Bulletin of Medieval Canon Law

Introduction

This essay deals with the place of counsel in the law of the medieval Church—counsel in the sense of consultation with others before taking action. In requiring time and place for deliberation before the enactment of legislation, the utility of prior meeting for long been understood as providing support for the growth of European representative institutions.¹ But it has also been more than that. Walter Bagehot hit upon its lasting and intrinsic importance, concluding his treatment with a lesson he perceived in history. 'No State', he wrote, 'can be first-rate which has not a Government by discussion'.² This essay explores this insight by examining the place of counsel in the medieval canon law. Its theme is that a requirement of taking counsel before taking action played a significant role in the government of the church. It was a requirement that mattered then—and should also matter now—in our understanding of the character of the medieval canon law.

The essay's subject has not received much attention. It has found a place in the some studies of royal government,³ but the role that counsel occupied in administration of the law of the church has largely been lost from view. The term is conspicuously absent from the index of most accounts of the canon law, even though it provides a regular entry in the indices rerum of early treatises on the subject. Most substantive accounts of the place of [End Page 65] canon law in famous incidents in church history similarly neglect its existence.

A representative example of this neglect comes from modern accounts of one of the most famous of the contests between 'regnum' and 'sacerdotium', the early fourteenth century dispute between Pope Boniface VIII and Philip IV, King of France, which led to the famous 'Outrage at Anagni'. Historians have treated the dispute as a struggle for power,⁴ and of course it did turn out to be that. However, that is not all it was. The struggle was occasioned by the Pope's summons of the French bishops to appear before him in Rome, an appearance which the French monarch sought (with some success) to prevent. Few historians have found any reason to mention anything about the stated reason for the Pope's summons. That document stated that Pope Boniface required the bishops to appear at the papal court, 'so that we might have their counsel'.⁵ On the surface at least, it appears that Boniface required both their presence and their advice. Of course, at this remove it is impossible to uncover his true motives. Perhaps he was the reckless absolutist that historians have sometimes depicted, a man desirous of demonstrating the unlimited breadth of the supreme pontiff's power.⁶ Even if this be so, the reason he gave for summoning the French bishops should be a part of the discussion. It should also be said that this particular reason stood in harmony with the Church's law. In the law of the medieval church, the value of taking counsel was a continuing theme. In many circumstances, it was also a necessity. [End Page 66]

Counsel In The Bible And In Roman Law

It is appropriate to begin with a look at two building blocks in the construction of a working system of canon law—the Bible and the Roman law.⁷ Both were treated as sources of law by the canonists, though their method in doing so was selective. Texts from both appeared frequently in commentaries on the canon law, and both contained strong endorsements of a ruler's need for good counsel. So we find: 'The way of a fool is right in his own eyes, but he that hearkeneth unto counsel is wise' (Prov. 12.15). 'Better is a poor and wise child than an old and foolish king who will no longer take advice' (Eccles. 4:13). 'By insolence comes nothing but strife, but with those who take advice is there wisdom' (Prov. 13.10). 'No king goes to war without first taking counsel' (Luke 14.31).

There was a downside to what taking counsel could achieve...