerical ordination, such as illegitimacy. Next, there is canonical purgation, which aided those who suffered from ill fame (as infamati) in restoring their reputation through the swearing of an exculpatory oath.Footnote 36 Third, suspicions could fail the test of legal proof while also being devoid of any backing by infamia, so that they did not exceed residual worries about the presence of an infringement and could be left to the individual's own discretion. Within this threefold rather than dual scheme, deficiencies that were publicly imputed in the form of anonymous rumor did not warrant judicial investigation. They were put in a single category with other occulta and awaited resolution in the penitential sphere.Footnote 37

Certain formulas in Walter Murner's collection make the blending of secret sins and irregularities with those intimated by fama fully explicit, thereby placing them under one heading and in opposition to investigations of canonical wrong and defects “that can be proven.” To furnish a remedy against the insinuations of invidious folk (aemuli), the Penitentiary instructed one archdeacon not to treat a clerical petitioner as a convicted killer of fellow clerics as long as he was prepared to confirm his innocence by oath, and evidence against him did not amount to more than the detracting voices of unnamed people.Footnote 38 In addition, Walter inserted a model letter that contrasted the court of conscience with a different forum in which clues (about the death of someone) had to be at the level of juristic proof (probabiliter).Footnote 39 Another of his texts asserts that “he whom conscience does not accuse with certainty must not be subjected to penance.” The phrase appears to be tied to an incident in which the supplicant had not been permitted to purge himself from infamia and did not feel guilty personally.Footnote 40 In line with the registers, Walter's formulary finally includes numerous requests for dispensations from “occult” impediments to an existing marriage, which for the sake of preventing scandal had to be removed without recourse to external testimony. The petitions were submitted by both spouses, again suggesting that the late medieval forum conscientiae was not yet reduced to the strictly internal version of subsequent periods.Footnote 41

There are hardly any passages in the records of the Poenitentiaria Apostolica that give central importance to the dichotomy between secret and public sins and irregularities. Instead, judicial as opposed to penitential criteria of evidence were paramount for the proper placement of cases in one of the two ecclesiastical jurisdictions. This is further confirmed when considering the terminological counterpoint of the forum conscientiae, which officials of the time regularly identified as the forum contentiosum, or less frequently, the forum contradictorium.Footnote 42 Their choice of words (in accordance with general canon law doctrine) was concerned above all with the separation of contested or party-driven proceedings from inquiries that were conducted unilaterally and in pursuit of pastoral goals. The technical vocabulary denoting jurisdictional competency betrayed little interest in the question of whether ecclesiastical proceedings were conducted in an open or a concealed fashion.

In a similar vein, bureaucratic arrangements in the late medieval Apostolic Penitentiary did not treat secret sacramental confession as an entity of its own. Important administrative divisions included an officium maius presided over by the head of the office, the poenitentiarius maior, alongside an officium minus that was run collectively by a number of minor penitentiaries who had to be recruited from different regions of Western Christendom in order to understand the confessions of sinners speaking in one of the many vernacular languages. Simultaneously, there was no neat separation of activities and competencies between the lesser and greater officium whereby one, for example, would have been restricted to occulta, the other to manifest canonical wrongs and irregularities. They both handled petitions that did or did not permit registration, and generated mandates in either a closed or an open format. The right to do so was conveyed to them by the pope, and each faced the growing criticism of reformers who sought to limit their jurisdiction to the forum conscientiae alone.Footnote 43 The outgoing correspondence of the poenitentiarii minores was specifically known as “letters of the Church (litterae ecclesiae).” Yet apart from their peculiar name, the litterae could contain penitential as well as judicial directives, written by scribes who served the institution as a whole, and ensured canonical conformity through recourse to formularies such as that of Walter Murner, which also offered orientation in cases brought before the major penitentiary.Footnote 44

Modern historians of the later Middle Ages have always worked from the premise that the papal Court of Penance was structured around the binary of an internal and an external forum. The belief in their coexistence has been so firm that generations of scholars have wondered whether the surviving sources of the Poenitentiaria were likely to contain material requiring permanent protection under the confessional seal. The unanimous response has been negative ever since Emil Göller undertook his foundational research in the early 1900s. In an important article of 1913 announcing the recent rediscovery of the Penitentiary registers, he set the tone by arguing that the long-lost volume would not reveal any confessional secrets. As a result, access to them should not be denied to historical investigators.Footnote 45 To make his point, Göller placed particular emphasis on a passage that often circulated in conjunction with Walter Murner's formulary, and clearly distinguishes so-called “closed” letters from “open” ones. The litterae clausae, it states, deal with “sin and crimes that are occult or shameful or worthy of reproach, and also with those that—were they to be published—risked causing scandal and danger to the persons involved and to the letter carriers.”Footnote 46 Göller linked the remark to information about administrative fees (taxae) from a century later, according to which the official keeper of the seal would not charge anything for a littera or bulla clausa, “given that it is not registered.”Footnote 47

The texts cited by Göller highlight two aspects that are central to the present argument. First, they show that issues appearing as if they might pertain to something like the forum internum are not put in clear contrast with matters belonging to an “external” domain. Walter Murner's work mentions occult sin immediately next to offenses that are called “shameful and worthy of reproach,” before adding scandal as a reason for papal correspondence to be sent in a closed format. Express assertions indicating that some letters required this type of expedition out of concern for the privacy of sacramental confession do not figure in the original source material, whereas transgressions said to be hidden and others described as likely to cause outrage are often adduced in juxtaposition.Footnote 48 Murner's text does not define the meaning of occultus, but simply presupposes it, inviting historical interpretation of the notion such as the one I propose here. According to my assessment, Murner and his fellow officials at the Penitentiary would have spoken of a crimen occultum to imply the availability of penitential proof by way of personal admission, secret or public, and widespread, anonymous rumor, always assuming a deficiency of legally viable evidence.

An argument in favor of connecting the expressions occultus and “court of conscience” (with Göller) with the internal forum of modernity may be deduced from the circumstance that their occurrence in the registers is extremely rare. As I have noted previously, the Repertorium Poenitentiariae Germanicum counts for the period from 1431 to 1513 only forty-three references among the 36,500 entries relating to German petitioners. On average, their rate of appearance is barely more than 1000th, making it seem as if the few extant passages entered the documentation by scribal mistake rather than design. Does their exceptional presence attest to the effectiveness of canonical regulations prohibiting the registration of “occult cases”? Or does it prove their routine treatment under the seal of secrecy? In my view, their small number indicates neither, and needs to be interpreted in light of the fact that the texts assembled in the Repertorium are equally reticent about antonyms of the forum conscientiae such as the forum contentiosum and the forum contradictorium, which likewise figure on a mere handful of occasions. Apparently, the formulaic diction of the official letters was not intended to distinguish between papal mandates that were applicable to secret infractions and those addressing manifest cases. Instead, both penitential and judicial or “contentious” affairs were fused on a regular basis. Because acts of papal grace were directed at all jurisdictions simultaneously, scribes did not have to be specific about the envisioned branch. It was not until the 1480s that some of their peers adopted new language and began to speak of applicability “in either jurisdiction (in utroque foro),” recognizing expressly what had been tacitly assumed earlier on.Footnote 49

Throughout the documentation of the Poenitentiaria (and arguably much beyond), the validity of papal grace in the “occult” and contentious courts of the Church remains fuzzy and far from neatly conceptualized. Scribes were likely to employ certain stock phrases to intimate that a petition was formulated with a particular forum in mind. Aimed especially at the purpose of penance were requests made ad cautelam or “because it is proper for good minds (quia bonarum mentium est) to suspect fault where none is found,” each pointing toward the absence of legally relevant signs for a canonical defect.Footnote 50 Furthermore, appeals to the existence of invidious people (aemuli) and the need to silence them (ad ora talium obstruendum) tended to address the vast space occupied by widespread and anonymous ill repute (fama). The probability that judicial criteria were not in play was particularly high when supplicants asked for an apostolic exemption that would rest solely on their own narrative of the facts (sola assertione) and precluded any additional call for witnesses.Footnote 51 If, conversely, the consultation of outside testimony was explicitly enjoined (vocatis vocandis or admissis testibus), the case in question was typically framed to cover the eventuality of full-fledged Romano-canonical proceedings.Footnote 52 The dividing line between secret and non-secret penance, penitential and contentious matter, however, was on the whole not clearly marked by officials, who preferred to depict the various formats of norm enforcement as a continuum, with one leading to the other depending upon whether proof would meet only pastoral standards or juristic standards as well. Private confession did not hold a special place in this scheme. It was the gap between legal (probabilis) and nonlegal (or “penitential”) liability that had pivotal significance.

Conclusion

My inquiry into the sources of the late medieval Penitentiary questions neither the ubiquity of sacramental confession nor the routine performance of related penitential works under the seal of secrecy, which canonists and theologians had framed in theory and as an institution by the early thirteenth century. The argument challenges, however, the exclusive association of private penance with the “court of conscience” and its automatic equation with the forum internum of today. The source material assembled here shows that the period before the Council of Trent also assigned to the forum conscientiae transgressions and irregularities that were openly confessed or asserted by anonymous fama. The division between the two formats of ecclesiastical jurisdiction was not yet characterized by the criteria of private versus public scrutiny, and the penitential forum still processed information about canonical defects that did not have to be scrupulously guarded by confessors, but could be addressed alternatively in collective cleansing rituals or constitute common lore among the faithful. In his pioneering studies, Emil Göller himself emphasized the enduring centrality of public penance within the operations of the Poenitentiaria Apostolica, and pointed out that its pervasive presence was clearly at variance with the scholarly consensus of his time. Faced with the regular application of visibly administered atonement at the highest level of church government, he stressed the need for a separate treatment of the phenomenon. Ultimately, however, he was unable to fulfill his promise of a self-standing publication on the subject.Footnote 53

If it is historically accurate to maintain that late medieval penitential jurisdiction included public as well as secret allegations and was occult in the sense of providing inadequate evidence for ecclesiastical judges in the judicial sphere, one last objection is offered by previous scholarship, which has interpreted the relevant documentation very differently and in favor of a strict divide between the internal and external forum. What accounts for the persistence of such a view? Briefly put, it seems to me that modern investigators have focused their attention on just two aspects of the story. Their first concern has been the exact process by which divine grace was properly channeled toward the confessing subject, which scholastic thinkers delineated in increasingly uniform and definitive fashion during the formative years of systematic theology and canon law in the long twelfth century. The second query has concentrated on the origins of the seal that enjoined complete secrecy on private confession and received its lasting doctrinal shape at approximately the same time.Footnote 54 Chiefly interested in these research trajectories, historians have surmised rather than demonstrated that references to the penitential forum of conscience implied the existence of a forum externum and a forum internum in their current Catholic acceptance, regardless of the fact that the expressions themselves did not come into use before the 1500s.

Having restricted the use of original data to documentation from the Apostolic Penitentiary, my revisionist understanding of the terms occultus, forum poenitentiale, and “court of conscience” should also facilitate the comprehension of other texts related to late medieval penance, which abound in remarks that seem to defy traditional suppositions of a gulf between secret and public church jurisdictions. Pastoral handbooks regularly speak of cases as “occult” when a minimum of two or three knowing witnesses was not to be had. They refer to private confessions involving multiple priests and relatives of the confessant, and they are replete with legal jargon that better accounts for a procedural environment like the one I have delineated.Footnote 55 Allegations easily transit from the confessional to the judicial orbit, being scrutinized in openly staged proceedings that remain penitential only as long as the quality of the available evidence does not improve beyond hearsay or voluntary self-incrimination.Footnote 56 Numerous ecclesiastical court records attest to sins that were known to the community either through fama or as fact,Footnote 57 or they recount how mutually exclusive statements made in litigation were treated at face value rather than being rejected altogether because of their contradictory nature, which is further in keeping with a conception of “occult” proceedings that hinged not on privacy but on the absence of legally admissible evidence.Footnote 58

In connection with marriage litigation, the best-studied aspect of ecclesiastical court practice in recent decades, there are many illustrations of how the distinction between the two jurisdictions was ultimately grounded in the existence or nonexistence of legal proof. In her study of marital disputes brought before the patriarchal court of Venice, for example, Cecilia Cristellon has cited one particularly indicative passage from a case that in 1507 or 1508 pitted Martino, the son of Battista Cursi, and Giovanna, the daughter of Giovanni Liberale from Artegna, against each other. The matter was eventually concluded with the help of a formal oath. It was defined as “suppletory” (iuramentum suppletorium) and served to overcome a weak evidentiary situation by permitting both parties to go their separate ways. Concerning the jurisdictional nature of the decision, the recorded verdict is unusually explicit. “We,” the reader is informed by the judge's voice, “declare that nothing has been determined and established insofar as the contentious forum is concerned, in which it is possible to find only in accordance with what has been alleged (secundum allegata) and proven.” “However and with regard to the forum of conscience,” the passage continues, “the matter has been decided and in proper fashion.”Footnote 59

The standards of publicity and privacy were equally irrelevant in several rulings from the bishop's court of Augsburg in Southern Germany, which have been preserved and edited as part of a register for the years from 1348 to 1352. The source contains a handful of letters in which the diocesan judge (officialis) ordered a local curate to (re)admit previously excluded parishioners to his sacramental blessings. The beneficiaries were couples whose matrimonial status was cast in doubt, which enabled their confessor to withhold communion until they obtained clearance from the officialis. On November 5, 1350, one of the mandates was sent to the parish priest (plebanus) of Weilheim. It was issued on behalf of Berchtold Kolpel and Adelhaid Heinrichs who publicly and lawfully admitted to have married each other by present consent and lived together legitimately for more than 18 years. Based on their testimony, the episcopal judge instructed the plebanus to confer the sacraments to them despite the fact that Berchtold also maintained to have previously and clandestinely contracted marriage with a different woman, Diemut Riberin. If proven, this earlier wedding would have nullified the more recent exchange of vows between Berchtold and Adelhaid. Because Berchtold could not substantiate his allegation in court, however, his union with Adelhaid was allowed to stand until further notice.Footnote 60

Following the narrative, the parish priest at Weilheim must have suspended Adelhaid and Berchtold from access to the sacraments when he heard that they might not be legitimate spouses as a result of Berchtold's revelation of a previous commitment to Diemut. The confessor's sanction clearly belonged to the forum of conscience because on the parochial level he did not possess the authority to assess the existence of a canonical marriage in legal terms. The competency to do so rested instead with the ordinary judge in the person of the bishop's officialis, who for his part did not encounter proof strong enough to undo the questionable tie between Adelhaid and Berchtold and confirm his purported pre-contract. The correspondence between Weilheim and Augsburg thus covered the distance between an assessment in the confessional context on the one hand and a full-fledged judicial evaluation on the other. There was ultimately no case from a lawyer's viewpoint, whereas Berchtold's own confession made him appear guilty of adultery and illicit cohabitation from a pastoral perspective with its focus on sin. As in other letters of toleration granted to retain spiritually although not juristically compromised spousal bonds, the written record of the episode attests to a continuum of clerical intervention that was not concerned with privacy in the modern sense of the word. In Weilheim and elsewhere, the suspension from holy rites ended as soon as confirmation arrived from Augsburg that a partner's self-accusation was devoid of forensic probabilitas.Footnote 61 The incidents were known in a way that canon law today would define as “external,” and the same is suggested by the survival of information about them in a register created for ready inspection.

The articulation of a neat distinction between private and public church proceedings, between a forum externum and a forum internum, marked the final point in a development that conceptually and in practice had to await early modernity. That the sixteenth century constituted a moment of profound reorientation in the realm of penitential discipline is again indicated by the principal subject of my analysis, the Apostolic Penitentiary, which in the immediate aftermath of Trent was subjected to a thoroughgoing attempt at administrative reform. In 1569, Pope Pius V issued a series of four statutes in which he transferred most of the staff and much of the business traditionally dealt with in the Poenitentiaria to the Apostolic Chamber. The main thrust of the papal initiative appears to have been in the direction of eliminating litigious affairs and reducing the workload to what were perceived as “nonlegal” matters.Footnote 62 It is now possible to study the intent and actual impact of the papal intervention on the basis of contemporary archival records.Footnote 63 In addition, future research on penance during the period may benefit from the argument of this study, because it calls attention to the hitherto neglected possibility that the formation of both the internal and external forum was not an accomplishment of the time near 1200, but the result of events under the purview of Reformation historians.

Footnotes

1. Peter Biller, “Introduction,” in Handling Sin. Confession in the Middle Ages, ed. Peter Biller and Alastair J. Minnis (Woodbridge: Boydell & Brewer, 1999), 1–17; compare Goering, Joseph W., “The Internal Forum and the Literature of Penance and Confession,” Traditio 59 (2004): 175; and, for a slightly different version of the same article, The History of Medieval Canon Law in the Classical Period, 1140–1234, ed. Wilfried Hartmann and Kenneth Pennington (Washington, DC: The Catholic University of America Press, 2008), 379.

2. Footnote Ibid., 379 n. 1; Goering, “The Internal Forum,” 175 n. 1; Bruno Fries, Forum in der Rechtssprache (Munich: Beck, 1963), 149–230; Antonio Mostaza Rodriguez, “De foro interno iuxta canonistas posttridentinos,” in Acta conventus internationalis canonistarum, Romae diebus 20–25 maii 1968 celebrati (Vatican City: Typographia Vaticana, 1970), 269–94; and Arnaud Fossier, “Le for ‘interne’ de l’Église (XIIe–XIVe siècle): Entre ordre public et salut des âmes,” in Intus et foris. Une catégorie de la pensée médiévale?, ed. Manuel Guay, Marie–Pascale Halary, and Patrick Moran (Paris: Presses de l'Université de Paris-Sorbonne, 2013), 57–67.

3. Bergfeld, Christoph, “Zur Jurisprudenz des Forum internum,” Ius commune 16 (1989): 133–47, has reinforced the idea of a medieval internal forum by surmising that post-Tridentine recourse to the term indicated a reduction of secrecy requirements and anticipated the present-day distinction between a forum internum sacramentale and a forum internum extra-sacramentale in the Catholic Codex iuris canonici of 1983; compare also Erdö, Peter, “Foro interno e foro esterno nel diritto canonico. Questioni fondamentali,” Periodica de re canonica 95 (2006): 3–35.

4. The tripartite periodization of medieval penance has found its classic expression in Cyril Vogel, Les “libri paenitentiales” (Turnhout: Brepols, 1978), 34–59.

5. Sarah Hamilton, The Practice of Penance, 900–1050 (Oxford: Oxford University Press, 2001), 1–11; and Rob Meens, Penance in Medieval Europe, 600–1200 (Cambridge: Cambridge University Press, 2014).

6. Mary Mansfield, The Humiliation of Sinners. Public Penance in Thirteenth-Century France (Ithaca, NY: Cornell University Press, 1995); and Friederike Neumann, Öffentliche Sünder in der Kirche des Spätmittelalters. Verfahren–Sanktionen–Rituale (Cologne: Böhlau, 2008).

7. Richard H. Helmholz, Canon Law and the Law of England (London: The Hambledon Press, 1987); and Richard H. Helmholz (ed. John Baker), The Oxford History of the Laws of England I: The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s, (Oxford: Oxford University Press, 2004), 565–642.

8. Cecilia Cristellon, La carità e l'eros. Il matrimonio, la Chiesa, i suoi giudici nella Venezia del Rinascimento (1420–1545) (Bologna: il Mulino, 2010), 135–84; compare also Elena Brambilla, Alle origini del Sant’Uffizio. Penitenza, confessione e giustizia spirituale dal medioevo al xvi secolo (Bologna: il Mulino, 2000), 202: “La confusione che si verifica in tal modo tra foro interno ed esterno è tale che dà luogo a un vago senso di vertigine e sfida ancora oggi le facoltà di comprensione degli storici non esclusa la mia”. (“The confusion created in this way between the internal and external forum is such that it provokes a vague sense of vertigo and challenges the comprehension of historians to this day, my own not excluded”.)

9. The fundamental study is by Stephan Kuttner, “Ecclesia de occultis non iudicat. Problemata ex doctrina poenali decretistarum et decretalistarum a Gratiano usque ad Gregorium PP. IX,” in Acta Congressus iuridici internationalis VII saeculo a Decretalibus Gregorii IX et XIV a Codice Iustiniani promulgatis, Romae 12–17 novembris 1934, 4 vols (Rome: Pontificium Institutum utriusque iuris, 1935–37), 3:227–46.

10. Jacques Chiffoleau, “‘Ecclesia de occultis non iudicat’? L’Église, le secret, l'occulte du XIIe au XVe siècle,” Micrologus 14 (2006): 359–481.

11. Captured in the proverbial phrase, “The judge does not find in accordance with his conscience but with what is alleged,” which has been tracked in medieval legal discussion by Knut Wolfgang Nörr, Zur Stellung des Richters im gelehrten Prozess der Frühzeit. Iudex secundum allegata non secundum conscientiam iudicat (Munich: Beck, 1967).

12. Simon de Bisiniano, Summa ad C.6 q.6 c.2, Episcopus … quamdiu viderit reo crimen non posse probari: “per testes, non proferat sententiam. Nam si faceret, occultum crimen puniret quod canonibus interdicitur. … Sed quamdiu ipse episcopus crimen quod solus novit probare per testes non potest, nichil proferat … . Punire enim non potest quia non ut iudex sed ut Deus novit;” (“Whenever the bishop … realizes that he cannot prove the defendant’s sin: by way of witnesses, he shall not issue a sentence. Because if he did he would punish an occult sin which is prohibited by the canons. … But whenever the same bishop cannot prove through witnesses a sin that he alone knows, he shall not issue [a sentence] … . For he cannot punish since he knows not as judge but as God [through confession]”.) cited after Nörr, Zur Stellung des Richters, 41.

13. Huguccio (fl. 1188–90), Summa ad C.6 q.2 c.2, non potest: “Dico si tamen notum sit episcopo ut iudici scilicet ordine iudiciario scilicet per convictionem vel confessionem factam in iure; aliter qualitercunque sciret sive ut homo sive ut Deus non preiudicabat;” (“I say, however, that if it was known to the bishop as judge that is, through the judicial order that is, through conviction or a confession made lawfully; otherwise, in whichever way he knew, whether as man or as God, it would not be prejudicial”.) compare Nörr, Zur Stellung des Richters, 42, where the entire canonistic debate about lawful sentencing “as judge (ut iudex)” versus judgment “as man (ut homo)” or “as God (ut Deus)” is summarized as well, ibid., 36–65.

14. See Atria Larson, Master of Penance. Gratian and the Development of Penitential Thought and Law in the Twelfth Century (Washington, DC: The Catholic University of America Press, 2014); with ample bibliography.

15. Raimundus de Pennaforte (ed. Xaverio Ochoa and Aloisio Diaz), Summa de poenitentia, (Rome: Institutum iuridicum Claretianum, 1976); the gloss of Guilelmus Redonensis (with the wrong ascription to John of Freiburg) accompanies Raymond's text in Summa sancti Raymundi de Peniafort Barcinonensis de poenitentia et matrimonio cum glossis Ioannis de Friburgo (Rome: Johannes Tallini, 1603; repr. Farnborough: Gregg, 1967).

16. Among the salient passages, see Raimundus de Pennaforte, Summa 3.29 (De lapsis et dispensationibus), no. 2, ed. Ochoa and Diaz, col. 692: “Si vero sunt manifesta per famam deficiente accusatore et probatione legitima indicetur purgatio qua prestita absolvetur. Si in ea defecerit deponetur;” (“If the sins are manifest by way of hearsay and in the absence of any formal accuser or legitimate proof, purgation will be imposed. Once it has been performed, he [the clerical suspect] will be absolved. If he fails in it, he will be deposed”.) Guilelmus Redonensis, in Summa 3.33 (De sententiis praecepti definitionis et excommunicationis), no. 43, on publica fama, ed., 424a: “Si autem publica fama est aliquem esse excommunicatum ex facto occulto contra quem non est publicata sententia super hoc non teneor talem vitare nisi tunc demum cum super hoc se purgare recusaverit.” (“If public hearsay maintains that someone is excommunicated for an occult wrong and there is no formal sentence issued on account of it, I am not held to avoid him as long as he does not refuse to purge himself from it”.)

17. For introductory information, see Kirsi Salonen and Ludwig Schmugge, A Sip from the Well of Grace. Medieval Texts from the Apostolic Penitentiary (Washington, DC: The Catholic University of America Press, 2009); and Peter Clarke and Patrick Zutshi, Supplications from England and Wales in the Registers of the Apostolic Penitentiary, 1410–1503, 3 vols. (Martlesham: Boydell & Brewer, 2013–15), 1:xiii–lviii. Fossier, “Le for ‘interne’ de l’Église,” 61–67, has already consulted sources of the Poenitentiaria with the same question in mind.

18. Repertorium Poenitentiariae Germanicum (hereafter RPG), ed. Ludwig Schmugge (vols 1–7, Tübingen: Niemeyer, 1996–2008; vols 8–9, Berlin: de Gruyter, 2012–14).

19. None of my statistical observations would have been possible without the exhaustive word indexes to the RPG series, compiled by Ludwig Schmugge and Hildegard Schneider–Schmugge.

20. RPG 6 no. 2268, RPG 8 no. 2624, and RPG 9 no. 1876, speak of poenitentia secreta. Procedural issues are called “secret” in RPG 3 no. 71, RPG 3 no. 583.

21. “Cum autem exponens (sc. Stanislaus) nisi ut premittitur culpabilis non est et est negotium secretum cupitque in suis ordinibus Domino famulari, supplicat igitur exponens quatenus secum premissis non obstantibus in suis ordinibus libere et licite ministrare valeat misericorditer ad cautelam dispensari de gratia speciali. – Fiat ut infra, Nicolaus. Signanda in foro conscientie tantum ex quo quia occultum,” (“Because the petitioner [Stanislaus] is not culpable except in the manner stated above and the matter is secret and he wishes to serve the Lord in his orders, he requests that the aforementioned notwithstanding he may be dispensed out of charity, for the sake of caution, and by special grace to administer in his orders freely and licitly. – It shall be done as below, Nicholas. The letter must be signed only in the forum of conscience because the matter is occult”.) RPG 1 no. 485. RPG 7 no. 2268 uses secretus and occultus synonymously.

22. RPG 1 no. 485 (cf. note 19), RPG 1 no. 520, RPG 2 no. 1040, RPG 3 no. 252 (note 26), RPG 8 no. 139, RPG 8 no. 140, RPG 8 no. 210. Occultus appears alone in RPG 4 no. 10, RPG 5 no. 782 (note 23), RPG 5 no. 2033 (notes 27–28), RPG 6 no. 2022, RPG 8 no. 1146, RPG 9 no. 1848; combined with secretus in RPG 7 no. 2268.

23. In addition to the seven occurrences listed in the previous footnote, in foro conscientiae is used in RPG 1 no. 596, RPG 2 no. 404, RPG 2 no. 748, RPG 2 no. 825, RPG 2 no. 880–81, RPG 2 no. 969, RPG 4 no. 1763, RPG 5 no. 1164, RPG 5 no. 2112, RPG 5 no. 2121, RPG 5 no. 2170, RPG 6, no. 1049, RPG 7 no. 3758, RPG 7 no. 2382, RPG 7 no. 2456, RPG 7 no. 2646 (also note 31), RPG 8 no. 210, RPG 8 no. 1662, RPG 8 no. 1748, RPG 8 no. 3262, RPG 8 no. 3282 (notes 29–30), RPG 8 no. 3305, RPG 8 no. 3311, RPG 8 no. 3323, RPG 9 no. 1422, RPG 9 no. 1606, RPG 9 no. 1672, RPG 9 no. 1829.

24. RPG 2 no. 928 (in foro confessionis); RPG 7 no. 2620 (in foro animae). RPG 8 no. 2633, RPG 8 no. 3235, RPG 9 no. 924, and RPG 9 no. 1790, all have in foro poenitentiali.

25. RPG 5 no. 782: “Tamen id occulto tenens suum adiit confessorem quomodo in huiusmodi causa se tenere deberet quod penitus omnibus hominibus incognitum esset et persuasa est, ut super huiusmodi actu fornicario etiam in quarto affinitatis gradu ipsa cum marito suo coniuncta sit. Petit ab huiusmodi fornicatione absolvi necnon dispensari ut in sic contracto matrimonio libere et licite nullis desuper adhibitis testibus remanere possit cum legitimatione prolis.” (“Keeping this occult, however, she approached her confessor asking how she should comport herself in this case given that it was completely unknown to all people and she was persuaded that due to this act of fornication she had become related to her husband in the fourth degree of affinity. She now petitions to be absolved from her fornication and to be dispensed that she can freely and licitly remain in her thus contracted marriage without recourse to witnesses in the matter and including the legitimization of her offspring”.)

26. A marriage was canonically invalid if one partner had contracted the impediment of sexual affinity as in the case of Elizabeth Wagnerin; compare Richard Helmholz, Marriage Litigation in Medieval England (Cambridge: Cambridge University Press, 1974), 74–111; and Charles Donahue Jr., Law, Marriage, and Society in the Later Middle Ages. Arguments about Marriage in Five Courts (Cambridge: Cambridge University Press, 2007), 33–41.

27. For joint petitions by couples in foro conscientiae, see RPG 3 no. 252, RPG 4 no. 10, RPG 6 no. 1049, RPG 8 no. 139, RPG 8 no. 140, RPG 8 no. 1146; also notes 26 and 39.

28. RPG 3 no. 252: “<Ad cognitionem> vero exponentium pervenit quod frater Georgii dictam Elizabeth pluries in loco publico in quo tunc stetit ante contractum matrimonium actu fornicario cognovit. Premissa autem sunt occulta.” (“It came [to the] petitioners’ [knowledge] that George’s brother repeatedly had sex with Elizabeth in the public place where she stayed then and before contracting marriage. This, however, is occult”.)

29. RPG 5 no. 2033: “Georgius Kramer de Pruck in Styria scolaris Salzeburgensis diocesis ibidem presens exponit quod cum olim ipso existente etiam circiter annorum XVIII et in servitio cuiusdam laici adductus fuerit in domo dicti laici quidam homo cuius conditionis dictus exponens ignorabat intimatum fuit dicto exponenti a quodam nobili cum furia quod … deberet associare dictum hominem usque ad certum locum quod propter timoris causam fecit. Postea predictus homo evasit forsan per duas horas et post evasionem et in absentia dicti exponentis ab aliquibus aliis hominibus captus fuit et ad mortis supplicium condempnatus.” (“George Kramer of Pruck in Styria, a scholar from Salzburg diocese and here present explains that when he once was at the age of 18 and in the service of a certain layman, a certain man whose condition the said petitioner [George] did not know was led to the said layman’s house. The said petitioner was angrily told by a certain nobleman that … he ought to accompany the said man to a certain place which [the petitioner] did out of fear. Afterwards the said man escaped for about two hours, was caught again in the petitioner’s absence by certain other people and condemned to death”.)

30. Footnote Ibid.: “Cum autem nonnulli simplices asserant dictum exponentem premissorum occasione excommunicationis sententiam incurrisse, ad ora predictorum emulorum obstruendum … <supplicat> ipsum nullam excommunicationis sententiam ac nullam irregularitatis maculam premissorum occasione contraxisse … <declarari mandare dignemini> ut in forma. … Et committatur episcopo Civitatis Castelli cum negotium sit occultum.” (“Because certain simple folk assert that the said petitioner has incurred the sentence of excommunication due to the aforementioned … he requests that you [the poenitentiarius maior] deign to let declare formally that he [the petitioner] has not incurred any sentence of excommunication nor any stain of irregularity due to the aforementioned. … And the matter shall be committed to the bishop of Città di Castello because it is occult.”)

31. RPG 8 no. 3282: “Cum autem exponens non animo offendendi cum dictis sociis iverit, dictum laicum numquam percusserit ac de illius morte ab intimis doluerit, a nonnullis tamen simplicibus asseritur ipsum homicidii reatum incurrisse, ad ora talium obstruenda ac ad tollendum dubitationem quam habet in mente sua supplicat.” (“Because the petitioner did not go with the said companions intending to hurt anyone, never struck the said layman, and deeply regrets his death, but certain simple folk still assert that he incurred the crime of homicide, he makes his request in order to obstruct their voices and overcome the doubt he has in his own mind.”)

32. Footnote Ibid.: “In foro conscientie tantum nullis super his adhibitis testibus;” (“Only in the forum of conscience and without recourse to witnesses.”) echoing Elizabeth Wagnerin's words, in note 23: “Nullis desuper adhibitis testibus.”

33. RPG 8 no. 2646: “Et quia exponens super premissis eius audita confessione etiam quoad ministerium altaris in foro conscientie tantum reconciliatus fuerit, dubitat tamen ne a nonnullis simplicibus et iuris ignaris asseratur ipsum propter premissa homicidii reatum incurrisse, ad ora igitur talium obstruenda supplicat. … Committatur ordinario si vocatis vocandis qui fuerint evocandi sibi de assertis constiterit declaret ut petitur.” (“Because the petitioner, once his confession was heard, was reconciled on account of the aforementioned only in the forum of conscience and with regard to the altar services and he doubts whether certain simple and legally ignorant folk may assert that he has due to the aforementioned incurred the crime of homicide, he petitions in order to silence their voices. … [The matter] shall be committed to the ordinary [judge] who may declare as requested if after calling those who need to be called [as witnesses] everything asserted is evident to him”.)

34. Die Pönitentiarieformularsammlung des Walter Murner von Strassburg. Beitrag zur Geschichte und Diplomatik der päpstlichen Pönitentiarie im 14. Jahrhundert, partly edited by Matthäus Meyer (Fribourg: Universitätsverlag, 1979); for a biobibliographical sketch of Walter, see ibid., 11–18.

35. Footnote Ibid. 493 (no. 901): “Sua nobis Johannes scolaris vestre diocesis lator presencium peticione monstravit quod ipse olim tempore sue infancie fuit expositus et in quadam ecclesia seu hospitali dicte diocesis Domino providente repertus. Cum itaque qui fuerint sui parentes penitus ignoratur et ipse ascribi desiderat milicie clericali ut asserit timeatque ne aliqui simplices sibi maculam illegitimitatis imponant supplicari fecit humiliter super his sibi per Sedem Apostolicam de opportuno remedio misericorditer provideri. Nos igitur … circumspeccioni vestre committimus quatenus si dictus scolaris super deffectu natalium non est diffamatus sed semper vixit ut legitimus quod sue consciencie relinquatur aut si forsan infamatus est et nichil illegitimitatis contra eum probari potest <post> eius purgacionem canonicam ipsum legitimum nuncietis;” (“In his petition John, a scholar from your diocese and carrier of the present [letter] showed that during his childhood he was exposed and with God’s help recovered in a church or hospital of the said diocese. Because it is completely unknown who his parents were and he expressly wishes to join clerical rank and worries that certain simple folk may attribute to him the stain of illegitimacy, he humbly requests that out of pity the proper remedy may be provided to him by the Apostolic See in this matter. We therefore commit to your attention that if the said scholar is not defamed for illegitimate birth but always lived as if he was legitimate, it shall be left to his conscience; or, if perhaps he is defamed and no illegitimacy can be proved against him you shall declare him legitimate after he has performed canonical purgation”.) concerning illegitimacy as an impediment to (priestly) ordination, see Wertheimer, Laura, “Illegitimate Birth and the English Clergy, 1198–1348,” Journal of Medieval History 31 (2005): 211–29; and Ludwig Schmugge, Kirche, Kinder, Karrieren. Päpstliche Dispense von der unehelichen Geburt im Spätmittelalter (Zurich: Artemis Verlag, 1995).

36. On (com)purgation in canon law doctrine and ecclesiastical court practice, see Antonia Fiori, Il giuramento di innocenza nel processo canonico medievale. Storia e disciplina della “purgatio canonica” (Frankfurt/M.: Vittorio Klostermann, 2013); Richard H. Helmholz, “The Law of Compurgation,” in The Ius Commune in England. Four Studies (Oxford: Oxford University Press, 2001), 90–124.

37. Failed purgation usually led to public penance; compare notes 9 and 55.

38. Die Pönitentiarieformularsammlung des Walter Murner 219 (no. 166): “Post factum vero ad ipsius clerici pervenit notitia quod inter eos fuerunt aliqui clerici interfecti, verum cum ipsi clerici in nullo portarunt habitum clericalem et ipsos clericos penitus ignoravit, ne aliqui emuli ipsum clericum reputant aliquam canonis sententiam incurrisse supplicari fecit humiliter. … Nos igitur auctoritate etc. discrecioni tue committimus quatenus si per proprium iuramentum ipsius clerici si alias probari non possit rem ita inveneris esse non reputes eum ex predictis in predictam canonis sententiam incidisse.” (“Afterwards it came to the same petitioner’s notice that a few clerics among them were killed, but because these clerics did not wear any clerical habit and he did not know them at all, he humbly petitioned lest certain invidious people would think that he somehow incurred the sentence of the canon. … Hence we by the authority of etc. commit to your discretion that if by the cleric’s own oath and provided it cannot be proven otherwise you find [his assertions] to be correct, you shall not consider him for the aforementioned as someone who has incurred the said sentence of the canon”.)

39. Footnote Ibid. 236 (no. 211): “Cum de morte ipsius hominis quem litere continent ad cautelam presentibus intercluse idem presbyter non est certus nec habet conscientiam probabiliter remordantem si aliud canonicum non obsistat permittatis eum in suis ordinibus ministrare.” (“Since the priest is not certain about the death of the man in the letter that for the sake of caution has been enclosed in the present one and does not have a verifiably bad conscience, you ought to permit him to administer in his orders unless something else that is canonical stands against it”.)

40. Footnote Ibid. 220 (no. 170); the text is poorly transcribed and requires correction: “Ex tenore litterarum vestrarum accepimus quod cum talis presbyter de morte cuiusdam hominis infamatus indicta [ed.: in dicta] purgacione sibi defecerit ac quidam coram vobis [ed.: nobis] iurantes dicti homicidii esse reum vos eumdem sentencialiter officioque beneficio privatum ad Sedem Apostolicam destinastis super eo consilium petiturum. Verum cum ipsius contraria vestris litteris videatur eo quod dicit se illorum testimonio condempnatum qui ipsum odio persequuntur antiquo per vos [ed.: nos] suis expurgacionibus non admissis sicut vobis placuit et dixistis et se asserit obiecti criminis lesam conscienciam non habere … nos igitur etc. ipsum presbyterum ad vos duximus remittendum circumspeccioni vestre committentes ut relaxacionem eius meritis sufragantibus, revocato per vos iniusto gravamine pena penitencie non puniatur quem [ed.: quam] secura conscientia non accusat.” (“We learn from your letter that when the said priest who had been defamed on account of a certain man and failed in the purgation that was imposed on him and after some people swore that he was accused of homicide and he was sentenced to be deprived of his benefice, you sent him to the Apostolic See to seek counsel in the matter. But because his own letter seems to go against yours insofar as he says that he was condemned by the testimony of people who pursued him with long-standing hatred and that his purgation was not admitted by you and your will as you have stated and because he asserts that his conscience is not hurt by the alleged crime … we etc. have decided to remit the same priest to you and commit it to your attention that, if his merits warrant relaxation and once the unjust imposition has been revoked by you, he shall not be punished with penance whom an informed conscience does not accuse”.)

41. Footnote Ibid. 381–82 (no. 578): “In foro penitentie nullis super hoc adhibitis testibus nullisque concessis litteris sed presentibus laniatis;” (“In the forum of penance without the use of witnesses in this matter and without the concession of a letter and after tearing apart the present one”.) ibid. 473 (no. 852): “In foro conscientie tantum [ed.: tamen] nullis super hoc adhibitis testibus nullisque concessis litteris sed presentibus laniatis;” (“Only in the forum of conscience without the use of witnesses in this matter and without the concession of a letter and after tearing apart the present one”.) compare notes 23 and 30.

42. RPG 3 no. 107 (in foro contradictorio); RPG 7 no. 2626 (in foro contentioso); RPG 8 no. 2663 (in utroque foro tam ecclesiastico quam penitentiali et iudiciali ac contentioso); RPG 9 no. 1422 (in foro conscientie et contentioso); RPG 9 no. 1790 (in penitentiali, ecclesiastico, seculari, iudicali et contentioso foro).

43. On the internal organization of the Poenitentiaria, see, especially, Emil Göller, Die päpstliche Pönitentiarie von ihrem Ursprung bis zu ihrer Umgestaltung unter Pius V, 2 vols in 4 parts (Rome: Loescher, 1907–11), 1.1.85–184, 1.1.202–12, 2.1.9–82, 2.1.90–131. More recent work on the officium maius and minus (my own included) has simplistically described the two as in full alignment with the distinction between the forum externum and the forum internum, for example, Müller, Wolfgang P., “Violence et droit canonique: les enseignements de la Pénitencerie apostolique (XIIIe–XVIe siècle),” Revue historique 131 (2007): 774–96; Clarke and Zutshi, Supplications, 1:xiii n. 2.

44. Göller, Die päpstliche Pönitentiarie, 1.1.185–202, 2.1.82–89. Salonen and Schmugge, A Sip from the Well of Grace, doc. 1, reproduces one of the few surviving litterae ecclesiae (of 1447) known at the moment; it closely follows one of the model letters in Die Pönitentiarieformularsammlung des Walter Murner, 221–22 (no. 175, 177); another such littera (signature: Karlsruhe, Generallandesarchiv, Offenburg–Gengenbach 30/66; dated September 19, 1404) is mentioned by Göller, Die päpstliche Pönitentiarie, 2.1.87.

45. Emil Göller, “Das alte Archiv der päpstlichen Pönitentiarie,” in Kirchengeschichtliche Festgabe, Anton de Waal zum goldenen Priesterjubiläum dargebracht (Rome and Freiburg: Armani & Stein, 1913), 15–19.

46. “Item littere super peccatis et criminibus occultis et verecundiosis et vituperosis ac de quibus si publicarentur scandala et pericula possent illis quorum sunt et ipsarum litterarum portatoribus evenire fiant clause,” (“Also letters about sins and occult, shameful, and reprehensible crimes and those that, should they be published could lead to scandal and danger for those who committed them or for the carriers of those letters, ought to be closed”.) ibid., 18; from the fifteenth century Notabilia de modo scribendi litteras penitentiarie, ed. Göller, Die päpstliche Pönitentiarie, 1.2.88.

47. “Et si bulla erit clausa capit tantum unum carlenum pro auditore et tres quatrenos pro cera ex quo non registratur,” (“And if the bull is closed it fetches only one carlenus for the auditor and three quatreni for the wax because it is not registered”.) Göller, “Das alte Archiv,” 18 n. 2; cited after a list of taxae kept by the Penitentiary and compiled between 1525 and 1530, ed. idem, Die päpstliche Pönitentiarie, 2.2.177.

48. “Gravia exinde scandala verisimiliter possent exoriri,” the risk of scandal, and not the breach of the confessional seal is formulaically tied to the term occultus; compare Fossier, Arnaud, “‘Propter vitandum scandalum’. Histoire d'une catégorie juridique (XIIe–XVe siècle),” Mélanges de l’École française de Rome–Études médiévales 121 (2009): 317–48.

49. In utroque foro is first inserted under Innocent VIII (1484–92), RPG 7 no. 1687 (of May 20, 1486); from the time of Alexander VI (1492–1503), the term distinguishes “secular” from “ecclesiastical” justice (RPG 8 no. 2250, RPG 8 no. 2658, RPG 8 no. 3146, RPG 9 no. 1588–89), or the “penitential” from the “judicial” forum (RPG 8 no. 2663, RPG 9 no. 1431); compare notes 18–22, 40.

50. As in RPG 2 no. 880: “Cum … bonarum mentium est ibi culpam timere ubi culpa minime reperitur pro serenatione conscientie … supplicat quatenus in foro conscientie a premissis excessibus … dispensari mandare dignemini;” (“Because … it is the mark of good minds to suspect guilt where none is found so as to render one’s conscience serene … he petitions that in the forum of conscience you deign to have him dispensed … from the aforementioned excesses”.) and the passage quoted in note 39.

51. RPG 8 no. 3282: “Supplicat quatenus … in foro conscientie tantum nullis super his adhibitis testibus <declarari mandare dignemini>. … – Committatur confessori ut si per confessorem supplicantis sibi constiterit de assertis declaret ut petitur;” (“He petitions that … <you deign to have him declared> only in the forum of conscience and without recourse to witnesses … – He shall be committed to his confessor so that if what is asserted has been verified by the petitioner’s confessor and stands he shall declare as requested”.) also notes 29–30.

52. This is what the earlier-mentioned John Loeder must have prepared himself for in 1491, note 31.

53. Göller, Die päpstliche Pönitentiarie, 1.1.VII; idem, “Das alte Archiv,” 13. At the time of Göller's death, the list of his publications only included works on early medieval penance, see Fink, Karl August, “Verzeichnis der Schriften Emil Göllers,” Römische Quartalsschrift 41 (1933): 9–13.

54. The literature is enormous, from Bertrand Kurtscheid, Das Beichtsiegel in seiner geschichtlichen Entwicklung (Freiburg im Breisgau: Herder, 1912); trans. F. A. Marks (ed. Arthur Preuss), A History of the Seal of Confession (Saint Louis and London: Herder, 1927); to Larson, Master of Penance.

55. Interpreters have long struggled to explain the heavily juristic emphasis in guides for confessors, which does not fit modern expectations of how the internal forum would work; compare note 15, and especially Trusen, Winfried, “Zur Bedeutung des geistlichen Forum internum und externum für die spätmittelalterliche Gesellschaft,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische Abteilung 76 (1990): 254–85.

56. At all levels of ecclesiastical jurisdiction, including the trials against higher prelates analyzed by Julien Théry, “Fama. La opinion publica como presuncion legal. Apreciaciones sobre la revolucion medieval de lo inquisitorio (siglos XII–XIV),” in De jure. Nuevas lecturas sobre derecho medieval, ed. Eleonora Dell'Elicine, Paola Miceli, Alejandro Morin, Claudio Azzara (Buenos Aires: Ad-Hoc, 2009), 201–43.

57. Most consistently in registers from the abbey of Cerisy in Normandy, Gustave Dupont, ed.,“Le Registre de l'officialité de l'abbaye de Cerisy, 1314–1447,” Mémoires de la société d'antiquaires de la Normandie 30 (1880): 294 (no. 9f) and passim.

58. For example, ibid. 304 (no. 25c). The most important canonistic textbook, the Liber extra (hereafter X) of 1234, ed. Emil Friedberg, Corpus iuris canonici 2 (Leipzig: Bernard Tauchnitz, 1881), contains part of a decretal by Gregory IX that advises ecclesiastical judges to be agnostic about the oath of a woman in favor of her own matrimonial claim. If the judicial decision went against her, the court was not to grant her license to wed another in order not to encourage perjury. It was better to leave the question of a subsequent marriage to her, X 2.24.34: “Mulieri que in iure prestito iuramento asseruit virum talem in ipsam per verba de presenti matrimonialiter consensisse probationes alias non habenti viro ab eius impetitione per sententiam absoluto non debes licentiam dare cum alio matrimonium contrahendi ne auctor periurii videaris. Nec hoc ei dicimus prohibendum ne forte si falsum iuraverit matrimonium contingat legitimum impediri, sed suae conscientiae est potius reliquendum.” (“To the woman who by oath and not by any other proof has lawfully asserted that this man consented to her in marriage by words of present consent and after the man was sentenced to be absolved from her claim, you must not grant her license to contract with someone else lest you appear as the author of perjury. Nor do we say to prohibit it lest she be kept from a legitimate marriage in case she swore falsely, but it rather must be left to her own conscience”.) For Gregory IX, not privacy, but the impossibility of legal verification marked the sphere of conscience.

59. Venice, Archivio storico del patriarcato di Venezia, Curia patriarcale. Sezione antica, Causarum matrimoniorum, vol. 9 [Martino quondam Baptiste Cursi v. Giovanna filia Johannis Liberalis de Arteno], cited after Cristellon, La carità e l'eros, 177 n. 158: “Quia quantum ad forum contentiosum in quo iudicandum est secundum allegata (see notes 11–13) et probata declaramus non constare neque probatum esse …; quantum autem ad forum conscientie proprie, iuxta formam capituli Mulieri, de iureiurando (X 2.24.34, as in the previous note).” (“Because as regards the contentious forum in which one must judge according to what is alleged and proven we declare that nothing is established and proven …; as regards the forum of conscience, however, is its properly established according to the form of the chapter Mulieri”.)

60. “Iudices curie Augustensis plebano in Wilhain salutem in Domino. Comparuerunt coram nobis in iure Berchtoldus dictus Kolpel calciator et Adelhaidis filia quondam Hainrici calciatoris et iurati publice confitebantur in iure se insimul matrimonium contraxisse per verba legitima de presenti ac insimul per decem et octo annos et amplius legitime cohabitasse. Quare vobis mandamus quatenus ipsos sinatis insimul matrimonialiter permanere ipsis ecclesiasiastica sacramenta ministrantes non obstante quod ipse Berchtold asserat se prius cum Diemudi dicta Riberin clandestine matrimonium contraxisse in cuius probatione defecit omnino,” (“The judges of the Augsburg court send their greetings to the parish priest of Weilheim. Berchthold Kolpel, shoemaker, and Adelhaid the daughter of the late Henry Shoemaker have appeared before us in law and confessed under oath publicly and in law that they contracted marriage together by word of present consent some eighteen years and longer ago and have legitimately cohabited since then. Therefore we order you to let them continue to live together in marriage and administer the ecclesiastical sacraments to them although Berchthold maintains to have contracted marriage at an earlier date and clandestinely with Diemut Riberin, which he has entirely failed to prove”.) Christian Schwab, ed., Das Augsburger Offizialatsregister (1348–1352). Ein Dokument geistlicher Diözesangerichtsbarkeit. Edition und Untersuchung (Cologne, Weimar, and Vienna: Böhlau, 2001), 159–60.

61. Additional letters of “tolerance,” signaled in the Augsburg register by the verbs sinere and permittere, deal with suspected marriage impediments of sexual affinity, ibid. 145, 148, 149, 191; spiritual affinity, ibid. 161–62; and pre-contract, ibid. 121–22, 132–33, 144–45, 263, and the previous note.

62. The fullest discussion of the sixteenth century reform efforts is by Göller, Die päpstliche Pönitentiarie, 2.1.90–131; for the accompanying fiscal considerations, see Wolfgang P. Müller, “The Price of Papal Pardon. New Fifteenth-Century Evidence,” in Päpste, Pilger, Pönitentiarie. Festschrift für Ludwig Schmugge zum 65. Geburtstag, ed. Andreas Meyer, Constanze Rendtel, and Maria Widmer–Butsch (Tubingen: Max Niemeyer, 2004), 461 n. 9, 473–74.

63. Since 2012, all of the extant medieval and early modern registers can be consulted in the archive of the Penitenzieria Apostolica at the Palazzo della Cancelleria in Rome, Italy.

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