Around 1139, Gratian, in his Decretum, cited Jerome, saying that the term cleric derives from the Greek word kleros (lot or portion) and thus, ‘Whoever would possess the Lord and with the prophet say “The Lord is my portion” cannot have anything else beyond the Lord.’Footnote 1 A century later, according to his own account, Salimbene de Adam left his father’s house to become a Franciscan friar and was rebuked by his father’s friend for being like the prodigal son.Footnote 2 In a vision, Jesus Christ then comforted him with words from the Franciscan Rule: ‘The Lord for us became poor in this world. This is that most exalted height of poverty which made you, my dearest brothers, heirs and kings of the kingdom of heaven … Let this be your portion, which leads to the land of the living.’Footnote 3 The canonist and friar, in two very different contexts, were both bound by the call of their own interpretations of religious poverty.
The twelfth and thirteenth centuries were a key period for both the development of the discipline of canon law and the explosive growth of ‘apostolic poverty’, but the relationship between the two has largely been ignored. An investigation into the canonists and jurists of this period reveals an evolution of legal ideas about voluntary religious poverty that at times seems opposed to the developments in religious life during this period, but upon deeper inspection is deeply connected to them.
Scholarship on religious poverty
The idea that followers of Christ should have no property, imitating Jesus and the Apostles, is a central thread in the development of Christianity. It has roots primarily in two passages: Matthew xix.21, ‘If you wish to be perfect, go, sell your possessions, and give the money to the poor, and you will have treasure in heaven; then come, follow me’; and Acts iv.32–5, ‘The whole group of those who believed were of one heart and soul, and no one claimed private ownership of any possessions, but everything they owned was held in common.’Footnote 4 As Peter Brown notes, this ideal was in constant tension with the existence of property among Christians and the need to manage it.Footnote 5 That the propertied should give to the holy poor, that is clergymen and monks, was a common solution in the late antique Church.Footnote 6 In the early Middle Ages, monastic interpretations of poverty predominated, requiring communal ownership of goods. As C. H. Lawrence notes, the Rule of St. Benedict links private property to the self that a monk must renounce.Footnote 7 This did not mean, however, that monastic communities were poor, since vast communally owned lands could enable all the monks in a monastery to live luxuriously, as became the case with reformed Benedictine monasteries such as Cluny, which accumulated vast wealth through pious donations.Footnote 8 By the eleventh and twelfth centuries, new eremitic interpretations emphasised distance from the world or renunciation of worldly connections, status and ostentation as key to religious poverty. The Grandmontines, Vallambrosians and Cistercians are examples of this trend. But separation from the world did not necessitate material penury, as seen in the case of the Cistercians, whose self-sustaining estates, though separated from the world, generated much wealth for the monks.Footnote 9
Soon thereafter, a new desire for apostolic poverty, understood as a lack of ownership of material goods, created new voluntarily poor communities, some condemned as heretical, such as the Waldensians, and others approved as religious orders, such as the Franciscans and Dominicans. Herbert Grundmann describes these as the ‘religious movements’ of the central Middle Ages, which both emphasised poverty and preaching.Footnote 10 As Beverly Kienzle notes, this complex development did not only include heretics and mendicants but also a large number of new cenobitic monastic orders, such as the Cistercians, eremitic orders, such as the Grandmontines, and orders of canons regular, such as the Premonstratensians, each with their own emphasis on and interpretation of religious poverty and the evangelical mission.Footnote 11
The causes of this growth in new interpretations of poverty were complex. M. D. Chenu notes that the Gregorian Reform had spread monastic ideals of poverty to the clergy and subsequently the laity. Poverty transformed from an ascetic practice into a social one, emphasising identifying with the lowly and rejecting social status.Footnote 12 Lester Little adds that different religious movements embraced (for example the Cluniacs and Cistercians) or rejected (for example the mendicant orders) a new commercial culture and emerging profit economy to different degrees in their interpretations of poverty.Footnote 13
Some historians, like Little, see the Order of Friars Minor, founded by St Francis of Assisi (1181–1226), as a culmination of the apostolic poverty movement, since it emphasised a radical renunciation both of private and common ownership of material goods in imitation of Christ and its history was marked by conflicts over this ideal.Footnote 14 This interpretation of poverty created many theoretical and practical problems. How were friars to survive without even communal property to sustain them? As Giacomo Todeschini notes, discussions of such issues created a theoretical framework in which use of goods was firmly distinguished from ownership of them.Footnote 15 As David Burr lays out, debates over the required strictness of poverty would eventually split the Franciscan Order into factions and create conflict between the stricter Spiritual Franciscans and the papacy. Eventually, in 1323, John xxii in Cum inter nonnullos declared heretical the idea that Christ and the Apostles had no property.Footnote 16 This rejection of a poor Church imitating a poor Christ would be repeated at the Blackfriars Council of 1382 in opposition to John Wycliff and the Lollards.Footnote 17
Scholarship on religious poverty is plentiful but largely neglects medieval canon law’s treatment of the subject, instead largely drawing from rules of religious orders, polemical theological treatises and papal declarations. Roger Bagnall notes that late antique monks (the holy poor) owning property was widely accepted in law, but he refers to Roman civil law, not canon law.Footnote 18 Todeschini mentions some canonists, but not their treatments of religious poverty, only their contributions to economic theories developed by the Franciscans as a byproduct of their debates about poverty.Footnote 19 Jonathan Robinson and Joseph Canning have discussed the use of ideas from canon law (such as natural law and papal plenitude of power) by Franciscans in their polemical writings supporting absolute poverty.Footnote 20 What is omitted, however, is how canonists themselves understood religious poverty and how this understanding changed over time.
Addressing this is necessary because canon law was the very framework by which the institutional Church operated in this period, heavily influencing those involved in religious poverty debates, including popes, bishops and friars. As Stephan Kuttner notes, a legal structure was necessary for any attempt to create a Christian society, and the discipline of canon law melded the legal means and spiritual ends of the Church.Footnote 21 Because of this necessity, education in canon law was widespread among the prelates of the Church. Pope John xxii, who denounced the poverty of Christ as heretical, was educated in and taught canon law;Footnote 22 likewise William Courtenay, the archbishop of Canterbury who condemned the idea of a poor Church at the Blackfriars Council, was also trained in canon law and advised by fourteen canonists at the council.Footnote 23 Scholars therefore cannot afford to ignore the intellectual developments surrounding religious poverty that occurred in the field of canon law in this period and how these developments relate to the evolving interpretations of religious poverty among the religious and laity.
Gratian
Gratian’s Decretum, written in two recensions between 1139 and 1158, is an influential milestone in the development of medieval canon law. It gave structure and method to a legal system full of a thousand years of seemingly contradictory statutes from multiple sources, including the Bible, writings of the Church Fathers, declarations of church councils and papal letters (decretals). Upon completion, the Decretum became the standard textbook of canon law, dominating the education of several generations of jurists.Footnote 24 Given this fact, Gratian’s views on religious poverty are the most natural place to begin.
In causa twelve, Gratian presents a hypothetical case of a cleric bequeathing property through a testament. This raises a series of questions, the first of which is whether clerics should be allowed to have any property at all. In addressing this question, Gratian cites twenty-eight different canons, first seventeen in favour of clerical poverty and then eleven which seem to qualify it. Gratian himself intervenes with his own opinion in several dicta. Footnote 25 From these canons and dicta we get a general sense of Gratian’s position.
Some canons prohibiting property are limited in scope, others more general. For example, canon 1 notes that young clerics, prone to stray, must live a common life for the purposes of discipline.Footnote 26 In contrast, canon 2, a letter of Pope Clement i to Christians in Jerusalem, states:
The common life is necessary to all, brothers, and especially to those who desire to fight blamelessly for God and wish to imitate the life of the Apostles and their disciples. For the common use of all things, which are in this world, ought to be for all men. But through iniquity one says this is his, and another that is his … We command and order you to obey the teachings and examples of the apostles.Footnote 27
Likewise, Pope Urban i in canon 9 states, ‘We know that you are not ignorant of the fact that thus far the common life among all Christians was strong, and thus far by God’s grace it thrives, and most of all among them, who are elected in the portion of the Lord, that is clerics.’Footnote 28 While one can dismiss the prohibition of property in canon 1 as applicable only to young clerics enticed by luxury, in the later canons, Popes Clement and Urban seem fairly unambiguous. All Christians ought to live without private property and have all things in common.
This, however, is not Gratian’s view. The very framing of this section already restricts religious poverty to clerics. Gratian’s dictum before canon 1 reads, ‘It is commanded by many authorities that clerics possess nothing.’Footnote 29 Thus, the seeming universality of Clement’s command in canon 2 is defanged from the start. Other canons in this section make it explicit that laypeople can have private property, unlike clerics. In canon 5, by Jerome, only clerics, whose name derives from kleros, meaning lot, and whose lot should be the Lord alone, are not allowed to have property. Jerome compares clerics to Old Testament Levites, writing, ‘If, moreover, I am part of the Lord … I do not accept portions among other tribes, but just as the Levite and priest I live from tithes … Having food and clothing, with these I will be content, and nude, I will follow the nude cross.’Footnote 30 The Levites alone among the twelve tribes of Israel did not have land but lived on the offerings of other tribes, which did have land. This restriction of religious poverty to clerics is even more explicit in canon 7, supposedly also by Jerome but in fact an eleventh-century forgery:
There are two types of Christians. One type, moreover, is surrendered to the divine office … such as clerics … For they, content with food and clothing, having no property among themselves, ought to have all in common. Indeed, there is another type of Christian, namely the laity. For laos is the people. For them, possessing temporal things is allowed, but not except for use. For nothing is more miserable than to scorn God because of money.Footnote 31
It is clear that laypeople are not allowed to hoard useless money but are allowed to possess private property in order to provide for their own survival. Clerics, on the other hand, are not even allowed this and must rely on communal property for survival.
Gratian does not challenge the fundamental principal of religious poverty for all clerics. After the canons in favour of poverty, Gratian simply states, ‘With all these, it is obvious that it is not allowed in any way for clerics to have anything of their own, and that if they were to have it, they will not be clerics.’Footnote 32
Canons seemingly contradicting this conclusion follow. Canon 18 notes that even though clerics must not have property, those that do are not automatically defrocked for it.Footnote 33 This weakens the enforcement of poverty without contradicting it. Canon 19 notes that bishops can bequeath their own property to their heirs, but not property belonging to the Church, which is unalienable.Footnote 34 This suggests bishops can have private property distinguishable from the communal property of the Church. Canons 20 and 21 reinforce the inalienability of church property in canon 19.Footnote 35 The next canon notes that if a bishop is in need, ‘For his necessities and the use of the pilgrim brothers and himself, he can acquire, so that he may not in any way be lacking.’Footnote 36 Canon 23 states that ‘the bishop has power over ecclesiastical property to distribute to all who are in need’, and the next canon reiterates this point.Footnote 37
Here Gratian describes his own interpretation of the preceding five canons, writing:
Is it not clearly shown that a bishop can freely have property? … Therefore, how is it that a cleric who wishes to have property will not be a cleric? … But it should be noted that eastern bishops have wives and sons, and some from our regions when they were laypeople or only in minor orders have wives and sons, and either from the death of the wife or carrying out a mutual vow of continence, ascend to sacred orders. To all of these it is conceded to have property for the use of themselves and their own [family]. However, those who from infancy are given over to the sacred army, in no way is it permitted for them to have property, since there is no excuse for them to have property, unless perhaps they abstain by refusing to partake in ecclesiastical expenses.Footnote 38
Gratian’s logical solution to the contradiction is insightful. He interprets canons permitting property to be mere exceptions. Since eastern bishops and some western clerics in special circumstances have wives and children, they need property to provide for their families. But aside from these exceptions, the general rule remains valid: clerics should not have private property. The last qualification Gratian makes is that propertied clergy should not be allowed to live off communal church property, that is tithes, benefices and prebends. He then cites canon 25, which proves this.
Then Gratian asks whether church land can be divided into prebends so that someone can sell the annual returns for himself, and he replies, ‘This cannot be done … Clerics are the successors of those, of whom it is said, “moreover the multitude of believers were of one heart and soul.” Therefore, it is necessary that they follow their lifestyle … all things to them will be in common.’Footnote 39 Here Gratian reinforces poverty by prohibiting profiting from communal property.
The next two canons state that the bishop distributes church property as common property, not as his private property, and therefore cannot use it for private purposes.Footnote 40 Gratian then makes a third intervention, asking how clerics can live off of church property, when they would have to thereby appropriate it as private property. He replies:
Although church goods ought to be common to all, nevertheless first he [who is entrusted to distribute it] should supply it to himself and to those attending to the necessities of his church … and thus also prebends of the Church can be distributed piously and religiously, preserving that love [which the Apostles had], so that with respect to the things of the Church, they are not [acquired] as property but as serving common utility.Footnote 41
The purpose of the communal property of the Church is to distribute to those who are in need and to provide for the common good of the entire Church. In this case, clerics, who have no private means of support, having renounced private property, count as those in need; and since they minister to the entire Church, providing for them is also integral to the common good. So, clerics can live off of church benefices and prebends without violating the prohibition on private property.
After a final canon reiterating the prohibition on alienating church property, Gratian concludes, ‘It is shown how clerics have property and how they do not. Also, how church property can be divided into prebends.’Footnote 42 In comparison to Acts, Gratian’s interpretation seems rather lax, not only excluding laypeople from the command to be poor, but also clerics who happen to have families or who simply choose to live off their own private property rather than tithes and benefices. But Gratian, in making exceptions, in no way denies the general precept of religious poverty. For him, private property is only for immediate use and necessity, not for luxurious living or hoarding. And clerics who choose to engage in it are forbidden from using any communal goods. In an age in which clerics frequently owned their own private property and benefited from church benefices and tithes at the same time, Gratian’s vision is a strict reformist vision of a generally poor clergy. This reflects the context of the Gregorian Reform, which strived to remove the clergy from the corruption of aristocratic politics and integrate them into the monastic way of life.Footnote 43 The assumption that married clerics, although common in the east, should be an exception in the west, and therefore so should private ownership necessitated by such married clergy, is a clear sign of this reformist impulse. It is the same impulse evident in Gratian that was also spreading to the laity, creating the apostolic poverty movement.Footnote 44
The Decretists
Despite the Decretum’s dominance in canon law for the next fifty years, its reformist support of religious poverty would be rejected by the next generation of jurists, the Decretists. Paucapalea, the earliest Decretist, writing around 1150, simply explains that Gratian’s dictum which mentions eastern clergy suggests that if canons allow property for eastern clergy who have wives and children, then it follows that western clergy with families also should be allowed property.Footnote 45 The next two important Decretists were Rolandus, writing after 1155, and Rufinus, writing shortly after Rolandus.Footnote 46
Breaking from Gratian, Rolandus notes, ‘Here it is first asked whether clerics are allowed to have property. It should be noted that some clerics renounce property, others not. Also of them, who renounce, some by solemn vow, others by private [vow]. Whoever by solemn vow renounces property cannot have property, the others are allowed to.’Footnote 47 Gratian’s distinctions between eastern and western clergy, adult laymen who become clerics and clerics raised as such from youth, those choosing to live off church benefices and those refraining, are completely ignored. A simple answer is provided: those who vow to renounce property cannot have it, those who do not can. Religious poverty is no longer a moral duty of all Christians, or at least of the clergy; it is now a matter of free choice.
Rufinus struggles more with Gratian’s opinions but agrees with Rolandus. He specifies that those who vow to renounce poverty are ‘monks and canons regular’.Footnote 48 He notes that with respect to clerics with families, ‘It is not fitting for them after taking sacred orders to abandon the care of [their families].’Footnote 49 He continues, ‘It should be known that in the primitive Church not only clerics but all entirely who believed possessed no property, but all things were in common.’Footnote 50 But he asserts that canons commanding this poverty ‘are more counsel than precept’.Footnote 51 He dismisses canon 8, saying that ‘the decree is personally and locally understood, it was made to the English clerics’.Footnote 52 Canon 9, he notes, only applies to those who ‘renounced property’.Footnote 53 To canon 10, which says bishops cannot store up treasure, Rufinus adds, by ‘granting less than is fitting to the poor’.Footnote 54 In response to Augustine’s command in canon 10 that clerics not have property but those who have it should not be immediately defrocked, Rufinus explains that in Hippo all clerics were forced to renounce property to become clerics, therefore, ‘None of them had freely embraced this resolution, when they could not have property openly, they had it secretly. That indeed was worse for them … therefore with the custom of the good steward [bishop] changed by advice, he permitted them to have property.’Footnote 55 Rufinus thus explains away the canons that seemingly command all clerics to be poor. He emphasises a voluntary poverty, typical of monks. Hypocritical or coerced poverty is much worse than open property ownership.
Stephen of Tournai inherits this legal tradition.Footnote 56 Perhaps because he believed Roland and Rufinus’ explanations to be sufficient, he barely addresses the question. His sole contribution is to state that despite canon 2 citing Plato’s support of common property, Pope Clement obviously did not support Plato’s communal ownership of wives. He then notes that Gratian shifts his focus from this question to that of alienating church property, and writes, ‘May the reader see whether he sufficiently solved [the question].’Footnote 57 Apparently Stephen did not think the question worth wrestling with.
The second generation of Decretists, including Huguccio and Johannes Teutonicus, systematise the answers provided by their predecessors.Footnote 58 Huguccio presents three answers to the question: ‘[Canons] that seem to show that clerics ought not to have property, either refer to the time of the primitive Church, or are counsels and not precepts, or refer to those who renounce property.’Footnote 59 He assumes that the early Church’s customs are not binding on later generations, that advice is not as legally binding as commands, and that religious poverty must be undertaken voluntarily. Huguccio then systematically applies these responses to the canons commanding poverty, dismissing them one by one. For example, with regard to canon 2, which says poverty is necessary, he notes ‘necessary, that is useful and expedient’.Footnote 60 With regard to the fact that Clement seems to use language of command, he notes ‘but it seems to be denied by what follows: “We exhort, [giving] counsel.” But often precepts are advised and taught … He speaks according to the state of the primitive Church, when no ecclesiastical persons had property, and concerning those who made the judgment beforehand by renouncing their property, and to others it is a counsel.’Footnote 61 Apparently, Huguccio is not always convinced by his own argument and goes through different options. With regard to the next canon, he seems to give up applying these explanations, stating, ‘However I concede that they speak concerning all generally, and about common law. But in many places, it is repealed for them through contrary custom.’Footnote 62 He admits the canons require renunciation of private property and resorts to the idea that local custom supersedes these canons, therefore allowing contemporary clerics to have property.
The glossa ordinaria on the Decretum, written by Johannes Teutonicus and later revised by Bartholemew of Brescia, follows Huguccio’s three rebuttals to mandatory clerical religious poverty: it only applies to those who renounce property, it is only advice and it only applied in the time of the Early Church.Footnote 63 But like Huguccio, the glossators struggle to dismiss precepts as counsels, instead concluding, ‘If this is commanded today, it would deform the state of the universal Church, which ought not be done.’Footnote 64 The conclusion is clear: the Church in their day universally had private property, and to try to undo this development would destabilise the Church, therefore mandatory religious poverty is invalid.
Other less prominent Decretists largely adhered to these opinions but also added some new arguments.Footnote 65 Johannes Faventinus states that ‘It should be known that in the primitive Church [that] nevertheless was it illicit to possess property for clerics, but all those believers completely possessed nothing of their own … they could possess nevertheless, while it was not against the command of the Lord God.’Footnote 66 He is suggesting that the Early Church’s universal poverty was strictly voluntary. Like Huguccio, Sicard of Cremona first states, ‘So that all opposition would cease, universal custom suffices.’ He goes on to note that allowing property to some and not to others is expedient: ‘It is similar to those who marry doing well, and those who do not doing better.’Footnote 67 In other words, just as chastity is a counsel of perfection, not required for all, but good for those who can follow it, poverty should be the same. The anonymous Summa parisiensis goes further, claiming that ‘in reality, in the primitive Church, clerics had property’, completely rejecting the Early Church as a model of religious poverty.Footnote 68 He notes that canon 9 speaks of those who ‘vow’, saying, ‘This is seen to completely determine the question.’Footnote 69 In other words, that one word in that one canon limits poverty only to monks and canons regular. He then defends the Church owning lands, writing that the Apostles sold their lands ‘since they knew the Church would not remain among the Jews but would be transferred to the Gentiles’ and now among the Gentiles the ‘fruits [of the estates] can continually benefit the poor of the Church’.Footnote 70 Simon of Bisignano notes that property does come from iniquity, but it is accepted ‘for the sake of the infirmity’ of humans, and private property, although unequitable, ‘convinces man not to do what he would not want to be done to him’.Footnote 71 He also notes that ‘anything is presumed to be allowed which by a good author is seen to be done’, suggesting various Church Fathers allowing or having church property makes it licit.Footnote 72
As we can see, the discipline of canon law universally rejected Gratian’s initial commitment to the ideal of religious poverty. It was seen as simply too impractical and disruptive. By the thirteenth century, among lawyers, poverty was a matter solely of religious vows, applicable to monks and canons regular, not to all clerics or laypeople.
The Liber extra and the Decretalists
Two shifts in canon law in the late twelfth century led to further departures from Gratian. The first was an increasing usage of Roman civil law to supplement canon law.Footnote 73 The second was the greater focus on papal decretal letters as a body of canon law.Footnote 74 In 1234, Gregory ix, with the help of the Dominican canonist Raymond of Peñafort, issued a definitive collection of papal decretals, the Liber extra, which from that point on became the focal point of jurisprudence and legal commentary, ending Gratian’s dominance. In the Liber extra, there is no discussion about religious poverty for all Christians, or even all clerics. Discussions of poverty are relegated to book iii, title thirty-five, de statu monachorum. The canons in this title forbid monks from having property and dictate what punishments are incurred for violators, such as penance, expulsion from the monastery, or burial in unconsecrated ground.Footnote 75
But the development of canonistic views on the matter did not end here. A new question emerged around these canons. If religious poverty is indeed limited to those who vow to renounce property, how strictly must they abide by these vows? Can an abbot, bishop, or the pope, command monks to have property? Oddly enough, in those who comment on the Liber extra, the Decretalists, there is a similar trend in which early canonists uphold the vow of poverty as absolute, while later ones view papal power as able to invalidate such vows. Most surprisingly, mendicant canonists, who embraced the strictest forms of religious poverty, were participants in this trend.
Bernard of Parma, who wrote the glossa ordinaria to the Liber extra, states, ‘It is plain that a monk cannot have property … and remain a monk … It is contrary to the substance of monasticism … The lord pope cannot dispense in this’, elaborating by adding, ‘Since the abdication of property and guarding of chastity are tied to the monastic rule, against these the high pontiff cannot grant licence.’Footnote 76 Godfrey of Trano agreed that the renunciation of property was part of the substance of monastic life, writing, ‘Monks and canons regular agree among themselves in these, which are the substantial things of religion, such as in the abdication of property, obedience, and continence.’Footnote 77 The first to disagree was Pope Innocent iv, in his commentary on the Liber extra. He notes that a monk at his core is nothing but ‘a mournful solitary person’, and that everything else imposed on the monk, including poverty, is imposed by the ‘establisher of the law [i.e. the pope], and from this it is clear that the pope can dispense with a monk that he should have property or a spouse’. However, ‘when the pope dispenses without a just cause present, he sins’.Footnote 78 He then goes on to describe such a just cause: a monk is the sole heir to a kingdom and unless he takes the kingdom as his property and marries to produce an heir, the kingdom will fall into infidel hands. If such a power were not granted to the pope, and a tyrant must be allowed to take over simply so a monk can fulfill his vows, ‘thus you will regard God to be cruel’.Footnote 79
Hostiensis adheres to this opinion. After discussing various other opinions, he writes, ‘The fourth [group] says, and more truly, which you ought to completely hold to, that the pope from his plenitude of power in every vow can dispense … he sins if he dispenses without cause, and he should not be obeyed if manifestly it is shown that he acts contrary to the will of the Lord.’Footnote 80
The mendicant canonists, despite their devotion to poverty, follow the exact same trajectory of development. The Dominican Raymond of Peñafort notes simply that ‘the pope cannot make a monk have property’.Footnote 81 But very soon after, mendicants begin to doubt. Guillaume de Rennes, who wrote the gloss on Raymond’s summa, notes three views: namely that all vows that are dispensed with are compensated by another higher good, or that the vow of chastity cannot be dispensed with because it cannot be compensated for, or that every vow relating to religious perfection (including poverty, chastity and obedience) cannot be compensated for, since imitation of Christ is the highest good. He concludes, ‘Which of these three opinions is truer, I confess I do not know … therefore I assert none. … the interpretation of this law is universally for the Lord Pope, and therefore in all other things except these three, he can dispense.’Footnote 82 Guillaume’s true view seems to be that the pope cannot dispense with monastic vows, but he refuses to assert this forcefully, instead declaring that he does not know.
The Franciscan canonist Henry of Merseburg similarly states, ‘Against [poverty] not even the pope can grant licence.’ But then, in a crucial concession, he adds, ‘In every case the pope cannot do this, but where there is a serious and truly necessary cause.’Footnote 83 By the late thirteenth and early fourteenth centuries, there was little certainty on the matter. The Franciscan John of Erfurt states that because poverty and chastity are integral to the monastic rule, ‘against these not even the pope can grant any license’.Footnote 84 But later on, when describing the poverty that the mendicants are bound by, he states:
Also religious mendicants are not permitted to receive any new houses … or buy, or exchange, or alienate, without the express license of the pope … the one giving money for necessities of the Friars Minor retains lordship and proprietorship and possession, having free power to revoke it … and the friars in this money have nothing.Footnote 85
Although he seems to resist the temptation to directly allow popes to dispense with vows of poverty, John then seems to give the pope the power to grant licences to friars to acquire new property and engage in economic activity. This tension is resolved by the assertion that in doing so, the friars have no property rights, which remain with the donor of the property. In reality, John is conceding to the pope the right to grant property to friars, under a legal fiction.
The influence of canon law
The influence of canonistic interpretations of poverty was deep, largely because of the role canon law played in pastoral literature, especially the summae confessorum (handbooks for confessors). In the twelfth century, such summae were often theological in nature, posing theoretical questions often without definitive practical answers. In response to this, beginning with the Liber poenitentialis of Robert of Flamborough in the early thirteenth century, writers of pastoral literature begin more and more to incorporate canon law jurisprudence into their instructions.Footnote 86 Many summae of the thirteenth century were written by canonists and are basically canonistic commentaries on the Liber extra. Footnote 87 When theological learning began to be reincorporated into confessor’s handbooks in the early fourteenth century, it would be found interwoven into canonistic discussions, as in the summa of John of Freiburg.Footnote 88
The mendicants were attracted to such canonistic learning. As Neslihan Şenocak notes, the initial push for more education within the Franciscan order may have been more for hearing confessions than for preaching.Footnote 89 Given the state of confessors’ handbooks in the time of the early Franciscans, this education would undoubtedly have exposed friars to canon law jurisprudence. As Bert Roest states, canon law was necessary not only for hearing confession but also for administrative, sacramental and pastoral duties, which were all bound by legal norms. Thus, many Franciscan convents had copies of the Decretum and Liber extra, and canon law was taught alongside theology in Franciscan studia. Footnote 90 This was also the case with the Dominicans (the Order of Friars Preachers), another mendicant order which combined apostolic poverty and learning to combat heresy. As M. Michèle Mulchahey notes, when Boniface viii issued a new set of decretals (the Liber sextus) to supplement the Liber extra of Gregory ix, the general chapter of the Dominicans ordered every Dominican convent to have a copy of it.Footnote 91
That familiarity with and education in canon law would have exposed mendicants to the general trends in canonistic interpretation is clear from the work of William of Ockham. In his Opus nonaginta dierum, William shows his knowledge of Gratian’s Decretum and its interpretations. He even cites C.12.c.1, on whether clerics should be allowed to have property, many times.Footnote 92 Of particular note is in chapter ten of the work, where William cites canon 2 of Gratian’s question, emphasising that the Apostles and those following them must have all things (omnia) in common, thus ruling out the idea that the distribution of necessary goods for use amounts to private ownership, an assertion that the Spiritual Franciscans’ enemies had often made. But what really shows that William was influenced by the trends of canonistic interpretation is what follows this citation. Even though Gratian’s text does not make any mention of it, William proceeds to assert repeatedly that the ‘Apostles vowed and religious vow to abdicate all temporal property.’Footnote 93 He even is aware that this vow is not present in the text of Scripture, or the canon from Gratian, but adds that it can be ‘concluded from expositions’.Footnote 94 While making an argument in favour of absolute lack of communal and private ownership of material goods as allowing the use of necessities, William not only cites Gratian but then clearly assumes as fact what the following generations of canonists argued for, that religious poverty is not for all, or even for all clerics, but only for those who especially vow to take it on, that is the religious. In addition, the very distinctions between ownership (‘dominium’) and use (‘usus’) so critical to Ockham and the Spiritual Franciscans were not derived from theology, but canon law which had long borrowed them from Roman civil law.Footnote 95 The theoretical ground on which these arguments about poverty were being made was already shaped by canon law.
Gratian’s embrace of the ideal of a poor Church and Salimbene’s rejection of wealth are both rooted in the Gregorian Reform. But very quickly, the impracticality of Gratian’s ideal of a clergy largely without private property drove canonists to reject it. They appealed to the ‘state of the Church’, the primacy of local custom, the unbinding nature of counsel, or the need to avoid hypocrisy, thus relegating poverty to the monastery. Then, in order to uphold papal power, they began to allow relaxations even of monastic poverty. In the end, even the mendicant jurists themselves did not, despite their devotion to poverty, resist this trend. John xxii and William Courtenay, with their training in canon law, did not hesitate to declare as heresy the idea that the pope could not force religious to have property or that all clerics should be poor. Despite Bernard of Parma supporting the former and Gratian the latter, the evolution of canonistic opinion on the matter was swift and irreversible. When the Spirituals like William of Ockham argued against John xxii, they did not claim that all Christians should be poor, or even that all clerics should be poor; they only sought to protect the idea that mendicants could remain poor. Such a limited claim means that the canonistic evolution following Gratian was already taken for granted, even by the mendicants. This was made possible by the fact that not only their detractors but also the mendicants themselves were often educated in canon law.
